                             UNPUBLISHED

                    UNITED STATES COURT OF APPEALS
                        FOR THE FOURTH CIRCUIT


                             No. 06-4922



UNITED STATES OF AMERICA,

                                                Plaintiff - Appellee,

           versus


TERRELL DONNELL RANDOLPH,

                                               Defendant - Appellant.



Appeal from the United States District Court for the Eastern
District of Virginia, at Richmond.   Robert E. Payne, Senior
District Judge. (3:06-cr-00042-REP)


Argued:   November 2, 2007                 Decided:   January 17, 2008


Before NIEMEYER and KING, Circuit Judges, and James A. BEATY, Jr.,
Chief United States District Judge for the Middle District of North
Carolina, sitting by designation.


Affirmed by unpublished opinion. Chief District Judge Beaty wrote
the opinion, in which Judge Niemeyer and Judge King joined.


ARGUED: Robert James Wagner, Assistant Federal Public Defender,
OFFICE OF THE FEDERAL PUBLIC DEFENDER, Richmond, Virginia, for
Appellant. Richard Daniel Cooke, Special Assistant United States
Attorney, OFFICE OF THE UNITED STATES ATTORNEY, Richmond, Virginia,
for Appellee.   ON BRIEF: Michael S. Nachmanoff, Acting Federal
Public Defender, Alexandria, Virginia; Sapna Mirchandani, Research
and Writing Attorney, OFFICE OF THE FEDERAL PUBLIC DEFENDER,
Richmond, Virginia, for Appellant. Chuck Rosenberg, United States
Attorney, Alexandria, Virginia; Olivia N. Hawkins, Assistant United
States Attorney, OFFICE OF THE UNITED STATES ATTORNEY, Richmond,
Virginia, for Appellee.


Unpublished opinions are not binding precedent in this circuit.




                                2
BEATY, Chief District Judge:

          Defendant Terrell D. Randolph appeals his conviction and

sentence for conspiracy to distribute and possess with intent to

distribute ecstasy, possession with intent to distribute ecstasy,

and possession of a firearm by a convicted felon.                           On appeal,

Defendant contends that the district court erred in denying his

pretrial Motion to Suppress because the warrant authorizing the

search of his apartment was not supported by probable cause and

because the warrant application contained false or misleading

information. Defendant also contends that the district court erred

in    enhancing     his    sentence     for      possession     of   a     firearm   “in

connection with” another felony pursuant to section 2K2.1(b)(5) of

the United States Sentencing Guidelines.                    Finding no error, we

affirm.



                                         I.

          On December 8, 2005, law enforcement officers with the Central

Virginia       Narcotics    Task     Force       obtained   a   warrant      to   search

Defendant Randolph’s apartment at 5600 Petoskey Avenue, Apartment

E    in    Richmond,     Virginia.      Pursuant       to   the   search,     officers

discovered 102 ecstasy pills, a loaded 9mm pistol, additional

magazines and 9mm ammunition, and $3,635.34 in United States

currency, all located in Defendant’s bedroom.                     The loaded pistol

was       located   in    Defendant’s    dresser        drawer,      and    additional


                                             3
ammunition was located in another drawer in the same dresser.

Additional loaded magazine clips were located on the headboard of

the bed in Defendant’s bedroom, and $3,000.00 in cash was located

inside a pistol box in a safe under the bed.                  A second safe was

sitting    on   another    dresser       in    the    bedroom    and   contained

identification documents for Defendant, as well as 101 ecstasy

pills and $635.34 in cash, including $400 that was identified by

serial    numbers   as   being   money       used   earlier   that   day   by   law

enforcement officers to purchase ecstasy from a third party, Mr.

Jeffery B. Partin.        An additional ecstasy pill was found on the

floor in the bedroom.

     Officers with the Central Virginia Narcotics Task Force and

the Prince George County Police Department had been conducting an

ongoing investigation of Mr. Jeffery Partin since December 2004.

