              Case: 16-17068    Date Filed: 08/02/2017   Page: 1 of 5


                                                            [DO NOT PUBLISH]

               IN THE UNITED STATES COURT OF APPEALS

                        FOR THE ELEVENTH CIRCUIT
                          ________________________

                                No. 16-17068
                            Non-Argument Calendar
                          ________________________

                   D.C. Docket No. 8:16-cr-00170-SCB-JSS-1



UNITED STATES OF AMERICA,

                                                                  Plaintiff-Appellee,

                                        versus

MARCOS A. ACOSTA,

                                                             Defendant-Appellant.

                          ________________________

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

                                (August 2, 2017)

Before WILSON, JULIE CARNES, and JILL PRYOR, Circuit Judges.

PER CURIAM:

      Marcos Acosta appeals his 37-month sentence, imposed after pleading guilty

to being a felon in possession of firearms and ammunition. Acosta argues that the
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district court procedurally erred in applying a four-level enhancement under

U.S.S.G. § 2K2.1(b)(6) for possession of a firearm in connection with another

felony offense, because the district court made no findings that Acosta’s firearms

were found in “close” proximity to drugs found at his residence, and there was no

evidence showing that the firearms were connected to his possession or sale of

drugs.

         Acosta admitted that firearms, ammunition, and drug paraphernalia found

while executing a search warrant at his residence belonged to him. And he

admitted that he had been selling heroin and cocaine from his residence. He

argues, however, that in the case of a drug-trafficking offense, the enhancement

requires that the firearm be found in “close proximity” to the drugs. Therefore, he

argues, the district court based the enhancement solely on the temporal and spatial

nexus between the drugs and firearms, which is insufficient for application of the

enhancement. In his sentencing memorandum, Acosta stated that he never sold or

moved any of the firearms, that they were small guns commonly associated with

self-defense, that he did not use the firearms in any way in his drug sales. He

argues that the government failed to offer any evidence showing how the firearms

facilitated a felony offense at sentencing.

         We review a district court’s interpretation and application of the Sentencing

Guidelines de novo and its factual findings for clear error. United States v. Smith,


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480 F.3d 1277, 1278 (11th Cir. 2007). Evaluating whether a firearm was used “in

connection with” another felony offense is a factual determination that we review

for clear error. United States v. Whitfield, 50 F.3d 947, 949 & n.8 (11th Cir. 1995)

(per curiam). “[T]here is no clear error in cases in which the record supports the

district court’s findings.” United States v. Petrie, 302 F.3d 1280, 1290 (11th Cir.

2002).

        “When a defendant challenges one of the factual bases of his sentence, the

government must prove the disputed fact by a preponderance of the evidence.”

United States v. Aguilar-Ibarra, 740 F.3d 587, 592 (11th Cir. 2014) (per curiam).

If the defendant properly objects to facts in support of an enhancement, the district

court may make reasonable factual inferences so long as they are not so speculative

as to be clearly erroneous. See United States v. Chavez, 584 F.3d 1354, 1367 (11th

Cir. 2009). The district court may rely on undisputed statements in the presentence

investigation report (PSI) or from the government’s proffer at the plea colloquy in

making fact findings to support a sentencing enhancement. See Smith, 480 F.3d at

1281.

        Under U.S.S.G. § 2K2.1, a defendant’s offense level may be increased by

four levels if he “[u]sed or possessed any firearm or ammunition in connection

with another felony offense.” U.S.S.G. § 2K2.1(b)(6)(B). The Application Notes

explain that the enhancement applies if the firearm or ammunition “facilitated, or


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had the potential of facilitating, another felony offense.” U.S.S.G. § 2K2.1,

comment. (n.14(A)). The notes further explain that the enhancement applies in the

case of a drug-trafficking offense where a firearm is found “in close proximity to

drugs, drug-manufacturing materials, or drug paraphernalia,” because the

“presence of the firearm has the potential of facilitating another felony offense.”

U.S.S.G. § 2K2.1, comment. (n.14(B)). We have clarified that “[a] firearm found

in close proximity to drugs or drug-related items “simply ‘has’—without any

requirement for additional evidence—the potential to facilitate the drug offense.”

United States v. Carillo-Ayala, 713 F.3d 82, 92 (11th Cir. 2013) (emphasis in

original) (noting that a “firearm in proximity to drugs is connected with a drug

offense because it has the potential to be used as a weapon”). In United States v.

Flennory, we determined that a firearm was possessed “in connection with” a drug

transaction for purposes of calculating a sentence enhancement based on the drug

amount where the firearm was found in a vehicle across the street from a vacant lot

where the defendant was seen distributing drugs. United States v. Flennory, 145

F.3d 1264, 1269 (11th Cir. 1998). We determined that the firearm was sufficiently

connected to the drug offense “because the facts support[ed] an inference that [the

defendant] could have easily and quickly retrieved the weapons “if it became

necessary to avoid an arrest, or to defend himself from a theft of the cocaine or the

money he received from his sales.” Id. at 1269–70.


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      As to Acosta, the district court did not clearly err in applying the four-level

enhancement under § 2K2.1(b)(6)(B). Based on the factual proffer from Acosta’s

plea, the PSI, and Acosta’s statements at sentencing, it is undisputed that firearms

were present in Acosta’s home when he possessed the drugs, and it was reasonable

for the district court to infer that at least some of them had been present when he

sold the drugs. Moreover, the district court did not clearly err in determining that

the presence of eight firearms and ammunition in the same home as the drugs and

drug paraphernalia created sufficient proximity for the enhancement, or that the

firearms had the potential to facilitate Acosta’s drug sales or possession, because

the firearms were sufficiently close to Acosta’s drug-sale activities so that he could

have easily retrieved one of them, if needed, for protection or deterrence from

persons seeking to interfere with his drug activities. See Flennory, 145 F.3d at

1269–70; U.S.S.G. § 2K2.1, comment. (n.14(A)). Accordingly, we affirm.

      AFFIRMED.




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