              Case: 19-11364    Date Filed: 12/05/2019   Page: 1 of 9


                                                            [DO NOT PUBLISH]


               IN THE UNITED STATES COURT OF APPEALS

                        FOR THE ELEVENTH CIRCUIT
                          ________________________

                                No. 19-11364
                            Non-Argument Calendar
                          ________________________

                  D.C. Docket No. 2:18-cr-00069-SPC-MRM-1


UNITED STATES OF AMERICA,

                                                                  Plaintiff-Appellee,

                                       versus

EDDIE JUNIOR SAEZ,

                                                             Defendant-Appellant.
                          ________________________

                   Appeal from the United States District Court
                       for the Middle District of Florida
                         ________________________

                               (December 5, 2019)

Before MARCUS, ROSENBAUM, and HULL, Circuit Judges.

PER CURIAM:

      Eddie Saez appeals the 115-month sentence he received after a jury convicted

him of possession of a firearm and ammunition by a convicted felon, in violation of
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18 U.S.C. §§ 922(g)(1) and 924(a)(2). At sentencing, the district court applied an

enhancement for use or possession of a firearm in connection with another felony

offense. See U.S.S.G. § 2K2.1(b)(6)(B). On appeal, Saez argues that the court erred

in applying the enhancement for two reasons: (1) the court improperly relied on

commentary that expanded the plain language of the enhancement; and (2) even if

the commentary applied, the firearm discovered in the closet of a spare bedroom in

his house was not used or possessed in connection with another felony offense. After

careful review, we affirm.

                                         I.

      In March 2015, law-enforcement officers were conducting surveillance at

Saez’s residence because he was a suspect wanted for questioning about a shooting.

The officers observed Saez as he walked outside carrying a full trash bag and got

into a vehicle in the driveway. A few minutes later, Saez exited the vehicle empty-

handed and returned inside. The officers stopped the vehicle after it left the

residence, and upon smelling a strong odor of raw marijuana, searched the car.

Inside the car, they found a trash bag containing more than five pounds of marijuana

in vacuum-sealed bags. Soon after, Saez left the residence in another vehicle and

was stopped and arrested.

      Officers then executed a search warrant at Saez’s residence. In the garage,

officers found another large trash bag containing 580.2 grams of marijuana in


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vacuum-sealed packages. In a spare bedroom, officers found a loaded Glock .45-

caliber handgun inside a colored knit cap on the top shelf of a closet. The gun and

knit cap were tested and found to match Saez’s DNA profile. Saez’s bedroom

contained $6,500 in cash inside a jacket and a ledger that had names and amounts of

money owed to Saez from drug sales.

      Based on these events, as we have noted, Saez was indicted for being a felon

in possession of a firearm and ammunition. Following trial, a jury convicted Saez

of the charge.

      In preparation for sentencing, the probation office prepared a presentence

investigation report (“PSR”) calculating Saez’s guideline range and, as relevant here,

recommending a four-level enhancement under § 2K2.1(b)(6)(B) for use or

possession of a firearm “in connection with another felony offense.” With a total

offense level of 24 and a criminal history category of V, Saez’s recommended

guideline imprisonment range was 92 to 115 months. After Saez filed objections to

the “in-connection-with” enhancement, the probation officer responded, in an

addendum to the PSR, that the enhancement applied because the firearm, which was

found in a bedroom controlled by the defendant in a home from which he recently

sold marijuana, had the potential to facilitate the felony offense of drug trafficking.

See U.S.S.G. § 2K2.1, cmt. n.14(A)–(B).




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      The parties argued the § 2K2.1(b)(6)(B) enhancement at sentencing, which

the district court continued to permit additional briefing on the matter. Ultimately,

the district court overruled Saez’s objection and adopted the position of the probation

officer as stated in the addendum to the PSR. The court then sentenced Saez to 115

months of imprisonment.

      Saez now appeals the § 2K2.1(b)(6)(B) enhancement, presenting two

arguments. First, Saez argues for the first time on appeal that the commentary to

U.S.S.G. § 2K2.1 impermissibly expands the scope of the enhancement beyond its

plain language. Second, in Saez’s view, the enhancement was not justified even if

the commentary applied.

                                           II.

      Ordinarily, we review de novo a district court’s interpretation of the

guidelines, and we review a district court’s underlying factual findings for clear

error. United States v. Tejas, 868 F.3d 1242, 1244 (11th Cir. 2017). When

sentencing objections to procedural issues are not first presented to the district court,

however, we are limited to reviewing for plain error. United States v. Vandergrift,

754 F.3d 1303, 1307 (11th Cir. 2014). “An error is not plain unless it is contrary to

explicit statutory provisions or to on-point precedent in this Court or the Supreme

Court.” United States v. Schultz, 565 F.3d 1353, 1357 (11th Cir. 2009).




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      Section 2K2.1(b)(6)(B) provides for a four-level enhancement if the

defendant “used or possessed any firearm or ammunition in connection with another

felony offense.”      U.S.S.G. § 2K2.1(b)(6)(B).        Application Note 14 of the

commentary to § 2K2.1 explains that the enhancement applies “if the firearm or

ammunition facilitated, or had the potential of facilitating, another felony offense.”

