                Case: 17-11599       Date Filed: 10/18/2018       Page: 1 of 11


                                                                       [DO NOT PUBLISH]



                  IN THE UNITED STATES COURT OF APPEALS

                            FOR THE ELEVENTH CIRCUIT
                              ________________________

                                     No. 17-11599
                               ________________________

                         D.C. Docket No. 3:16-cr-00029-MCR-1



UNITED STATES OF AMERICA,

                                                                          Plaintiff-Appellee,

                                             versus

BRUCE GIBBS,

                                                                        Defendant-Appellant.

                               ________________________

                      Appeal from the United States District Court
                          for the Northern District of Florida
                            ________________________

                                     (October 18, 2018)

Before WILSON, JORDAN, and HIGGINBOTHAM, * Circuit Judges.
PER CURIAM:
       In this case we consider the propriety of a sentencing enhancement.

       *
          Honorable Patrick E. Higginbotham, United States Circuit Judge for the Fifth Circuit,
sitting by designation.
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Concluding that it was erroneously applied and that the error was not harmless, we

vacate and remand for resentencing.

                                           I

      The facts of this case are straightforward. Its roots lie in the decision of the

Escambia County Sheriff’s Office to search Bruce Gibbs’ home pursuant to a

warrant relying upon disclosures by an informant that Gibbs had sold cocaine on

two separate dates—April 24, 2015 and April 29, 2015. On executing the warrant,

the sheriff’s office found two blue pills that officers identified as alprazolam, a

metal grinder with marijuana residue inside, and a baggie with traces of white

powder later determined to be cocaine, all in the kitchen, and a Glock pistol with a

magazine enhanced to hold 31 rounds, loaded and in the attic. The attic was

accessible through a panel in the house’s hallway; the firearm was clean and lacked

signs of dust, suggesting that it was well-maintained and recently placed. It was

also identified as stolen.

      Gibbs had been convicted of various crimes in the past, including possession

with intent to distribute more than 20 grams of marijuana, driving after his license

was revoked, and battery, each of which was punishable by a term exceeding one

year. This record made his firearm possession unlawful under 18 U.S.C.

§ 922(g)(1) and exposed Gibbs to imprisonment under 18 U.S.C. § 924(a)(2). He

pled guilty on December 22, 2016.


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      At sentencing, Gibbs raised a number of objections to the Pre-Sentence

Report. The “primary objection to the calculation” concerned an enhancement of

four levels under U.S.S.G. § 2K2.1(b)(6)(B) for Gibbs’ possession of a firearm in

connection with another felony—namely, his possession of the two alprazolam

pills without a prescription. The district court rejected Gibbs’ several arguments

that the enhancement should not apply. It focused upon the loaded gun, Gibbs’

addiction to the alprazolam tablets, and their relatively high street value,

concluding that the gun facilitated his possession and applying the enhancement

over his objection.

      The district court sentenced Gibbs to 72 months of imprisonment, noting

that the sentence stood just above the top end of the range that would obtain in the

absence of the enhancement—55 to 71 months—but below the bottom of the range

that obtained with the application of the enhancement—84 to 105 months. Gibbs

timely appealed. The sole question on appeal is the legitimacy of the enhancement

under U.S.S.G. § 2K2.1(b)(6)(B).

                                                II

      This enhancement requires a sentencing judge find, by a preponderance of

evidence, that the defendant “used or possessed any firearm or ammunition in

connection with another felony offense.”1 In challenges to sentencing decisions,


      1
          U.S.S.G. § 2K2.1(b)(6)(B).
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we review the district court’s determinations of law de novo and its findings of fact

for clear error.2 A district court’s determination that a defendant possessed a gun

“in connection with” another felony is a finding of fact. 3 Under this standard of

clear error, we “must affirm the district court unless review of the entire record

leaves us ‘with the definite and firm conviction that a mistake has been

committed.’” 4

                                                III

       There is evidence in the record that Gibbs committed both drug trafficking

offenses (selling cocaine to a confidential informant on two occasions) and drug

possession offenses (possessing alprazolam tablets without a prescription, and

leaving marijuana and cocaine residue in his home). The question is the sufficiency

of the evidence connecting the gun to either of these categories of offenses. The

government argues that Gibbs possessed the firearm “in connection with” both

felony drug possession and drug trafficking offenses. We conclude that the district

court erred in footing the enhancement on Gibbs’ drug possession. Because we

agree with the district court that the enhancement could not be supported on drug-




