           Case: 13-13163   Date Filed: 04/23/2014   Page: 1 of 10




                                                          [DO NOT PUBLISH]



             IN THE UNITED STATES COURT OF APPEALS

                     FOR THE ELEVENTH CIRCUIT
                       ________________________

                             No. 13-13163
                         Non-Argument Calendar
                       ________________________

                D.C. Docket No. 1:12-cr-00283-CAP-ECS-1



UNITED STATES OF AMERICA,

                                                               Plaintiff-Appellee,

                                  versus

CHESTER EUGENE WEST,

                                                          Defendant-Appellant.

                       ________________________

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

                              (April 23, 2014)

Before TJOFLAT, HULL and JORDAN, Circuit Judges.

PER CURIAM:
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       After pleading guilty, Chester West appeals his total 188-month sentence for

four counts of being a felon in possession of a firearm, in violation of 18 U.S.C.

§ 922(g); three counts of possessing, selling, or disposing of a stolen firearm, in

violation of § 922(j); three counts of distributing cocaine, in violation of 21 U.S.C.

§ 841(a)(1) and (b)(1)(C); and three counts of distributing less than 50 kilograms

of marijuana, in violation of § 841(a)(1) and (b)(1)(D). West’s plea came after law

enforcement conducted a six-month undercover operation, in which officers

purchased illegal drugs and guns from West on several occasions. On appeal,

West asserts that: (1) the district court erroneously applied sentencing

enhancements under U.S.S.G. § 2K2.1(b)(5), for defendants who engage in the

trafficking of firearms, and § 2K2.1(b)(6)(B), for defendants who use or possess a

firearm in connection with another felony; and (2) his 188-month sentence is

substantively unreasonable. After review, we affirm.

                     I. FIREARM TRAFFICKING INCREASE

       West argues that the district court erroneously applied the trafficking

increase under § 2K2.1(b)(5).1 For firearm-possession offenders like West, the

guidelines provide for a four-level increase in the offense level if the defendant

“engaged in the trafficking of firearms.” U.S.S.G. § 2K2.1(b)(5). For our

purposes, the four-level increase applies if the defendant: (1) intentionally

       1
        We review the district court’s findings of fact for clear error and the application of the
guidelines to those facts de novo. United States v. Elliot, 732 F.3d 1307, 1310 (11th Cir. 2013).
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transferred “two or more firearms to another individual”; and (2) “had reason to

believe that such conduct would result in the transport, transfer, or disposal of a

firearm to an individual . . . who intended to use or dispose of the firearm

unlawfully.” Id. § 2K2.1, cmt. n.13(A)(i), (ii)(II).

      Here, the district court did not err in applying the trafficking increase. Based

on the undisputed facts in the presentence investigation report, the testimony of the

undercover officers, and video recordings of the transactions: (1) West sold a total

of seven guns to the undercover officers over several transactions; (2) the

undercover officers told West that they intended to re-sell the guns “up north” in

the New York area at double the price they paid West; (3) one of the undercover

officers later told West that he made $800 selling a 9mm pistol that he had

purchased from West for $275; (4) the undercover officers sought and purchased

guns, such as assault rifles and handguns, designed for use on humans, not for

hunting; (5) one undercover officer asked West about the serial numbers on the

guns, and, when West indicated the guns were stolen, the officer told West that the

officer would have to “do some work” to the guns, meaning he would have to

obliterate the serial numbers; and (6) West was careful not to handle the guns with

his bare hands and wiped the guns off before giving them to the undercover

officers. This evidence supports the district court’s finding by a preponderance of

the evidence that West sold “two or more” guns to the undercover officers and that


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West “had reason to believe” that the undercover officers would take the guns to

the New York area and resell them to individuals who would dispose of or use

them illegally.

