                                PUBLISHED

                  UNITED STATES COURT OF APPEALS
                      FOR THE FOURTH CIRCUIT


                               No. 13-4555


UNITED STATES OF AMERICA,

                Plaintiff - Appellee,

           v.

JESUS PINEDA,

                Defendant - Appellant.



Appeal from the United States District Court for the Eastern
District of North Carolina, at Wilmington. Terrence W. Boyle,
District Judge. (7:12-cr-00066-BO-1)


Argued:   September 16, 2014                Decided:   October 29, 2014


Before NIEMEYER, WYNN, and FLOYD, Circuit Judges.


Affirmed by published opinion.        Judge Niemeyer         wrote   the
opinion, in which Judge Wynn and Judge Floyd joined.


ARGUED:   Terry  F.   Rose,  Smithfield,  North  Carolina,  for
Appellant.   Phillip Anthony Rubin, OFFICE OF THE UNITED STATES
ATTORNEY, Raleigh, North Carolina, for Appellee.      ON BRIEF:
Thomas G. Walker, United States Attorney, Jennifer P. May-
Parker, Yvonne V. Watford-McKinney, Assistant United States
Attorneys, OFFICE OF THE UNITED STATES ATTORNEY, Raleigh, North
Carolina, for Appellee.
NIEMEYER, Circuit Judge:

     Jesus      Pineda       was        convicted     on      separate       counts     of

distributing     cocaine       on       January 25,        2012,   in    violation      of

21 U.S.C. § 841(a)(1); distributing cocaine on February 8, 2012,

again   in    violation      of     § 841(a)(1);       possessing       a    firearm    in

furtherance      of    the     January 25         drug-trafficking           crime,     in

violation of 18 U.S.C. § 924(c)(1)(A); and possessing a sawed-

off shotgun on January 25, in violation of 26 U.S.C. §§ 5841,

5861(d), and 5871.           The district court sentenced Pineda to 132

months’ imprisonment, and Pineda filed this appeal.

     On      appeal,   Pineda          challenges     the     sufficiency         of   the

evidence to convict him of possessing a firearm in furtherance

of a drug-trafficking crime.                 He also challenges the district

court’s      application          of      several      sentencing           enhancements

including, mainly, enhancements based on its determination that

an uncharged transaction that took place on November 30, 2011,

constituted     relevant      conduct       under    U.S. Sentencing          Guidelines

Manual § 1B1.3(a).        For the reasons that follow, we affirm.


                                            I

     Based on a drug and firearm transaction that took place on

November 30, 2011, in Duplin County, North Carolina, ATF agents

began   an    investigation        of    Pineda     that    ultimately      led   to   his

convictions in this case.               During the November 30 transaction, a


                                            2
confidential    informant       (“CI”)    purchased       from    Raul       Sanchez    a

stolen assault rifle and one ounce of cocaine, both of which

Sanchez had obtained earlier that day from Pineda.                       Pineda also

accompanied Sanchez to the transaction with the CI.                       On a later

date, Pineda approached the CI on his own to indicate that he

wanted to cut Sanchez out and to sell drugs directly to the CI.

The CI reported the conversation to the ATF case agent who was

supervising him, and the agent directed the CI to accept the

proposal and to engage in further transactions directly with

Pineda.

     On     January 25,        2012,     the     CI,     while         under     police

surveillance,    bought    54.31       grams    of     cocaine    and    a     12-gauge

sawed-off    shotgun    from    Pineda    for    $2,550.         The    two    men    had

previously     agreed    that    Pineda        would    also     sell     the    CI    a

.380 caliber    handgun.         Pineda       brought     the     handgun       to    the

transaction and had it on his person, but when the CI asked

Pineda about it, Pineda refused to sell it, indicating that it

was “the only piece I’ve got.”               He nonetheless promised to sell

the handgun to the CI once he had obtained another gun.

     Two weeks later, on February 8, 2012, the CI, while again

under police surveillance, purchased 54.60 grams of cocaine from

Pineda, as well as the .380 caliber handgun.                     The two men ended

the transaction by agreeing that they would arrange another deal

once Pineda received a new supply of cocaine.                     And, a few days

                                         3
later, Pineda texted the CI a picture of another handgun, and

the two discussed the sale of that weapon as well.

