                                                           [DO NOT PUBLISH]


              IN THE UNITED STATES COURT OF APPEALS

                      FOR THE ELEVENTH CIRCUIT            FILED
                        ________________________ U.S. COURT OF APPEALS
                                                           ELEVENTH CIRCUIT
                               No. 06-10835                 OCTOBER 16, 2006
                           Non-Argument Calendar            THOMAS K. KAHN
                                                                CLERK
                         ________________________

                   D. C. Docket No. 04-00182-CR-1-MHS-1

UNITED STATES OF AMERICA,


                                                       Plaintiff-Appellee,

                                    versus

FREDRICK HARRIS,

                                                       Defendant-Appellant.


                         ________________________

                 Appeal from the United States District Court
                    for the Northern District of Georgia
                      _________________________

                              (October 16, 2006)

Before BARKETT, MARCUS and WILSON, Circuit Judges.

PER CURIAM:

     Fredrick Harris appeals his 115-month sentence imposed for possession of a
firearm by a convicted felon, in violation of 18 U.S.C. § 922(g)(1). On appeal,

Harris contends that the district court erred by applying U.S.S.G. § 2K2.1(b)(5) to

enhance his base offense four levels because the government failed to present

sufficient evidence to prove that he possessed or used a firearm in connection with

any felony offense. Harris argues that, even though he was convicted in state court

for the felony offenses of possession with intent distribute marijuana and cocaine

based on the same offense conduct at issue in the instant case, later tests proved

that Harris had possessed the antacid kaolin and not cocaine. Harris acknowledges

that he cannot collaterally attack his state convictions in federal court but argues

that the district court erroneously based its application of § 2K2.1(b)(5) on Harris’s

possession of a legal substance, kaolin, which is not a felony. Harris argues further

that a substance is not a “counterfeit” drug simply because it bears some physical

similarity to prohibited substances.

      We review a sentencing court’s factual findings for clear error and reviews

de novo that court’s application of the sentencing guidelines to the facts. United

States v. Jackson, 276 F.3d 1231, 1233 (11th Cir. 2001). The government bears

the burden of establishing by a preponderance of the evidence the facts necessary

to support a sentencing enhancement. United States v. Askew, 193 F.3d 1181,

1183 (11th Cir. 1999). “Preponderance of the evidence is not a high standard of



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proof. It is not, however, a toothless standard either, and a district court may not

abdicate its responsibility to ensure that the prosecution meets this standard before

adding months or years onto a defendant’s prison sentence.” Id.

      Section 2K2.1(b)(5), which addresses unlawful possession of firearms and

prohibited transactions involving firearms, states that a defendant’s offense level

should be increased by four levels if, inter alia, “the defendant used or possessed

any firearm . . . in connection with another felony offense.” U.S.S.G.

§ 2K2.1(b)(5). A “felony offense” includes any federal, state, or local offense that

is “punishable by imprisonment for a term exceeding one year, whether or not a

criminal charge was brought or conviction obtained” and “another felony offense”

is defined as “offenses other than explosives or firearms possession or trafficking

offenses.” U.S.S.G. § 2K2.1, comments. (n.4), (n.15) (emphasis added).

      Under Georgia law, it is a felony “for any person to manufacture, deliver. . .

sell or possess with intent to distribute any controlled substance” including “a

counterfeit substance” and “marijuana.” O.C.G.A. § 16-13-30(b), (h), (i), (j)(1).

The Georgia Controlled Substances Act defines a “Counterfeit substance” as “[a]

controlled substance or noncontrolled substance, which is held out to be a

controlled substance or marijuana, whether in a container or not which does not

bear a label which accurately or truthfully identifies the substance contained



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therein; or . . . Any substance, whether in a container or not, which bears a label

falsely identifying the contents as a controlled substance.” O.C.G.A. § 16-13-

21(6)(B), (C). Moreover, in Durfree v. State, 221 Ga.App. 211 (Ga. Ct. App.

