                 NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
                            File Name: 19a0062n.06

                                           No. 18-5255

                          UNITED STATES COURT OF APPEALS
                               FOR THE SIXTH CIRCUIT

 UNITED STATES OF AMERICA,                               )
                                                                                    FILED
                                                                              Feb 07, 2019
                                                         )                DEBORAH S. HUNT, Clerk
        Plaintiff-Appellee,                              )
                                                         )
                                                                ON APPEAL FROM THE
 v.                                                      )
                                                                UNITED STATES DISTRICT
                                                         )
                                                                COURT FOR THE EASTERN
 TIMOTHY MOONINGHAM,                                     )
                                                                DISTRICT OF TENNESSEE
                                                         )
        Defendant-Appellant.                             )


       Before: BOGGS, KETHLEDGE, and STRANCH, Circuit Judges.

       KETHLEDGE, Circuit Judge. Timothy Mooningham challenges his 87-month sentence

for being a felon in possession of a firearm, in violation of 18 U.S.C. § 922(g). He argues, among

other things, that the district court sentenced him based on an erroneous finding of fact. We agree

and vacate Mooningham’s sentence.

                                                I.

       In 2016, Timothy Mooningham was driving with two female passengers in Tullahoma,

Tennessee, in a car that Mooningham had borrowed from an acquaintance. Mooningham ran a

stop sign, and a police officer pulled him over. Mooningham and one of his passengers told the

officer that they were on their way to check on Mooningham’s aunt, who was supposedly having

a medical emergency. Moments later, however, the pair fled on foot.

       Turning back to the car, the officer noticed the smell of marijuana. He searched the car

and found a 9-millimeter handgun in the center console next to the driver’s seat. Near the front
No. 18-5255, United States v. Mooningham


passenger seat, he found a bag with 20 grams of marijuana, 26 grams of methamphetamine, and

41 Xanax pills; in the back seat, he found another bag with two more guns and some “loose gold

items”; and in the trunk, he found several pieces of audio equipment in their original packaging.

Later that day, police arrested Mooningham and found $1,480 in cash on his person. He was

thereafter charged with one count of being a felon in possession of a firearm, in violation of

18 U.S.C. § 922(g)(1). He pled guilty.

       At the sentencing hearing, the district court increased Mooningham’s offense level by four

levels after determining that he possessed the firearm “in connection with another felony offense.”

U.S.S.G. § 2K2.1(b)(6)(B). The court determined that the proper Guidelines range was 51 to 63

months. But the court thought this range did not reflect Mooningham’s remarkable criminal

record: by age 33, he had amassed 33 criminal convictions, including 17 for felonies, four of which

were for burglary. Over Mooningham’s objection, the court then concluded that the sentencing

factors listed in 18 U.S.C. § 3553(a) weighed in favor of an upward variance. Hence the court

varied upwards from Mooningham’s Guidelines range by 24 months and sentenced him to

87 months’ imprisonment.

       Mooningham filed a motion to reconsider his sentence, arguing that the district court’s

upward variance was improper, in part because (in Mooningham’s view) the court had relied on

some unnamed studies regarding recidivism rates for burglars. The court denied the motion,

explaining that it had based Mooningham’s sentence on his own record of recidivism, not general

studies. The court added, however, that Mooningham had committed “more than one” prior

offense involving “possession of a firearm.” The court then entered judgment and this appeal

followed.




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No. 18-5255, United States v. Mooningham


                                                  II.

                                                  A.

        Mooningham challenges the district court’s finding that he possessed the pistol “in

connection with another felony offense.” U.S.S.G. § 2K2.1(b)(6)(B). We review the district

court’s factual findings for clear error, giving “due deference” to the court’s determination. See

United States v. Taylor, 648 F.3d 417, 432 (6th Cir. 2011).

        Section 2K2.1 of the Guidelines provides for a four-level increase of the defendant’s

offense level if his possession of a firearm “facilitated, or had the potential of facilitating, another

felony offense[.]”    U.S.S.G. § 2K2.1 cmt. n.14(A).          This enhancement applies when the

government shows a “nexus” between the firearm and drug trafficking, e.g., by showing that the

firearm was in “close proximity” to drugs. Taylor, 648 F.3d at 432; see also U.S.S.G. § 2K2.1

cmt. n.14(B).

        Here, the district court found a nexus between the firearm and drug trafficking based on

several facts. First, Mooningham had “easy access” to the pistol, which was next to him in the

car’s center console. See United States v. Angel, 576 F.3d 318, 321 (6th Cir. 2009). He also had

access to a distribution quantity of drugs—more than $2,600 worth—found by the front passenger

seat and in “close proximity” to the gun. See id. at 322. And when he was arrested, he possessed

$1,480 in cash—even though he was then living on food stamps and had worked only sporadically

since his release from prison six months earlier. See United States v. Burns, 498 F.3d 578, 581

(6th Cir. 2007).     Together, these facts gave the district court an ample basis to infer that

Mooningham had possessed the firearm in connection with drug trafficking. See United States v.

Hardin, 248 F.3d 489, 499-500 (6th Cir. 2001).




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No. 18-5255, United States v. Mooningham


       Mooningham contends that the district court could not infer that he physically possessed

either the gun or the drugs, because he was driving a borrowed car with two other passengers. But

Mooningham admitted that he constructively possessed the firearm when he pled guilty to being a

felon in possession of a firearm. He cannot dispute that fact now. See id. at 498. And the court

made “an entirely reasonable inference” that Mooningham had possessed the drugs based on their

proximity to the driver’s seat. Cf. Maryland v. Pringle, 540 U.S. 366, 372 (2003). Mooningham’s

challenge to the enhancement is meritless.

                                                B.

       Mooningham argues that the district court abused its discretion when it “select[ed] a

sentence based on [a] clearly erroneous fact[].” United States v. Woods, 604 F.3d 286, 290 (6th

Cir. 2010).    Specifically, Mooningham asserts that, in the district court’s order denying

reconsideration, the district court mistakenly recited that “[m]ore than one” of Mooningham’s prior

convictions had “involved possession of a firearm[.]” Mooningham is correct: although the

Presentence Report stated that he possessed a gun when he was arrested for one of his prior

convictions, in that case the arrest came well after the crime itself. The PSR did not state whether

Mooningham possessed the gun during the commission of the offense, or why an ensuing gun-

possession charge was dismissed. And though the PSR also stated that Mooningham had another

conviction for “resisting arrest involving [a] weapon,” the PSR did not specify what kind of

weapon—gun or otherwise—was involved in that offense. The district court’s characterization of

Mooningham’s criminal record as presented in this PSR, therefore, was clearly erroneous. And

that characterization appears to have been part of the basis for Mooningham’s sentence. Hence

we vacate his sentence and remand for resentencing.




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