Officers arrested Mr. Partin on December 8, 2005 and then applied

for the warrant to search Defendant Randolph’s apartment.                       The

search warrant application included an affidavit by Detective

Shreves of the Central Virginia Narcotics Task Force recounting

information regarding Defendant Randolph that was obtained on three

primary occasions during the ongoing investigation of Mr. Partin.

First, the affidavit noted that on May 18, 2005, a police operative

attempted to purchase marijuana from Mr. Partin, and Mr. Partin

told the operative that he could also obtain ecstasy and that his

source of ecstasy was “outside” of the residence but did not have


                                         4
any ecstasy at that time.      According to the affidavit, officers

observed a blue Chevrolet minivan outside the residence at that

time, and a check of the minivan’s license plate number with the

Virginia Department of Motor Vehicles revealed that the minivan was

registered to Terrell Donnell Randolph at 5600 Petoskey Avenue

Apartment E in Richmond, Virginia.          The affidavit further noted

that officers were subsequently able to engage in a controlled

purchase from Mr. Partin on June 23, 2005 of 5 pills that were

confirmed to be 3,4-Methylenedioxyamphetamine (“MDA” or “ecstasy”).

     Second, the affidavit noted that on July 13, 2005, officers

conducted a controlled purchase of 20 ecstasy pills from Mr.

Partin, and after the purchase, Mr. Partin was followed to 5600

Petoskey Avenue, where Detective Bennett of the Prince George

County Police Department observed Mr. Partin meeting with Defendant

Randolph in a blue Chevrolet minivan in front of Apartment E.

According   to   the   affidavit,   after    meeting   with   Mr.   Partin,

Defendant Randolph entered Apartment E.        The affidavit noted that

Defendant Randolph was identified using a photograph obtained from

the Virginia Department of Motor Vehicles.

     Finally, the affidavit stated that on December 6, 2005, prior

to the final controlled purchase, officers conducted surveillance

of 5600 Petoskey Avenue, observed the blue Chevrolet minivan parked

in front of Apartment E, and confirmed that the vehicle was still

registered to Defendant Randolph.           Then, on December 8, 2005,


                                    5
police conducted another controlled purchase of 20 ecstasy pills

from Mr. Partin using $500 in pre-recorded bills.                 After the

purchase, Mr. Partin was again followed by surveillance officers

directly to 5600 Petoskey Avenue and was observed entering the

apartment complex.         Mr. Partin left after a short time and was

stopped by police, at which time he had only $100 of the pre-

recorded bills remaining in his possession. The affidavit detailed

all of this information in seven single-spaced paragraphs, and

noted that each of the controlled purchases with Mr. Partin “was

completed under direct police control and supervision.”            Based on

this information, the search warrant was granted and officers

conducted the search of Defendant’s apartment on December 8, 2005.

      After he was indicted, Defendant moved to suppress all of the

evidence found at his apartment pursuant to the search, including

the ecstasy, cash and handgun.       At the Motion to Suppress hearing,

the district court concluded that “the events of May 18, July 13

and   December   8   all   corroborate   and   reinforce   each   other   and

establish a pattern of behavior from which the magistrate could

conclude that Randolph was Partin’s source of ecstasy or at least

that Apartment E, 5600 Petoskey Avenue was the situs of the

contraband and the other things identified as items to be seized as

well as the $400.”         The District Court further noted that “the

magistrate had a substantial basis to support a finding of probable




                                     6
cause to issue a search warrant for 5600 Petoskey Avenue, Apartment

E.”   Therefore, the district court denied the motion to suppress.1

      At the Motion to Suppress hearing before the district court,

Defendant also argued that the affidavit falsely stated that after

the controlled buy on December 8, Mr. Partin proceeded “directly”

to 5600 Petoskey Avenue, when in fact Mr. Partin reentered the fast

food restaurant where he had been eating in order to get his female

companion before proceeding to 5600 Petoskey Avenue. However, with

respect to this contention, the district court concluded that no

hearing was warranted on this issue because Defendant had not made

a preliminary showing that any information (or omission) in the

affidavit   was   false,   or   that       any   information   was   included

intentionally or recklessly or omitted with the intent to mislead.