     Pineda was indicted and convicted by a jury on two counts

charging him with the distribution of cocaine on January 25 and

February 8,       on     one   count    charging         him   with      possession           of   a

firearm in furtherance of the January 25 drug transaction, and

on   one    count      charging      him      with       possession          of    a   sawed-off

shotgun.

      Prior       to   sentencing,          the       probation    officer         prepared        a

presentence report, in which she included, as relevant conduct,

the November 30, 2011 transaction.                       In doing so, the probation

officer relied on a statement that Raul Sanchez gave to law

enforcement officers regarding the transaction.                               The presentence

report accordingly recommended including in the drug quantity

calculation the drug weight that was involved in the November 30

transaction        and    holding      Pineda          responsible           for   the    stolen

assault     rifle      that    was     also       involved        in    that       transaction,

resulting in enhancements for committing crimes involving three

firearms and for possessing a stolen firearm.                                The presentence

report     also    recommended         an    enhancement          for    engaging        in    the

trafficking of firearms.               Application of the three enhancements

increased Pineda’s offense level for sentencing from 18 to 26.

Pineda     objected      to    the   enhancements,          but        the    district    court

overruled his objections.

                                                  4
       Combining Pineda’s offense level of 26 with his criminal

history category of I resulted in a Guidelines range of 63 to

78 months’ imprisonment, plus a consecutive term of 60 months’

imprisonment for possession of a firearm in furtherance of a

drug-trafficking             offense,           as     required       by         18      U.S.C.

§ 924(c)(1)(A)(i).             The      court     sentenced       Pineda    to    a    term   of

72 months’ imprisonment for his drug convictions and his sawed-

off    shotgun    conviction           and   a    consecutive       term    of    60 months’

imprisonment          for   his        § 924(c)       conviction,     for    a        total   of

132 months’ imprisonment.

       This appeal followed.


                                                 II

       Pineda contends first that the evidence was insufficient to

support his conviction for possessing a firearm in furtherance

of     a     drug-trafficking            crime,       in    violation       of        18 U.S.C.

§ 924(c)(1)(A).             While he acknowledges that the evidence was

sufficient to prove that he possessed a firearm during his sale

of cocaine to the CI on January 25, 2012, he argues that the

evidence was insufficient to show that his possession was “in

furtherance of” the drug transaction.

       We will reject a sufficiency-of-the-evidence challenge if

“any       rational    trier      of    fact     could     have    found    the       essential

elements of the crime beyond a reasonable doubt.”                           United States


                                                 5
v. Lomax, 293 F.3d 701, 705 (4th Cir. 2002) (quoting United

States v. Myers, 280 F.3d 407, 415 (4th Cir. 2002)) (internal

quotation marks omitted).

       “[Section] 924(c)       requires      the     government        to    present

evidence indicating that the possession of a firearm furthered,

advanced, or helped forward a drug trafficking crime.”                        Lomax,

293 F.3d at 705.        And there are “numerous ways” that a firearm

can function in those roles:

       For example, a gun [can] provide a defense against
       someone trying to steal drugs or drug profits, or it
       might lessen the chance that a robbery would even be
       attempted.   Additionally, a gun might enable a drug
       trafficker to ensure that he collects during a drug
       deal.   And a gun [can] serve as protection in the
       event that a deal turns sour.    Or it might prevent a
       transaction from turning sour in the first place.

Id.

       The   evidence    in    this   case   shows    that        during    the    drug

transaction     on   January 25,       Pineda      took     out    a   .380 caliber

handgun and placed it underneath his leg while conducting the

drug   transaction      with   the    CI.    When     the    CI    inquired       about

purchasing the gun, as the two had previously agreed, Pineda

refused to sell it, explaining that it was “the only piece” that

he owned at the time and that if he sold it, he would not have

any way to protect himself.            He stated that he would sell the

gun to the CI once he had “[gotten] another piece.”




