UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

No. 03-4949

UNITED STATES OF AMERICA,

Plaintiff - Appellee,

versus

BRIAN PERSON,

Defendant - Appellant.

No. 04-4849

UNITED STATES OF AMERICA,

Plaintiff - Appellee,

versus

BRIAN PERSON,

Defendant - Appellant.

Appeals from the United States District Court for the Middle

District of North Carolina, at Greensboro. William L. Osteen,

District Judge. (CR-03-186)

Submitted: September 28, 2005 Decided: November 2, 2005

Before WIDENER, NIEMEYER, and MOTZ, Circuit Judges.
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Affirmed in part, vacated in part, and remanded by unpublished per

curiam opinion.

Louis C. Allen, III, Federal Public Defender, John A. Dusenbury,

Jr., Assistant Federal Public Defender, Greensboro, North Carolina,

for Appellant. Anna Mills Wagoner, United States Attorney, Kearns

Davis, Assistant United States Attorney, Greensboro, North

Carolina, for Appellee.

Unpublished opinions are not binding precedent in this circuit.

See Local Rule 36(c).
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PER CURIAM:

Brian Person was convicted by a jury of possession of a

firearm by a convicted felon, 18 U.S.C. § 922(g)(1) (2000), and was

sentenced to a term of fifty-seven months imprisonment. Person

appeals his sentence, contending that the district court erred in

finding that he possessed the firearm in connection with another

felony offense, U.S. Sentencing Guidelines Manual § 2K2.1(b)(5)

(2003). He also maintains that, because the enhancement was based

on judicial fact-finding, his sentence violated the Sixth Amendment

under United States v. Booker, 125 S. Ct. 738 (2005). We affirm

the district court’s determination that Person possessed the

firearm in connection with drug trafficking; however, we vacate the

sentence and remand for resentencing consistent with Booker.

On February 13, 2003, shortly after midnight, Person was

stopped by a police officer for improperly displaying his vehicle

license plate in the back window. Person was alone in the vehicle.

He gave the officer his driver’s license, but hesitated before

producing the vehicle registration. On the officer’s second

request, Person opened the glove compartment. The officer saw a

pistol inside. Person told the officer the gun belonged to a

friend. Person was arrested for carrying a concealed weapon and

transported to the county jail. After Person was removed from the

back seat of the officer’s vehicle, the officer found a small bag

containing four grams of cocaine under the rear seat cushion. The
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officer had searched his vehicle at the beginning of his shift, and

had not transported anyone but Person that day. Person was

initially charged with the state offenses of felony possession of

a firearm by a felon and felony possession with intent to

sell/deliver cocaine. These charges were dismissed after Person

was indicted for the instant federal offense. 

At trial, Person’s friend, Drew Krawiec, testified that

the gun belonged to him. Krawiec said he had placed the gun in the

glove compartment of Person’s car when they traded cars on

February 11, 2003, so that Person could install a car stereo in his

vehicle. He said he forgot to retrieve the gun when he got his car

the next day. Under cross-examination, Krawiec said he believed

that he had locked the glove compartment, as he usually did in his

own car. He said that, two days later, he remembered that he had

left the gun in Person’s car. By then, Person had been arrested.

Person did not testify.

At the sentencing hearing in September 2004, the district

court determined that a base offense level of 20 applied under U.S.

Sentencing Guidelines Manual § 2K2.1(a)(2) (2003). Over Person’s

objection, the court added a four-level increase under

§ 2K2.1(b)(5) for use of the firearm in connection with another

felony offense, which was possession of cocaine with intent to sell

or deliver. The final offense level was 24. Person was in
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criminal history category II, with a guideline range of 57-71

months. The court imposed a sentence of fifty-seven months.

Person first contends that the court erred in finding

that he possessed the firearm in connection with drug trafficking.

In this circuit, the phrase “in connection with,” as used in

§ 2K2.1(b)(5), is treated as analogous to the phrase “in relation

to,” as used in 18 U.S.C.A. § 924(c) (West 2000 & Supp. 2005). See

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

firearm is used or possessed “in relation to” another offense if

it, at a minimum, “facilitates the offense by providing a sense of

protection or intimidation . . . .” Smith v. United States, 508

U.S. 223, 238 (1993). The firearm “must have some purpose or

effect with respect to the . . . crime; its presence or involvement

cannot be the result of accident or coincidence.” Id. at 238; see

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

(quoting Smith). Person argues that the evidence showed that his

possession of the firearm and the cocaine was purely coincidental.

In explaining its decision, the court observed that

Person had steadily maintained that he did not use drugs. The

court therefore concluded that the four grams of cocaine, while not

a large amount, was intended for distribution. Person does not

challenge this finding. The court next noted that Krawiec

testified that he had locked the glove compartment when he placed

his gun in it, but that the glove compartment was not locked when
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Person opened it during the traffic stop, and that the gun was

visible as soon as the glove compartment was opened. The

implication was that Person had discovered the gun at some point

before he set out with the four grams of cocaine and chose to have

the gun with him while he was engaged in cocaine trafficking. This

factual finding was not clearly erroneous. Given this finding, the

court did not err in concluding that Person possessed the firearm

to facilitate the drug transaction.

At the beginning of the hearing, Person also objected to

the enhancement on the ground that it was impermissible under

Blakely v. Washington, 542 U.S. 296 (2004). The district court

declined to address the effect of Blakely, but noted that Person

had preserved the issue for appeal. Since then, in United

States v. Booker, 125 S. Ct. 738 (2005), the Supreme Court held

that Blakely applied to the federal sentencing guidelines. We have

identified two types of Booker error: a violation of the Sixth

Amendment, and a failure to treat the sentencing guidelines as

advisory. United States v. Hughes, 401 F.3d 540, 552 (4th Cir.

2005). A Sixth Amendment error occurs when the district court

imposes a sentence greater than the maximum permitted based on

facts found by a jury or admitted by the defendant. Booker, 125

S. Ct. at 756. 

Person’s objection to the enhancement pursuant to Blakely

at sentencing preserved the Sixth Amendment issue for appeal; our
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review is thus de novo. The four-level increase under

§ 2K2.1(b)(5) based on the district court’s determination that

Person possessed the firearm in connection with another felony

offense was a violation of the Sixth Amendment under Booker.

Without the enhancement, Person’s offense level would have been 20.

He was in criminal history category II, which would have given him

a guideline range of 37-46 months. Person’s fifty-seven-month

sentence thus exceeded the maximum he could have received based on

facts found by the jury. The court did not indicate what sentence

it would impose under an advisory guideline scheme. Therefore, we

conclude that resentencing is required under Booker. 

Accordingly, we affirm the district court’s calculation

of the guideline range. We vacate the sentence and remand for

resentencing consistent with Booker. On remand, the court should

consider the guideline range, the other relevant factors set out in

the guidelines, and the factors set out in 18 U.S.C.A. § 3553(a)

(West 2000 & Supp. 2005) before imposing 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 IN PART,

 VACATED IN PART,

 AND REMANDED