                                                                        F I L E D
                                                                United States Court of Appeals
                                                                        Tenth Circuit
                    UNITED STATES CO URT O F APPEALS
                                                                         May 17, 2007
                                 TENTH CIRCUIT                        Elisabeth A. Shumaker
                                                                          Clerk of Court


 U N ITED STA TES O F A M ER ICA,

               Plaintiff - Appellee,                     No. 05-4229
          v.                                                D. Utah
 TROY ANTH ONY TIM BERS,                          (D.C. No. 1:03-CR -97-TS)

               Defendant - Appellant.



                            OR D ER AND JUDGM ENT *


Before H E N RY, BR ISC OE, and O’BRIEN, 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.

      Troy Timbers, appeals from his sentence. Exercising jurisdiction under 28

U.S.C. § 1291, we affirm.




      *
        This order and judgment is not binding precedent except under the
doctrines of law of the case, res judicata, and collateral estoppel. It may be cited,
however, for its persuasive value consistent with Fed. R. App. P. 32.1 and 10th
Cir. R. 32.1.
                                    I. Background

      In January 2003, a confidential informant provided information suggesting

Timbers was involved in the distribution of cocaine. The informant later

conducted two controlled-drug buys with Timbers. Based on this information, a

federal agent obtained and executed a search warrant for Timbers’ residence.

Officers found two firearms in the residence, as well as one in Timbers’ vehicle.

In addition, officers found more than $130,000 in cash throughout his residence,

including some bills bundled in bags behind the walls. Officers also found six .22

caliber bullets, a digital scale, and 4.2 grams of cocaine.

      Subsequently, Timbers was indicted on two counts. Count one alleged

Timbers possessed three handguns and ammunition, while a user of and addicted

to a controlled substance, in violation of 18 U.S.C. § 922(g)(3). Count two

alleged Timbers possessed cocaine in violation of 21 U.S.C. § 844(a).

      Timbers pled guilty to count one. At sentencing, the district court

enhanced Timbers’ offense level by four levels, under §2K2.1(b)(5) of the federal

sentencing guidelines, after determining Timbers’ possession of the guns had the

potential to embolden his felony drug related activities. See USSG §2K2.1(b)(5)

(2004). 1 Timbers w as sentenced to 24 months imprisonment. Timbers timely

filed his notice of appeal.

      1
       Timbers was sentenced under the 2004 edition of the United States
Sentencing Guidelines M anual. All citations to the guidelines in this order &
judgment refer to the 2004 guidelines unless otherw ise indicated.

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                                    II. Discussion

      Timbers argues 1) the district court erred by applying the guidelines in a

mandatory fashion; 2) the guideline provisions under which he was sentenced

were ambiguous and therefore the rule of lenity requires imposing a sentence

without the §2K2.1(b)(5) enhancement; and 3) the district court erred in finding

the firearms had the potential to facilitate Timbers’ drug activities.

      On appeal of an application of the advisory guidelines, we review the

district court’s legal conclusions de novo and its factual findings for clear error.

United States v. Kristl, 437 F.3d 1050, 1055 (10th Cir. 2006).

A. Application of the Guidelines

      Timbers argues the district court erred, under United States v. Booker, by

applying the guidelines in a mandatory fashion. 543 U.S. 220 (2005). As this

Court has stated:

      There are two types of error under Booker: non-constitutional error
      and constitutional error. Non-constitutional error derives from the
      so-called remedial portion of Booker, which severed the statutory
      provision requiring mandatory application of the Sentencing
      Guidelines in most cases. This severance has rendered the
      Guidelines mainly advisory, although sentencing courts must still
      consult the Guidelines and the factors of 18 U.S.C. § 3553(a).
      Appellate courts will reverse a sentence if it is deemed unreasonable.
      Constitutional Booker error, on the other hand, occurs in the context
      of a mandatory sentencing regime when a judge-found fact (other
      than the fact of a prior conviction) increases a defendant’s sentence
      beyond the maximum authorized by a jury verdict or a guilty plea
      through the court’s application of the mandatory guidelines.

