                     United States Court of Appeals
                          FOR THE EIGHTH CIRCUIT
                                    ___________

                                    No. 08-1731
                                    ___________

United States of America,             *
                                      *
           Appellee,                  *
                                      * Appeal from the United States
      v.                              * District Court for the
                                      * Western District of Missouri.
William Mansfield, also known as      *
William H. Mansfield,                 *
                                      *
           Appellant.                 *
                                 ___________

                            Submitted: February 9, 2009
                                Filed: March 31, 2009
                                   ___________

Before RILEY, SMITH, and SHEPHERD, Circuit Judges.
                             ___________

RILEY, Circuit Judge.

        William Mansfield (Mansfield) pled guilty to two counts of being a felon and
drug user in possession of firearms, and to possession of a machine gun. The district
court imposed a four-level increase to Mansfield’s base offense level for possession
of firearms and ammunition in connection with another felony offense. The district
court sentenced Mansfield to 78 months imprisonment. Mansfield appeals, arguing
the district court erred by enhancing his offense level absent a finding the firearm
facilitated, or had the potential to facilitate, his drug possession felony. We reverse
and remand to the district court for further findings.
I.     BACKGROUND
       On April 23, 2006, in response to a report of automatic gunfire, sheriff deputies
were dispatched to Mansfield’s residence. Upon arrival, the deputies asked Mansfield
if he had discharged any weapons. Mansfield replied, “No.” The deputies then
inquired if Mansfield had identification. Mansfield informed the deputies he had
identification in his bedroom, and allowed the deputies to accompany him to retrieve
the identification. In the bedroom, the deputies observed a loaded pistol on the
nightstand as Mansfield attempted to conceal the pistol with a pillow. The deputies
handcuffed Mansfield for officer safety. The deputies asked Mansfield if he had any
other weapons in the residence. Mansfield answered affirmatively and led the
deputies to a closet where two rifles were located. One rifle receiver contained parts
that converted the weapon to a fully automatic M-16 machine gun. The barrel of this
rifle was “hot to the touch,” indicating the rifle had been fired recently. When asked,
Mansfield acknowledged he knew the automatic machine gun was illegal. The
deputies confiscated the weapons and ammunition. Mansfield, the sole caregiver for
his elderly mother, was not then arrested.

       Later that same night, deputies were dispatched to Mansfield’s residence for
another shots fired call. Mansfield denied firing any weapons, saying he had no more
firearms. After obtaining consent to conduct a search, the deputies located another
semi-automatic rifle. The deputies arrested Mansfield for possessing an illegal
machine gun and being a felon in possession of firearms.

       On May 22, 2006, deputies were again dispatched to the Mansfield residence
after receiving a report concerning a fight and a man passed out in Mansfield’s
bathroom. When the deputies arrived, Mansfield was sweating profusely and
appeared to be agitated. Mansfield claimed only he and his mother were present. The
deputies pushed past Mansfield and proceeded to the bathroom, finding a man lying
unconscious on the floor. While paramedics were attempting to revive the man, a
deputy, at the request of the paramedics, retrieved towels from the bathroom.

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Wrapped inside the towels was a syringe containing a brown liquid, later identified
as heroin.

       On May 24, 2006, officers executed a search warrant on the Mansfield
residence. A clear bag, containing twenty-six individual packets of heroin, was found
inside the toilet in Mansfield’s bathroom. Among other things, the officers also
found: five syringes, $252 in United States currency, three pages containing notes
regarding apparent drug sales, two .45 caliber magazines, various ammunition, a letter
referring to marijuana cultivation, and a 9 mm pistol with three loaded magazines.
The pistol was discovered in a locked trunk in a basement closet, separate from the
heroin found in the main floor bathroom.

       Mansfield was indicted on two counts of being a felon and drug user in
possession of firearms, in violation of 18 U.S.C. §§ 922(g)(1), (3) and 924(a)(2);
possession of a machine gun, in violation of 18 U.S.C. §§ 922(o)(1), 921(a)(23), and
924(a)(2); and possession with the intent to distribute heroin, in violation of 21 U.S.C.
§ 841(a)(1). As part of a written plea agreement, Mansfield entered a plea of guilty
to three of the four counts of the indictment. In return, the government dismissed the
charge for possession with intent to distribute heroin.

       Following his guilty plea, Mansfield was sentenced on March 4, 2008. At
sentencing, the district court imposed a four-level increase to Mansfield’s base offense
level pursuant to the advisory United States Sentencing Guidelines (U.S.S.G.) §
2K2.1(b)(6). Mansfield objected, disputing the existence of a connection between his
possession of the firearms and the drugs. In ruling on Mansfield’s objection, the
district court stated:

      I’m familiar with the additional case law in addition to the case cited by
      defense counsel and when I consider that case law and then the totality
      of what was going on there, the activity at the house, the multiple gun
      incidents, the multiple gun seizures, the drug activity and then this gun

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      with ammunition found at that point, I’m going to find that it is in
      connection with and deny your objection to that.