                                        6
     While merely having a firearm “accessible and ready for

use” can suggest that a defendant is using it for protection or

to ensure that a deal goes smoothly, United States v. Jenkins,

566 F.3d 160, 164 (4th Cir. 2009), the evidence in this case was

much stronger.          The jury could undoubtedly have concluded that

Pineda   considered        the   firearm        to    be    critical       to    his     drug-

trafficking      activities,       including         the    drug    deal    that       he    was

conducting with the CI that day.                 See United States v. Tresvant,

677 F.2d 1018, 1021 (4th Cir. 1982) (noting that, in reviewing a

challenge     to    the     sufficiency         of    the    evidence,          “[w]e       must

consider circumstantial as well as direct evidence, and allow

the government the benefit of all reasonable inferences from the

facts proven to those sought to be established”).                           We therefore

conclude    that    there    was     substantial           evidence    to       support      the

jury’s finding that Pineda possessed a firearm in furtherance of

the January 25, 2012 drug transaction.


                                           III

     Pineda next contends that, in sentencing him, the district

court    erred     by     treating    his       alleged      participation          in      the

transaction      that     occurred    on    November 30,           2011,    as    “relevant

conduct” under U.S.S.G. § 1B1.3(a).                        Because the court found

that transaction to be relevant conduct, it enhanced Pineda’s

sentence by increasing the amount of drugs for which he was held


                                            7
accountable and by taking into account the stolen assault rifle

involved in the deal.                    Specifically, because of that firearm,

Pineda received two enhancements that otherwise would not have

applied -- an          enhancement         of     two   levels        for    committing          an

offense that involved at least three firearms, under U.S.S.G.

§ 2K2.1(b)(1)(A), and an enhancement of two levels because one

of the firearms was stolen, under § 2K2.1(b)(4)(A).

     To   challenge        the       court’s         inclusion    of        the    November 30

transaction       as     relevant         conduct,      Pineda    makes           two    separate

arguments -- first,            an    evidentiary        challenge      that        evidence      of

the transaction came in through the hearsay statement made by

Raul Sanchez to law enforcement, a statement that, he contends,

did not have sufficient indicia of reliability; and second, a

substantive challenge that the November 30 transaction was not

factually        “part    of        the    same      course      of    conduct”           as    the

transactions that took place on January 25 and February 8.

     As     to     his    evidentiary            challenge,       Pineda          argues       that

Sanchez’s        statement          to     law    enforcement         lacked            sufficient

reliability:

     Raul Sanchez did not testify at the trial of this
     matter.     Raul Sanchez did not testify at the
     sentencing hearing. There is no evidence who provided
     the statement to the Office of Probation.         The
     district court accepted as relevant conduct that
     someone somewhere gave the Office of Probation a
     statement that says someone by the name of Raul
     Sanchez says Mr. Pineda went with him on November 30,
     2011 when he, Raul Sanchez, sold an ounce of cocaine

                                                 8
       and a gun that he, Raul Sanchez, says was stolen.
       There is no other evidence that the act took place,
       that the amount of cocaine is the amount Sanchez
       contends there was or that a firearm was present or
       that such a firearm was stolen other than this
       statement.

       It is well established that, at sentencing, the district

court “may consider relevant information without regard to its

admissibility under the rules of evidence applicable at trial,

provided       that    the   information         has       sufficient    indicia     of

reliability      to     support     its    probable         accuracy.”         U.S.S.G.

§ 6A1.3(a).      The district court’s determination that evidence is

sufficiently reliable to be considered at sentencing is reviewed

for an abuse of discretion, United States v. Gilliam, 987 F.2d

1009,    1014    (4th    Cir.     1993),       and   its    factual     findings     are

reviewed for clear error, United States v. Alvarado Perez, 609

F.3d 609, 612 (4th Cir. 2010).

       While the government did not present any witnesses at the

sentencing hearing, the district court was able to rely on trial

testimony      that   corroborated        significant        aspects    of   Sanchez’s

statement.      Specifically, the ATF case agent testified at trial

that    when    he    took   over   the    investigation         from    one    of   his

colleagues in December 2011, he learned that his predecessor had

developed a CI who “had purchased a stolen firearm and an amount

of cocaine from a gentleman named Raul Sanchez” and that “Pineda

was present during the first transaction” between Sanchez and


                                           9
the CI.       The case agent further testified that it was this

transaction that led him to begin his investigation into Pineda.