      West argues that the undercover officer’s statement about having to “do

some work” on the guns was ambiguous and could mean something other than

obliterating the serial numbers. However, the undercover officer’s comment came

right after he asked West about serial numbers and West responded that the guns

were “hot,” or stolen. Furthermore, at the sentencing hearing, the undercover

officer testified that West appeared to understand that the undercover officer meant

he would need to obliterate the serial numbers so law enforcement could not

discover that the guns had been reported stolen. Given the context of the

undercover officer’s statement and his hearing testimony, the district court did not

commit clear error in concluding that West believed that the undercover officer

intended to obliterate the serial numbers. See United States v. Ndiaye, 434 F.3d

1270, 1305 (11th Cir. 2006) (explaining that “the district court’s choice between

permissible views [of the evidence] cannot be clear error”).

           II. FIREARM “IN CONNECTION WITH” INCREASE

      West argues that the district court committed clear error in finding that the

guns involved in his firearm-related offenses facilitated his drug-related offenses




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and thus erred in applying the “in connection with” sentencing increase under

§ 2K2.1(b)(6)(B).

      Under § 2K2.2(b)(6)(B), a defendant’s offense level is increased by four

levels if he “[u]sed 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.” U.S.S.G. § 2K2.1(b)(6)(B) (emphasis

added). The four-level “in connection with” increase applies if the gun

“facilitated, or had the potential of facilitating, another felony offense.” U.S.S.G.

§ 2K2.1, cmt. n.14(A) (emphasis added).

      “[I]n the case of a drug trafficking offense in which a firearm is found in

close proximity to drugs,” the § 2K2.1(b)(6)(B) increase “is warranted because the

presence of the firearm has the potential of facilitating another felony offense.” Id.

§ 2K2.1, cmt. n.14(B); see United States v. Carillo-Ayala, 713 F.3d 82, 88, 92

(11th Cir. 2013) (explaining that under Application Note 14 to § 2K2.1 and our

precedent interpreting the “in connection with” phrase, “[a] firearm found in close

proximity to drugs or drug-related items simply ‘has’–without any requirement for

additional evidence–the potential to facilitate the drug offense”).

      Here, the record established that during two of the firearm transactions with

the undercover officers, West had both a gun and drugs on his person. Further, as


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the district court concluded, West’s possession and sale of the guns incentivized

West’s drug dealing. Specifically, West, believing that the undercover officers

were both gun dealers and drug dealers, twice sold the officers drugs and guns

together in the same transaction. On multiple occasions, West negotiated gun and

drug deals together in the same conversation or negotiated gun sales during drug

transactions or vice versa. The fact that West handed over one of the guns before

handing over the drugs does not show that the two transactions were not in

connection with each other.

      West argues that one of the guns was unloaded. Neither this Court’s

precedent nor the guidelines require the gun to be loaded, and, in fact, the increase

applies even where the defendant possessed only ammunition and no gun with

which to fire it. See U.S.S.G. § 2K2.1(b)(6)(B); United States v. Rhind, 289 F.3d

690, 695 (11th Cir. 2002) (“We know of no requirement that the firearms be

loaded or operable to meet the ‘in connection with’ requirement.”).

      In any event, West does not dispute that, on one occasion, he carried a

loaded gun and drugs and that, on the other occasion, when he carried an unloaded

gun and drugs, he also carried a magazine for the gun. Given the record facts, the

district court did not clearly err in finding that West possessed the guns “in

connection with” his drug trafficking offenses and properly applied

§ 2K2.2(b)(6)’s four-level increase.


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                      III. SUBSTANTIVE REASONABLENESS

       We review the reasonableness of a sentence for an abuse of discretion using

a two-step process. United States v. Pugh, 515 F.3d 1179, 1190 (11th Cir. 2008).

We look first at whether the district court committed any significant procedural

error and then at whether, in light of the totality of the circumstances, the sentence

is substantively unreasonable under the 18 U.S.C. § 3553(a) factors.2 Id. We

ordinarily expect a sentence imposed within the advisory guidelines range to be

reasonable. United States v. Hunt, 526 F.3d 739, 746 (11th Cir. 2008). The

defendant bears the burden to show his sentence is unreasonable in light of the

record and the § 3553(a) factors. 3 United States v. Thomas, 446 F.3d 1348, 1351

(11th Cir. 2006).

