                NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
                           File Name: 09a0393n.06

                                            No. 07-5268                                  FILED
                                                                                     Jun 02, 2009
                             UNITED STATES COURT OF APPEALS                    LEONARD GREEN, Clerk
                                  FOR THE SIXTH CIRCUIT


UNITED STATES OF AMERICA,                                 )
                                                          )        ON APPEAL FROM THE
       Plaintiff-Appellee,                                )        UNITED STATES DISTRICT
                                                          )        COURT FOR THE WESTERN
v.                                                        )        DISTRICT OF TENNESSEE

MARIO HYMON,                                                                          OPINION

       Defendant-Appellant.



BEFORE:        KEITH, COLE, and WHITE, Circuit Judges.

       COLE, Circuit Judge. Defendant-Appellant Mario Hymon, a federal prisoner, appeals his

sentenced imposed after he pleaded guilty to being a felon in possession of a firearm in violation of

18 U.S.C. § 922(g). Hymon argues that the district court erred in sentencing by increasing his base

offense four levels under United States Sentencing Guidelines (“Guidelines” or “USSG”)

§ 2K2.1(b)(6) and that the court violated his Sixth Amendment right by making findings of fact at

the sentencing hearing, and using these factual findings to increase his sentence. For the reasons set

forth below, we VACATE Hymon’s sentence and REMAND to the district court.

                                       I. BACKGROUND

       On February 21, 2006, a federal grand jury returned a one count indictment charging Hymon

with being a felon in possession of a firearm after a police search of Hymon’s residence uncovered

a Bushmaster .223 caliber assault rifle. During the same search, police found 8.2 grams of marijuana
No. 07-5268
United States of America v. Hymon

and 1.6 grams of cocaine. Hymon did not dispute possession of either the drugs or the weapon, and

he subsequently pleaded guilty to the charge.

       A Presentence Investigation Report (“PSR”) was prepared, recommending a base offense

level of twenty-four, increased by four levels because the firearm was possessed in connection with

another felony offense, and decreased by three levels for Hymon’s acceptance of responsibility. See

USSG §§ 2K2.1(a)(2), (b)(6), and 3E1.1. The PSR indicated that Hymon had three prior felony

convictions for drug dealing and that firearms were involved in two of these cases, resulting in a

criminal history category of VI. With the resulting offense level of twenty-five and a criminal

history category of VI, the PSR reflected an advisory Guidelines range of 110-137 months’

imprisonment.

       Hymon filed an objection to the PSR on two grounds: (1) the four-level enhancement for

possessing a firearm in connection with another felony offense was “contrary to current law”; and

(2) the facts did not support a finding that he possessed a firearm in connection with another felony

under USSG § 2K2.1(b)(6) because the amount of drugs found at Hymon’s residence established

personal use rather than trafficking.

       At the sentencing hearing, the district court concluded that the facts supported a finding that

Hymon possessed the weapon in connection with trafficking in marijuana and cocaine—a felony

offense under Tennessee law—and rejected Hymon’s Sixth Amendment arguments, finding that the

four-level enhancement was not contrary to law. After determining that the Guidelines provided a

sentencing range of 110-120 months’ imprisonment, the district court imposed a sentence of 115

months’ imprisonment and two years of supervised release. This appeal followed.

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No. 07-5268
United States of America v. Hymon

                                           II. ANALYSIS

        Hymon appeals his sentence on two grounds. First, he argues that the district court

committed error in increasing his base offense by four levels for possession of a firearm in

connection with another felony offense under USSG § 2K2.1(b)(6). Second, Hymon argues that the

district court violated his Sixth Amendment right by basing his USSG § 2K2.1(b)(6) enhancement

on judicially found facts.

A.      Standard of review

        This Court reviews a district court’s factual findings underlying a sentencing decision for

clear error and gives due deference to the district court’s application of the Guidelines to a particular

factual situation. United States v. Ennenga, 263 F.3d 499, 502 (6th Cir. 2001) (citation omitted).

We review de novo matters that present strictly a question of law concerning the application of the

Guidelines. See United States v. Canestraro, 282 F.3d 427, 431 (6th Cir. 2002).

B.      USSG § 2K2.1(b)(6)’s four-level enhancement

        Guidelines § 2K2.1(b)(6) instructs a court to increase a defendant’s base offense level by four

“[i]f the defendant used or possessed any firearm or ammunition in connection with another felony

offense.” USSG § 2K2.1(b)(6) (emphasis added). The burden of proof for the enhancement under

this section falls on the government. United States v. Goodman, 519 F.3d 310, 321 (6th Cir. 2008).

        We conclude that the district court erred in applying the enhancement without determining

whether the weapon Hymon possessed was connected to the drug-trafficking offense.                    For

§ 2K2.1(b)(6) to apply, the Government must establish, by a preponderance of the evidence, a nexus

between the firearm and, in this case, trafficking in drugs. See United States v. Burns, 498 F.3d 578,

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United States of America v. Hymon

580 (6th Cir. 2007), cert. denied, 128 S. Ct. 1104 (2008). In those cases where the felony is a drug

trafficking offense, the firearm must be found “in close proximity to drugs, drug-manufacturing

materials, or drug paraphernalia.” USSG § 2K2.1, comment n.14(B). “[P]ossession of firearms that

is merely coincidental to the underlying felony offense is insufficient to support the application of

§ 2K2.1.” Goodman, 519 F.3d at 321 (quoting Ennenga, 263 F.3d at 503).

       The Government argues that the totality of the circumstances, as described in the PSR,

supports the district court’s application of § 2K2.1(b)(6). But Hymon’s PSR sets forth no facts about

the location of the weapon in Hymon’s residence, its proximity to the drugs or drug paraphernalia,

or whether it appeared that Hymon was using the weapon to protect the drugs. Similarly, the district

court failed to address this element of § 2K2.1(b)(6) at the hearing, other than to note that Hymon

admitted owning the gun. For these reasons, this portion of the district court’s sentencing decision

is in error and Hymon’s case must be remanded for resentencing.

C.     The Sixth Amendment

       Because we conclude that the district court erred in its application of USSG § 2K2.1(b)(6),

Hymon’s Sixth Amendment argument is moot.

                                       III. CONCLUSION

       For all these reasons, Hymon’s sentence is VACATED, and we REMAND the case for

resentencing in accordance with this opinion.




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