RECOMMENDED FOR FULL-TEXT PUBLICATION

Pursuant to Sixth Circuit Rule 206

File Name: 09a0277p.06

UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT _________________

UNITED STATES OF AMERICA,

 Plaintiff-Appellee,

v.

RANDAL ANGEL,

 Defendant-Appellant.

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No. 08-5158

Appeal from the United States District Court

for the Eastern District of Kentucky at London.

No. 07-00054-001—Danny C. Reeves, District Judge.

Submitted: August 3, 2009

Decided and Filed: August 11, 2009 

Before: SILER, GIBBONS, and GRIFFIN, Circuit Judges.

_________________

COUNSEL

ON BRIEF: Martin L. Hatfield, LAW OFFICE OF MARTIN L. HATFIELD, PLLC,

Somerset, Kentucky, for Appellant. Charles P. Wisdom, Jr., Erin J. May, ASSISTANT

UNITED STATES ATTORNEYS, Lexington, Kentucky, for Appellee. 

_________________

OPINION

_________________

GRIFFIN, Circuit Judge. Defendant Randal Angel was indicted and subsequently

convicted by a jury on one count of possession of a firearm by an unlawful user of a

controlled substance, in violation of 18 U.S.C. § 922(g)(3), and one count of knowingly and

intentionally manufacturing less than fifty marijuana plants, contrary to 21 U.S.C.

§ 841(a)(1) and (b)(1)(D)(1). The district court sentenced Angel to concurrent terms of 57

months of imprisonment, three years of supervised release, and ordered the forfeiture of

certain property pursuant to 18 U.S.C. § 924(d) and 28 U.S.C. § 2461. 

1
No. 08-5158 United States v. Angel Page 2

1

Because Angel lived in his mother’s home, the agent confined the search to the upstairs bedroom

shared by Angel and his wife.

On appeal, Angel raises one issue regarding his sentence: whether the district court

erred in applying a four-level enhancement for possession of firearms in connection with

another felony offense under U.S.S.G. § 2K2.1(b)(6) (2007). For the reasons that follow,

we affirm. 

I.

Angel’s convictions stem from the April 19, 2006, investigation by the United States

Forest Service of suspected marijuana cultivation at a trailer near his home in a remote area

of Jackson County, Kentucky. While investigating the initial complaint, an agent in a

helicopter observed a possible marijuana seedbed next to the driveway of Angel’s residence

and radioed another agent about his observations. Upon further investigation at the site, the

agent determined that the seedbed contained lettuce, not marijuana. However, as he turned

to leave, the agent noticed a potted plant at the edge of Angel’s treeline. He asked Angel,

who emerged from the back of the house, what the pot contained, and Angel admitted it was

marijuana that he was growing. A search of the property revealed more marijuana – all told,

fourteen marijuana plants growing in five separate pots along the treeline. 

Subsequently, Angel consented to a search of his home. He escorted the agent to his

upstairs bedroom where the agent located and seized 81.2 grams of processed marijuana in

two containers on the floor, drug paraphernalia, assorted ammunition, and three firearms –

a 12-gauge shotgun, a loaded .22 caliber pistol, and a .32 caliber handgun with an altered

serial number.1

 The shotgun was propped next to a night stand, the .22 caliber pistol was

hanging on a chair at the foot of the bed, and the .32 caliber revolver was located

between the mattress and box springs. The ammunition for the firearms was in a drawer

in the night stand next to the bed. 

Angel was interviewed at the residence by the agent and then executed a written

statement, in which he admitted that he grew the marijuana, but claimed that it was for

his personal use to alleviate back pain. He stated that the shotgun, .32 caliber handgun,

and the ammunition belonged to his current wife; the .22 revolver purportedly belonged
No. 08-5158 United States v. Angel Page 3

to his ex-wife. Angel acknowledged that he slept in the bedroom where the firearms and

marijuana were found, but he could not recall the last time he used them. He maintained

that he had only grown marijuana “once or twice” and did not sell it. 

Angel was subsequently indicted and convicted by a jury on one count of

possession of a firearm by an unlawful user of a controlled substance, in violation of

18 U.S.C. § 922(g)(3), and one count of manufacturing less than fifty marijuana plants,

contrary to 21 U.S.C. § 841(a)(1). At sentencing, over Angel’s objection, the district

court imposed a four-level enhancement for use of a firearm in connection with another

felony under U.S.S.G. § 2K2.1(b)(6). This enhancement boosted Angel’s adjusted

offense level (taking into account other enhancements not at issue in this appeal and a

criminal history category of I) from Level 20, with an advisory Guidelines range of 33-

41 months, to Level 24, with a recommended Guidelines range of 51-63 months. The

district court sentenced Angel to concurrent terms of 57 months on both counts. 

II.

