                                                           [DO NOT PUBLISH]


              IN THE UNITED STATES COURT OF APPEALS
                                                                    FILED
                      FOR THE ELEVENTH CIRCUIT U.S. COURT OF APPEALS
                        ________________________ ELEVENTH CIRCUIT
                                                              JULY 01, 2008
                               No. 08-10337                 THOMAS K. KAHN
                           Non-Argument Calendar                 CLERK
                         ________________________

                       D. C. Docket No. 06-00026-CR-6

UNITED STATES OF AMERICA,


                                                                Plaintiff-Appellee,

                                    versus

CHARLES WILLIS,
a.k.a. Monte,

                                                           Defendant-Appellant.


                         ________________________

                 Appeal from the United States District Court
                    for the Southern District of Georgia
                      _________________________

                                (July 1, 2008)

Before ANDERSON, DUBINA and HULL, Circuit Judges.

PER CURIAM:

     Appellant Charles Willis appeals his 192-month sentence after pleading
guilty in the Southern District of Georgia to one count of conspiracy to possess

with intent to distribute and to distribute cocaine and cocaine base, in violation of

21 U.S.C. §§ 846, 841(a)(1), and 18 U.S.C. § 2. After Willis was arrested in

connection with this offense in Savannah, Georgia, law enforcement discovered a

firearm in his home in Atlanta, Georgia, along with evidence of drug trafficking

activity.

       On appeal, Willis first argues that the district court’s sentence was

unconstitutional under United States v. Booker, 543 U.S. 220, 125 S. Ct. 738, 160

L. Ed. 2d 621 (2005), because the court imposed a firearm enhancement under

U.S.S.G. § 2D1.1(b)(1) based on facts not submitted to a jury for proof beyond a

reasonable doubt. Second, Willis argues that the court erred by enhancing his

sentence under § 2D1.1(b)(1) because law enforcement did not discover the

firearm at the site of the charged conduct, and he did not use the firearm during any

drug transactions.

       After reviewing the record and reading the parties’ briefs, we discern no

reversible error.

I.     Booker Error

       Because Willis did not raise a constitutional objection to his sentence based

upon the principles set out in Booker, we review his arguments for plain error. See



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United States v. Rodriguez, 398 F.3d 1291, 1298 (11th Cir. 2005). “An appellate

court may not correct an error the defendant failed to raise in the district court

unless there is: (1) error, (2) that is plain, and (3) that affects substantial rights.”

Id. (quotation omitted). “If all three conditions are met, an appellate court may

then exercise its discretion to notice a forfeited error, but only if (4) the error

seriously affects the fairness, integrity, or public reputation of judicial

proceedings.” Id. (quotation omitted). Constitutional error under Booker exists

“when the district court misapplies the Guidelines by considering them as binding

as opposed to advisory.” United States v. Shelton, 400 F.3d 1325, 1331 (11th Cir.

2005).

         We conclude from the record that Willis’s Booker argument is without merit

because the district court understood that the Guidelines were advisory and applied

them in an advisory fashion.

II.      Firearm Enhancement under U.S.S.G. § 2D1.1(b)(1)

         “We review the district court’s findings of fact under U.S.S.G. § 2D1.1(b)(1)

for clear error, and the application of the Sentencing Guidelines to those facts de

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

omitted). Section § 2D1.1(b)(1) provides for a two-level enhancement “[i]f a

dangerous weapon (including a firearm) was possessed . . . .” U.S.S.G.



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§ 2D1.1(b)(1). The commentary provides that the enhancement “should be applied

if the weapon was present, unless it is clearly improbable that the weapon was

connected with the offense.” Id., comment. (n.3). Interpreting this Guideline and

its commentary, we have stated that:

      To justify a firearms enhancement, the government must either
      establish by a preponderance of the evidence that the firearm was
      present at the site of the charged conduct or prove that the defendant
      possessed a firearm during conduct associated with the offense of
      conviction. If the government is successful in meeting this initial
      burden, then the evidentiary burden shifts to the defendant, who must
      demonstrate that a connection between the weapon and the offense
      was “clearly improbable.”

United States v. Stallings, 463 F.3d 1218, 1220 (11th Cir. 2006) (citation omitted),

cert. denied, 127 S. Ct. 2446 (2007).

      We have held that the enhancement is applicable when the firearm is

discovered during conduct related to the charged offense, even if it is not present at

the site of the charged conduct. United States v. Smith, 127 F.3d 1388, 1390 (11th

Cir. 1997). We have also held that there is no requirement that the defendant use

the firearm to facilitate the commission of the offense. United States v. Audain,

254 F.3d 1286, 1289 (11th Cir. 2001). Thus, we have upheld the enhancement

where the firearm is discovered with evidence of drug trafficking activity at one

location, even though the defendant is arrested or charged with a drug offense at a

different location. See United States v. Hunter, 172 F.3d 1307, 1308-09 (11th Cir.

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1999) (upholding the enhancement where the police, two days after arresting

Hunter in his car for drug offenses, discovered hundreds of plastic baggies, glass

vials, mixing spoons, diluting agents, transaction records, and 5 firearms in his

home, which was almost 100 miles away from the location of his arrest).

      We conclude from the record that the district court did not err by applying

the enhancement under § 2D1.1(b)(1) because law enforcement found the firearm

at issue in Willis’s home along with substantial evidence of drug trafficking

activity. Contrary to Willis’s arguments, it is irrelevant under our caselaw that law

enforcement did not discover the firearm in the same jurisdiction as the charged

conduct and that he did not use the firearm to facilitate any drug transactions.

Accordingly, we affirm his sentence.

      AFFIRMED.




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