FILED

U.S. COURT OF APPEALS

ELEVENTH CIRCUIT

 DECEMBER 9, 2010

JOHN LEY

CLERK

[DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

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No. 10-11356 

Non-Argument Calendar

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D.C. Docket No. 1:09-cr-00003-JOF-CCH-1

UNITED STATES OF AMERICA,

lllllllllllllllllllllPlaintiff - Appellee,

versus

WILLIAM ANTHONY HENDLEY,

lllllllllllllllllllllDefendant - Appellant.

________________________

Appeal from the United States District Court

for the Northern District of Georgia

________________________

(December 9, 2010)

Before EDMONDSON, PRYOR and KRAVITCH, Circuit Judges.

PER CURIAM:

William Anthony Hendley pleaded guilty to the unlawful possession of a

firearm by a convicted felon under 18 U.S.C. § 922(g) and was sentenced to a term
of 106 months’ imprisonment and three years of supervised release. Hendley

appeals from his sentence, which he argues was based on an improperly calculated

guidelines range.

I.

One night in April 2008, police in Roswell, Georgia responded to reports of

gunfire in a public park. After arriving at the park, the officers approached two

men leaving a wooded area. When the police identified themselves, one of the

two men, Hendley, fled. The police chased Hendley and eventually apprehended

him. When the officers retraced the path of the chase, they found a handgun and,

20 yards away from the handgun, two cellophane bags. One bag contained 14.4

grams of crack cocaine and the other contained 3.3 grams of marijuana. Although

the officers had not seen Hendley discard the drugs, they assumed that he must

have because the bags were dry despite a recent rainstorm. Hendley’s hands tested

positive for gunshot residue, and he eventually admitted that the gun was his.

Hendley was indicted for possession with intent to distribute more than five

grams of cocaine base, 21 U.S.C. § 841, possession of a firearm as a convicted

felon, 18 U.S.C. § 922(g), and possession of a firearm in furtherance of a

drug-trafficking offense, 18 U.S.C. § 924(c). Hendley pleaded guilty to the felonin-possession charge, and the government moved to dismiss the other charges.

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Before sentencing the probation officer recommended that Hendley’s base

offense level under the Sentencing Guidelines be increased by four points because

he had possessed a firearm “in connection” with another felony, possession of

crack cocaine with intent to distribute. See U.S.S.G. § 2K2.1(b)(6). Hendley

objected to the enhancement, arguing that the drugs were not his and, at any rate,

they were found in a different place from his gun. 

At the sentencing hearing, Roswell police detective Mark Macdonald

testified that, while he was chasing Hendley, he smelled unburned marijuana near

a tire that he and Hendley had jumped over. Macdonald further testified that he

found the drugs near the tire about 20 yards from the gun. The government also

argued that the cellophane bags were dry even though it had recently rained and

noted that Hendley had once before discarded drugs while fleeing from the police. 

Hendley’s counsel responded that the drugs could have belonged to anyone, and

that if Hendley had discarded them, Macdonald would have seen him do it.

The district court found that the government had proved that Hendley had

probably possessed the firearm in connection with the felony drug offense. 

Accordingly, the court applied the enhancement. The resulting guidelines range

was 110 to 120 months’ imprisonment, but the judge varied downward and

sentenced Hendley to 106 months’ imprisonment and three years of supervised

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release. He now appeals his sentence, arguing that it was based on an improperly

calculated guidelines range because his offense level was erroneously enhanced by

the district court’s finding that he had possessed the handgun in connection with

another felony.

II.

We review the district court’s application and interpretation of the

Sentencing Guidelines de novo. United States v. Rhind, 289 F.3d 690, 693 (11th

Cir. 2002). Factual findings, on the other hand, are reviewed for clear error. Id. 

“For a factual finding to be clearly erroneous, this court, 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). When a defendant objects to an enhancement under the Guidelines, the

government bears the burden of proving any disputed facts by a preponderance of

the evidence. United States v. Martinez, 584 F.3d 1022, 1027 (11th Cir. 2009).

The Sentencing Guidelines provide for a four-point enhancement to a

defendant’s base offense level if he possessed a firearm “in connection with”

another felony. U.S.S.G. § 2K2.1(b)(6). If the other felony is a drug-trafficking

offense, the enhancement applies whenever the firearm was found in close

proximity to the drugs. Id. at comment. (n.14(B)). When the other felony is not a

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drug-trafficking or burglary offense, the enhancement only applies if the

possession of the firearm facilitated or had the potential to facilitate the other

felony. Id. at comment. (n.14(A)). 

Although Hendley argues that the government did not present any evidence

that he was engaged in trafficking drugs, he did not object to the PSI’s contention

that the police had found 14.4 grams of crack cocaine. When Hendley was

sentenced, 14.4 grams of crack was sufficient to support an indictment for

possession with intent to distribute. 21 U.S.C. § 841(b)(1)(B)(iii) (2006) amended

by Pub. L. 110-220, § 2(a)(2). And possession with intent to distribute is a drug1

trafficking offense.

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Because the quantity of drugs supported a finding that whoever possessed

them was engaged in a drug-trafficking offense, to prove that the enhancement

should apply the government had to show that the drugs and gun were found in

close proximity to one another and that the drugs probably belonged to Hendley. 

U.S.S.G. § 2K2.1(b)(6), comment. (n.14(B)).

 The amount of crack cocaine necessary to support an indictment for possession with 1

intent to distribute was increased from 5 grams to 28 grams, effective August 3, 2010. 

 See 18 U.S.C. § 924(c)(2) (“For purposes of this subsection, the term ‘drug trafficking 2

crime’ means any felony punishable under the Controlled Substances Act . . . .”); U.S.S.G. §

5K2.20, comment. (n.1) (“‘Serious drug trafficking offense’ means any controlled substance

offense under title 21, United States Code, other than simple possession . . . that provides for a

mandatory minimum term of imprisonment of five years or greater . . . .”).

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At the sentencing hearing, the government established that the drugs and

gun were found within 20 yards of each other. This satisfies the close-proximity

requirement. The district court also found that drugs were likely Hendley’s and

that he had discarded the drugs as he fled the police. The district court based this

finding on an earlier incident where Hendley discarded drugs while fleeing from

the police, as well as the location of the drugs on the path. In addition, the court

noted that the marijuana’s strong odor suggested that the it had not been in the

open for very long. These facts are sufficient to support the district court’s finding

that the drugs were probably Hendley’s, and that he had possessed a firearm in

connection with another felony offense. Accordingly, the district court’s

application of the § 2K2.1(b)(6) enhancement was correct, and Hendley’s sentence

is

AFFIRMED.

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