NOT FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA, 

Plaintiff-Appellee, 

 v. 

ALBERT LAMONT HECTOR, AKA 

Hector Allen, AKA Cartoon, AKA Lil 

Cartoon, AKA lilcartoon, AKA Lamont 

Murkison, AKA Sean Murks, 

Defendant-Appellant.

No. 19-50290 

D.C. No. 2:16-cr-00486-PA-1 

MEMORANDUM*

Appeal from the United States District Court

for the Central District of California

Percy Anderson, District Judge, Presiding

Submitted February 24, 2021

**

Pasadena, California

Before: WARDLAW, BYBEE, and MILLER, Circuit Judges.

Following a jury trial, Albert Lamont Hector was convicted on one count of

distribution of cocaine base and one count of possession of cocaine base with

* This disposition is not appropriate for publication and is not precedent 

except as provided by Ninth Circuit Rule 36-3.

** The panel unanimously concludes this case is suitable for decision 

without oral argument. See Fed. R. App. P. 34(a)(2).

FILED

FEB 26 2021

MOLLY C. DWYER, CLERK

U.S. COURT OF APPEALS
2 

intent to distribute, both in violation of 21 U.S.C. § 841(a)(1). He was also 

convicted on one count of being a felon in possession of a firearm and ammunition, 

in violation of 18 U.S.C. § 922(g)(1). We previously vacated his sentence and 

remanded for resentencing. United States v. Hector, 772 F. App’x 547, 548–49

(9th Cir. 2019). Hector again appeals his sentence. We have jurisdiction under 18 

U.S.C. § 3742(a) and 28 U.S.C. § 1291, and we affirm.

1. Hector argues that the district court erred by applying a four-level 

enhancement under the advisory Sentencing Guidelines for “possess[ing] any 

firearm or ammunition in connection with another felony offense.” U.S.S.G. 

§ 2K2.1(b)(6)(B). That enhancement applies if the firearm “facilitated, or had the 

potential of facilitating, another felony offense,” id. cmt. n.14(A), such as when the 

firearm “is found in close proximity to drugs,” id. cmt. n.14(B). Although “mere 

possession” of a firearm is not enough, we have upheld a finding of facilitation 

where a firearm is possessed in a manner that has “some potential emboldening 

role in” the defendant’s felonious conduct. United States v. Routon, 25 F.3d 815, 

819 (9th Cir. 1994) (citation omitted).

The district court applied the enhancement “for the same reasons that were 

given” at Hector’s original sentencing hearing, at which the court found by clear 

and convincing evidence that Hector possessed the handgun recovered from his 

studio apartment in connection with his felonious drug sales. Hector was twice
3 

observed selling narcotics through his kitchen window. The gun, which was 

loaded, was found wedged between couch cushions in an adjacent room. And the 

police recovered cash, suggesting that Hector was “depositing his drug proceeds in 

his apartment.” The district court found that although Hector “was not always 

within arm’s reach of the gun, nevertheless, he was selling narcotics in the vicinity 

of his couch and thus could have availed himself of his gun at any time.” It

explained that the “presence of the gun in [Hector’s] apartment potentially 

emboldened him to undertake his illicit drug sales, since it afforded him a ready 

means of compelling payment or of defending the cash or drugs stored in the 

apartment.” Because there was support in the record for the finding that Hector 

possessed the handgun in connection with his drug sales and because possession of 

the firearm more likely than not emboldened Hector, the district court did not 

abuse its discretion in applying the enhancement. See United States v. Chadwell, 

798 F.3d 910, 917 (9th Cir. 2015); United States v. Polanco, 93 F.3d 555, 567 (9th 

Cir. 1996).

Even though the jury found Hector not guilty of possessing a firearm in 

furtherance of a drug-trafficking crime, in violation of 18 U.S.C. § 924(c), the 

application of the enhancement did not violate Hector’s due process and Sixth 

Amendment rights. “[A] jury’s verdict of acquittal does not prevent the sentencing 

court from considering conduct underlying the acquitted charge, so long as that 
4 

conduct has been proved by a preponderance of the evidence.” United States v. 

Watts, 519 U.S. 148, 157 (1997) (per curiam); see also United States v. Mercado, 

474 F.3d 654, 657 (9th Cir. 2007). The district court found the requisite conduct by 

clear and convincing evidence.

2. Hector next argues that the district court applied the firearm 

enhancement under the mistaken belief that the presentence report recommended 

its application. At the original sentencing hearing, the district court explained that 

it had “received, read and considered the Presentence Report, a First and Second 

Addendum to the Presentence Report and the parties[’] sentencing memoranda.” 

The court recognized that Hector objected to the enhancement and allowed both 

parties to advocate their positions. And it asked both parties whether “the 

Probation Office correctly analyzed and applied the Guidelines in this case, 

assuming that the possessing the firearm enhancement applies.” Both sides 

answered in the affirmative.

On resentencing, the district court again stated that it had read the relevant 

papers, recognized that Hector objected to the firearm enhancement, and decided to 

apply it “for the same reasons” it had given at the original sentencing hearing. The 

district court then articulated the correct Guidelines range after finding that the 

firearm enhancement applied, and neither party objected. The record does not

suggest that the district court applied the enhancement because it misunderstood
5 

the Probation Office’s position.

3. Finally, Hector argues that his within-Guidelines sentence is 

substantively unreasonable because it is greater than necessary in light of the “very 

limited amount of drugs involved, [his] family circumstances, and the significant 

rehabilitative efforts he has made in his years in custody.” Hector also argues that 

empirical research indicates that lengthy sentences increase, rather than decrease, 

recidivism. The district court was familiar with those arguments. It emphasized 

that it had “considered the mitigating factors including [Hector’s] family history, 

his substance abuse problems, [and] the rehabilitative efforts [he had] made while 

incarcerated.” But it found that “the offenses of conviction committed by the 

defendant [were] serious, the drugs the defendant chose to traffic [were] insidious, 

and the defendant ignored the serious consequences of trafficking.” And while the 

district court “commend[ed] [Hector] for the steps that [he had] taken while 

incarcerated,” it also found that the sentence was “need[ed] to protect the public 

and deter [Hector] and others from future crimes.” In short, the district court 

considered Hector’s mitigating factors but found them outweighed by other 

considerations. Hector’s sentence is not substantively unreasonable. See United 

States v. George, 949 F.3d 1181, 1188 (9th Cir. 2020); United States v. Carty, 520 

F.3d 984, 993, 995 (9th Cir. 2008) (en banc).

AFFIRMED.