      Following a jury trial, Defendant was ultimately convicted of

(I) conspiracy to distribute and possess with intent to distribute

ecstasy in violation of 21 U.S.C. § 846; (ii) possession with

intent to distribute ecstasy in violation of 21 U.S.C. § 841; and

(iii) possession of a firearm by a convicted felon, in violation of

18 U.S.C. § 922(g).    The jury found the Defendant not guilty of

possession of a firearm in furtherance of a drug trafficking crime


      1
      Because the district court concluded that a sufficient basis
existed to support the issuance of the warrant, the district court
did not reach the government’s alternative argument that even if
probable cause did not exist to support the issuance of the
warrant, the challenged evidence would nevertheless be admissible
pursuant to the “good faith” exception to the exclusionary rule.
See United States v. Leon, 468 U.S. 897 (1984).

                                       7
in violation of 18 U.S.C. § 924(c).         At sentencing, the district

court nevertheless concluded that in calculating the advisory

sentencing range under the United States Sentencing Guidelines,

Defendant’s    sentence   should   be    enhanced   pursuant   to   section

2K2.1(b)(5) for possession of the firearm in connection with

another felony offense.      Defendant was ultimately sentenced to

imprisonment of 115 months on each count, with the sentences to run

concurrently.



                                   II.

     We consider first Defendant’s challenge to the denial of his

pretrial Motion to Suppress.       On this issue, Defendant contends

that the affidavit presented in support of the search warrant

application was not sufficient to establish probable cause to

search   his   residence.    Defendant     further   contends   that   the

affidavit included a false statement or omission.          Each of these

contentions will be considered in turn.



                                   A.

     Defendant contends first that the search of his apartment was

unconstitutional because the search warrant was not supported by

probable cause.   When a search is conducted pursuant to a warrant,

the determination of probable cause by the magistrate who issued

the warrant is entitled to “great deference.”           United States v.


                                    8
Blackwood, 913 F.2d 139 (4th Cir. 1990). Thus, although our review

of legal questions is de novo, we are “not to conduct a de novo

determination of probable cause, but only to determine whether

there    is   substantial    evidence        in   the   record       supporting    the

magistrate’s decision to issue the warrant.”                     Massachusetts v.

Upton, 466 U.S. 727, 728 (1984); see also Illinois v. Gates, 462

U.S. 213 (1983). This already deferential review is further guided

by the recognition that the probable cause standard “is a fluid

concept - turning on the assessment of probabilities in particular

factual contexts - not readily, or even usefully, reduced to a neat

set of legal rules.”      Gates, 462 U.S. at 232.          Moreover, “[b]ecause

of the fourth amendment’s strong preference for searches conducted

pursuant to warrants, reviewing courts must resist the temptation

to    ‘invalidate    warrant[s]     by   interpreting          affidavit[s]       in   a

hypertechnical, rather than a commonsense, manner.’”                        Blackwood,

913   F.2d    at   142   (quoting   Gates,        462   U.S.    at    236    (internal

quotations omitted)).

        The magistrate reviewing the warrant application is required

“simply to make a practical, common-sense decision whether, given

all the circumstances set forth in the affidavit before him,

including the ‘veracity’ and ‘basis of knowledge’ of persons

supplying hearsay information, there is a fair probability that

contraband or evidence of a crime will be found in a particular

place.”    Gates, 462 U.S. at 238.       In addition, “the crucial element


                                         9
is not whether the target of the search is suspected of a crime,

but whether it is reasonable to believe that the items to be seized

will be found in the place to be searched.” United States v. Lalor,

996 F.2d 1578, 1582 (4th Cir. 1993).       The nexus between the place

to be searched and the items to be seized may be established by

normal inferences given all of the circumstances.        Id.    This nexus

may be established, for example, by information or surveillance of

a residence linking the residence to drug activity, such that it is

reasonable to believe that evidence of drug activity will be found

at the residence.     See id.

