NOT FOR PUBLICATION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 , 202 1 * * Pasadena , California Before: WARDLAW, BYBEE, and MILLER, Circuit Judges. Following a jury trial, Albert Lamont Hector was c onvicted 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 APPEALS2

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 re sentencing. 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). Th at enhancement applies if the f irearm “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, w e have upheld a finding of f a cilitation where a firearm is possess ed 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)

. T he 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 twice3

observed s elling narcotics through his kitchen window

. The gun , which was loaded, was found wedged between couch cushions in an adjacent room. And t he 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 h imself of his gun at any time.” It explained that the “presence of the gun in [Hector’s] apartment potentially embolden ed him to undertake his illicit drug sales, since it afforded him a ready means of compelling payment or of defending the cash or drugs s tored 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 ab use its discretion in applying the enhancement. See United States v. Chadwell , 798 F.3d 91 0, 917 (9th Cir. 2015); United States v. Polanc o , 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 con sidering conduct underlying the acquitted charge, so long as that4

conduct has been prove d 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. 200 7)

. 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 or iginal sentencing hearing, the district court explained that it had “received, read and considered the Presentence Report, a First and Second Addendum to the Presentenc e Report and the parties [ ’ ] sentencing memoranda.” The court recognized that Hector obje cted 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 n either party objected

. The record does not suggest that the district court applied the enhancement because it misunderstood5

the Probation Office’s posi tion

. 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 decre ase, recidivism. The district court was familiar with th o se 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 inca rcerated.” 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 w hile 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.