                         NOT RECOMMENDED FOR PUBLICATION
                                File Name: 18a0129n.06

                                           No. 17-1817


                          UNITED STATES COURT OF APPEALS
                               FOR THE SIXTH CIRCUIT
                                                                                       FILED
UNITED STATES OF AMERICA,                                )                       Mar 14, 2018
                                                         )                   DEBORAH S. HUNT, Clerk
       Plaintiff-Appellee,                               )
                                                         )
                                                                ON APPEAL FROM THE
v.                                                       )
                                                                UNITED STATES DISTRICT
                                                         )
                                                                COURT FOR THE WESTERN
BRANDON LE SMITH,                                        )
                                                                DISTRICT OF MICHIGAN
                                                         )
       Defendant-Appellant.                              )
                                                         )



BEFORE:        GILMAN, ROGERS, and STRANCH, Circuit Judges.

       ROGERS, Circuit Judge. Convicted on a guilty plea of possessing and intending to

distribute 28 grams or more of cocaine base, Brandon Smith argues on appeal that the district

court erred in applying the two-point possession-of-firearm sentencing enhancement, which

applies “[i]f a dangerous weapon (including a firearm) was possessed.” U.S.S.G. § 2D1.1(b)(1).

Smith argues that the firearm in question was not sufficiently connected to his offense because

he possessed and sold drugs in his apartment while the firearm sat in a locked box in the trunk of

his car. However, the district court did not clearly err in finding a sufficient connection, where,

among other things, officers observed Smith driving the car to a known drug-trafficking house

and found the box for the gun inside Smith’s apartment along with cocaine base, and where

Smith admitted to cooking up cocaine base at his apartment while the car containing the gun was

parked outside.
No. 17-1817, United States v. Smith


        Smith sold cocaine base to a confidential informant on November 23, 2016, and again on

December 13, 2016. Between those two sales, law enforcement observed Smith driving his car

on November 26.        On December 14, 2016, police executed a search warrant of Smith’s

residence. Inside Smith’s apartment they found cocaine base, .22-caliber ammunition, and the

box and receipt for a Taurus .45-caliber handgun. The police subsequently searched Smith’s car

and found the matching Taurus handgun. The serial number on the gun, which was found loaded

and next to twenty rounds of .45-caliber ammunition, had been obliterated. After waiving his

Miranda rights, Smith admitted that these items belonged to him and stated that the gun “was

just there for protection.”

        On January 10, 2017, a grand jury indicted Smith on one count of possessing with intent

to distribute 28 grams or more of cocaine base, in violation of 21 U.S.C. §§ 841(a)(1)

& (b)(1)(B)(iii), one count of being a felon in possession of a firearm and ammunition, in

violation of 18 U.S.C. § 922(g)(1), and one count of possessing a firearm with an obliterated

serial number, in violation of 18 U.S.C. § 922(k).

        Smith pleaded guilty to the drug charge. At sentencing, the district court applied the two-

level possession-of-firearm enhancement. Recognizing that Smith did not dispute that he had

possessed the firearm, the court found that Smith had not shown a clear improbability that the

gun was connected to the crime because of the gun’s “close proximity” to Smith’s drug

trafficking. In making that determination, the court relied on evidence that: Smith had sold

cocaine base to a confidential informant both before and after he was observed driving the car in

which the gun was found; Smith was the primary driver of the car; Smith was aware of the gun

safe in the car containing the gun; the gun’s serial number was obliterated; and the ammunition

for a different firearm was found in Smith’s apartment inside a safe containing cocaine base.



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No. 17-1817, United States v. Smith


           On appeal, Smith now argues that the two-point enhancement should not apply because

the gun was not present during the drug trafficking and was not connected to his crime, but these

arguments do not warrant reversal. Smith waived appellate review of the district court’s finding

that the gun was present, and the court did not clearly err by determining that Smith had failed to

demonstrate that it was “clearly improbable” that the gun was connected to his crime.

           First, Smith waived his right to appeal the issue of whether the gun was present. Under

the terms of Smith’s plea agreement, he waived his right to appeal except under certain

circumstances, including where “the district court incorrectly determined the Sentencing

Guidelines range, if the defendant objected at sentencing on that basis.”1 Not only did Smith fail

to object on this basis, he affirmatively conceded the point at his sentencing hearing:

                 THE COURT: [L]et me hear you on your objection to the gun
           enhancement.
                   MS. NIEUWENHUIS [SMITH’S COUNSEL]: . . . [T]he defense is
           asking the Court to look at this and perhaps not score the two points. I don’t think
           there’s an issue as to whether or not the firearm was possessed. We are really
           arguing whether or not it was in conjunction with drug trafficking, and I tried to
           make it clear in our sentencing memorandum. [Emphasis added.]

What is more, Smith failed to object to—or protest in any way—the district court’s shifting of

the burden to him,2 which further supports our conclusion that he has waived review of this

issue. Because Smith affirmatively conceded possession and failed to object to the application of




1
  Smith does not argue that that the plea agreement was invalid, nor does he claim to have entered into the
agreement unknowingly or involuntarily.
2
    At Smith’s sentencing hearing, the following exchange occurred without any objection by Smith:
                    [THE GOVERNMENT]: It’s probably worth starting out by pointing out that the
           standard here is slightly different than the normal preponderance standard.
                    THE COURT: Yeah. The burden really is on [Smith] now.
                    [THE GOVERNMENT]: It is. Once it’s been demonstrated by a preponderance that the
           defendant possessed a firearm, and I think that the defendant concedes that, then it falls to the
           defendant to show that it was clearly improbable that the weapon was connected to the crime in
           order to avoid the enhancement.

