                                                                        F I L E D
                                                                 United States Court of Appeals
                                                                         Tenth Circuit
                    UNITED STATES COURT OF APPEALS
                                                                          May 3, 2006
                                 TENTH CIRCUIT                        Elisabeth A. Shumaker
                                                                         Clerk of Court

 UNITED STATES OF AMERICA,

               Plaintiff - Appellee,                    No. 05-5093
          v.                                         (N.D. Oklahoma)
 JASON MYERS JORDAN,                              (D.C. No. 04-CR-197-P)

               Defendant - Appellant.


                            ORDER AND JUDGMENT *


Before TACHA, Chief Circuit Judge, ANDERSON and BALDOCK, Circuit
Judges.




      After examining the briefs and appellate record, this panel has determined

unanimously that oral argument would not materially assist in the determination

of this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is

therefore ordered submitted without oral argument.




      *
       This order and judgment is not binding precedent, except under the
doctrines of law of the case, res judicata, and collateral estoppel. The court
generally disfavors the citation of orders and judgments; nevertheless, an order
and judgment may be cited under the terms and conditions of 10th Cir. R. 36.3.
      Jason Myers Jordan pled guilty to two counts of possession of a firearm

after former conviction of a felony, in violation of 18 U.S.C. §§ 922(g)(1) and

924(a)(2). He was sentenced to 120 months’ imprisonment on each count, to be

served concurrently, followed by three years of supervised release. Jordan was

also fined $5,000. He appeals his sentence, which we affirm.



                                 BACKGROUND

      On October 21, 2004, police officers in Tulsa, Oklahoma, were executing a

search warrant at a residence when Jordan arrived and parked his pick-up truck

containing his five-year-old son in front of the residence. At that time, Jordan

was not a target of any police investigation, and the officers did not suspect he

was involved in any drug activity at the residence they were searching. An officer

talked to Jordan and obtained consent to search his truck. Jordan then fled the

scene on foot.

      The officers found a loaded .38 caliber firearm on the center console of

Jordan’s truck. Inside a black bag officers found a set of scales, a small spoon,

empty baggies, and cards on which were written what appeared to be notations of

drug transactions. Officers also found a plastic bindle containing “cut” 1 inside



      1
       “Cut” is a white powdery substance commonly used by drug dealers to
increase the weight, and hence the value, of drugs.

                                         -2-
the center console. They additionally found a metal tin containing rolling papers,

five empty plastic bindles, and eleven blue pills. The officers were unable to

apprehend Jordan. This incident formed the basis for count one of the indictment.

      On November 15, 2004, Tulsa police officers observed Jordan driving a

Mercury Mystique. After parking the car in a lot, Jordan and his passenger exited

the car. Jordan subsequently attempted to flee, presumably upon seeing the

police, but was arrested shortly thereafter. When Officer Todd Taylor searched

the Mercury Mystique, he found an SKS rifle in the front passenger seat and

another in the trunk. 2 He observed a .45 caliber handgun in plain view on the

center console, and a .357 magnum gun lodged between the passenger seat and the

center console. A black bag behind the driver’s seat contained thirty-four empty

baggies, two sets of digital scales, and a baggy containing “cut.” There was

methamphetamine residue on the scales. The officers also found two rolls of film

which, when developed, yielded three photographs of Jordan: one depicting

Jordan using a glass smoking device typical of methamphetamine use; one

depicting him holding a wad of twenty dollar bills; and one depicting him with a

weapon on his lap. Finally, officers found a notebook in the car’s back seat,




      2
       There is no challenge in this appeal to the validity of either search of the
vehicles in which Jordan was riding. As indicated, Jordan only challenges his
sentence.

                                         -3-
containing what appeared to be drug notations. This incident formed the basis for

count two of the indictment.

      In calculating Jordan’s sentence under the United States Sentencing

Commission, Guidelines Manual (“USSG”) (Nov. 2004), the presentence report

(“PSR”) prepared by the probation office applied USSG §2K2.1(b)(5), which

authorizes a four-level increase in the offense level “[i]f the defendant used or

possessed any firearm or ammunition in connection with another felony offense.”

Jordan objected to the enhancement under §2K2.1(b)(5), arguing there was

insufficient evidence to show that he possessed a controlled substance or was

involved in the distribution of a controlled substance.

      The district court held a sentencing hearing and the government presented

evidence in support of the enhancement. The officers involved in the October and

November incidents with Jordan testified as to what happened. The district court

overruled Jordan’s objection to the enhancement, finding:

             While the trace amount of drug residue found on the digital
      scales only supports a finding that the Defendant was engaged in the
      felony offense of Possession of a Controlled Substance at the time he
      was arrested on November 15th, 2004, the evidence presented by the
      Government in this case overwhelmingly supports the Court’s finding
      by clear and convincing evidence that the Defendant had, shortly
      prior to his arrest on November 15th, 2004 and prior to the search of
      his vehicle on October 21st, 2004, been engaged in the felony
      offense of Distribution of Controlled Substances. Specifically,
      during the search of Defendant’s vehicle on both occasions, officers
      recovered numerous plastic baggies and digital scales, which


                                         -4-
      experienced narcotic officers testified were used by drug dealers to
      weigh and repackage their products. . . .

