FILED

U.S. COURT OF APPEALS

ELEVENTH CIRCUIT

JANUARY 27, 2010

JOHN LEY

ACTING CLERK

[DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

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No. 09-13663

Non-Argument Calendar

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D. C. Docket No. 08-00208-CR-4

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

RONALD RENARDO SMITH,

Defendant-Appellant.

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Appeal from the United States District Court

for the Southern District of Georgia

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(January 27, 2010)

Before TJOFLAT, WILSON and KRAVITCH, Circuit Judges.

PER CURIAM:

Ronald Renardo Smith appeals his 110-month sentence for possession of a

firearm and ammunition by a felon. After a thorough review, we affirm.
I.

On December 19, 2007, Savannah-Chatham Metro Police conducted a traffic

stop for tinted windows and a shattered rear taillight. As a police officer

approached the driver to write the ticket, the officer observed Smith, the front-seat

passenger, acting nervously. The officer removed Smith from the car and

conducted a pat-down search, during which the officer found what he believed to

be crack cocaine in Smith’s pocket. After obtaining the driver’s consent, the

officer searched the car and found a firearm underneath Smith’s seat and additional

firearms at the feet of the two rear-seat passengers. In the center console, the

officer found Ecstacy and another substance he believed to be crack cocaine.

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Smith subsequently pleaded guilty in state court to possession of cocaine.

Smith was indicted in federal court for possession of a firearm by a

convicted felon, in violation of 18 U.S.C. § 922(g), and possession of a firearm

with an obliterated serial number, in violation of 18 U.S.C. § 922(k). He pleaded

guilty to the § 922(g) offense.

In calculating the sentencing guidelines range, the probation officer

determined the base offense level to be 20 under U.S.S.G. § 2K2.1 because Smith

 The GBI lab tested both samples of suspected crack cocaine taken from Smith’s pocket

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and the center console and determined only one of them was crack. The lab did not identify

which of the two samples tested positive.

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had a prior controlled substance conviction, namely cocaine possession in state

court. The probation officer then included a four-level enhancement under

U.S.S.G. § 2K2.1(b)(6) for possession of a firearm in connection with another

felony offense, which was, again, the possession of cocaine. The guidelines

calculations yielded a guidelines range of 110 to 120 months’ imprisonment.

Relevant to this appeal, Smith raised two objections to the sentencing

calculations. First, he objected to the enhancement for possession of a firearm in

connection with another felony because cocaine possession was not a drugtrafficking offense and there was no evidence the firearm facilitated his possession.

Second, he argued that the government failed to prove that the substance taken

from his pocket was cocaine and thus should not have been considered in

determining his base offense level. The district court overruled the objections,

finding that the firearm had the potential to facilitate the drug possession, and

Smith had pleaded guilty to possession of cocaine in state court. Smith was

sentenced to 110 months’ imprisonment. This appeal followed.

II.

Smith raises two issues on appeal. First, he argues that the district court

committed Booker error by determining his base offense level on the basis of facts

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 United States v. Booker, 543 U.S. 220 (2005). 2

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neither found by a jury beyond a reasonable doubt nor admitted by him. Second,

he argues that the district court incorrectly applied the § 2K2.1(b)(6) enhancement

because it did not find that the firearm actually facilitated the other felony offense.

We address each issue in turn.

In cases where Booker error is preserved, we review the constitutional

challenge to the sentence de novo. United States v. Chau, 426 F.3d 1318, 1321

(11th Cir. 2005).

In this case, we conclude that the district court committed no Booker error.

Smith admitted to possessing cocaine by pleading guilty to the state possession

charges. This was sufficient for the court to conclude that the enhanced base

offense level was appropriate. As long as the district court views the guidelines as

advisory, “nothing in [Booker] prohibits the district court from imposing guideline

enhancements based on facts found by the judge by a preponderance of the

evidence.” United States v. Douglas, 489 F.3d 1117, 1129 (11th Cir. 2007); see

also Chau, 426 F.3d at 1324 (explaining that the district court may find facts

neither found by a jury nor admitted by the defendant and use them in formulating

a sentence, as long as it properly applies the advisory guidelines).

Smith next argues that the district court erroneously enhanced his sentence

under U.S.S.G. § 2K2.1(b)(6) because there was no evidence that the firearm was

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used in connection with the felony drug possession. Specifically, he argues that

something more than “mere spatial proximity” is needed to satisfy the requirement

that the firearm be used “in connection with” the underlying felony when a drug

possession offense rather than a drug trafficking offense is involved.

We review a district court’s application and interpretation of the Guidelines

de novo, and its factual findings for clear error. United States v. Rhind, 289 F.3d

690, 693 (11th Cir. 2002). The district court’s determination that the defendant

used a firearm “in connection with” another felony offense is a factual finding

reviewed for clear error. United States v. Whitfield, 50 F.3d 947, 949 n.8 (11th Cir.

1995). “For a factual finding to be clearly erroneous, this court, after reviewing all

of the evidence, must be left with a definite and firm conviction that a mistake has

been committed.” United States v. Rodriguez-Lopez, 363 F.3d 1134, 1137 (11th

Cir. 2004) (internal quotations omitted).

Under the guidelines, the court can apply a four-level increase if a felon

possesses a firearm “in connection with another felony offense.” U.S.S.G.

§ 2K2.1(b)(6). Smith’s state-court conviction for possession of a controlled

substance qualifies as “another felony offense.” See U.S.S.G. § 2K2.1, comment.

(n.14(C)).

The term “in connection with” means the firearm “facilitated, or had the

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potential of facilitating, another felony offense.” U.S.S.G. § 2K2.1, comment.

(n.14(A)). We give the phrase “in connection with” its ordinary meaning and give

it an expansive interpretation. Rhind, 289 F.3d at 695. In certain circumstances,

mere possession of a firearm can be enough to apply a sentencing enhancement

utilizing the “in connection with” language. United States v. Smith, 480 F.3d

1277, 1280 (11th Cir. 2007); United States v. Jackson, 276 F.3d 1231, 1234 (11th

Cir. 2001). Thus, according to its ordinary and natural meaning, the phrase “in

connection with” does not require proof that the firearm actually facilitated the

other felony offense. Rhind, 289 F.3d at 695.

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Here, we conclude that the district court did not commit error when it

applied the § 2K1.1(b)(6) enhancement. The guidelines require that the firearm

possession facilitate “another felony offense.” Nothing in the guideline dictates

that the other felony be a drug-trafficking offense. As is the case here, the other

felony was the mere possession of cocaine, to which Smith pleaded guilty in state

court. Because firearms are often tools of the drug trade, we agree with the district

court that Smith’s possession of the firearm had the potential to facilitate the

 Although Rhind and Jackson were decided before the Sentencing Commission defined 3

“in connection with,” both cases are consistent with that definition. See U.S.S.G. § 2K2.1(b)(6),

comment. (n.14(A)) (noting the applicability of the section where the firearm “had the potential

of facilitating” another offense punishable by imprisonment for a term of over one year

(emphasis added)).

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underlying drug possession. Smith, 480 F.3d at 1280. Accordingly, we AFFIRM.

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