Similarly,    the     CI   testified       at    trial      that    he    had      first    met

Pineda     through    Sanchez,       describing        how    Sanchez,        Pineda,       and

another individual came to his house because Sanchez was “trying

to sell [him] an assault rifle.”                   We conclude that this trial

testimony     provides      ample     “indicia     of        reliability        to    support

[the] probable accuracy” of the statement by Sanchez that is

contained in the presentence report, U.S.S.G. § 6A1.3(a), and

that the district court did not err when it found that the

government had proved, by a preponderance of the evidence, that

Pineda had participated in the sale of cocaine and a stolen

rifle on November 30, 2011.

     Pineda’s        primary     argument,       however,          is    that,       even    if

Sanchez’s     statement         is    accepted     as       true,       his     conduct      on

November 30 did not qualify as “relevant conduct” because it was

not “part of the same course of conduct or common scheme or plan

as   the    offense        of   conviction,”           as    required         by     U.S.S.G.

§ 1B1.3(a)(2).         Pineda        argues     that    the     mere     fact      that     the

November 30     transaction          and   the   two        controlled        purchases      on

January 25 and February 8 all involved the sale of cocaine and

firearms “is not enough of a similarity to make the conduct of

November 30, 2011 relevant conduct to the offenses” for which he

was convicted.         Pineda emphasizes that he played a different

                                           10
role    in    the    November 30          transaction         than    in     the      controlled

purchases and argues that there was no evidence showing that the

three    transactions           were    part    of    a     larger    pattern      of    illegal

activity.           In     short,       he      asserts       that    what       happened       on

November 30 was an “isolated, unrelated event[] that happen[s]

to only be similar in kind.”

       The   application         note     accompanying         the    Guideline         defining

“relevant         conduct”      explains       that   “two     or    more     offenses . . .

constitute         part    of    a     common      scheme      or    plan”    if      they     are

“substantially connected to each other by at least one common

factor,      such     as     common      victims,         common     accomplices,        common

purpose,      or    similar      modus       operandi.”            U.S.S.G.    § 1B1.3        cmt.

n.9(A)    (emphasis        added).           But     even    “[o]ffenses         that    do    not

qualify      as    part    of    a     common      scheme    or     plan   may     nonetheless

qualify      as    part    of    the     same      course     of    conduct      if    they    are

sufficiently connected or related to each other as to warrant

the conclusion that they are part of a single episode, spree, or

ongoing series of offenses.”                    Id. § 1B1.3 cmt. n.9(B) (emphasis

added).      “Significant factors used to determine whether offenses

are part of the same course of conduct ‘include the degree of

similarity of the offenses, the regularity (repetitions) of the

offenses, and the time interval between the offenses.’”                                   United

States v. Hodge, 354 F.3d 305, 313 (4th Cir. 2004) (quoting

U.S.S.G. § 1B1.3 cmt. n.9(B)).                      “When one of the above factors

                                                11
is absent, a stronger presence of at least one of the other

factors is required.”          U.S.S.G. § 1B1.3 cmt. n.9(B).

       Where, as here, the defendant “does not contend that the

district court applied the incorrect legal rule,” but instead

challenges “the factual analysis the district court conducted in

applying the relevant conduct Guideline,” “we review the court’s

decision for clear error.”               United States v. McVey, 752 F.3d

606, 610 (4th Cir. 2014).

       Applying these principles, we conclude that the district

court did not clearly err in finding that Pineda’s involvement

in the November 30 transaction was sufficiently related to the

two controlled purchases to constitute “relevant conduct” for

sentencing purposes.          In all three transactions, Pineda was the

seller of cocaine and a firearm, and therefore the transactions

have   a   relatively        high   degree      of   similarity.          All    of    the

transactions     occurred       within        two-and-a-half       months       of    each

other,     therefore    indicating       that     they    occurred    with       a    fair

degree     of   regularity.            And,    most      significantly,         Pineda’s

involvement     on     November 30       led     directly     to    the     controlled

purchases.      As a result of the November 30 transaction -- where

Pineda dealt with Sanchez who, in turn, dealt with the CI --

Pineda met the CI, and they later agreed to bypass Sanchez for

further    deals.       In    short,    the     November    transaction         was    the



                                          12
beginning of a course of conduct that continued -- just without

Sanchez as a go-between -- in January and February.

