                                                          [DO NOT PUBLISH]


             IN THE UNITED STATES COURT OF APPEALS

                      FOR THE ELEVENTH CIRCUIT                     FILED
                        ________________________         U.S. COURT OF APPEALS
                                                           ELEVENTH CIRCUIT
                                                             September 19, 2006
                              No. 05-15124                  THOMAS K. KAHN
                          Non-Argument Calendar                 CLERK
                        ________________________

                      D. C. Docket No. 03-00255-CR-4

UNITED STATES OF AMERICA,


                                                                Plaintiff-Appellee,

                                   versus

LARRY HAMPTON,

                                                          Defendant-Appellant.


                        ________________________

                 Appeal from the United States District Court
                    for the Southern District of Georgia
                      _________________________

                            (September 19, 2006)

Before CARNES, WILSON and PRYOR, Circuit Judges.

PER CURIAM:

     Larry Hampton appeals his 120-month sentence imposed after he pled guilty
to possession with intent to distribute 5 or more grams of cocaine base in violation

of 21 U.S.C. § 841(a). Hampton contends that the district court erred when it

applied a two-level enhancement for possession of a firearm in connection with a

drug offense because the only evidence in support of the enhancement was in the

presentence investigation report (“PSI”). Hampton further argues that his Sixth

Amendment rights were violated when his sentence was enhanced by a judge’s

factual findings and imposed under the then-mandatory sentencing guidelines.

After review of the record and parties’ briefs, we affirm.

                                  BACKGROUND

      Hampton was initially charged in a three-count indictment alleging two

counts of felon in possession of a firearm and the above-mentioned drug charge

(Count 3). Hampton subsequently pled guilty to the drug charge pursuant to an

agreement and the government dismissed the other counts.

      According to the undisputed facts in the PSI, police monitored a confidential

informant who made a controlled purchase of crack cocaine from Hampton. After

police verified Hampton’s address, they obtained a search warrant for his home

and observed a quantity of crack cocaine and a scale in the kitchen. Upon

questioning, Hampton admitted that a firearm was located in his bedroom’s dresser

drawer. Agents retrieved a 9mm semiautomatic pistol and $1500 cash from the



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drawer, $200 of which was the “buy money” that the informant used to purchase

cocaine base from Hampton.

      The PSI set Hampton’s base offense level at 26, pursuant to U.S.S.G. §

2D1.1(c)(7). Next, the PSI added a two-level enhancement for firearm possession

under U.S.S.G. § 2D1.1(b)(1) based on the discovery of a firearm in Hampton’s

home in “very close proximity” to the drug sale proceeds and only “rooms away”

from a quantity of crack cocaine. Three levels were reduced for acceptance of

responsibility under U.S.S.G. § 3E1.1(a)-(b) for a total offense level of 25. The

PSI further noted that, following his arrest for the instant offense, Hampton signed

a “Waiver of Final Hearing” with regard to his parole revocation, in which he

admitted being guilty of possessing cocaine with intent to distribute, possession of

a deadly weapon, and possession of a firearm by a convicted felon. Hampton was

then assessed 11 criminal history points, placing him in criminal history category

V. Thus, the applicable sentencing guideline range was 100 to 125 months

imprisonment.

      Hampton filed a written objection to the two-level firearm enhancement,

arguing that there was no evidence that the firearm even belonged to him and that

drug crime and firearm were unconnected. He stated no objection to the PSI’s

description of the “Waiver of Final Hearing” and its contents. At sentencing,



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Hampton’s attorney argued that the enhancement should not be applied because

“the pistol was not found in [his] car, and it was not found in the same room as the

crack cocaine.” R.3-33 at 4.

      The government, adopting the probation officer’s stance, argued that the

firearm did not have to be in the same room as the crack cocaine so long as it was

present at the time of the charged conduct, including all relevant conduct, such as

the presence of the “buy-in” money located in the same drawer. The district court

overruled Hampton’s objection and adopted the PSI.

      The court found that the guidelines provided for a 100 to 125 month

sentence. Prior to pronouncing Hampton’s sentence, the court inquired about

Hampton’s family, children, and educational background. The court found no

reason to depart from the applicable sentence under the guidelines, and sentenced

Hampton to 120 months imprisonment. For its reasons, the court stated that

Hampton had a lengthy criminal history, including being on parole for a drug-

related offense when he committed the instant offense, and had not shown much

ambition or respect toward continuing his education or maintaining employment.

The court sentenced Hampton near the upper-end of the applicable guideline range.

      Hampton failed to file a timely appeal, but filed a motion to vacate, pursuant

to 28 U.S.C. § 2255, arguing, inter alia, that counsel had been ineffective in failing



                                           4
to timely appeal despite having been told do so. The motion was denied in part,

but Hampton was eventually permitted to file an out of time appeal.


                            STANDARD OF REVIEW

      We review the district court’s fact determination that supported the

sentencing enhancement as a finding of fact subject to the clearly erroneous

standard, while the application of the Sentencing Guidelines to those facts is a

question of law reviewed de novo. United States v. Ndiaye, 434 F.3d 1270, 1280

(11th Cir. 2006), petition for cert. filed, (June 05, 2006) (No. 05-11415). When a

defendant fails to lodge a Sixth Amendment objection to his sentence, this Court

reviews only for plain error. United States v. Rodriguez, 398 F.3d 1291, 1298 (11th

Cir. 2005), cert. denied, 125 S. Ct. 2935 (2005).