United States v. Visinaiz, 428 F.3d 1300, 1315 (10th Cir. 2005) (citations

                                          -3-
omitted), cert. denied, 126 S.Ct. 1101 (2006); see also United States v. Delacruz-

Soto, 414 F.3d 1158, 1161-62 (10th Cir. 2005) (describing the two types of

Booker error). If the district court applies the guidelines as only advisory, there

can be no Booker error. Visinaiz, 428 F.3d at 1315 (“[B]ecause the district court

did not consider the guidelines mandatory, there was no Booker error,

constitutional or non-constitutional.”). Despite the fact the district court clearly

stated it was treating the guidelines as advisory, Timbers argues the court applied

the guidelines in a mandatory fashion. For support, Timbers points to the district

court’s statement that “the court, in reading the language [of comment four of

USSG §2K2.1] which says [‘]federal, state or local,[’] must find that if an offense

is a felony under state law, even if it is a misdemeanor under federal law , that it is

still a felony for the purposes of applying [§2K2.1(b)(5)].” (R. Vol. II at 39.)

Timbers also quotes the district court’s statement that “the court finds that the

government has met its burden of proving, by a preponderance of the evidence,

that the firearm was possessed by the defendant in connection with another felony

offense, as is required by the Sentencing Guidelines . . . .” (Id.).

      Even though w e have recently (and repeatedly) explained the process,

Timbers appears to be confused about post-Booker sentencing.

      After [Booker] rendered the Sentencing Guidelines advisory, district
      courts must use a two-step process at sentencing. In Step 1, the
      district court must consult the Guidelines and apply any applicable
      upward adjustments and downward departures. Through that
      process, the district court establishes a total offense level and

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       corresponding sentencing range under the Guidelines. In Step 2, the
       district court may use its discretion to impose a sentence within the
       Guidelines range or to vary either upward or downward from that
       range.

United States v. Hernandez-C astillo, 449 F.3d 1127, 1129 (10th Cir. 2006), cert.

denied, 127 S.Ct. 936 (2007); see also Visinaiz, 428 F.3d at 1315 (“[S]entencing

courts must still consult the Guidelines . . . .”). Plainly, the district court is

required, as it did here, to consider the guidelines as a starting point from which it

may then exercise its discretion under step two. Timbers invites us to reverse the

district court for following the very procedures w e now require in post-Booker

sentencing. W e decline the invitation.

B. Application of the Rule of Lenity

       Timbers argues the guideline provisions under which his sentence was

enhanced are ambiguous and therefore the doctrine of lenity should require the

district court to impose the lesser sentence. 2 It is true, when there are two

       2
           W e have previously stated:

       Prior to the Supreme Court's decision in Booker, our conclusion that
       a Guideline provision was ambiguous required us to remand with
       instructions to follow the interpretation of the Guidelines that would
       produce the lesser sentence. Post-Booker, . . ., the district courts are
       “[r]elieved of the mandatory application of the guidelines” and “are
       now permitted to give more sw ay in sentencing to the factors
       enumerated in 18 U.S.C. § 3553(a).”

United States v. Weidner, 437 F.3d 1023, 1047 (10th Cir. 2006) (citations
omitted). An ambiguous guideline provision does not demand the lesser sentence
be imposed, given the district court’s discretion. After Booker, the touchstone is
whether the sentence is reasonable. Booker, 543 U.S. at 261.

                                            -5-
rational readings of the law, one harsher than the other, the courts are to choose

the harsher only when Congress has made its intentions clear. Scheidler v. Nat’l

Org. for Women, Inc., 537 U.S. 393, 409 (2003); see United States v. Bazile, 209

F.3d 1205, 1207 (10th Cir. 2000) (“Under the rule of lenity, we interpret

ambiguous statutes, as well as Sentencing Guidelines, in favor of the defendant

and impose the shorter sentence.”). Y et, the doctrine of lenity does not apply

where the guidelines are clear. United States v. M cGraw, 351 F.3d 443, 445 (10th

Cir. 2003).

