UNPUBLISHED

UNITED STATES COURT OF APPEALS 

FOR THE FOURTH CIRCUIT 

No. 07-4499

UNITED STATES OF AMERICA, 

 Plaintiff - Appellee, 

 v. 

MICHAEL LEE DRAKE, 

 Defendant - Appellant. 

Appeal from the United States District Court for the Western 

District of North Carolina, at Asheville. Lacy H. Thornburg, 

District Judge. (1:06-cr-00010) 

Submitted: January 9, 2009 Decided: February 9, 2009 

Before NIEMEYER, KING, and GREGORY, Circuit Judges. 

Affirmed by unpublished per curiam opinion. 

Henry M. Whitesides, Jr., THE LAW OFFICES OF H. M. WHITESIDES, 

JR., P.A., Charlotte, North Carolina, for Appellant. Gretchen C. 

F. Shappert, United States Attorney, Charlotte, North Carolina; 

Don D. Gast, Assistant United States Attorney, Asheville, North 

Carolina, for Appellee.

Unpublished opinions are not binding precedent in this circuit. 
PER CURIAM: 

Michael Lee Drake appeals from the sentence imposed 

after he was convicted for the sale or disposal of firearms to a 

person known to be a convicted felon and possession of a firearm 

with an obliterated serial number. He received a forty-one 

month sentence. On appeal, Drake argues that the district court 

erred in applying a four-level enhancement at sentencing for 

transferring a firearm “with knowledge, intent, or reason to 

believe that it would be used or possessed in connection with 

another felony offense” under U.S. Sentencing Guidelines Manual

§ 2K2.1(b)(5) (2003).* Finding no error, we affirm. 

We review a district court’s findings at sentencing 

for clear error and its legal determinations de novo. United 

States v. Daughtrey, 874 F.2d 213, 217-18 (4th Cir. 1989). A 

determination that there are sufficient facts to impose a 

§ 2K2.1(b)(5) enhancement is a factual finding. See United 

States v. Garnett, 243 F.3d 824, 828 (4th Cir. 2001) (government 

has burden of proving facts to support § 2K2.1(b)(5) enhancement 

by preponderance of the evidence and district court’s fact 

finding is reviewed for clear error); United States v. Nale, 101 

F.3d 1000, 1004 & n.3 (4th Cir. 1996) (same). This deferential 

 *

 Section 2K2.1(b)(5) was moved to subparagraph (b)(6) by 

Amendment 691, effective November 1, 2006. USSG Supp. to App. 

C, amend. 691. 

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standard of review requires reversal only if this court is “left 

with the definite and firm conviction that a mistake has been 

committed.” United States v. Stevenson, 396 F.3d 538, 542 (4th 

Cir. 2005) (quoting Anderson v. Bessemer City, 470 U.S. 564, 573 

(1985)). 

 Section 2K2.1(b)(5) provides for a four-level 

enhancement if the defendant transferred a firearm “with 

knowledge, intent, or reason to believe that it would be used or 

possessed in connection with another felony offense.” “‘Another 

felony offense’, for purposes of subsection (b)(5), 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.” USSG § 2K2.1 comment. (n.14(C)). The district court 

may find that “a firearm is ‘used in connection with’ another 

felony offense if it facilitates or has a tendency to facilitate 

the felony offense.” Garnett, 243 F.3d at 829 (citing Smith v. 

United States, 508 U.S. 223, 237 (1993)) (internal quotations 

omitted); USSG § 2K2.1 comment. (n.14(A)). 

 There must be evidence that the firearm had some 

purpose or effect with respect to the predicate felony and its 

presence cannot be the result of accident or coincidence. 

United States v. Blount, 337 F.3d 404, 411 (4th Cir. 2003). The 

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Government can meet its burden by showing that the gun was 

present for protection or to embolden the actor. United States 

v. Lipford, 203 F.3d 259, 266 (4th Cir. 2000) (analyzing “in 

relation to” element in 18 U.S.C. § 924(c) conviction). 

 In this case, the district court applied the 

enhancement based on its conclusion that Drake transferred the 

weapons to Walter Chambers having reason to believe that they 

would be used in further felonies. Drake argues that the 

“another felony” language of § 2K2.1(b)(5) suggests another 

specified felony. However, we have held that 

“[section] 2K2.1(b)(5) does not require a defendant’s knowledge 

of a specific offense to be committed.” United States v. 

Cutler, 36 F.3d 406, 408 (4th Cir. 1994). Further, the 

Government can meet its burden by showing that the gun was 

present for protection or to embolden the actor. See Lipford, 

203 F.3d at 266. When the seller has personal contact with the 

buyer, it is “logical for the sentencing courts to infer a 

certain level of knowledge about their buyers’ intended uses.” 

United States v. Askew, 193 F.3d 1181, 1184-85 (11th Cir. 1999). 

Another felony may include those acts not charged. USSG § 2K2.1 

comment. (n.7). 

 After reviewing the evidence, we conclude that the 

district court did not clearly err in finding that Drake 

furnished the firearms knowing they would be used to facilitate 

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or embolden Chambers in his sale of illegal drugs. Accordingly, 

we affirm the sentence. We dispense with oral argument because 

the facts and legal contentions are adequately presented in the 

materials before the court and argument would not aid the 

decisional process. 

AFFIRMED