        On appeal, Mansfield argues the district court erred in imposing the four-level
enhancement for being a felon in possession of a firearm in connection with another
felony. Mansfield asserts the enhancement requires a greater showing that the firearm
facilitated, or had the potential to facilitate, the possession of heroin.

II.    DISCUSSION
       A.     Standard of Review
       We review the district court’s sentencing decisions for abuse of discretion when
determining whether the sentence is reasonable. See Gall v. United States, __ U.S. __,
128 S. Ct. 586, 594 (2007); United States v. Charles, 531 F.3d 637, 640 (8th Cir.
2008). The sentence is reviewed for both procedural and substantive reasonableness.
See United States v. Blankenship, 552 F.3d 703, 704 (8th Cir. 2009). “We review the
district court’s factual findings for clear error, and its application of the guidelines de
novo.” Id. (citations omitted).

       B.     Sentence Enhancement
       After the district court sentenced Mansfield, we held in United States v. Fuentes
Torres, 529 F.3d 825, 827 (8th Cir. 2008), that different rules govern the application
of U.S.S.G. § 2K2.1(b)(6) depending on whether the underlying felony is for drug
trafficking or for drug possession. This holding was based on the 2006 addition of
Application Note 14 to § 2K2.1(b)(6), which reads:

      (A) In General. Subsections (b)(6) and (c)(1) apply if the firearm or
      ammunition facilitated, or had the potential of facilitating, another felony
      offense or another offense, respectively.

      (B) Application When Other Offense is Burglary or Drug Offense.
      Subsections (b)(6) and (c)(1) apply . . . (ii) in the case of a drug
      trafficking offense in which a firearm is found in close proximity to

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      drugs, drug-manufacturing materials, or drug paraphernalia. In these
      cases, application of subsections (b)(6) and (c)(1) is warranted because
      the presence of the firearm has the potential of facilitating another felony
      offense or another offense, respectively.

       “[W]ith the addition of Application Note 14, the Sentencing Commission
decided to make a distinction between the factual circumstances of when the other
felony was a drug trafficking offense, or alternatively, a simple drug possession
offense.” Blankenship, 552 F.3d at 705. While an underlying drug trafficking offense
requires an automatic four-level enhancement of the base offense level, an underlying
simple drug possession offense requires the district court to determine first whether
the firearm facilitated, or had the potential to facilitate, the underlying drug offense
before applying the four-level enhancement. See United States v. Dalton, 557 F.3d
589, __ (8th Cir. 2009) (“[T]o support application of the enhancement based on a
felony drug possession, the government must prove, and the district court must find,
‘at a minimum, the firearm had a purpose or effect with respect to the other felony
offense because its presence facilitated or had the potential to facilitate the offense,
as opposed to being the result of mere accident or coincidence’” (quoting United
States v. Smith, 535 F.3d 883, 886 (8th Cir. 2008))).

       The government contends the guns confiscated from Mansfield’s residence a
month before the drugs were found, combined with other “abundant evidence,” show
Mansfield was involved in drug trafficking. However, the drug trafficking charge was
dismissed and the underlying felony conviction is for drug possession only.
Mansfield steadfastly maintained his heroin possession was for personal use, not for
trafficking. Mansfield also challenged the presentence investigation report
referencing drug sales notes, and the government offered no evidence to demonstrate
the notes indicated drug trafficking. The guns removed from Mansfield’s home one
month earlier could not have facilitated Mansfield’s drug possession on May 22, 2006.




                                          -5-
      At Mansfield’s sentencing, the district court only considered the “totality of
what was going on there” in determining the gun was used “in connection with” a
felony drug offense. Fuentes Torres, 529 F.3d at 927, and Application Note 14(A)
require the district court to make a specific finding whether the firearm facilitated, or
had the potential to facilitate, Mansfield’s drug possession. Based on our recent
decisions, the district court erred because it failed to make this specific finding.

       Absent a plea, a conviction or an allegation with sufficient supporting evidence
of drug trafficking, Mansfield’s applicable underlying drug offense is possession. The
district court is free to consider the other “abundant evidence” in making a factual
determination whether the 9 mm pistol, found on May 24, 2006, in a locked trunk in
a basement closet one floor below the packets of heroin, facilitated, or had the
potential to facilitate, Mansfield’s drug possession felony offense.

III.   CONCLUSION
       We reverse and remand to the district court to determine whether Mansfield’s
firearm facilitated, or had the potential to facilitate, his underlying drug possession
offense.
                         ______________________________




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