              Further, on both occasions, officers recovered notations which
      they believe were consistent with drug notations[,] [i]n particular,
      . . . dollar amounts . . . consistent with . . . the sale of . . . one eighth
      ounce of drugs, and . . . consistent with the Defendant paying two
      hundred to two hundred and thirty dollars for an eight ball.

             Additionally, in the search of Defendant’s vehicle on
      November 15th, 2004, the Defendant was in possession of a powdery
      substance which was consistent with . . . cut . . . . Testimony also
      indicated the purpose of firearms and drug distribution crimes would
      be to intimidate those not paying or to provide protection to the drug
      dealers’ would-be thieves.

            Finally, undeveloped film which was seized from the
      Defendant’s vehicle on November 15th, 2004, was developed,
      [producing] three photographs . . . . One of those photographs
      depicts the Defendant with a wad of twenty dollar bills, even though
      the Defendant advised the probation officer compiling his [PSR] that
      he had not had a steady job since July of 2004. Another photograph
      depicts the Defendant smoking a meth pipe, and the third photograph
      depicts Defendant laying on a couch holding his weapon on his lap.

Am. Tr. of Sentencing Hr’g at 3-4, R. Vol. VI.

      Jordan argues this four-level increase was error, because the presence of

methamphetamine residue only, and the failure of the government to charge him

with possession of methamphetamine, prevents such possession from constituting

the “[]other felony offense,” and, further, there is insufficient evidence supporting

the conclusion that Jordan possessed a firearm in connection with drug

distribution, the “[]other felony offense.” Jordan thus argues his sentence should

be vacated and his case should be remanded for resentencing.

                                            -5-
                                  DISCUSSION

      Following the Supreme Court’s decision in United States v. Booker, 543

U.S. 220 (2005), the Guidelines are advisory. However, because sentencing

courts are still required to “consider” the properly-calculated Guidelines range,

United States v. Gonzalez-Huerta, 403 F.3d 727, 748-49 (10th Cir.) (en banc),

cert. denied, 126 S. Ct. 495 (2005), we continue to review the sentencing court’s

factual findings for clear error and its legal determinations de novo. United

States v. Serrata, 425 F.3d 886, 906 (10th Cir. 2005). We review for

reasonableness the ultimate sentence imposed. Booker, 543 U.S. at 261-62

(Breyer, J.). “[A] sentence that is properly calculated under the Guidelines is

entitled to a rebuttable presumption of reasonableness.” United States v. Kristl,

437 F.3d 1050, 1054 (10th Cir. 2006) (internal quotation omitted).

      We have recognized that, “[e]xcept for its plain language, §2K2.1(b)(5)

provides little guidance regarding the nexus required between firearm possession

and the felony offense.” United States v. Brown, 314 F.3d 1216, 1222 (10th Cir.

2003). While we have noted that judicial interpretations of 18 U.S.C. § 924(c)’s

“during and in relation to” requirement provide “some guidance” in construing

§2K2.1(b)(5)’s “in connection with” requirement, United States v. Gomez-

Arrellano, 5 F.3d 464, 466 (10th Cir. 1993), we have acknowledged that cases

interpreting § 924(c) do not control the interpretation of §2K2.1(b)(5). Brown,


                                        -6-
314 F.3d at 1222. Accordingly, we have generally concluded that “if the weapon

facilitated or had the potential to facilitate the underlying felony, then

enhancement under §2K2.1(b)(5) is appropriate.” Id. (further quotation omitted).

An enhancement under §2K2.1(b)(5) is inappropriate if “possession of the weapon

is coincidental or entirely unrelated to the offense.” Id.; see also United States v.

Taylor, 413 F.3d 1146, 1154 (10th Cir. 2005). We have further observed that

“[h]andguns are widely recognized as a tool of the drug dealers trade.

Accordingly, a weapon’s proximity to narcotics may be sufficient to provide the

nexus necessary to enhance a defendant’s sentence under §2K2.1(b)(5).” United

States v. Bunner, 134 F.3d 1000, 1006 (10th Cir. 1998) (citation omitted).

      After carefully reviewing the record in this case, we conclude that the

district court’s finding that the weapons in this case were possessed “in

connection with” the offense of drug distribution is not clearly erroneous. Indeed,

as the district court’s discussion of its denial of Jordan’s objection to the

§2K2.1(b)(5) enhancement indicates, the facts and circumstances amply support

the conclusion that the enhancement applies. We accordingly find no error in the

enhancement of Jordan’s sentence under §2K2.1(b)(5). 3




      3
       Jordan makes no other argument concerning his sentence, so we need not
address its reasonableness from any other perspective.

                                          -7-
                         CONCLUSION

For the foregoing reasons, Jordan’s sentence is AFFIRMED.

                                     ENTERED FOR THE COURT


                                     Stephen H. Anderson
                                     Circuit Judge




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