      Based on the information presented in the affidavit in support

of the warrant application in the present case, there was a

substantial basis on which the magistrate could have found probable

cause to believe that evidence of drug activity would be found in

Defendant’s apartment.      Specifically, during a controlled buy of

marijuana from Mr. Partin on May 18, 2005, Mr. Partin told a police

operative that he could obtain ecstasy and that his source was

“outside.” Officers then observed a blue Chevrolet minivan outside

Mr. Partin’s residence at that time and checked the license plate

with Department of Motor Vehicle records, which listed the van as

being registered to Defendant at 5600 Petoskey Avenue Apartment E.

Mr.   Partin   did   in   fact   obtain   ecstasy   shortly    thereafter,

confirming that Mr. Partin could obtain ecstasy as he had claimed.

In addition, after a controlled buy of ecstasy a few weeks later on


                                    10
July 13, 2005, officers followed Mr. Partin to 5600 Petoskey Avenue

and observed him meeting with Defendant in the blue minivan, thus

confirming the link between Mr. Partin, the Defendant, and the

minivan that was “outside” on May 18, 2005 when Mr. Partin referred

to his “source.”    Officers further identified Defendant from a

Department of Motor Vehicles photograph and observed him entering

Apartment E after meeting with Mr. Partin, thereby providing an

additional link of the probable drug trafficking activities between

Defendant and Mr. Partin to Defendant’s residence.          Finally,

officers initiated another controlled buy of ecstasy from Mr.

Partin on December 8, 2005.   Two days prior to this controlled buy,

officers confirmed that the blue minivan was still registered to

Defendant at the same address, and they also had observed the

minivan parked outside of 5600 Petoskey Avenue Apartment E.    After

the controlled buy, officers again followed Mr. Partin to 5600

Petoskey Avenue.   After Mr. Partin left the apartment complex, he

was stopped, and had in his possession only $100 of the $500 given

to him during the controlled buy.     We hold that given the totality

of the circumstances, and based on all of this information which

was presented to the magistrate, there was a substantial basis from

which the magistrate could conclude that Defendant was the “source”

of ecstasy referred to during the controlled buy on May 18, that

Mr. Partin returned to meet with Defendant at 5600 Petoskey Avenue

after each ecstasy sale on July 13 and December 8, that Mr. Partin


                                 11
delivered $400 of the $500 in sale proceeds from the December 8

sale to 5600 Petoskey Avenue, and that evidence of drug activity

would probably be found at 5600 Petoskey Avenue Apartment E.

      Defendant contends that officers did not have any statement

directly implicating Defendant in drug activity, and that they had

not actually observed Defendant engaged in any drug transactions.

Defendant also contends that the affidavit did not establish the

reliability of the “police operative” who engaged in the May 18,

2005 controlled buy from Mr. Partin.2                Defendant further contends

that officers did not conduct a full investigation, as reflected by

the   fact   that     the    affidavit    did    not   include   any     information

regarding     Defendant’s       criminal       history.       Finally,    Defendant

contends     that      there    was      insufficient     information       linking

Defendant’s residence to any criminal activity or suggesting that

indicia of criminal activity would be found at that residence.

However, no single type of evidence is required to establish

probable     cause,    and    our   inquiry     is   simply   whether     “there   is

substantial evidence in the record supporting the magistrate’s

decision to issue the warrant,” Upton, 466 U.S. at 728.                    Moreover,


      2
      The “police operative” who engaged in the May 18, 2005
controlled buy was actually Detective Shreves himself, as Defendant
acknowledges. Although the affidavit may be ambiguous on its face
as to the identity of the “operative,” it is nevertheless clear on
the face of the affidavit that the controlled buys were supervised
by law enforcement officers, and that the statements by Mr. Partin
to the “operative” on May 18 were confirmed during the later
controlled buys of ecstasy from Mr. Partin on June 23, July 13 and
December 8.

