                                                           [DO NOT PUBLISH]


              IN THE UNITED STATES COURT OF APPEALS

                       FOR THE ELEVENTH CIRCUIT            FILED
                         ________________________ U.S. COURT OF APPEALS
                                                            ELEVENTH CIRCUIT
                               No. 05-14615                    JUNE 19, 2006
                           Non-Argument Calendar             THOMAS K. KAHN
                                                                 CLERK
                         ________________________

                   D. C. Docket No. 04-00093-CR-T-27MSS

UNITED STATES OF AMERICA,


                                                         Plaintiff-Appellee,

                                    versus

CARL STEWART, JR.,

                                                         Defendant-Appellant.


                         ________________________

                  Appeal from the United States District Court
                      for the Middle District of Florida
                       _________________________

                               (June 19, 2006)

Before DUBINA, BLACK and BARKETT, Circuit Judges.

PER CURIAM:

     Appellant, Carl Stewart, Jr. appeals his conviction and 92-month sentence
imposed after pleading guilty to being a felon in possession of a firearm, in

violation of 18 U.S.C. § 922(g)(1). First, Stewart argues that the district court

erred by applying a four-level enhancement under U.S.S.G. § 2K2.1(b)(5) when his

possession of the firearm was not in connection with another felony offense.

Second, Stewart argues that the district court violated the Fifth and Sixth

Amendments by enhancing his offense level based on facts not alleged in the

indictment nor admitted by him. Stewart also argues that the district court violated

due process and ex post facto principles by sentencing him based on the retroactive

application of the remedial opinion in United States v. Booker, 543 U.S. 220, 125

S. Ct. 738, 160 L. Ed. 2d 621 (2005). Third, Stewart argues that the district court

plainly erred by failing to conclude sua sponte that 18 U.S.C. § 922(g)(1), was

unconstitutional on its face and as applied to Stewart.

      We “review[] the district court’s application and interpretation of the

sentencing guidelines under a de novo standard of review, but review[] its findings

of fact for clear error.” United States v. Rhind, 289 F.3d 690, 693 (11th Cir. 2002)

(citation omitted).

      Federal law makes it unlawful for a convicted felon to possess a firearm. 18

U.S.C. § 922(g)(1). Section 2K2.1 of the Guidelines provides for a four-level

enhancement “[i]f the defendant . . . possessed any firearm . . . in connection with



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another felony offense.” § 2K2.1(b)(5). This section of the Guidelines does not

define the phrase “in connection with.” See § 2K1.1, comment.

      A district court’s determination that a firearm was possessed “in connection

with” another felony offense is a factual one. See United States v. Whitfield, 50

F.3d 947, 949 & n. 8 (11th Cir. 1995) (addressing the “in connection with” phrase

in § 2K2.1(b)(5)). Some circuits require at least an inference that the firearm

facilitated the defendant’s felonious conduct, while other circuits have held that

mere possession is enough. Id. at 948-49 (citations omitted). We have refused to

adopt a more restrictive approach of interpreting “in connection with” used in other

courts. United States v. Young, 115 F.3d 834, 837-38 (11th Cir. 1997) (addressing

the phrase in § 4B1.4(b)(3)(A)). Subsequently, we could not discern a principled

reason why we should not follow the reasoning in the Young decision. United

States v. Matos-Rodriguez, 188 F.3d 1300, 1309 (11th Cir. 1999) (addressing the

phrase “in connection with” found in § 2B5.1(b)(3)). When the Guidelines do not

provide a definition, we have held that district courts should give phrases within

the Guidelines their ordinary meaning, unless there is a clearly contrary intent.

Rhind, 289 F.3d at 695. We have considered the definition of “in connection with”

in other sections of the Guidelines and have determined that the phrase “merely

reflects the context of the defendant’s possession of the firearm” and the firearm



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“does not have to facilitate the underlying offense.” Id. (citations omitted).

      After reviewing the record, we conclude that the phrase “in connection with”

reflects the context of Stewart’s possession of the firearm, and the district court did

not clearly err in its factual determination that Stewart possessed the firearm in

connection with either of the two felony offenses that he committed.

      Stewart’s two additional issues are foreclosed by prior precedent. Stewart’s

argument that the imposed sentence was unconstitutional because it was based in

part on facts neither charged in the indictment nor admitted by him, in violation of

the Fifth and Sixth Amendments, Due Process, and Ex Post Facto Clause, has been

rejected in United States v. Duncan, 400 F.3d 1297 (11th Cir.), cert. denied, 126 S.

Ct. 432 (2005). We have also held that “the use of extra-verdict enhancements in

an advisory guidelines system is not unconstitutional.” United States v. Rodriguez,

398 F.3d 1291, 1301 (11th Cir.), cert. denied, 125 S. Ct. 2935 (2005). Stewart’s

constitutional challenge, facial and as applied, that 18 U.S.C. § 922(g)(1) exceeds

Congress’s Commerce Clause power, has also been rejected. United States v.

McAllister, 77 F.3d 387, 390 (11th Cir. 1996). For the above-stated reasons, we

affirm Stewart’s conviction and 92-month sentence.

      AFFIRMED.




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