       2
         See, e.g., United States v. Barrington, 648 F.3d 1178, 1194–95 (11th Cir. 2011).
       3
         See United States v. Whitfield, 50 F.3d 947, 949 & n.8 (11th Cir. 1995) (per curiam)
(applying clear error standard to review of district court’s finding that a firearm was used in
connection with another felony in predecessor provision to U.S.S.G. § 2K2.1(b)(6)(B)).
       4
         United States v. Engelhard Corp., 126 F.3d 1302, 1305 (11th Cir. 1997) (quoting
Anderson v. City of Bessemer City, N.C., 470 U.S. 564, 573 (1985)).
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trafficking grounds, we therefore determine that there was no permissible

justification for the court to impose the enhancement.

                                               A

       The government argues, and the district court decided, that Gibbs possessed

two alprazolam tablets without a prescription—a felony under Florida law. Gibbs

replies that the district court did not receive a lab report detailing the tablets’

composition, and that it is therefore unclear that they were actually alprazolam. He

raised this argument at sentencing, and the district court rejected it. The district

court decided that even without lab testing, the fact that the report

contemporaneously prepared by officers who conducted the search identified the

two tablets as alprazolam—alongside the fact that Gibbs was addicted to that

substance—supported the conclusion that the tablets were indeed alprazolam. We

cannot say that this conclusion produces “a definite and firm conviction that a

mistake has been committed.” 5 We therefore proceed under the assumption that

Gibbs possessed alprazolam tablets in his apartment.

       The Sentencing Commission’s application notes are binding when they do

not contradict the Sentencing Guidelines’ plain meaning.6 The notes to U.S.S.G.

§ 2K2.1(b)(6)(B) provide that a firearm is generally held “in connection with”


       5
          United States v. Rodriguez-Lopez, 363 F.3d 1134, 1137 (11th Cir. 2004).
       6
          See United States v. Wilks, 464 F.3d 1240, 1245 (11th Cir. 2006); accord United States
v. Estrella, 758 F.3d 1239, 1252 (11th Cir. 2014).
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another felony “if the firearm . . . facilitated, or had the potential of facilitating,

another felony offense.” 7 The central issue is therefore whether Gibbs’ possession

of the firearm facilitated or had the potential to facilitate his possession of

alprazolam, or whether any relation between the two resulted from “accident or

coincidence.”8

       The question remains, however, of what evidence may sufficiently establish

that a firearm facilitated or had the potential to facilitate another felony. We have

not yet decided whether proximity between firearm and drug is sufficient to trigger

U.S.S.G. § 2K2.1(b)(6)(B) when the felony serving as the basis for the

enhancement is drug possession. 9 The application notes also provide that the


       7
           U.S.S.G. § 2K2.1 cmt. n.14(A).
       8
           Smith v. United States, 508 U.S. 223, 237–38 (1993) (defining “in relation to any crime
of violence or drug trafficking crime” under 18 U.S.C. § 924(c)(1)); see United States v. Carillo-
Ayala, 713 F.3d 82, 93 (11th Cir. 2013) (explaining that the Sentencing Commission adopted
Smith’s approach in the application notes to § 2K2.1).
         This admittedly marks a shift from some of our past case law. In United States v. Rhind,
289 F.3d 690 (11th Cir. 2002), we considered § 2K2.1(b)(6)(B)’s predecessor, U.S.S.G. §
2K2.1(b)(5). We followed cases where we had interpreted “in connection with” as used in other
portions of the Guidelines, and noted that we had previously held that a firearm “does not have to
facilitate the underlying offense” to be used or possessed “in connection with” that offense.
Rhind, 289 F.3d at 695; see also United States v. Young, 115 F.3d 834, 838 (11th Cir. 1997) (per
curiam) (declining to apply other circuits’ expansive approaches to “in connection with,” as used
in § 2K2.1(b)(5), to the same use of the term in U.S.S.G. § 4B1.4(b)(3)(A)). But these cases were
decided before the Commission clarified the meaning of “in connection with” in its 2006
application notes. Because we are bound to follow the application notes unless they conflict with
the Guidelines’ ordinary meaning, this portion of Rhind no longer has the same force.
         While Rhind concluded that the natural, ordinary meaning of “in connection with” did not
require “facilitation,” we do not take Rhind to hold that an application note to the contrary
irredeemably conflicts with the Guidelines’ text. Cf. Carillo-Ayala, 713 F.3d at 96 (defining “in
connection with” as encompassing proximity and facilitation under U.S.S.G. § 5C1.2(a)(2)).
         9
           The government’s reliance on United States v. Carillo-Ayala is misplaced. In Carillo-
Ayala, we considered whether a defendant convicted of drug trafficking charges was entitled to
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enhancement automatically applies “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.” 10 Several circuits have concluded that by treating “close

proximity” as sufficient to show a “connection” for drug trafficking offenses, the