                                          12
an affidavit may support the issuance of a warrant even if “[n]o

single piece of evidence in it is conclusive” so long as “the

pieces fit neatly together and, so viewed, support the Magistrate’s

determination.” Upton, 466 U.S. at 733.              “Finely-tuned standards

such as proof beyond a reasonable doubt or by a preponderance of

the evidence, useful in formal trials, have no place in the

magistrate’s   decision.   .   .   .    [I]t    is   clear   that   ‘only   the

probability, and not a prima facie showing, of criminal activity is

the standard of probable cause.’”           Gates, 462 U.S. at 235 (quoting

Spinelli v. United States, 393 U.S. 410, 419 (1969)). As discussed

above, given all of the circumstances presented in the affidavit in

this case, the magistrate could have reasonably concluded that

there was a fair probability that contraband or evidence of a crime

would be found in Defendant’s apartment.                The fact that some

particular type of direct evidence was not presented, or that

conclusive proof did not yet exist, does not negate the showing of

probable cause here considering the totality of the circumstances.

Therefore, the Motion to Suppress was properly denied.



                                       B.

     Defendant also contends that the warrant was invalid because

the affidavit contained false or misleading information.             In order

to have been entitled to a hearing on this allegation, Defendant

must have made a preliminary showing that “a false statement


                                       13
knowingly and intentionally, or with reckless disregard for the

truth, was included by the affiant in the warrant affidavit.”

Franks v. Delaware, 438 U.S. 154 (1978).3                In addition, under

Franks, even if a false statement was included in the affidavit,

the offending information must be essential to the probable cause

determination;       if   the   offending    information    is   excluded    and

probable cause still remains, no              Franks hearing is required.

Where the alleged falsity is an omission, the Defendant must show

that the affiant omitted material facts “with the intent to make,

or   in   reckless    disregard    of   whether   they     thereby   made,   the

affidavit misleading.” United States v. Colkley, 899 F.2d 297, 300

(4th Cir. 1990)(quoting United States v. Reivich, 793 F.2d 957, 961

(8th Cir. 1986)).

      In the present case, Defendant contends that false information

was included in the affidavit, or that the affidavit was false by


      3
      Defendant raises this issue on appeal in the context of his
contention that the “good faith” exception to the exclusionary rule
should not apply in this case. See United States v. Leon, 468 U.S.
897 (1984). This “good faith” exception prevents the suppression of
evidence obtained by officers acting in reasonable reliance on an
authorized search warrant even though that warrant is subsequently
found to be invalid.   However, because the district court did not
reach the issue of the “good faith” exception in this case, and
because, like the district court, we conclude that the magistrate
had before him a substantial basis for concluding that probable
cause existed, we need not consider the “good faith” exception in
this appeal.     Nevertheless, the district court specifically
considered Defendant’s request for a hearing pursuant to Franks
based on Defendant’s allegations that the affidavit was false or
misleading, and Defendant has raised those allegations again on
appeal. Therefore, we will consider this Franks issue as part of
this appeal.

                                        14
omission, because the affidavit stated that after the controlled

buy on December 8, Mr. Partin proceeded “directly” to 5600 Petoskey

Avenue.       Defendant, however, contends that in fact after the

controlled buy on December 8, 2005, which occurred in the parking

lot of a fast food restaurant, Mr. Partin entered the fast food

restaurant      and   then   left   with     his    female       companion   before

proceeding to 5600 Petoskey Avenue.           On appeal, Defendant raises a

similar issue regarding the July 13 sale, which also occurred at a

fast food restaurant.        The affidavit states that after the July 13

controlled purchase, Mr. Partin was followed from the buy location

to 5600 Petoskey Avenue, but Defendant contends that Mr. Partin

entered the fast food restaurant and ate with other individuals

before proceeding to 5600 Petoskey Avenue. Defendant contends that

by omitting this information, the affidavit misled the magistrate

into inferring that Mr. Partin was taking the proceeds from the

sale   and    immediately    delivering      them    to    Mr.   Randolph    at   his

apartment.      However, the district court concluded that no hearing

was warranted on this issue because there was no preliminary

showing that this information (or omission) was false or that it

was included or omitted with the intent to mislead.

