                    United States Court of Appeals
                              FOR THE EIGHTH CIRCUIT
                                    ___________

                                    No. 07-2105
                                    ___________

United States of America,                *
                                         *
      Plaintiff - Appellee,              *
                                         * Appeal from the United States
      v.                                 * District Court for the
                                         * District of Minnesota.
Jose Antonio Fuentes Torres,             *
True Name: Jesus Ayon Seone,             *
                                         *
      Defendant - Appellant.             *
                                    ___________

                               Submitted: January 16, 2008
                                  Filed: June 24, 2008
                                   ___________

Before LOKEN, Chief Judge, MURPHY, Circuit Judge, and JARVEY,* District
      Judge.
                            ___________

LOKEN, Chief Judge.

       Jose Antonio Fuentes Torres (“Fuentes”) was arrested late at night for driving
while intoxicated. An inventory search of his vehicle uncovered a handgun and
ammunition in the center console and a bag containing two grams of powder cocaine
in a nearby cup holder. Fuentes, who had three prior cocaine trafficking convictions,
pleaded guilty to being a felon in possession of a firearm in violation of 18 U.S.C.


      *
      The HONORABLE JOHN A. JARVEY, United States District Judge for the
Southern District of Iowa, sitting by designation.
§§ 922(g)(1) and 924(a)(2). He appeals his 84-month prison sentence, arguing that
the district court1 applied the wrong legal standard in imposing a four-level
enhancement for possession of the firearm in connection with another felony offense.
Concluding that any error was harmless, we affirm.

      The now-advisory guidelines provide for a four-level enhancement if Fuentes
“used or possessed any firearm or ammunition in connection with another felony
offense.” U.S.S.G. § 2K2.1(b)(6). It is undisputed that, by possessing even a small
quantity of cocaine on the night in question, Fuentes committed a felony offense under
Minnesota law. Therefore, the Presentence Investigation Report (PSR) recommended
that the enhancement be imposed because Fuentes “possessed the firearm in
connection with another felony offense.”

       Fuentes timely objected to the enhancement, initially arguing to the district
court, “there is nothing to show that the firearm . . . was possessed in connection with
another felony offense.” The government then filed its Position With Regard To
Sentencing Factors, arguing:

             The possession of a firearm contemporaneously with the
      commission of another felony offense requires a four level enhancement
      unless it is “clearly improbable” that the firearm was used in connection
      with that felony. United States v. Marks, 328 F.3d [1015,] 1017 [(8th
      Cir. 2003)], citing United States v. Linson, 276 F.3d 1017, 1018 (8th Cir.
      2002).

In response, Fuentes filed a sentencing Memorandum. He first noted that application
note 14(A) to § 2K2.1 provides that the term “in connection with” in § 2K2.1(b)(6)
requires a finding that “the firearm or ammunition facilitated, or had the potential of


      1
        The HONORABLE RICHARD H. KYLE, United States District Judge for the
District of Minnesota.

                                          -2-
facilitating, another felony offense.” He then argued that a preponderance of the
evidence does not support this finding because he purchased the gun on the night in
question for protection from men who had assaulted his daughter and threatened him.
Fuentes argued that the “clearly improbable” standard urged by the government would
improperly require “more of a showing than a mere preponderance of the evidence,”
thereby violating his right to due process by shifting the burden of proof.

      At sentencing, neither party offered evidence on this issue. After hearing
arguments of counsel consistent with their prior memoranda, the district court
overruled Fuentes’s objection to the PSR and applied the enhancement, explaining:

      Even if I accept [Fuentes’s] statement . . . that the gun was purchased for
      non-drug-related reasons, protection of family, his daughter, and was
      possessed thereafter for those reasons, it doesn’t seem to me that it
      necessarily follows that it cannot also be possessed in connection with
      a drug-related offense.

             In other words, I think if I go and buy a gun because I’m
      concerned about my safety but I’m also either dealing or using drugs, it
      may very well be that I’m using that gun for dual purposes. It’s there if
      I got problems with somebody threatening any member of my family,
      but I’m also protecting my drugs which are in the car.

