                            UNPUBLISHED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Vacated and remanded by unpublished per curiam opinion.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Unpublished opinions are not binding precedent in this circuit.
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.



                                          2
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

                                         3
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

                                        4
that       contemporaneous         possession      was    sufficient      because    the

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

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”).

                 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




       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.



                                              5
materials   before   the   court   and   argument   would   not   aid   the

decisional process.

                                                    VACATED AND REMANDED




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