                                                                          F I L E D
                                                                   United States Court of Appeals
                                                                           Tenth Circuit
                     UNITED STATES COURT OF APPEALS
                                                                           FEB 22 2002
                            FOR THE TENTH CIRCUIT
                                                                      PATRICK FISHER
                                                                                 Clerk

    UNITED STATES OF AMERICA,

                Plaintiff-Appellee,

    v.                                                   No. 01-3263
                                               (D.C. No. 01-CR-10017-01-MLB)
    MARK A. CAIN,                                          (D. Kan.)

                Defendant-Appellant.


                            ORDER AND JUDGMENT            *




Before TACHA , Chief Judge, PORFILIO , Circuit Judge, and        BRORBY ,
Senior Circuit Judge.




         After examining the briefs and appellate record, this panel has determined

unanimously that oral argument would not materially assist the determination of

this appeal.   See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is

therefore ordered submitted without oral argument.




*
      This order and judgment is not binding precedent, except under the
doctrines of law of the case, res judicata, and collateral estoppel. The court
generally disfavors the citation of orders and judgments; nevertheless, an order
and judgment may be cited under the terms and conditions of 10th Cir. R. 36.3.
      Defendant Mark A. Cain pled guilty to one count of felon in possession of

a firearm in violation of 18 U.S.C. § 922(g)(1). The district court imposed

a four-level enhancement to his sentence under USSG § 2K2.1(b)(5) on the

ground that defendant “used or possessed any firearm or ammunition in

connection with another felony offense.” As a result, the court sentenced

defendant at the low end of the guideline range at a total offense level of 21 and

a criminal history category of IV, imposing fifty-seven months’ imprisonment.

If the four-level increase under § 2K2.1(b)(5) had not been applied, then

defendant would have been sentenced at offense level 17. Defendant appeals

from the imposition of the enhancement.

      Defendant’s conviction arose after his co-defendant, Marvin Gray, arranged

to trade a gun for two baggies of cocaine that together weighed approximately

1/8th ounce. The “dealer,” actually an undercover officer, drove to the designated

address. Mr. Gray and Mr. Cain got into the officer’s car, and Mr. Cain gave the

officer a gun in exchange for the cocaine. The pair were attempting to obtain the

cocaine for their personal use. Defendant used approximately 1/16th ounce of

cocaine per day.

      The sentencing court found that an enhancement under USSG § 2K2.1(b)(5)

was appropriate for either of two reasons. First, defendant had previously been

convicted of possession of marijuana, so his possession of cocaine in this case


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was a felony rather than a misdemeanor. R., Vol. II, Doc. 59, at 8-9. Second,

defendant could have been charged with distribution of a controlled substance

or conspiracy to distribute a controlled substance, either of which is a felony.

Id. at 9.

       Defendant argues on appeal that the § 2K2.1(b)(5) enhancement does not

apply because: (1) his prior conviction for possession of marijuana was in

violation of a municipal code, not state law, and cannot be used to make

possession of cocaine in this case a felony; and (2) his prior conviction for

possession of marijuana was too remote in time to be used to make possession of

cocaine in this case a felony; and (3) there was not enough cocaine involved in

this transaction to raise an inference that defendant intended to distribute it, and

there is therefore no evidence to support a conspiracy or distribution charge under

21 U.S.C. §§ 841 and 846. We review the district court’s interpretation and

application of the sentencing guidelines de novo.        United States v. Farrow ,

277 F.3d 1260, 1262 (10th Cir. 2002). “However, we review factual findings

underlying upward adjustments with deference, overturning them only upon

a determination that the findings were clearly erroneous or without factual

support in the record such that our review leaves us with the firm and definite

conviction that a mistake has been made.”         Id. (quotation omitted).




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       To support a conviction for distribution of a controlled substance under

21 U.S.C. § 841(a), “[t]he defendant need only possess any measurable quantity

of a controlled substance under circumstances which establish his intent to

distribute the substance.”   United States v. Poole , 929 F.2d 1476, 1483 (10th Cir.

1991). The evidence in this case showed that Mr. Gray and Mr. Cain arranged to

use a gun to obtain twice as much cocaine as Mr. Cain needed for his personal

use. Therefore, the evidence was legally sufficient to support a charge against

defendant under 21 U.S.C. §§ 841 and 846. Therefore, the §2K2.1(b)(5)

enhancement was appropriate.

       We need not address defendant’s other arguments.

       The judgment of the United States District Court for the District of

Kansas is AFFIRMED.


                                                      Entered for the Court



                                                      John C. Porfilio
                                                      Circuit Judge




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