[DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS FOR THE ELEVENTH CIRCUIT

________________________ No. 19

- 13455 Non

- Argument Calendar

________________________ D.C. Docket No. 3:18

- cr - 00115

- MCR

- 1

UNITED STATES OF AMERICA, Plaintiff

- Appellee,

versus JEROME LEE, a.k.a. Jermore Lee, Defendant

- Appellant.

________________________ Appeal from the United States District Court for the Northern District of Florida

________________________ (March 31, 2020) Before WILSON , WILLIAM PRYOR, and BRANCH , Circuit Judges. PER CURIAM:

Case: 19-13455 Date Filed: 03/31/2020 Page: 1 of 52 Jerome Lee, a federal prisoner, appeals his conviction for carrying a firearm

“ during and in relation to ” a drug trafficking offense , in violation of 18 U.S.C. § 924(c)(1)(A). Lee argues that the district court erred and abused its discretion when it accepted his guilty plea because the facts admitted in the factual proffer

were not sufficient to support a conviction for posses sion of a firearm “during and in relation to” a drug trafficking offense

. See 18 U.S.C. § 924(c)(1)(A). For the following reasons, we affirm. To start, we review for plain error

. See 11th Cir. R. 3

- 1. 1 Under plain error review, Lee must show that “ (1) an error occurred; (2) the error was plain; (3) it affected his substantial rights; and (4) it seriously affected the fairness of the judicial proceedings. ” United States v. Gresham , 325 F.3d 1262, 1265 (1 1th Cir. 2003). “[A]t least where the explicit language of a statute or rule does not specifically resolve an issue, there can be no plain error where there is no

1 Normally, when a defendant does not object to a magistrate judge’s findings or recommendations in a report and recommendation ( R&R ) per 28 U.S.C. § 636(b)(1) , he “ waives the right to challenge on appeal the district court’s order based on unobjected

- to factual and legal conclusions if the pa rty was informed of the time period for objecting and the consequences on appeal for failing to object. ” 11th Cir. R. 3

- 1. “I n the absence of a proper objection, however, the court may review on appeal for plain error if necessary in the interests of jus tice.” Id. Here, Lee did not object to the R&R. But it appears that he only got a 24

- hours window , even though 28 U.S.C. § 636(b)(1) provides a 14

- day time period for parties to file objections

. So plain error review is necessary in the interests of justice here. See 11th Cir. R. 3

- 1; see also United States v. Carpenter , 803 F.3d 1224, 1238 (11th Cir. 2015) (“W e exercise plain error review sparingly, and only in those circumstances in which a misca rriage of justice would otherwise result.” ( internal quotation mark omitted) ) . In any event, Lee failed to make his insufficient

- factual

- basis objection in the district court ; in that case too, we review for plain error. See United States v. Rodriguez , 751 F.3d 1244, 1251 (11th Cir. 2014)

.

Case: 19-13455 Date Filed: 03/31/2020 Page: 2 of 53 precedent from the Supreme Court or this Court directly resolving it.” United States v. Lej arde

- Rada , 319 F.3d 1288, 1291 (11th Cir. 2003) (per curiam)

. Section 924(c) provides for a mandatory consecutive sentence for any defendant who uses or carries a firearm during and in relation to, or possesses a firearm in furtherance of, a drug traffi cking crime. 18 U.S.C. § 924(c)(1). The Supreme Court has held that, in the context of § 924(c), the phrase “‘ in relation to ’

. . . clarifies that the firearm must have some purpose or effect with respect to the drug trafficking crime; its presence or in volvement cannot be the result of accident or coincidence.” Smith v. United States , 508 U.S. 223, 238 (1993). “Instead, the gun at least must facilitate, or have the potential of facilitating , the drug trafficking offense.” Id. (alterations adopted) (in ternal quotation marks omitted). Following Smith , we held that (1) when a firearm is sold with drugs, the “during” element is satisfied; and (2) even if a firearm sold with drugs did not facilitate the drug offense, the firearm by its nature had the “potential of facilitating ” the offense so as to satisfy the “in relation to” element. United States
v. Timmons , 283 F.3d 1246, 1251

– 52 (11th Cir. 20 02). In Timmons , the defendant
pre - arranged a sale of firearms and drugs with an undercover officer

. Id. at 1248. They completed the sale later that day when they exchanged a shoe box containing a firearm and drugs for $300 for the firearm and $200 for the drugs

. Id. at 12 48

– 49. We concluded that the evidence showed that the gun was not there

Case: 19-13455 Date Filed: 03/31/2020 Page: 3 of 54 “ coincidentally, ” nor was it “ entirely unrelated ” to the crime

. Id. at 1251. We reasoned that “it would flout the purpose of the statute[

— to combat the dangerou s combination of drugs and guns

— ]to hold anything but that the gun was carried ‘during and in relation ’ to the drug offense ” because the defendant combined the drugs and firearm into a single shoebox and a single transaction

. Id. at 1251

– 52. “B efore entering judgment on a guilty plea, the court must determine that there is a factual basis for the plea. ” Fed. R. Crim. P. 11(b)(3). Normally, when evaluating a claim that there was an insufficient factual basis for a plea, we ask

“ whether the dist rict court was presented with evidence from which it could reasonably find that the defendant was guilty.” United States v. Puentes

- Hurtado , 794 F.3d 1278, 1287 (11th Cir. 2015) ( alteration adopted)

. But, as explained earlier, we are reviewing only for p lain error. Here, Lee admitted to (1) arranging to sell the undercover agent a firearm and methamphetamine in a single transaction; (2) meeting the agent and the confidential informant ; (3) driving with them to two different locations where he retrieved a loaded firearm and one

- half ounce of methamphetamine; and ( 4 ) after picking up the firearm and drugs, giving the agent both items and accepting $500 in cash to cover both items. At bottom, Lee fails to point to any on

- point precedent establishing that it was error for the district court to accept his guilty plea under these facts. On the contrary

— Lee’s facts fall squarely within the bounds of

Case: 19-13455 Date Filed: 03/31/2020 Page: 4 of 55 § 924(c)(1)(A). See Timmons , 283 F.3d at 12 48

– 52

. And h is insistence that he did not possess the firearm “in fur therance of” the drug offense is inapposite because , for one, as he acknowledges in his brief, he was charged with carrying a firearm during and in relation to a drug offense and, two, § 924(c)(1)(A) uses the disjunctive. Therefore, t he district court did not plainly err , and w e affirm. AFFIRMED. Case: 19-13455 Date Filed: 03/31/2020 Page: 5 of 5