                                                                [DO NOT PUBLISH]


                IN THE UNITED STATES COURT OF APPEALS

                         FOR THE ELEVENTH CIRCUIT                      FILED
                           ________________________           U.S. COURT OF APPEALS
                                                                ELEVENTH CIRCUIT
                                                                    March 22, 2007
                                 No. 05-16641                    THOMAS K. KAHN
                             Non-Argument Calendar                   CLERK
                           ________________________

                         D. C. Docket No. 94-00025-CR-T

UNITED STATES OF AMERICA,


                                                                   Plaintiff-Appellee,

                                       versus

JAMES LEE TRAMMELL, JR.

                                                               Defendant-Appellant.
                           ________________________

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

                                  (March 22, 2007)

Before ANDERSON, DUBINA and BARKETT, Circuit Judges.

PER CURIAM:

      Appellant James Lee Trammell, Jr., appeals his 156-month sentence and 5-

year term of supervised release for drug trafficking offenses, in violation of 21
U.S.C. §§ 841(a)(1) and 846, and firearms offenses, in violation of 18 U.S.C. §

922(a)(6) and (n), imposed upon resentencing. At resentencing,1 the district court

applied a two-level firearm enhancement, pursuant to U.S.S.G. § 2D1.1(b)(1),

because Trammell’s co-conspirators used firearms in furtherance of a drug

trafficking conspiracy, and that use was reasonably foreseeable to Trammell.

Subsequently, Trammell was released from prison and now is serving his term of

supervised release.

       Although Trammell contends in his brief that this case is moot, the

government disagrees because the record contains no indication that the district

court would necessarily deny a motion for early termination of supervised release,

if we determine in this appeal that Trammell’s sentence was excessive.

       After reviewing the record and reading the parties’ briefs, we agree with the

government that the sentencing issue raised in Trammell’s appeal is not moot

because Trammell is still serving a term of supervised release, which the district

court could modify or terminate if Trammell is successful in this appeal. See



       1
        In an earlier appeal, we affirmed Trammell’s conviction and sentence. United States v.
Trammell, 107 F.3d 23 (11th Cir. 1997). In a subsequent section 2255 motion, however, Trammell
successfully argued that his counsel was ineffective for failing to challenge on appeal the quantity
of cocaine attributable to him at sentencing, and for failing to challenge the timeliness of the
government’s notice of its intent to rely upon prior felony drug convictions for enhancement
purposes. As a result, Trammell’s sentences as to the conspiracy and distribution counts (counts 1
and 24) were vacated.


                                                 2
Dawson v. Scott, 50 F.3d 884, 886 n. 2 (11th Cir. 1995); United States v. Page, 69

F.3d 482, 487 n. 4 (11th Cir. 1995); United States v. Castro-Rocha, 323 F.3d 846,

847 n. 1 (10th Cir. 2003). Because we conclude that this case is not moot, we must

address the merits of Trammell’s appeal.

      “The district court’s interpretation of the sentencing guidelines is subject to

de novo review on appeal, while its factual findings must be accepted unless

clearly erroneous.” United States v. Jordi, 418 F.3d 1212, 1214 (11th Cir.), cert.

denied, 126 S. Ct. 812 (2005).

      The record in this case demonstrates that at resentencing, the district court

agreed with the government’s contention that co-conspirator McCauley’s

conviction for using and carrying a firearm during and in connection with a drug

trafficking crime was sufficient to warrant the two-point enhancement against

Trammel pursuant to U.S.S.G. § 2D1.1(b)(1). Specifically, the district court found

that the facts presented at trial met this court’s requirements for the enhancement

because (1) McCauley was a co-conspirator; (2) McCauley’s possession of a

firearm was in furtherance of the conspiracy; (3) Trammell was a member of the

conspiracy at the time of possession; and (4) McCauley’s possession was

reasonably foreseeable by Trammell. United States v. Trammell, 385 F. Supp. 2d

1215, 1227-28 (M.D. Ala. 2005) (citing United States v. Gallo, 195 F.3d 1278,



                                           3
1284 (11th Cir 1999)).

      We conclude from the record that Trammell has not presented any facts that

could undermine the district court’s finding that a preponderance of the evidence

supported the enhancement, a factual finding that must be accepted unless clearly

erroneous. United States v. Jordi, 418 F.3d at 1214. Accordingly, we affirm the

district court’s application of the sentencing enhancement.

      AFFIRMED.




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