UNITED STATES COURT OF APPEALS FOR THE TENTH CIRCUIT

________________ _________________ UNITED STATES OF AMERICA, Plaintiff - Appellee,

v. STEVE EARL PERRY, JR., Defendant - Appellant. No. 17-7036 (D.C. No. 6:16-CR -00095-RAW-1) (E.D. Okla.)

________________ _________________ ORDER AND JUDGMENT *

________________ _________________ Before BACHARACH , MURPHY , and MORITZ , Circuit Judges.

________________ _________________ Steve Perry appeals his four-level sentencing enhancement under U.S.S.G. § 2K2.1(b)(6)(B). We affirm. This appeal arises out of a car chase through a re sidential neighborhood in Okmulgee, Oklahoma. The chase began when Perry and Michael Snyder—a district attorney investigator—passed each other wh ile driving in opposite directions on the same street. Snyder recogni zed Perry from prior encount ers with law enforcement and saw that Perry’s front-seat passe nger—Jeremiah Williams—wasn’t wearing a

* After examining the briefs and appellate record, th is panel has determined unanimously to honor the parties’ request for a decision on the briefs without oral argument. See Fed. R. App. P. 34(f); 10th Cir. R. 34.1(G). The case is therefore submitted without oral argument. This or der and judgment isn’ t binding precedent, except under the doctrines of law of the ca se, res judicata, and collateral estoppel. But it may be cited for its persuasive value. See Fed. R. App. P. 32.1; 10th Cir. R. 32.1. FILED United States Court of Appeals Tenth Circuit 

### March 29, 2018
Elisabeth A. Shumaker Clerk of Court2 seatbelt. Snyder made a U-turn and activat ed his car’s lights an d siren. Perry drove away, speeding upwards of 50 miles per hour . Perry eventually stopped, and he and Williams fled on foot in opposite directions. Snyder pursued Perry on foot. After runni ng into the woods, Perry tripped and fell to the ground. Snyder told Perry to put his hands up. Pe rry raised his left hand in the air but reached his right hand into hi s waistband. Snyder demanded again that Perry place both hands in the air. This time, Perry fully comp lied and Snyder took him into custody. As Perry stood up, a loaded “Glock pistol fell from his pants.” R. vol. 2, 39. The government charged Perry with one count of being a felon in possession of a firearm and ammunition. Perry pleade d guilty. Prior to sentencing, the United States Probation Office recommend a four- point offense-level enhancement under § 2K2.1(b)(6)(B) for using or possessing a firearm in connec tion with another felony—specifically, endangering others while eluding a poli ce officer in violation of Oklahoma law. See Okla. Stat. tit. 21, § 540A(B). Pe rry objected to the enhancement, arguing there was insufficien t evidence to support it. 1 The district court then conducted a sentencing hearing and took testimony from Snyder and Williams. It ultimately overruled Perry’s objection and app lied the four-level enhancement. Perry appeals.

1 Perry also argued that the four-level enhancemen t only applies to felony offenses and the crime of eluding could be a misdem eanor offense under Oklahoma law. He expressly waives that argument on appeal.3 When a district court applies a sentenci ng enhancement, we review its factual findings for clear error. United States v. Brown , 314 F.3d 1216, 1222 (10th Cir. 2003). In doing so, “[w]e view the evidence and inferences ther efrom in the light most favorable to the distri ct court’s determination.” Id. A four-level enhancement is appropriate if the defe ndant “used or possessed any firearm or ammunition in connection with another felony offens e; or possessed or transferred any firearm or ammunition with knowledge, intent, or reason to believe that it would be used or possessed in connection with anothe r felony offense.” § 2K2.1(b)(6)(B). The Guidelines’ commen tary clarifies that § 2K2.1(b)(6)(B) applies if the firearm or am munition “facilitated, or had the potential of facilitating” another felony offense. Id. at cmt. n.14(A). And it define s “another felony offense” as “any Federal, state, or local offense, othe r than the explosive or firearms possession or trafficking offense, punishable by impr isonment for a term exceeding one year, regardless of whether a criminal char ge was brought, or a conviction obtained.” Id. at cmt. n.14(C). Here, the dist rict court applied the fou r-level enhancement because Perry possessed a firearm in connection with endangeri ng others while eluding a police officer—a felony under Oklahoma law. See § 540A(B). Perry argues that there wa s no evidence the firearm facilitated or had the potential of facilitating his offense for eluding. He points out that under Oklahoma law, an individual can only e ndanger others while eluding a po lice officer if he or she is driving a motor vehicle. And, he alleges, the district court applied the enhancement solely because he possessed the firearm after he exited the car. Thus, he says, the4 district court erroneously base d the enhancement on the fact that he used a firearm to facilitate a non-felonious escape. We disagree. Section 2K2.1(b)(6)(B) doesn ’t require evidence that the firearm actually facilitated the other felony offense; it only requires that the firearm had the potential to facilitate the other felony offens e. And although the district court didn’t explicitly say that Perry possessed the fi rearm during the car chase, we “view the evidence and inferences theref rom in the light most favorab le to the district court’s determination.” Brown , 314 F.3d at 1222; see also United States v. McCane , 573 F.3d 1037, 1040 (10th Cir. 2009) (declaring we “may affirm the district court on any basis supported by the record”). Because Pe rry possessed the fire arm in the woods, we can infer that he possessed the fire arm (1) when he ran from his car, and (2) during the car chase. The only alternative is that he fo und a loaded firearm while running away from Snyder. And if Perry po ssessed the firearm dur ing the car chase, then the firearm had the poten tial to facilitate the felony of endangering others while eluding a police officer. See United States v. Justice , 679 F.3d 1251, 1255 (10th Cir. 2012) (ruling that “possession of a firear m may facilitate an o ffense by emboldening the possessor to commit the offense”). Next, Perry argues that even if we conc lude he possessed the firearm in his car, that possession could have been coincide ntal and unrelated to endangering others while eluding a police officer—renderi ng the enhancement inapplicable. See United States v. Gomez-Arrellano , 5 F.3d 464, 466–67 (10th Cir. 1993) (concluding that 185 U.S.C. § 924(c)(1) isn’t satisfied if defenda nt’s possession of weapon “is coincidental or entirely unrelated to the [drug] offense”). Perry contends that because the distri ct court didn’t dete rmine whether he coincidentally possessed th e firearm in the car, we can ’t undertake that factual analysis on appeal. This argumen t is unavailing. Our standard of review allows us to “view the evidence and in ferences therefrom in the light most favorable to the district court’s determination.” Brown , 314 F.3d at 1222; see McCane , 573 F.3d at 1040 (declaring we “may affirm the district court on any basis supported by the record”). And the facts of this case allow us to infe r that Perry didn’t coin cidentally possess a loaded firearm while drivi ng away from a police car at upwards of 50 miles per hour in a residential neighborhood. He reached for the loaded firear m—albeit after he exited the car—when he tripped in the woods . This demonstrates his willingness to use the firearm against Snyder to facilitate his escape. We can infe r from this that he would have been willing to use the fire arm during the car chas e if the need and opportunity arose. Therefore, the firearm’s presence in the car wasn’t coincidental. Rather, it had the potential to facilitate the crime of en dangering others while eluding a police officer. Accordingly, we affirm.

Entered for the Court
Nancy L. Moritz Circuit Judge