                                                                                 FILED
                                                                     United States Court of Appeals
                      UNITED STATES COURT OF APPEALS                         Tenth Circuit

                             FOR THE TENTH CIRCUIT                          March 29, 2018
                         _________________________________
                                                                         Elisabeth A. Shumaker
                                                                             Clerk of Court
UNITED STATES OF AMERICA,

      Plaintiff - Appellee,

v.                                                          No. 17-7036
                                                 (D.C. No. 6:16-CR-00095-RAW-1)
STEVE EARL PERRY, JR.,                                      (E.D. Okla.)

      Defendant - Appellant.
                      _________________________________

                             ORDER AND JUDGMENT*
                         _________________________________

Before BACHARACH, MURPHY, and MORITZ, Circuit Judges.
                 _________________________________

      Steve Perry appeals his four-level sentencing enhancement under U.S.S.G.

§ 2K2.1(b)(6)(B). We affirm.

      This appeal arises out of a car chase through a residential neighborhood in

Okmulgee, Oklahoma. The chase began when Perry and Michael Snyder—a district

attorney investigator—passed each other while driving in opposite directions on the

same street. Snyder recognized Perry from prior encounters with law enforcement

and saw that Perry’s front-seat passenger—Jeremiah Williams—wasn’t wearing a

      *
        After examining the briefs and appellate record, this panel has determined
unanimously to honor the parties’ request for a decision on the briefs without oral
argument. See Fed. R. App. P. 34(f); 10th Cir. R. 34.1(G). The case is therefore
submitted without oral argument. This order and judgment isn’t binding precedent,
except under the doctrines of law of the case, res judicata, and collateral estoppel.
But it may be cited for its persuasive value. See Fed. R. App. P. 32.1; 10th Cir. R.
32.1.
seatbelt. Snyder made a U-turn and activated his car’s lights and siren. Perry drove

away, speeding upwards of 50 miles per hour. Perry eventually stopped, and he and

Williams fled on foot in opposite directions.

       Snyder pursued Perry on foot. After running into the woods, Perry tripped and

fell to the ground. Snyder told Perry to put his hands up. Perry raised his left hand in

the air but reached his right hand into his waistband. Snyder demanded again that

Perry place both hands in the air. This time, Perry fully complied and Snyder took

him into custody. As Perry stood up, a loaded “Glock pistol fell from his pants.” R.

vol. 2, 39.

       The government charged Perry with one count of being a felon in possession

of a firearm and ammunition. Perry pleaded guilty. Prior to sentencing, the United

States Probation Office recommend a four-point offense-level enhancement under

§ 2K2.1(b)(6)(B) for using or possessing a firearm in connection with another

felony—specifically, endangering others while eluding a police officer in violation of

Oklahoma law. See Okla. Stat. tit. 21, § 540A(B). Perry objected to the enhancement,

arguing there was insufficient evidence to support it.1 The district court then

conducted a sentencing hearing and took testimony from Snyder and Williams. It

ultimately overruled Perry’s objection and applied the four-level enhancement. Perry

appeals.



       1
        Perry also argued that the four-level enhancement only applies to felony
offenses and the crime of eluding could be a misdemeanor offense under Oklahoma
law. He expressly waives that argument on appeal.
                                            2
      When a district court applies a sentencing enhancement, we review its factual

findings for clear error. United States v. Brown, 314 F.3d 1216, 1222 (10th Cir.

2003). In doing so, “[w]e view the evidence and inferences therefrom in the light

most favorable to the district court’s determination.” Id.

      A four-level enhancement is appropriate if the defendant “used or possessed

any firearm or ammunition in connection with another felony offense; or possessed or

transferred any firearm or ammunition with knowledge, intent, or reason to believe

that it would be used or possessed in connection with another felony offense.”

§ 2K2.1(b)(6)(B). The Guidelines’ commentary clarifies that § 2K2.1(b)(6)(B)

applies if the firearm or ammunition “facilitated, or had the potential of facilitating”

another felony offense. Id. at cmt. n.14(A). And it defines “another felony offense” as

“any Federal, state, or local offense, other than the explosive or firearms possession

or trafficking offense, punishable by imprisonment for a term exceeding one year,

regardless of whether a criminal charge was brought, or a conviction obtained.” Id. at

cmt. n.14(C). Here, the district court applied the four-level enhancement because

Perry possessed a firearm in connection with endangering others while eluding a

police officer—a felony under Oklahoma law. See § 540A(B).

      Perry argues that there was no evidence the firearm facilitated or had the

potential of facilitating his offense for eluding. He points out that under Oklahoma

law, an individual can only endanger others while eluding a police officer if he or she

is driving a motor vehicle. And, he alleges, the district court applied the enhancement

solely because he possessed the firearm after he exited the car. Thus, he says, the

                                            3
district court erroneously based the enhancement on the fact that he used a firearm to

facilitate a non-felonious escape.

      We disagree. Section 2K2.1(b)(6)(B) doesn’t require evidence that the firearm

actually facilitated the other felony offense; it only requires that the firearm had the

potential to facilitate the other felony offense. And although the district court didn’t

explicitly say that Perry possessed the firearm during the car chase, we “view the

evidence and inferences therefrom in the light most favorable to the district court’s

determination.” Brown, 314 F.3d at 1222; see also United States v. McCane, 573

F.3d 1037, 1040 (10th Cir. 2009) (declaring we “may affirm the district court on any

basis supported by the record”). Because Perry possessed the firearm in the woods,

we can infer that he possessed the firearm (1) when he ran from his car, and (2)

during the car chase. The only alternative is that he found a loaded firearm while

running away from Snyder. And if Perry possessed the firearm during the car chase,

then the firearm had the potential to facilitate the felony of endangering others while

eluding a police officer. See United States v. Justice, 679 F.3d 1251, 1255 (10th Cir.

2012) (ruling that “possession of a firearm may facilitate an offense by emboldening

the possessor to commit the offense”).

      Next, Perry argues that even if we conclude he possessed the firearm in his

car, that possession could have been coincidental and unrelated to endangering others

while eluding a police officer—rendering the enhancement inapplicable. See United

States v. Gomez-Arrellano, 5 F.3d 464, 466–67 (10th Cir. 1993) (concluding that 18



                                            4
U.S.C. § 924(c)(1) isn’t satisfied if defendant’s possession of weapon “is coincidental

or entirely unrelated to the [drug] offense”).

       Perry contends that because the district court didn’t determine whether he

coincidentally possessed the firearm in the car, we can’t undertake that factual

analysis on appeal. This argument is unavailing. Our standard of review allows us to

“view the evidence and inferences therefrom in the light most favorable to the district

court’s determination.” Brown, 314 F.3d at 1222; see McCane, 573 F.3d at 1040

(declaring we “may affirm the district court on any basis supported by the record”).

And the facts of this case allow us to infer that Perry didn’t coincidentally possess a

loaded firearm while driving away from a police car at upwards of 50 miles per hour

in a residential neighborhood. He reached for the loaded firearm—albeit after he

exited the car—when he tripped in the woods. This demonstrates his willingness to

use the firearm against Snyder to facilitate his escape. We can infer from this that he

would have been willing to use the firearm during the car chase if the need and

opportunity arose. Therefore, the firearm’s presence in the car wasn’t coincidental.

Rather, it had the potential to facilitate the crime of endangering others while eluding

a police officer.

       Accordingly, we affirm.


                                            Entered for the Court


                                            Nancy L. Moritz
                                            Circuit Judge


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