                NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
                           File Name: 08a0182n.06
                             Filed: April 4, 2008

                                            No. 07-1615

                           UNITED STATES COURT OF APPEALS
                                FOR THE SIXTH CIRCUIT


UNITED STATES OF AMERICA,                                 )
                                                          )        ON APPEAL FROM THE
       Plaintiff-Appellee,                                )        UNITED STATES DISTRICT
                                                          )        COURT FOR THE WESTERN
               v.                                         )        DISTRICT OF MICHIGAN
                                                          )
RONALD DERRICK HEIGHTON,                                  )
                                                          )
      Defendant-Appellant.                                )
__________________________________________                )


BEFORE: MARTIN, GIBBONS, and GRIFFIN, Circuit Judges.

       GRIFFIN, Circuit Judge.

       Defendant Ronald Derrick Heighton appeals his sentence, arguing that the district court erred

by increasing his base offense level by four levels, pursuant to U.S.S.G. § 2K2.1(b)(6) for possession

of a firearm in connection with another felony, and by declining to grant a two-level reduction to

Heighton’s base offense level under U.S.S.G. § 3E1.1(a) for acceptance of responsibility. For the

reasons set forth below, we affirm defendant’s sentence.

                                                  I.

       On May 29, 2006, defendant’s neighbor contacted the police after her cat died from a gunshot

wound. The neighbor informed the police that Jessica McPeake, defendant’s live-in fiancée, had told

her that defendant had been shooting at groundhogs when the neighbor’s cat had strayed onto

defendant’s property.
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United States v. Heighton


       The next day, a Michigan State Police Officer contacted McPeake at the home she shared

with defendant. McPeake informed the officer that defendant had shot the neighbor’s cat with a .22

caliber rifle and agreed to turn the rifle over to the police. McPeake gave the officer permission to

come inside to retrieve the rifle.

       Once inside, the officer found the rifle loaded and lying on the kitchen countertop. The

officer also noticed two additional rifles leaning against the wall in the kitchen.1 When the officer

asked McPeake about the weapons, McPeake walked away from the officer and closed a door

adjacent to the kitchen. Before McPeake closed the door, the officer was able to observe several

items used in the production of methamphetamine. At this point, the officer called for backup,

secured the area, and obtained McPeake’s consent to search the residence.

       During the subsequent search of the premises, officers recovered materials and ingredients

consistent with the manufacture of methamphetamine. Officers also recovered an electronic scale

and a surveillance camera and monitor, which provided a live feed of the front area of the property.

In addition, police found a total of six firearms – specifically, a loaded .22 caliber rifle and loaded

pistol-grip shotgun in the kitchen; a loaded .22 caliber handgun in McPeake’s purse; a Romarm

WASR 10/63 AK47-style semiautomatic rifle under defendant’s bed; and a 9mm pistol and a .380




       1
          The Presentence Investigation Report (“PSR”) indicates that the officer recovered “two
additional rifles” leaning against the wall in or near the kitchen. However, when detailing the full
list of firearms recovered from the property, the PSR only states that the .22 caliber rifle on the
countertop and a loaded shotgun were recovered from the kitchen area.

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United States v. Heighton


caliber pistol inside a pick-up truck located on defendant’s property. Officers later arrested

defendant, who had been in the woods on the property.

       On September 13, 2006, a three-count indictment was filed in the United States District Court

for the Western District of Michigan, charging defendant with one count of possession of equipment

and materials with intent to manufacture methamphetamine in violation of 21 U.S.C. § 843(a)(6),

attempt to manufacture methamphetamine in violation of 21 U.S.C. §§ 846 and 841(a)(1), and being

a felon in possession of firearms in violation of 18 U.S.C. § 922(g)(1). Defendant was arrested on

the federal charges on October 6, 2006, and released on bond a few days later. On October 26, 2006,

defendant absconded from bond and remained at large until January 12, 2007, when he was found

hiding in the basement of a house occupied by McPeake.

       On January 23, 2007, Heighton pleaded guilty to all counts of the indictment pursuant to a

plea agreement. In addition, he admitted that he had obstructed and impeded justice by willfully

failing to appear at his November 30, 2006, final pretrial conference. Defendant further agreed to

cooperate fully with law enforcement. The court ordered that a Presentence Investigation Report

(“PSR”) be prepared. In the PSR, the probation officer recommended a four-level enhancement for

possession of firearms in connection with another felony, pursuant to U.S.S.G. § 2K2.1(b)(6), and

a two-level enhancement for obstruction of justice. The PSR did not recommend a downward

adjustment for acceptance of responsibility. Heighton objected to the possession of a firearm

enhancement and the recommendation against granting an acceptance of responsibility reduction.

The district court overruled these objections and calculated defendant’s base offense level as 22.


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United States v. Heighton


This, combined with defendant’s criminal history category of III, yielded a sentencing range of 51

to 63 months, followed by a three-year period of supervised release. The district court sentenced

defendant to a 60-month term of imprisonment on each count, to be served concurrently. Heighton

now timely appeals.

                                                  II.