             And I guess I cannot, at least under the facts here, make the
      determination that it’s clearly improbable that it was connected with the
      offense. The drugs are right there. The drugs are in the car, the gun is
      in the car. And so I’m going to overrule the objection and apply the
      enhancement.

       Prior to the adoption of application note 14(A) in 2006, the guidelines did not
define the term “in connection with” in § 2K2.1(b)(6). In United States v. Regans, we
followed the Supreme Court’s construction of a comparable statutory term, “in
relation to,” in Smith v. United States, 508 U.S. 223, 238 (1993), and held that the


                                         -3-
firearm “at least must facilitate, or have the potential of facilitating, the drug
trafficking offense.” 125 F.3d 685, 686 (8th Cir. 1997), cert. denied, 523 U.S. 1065
(1998). We observed that this connection may be readily inferred when the defendant
carried a firearm and a distribution quantity of drugs, because a firearm is a “tool of
the trade” for drug dealers. But in Regans, as in this case, the defendant carried a
firearm along with a small quantity of drugs for personal use. We nonetheless
concluded that the district court’s finding that the weapon was used or possessed in
connection with a drug possession felony was not clearly erroneous:

      [W]hen a drug user chooses to carry his illegal drugs out into public with
      a firearm, there are many ways in which the weapon can facilitate the
      drug offense and dangerously embolden the offender. Thus, a finding of
      the requisite connection in this situation is consistent with the purpose
      of § 2K2.1(b)(5) [since renumbered (b)(6)] and cannot be clearly
      erroneous except, perhaps in the exceptional circumstance recognized
      in Application Note 3 to § 2D1.1 -- if “it is clearly improbable that the
      weapon was connected with the offense.” 125 F.3d at 687 (emphasis
      added).

        Application note 14 to § 2K2.1 is entirely consistent with our decision in
Regans. First, note 14(A) adopted the language from Smith v. United States for the
general rule, providing that the enhancement applies “if the firearm or ammunition
facilitated, or had the potential of facilitating, another felony offense.” Second,
consistent with our observation in Regans that firearms are “tools of the trade” for
drug dealers, note 14(B) provides that the enhancement must be applied “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.” In other words, the
Commission treated drug trafficking offenses and drug possession offenses
differently. When the other felony offense is merely a drug possession offense, note
14(A) applies and the district court may make the requisite “in connection with”
finding, but is not required to do so. As we held in Regans, however, if that finding
is made, it will rarely be clearly erroneous.

                                         -4-
       In this case, relying on cases decided after Regans but before the adoption of
note 14(A), and without even citing note 14(A), the government argued that Fuentes’s
possession of the firearm required imposition of a § 2K2.1(b)(6) enhancement unless
it was “clearly improbable” that the firearm was used in connection with his drug
possession felony. This was error -- under note 14(A), a district court must apply the
“facilitate” standard, not a “clearly improbable” standard.2 However, Fuentes did not
point out the government’s error to the district court. He simply cited note 14(A),
which was correct, and argued that a clearly improbable standard would improperly
alter the burden of proof, which was not correct. The district court then overruled
Fuentes’s objection to this paragraph of the PSR, thereby adopting the “in connection
with” finding recommended in that paragraph. As the district court’s above-quoted
explanation of its ruling and our decision in Regans make clear, that finding is not
clearly erroneous. Accord United States v. Jefferson, 2008 WL 612575 (8th Cir.
2008) (unpublished). In these circumstances, any error in not explicitly applying the
“facilitate” standard in note 14(A) was harmless, particularly in light of Fuentes prior
criminal history of repeated drug trafficking offenses.

      The judgment of the district court is affirmed.
                     ______________________________




      2
        The author of this opinion was also the author of Regans and a member of the
panel in Linson, where the other felony again was a drug possession offense.
Unfortunately, I did not correct the statement in Linson, overstating our holding in
Regans, that the “in connection with” finding is required unless the connection is
“clearly improbable,” 276 F.3d at 1018, a statement repeated in Marks, 328 F.3d at
1017, where it was dicta. We now confirm that the statement is inconsistent with
application note 14(A) when the other felony is a drug possession offense. In such
cases, the district court must make the “in connection with” finding, applying the
“facilitate” standard of note 14(A).

                                          -5-
