           Case: 17-13587   Date Filed: 07/03/2018   Page: 1 of 5


                                                        [DO NOT PUBLISH]



            IN THE UNITED STATES COURT OF APPEALS

                     FOR THE ELEVENTH CIRCUIT
                       ________________________

                             No. 17-13587
                         Non-Argument Calendar
                       ________________________

               D.C. Docket No. 2:14-cr-00014-RWS-JCF-1

UNITED STATES OF AMERICA,

                                                               Plaintiff-Appellee,


                                  versus


STACEY C. MALOCH,

                                                         Defendant-Appellant.

                       ________________________

                Appeal from the United States District Court
                   for the Northern District of Georgia
                      ________________________

                               (July 3, 2018)

Before WILSON, MARTIN, and BRANCH, Circuit Judges.

PER CURIAM:
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      Stacey Maloch appeals her 60-month sentence following her conviction for

possession with intent to distribute 50 grams or more of methamphetamine, in

violation of 21 U.S.C. §§ 841(a) and (b)(1)(B). On appeal, she argues that the

district court clearly erred when it applied a two-level firearm enhancement under

U.S.S.G. § 2D1.1(b)(1) to her sentence based on a stolen, unloaded gun found on

the scene. The government counters that Maloch invited any error that occurred,

and that even if she did not, applying the enhancement was not clearly erroneous.

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

                                          I.

      A district court’s findings of fact under § 2D1.1(b)(1) are reviewed for clear

error, while the application of those facts to the Sentencing Guidelines is reviewed

de novo. United States v. Pham, 463 F.3d 1239, 1245 (11th Cir. 2006) (per

curiam). However, we cannot review or reverse challenges where invited error

exists. United States v. Love, 449 F.3d 1154, 1157 (11th Cir. 2006) (per curiam).

A party invites error when a party’s statements or actions induce the district court

into making an error. Id. We have applied the doctrine where the party

affirmatively requested or specifically agreed with the challenged action of the

district court. See United States v. Silvestri, 409 F.3d 1311, 1337 (11th Cir. 2005).

                                          II.




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      Under § 2D1.1(b)(1), a defendant may receive a two-level enhancement if a

firearm, or dangerous weapon, was possessed in connection with a drug trafficking

crime. U.S.S.G. § 2D1.1(b)(1). In order to justify the enhancement, the

government must establish by a preponderance of the evidence that the firearm was

either (1) present at the site of the charged offense or (2) possessed by the

defendant during conduct associated with the offense. United States v. Stallings,

463 F.3d 1218, 1220 (11th Cir. 2006). Further, the applicable guideline

commentary explains that the “enhancement should be applied if the weapon was

present, unless it is clearly improbable that the weapon was connected with the

offense. For example, the enhancement would not be applied if the defendant,

arrested at [his] residence, had an unloaded hunting rifle in the closet.” U.S.S.G.

§ 2D1.1 cmt. n.11(A) (emphasis added). And if the government successfully

meets that initial burden to justify the enhancement, the burden shifts to the

defendant to show that a connection between the weapon and the offense was

“clearly improbable.” Stallings, 463 F.3d at 1220.

      We have held that a weapon may be “present” at the site of the charged

conduct even if it is not in the same room where the offense conduct occurred, as

long as it is at the same general location. See United States v. George, 872 F.3d

1197, 1204–05 (11th Cir. 2017). We have also held that an unloaded gun does not




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per se defeat application of the enhancement. See Pham, 463 F.3d at 1241, 1245–

46.

                                         III.

      As an initial matter, our review is not precluded by the doctrine of invited

error. Although Maloch acknowledged that the objection to the firearm

enhancement was likely moot, the objection was not withdrawn; rather, it was still

made and argued. Therefore, Maloch did not invite any error. See Love, 449 F.3d

at 1157; Silvestri, 409 F.3d at 1337.

      Be that as it may, the district court did not clearly err in imposing the

enhancement under § 2D1.1(b)(1). Maloch conceded that the weapon was present

in the same house as the methamphetamine, and thus, the government met its

initial burden of showing that the firearm was present at the site of the charged

conduct. See Stallings, 463 F.3d at 1220; George, 872 F.3d at 1204–05. The

burden then shifted to Maloch to show that it was clearly improbable that there was

a connection between the weapon and the offense; this burden was not met. Id.

Although the stolen semiautomatic pistol was unloaded, and there was no

ammunition at the scene, that does not automatically defeat application of the

enhancement. See Pham, 463 F.3d at 1241, 1245–46. Furthermore, the situation

here is distinct from the one described in the guideline application—it is not clearly

improbable that a stolen semiautomatic pistol is connected to a crime, as opposed


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to an ordinary hunting rifle found at a residence. See U.S.S.G. § 2D1.1 cmt.

n.11(A). Accordingly, we affirm.

      AFFIRMED.




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