                                                                  [DO NOT PUBLISH]

                        IN THE UNITED STATES COURT OF APPEALS

                               FOR THE ELEVENTH CIRCUIT           FILED
                                ________________________ U.S. COURT OF APPEALS
                                                                 ELEVENTH CIRCUIT
                                       No. 10-11617                MARCH 14, 2011
                                                                     JOHN LEY
                                   Non-Argument Calendar               CLERK
                                 ________________________

                         D.C. Docket No. 4:08-cr-00029-SPM-WCS-14

UNITED STATES OF AMERICA,

lllllllllllllllllllll                                               Plaintiff - Appellee,

                                       versus

TERRY PATRICK TURNER,

lllllllllllllllllllll                                            Defendant - Appellant.

                                ________________________

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

                                       (March 14, 2011)

Before TJOFLAT, CARNES and BLACK, Circuit Judges.

PER CURIAM:
       Terry Patrick Turner appeals his 188-month sentence imposed after he was

found guilty of conspiracy to distribute and possessing with intent to distribute

more than 50 grams of actual methamphetamine and more than 500 grams of a

mixture and substance containing methamphetamine, in violation of 21 U.S.C.

§§ 841(a)(1),(b)(1)(A)(viii), and 846. Turner claims the district court clearly erred

in applying a two-level enhancement pursuant to U.S.S.G. § 2D1.1(b)(1).

Specifically, he contends: (1) there was no evidence presented establishing the

time period during which he was alleged to have possessed firearms in relation to

the conspiracy; (2) there was no specific finding that firearms were possessed by

his co-defendants in furtherance of the conspiracy; or (3) that he was a member of

the conspiracy at the time of his alleged possession of the firearms. After review,

we vacate Turner’s sentence and remand for further proceedings in light of this

opinion.1

       “Sentencing Guidelines subsection 2D1.1(b)(1) provides that the offense

level for a drug offense is increased by two levels ‘if a dangerous weapon

(including a firearm) was possessed.’” United States v. Hall, 46 F.3d 62, 63 (11th

Cir. 1995). “To justify a firearms enhancement, the government must either


       1
        We review a district court’s findings of fact under U.S.S.G. § 2D1.1(b)(1) for clear error
and the application of the Sentencing Guidelines to those facts de novo. United States v. Pham,
463 F.3d 1239, 1245 (11th Cir. 2006).

                                                2
establish by a preponderance of the evidence that the firearm was present at the

site of the charged conduct or prove that the defendant possessed a firearm during

conduct associated with the offense of conviction.” United States v. Stallings, 463

F.3d 1218, 1221 (11th Cir. 2006). The evidence presented at sentencing did not

establish that Turner had possessed any of these firearms when or where the drug

trafficking was occurring or in a manner related to the furtherance of the

conspiracy. Thus, the enhancement cannot be affirmed on this basis because the

Government failed to establish Turner himself possessed the firearms.

      Section 2D1.1(b)(1) may also be applied when a firearm is possessed by a

co-conspirator if the Government proves by a preponderance of the evidence that:

“(1) the possessor of the firearm was a co-conspirator, (2) the possession was in

furtherance of the conspiracy, (3) the defendant was a member of the conspiracy at

the time of the possession, and (4) the co-conspirator possession was reasonably

foreseeable by the defendant.” United States v. Gallo, 195 F.3d 1278, 1284 (11th

Cir. 1999) (emphasis omitted).

      Although the Government presented testimony from DEA Agent Kevin

Whittle as to the origin of the guns obtained by Turner’s co-conspirators, Custodio

Guerra and Jonathan Stephens, the district court specifically found that Turner, not

his co-conspirators possessed the firearms, and we cannot determine by the district

                                         3
court’s findings whether the Gallo requirements are met. Accordingly, we vacate

Turner’s sentence and remand for further proceedings consistent with this opinion.

      VACATED AND REMANDED.




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