                                   DISCUSSION

I. Use of PSI report

   Hampton challenges the district court’s finding that he possessed the firearm

based on information in the PSI report. To preserve an objection to his sentence for

appeal, a defendant must raise the legal issue in clear and simple language to the

district court. See United States v. Massey, 443 F.3d 814, 819 (11th Cir. 2006).

Here Hampton’s attorney filed an objection to the PSI report which argued that no



                                          5
evidence showed the firearm belonged to the defendant or that the defendant ever

possessed the firearm while selling cocaine. Although his oral objection focused

on a different legal theory (that the firearm and crime were not connected), he

incorporated by reference his filed statements. We will therefore treat the issue as

preserved and review the finding under the clearly erroneous standard.

      Under U.S.S.G. § 2D1.1(b)(1), a two-level enhancement is warranted if a

dangerous weapon, including a firearm, was possessed. This enhancement should

be applied if a weapon was present “unless it is clearly improbable that the weapon

was connected with the offense.” U.S.S.G. § 2D1.1, cmt. n.3. The district court

may base its findings of fact on evidence present at trial or sentencing, facts

admitted by the defendant, or undisputed statements in the PSI. United States v.

Wilson, 884 F.2d 1355, 1356 (11th Cir. 1989). When facts are in dispute, once the

prosecution shows by the “preponderance of evidence that the firearm was present

at the site of charged conduct, the evidentiary burden shifts to the defendant to

show that a connection between the firearm and the offense is clearly improbable.”

United States v. Hall, 46 F.3d 62, 63 (11th Cir. 1995) (per curiam).

      In the instant case, the PSI clearly stated that, following his arrest, Hampton

signed a “Waiver of Final Hearing” admitting his guilt for possession of cocaine,

possession of a deadly weapon, and possession of a firearm by a convicted felon.



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There was only one firearm found in Hampton’s home—the .9mm handgun found

in the same drawer as the buy-in money. The waiver’s contents and the gun’s

location were undisputed. Accordingly, the district court did not clearly err by

finding that Hampton possessed it for purposes of the enhancement. Hampton

failed to proffer evidence at sentencing that it was clearly improbable that the

firearm was possessed in connection with the offense, and, therefore, the district

court did not err by relying on solely the PSI to support the enhancement.


II. Sixth Amendment

       Because Hampton failed to preserve his Sixth Amendment objection to his

sentence, we review only for plain error. Rodriguez, 398 F.3d at 1298. Under this

standard, we "may not correct an error the defendant failed to raise in the district

court unless there is: (1) error, (2) that is plain, and (3) that affects substantial

rights. If all three conditions are met, an appellate court may then exercise its

discretion to notice a forfeited error, but only if (4) the error seriously affects the

fairness, integrity, or public reputation of judicial proceedings." Id. (internal

quotations and citations omitted).

       Hampton has met the first and second prongs of the plain error test. After

judgment had been entered, but prior to this appeal, the Supreme Court held that

the mandatory nature of the federal guidelines rendered them incompatible with the

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Sixth Amendment’s guarantee to the right to a jury trial. United States v. Booker,

543 U.S. 220, 231-36, 125 S. Ct. 738, 160 L. Ed. 2d 621 (2005). Under a

mandatory guidelines system, the district court enhanced Hampton’s sentence

based on a finding of fact made by the judge which went beyond the facts admitted

by the defendant or found by a jury, thus committing a Booker error. Although the

error was not “plain” at the time of sentencing, “it is enough that the error be

‘plain’ at the time of appellate consideration.” Johnson v. United States, 520 US

461, 468 (1997).

      However, the third prong is “exceedingly difficult” to meet. United States v.

Shelton, 400 F.3d 1325, 1331 (11th Cir. 2005). To do so, Hampton must

demonstrate that, but for the mandatory guidelines, there is a reasonable

probability he would have been sentenced differently. See Rodriguez, 398 F.3d at

1300. The record does not support this conclusion. First, the district court

sentenced Hampton to the higher end of the sentencing guidelines range after

considering, just as it would under the present advisory system, Hampton’s

criminal history and his nature and characteristics. This is inconsistent with the

suggestion that a lighter sentence may have been imposed absent the guidelines.

See United States v. Curtis, 400 F.3d 1334, 1336 (11th Cir. 2005). The court

expressed an intent to send the defendant away for a long time to get the



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defendant’s attention. Finally, unlike cases like Shelton 1, the court made no

statements of regret or remorse about the severity of the sentence. Hampton bears

the burden of persuasion here, and he has failed to meet the third prong.

       Upon review of the record and consideration of the parties’ briefs, we

discern no reversible error. Therefore, we affirm Hampton’s sentence.

       AFFIRMED.




1
 In Shelton, this Court held that a defendant satisfied the third prong because the district court
stated that it thought the guideline sentence was too severe, that it was unfortunate, and that the
sentence was more than appropriate. Shelton, 400 F.3d at 1332-33.

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