     Based     on     this      evidence,          we    conclude          that    the     three

transactions       were   “sufficiently            connected         or    related    to    each

other   as    to    warrant       the    conclusion            that       they    [were]   part

of . . . [an] ongoing series of offenses,” U.S.S.G. § 1B1.3 cmt.

n.9(B), and therefore that the district court did not err in

treating     Pineda’s          participation            in     the     November 30,         2011

transaction as “relevant conduct” at sentencing.


                                              IV

     Pineda        challenges        separately          his    two-level          enhancement

under U.S.S.G. § 2K2.1(b)(1)(A) for committing an offense that

involved     three        or     more    firearms,             contending          that     this

enhancement cannot be applied in conjunction with his sentence

for violating 18 U.S.C. § 924(c)(1)(A).                        He argues that applying

the enhancement to the drug-trafficking violation that was the

predicate      offense         for      his        § 924(c)           conviction         creates

impermissible double counting, insofar as the firearm that was

the basis for his § 924(c) conviction cannot also be counted

when determining the number of weapons involved for purposes of

the § 2K2.1(b)(1) enhancement.                     He notes that, “[w]ithout the

firearm associated with the § 924(c) conviction, there [were]

less than three firearms involved in the instant matter.”


                                              13
     “Double counting occurs when a provision of the Guidelines

is   applied      to   increase         punishment        on        the       basis    of    a

consideration     that    has     been       accounted    for       by    application       of

another Guideline provision or by application of a statute.”

United States v. Reevey, 364 F.3d 151, 158 (4th Cir. 2004).

“Double counting is generally authorized unless the Guidelines

expressly   prohibit      it.”         Id.        Application       Note 4      to    § 2K2.4

provides    a    double-counting             prohibition       in     the      context      of

§ 924(c) convictions:

     If   a   sentence   under   th[e]   guideline   [governing
     § 924(c) offenses] is imposed in conjunction with a
     sentence for an underlying offense, do not apply any
     specific    offense    characteristic   for    possession,
     brandishing, use, or discharge of an explosive or
     firearm    when   determining   the   sentence   for   the
     underlying offense.     A sentence under this guideline
     accounts for any explosive or weapon enhancement for
     the underlying offense of conviction, including any
     such enhancement that would apply based on conduct for
     which the defendant is accountable under § 1B1.3
     (Relevant Conduct).

U.S.S.G. § 2K2.4 cmt. n.4.

     The    question      here     therefore         is   whether         it    is    double

counting        prohibited        by         the      Guidelines -- specifically,

Application      Note 4      to    § 2K2.4 -- to           impose         a     consecutive

sentence for possession of a firearm in furtherance of a drug-

trafficking      offense,    in    violation         of   § 924(c)(1)(A),             and   to

enhance the offense level for the underlying drug crime on the




                                             14
ground that the offense (including relevant conduct) involved

three or more firearms.

         In    this    case,    the      offense      underlying      Pineda’s     § 924(c)

conviction was his distribution of cocaine to the CI during the

January 25, 2012 controlled purchase -- a crime for which he was

separately convicted.               In determining his Guidelines range, the

probation officer grouped that offense with his drug-trafficking

conviction        based        on     the       February 8     transaction         and   his

conviction       for    possessing          a   sawed-off     shotgun      and    determined

that     the    operable       Guideline        for   that    group   was    § 2K2.1,    the

Guideline governing the unlawful possession of firearms.                                 As

such, when determining Pineda’s offense level under § 2K2.1, the

district court was prohibited from applying any specific offense

characteristic for “possession, brandishing, use, or discharge”

of a firearm.          U.S.S.G. § 2K2.4 cmt. n.4.

         But    U.S.S.G.       § 2K2.1(b)(1)’s          enhancement        based    on   the

number of firearms involved in the offense does not qualify as

an enhancement “for possession, brandishing, use, or discharge”

of   a    firearm.        U.S.S.G.          § 2K2.4    cmt.    n.4    (emphasis     added).

Application Note 4 to § 2K2.4 makes clear that a sentence for

violating § 924(c) functions as a weapon enhancement, and so no

similar weapon enhancement should be applied when determining

the sentence for the underlying offense.                         An enhancement based

on   the       sheer    number      of      firearms    involved      in    the    offense,

                                                 15
however, is not the same type of weapon enhancement as the one

provided for in § 924(c).                         Rather, it reflects the Sentencing

Commission’s recognition that a defendant whose offense involved

three or more firearms is more dangerous than a defendant who

was       only       accountable       for    one           or    two    firearms -- just           like

culpability is heightened if any of the firearms were stolen or

had       an         altered     or      obliterated              serial     number,          U.S.S.G.

