FILED

U.S. COURT OF APPEALS

ELEVENTH CIRCUIT

 APRIL 8, 2008

THOMAS K. KAHN

CLERK

[DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

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No. 07-13593

Non-Argument Calendar

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D.C. Docket No. 07-80039-CR-DTKH

UNITED STATES OF AMERICA, 

Plaintiff–Appellee, 

versus 

ELIU GARCIA, 

Defendant–Appellant. 

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Appeal from the United States District Court

for the Southern District of Florida

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(April 8, 2008)

Before BARKETT, MARCUS and WILSON, Circuit Judges.

PER CURIAM:
 As is noted at the close of this opinion, there is additional evidence that supports the 1

district court’s determination. Specifically, Garcia made a statement from which one could infer

that he possessed the firearm to protect his drugs from theft. Furthermore, in the record excerpts

provided by Garcia, the district court judge explicitly stated that he did not rely solely on the

proximity of the gun to the drugs to find that Garcia possessed the gun in facilitation of the other

felony.

2

Eliu Garcia appeals his 96-month sentence for possession of a firearm by a

convicted felon, in violation of 18 U.S.C. § 922(g)(1). Garcia argues that the

district erred by applying a four-level enhancement to his base offense level,

pursuant to U.S.S.G. § 2K2.1(b)(6), for possession of a firearm in connection with

another felony offense where, according to his claims, the only evidence of

facilitation was a speculative inference based on the proximity of the gun to the

drugs found in his car.

1

“[We] review[] the district court’s application and interpretation of the

sentencing guidelines under the de novo standard of review, but review[] its

findings of fact for clear error.” United States v. Rhind, 289 F.3d 690, 693 (11th

Cir. 2002). “For a factual finding to be ‘clearly erroneous,’ [we], ‘after reviewing

all of the evidence, must be left with a definite and firm conviction that a mistake

has been committed.’” United States v. Rodriguez-Lopez, 363 F.3d 1134, 1137

(11th Cir. 2004) (citation omitted). 

In calculating the guideline range for a firearm possession offense under

§ 922(g), a four-level increase to the base offense level is required “[i]f the
3

defendant . . . possessed any firearm . . . in connection with another felony offense

. . . .” U.S.S.G. § 2K2.1(b)(6). Effective November 1, 2006, the Guideline was

amended to add the following commentary: 

14. “In Connection With”.--

(A) In General.--Subsection[] (b)(6) . . . appl[ies] if the firearm or

ammunition facilitated, or had the potential of facilitating, another

felony offense . . . .

(B) Application When Other Offense is Burglary or Drug Offense.--

Subsection[] (b)(6) . . .appl[ies] . . . 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. In these cases,

application of subsection[] (b)(6) . . . is warranted because the

presence of the firearm has the potential of facilitating another felony

offense . . .

U.S.S.G. § 2K2.1 cmt. n.14 (2006) (emphasis added). “[C]ommentary in the

Guidelines Manual that interprets or explains a guideline is authoritative unless it

violates the Constitution or a federal statute, or is inconsistent with, or a plainly

erroneous reading of, that guideline.” Stinson v. United States, 508 U.S. 36, 38

(1993).

 In cases addressing the “in connection with” language prior to the recent

Amendment, we, relying on analogous guideline provisions, have suggested that

mere possession might be enough to apply the enhancement in circumstances

where it is reasonable to assume that the defendant possessed the firearm to
4

prevent the theft of property related to the underlying offense. See Rhind, 289

F.3d at 694-96 (holding that defendants possessed firearms in connection with

counterfeiting offenses where it was reasonable to conclude that the presence of the

firearms protected the counterfeit money); United States v. Jackson, 276 F.3d

1231, 1234-35 (11th Cir. 2001) (noting we have held, in addressing the “in

connection with” requirement of analogous guideline provisions, that an

enhancement is properly applied where it was reasonable to assume possession was

for prevention of theft). Although these cases were decided prior to the

Amendment, a firearm possessed for theft protection would have the potential to

facilitate the underlying offense. See Jackson, 276 F.3d at 1234-35.

Here a loaded firearm was discovered in close proximity to a few week’s

worth of Garcia’s personal use drugs. Moreover, when Garcia was arrested, he

asked the arresting officer not to take the drugs because “ they will kill me.” From

these factors, an inference could be drawn that Garcia carried the firearm to

prevent the theft of the drugs. Thus, the district court did not clearly err by finding

that the firearm was used in connection with Garcia’s felony drug possession. 

Accordingly, we affirm.

AFFIRMED.