       Having reviewed the district court’s decision, we conclude

that the district court did not err in finding that no Franks

hearing was required on this issue.           As noted in the affidavit, all

of   the     controlled   buys   were   made       under    police    control     and


                                        15
supervision.      Although Mr. Partin entered the restaurants on July

13 and December 8 after engaging in the drug transaction on each

occasion, nothing in the police reports or evidence presented would

indicate that officers observed any other actions by Mr. Partin

related to the sale proceeds before he went to 5600 Petoskey

Avenue.      In addition, it is undisputed that on both December 8 and

July 13, Mr. Partin went straight to 5600 Petoskey Avenue after he

left the restaurant where the controlled purchase had occurred.

The fact that he entered the restaurants to eat or to retrieve his

companion before leaving is a minor, immaterial omission in the

circumstances, and does not render the information in the affidavit

false   or    otherwise   create      a    false   or   misleading   impression.

Moreover, Defendant has made no showing that the affiant, Detective

Shreves, made the omission with “the requisite intent to mislead.”

Colkley, 899 F.2d at 301.       Thus, because Defendant did not make any

preliminary showing that the affidavit included any false statement

or omission made with intent to mislead or with reckless disregard

of whether it thereby made the affidavit misleading, no Franks

hearing was required, and the district court’s determination on

this issue is affirmed.



                                          III.

     Finally, Defendant challenges the calculation of his advisory

sentencing      range   under   the       U.S.   Sentencing   Guidelines.    In


                                           16
calculating the applicable advisory guideline range under the U.S.

Sentencing       Guidelines   the    district    court   included   a   4-point

enhancement under section 2K2.1(b)(5) for possession of the firearm

“in connection with” another felony offense.              Defendant contends

that there was not sufficient evidence to establish that the

firearm    was    possessed   in    connection    with   another    felony,   as

evidenced by the jury verdict finding him not guilty on the charge

of possession of a firearm in furtherance of a drug trafficking

crime.    Defendant contends that the evidence established instead

that he possessed the firearm to protect his family against a

recent “spate of violence,” including a recent shooting into his

apartment, and not in connection with any other felony.

         To support an enhancement under section 2K2.1(b)(5), the

Government must prove by a preponderance of the evidence that the

Defendant possessed the firearm and that the firearm was possessed

“in connection with” another felony offense.                United States v.

Nale, 101 F.3d 1000 (4th Cir. 1996); United States v. Garnett, 243

F.3d 824 (4th Cir. 2001).          This requires that the firearm had some

purpose or effect with respect to the felony, that is, that the

firearm facilitated or had the potential to facilitate the offense.

United States v. Blount, 337 F.3d 404 (4th Cir. 2003) (adopting

standard set out in Smith v. United States, 508 U.S. 223 (1993),

involving use of a firearm “in relation to” a drug trafficking

crime under 18 U.S.C. § 924(c)).                 While the presence of the


                                        17
firearm cannot be the result of accident or coincidence, it is

enough if the firearm was present for protection or to embolden the

actor with respect to the other felony.                 See United States v.

Lipford,    203     F.3d    259,   266   (4th    Cir.   2000).       The   section

2K2.1(b)(5) enhancement is designed to apply “if, in addition to

committing a firearms offense within the scope of § 2K2.1, [the

defendant] commits a separate felony offense that is rendered more

dangerous by the presence of a firearm.”            Blount, 337 F.3d at 406.

     In    making    the    Guideline     calculations    in     this   case,   the

district court had before it evidence that the loaded pistol was

located in Defendant’s bedroom in his dresser drawer, near the

ecstasy pills, marijuana, and currency from Defendant’s drug sales.