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No. 17-1817, United States v. Smith


the enhancement on the basis that the gun was not present, he cannot now make that argument on

appeal.

          Second, the district court did not err by applying the enhancement because Smith failed

to demonstrate that it was clearly improbable that the weapon was connected with his drug

offense. Because the government demonstrated—and Smith conceded—that Smith possessed

the gun, “the burden then shift[ed] to [Smith] to show that it was clearly improbable that the

weapon was connected with [his] crime.” United States v. Darwich, 337 F.3d 645, 665 (6th Cir.

2003) (internal quotation marks omitted) (quoting United States v. Hough, 276 F.3d 884, 894

(6th Cir. 2002)); see also United States v. Miggins, 302 F.3d 384, 390–91 (6th Cir. 2016); United

States v. Penaloza, 648 F. App’x 508, 518 (6th Cir. 2016).

          It was not clear error for the district court to conclude that Smith had not met his burden.

The record shows several ways that the gun was connected to Smith’s drug trafficking. Law

enforcement observed Smith driving to and entering a house known for drug trafficking. The

gun was in the trunk of Smith’s car parked outside of his apartment, in which Smith admitted to

having cooked up cocaine base just before police executed the search warrant. Smith was the

regular driver of the car and was aware of the loaded gun’s presence in the car. Smith admitted

that he owned the gun, and provided no explanation for the gun’s obliterated serial number.

Smith had been in possession of the gun since the summer of 2016, a timeframe that

encompasses the controlled drug purchases. Smith has never claimed that the gun was not in the

car during any relevant period. The box for the gun was found inside Smith’s apartment in close

proximity to the seized cocaine base and currency. Taking these facts together, the district court

found that Smith had not shown that it was clearly improbable the gun was related to his drug

offense. That finding was not clearly erroneous.



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No. 17-1817, United States v. Smith


       For Smith’s argument to succeed, he must show that the district court was clearly

erroneous to conclude that it was not clearly improbable that the gun was connected to his

offense. That is a high burden and, in light of the facts mentioned above, Smith has not met it.

In examining the probability of a connection, we weigh several factors, including:

       (1) the type of firearm involved; (2) the accessibility of the weapon to the
       defendant; (3) the presence of ammunition; (4) the proximity of the weapon to
       illicit drugs, proceeds, or paraphernalia; (5) the defendant’s evidence concerning
       the use of the weapon; and (6) whether the defendant was actually engaged in
       drug-trafficking, rather than mere manufacturing or possession.

United States v. Pryor, 842 F.3d 441, 453 (6th Cir. 2016) (quoting United States v. Greeno,

679 F.3d 510, 515 (6th Cir. 2012)). Here, the weapon was a Taurus .45-caliber handgun, and

“not an antique musket or hunting rifle that might be impractical in connection with drug

trafficking,” as was the case in Pryor, 842 F.3d at 453. The gun was loaded, and additional

ammunition for that gun was present in the trunk of the car. Although the gun sat in a car parked

outside of Smith’s apartment, Smith could access the gun. In United States v. Snyder, 913 F.2d

300 (6th Cir. 1990), we held that, because the defendant’s two handguns—which were found in

the defendant’s nightstand, while evidence of the drug offense was found in his basement—could

have facilitated drug transactions, it was not clearly improbable that the firearms were connected

to the drug offense at issue. Id. at 304. We also noted in United States v. Faison, 339 F.3d 518

(6th Cir. 2003), that, because the Sentencing Commission removed the restriction that a

dangerous weapon be possessed during the commission of the offense of conviction, the weapon

need only “be possessed during ‘relevant conduct,’” as defined by U.S.S.G. § 1B1.3(a)(2). Id. at

520. The guidelines broadly define “[r]elevant conduct” as “all acts and omissions . . . that were

part of the same course of conduct or common scheme or plan as the offense of conviction.”

U.S.S.G. § 1B1.3(a)(2). Because the gun was a handgun, kept loaded and in the immediate

vicinity while Smith was cooking cocaine base, he has not shown a clear improbability that it
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No. 17-1817, United States v. Smith


was connected to his drug trafficking. The district court’s conclusion was therefore not clearly

erroneous.

       Smith’s arguments to the contrary are unavailing. He argues that, although his gun was

in the car, he did not use the car for drug trafficking. But the mere fact that Smith was not

observed making drug transactions out of his vehicle does not mean that the district court clearly

erred in determining that the gun’s presence in the car sufficiently connected the weapon to the

drug-trafficking offense. Smith drove that car to a known drug-trafficking house, and he bore

the burden to show that his primary mode of transportation was not involved in his drug-

trafficking activities, which he has not done. Similarly, the fact that Smith cited personal

protection, rather than drug trafficking, as his reason for having the gun in his car, does little to

help his case. Just because Smith might have used the gun for protection does not mean that the

gun was not also connected to drug trafficking. As the district court noted, “one of the reasons

[Smith] has to protect himself is because he’s engaged in drug dealing, which is also very

violent.” All told, Smith’s arguments do not undermine the district court’s conclusion that he

failed to show that it was clearly improbable that his gun was connected to his drug-trafficking

offense.

       For these reasons, the district court did not err in applying the two-point possession-of-

firearm enhancement. We affirm.




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