Commission by implication required something beyond proximity when the

offense does not involve drug trafficking. 11 We agree that mere proximity between

Gibbs’ gun and the alprazolam tablets could not support the enhancement, without

a conclusion that the gun facilitated or could facilitate Gibbs’ possession.




the “safety valve” in U.S.S.G. § 5C1.2 to avoid a statutory minimum. 713 F.3d at 87–98. The
defendant could not qualify for the safety valve if he possessed a firearm “in connection with”
the underlying offense. Id. at 88–89. We concluded, looking to § 2K2.1(b)(6)(B) and the
application notes, that proximity between a gun and a drug offense is typically sufficient to show
a connection with the drug offense. Id. at 92, 95–96. Read broadly, language in Carillo-Ayala
could apply to any drug offense, including possession. But Carillo-Ayala involved drug sale, not
mere possession. Id. at 97–98. In context, we were concerned with the ways in which a firearm
could be connected to a drug trafficking offense—a critical difference from this case.
        10
           U.S.S.G. § 2K2.1 cmt. n.14(B) (emphasis added) (explaining that “the presence of the
firearm has the potential of facilitating another felony offense” in such cases).
        11
           See United States v. Shields, 664 F.3d 1040, 1045 (6th Cir. 2011) (“[P]roximity that is
merely coincidental is not enough for application of § 2K2.1(b)(6) when a defendant merely
possessed drugs . . . . To allow otherwise would render the distinction in the Guidelines
commentary between drug trafficking and other felonies meaningless.”) (internal citations and
alterations omitted); United States v. West, 643 F.3d 102, 113–14 (3d Cir. 2011) (“[I]n a simple
possession case, the sentencing court must make a specific finding that the firearm facilitated or
had the potential of facilitating possession of the drugs. With a drug trafficking offense, on the
other hand, a court is permitted to presume that a firearm in relatively close proximity to drugs is
used ‘in connection’ with the offense.”); United States v. Jeffries, 587 F.3d 690, 693 (5th Cir.
2009) (“If the comment had intended to allow a ‘mere proximity’ argument to suffice for all drug
crimes, it would have said so. It did not.”); United States v. Jenkins, 566 F.3d 160, 163 (4th Cir.
2009) (“This is not to say that drug trafficking offenses and drug possession offenses are treated
the same for purposes of Section 2K2.1(b)(6).”); United States v. Fuentes Torres, 529 F.3d 825,
827 (8th Cir. 2008) (“[T]he Commission treated drug trafficking offenses and drug possession
offenses differently.”).
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       This said, the district court did not rest the enhancement on spatial proximity

between the gun and the alprazolam tablets alone. It specifically relied on three

factors beyond proximity to conclude that the gun facilitated or had the potential to

facilitate Gibbs’ drug possession. First, Gibbs’ gun was modified to hold more

ammo, and it was loaded. Second, Gibbs was addicted to alprazolam. And third,

the district court concluded that alprazolam tablets have a relatively high street

value. We therefore must determine whether these facts adequately supported the

enhancement.

       In review of this fact-bound inquiry, we can extract several principles from

other circuits’ opinions. In general, if a gun emboldens or has the potential to

embolden the defendant, or if the defendant uses or could use the gun to protect the

drugs, the enhancement is more likely to be appropriate. 12 Relevant here, courts

will look to the quantity of the drugs and their street value to determine whether

possession of a gun was likely to achieve these purposes; for smaller amounts or

less valuable drugs, a gun is less likely to be necessary to facilitate possession.13