§ 2K2.1(b)(4).               By contrast, § 924(c)(1)(A) punishes a defendant

for       putting        a     firearm       to     a        prohibited      purpose -- namely,

possessing it in furtherance of a crime of violence or a drug-

trafficking crime or using or carrying it during and in relation

to    such       a    crime,    with     additional              penalties   attaching         if    the

firearm          was     brandished          or         discharged.               See    18    U.S.C.

§ 924(c)(1)(A).                Whether the defendant was accountable for one

firearm          or    ten,     however,          is        completely      irrelevant        to    the

commission of the § 924(c) offense.

          Thus, because § 924(c) pertains to particular unlawful uses

of    a    firearm       while     § 2K2.1(b)(1)                 pertains    to    the   number       of

firearms involved, these two enhancements punish different types

of conduct.             We therefore conclude that enhancing a defendant’s

offense level based on the number of weapons involved in the

offense underlying his § 924(c) conviction does not constitute

impermissible            double       counting          under      the    Guidelines.          Accord

United States v. Terrell, 608 F.3d 679, 683-84 (10th Cir. 2010)

                                                       16
(holding that because “the number of weapons involved in the

underlying offense to a § 924(c) conviction is a separate type

of offense conduct than that punished by § 924(c) itself,” “the

district court did not engage in double-counting . . . when it

applied      [an] . . .             increase         under     § 2K2.1(b)(1)(A)”               in

conjunction with the sentence for violating § 924(c)).                                  But see

United States v. Vincent, 20 F.3d 229, 240-41 (6th Cir. 1994)

(holding, without discussion, that the district court erred by

applying     the        number-of-weapons            enhancement         to       an    offense

underlying the defendant’s § 924(c) conviction).


                                                V

     Finally, Pineda contends that the district court erred in

applying   a      four-level         enhancement       under      § 2K2.1(b)(5)          on   the

ground that he “engaged in the trafficking of firearms.”                                      In

support      of        this        challenge,        Pineda       contends         that       the

§ 2K2.1(b)(5)          enhancement         only        applies       if       a        defendant

transferred        two        or    more   firearms          to    another         individual

simultaneously, whereas he only sold one firearm at a time.

     There        is    no     indication,          however,      that    the      Sentencing

Commission intended the § 2K2.1(b)(5) enhancement to apply only

if the defendant transferred multiple firearms on one occasion.

The commentary to § 2K2.1 specifies that the firearm-trafficking

enhancement applies as long as two requirements are satisfied.


                                               17
First,    the     defendant    must     have     “transported,       transferred,     or

otherwise       disposed      of    two     or      more   firearms         to   another

individual, or received two or more firearms with the intent to

transport, transfer, or otherwise dispose of firearms to another

individual.”       U.S.S.G. § 2K2.1 cmt. n.13(A)(i).                 And second, the

defendant must have “kn[own] or had reason to believe that such

conduct would result in the transport, transfer, or disposal of

a firearm to an individual -- (I) whose possession or receipt of

the firearm would be unlawful; or (II) who intended to use or

dispose      of    the     firearm      unlawfully.”           Id.     § 2K2.1      cmt.

n.13(A)(ii).

       Both requirements are satisfied here.                    Pineda transferred

two or more firearms to the CI, and he “had reason to believe”

that   the    CI   “intended       to   use    or    dispose    of    the    firearm[s]

unlawfully,” since he was simultaneously selling cocaine to the

CI with the understanding that the CI’s intent was to distribute

it   to   others.        It   is   simply      irrelevant      to    the    trafficking

enhancement that Pineda sold the CI one firearm on one occasion

and a second firearm a few weeks later, as opposed to selling

him both firearms in a single transaction.

       We thus conclude that the district court properly imposed a

four-level enhancement under § 2K2.1(b)(5) on the ground that

Pineda “engaged in the trafficking of firearms.”



                                          18
The judgment of the district court is

                                        AFFIRMED.




                          19