Id. § 2K2.1 cmt. n.14(A). Application Note 14 further provides that, in the case of

a drug-trafficking offense, the enhancement applies when a firearm is found in

“close proximity to drugs” or “drug paraphernalia.” Id. § 2K2.1 cmt. n.14(B).

      “[C]ommentary in the Guidelines Manual that interprets or explains a

guideline is authoritative unless it violates the Constitution or a federal statute, or is

inconsistent with, or a plainly erroneous reading of, that guideline.” Stinson v.

United States, 508 U.S. 36, 38 (1993). Saez maintains that Application Note 14 is

inconsistent with the plain language of § 2K2.1(b)(6)(B). In Saez’s view, “a firearm

in ‘close proximity to drugs’ that merely ‘has the potential of facilitating another

felony offense’ is not enough to trigger the enhancement” because the “the guideline

itself requires actual use or possession of a firearm ‘in connection with another

felony offense.’”




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       We review this argument for plain error because Saez did not present it to the

district court. 1 See Vandergrift, 754 F.3d at 1307. Because no controlling authority

establishes that the commentary is inconsistent with the plain language of §

2K2.1(b)(6)(B), Saez cannot demonstrate plain error. See Schultz, 565 F.3d at 1357.

On the contrary, in United States v. Carillo-Ayala, 713 F.3d 82 (11th Cir. 2013), we

reviewed our prior case law on the meaning of “in connection with” in guideline

provisions and found that it was consistent with Application Note 14—added in

2006—on the matters of “close proximity” and “potential to facilitate.” See id. at

91–96. In particular, we stated that “[o]ur case law and [Application Note 14] are

consistent: 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.” Id. at 92. And it is “[t]he firearm’s potential use [that] is critical”

under § 2K2.1(b)(6)(B). Id. (emphasis in original). Additionally, we found that our

case law predating Application Note 14 “ha[s] consistently recognized that a firearm

which facilitates or has the potential to facilitate an offense is possessed ‘in

connection with’ that offense.” Id. at 93 (emphasis added). In sum, Carillo-Ayala

contradicts Saez’s contention that “close proximity” and “potential to facilitate” are




       1
         Because Saez cannot establish plain error, we do not address the government’s contention
that Saez invited any error with regard to Application Note 14.
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outside the scope of the plain meaning of “in connection with” as used in

§ 2K2.1(b)(6)(B).

      Accordingly, the district court did not plainly err by applying Application

Note 14 to U.S.S.G. § 2K2.1.

                                        III.

      A district court’s finding that a firearm was possessed “in connection with”

another felony offense is a factual finding that we review for clear error. United

States v. Whitfield, 50 F.3d 947, 949 n.8 (11th Cir. 1995). “For a factual finding to

be clearly erroneous, we must be left with a definite and firm conviction that the

court made a mistake.” Tejas, 868 F.3d at 1244. The burden is on the government

to show by a preponderance of the evidence that the facts warrant a sentencing

enhancement. United States v. Kinard, 472 F.3d 1294, 1298 (11th Cir. 2006).

      “A ‘connection’ is shown by less evidentiary proof than is required to show

possession ‘in furtherance of’ a drug offense.” Carillo-Ayala, 713 F.3d at 96. In

United States v. Flennory, for example, we determined that a firearm was possessed

“in connection with” a drug transaction where the firearm was found in a vehicle

across the street from a vacant lot where the defendant was seen distributing drugs.

145 F.3d 1264, 1269 (11th Cir. 1998), superseded on other grounds as recognized

in United States v. Brown, 332 F.3d 1341 (11th Cir. 2003). We determined that the

firearm was sufficiently connected to the drug offense because “the facts support[ed]


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an inference that [the defendant] could have easily and quickly retrieved the weapon

from the vehicle if it became necessary to avoid an arrest, or to defend himself from

a theft of the cocaine or the money he received from his sales.” Id. at 1269–70; see

United States v. Gordillo, 920 F.3d 1292, 1300 (11th Cir. 2019) (stating that “close

proximity” under the guidelines “encompasses both physical distance and

accessibility” (emphasis in original)).

      Here, the record supports the district court’s finding that the loaded gun,

containing Saez’s DNA, was possessed in connection with a felony drug-trafficking

offense. According to undisputed facts in the PSR, officers found the gun in the

closet of a spare bedroom in Saez’s home, and the home contained other evidence

of drug-trafficking activity, including $6,500 in cash and a drug ledger. Moreover,

the gun was present when Saez sold over five pounds of marijuana in the driveway

of his home and possessed additional marijuana in his garage. While Saez contends

that the gun was not close enough to the drug-trafficking activity, the district court

reasonably concluded that the gun had the potential to facilitate Saez’s drug sales or

possession, because the gun was sufficiently close to the drug-trafficking activity so

that he could have easily retrieved it, if needed, for protection or deterrence from

persons seeking to interfere with his drug activities. See Flennory, 145 F.3d at 1269–

70; U.S.S.G. § 2K2.1 cmt. n.14(A). Thus, the district court did not clearly err in




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determining that the gun was used “in connection with” another felony offense. We

therefore affirm Saez’s sentence.

      AFFIRMED.




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