       A “district court’s finding that a defendant possessed a firearm during a drug crime is a

factual finding subject to the clearly erroneous standard of review.” United States v. Clay, 346 F.3d

173, 178 (6th Cir. 2003) (quoting United States v. Darwich, 337 F.3d 645, 664 (6th Cir. 2003)). “A

finding of fact will only be clearly erroneous when, although there may be some evidence to support

that finding, ‘the reviewing court on the entire evidence is left with the definite and firm conviction

that a mistake has been committed.’” Darwich, 337 F.3d at 663 (quoting United States v. Latouf,

132 F.3d 320, 321 (6th Cir. 1997)).

       Section 2K2.1(b)(6) of the United States Sentencing Guidelines provides for a four-level

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

another felony offense . . . .” The Guidelines elaborate on the “in connection with” language, stating

that the enhancement applies “if the firearm . . . facilitated, or had the potential of facilitating,

another felony offense . . . .” U.S.S.G. § 2K2.1(b)(6) cmt. n.14(A). When the other felony is a drug

offense, the Guidelines add:

       [I]n the case of a drug trafficking offense in which a firearm is found in close
       proximity to drugs, drug-manufacturing materials, or drug paraphernalia[,] . . . [the
       enhancement] is warranted because the presence of the firearm has the potential of
       facilitating another felony offense . . . .

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U.S.S.G. § 2K2.1(b)(6), cmt. n.14(B)(ii). As these application notes make clear, the firearms in

question need not be actively used in the commission of a felony, but merely have the potential to

promote another felony offense. In short, an enhancement under “§ 2K2.1 applies if ‘the firearm had

some emboldening role in defendant’s felonious conduct.’” United States v. Ennenga, 263 F.3d 499,

503 (6th Cir. 2001) (quoting United States v. Polanco, 93 F.3d 555, 567 (9th Cir. 1996)). Further,

we must give due deference to the district court’s determination that the § 2K2.1(b)(6) enhancement

applies.

       We have adopted the “fortress theory” in interpreting the “in connection with” language of

U.S.S.G. § 2K2.1. This principle states that there is a “sufficient connection [between the firearms

and the felonious activity] ‘if it reasonably appears that the firearms found on the premises controlled

or owned by defendant and in his actual or constructive possession are to be used to protect the drugs

or otherwise facilitate a drug transaction.’” Ennenga, 263 F.3d at 503 (quoting United States v.

Henry, 878 F.2d 937, 944 (6th Cir. 1989)). Here, the district court found that defendant’s home fit

the definition of a “fortress” because of the presence of loaded firearms, the AK-47 style

semiautomatic rifle, and the surveillance system. The district court concluded that the only reason

to have such weapons and equipment was to protect the house from people who may try to steal

money or drugs. We agree. The arsenal of unsecured, loaded weapons scattered about the premises,

and the attendant video surveillance system, served to provide security for the manufacture and/or

sale of narcotics on Heighton’s property. This security undoubtedly had an “emboldening role” in




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Heighton’s conduct, and therefore it was not clear error for the district court to impose an

enhancement pursuant to U.S.S.G. § 2K2.1(b)(6).

                                                 III.

       Defendant additionally contends the district court erred in refusing to grant his request for

a two-level reduction for acceptance of responsibility pursuant to U.S.S.G. § 3E1.1(a). A defendant

may receive a two-level decrease for acceptance of responsibility if he, among other things, admits

his guilt and further admits to relevant conduct. U.S.S.G. § 3E1.1, cmt. n.1. A defendant may

receive, upon motion of the government, an additional one-level reduction under § 3E1.1(b) for

timely notification of his guilty plea. U.S.S.G. § 3E1.1(b). We give due deference to the district

court’s determination regarding whether defendant has demonstrated acceptance of responsibility

and will reverse only upon a demonstration of clear error. United States v. Brown, 367 F.3d 549, 556

(6th Cir. 2004) (citing United States v. Webb, 335 F.3d 534, 538 (6th Cir. 2003)).

       Heighton received a two-level increase under U.S.S.G. § 3C1.1 for obstruction of justice after

willfully failing to appear at his November 30, 2006, final pretrial conference. Given the inherent

paradox in imposing a penalty for failing to appear while simultaneously conferring a benefit for

accepting responsibility for one’s actions, we have held that a two-level reduction for acceptance of

responsibility under § 3E1.1 may be applied only under extraordinary circumstances when a two-

level enhancement under § 3C1.1 has already been imposed. United States v. Angel, 355 F.3d 462,

477 (6th Cir. 2004); see also U.S.S.G. § 3E1.1, cmt. n.4. The defendant bears the burden of

demonstrating that he has accepted responsibility for his criminal conduct, United States v. Paulette,


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United States v. Heighton


457 F.3d 601, 608 (6th Cir. 2006), and also bears the burden of demonstrating that his case is

sufficiently extraordinary to support the imposition of both § 3C1.1 and § 3E1.1. Angel, 355 F.3d

at 477. Here, Heighton has not satisfied this burden, and, moreover, the record reveals that he was

largely uncooperative with the government, providing little information and consistently minimizing

his criminal conduct. We therefore conclude that it was not clear error for the district court to deny

Heighton’s request for a reduction pursuant to U.S.S.G. § 3E1.1.

                                                 IV.

       For these reasons, we affirm defendant’s sentence.




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