       12
           See, e.g., United States v. Jackson, 877 F.3d 231, 237 (6th Cir. 2017); Jeffries, 587
F.3d at 694–95. We have suggested that “mere possession” of a firearm may sometimes be
enough to underpin an enhancement, even when the underlying felony is drug possession. See
United States v. Smith, 480 F.3d 1277, 1280 (11th Cir. 2007) (quoting United States v. Jackson,
276 F.3d 1231, 1234 (11th Cir. 2001)). Our holding here is not inconsistent with that
suggestion—it is possible, for example, that a court could infer that merely possessing (but not
using) a firearm emboldened the defendant to possess the drugs.
        13
           See Shields, 664 F.3d at 1045–46 (rejecting application of the enhancement where the
defendant possessed a small amount of drugs with a low street value, regardless of whether he
was an repeat offender); West, 643 F.3d at 116 (rejecting enhancement when the defendant only
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Some will further consider whether the gun and drug possession occurred in

public, since there, a weapon could be more useful in emboldening or protecting

the defendant.14 And, as we have explained, physical and temporal proximity—

including ease of access to the firearm—may be relevant but will typically not be

determinative. 15

       The relationship between Gibbs’ gun and the drugs was more akin to

“accident or coincidence.” The government presented evidence that Gibbs

possessed two alprazolam tablets at the time the gun was found, each worth about

$20, and a bag with trace amounts of cocaine. While not negligible, a total value of

$40 or $50 does not lend itself to a strong inference that Gibbs required the gun to

protect his supply. Both the gun and the tablets were located within his home, and

there was no evidence that he took them outside separately or together.16 While the

gun was accessible from the hallway, it was not immediately accessible from the

kitchen where the drugs were found. Gibbs’ addiction does weigh in favor of a

connection, since it increases the possibility that he would have chosen to use the



possessed a small amount of marijuana); Jeffries, 587 F.3d at 693–94 (rejecting enhancement
when the defendant was in possession of a “user” quantity of cocaine and there was no further
evidence that the gun emboldened him to use the drug or protected the small quantity).
       14
          See United States v. Swanson, 610 F.3d 1005, 1008 (8th Cir. 2010); Jenkins, 566 F.3d
160, 164 (4th Cir. 2009).
       15
          See, e.g., United States v. Angel, 576 F.3d 318, 321 (6th Cir. 2009) (“While proximity
may not be dispositive, it is certainly indicative of a connection between the guns and the
drugs.”).
       16
          As we will explain, the district court did not err in finding no connection between the
gun and any out-of-household drug trafficking.
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gun to protect the alprazolam. In total, though, we conclude that the district court

clearly erred in finding that the gun facilitated Gibbs’ drug possession. Connecting

a Glock handgun modified to hold 31 rounds to two prescription pills found in a

different part of the house—not in proximity—is a reach too far.

                                          B

      The government suggests that even if Gibbs’ drug possession could not

ground the enhancement, we may affirm based on a connection between the gun

and drug trafficking—which only requires a showing of “close proximity.” The

district court rejected this argument at sentencing, and we agree for substantially

the same reasons. The government presented evidence that Gibbs had engaged in

drug trafficking about two weeks before the gun was found in his attic, but no

evidence that he possessed the gun at the time of those sales. At the sentencing

hearing, Gibbs said that he had only acquired the firearm the night before the

search and it was not related to drug trafficking. And the two drug trafficking

transactions the government identified occurred outside Gibbs’ home, and there

was no evidence that Gibbs had the firearm on him at either time. We cannot

conclude that the district court erred—let alone erred clearly—in finding no

connection.

                                        * * *




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       Having concluded that the district court erred in imposing the sentencing

enhancement, we must address whether this error was harmless, or whether it was

reasonably likely to have affected Gibbs’ substantial rights.17 At sentencing, the

district court explained its deliberate choice to give a sentence between the non-

enhanced and enhanced ranges, and specifically took into account the fact that

Gibbs had been “[driven into] that next higher guideline range.” And the court did

not indicate that it would have given Gibbs the same sentence even if the

enhancement were not applicable, certainly not explicitly. 18 The application of the

sentencing error was not harmless, and Gibbs is entitled to resentencing.

                                                V

       Because the district court erred in enhancing Gibbs’ sentence for use or

possession of a firearm in connection with a felony, we vacate the district court’s

sentencing decision and remand for resentencing without application of the four-

level enhancement.

       VACATED AND REMANDED.




       17
           See, e.g., United States v. Paz, 405 F.3d 946, 948 (11th Cir. 2005) (per curiam).
       18
           See, e.g., United States v. Robles, 408 F.3d 1324, 1327–28 (11th Cir. 2005); cf. United
States v. Keene, 470 F.3d 1347, 1349 (11th Cir. 2006) (affirming an error as harmless when the
district court had explicitly stated “for the record that even if the guideline calculations are
wrong, . . . application of the sentencing factors under Section 3553(a) would still compel the
[same sentence]”).
                                                11