       West has not met his burden to show his sentence is substantively

unreasonable. West’s 188-month sentence is at the low end of the advisory

guidelines range of 188 to 235 months and almost five years below his highest

statutory maximum of twenty years under 21 U.S.C. § 841(b)(1)(C) for his three


       2
        Except for the two offense-level calculations addressed above, West does not raise any
other procedural errors in his sentence.
       3
         The § 3553(a) factors include: (1) the nature and circumstances of the offense and the
history and characteristics of the defendant; (2) the need to reflect the seriousness of the offense,
to promote respect for the law, and to provide just punishment for the offense; (3) the need for
deterrence; (4) the need to protect the public; (5) the need to provide the defendant with needed
educational or vocational training or medical care; (6) the kinds of sentences available; (7) the
Sentencing Guidelines range; (8) pertinent policy statements of the Sentencing Commission; (9)
the need to avoid unwarranted sentencing disparities; and (10) the need to provide restitution to
victims. 18 U.S.C. § 3553(a).
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cocaine trafficking offenses, both indications the sentence is reasonable. See Hunt,

526 F.3d at 746; United States v. McKinley, 732 F.3d 1291, 1299 (11th Cir. 2013).

Moreover, West pled guilty to 13 counts involving serious charges of dealing in

drugs and stolen guns and faced a possible 145-year prison term if his statutory

maximum sentences were run consecutively.

      The district court stated that it based West’s 188-month sentence primarily

on West’s extensive criminal history, which showed that West would continue to

engage in illegal activity unless incarcerated. Excluding the instant offenses,

West’s criminal history included nine drug- or property-related offenses since

2003. West’s probation was revoked numerous times, and he was on probation for

four prior convictions when he committed the instant offenses. Under the

circumstances, we cannot say the district court abused its discretion when it

concluded that a 188-month sentence, at the bottom of the advisory guidelines

range, was necessary to provide just punishment, promote respect for the law, deter

West and others from future criminal conduct, and protect the public from West’s

future crimes.

      West contends that the district court should have varied downward due to

the undercover officers’ sentencing factor manipulation. West claims that he was

merely a low-level street dealer and that the undercover officers asked him to

obtain guns to increase his sentence.


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      To show sentencing factor manipulation that will reduce a defendant’s

sentence, “the government must engage in extraordinary misconduct.” United

States v. Haile, 685 F.3d 1211, 1223 (11th Cir. 2012) (quotation marks omitted).

In Haile, we concluded that the fact that agents initiated conversations about guns

did not constitute sentencing factor manipulation because the defendant readily

agreed to supply guns and brought them to the transaction. Id.

      Here, the record does not show government misconduct, much less

extraordinary misconduct. Rather, West readily agreed to sell guns. In fact, even

before the undercover operation began, West told a confidential source that he

could sell guns as well as drugs and offered to sell two guns to the confidential

source. Then, when the confidential source introduced the undercover officers to

West, West agreed to sell both drugs and guns in the same transaction and did not

express any discomfort with the idea.

      Before ever purchasing a gun from West, one of the undercover officers

informed West that he trafficked in guns to the northern part of the country to sell

them at inflated prices. After this conversation, West agreed to secure guns for the

undercover officer and continued to offer guns to him after the first sale. When the

undercover officer told West that he had resold the first gun he purchased from

West for over twice what he paid for it, West laughed and continued to negotiate

the sale of more guns to the undercover officer. Finally, when the undercover


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officer told West that he needed a larger number of guns to take up north to sell

and make a profit, West did not hesitate to provide four guns. Because West

agreed without reservation to engage in the conduct that resulted in his sentencing

enhancements, the district court did not abuse its discretion in declining to reduce

West’s sentence based on alleged sentencing factor manipulation.

      AFFIRMED.




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