1996), the Georgia Court of Appeals rejected the argument that “because the

informant supplied [the defendant] with ‘sham’ cocaine, the evidence of attempted

trafficking was insufficient.” Dufree, 221 Ga.App. at 212. The Georgia Court of

Appeals held that “the fact that [the defendant] attempted to traffic imitation

cocaine [did] not relieve her of culpability absent evidence that she knew the

substance was not cocaine.” Id.

      Although § 2K2.1(b)(5) does not define the phrase “in connection with,” we

have stated that it reads this phrase expansively. United States v. Rhind, 289 F.3d

690, 695 (11th Cir. 2002) (involving the application of U.S.S.G. § 2B5.1(b)(3)’s

offense level increase for possessing a dangerous weapon “in connection with” a

counterfeiting offense). According to the ordinary and natural meaning of the

phrase “in connection with,” “the firearm does not have to facilitate the underlying

offense.” Id. at 692, 695 (holding that the defendants had possessed firearms “in

connection with” the underlying felony because the evidence showed that, even if

the firearms were unloaded and inoperable, the defendants placed them in a stolen

vehicle with the counterfeit cash, they could have easily obtained ammunition for



                                           4
the firearms, and it was reasonable to conclude that the firearms’ presence

protected the counterfeit money from theft during the execution of the felony).

       Additionally, even if the “other” offense occurs contemporaneously with,

and without a distinction of conduct from, the offense of conviction, the four-level

enhancement may still be applied. See United States v. Jackson, 276 F.3d 1231,

1234 (11th Cir. 2001) (upholding enhancement where defendant pled guilty to

being a felon in possession of a firearm, which offense occurred

contemporaneously with the “other” state felony of assault and battery of police

officers). Moreover, in United States v. Gainey, 111 F.3d 834 (11th Cir. 1998)

(§ 4B1.4(b)(3)(A)1 context), we determined that the firearm was used “in

connection with” the defendant’s heroin possession because the defendant had the

heroin around his neck, and had placed the firearm in his pants pocket such that the

weapon was readily accessible to him if he needed its protection. Id. at 837; see

also United States v. Matos-Rodriguez, 188 F.3d 1300, 1308-09 (11th Cir. 1999)

(holding that, under U.S.S.G. § 2B5.1(b)(3), a firearm need not facilitate the

underlying offense of the sale of counterfeit currency in order it to be possessed “in

connection with” that offense).



       1
         Section 4B1.4(b)(3)(A) addresses “armed career criminals” and authorizes an enhancement
“if the defendant used or possessed the firearm or ammunition in connection with a crime of
violence or controlled substance offense.” Gainey, 111 F.3d at 837 (citing § 4B1.4(b)(3)(A)).

                                               5
      In this case, the district court did not err in applying a four-level

enhancement to Harris’s sentence because the record reflects that Harris possessed

the firearm in connection with two state felony offenses, which could be used

pursuant to § 2K2.1(b)(5) to enhance his sentence. First, Harris’s case meets the

“in connection with” requirement set forth in § 2K2.1 because like the defendant in

Gainey, who had heroin around his neck and a firearm in his pants pocket, Harris

was arrested with a firearm in one pocket and 15 bags of marijuana, one suspected

chunk of crack cocaine, and one suspected hit of crack cocaine in another pocket.

See Gainey, 111 F.3d at 837.

      Second, Harris was convicted of four state offenses resulting from the same

offense conduct, two of which (possession with intent to distribute cocaine and

possession with intent to distribute marijuana) are considered felony offenses

under Georgia law. The fact that the crack cocaine on which the Georgia

convictions were based was later found to be fake is irrelevant for several reasons.

First, Harris pleaded guilty to both state offenses and, at that time, did not argue

that the crack cocaine was fake. Second, § 2K2.1(b)(5) only requires the firearm to

be used in connection with one felony offense and Harris had also pleaded guilty to

possession with intent to distribute marijuana, a state felony offense. Third, under

Georgia law, Harris could have also been found guilty of possession with intent to



                                           6
distribute a counterfeit substance, a felony offense pursuant to O.C.G.A. § 16-13-

30(i). Lastly, as acknowledged by Harris at his sentencing hearing, he may not

collaterally attack his state convictions in federal court.

      AFFIRMED.




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