                                                            [DO NOT PUBLISH]


               IN THE UNITED STATES COURT OF APPEALS

                        FOR THE ELEVENTH CIRCUIT                    FILED
                          ________________________         U.S. COURT OF APPEALS
                                                             ELEVENTH CIRCUIT
                                                                February 1, 2008
                                No. 07-14491                  THOMAS K. KAHN
                            Non-Argument Calendar                 CLERK
                          ________________________

                     D. C. Docket No. 07-00061-CR-3-LAC

UNITED STATES OF AMERICA,


                                                                  Plaintiff-Appellee,

                                     versus

DERRICK DEWITT PURIFOY,

                                                            Defendant-Appellant.
                          ________________________

                   Appeal from the United States District Court
                       for the Northern District of Florida
                         _________________________

                               (February 1, 2008)

Before BIRCH, PRYOR and KRAVITCH, Circuit Judges.

PER CURIAM:

      Defendant-appellant Derrick Dewitt Purifoy pleaded guilty to possession of

a firearm by a convicted felon, 18 U.S.C. § 922(g) and was sentenced to 120
month’s imprisonment. According to the undisputed facts, following a traffic stop,

Purifoy ran from police and hid in a trash dumpster. While pursuing Purifoy,

police found a firearm on the ground. Once the police caught Purifoy and arrested

him, they found two baggies of what they suspected to be marijuana in Purifoy’s

sock and over $1,300 in Purifoy’s possession.

      Using the 2006 manual, the probation officer assigned a base offense level

of 24 under U.S.S.G. § 2K2.1(a)(2), with a 4-level enhancement under

§ 2K2.1(b)(6) because Purifoy used or possessed the firearm in connection with

another felony offense, that is, trafficking in marijuana. With the appropriate

enhancements and reductions, the total adjusted offense level was 27. Purifoy’s

criminal history was VI, which resulted in a guidelines range of 130 to 162

months. Because the statutory maximum sentence for the offense was 120 months,

however, the guidelines range was reduced to 120 months. U.S.S.G. § 5G1.1(a).

      Purifoy objected, inter alia, to the enhancement under § 2K2.1(b)(6). The

court concluded that the enhancement was appropriate because the facts of case

were sufficient to conclude that Purifoy possessed the gun in connection with drug

dealing. In light of the court’s rulings in connection with Purifoy’s other

arguments, the total adjusted offense level was 25, which, when considered with

the statutory maximum, resulted in a guidelines range of 110 to 120 months’



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imprisonment. After considering the sentencing factors in 18 U.S.C. § 3553(a) and

Purifoy’s lengthy criminal history, the court sentenced Purifoy to the statutory

maximum. The court explained: “the sentence would be the same regardless of the

court’s rulings on the objections in the presentence report.” Purifoy now appeals,

arguing that the court improperly applied § 2K2.1(b)(6) because a higher standard

of proof was required and the evidence was insufficient to show that he was

involved in drug trafficking.

       We review the district court’s factual findings for clear error and the

application of the Guidelines to those findings de novo. United States v. Massey,

443 F.3d 814, 818 (11th Cir. 2006). After Booker,1 district courts must first

correctly calculate the advisory sentencing range under the Guidelines, and then

must determine a reasonable sentence in light of the factors listed in 18 U.S.C.

§ 3553(a).2 United States v. Talley, 431 F.3d 784, 786 (11th Cir. 2005). Even if

the court erred, we will affirm if the error was harmless. United States v. Paley,

442 F.3d 1273, 1276 (11th Cir. 2006). “A Guidelines miscalculation is harmless if



       1
           United States v. Booker, 543 U.S. 220, 125 S.Ct. 738, 160 L.Ed.2d 621 (2005).
       2
         In Gall v. United States, 552 U.S. ----, 128 S.Ct. 586, --- L.Ed.2d ---- (2007), the Supreme
Court made it clear that appellate courts must undertake a two-part process in reviewing the sentence
imposed by the district court. First, the appellate court must determine whether or not the proper
procedures were followed by the district court. Id. at 597. Second, “the appellate court should then
consider the substantive reasonableness of the sentence imposed under an abuse-of-discretion
standard.” Id.

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the district court would have imposed the same sentence without the error. If the

Guidelines calculation is correct, or if the miscalculation is harmless, [this court]

consider[s] whether the sentence is reasonable.” United States v. Williams, 456

F.3d 1353, 1360 (11th Cir. 2006), cert. dismissed, 127 S.Ct. 3040 (2007); see also

United States v. Keene, 470 F.3d 1347, 1348-49 (11th Cir. 2006) (inviting district

courts to indicate that they would reach the same sentence even if a guidelines

calculation were incorrect if the court conducts an appropriate analysis of the

§ 3553(a) factors and noting such sentences would be upheld if on review, the

sentence is reasonable).

      Section 2K2.1(b)(6) instructs the court to increase the offense level “[i]f the

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

felony offense.” U.S.S.G. § 2K2.1(b)(6). As the commentary explains, subsection

(b)(6) applies when “the firearm or ammunition facilitated, or had the potential of

facilitating, another felony offense or another offense, respectively.” U.S.S.G.

§ 2K2.1, comment. (n.14(a)). Moreover, this subsection applies “in the case of a

drug trafficking offense in which a firearm is found in close proximity to

drugs . . . . In these cases, application . . . is warranted because the presence of the

firearm has the potential of facilitating another felony offense or another offense,

respectively.” Id. comment. (n.14(b)).



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      Contrary to Purifoy’s claim that the standard of proof should be higher,

“[t]he government bears the burden of establishing by a preponderance of the

evidence the facts necessary to support a sentencing enhancement.” United States

v. Askew, 193 F.3d 1181, 1183 (11th Cir. 1999). Here, the undisputed facts

established that Purifoy possessed two baggies of marijuana in his shoe and more

than $1,300 in cash at the time of his arrest. Purifoy also admitted that he

possessed the firearm found in the proximity of his arrest. This evidence was

sufficient for the court to conclude that the firearm was used in connection with

drug dealing activities. Thus, the court properly applied the enhancement.

      Even if the court erred, that error was harmless because the court indicated

that it would impose the same sentence even if the enhancement was not included.

See Keene, 470 F.3d at 1348-49; Williams, 456 F.3d at 1360. Moreover, the

sentence imposed was reasonable. The court noted Purifoy’s lengthy criminal

history and the need to punish and deter. Accordingly, we conclude that the

sentence imposed was reasonable and we AFFIRM.

      AFFIRMED.




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