On appeal, Angel contends that the district court erred in applying the four-level

enhancement under § 2K2.1(b)(6), which instructs a sentencing court to increase a

defendant’s base offense level by four “[i]f the defendant used or possessed any firearm

or ammunition in connection with another felony offense[.]” U.S.S.G. § 2K2.1(b)(6)

(2007) (emphasis added). 

“[W]e . . . review a district court’s calculation of the advisory sentencing

Guidelines as part of our obligation to determine whether the district court imposed a

sentence that is procedurally unreasonable.” United States v. Bullock, 526 F.3d 312, 315

(6th Cir. 2008) (citing Gall v. United States, 128 S. Ct. 586, 597 (2007)). In doing so,

we review the district court’s factual findings for clear error and its legal conclusions de

novo. Id. at 315-16. 

Although the Guidelines do not define the phrase “in connection with” set forth

in § 2K2.1(b)(6), the accompanying Commentary provides some guidance, explaining

that subsection (b)(6) applies “if the firearm or ammunition facilitated, or had the
No. 08-5158 United States v. Angel Page 4

potential of facilitating, another felony offense.” U.S.S.G. § 2K2.1(b)(6), cmt. n.14(A)

(2007). Specifically, “in the case of a drug trafficking offense in which a firearm is

found in close proximity to drugs, drug-manufacturing materials, or drug

paraphernalia[,] . . . [the enhancement] is warranted because the presence of the firearm

has the potential of facilitating another felony offense.” Id. at cmt. n.14(B)(ii).

Consequently, “[a]s these application notes make clear, the firearms in question need not

be actively used in the commission of a felony, but merely have the potential to promote

another felony offense.” United States v. Heighton, 272 F. App’x 469, 472 (6th Cir.

2008). A district court should apply the enhancement only “if the government

‘establish[es], by a preponderance of the evidence, a nexus between the firearm and an

independent felony.’” Bullock, 526 F.3d at 317 (quoting United States v. Burns, 498

F.3d 578, 580 (6th Cir. 2007)). 

“[P]ossession of firearms that is merely coincidental to the underlying felony

offense is insufficient to support the application of § 2K2.1.” United States v. Ennenga,

263 F.3d 499, 503 (6th Cir. 2001). “While proximity may not be dispositive, it is

certainly indicative of a connection between the guns and the drugs.” United States v.

Oglesby, 210 F. App’x 503, 506 (6th Cir. 2007) (citing United States v. Hardin, 248 F.3d

489, 498 (6th Cir. 2001)). We also examine “whether there was ‘easy access,’ which

would support a theory that the guns were used to facilitate the felonious offense.” Id.

(quoting Hardin, 248 F.3d at 498). Under the so-called “fortress theory,” which this

circuit has adopted, “a sufficient connection is established ‘if it reasonably appears that

the firearms found on the premises controlled or owned by a defendant and in his actual

or constructive possession are to be used to protect the drugs or otherwise facilitate a

drug transaction.’” Ennenga, 263 F.3d at 503 (quoting United States v. Henry, 878 F.2d

937, 944 (6th Cir. 1989)). “Put differently, § 2K2.1 applies if the firearm had some

emboldening role in [a] defendant’s felonious conduct.” Id. (citation and internal

quotation marks omitted). 

Angel argues that there is no evidence that he possessed the firearms “in

connection with” another felony offense. He concedes that the manufacture of marijuana
No. 08-5158 United States v. Angel Page 5

2

“‘Another felony offense,’ for purposes of subsection (b)(6), means any Federal, state, or local

offense, other than the explosive or firearms possession or trafficking offense, punishable by imprisonment

for a term exceeding one year, regardless of whether a criminal charge was brought, or a conviction

obtained.” U.S.S.G. § 2K2.1, cmt. n.14(C) (2007). The manufacture or cultivation of marijuana is a

felony offense under both federal and Kentucky law. See 21 U.S.C. § 841(a)(1) and (b)(1)(D)(1) (less than

50 kg of marijuana); KY.REV.STAT.ANN. § 218A.1423(2) (five or more marijuana plants). In the present

case, the presentence investigation report specifically refers to the manufacture of marijuana offense as

a basis for the § 2K2.1(b)(6) enhancement, thus refuting Angel’s claim that the government and the court

failed to specifically identify the particular felony offense upon which the enhancement was based. 

plants constitutes “another felony offense” for purposes of subsection (b)(6),2 but

maintains that the government failed to prove that the firearms were used to facilitate or

had the potential of facilitating the manufacture of marijuana. In support of his claim,

Angel points out that the guns were found in an upstairs bedroom, a considerable

distance from the marijuana plants found at the edge of the property line; only one of the

firearms seized from the bedroom was loaded, and Angel testified that his wife used it

for protection; there was no evidence that he manufactured marijuana inside the house;

and there was no security or surveillance system in place at the residence. According

to Angel, the quantity of marijuana and the drug paraphernalia found inside the house

were consistent with his admission that he was a drug user and indicative only of

personal use, not drug trafficking. 