      W e first turn to the provisions Timbers claims are ambiguous. Section

2K2.1(b)(5) of the guidelines provides:

      If the defendant used or possessed any firearm or ammunition in
      connection with another felony offense; or possessed or transferred
      any firearm or ammunition with knowledge, intent, or reason to
      believe that it would be used or possessed in connection with another
      felony offense, increase by 4 levels. If the resulting offense level is
      less than level 18, increase to level 18.

USSG §2K2.1(b)(5). The phrase “felony offense, as used in subsection (b)(5),

means any offense (federal, state, or local) punishable by imprisonment for a term

exceeding one year, whether or not a criminal charge was brought, or conviction

obtained.” Id., comment. (n.4).

      Timbers’ briefing on this point is less than clear. He appears to argue


Timbers suggests our approach in Weidner is not good enough. W e need not
address his argument that later Supreme Court lenity cases require imposing the
lesser sentence because the provisions at issue are not ambiguous; the lenity
doctrine does not apply.

                                          -6-
§2K2.1(b)(5) is ambiguous because possession of cocaine is a felony under state

law not federal law. W e agree with the government, the doctrine of lenity does

not apply here because these provisions are quite clear. If a firearm is used or

possessed in connection with any federal, state, or local felony offense, the

§2K2.1(b)(5) enhancement applies. Thus, the district court’s determination that a

state felony statute could support the §2K2.1(b)(5) enhancement was correct.

C. Findings of Fact

      Timbers also argues the district court erred in concluding the firearms

found in his residence had the potential to facilitate his felony drug activities.

The factual findings of the district court will be upheld unless clearly erroneous.

Kristl, 437 F.3d at 1055. The district court correctly noted, for §2K1(b)(5) to

apply, “the firearm must have some purpose or effect with respect to the . . .

crime; its presence or involvement cannot be the result of accident or

coincidence.” (R. Vol. II at 38 (quoting United States v. Constantine, 263 F.3d

1122, 1126 (10th Cir. 2001).) In addition, “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).

      The district court considered the evidence and found: 1) Timbers

participated in two controlled buys; 2) bills from the controlled buys were found

commingled with the approximately $137,000 dollars; 3) six .22 caliber bullets

                                          -7-
were found near the narcotics; 4) two firearms, one w ith two loaded clips, were

found with a small safe containing $1,700 in cash; and 5) scales were found. The

court focused on several bills from the controlled buys intermingled with the

other funds, “demonstrat[ing] a damning link to drug distribution.” (R. Vol. II at

40.) The court also noted the presence of a set of scales is “consistent with drug

distribution activity.” (Id.) It then determined the government had “established a

link between the guns, the money and the drugs, which is only strengthened by

the proximity of these items and the overall conduct of defendant in conducting

his drug related affairs.” (Id.) The court concluded Timbers’ possession of the

guns “had the potential to embolden Timbers in his drug related activities.” (Id.)

      Timbers argues the possession of the guns were “for his self-protection,”

and the possession was “coincidental and unrelated to the possession of [the]

cocaine or to the alleged drug distributions.” (Appellant’s Br. at 14-15.) Such a

view of the evidence was apparently rejected by the district court. Simply

offering an alternative view of the evidence on appeal is not sufficient to show

the district court’s finding of fact is clearly erroneous. M anning v. United States,

146 F.3d 808, 813 (10th Cir. 1998) (“‘[w]here there are two permissible views of




                                          -8-
the evidence, the factfinder’s choice between them cannot be clearly erroneous.”)

(quoting Anderson v. City of Bessemer City, 470 U.S. 564, 574 (1985)).

      A FFIR ME D.



                                              ENTERED FOR THE COURT


                                              Terrence L. O’Brien
                                              Circuit Judge




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