The district court also had before it evidence that Defendant

engaged in drug sales from his residence where the firearm was

located.    The district court found that Defendant had been a drug

dealer for some time and kept his drug supply at his residence

where the loaded pistol was found. The district court specifically

concluded that Defendant possessed the firearm for the purpose of

protecting his drugs and his drug trafficking assets.                        These

findings    of    fact     are   not   clearly   erroneous     and   support    the

conclusion that Defendant’s possession of the firearm had the

potential to facilitate his felony drug trafficking offenses, by at

least providing protection and emboldening the Defendant.




                                         18
       Defendant contends that the Presentence Report used the wrong

standard in assessing the enhancement by concluding that it was

“not clearly improbable” that Defendant possessed the firearm while

he engaged in the drug trafficking offense.                    Defendant notes that

this    is   the    standard        that     applies   with    respect     to   section

2D1.1(b)(1), which provides an enhancement for drug trafficking

crimes where a dangerous weapon is possessed.                    See Nale, 101 F.3d

at    1004   (contrasting           section    2D1.1(b)(1)      and   section    2K2.1

standards).        However, although the Presentence Report included a

reference to the section 2D1.1(b)(1) standard, the district court

did not apply that standard, and instead found that the Government

had presented sufficient evidence to support the enhancement under

the applicable section 2K2.1(b)(5) standard, specifically that the

Government had established that Defendant possessed the firearm in

connection with his felony drug trafficking, by possessing the

loaded firearm in his home where the drugs and drug proceeds were

located with the purpose of protecting his drugs and his drug

trafficking assets.

       Defendant also contends that the enhancement is improper given

his    acquittal        on   the    charge    of   possession    of   a    firearm   in

furtherance of a drug trafficking crime under 18 U.S.C. § 924(c).

However,     it    is    well      established     that   a   sentencing    court    may

consider the broad context of a defendant’s conduct in determining

an appropriate sentence, including conduct underlying an acquitted


                                              19
charge, so long as the conduct has been proved by a preponderance

of the evidence.     See United States v. Watts, 519 U.S. 148, 152

(1997)    (holding   that    Double    Jeopardy    Clause    did     not   bar

consideration of acquitted conduct in sentencing); see also United

States v. Duncan, 400 F.3d 1297, 1304-05 (11th Cir. 2005) (holding

that the Supreme Court’s decision in United States v. Booker “does

not suggest that the consideration of acquitted conduct violates

the Sixth Amendment as long as the judge does not impose a sentence

that exceeds what is authorized by the jury verdict” and instead

“sentencing judges can continue to consider relevant acquitted

conduct when applying the Guidelines in an advisory manner”).              In

the present case, the district court engaged in the requisite fact-

finding by a preponderance of the evidence, computed the advisory

guideline   range,   and    then   considered     the   resulting    advisory

guideline range along with the other sentencing factors in 18

U.S.C. § 3553(a) in imposing sentence in this case.                We find no

error and therefore affirm the sentence imposed by the district

court.4


     4
      Defendant’s sentencing was on March 27, 2006, and the
Sentencing Guidelines in effect on that day were applied.
Effective November 1, 2006, section 2K2.1(b)(5) was renumbered and
became section 2K2.1(b)(6) with a new Application Note 14, which
provides that this enhancement applies if the firearm “facilitated,
or had the potential of facilitating, another felony offense” and
applies “in the case of a drug trafficking offense in which a
firearm is found in close proximity to drugs, drug-manufacturing
materials, or drug paraphernalia” because “the presence of the
firearm has the potential of facilitating another felony offense.”
This new Application Note adopts the standard articulated in Smith

                                      20
                                  IV.

     For all of the reasons discussed above, we conclude that

Defendant’s   Motion   to   Suppress    was   properly   denied,    and   his

advisory Guidelines sentence was properly calculated. We therefore

affirm the judgment of the district court.

                                                                   AFFIRMED




v. United States, 508 U.S. 223 (1993), requiring that the firearm
have facilitated or had the potential of facilitating another
felony offense, which is the same standard previously adopted in
this Circuit, and the new Application Note would not affect the
application of the enhancement in the present case.

                                   21
