UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

No. 10-4123

UNITED STATES OF AMERICA,

Plaintiff - Appellee,

v.

WILLIAM EDWARD TODD,

Defendant - Appellant.

Appeal from the United States District Court for the Eastern

District of North Carolina, at Raleigh. Terrence W. Boyle, 

District Judge. (5:09-cr-00231-BO-1)

Submitted: October 19, 2010 Decided: November 4, 2010

Before GREGORY and DAVIS, Circuit Judges, and HAMILTON, Senior 

Circuit Judge.

Vacated and remanded by unpublished per curiam opinion.

Thomas P. McNamara, Federal Public Defender, G. Alan DuBois, 

Assistant Federal Public Defender, James E. Todd, Jr., Research 

and Writing Attorney, Raleigh, North Carolina, for Appellant. 

George E. B. Holding, United States Attorney, Anne M. Hayes, 

Michael G. James, Assistant United States Attorneys, Raleigh, 

North Carolina, for Appellee.

Unpublished opinions are not binding precedent in this circuit.
2

PER CURIAM:

William Edward Todd appeals from his 110-month

sentence imposed pursuant to his guilty plea to possession of a 

firearm by a convicted felon. On appeal, Todd asserts that 

(1) the district court applied the wrong legal standard when 

overruling his objection to the enhancement of his sentence 

pursuant to U.S. Sentencing Guidelines Manual § 2K2.1(b)(6) 

(2009), for possession of the firearm in connection with another 

felony offense; and (2) if the court applied the right standard, 

the court’s factual findings were clear error. We vacate and 

remand for further proceedings.

Todd sold marijuana to a confidential informant from 

his residence. On the same day, officers executed a search 

warrant for Todd’s apartment and recovered marijuana, 

ammunition, and a shotgun. After Todd was arrested, he admitted 

to selling marijuana and told officers that his uncle brought 

the shotgun over to his residence for safekeeping. The shotgun 

was in the bedroom closet.1

Section 2K2.1(b)(6) provides for a four-level 

enhancement if a defendant “used or possessed any firearm or 

ammunition in connection with another felony offense.” 

 1 It is unclear whether the shotgun was loaded or unloaded. 

The presentence report states that the shotgun was unloaded, but 

the Government averred at sentencing that it was loaded. 
3

Application Note 14(A) to § 2K2.1 states that subsection (b)(6) 

applies “if the firearm . . . facilitated, or had the potential 

of facilitating, another felony offense . . . .” We review de 

novo the legal application of the Guidelines to the facts. See

United States v. Daughtrey, 874 F.2d 213, 217 (4th Cir. 1989). 

Whether a defendant has actually possessed a firearm in 

connection with another felony offense is a factual question

reviewed for clear error. United States v. Garnett, 243 F.3d 

824, 829 (4th Cir. 2001).

We have explained that the requirements of 

§ 2K2.1(b)(6) are “satisfied if the firearm had some purpose or 

effect with respect to the other offense, including if the 

firearm was present for protection or to embolden the actor.” 

United States v. Jenkins, 566 F.3d 160, 162 (4th Cir.) (internal 

quotation marks, citation, and alteration omitted), cert. 

denied, 130 S. Ct. 330 (2009). However, “the requirement is not 

satisfied if the firearm was present due to mere accident or 

coincidence.” Id. at 163 (internal quotation marks omitted). 

Application Note 14(B) to USSG § 2K2.1(b)(6) further provides 

that, “in the case of a drug trafficking offense in which a 

firearm is found in close proximity to drugs, drug-manufacturing 

materials, or drug paraphernalia[,]” application of subsection 

(b)(6) “is warranted because the presence of the firearm has the 

potential of facilitating another felony offense . . . .” See 
4

also United States v. Lipford, 203 F.3d 259, 267 (4th Cir. 2000) 

(finding firearm was used to facilitate drug trafficking where 

gun’s involvement was not “spontaneous” or “coincidental”).

We have analogized the “in connection with” language 

in § 2K2.1(b)(6) to the definition of “in relation to” in 18 

U.S.C. § 924(c) (2006). Garnett, 243 F.3d at 828; United 

States v. Nale, 101 F.3d 1000, 1003-04 (4th Cir. 1996). In 

Smith v. United States, 508 U.S. 223 (1993), “the Supreme Court 

determined that the ‘in relation to’ language of § 924(c) could 

be satisfied by proving that a weapon facilitated or potentially 

facilitated the offense.” Nale, 101 F.3d at 1003. 

Additionally, this court, in the context of § 924(c), has stated 

that a firearm is used “in relation to” another felony offense 

“if the firearm was present for protection or to embolden the 

actor.” Lipford, 203 F.3d at 266. 

Accordingly, the Government was required to prove more 

than the mere presence of the firearm. It must also prove that

the firearm facilitated or had the tendency to facilitate Todd’s

drug sales, was present for protection, or served to embolden 

him. Our review of the record convinces us that the district 

court likely applied the wrong legal standard. The district 

court repeatedly and incorrectly stated that all the Guideline 

required was possession of the firearm contemporaneous with the 

felony drug sale. In addition, the court erroneously stated 
5

that contemporaneous possession was sufficient because the 

Guidelines had a lower threshold than 18 U.S.C. § 924(c) (2006).2

Accordingly, we vacate Todd’s sentence and remand for 

the district court to recalculate the Guidelines range using the 

appropriate legal standard. We express no opinion as to whether 

the facts of the case supported an enhancement under the correct 

legal standard. We dispense with oral argument because the 

facts and legal contentions are adequately presented in the 

 

The court did not make any findings that the firearm emboldened 

Todd, that it was present for his protection, or that the drugs

and the firearm were found in close proximity. Because the 

district court likely applied the wrong legal standard in 

calculating Todd’s Guidelines range, his sentence was 

procedurally unreasonable. United States v. Lewis, 606 F.3d 

193, 200 (4th Cir. 2010) (improperly calculating the Guidelines 

range is “significant procedural error”).

 2 The Government asserts that the court was merely stating 

that the standard of proof was different in a Guidelines 

calculation than when determining the underlying conviction; 

however, the burden of proof was undisputed at the hearing, and 

a fair reading of the district court’s statements supports the 

conclusion that the court erroneously believed that less of a 

connection needed to be shown to support the Guidelines 

enhancement than to support a § 924(c) conviction.
6

materials before the court and argument would not aid the 

decisional process.

VACATED AND REMANDED