The government not only disputes Angel’s assertions, but further maintains that,

although Angel objected in general terms to the Guidelines calculations, neither his

written objections to the presentence investigation report nor his objections at the

sentencing hearing specifically addressed the finding that the firearms were possessed

“in connection with” the manufacture of marijuana under subsection (b)(6). Hence, we

should review this unpreserved issue under the plain error standard of review. See

generally United States v. Vonner, 516 F.3d 382, 385-86 (6th Cir. 2008) (en banc)

(procedural error claims not raised below are reviewed only for plain error). 

However, we need not dwell on whether Angel’s objection was imprecise

because under either a preserved or unpreserved error standard of review, the district

court did not err in applying the four-level enhancement pursuant to § 2K2.1(b)(6).

Ample facts in the record support the district court’s finding that the firearms possessed

by Angel facilitated or had the potential to facilitate the manufacture of marijuana.
No. 08-5158 United States v. Angel Page 6

Angel was found guilty of possessing three firearms on the same property where he was

growing fourteen marijuana plants. Although Angel claims that the firearms were used

only by his wife for protection, the fact that multiple firearms were found in the small

bedroom that he shared with his wife, in close proximity to the processed marijuana and

drug paraphernalia, contradicts this assertion. The guns were positioned for ready access

– propped next to the night stand, on a chair at the foot of the bed, and underneath the

mattress of the bed. Ammunition for the firearms was located in the night stand next to

the bed. Given these circumstances, the government proved by a preponderance of the

evidence the required nexus between the firearms and the independent felony – the

manufacture of marijuana. 

Angel’s contention that there was no evidence that he distributed drugs does not

alter our conclusion. In Ennenga, we noted that “[a]lthough the other felony offense in

most § 2K2.1 cases involves drug distribution, this is not an exclusive prerequisite.

When one is in possession of a large and valuable stash of drugs, the desire to protect

these illicit substances can be compelling.” Ennenga, 263 F.3d at 504. We held in

Ennenga that the defendant’s sentence for possession of a firearm by a felon was

properly enhanced under § 2K2.1, where five weapons to which he alone had access

were found in a locker in the basement hallway, ammunition for a revolver was found

in the bedroom, an electric alarm system was in place, and the defendant conceded that

the growth of marijuana in his basement apartment was “another felony offense” within

the meaning of § 2K2.1. Id. at 503-04. 

Using the fortress theory, we have affirmed § 2K2.1(b)(6) enhancements in

numerous other cases involving circumstances sufficiently similar to the present case.

See United States v. Richardson, 510 F.3d 622, 626-27 (6th Cir. 2007) (holding that

§ 2K2.1(b)(6) enhancement was warranted where the defendant was arrested in a

marijuana smoke-filled motel room with his girlfriend, and authorities found a stolen gun

and marijuana in the defendant’s pocket, along with a large quantity of marijuana and

digital scales in the girlfriend’s purse); Hardin, 248 F.3d at 498-501 (affirming district

court’s application of the enhancement under the fortress theory where more than fifty
No. 08-5158 United States v. Angel Page 7

grams of cocaine were found in the defendant’s bedroom, along with two ammunition

magazines, a bag of marijuana, and a pistol registered to the defendant’s wife and

purportedly used for her protection); Heighton, 272 F. App’x at 471-72 (upholding

§ 2K2.1(b)(6) enhancement under the fortress theory where police officers discovered

items used in the production of methamphetamine in the defendant’s residence, two

loaded firearms in the kitchen area, four other firearms in the house, an electronic scale,

and a surveillance camera monitoring the property). 

Here, there is likewise no doubt that the presence of multiple loaded firearms and

ammunition in defendant’s bedroom, in close proximity to the processed marijuana and

marijuana plants on the perimeters of the property, was not the result of accident or

coincidence, but rather was conveniently made available to facilitate the manufacture of

marijuana, protect the product, and embolden Angel. We therefore conclude that the

district court did not err in imposing the § 2K2.1(b)(6) enhancement. 

Moreover, contrary to Angel’s assertion, the district court made sufficient on-therecord findings as to the application of the enhancement. “[W]hen a defendant raises a

particular argument in seeking a lower sentence, the record must reflect both that the

district court considered the defendant’s argument and that the judge explained the basis

for rejecting it.” United States v. Jones, 489 F.3d 243, 251 (6th Cir. 2007) (citation and

internal quotation marks omitted). Our review of the sentencing hearing shows that the

district court specifically addressed and overruled Angel’s objection to the § 2K2.1(b)(6)

enhancement. Thus, Angel’s argument is without merit. 

Because the district court correctly calculated the Guidelines range and Angel

alleges no further error, we find his sentence to be procedurally reasonable. United

States v. Angwin, 560 F.3d 549, 553 (6th Cir. 2009) (citing Gall, 128 S. Ct. at 597). 

III.

For the foregoing reasons, Angel’s sentence is affirmed.