                                                               United States Court of Appeals
                                                                        Fifth Circuit
                                                                     F I L E D
                 IN THE UNITED STATES COURT OF APPEALS
                                                                      April 12, 2006
                          FOR THE FIFTH CIRCUIT
                                                                 Charles R. Fulbruge III
                                                                         Clerk
                                No. 04-30776



                        UNITED STATES OF AMERICA
                                            Plaintiff-Appellee,

                                   versus

                               GLENN DORDAIN
                                                Defendant-Appellant.


            Appeal from the United States District Court
                For the Eastern District of Louisiana



Before GARWOOD, HIGGINBOTHAM, and CLEMENT, Circuit Judges.

PER CURIAM:*

      Glenn Dordain challenges the district court’s imposition of an

upward adjustment for possession of a firearm in connection with a

felony offense under U.S.S.G. § 2K2.1(b)(5).           We vacate and remand

for resentencing.

                                      I

      Without the benefit of a plea agreement, Glenn Dordain pled

guilty to one count of being a felon in possession of a firearm, in

violation of 18 U.S.C. § 922(g)(1), and one count of possession of


      *
       Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion
should not be published and is not precedent except under the limited
circumstances set forth in 5TH CIR. R. 47.5.4.
less than ten grams of heroin with intent to distribute, in

violation of 21 U.S.C. § 841(a)(1).           Dordain signed a stipulation

in which he conceded that the government would have proven that

Dordain possessed two firearms, that heroin was found in his

toilet, and that he purchased the firearms “on the street . . . for

protection.”        Dordain    confirmed     these   facts     under    oath   at

rearraignment.

       The presentece report assigned Dordain a base offense level of

20    and   a   three-level    downward    adjustment    for    acceptance     of

responsibility.      The PSR recommended a four-level adjustment under

U.S.S.G. § 2K2.1(b)(5) because Dordain possessed a firearm “in

connection with” a felony offense––here, the possession of heroin.

Dordain objected to the PSR, arguing that the four-level adjustment

was   improper     under   Blakely   v.    Washington1   because       the   facts

underlying the adjustment were neither found by a jury nor admitted

by him.

       At sentencing, Dordain again admitted both possession of a

firearm and possession of heroin.           He argued that the adjustment

was inappropriate because the admitted-to facts were insufficient

to show a nexus between the firearms and the heroin, as is

necessary to impose the § 2K2.1(b)(5) adjustment.                The district



       1
        542 U.S. 296 (2004).

                                      2
court rejected Dordain’s objection.              Sentencing Dordain before the

Supreme Court decided United States v. Booker, the district court

concluded that, even if Blakely applied to the federal sentencing

guidelines, the facts admitted to by Dordain were sufficient to

impose the adjustment.        The court sentenced Dordain to 87 months

imprisonment (a level exceeding the guideline range absent the

challenged     enhancement)    and    a       three-year   term   of   supervised

release.   Dordain filed a timely notice of appeal.

                                      II

     Dordain challenges his sentence on appeal, contending that his

admissions are insufficient to impose the adjustment under §

2K2.1(b)(5) because he never admitted that there was a connection

between possession of the firearm and possession of the heroin.

Further, Dordain argues that his admission to purchasing the gun

for “protection” is insufficient to show the needed connection.

The government argues that the admissions were sufficient and,

regardless, that any error was harmless.

     The Supreme Court held in United States v. Booker that “[a]ny

fact (other than a prior conviction) which is necessary to support

a   sentence    exceeding     the    maximum       authorized     by   the   facts

established by a plea of guilty or a jury verdict must be admitted




                                          3
by the defendant or proved to a jury beyond a reasonable doubt.”2

Under § 2K2.1(b)(5), a four-level adjustment is proper if the

defendant        “used    or   possessed        any   firearm    or   ammunition    in

connection        with     a   felony      offense.”3        A   district    court’s

determination of the “in connection with” requirement is a factual

finding.4

      Although admitted facts will not give rise to a valid Booker

claim,5 the defendant must admit all facts necessary to a sentence

enhancement.6       Section 2K2.1(b)(5) requires proof of three things:

(1) that the defendant possessed a firearm, (2) that the defendant

committed a felony offense, and (3) that the defendant possessed

the firearm “in connection with” the commission of the felony

offense.     Here, Dordain admitted to the first two, but he did not

admit     that    he     possessed   the    firearm     in   connection     with   his

possession of heroin.

      Further, Dordain’s statement that he possessed the firearm for

“protection” is insufficient, by itself, to compel a conclusion

that he possessed the firearm “in connection with” the possession


      2
        543 U.S. 220 (2005).
      3
        U.S. SENTENCING GUIDELINES § 2K2.1(b)(5).
      4
       United States v. Mitchell, 166 F.3d 748, 754 n.24 (5th Cir. 1999); United
States v. Condren, 18 F.3d 1190, 1199-1200 (5th Cir. 1994).
      5
        United States v. Holmes, 406 F.3d 337, 364 (5th Cir. 2005).
      6
        See Booker, 543 U.S. at 244.

                                            4
of heroin.          A person can possess a firearm for a variety of

reasons, ranging from self-protection to hunting enthusiast to

facilitating drug-related crimes.                Perhaps our conclusion would be

different if the guns and drugs are found in temporal and spatial

proximity, but that is not the case here.                 Dordain admitted only

the    he    kept   a   firearm    under    his    mattress,     and    the    officers

searching his apartment found two weapons there.                          The drugs,

rather, were found in the toilet.                There is no indication that the

guns       were   facilitating      Dordain’s       commission     of    the    heroin

possession offense. The district court inferred the “in connection

with” requirement, and such inference is error under Booker.

                                           III

       The government concedes that Dordain preserved his Booker

claim by objecting at the district court and citing Blakely.7                        A

sentence based on a preserved Booker error should be vacated unless

the error is harmless.8           Here, the government cannot show beyond a

reasonable doubt “that the district court would have imposed the

same sentence absent the error.”9               We have held that the government

can show harmless error in two circumstances: (1) when the district



       7
        See United States v. Saldana, 427 F.3d 298, 313-14 (5th Cir. 2005).
       8
       United States v. Pineiro, 410 F.3d 282, 284 (5th Cir. 2005); United States
v. Akpan, 407 F.3d 360, 377 (5th Cir. 2005).
       9
        Pineiro, 410 F.3d at 286-87.

                                            5
court specifically says that it would not have given the defendant

a lower sentence even if it were not bound by mandatory guidelines;

and (2) when the district court refuses to allow a defendant to

serve his federal and state sentences concurrently.10                  Neither

scenario is present in this case.            Nor does anything in this record

suffice to establish harmlessness.

                                        IV

     Accordingly, we VACATE Doradin’s sentence and REMAND to the

district court for resentencing.




     10
          United States v. Garza, 429 F.3d 165, 170 (5th Cir. 2005).

                                         6
