                                                                  [DO NOT PUBLISH]

                      IN THE UNITED STATES COURT OF APPEALS

                                   FOR THE ELEVENTH CIRCUIT
                                    ________________________            FILED
                                                               U.S. COURT OF APPEALS
                                            No. 11-10147         ELEVENTH CIRCUIT
                                                                     SEP 28, 2011
                                        Non-Argument Calendar
                                                                      JOHN LEY
                                      ________________________          CLERK

                          D.C. Docket No. 4:09-cr-00026-WTM-GRS-1

UNITED STATES OF AMERICA,

lllllllllllllllllllllllllllllllllllllll                           lPlaintiff-Appellee,

                                                  versus

HARRY D. PINCKNEY,

llllllllllllllllllllllllllllllllllllllll                          Defendant -Appellant.

                                     ________________________

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

                                           (September 28, 2011)

Before HULL, PRYOR and KRAVITCH, Circuit Judges.

PER CURIAM:

         Harry D. Pinckney appeals his 75-month sentence, which the district court

imposed after he pleaded guilty to being a felon in possession of a firearm, in
violation of 18 U.S.C. § 922(g)(1). On appeal, Pinckney contends that the district

court erred in applying a four-level enhancement to his offense level pursuant to

U.S.S.G. § 2K2.1(b)(6) because he possessed a firearm in connection with a felony

offense. Pinckney also argues that his trial counsel rendered ineffective assistance

by failing to object to the presentence investigation report’s (PSI’s) application of

§ 2K2.1(b)(6) and by failing to show that his firearm possession did not meet the

requirements for an enhancement under that section. Because the district court did

not plainly err in applying the § 2K2.1(b)(6) enhancement to Pinckney’s offense

level, and because we decline to address the merits of Pinckney’s ineffective

assistance of counsel claim in this proceeding, we affirm.

                                            I.

       Pinckney for the first time on appeal argues that the district court erred

when it applied § 2K2.1(b)(6) to enhance his sentence; accordingly, we review for

plain error. United States v. Swatzie, 228 F.3d 1278, 1281 (11th Cir. 2000). To

establish plain error, a defendant must show that there is “(1) error, (2) that is

plain, and (3) that affect[s] substantial rights . . . . 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




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judicial proceedings.” Id. (alteration in original) (internal quotation marks

omitted).

      The district court did not plainly err in its calculation of Pinckney’s

sentencing guideline range. When calculating the guideline range for a § 922(g)

firearm offense, a four-level enhancement applies if the defendant “used or

possessed any firearm or ammunition in connection with another felony

offense . . . .” U.S.S.G. § 2K2.1(b)(6). At the time of his arrest, Pinckney

possessed less than an ounce of marijuana in addition to the firearm. Because of

his prior drug convictions, however, Pinckney’s marijuana possession was

classified as a felony for sentencing purposes. 21 U.S.C. § 844(a). Despite this,

Pinckney contends that his firearm possession was not “in connection with” his

possession of marijuana and that the four-level enhancement under § 2K2.1(b)(6)

should not apply.

      We conclude that the district court did not clearly err in applying the

enhancement. “In connection with” is defined by the guidelines to mean the

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

U.S.S.G. § 2K2.1 cmt. n.14(A). Thus, the phrase “in connection with” does not

require proof that the firearm actually facilitated the other felony offense. Id. In

United States v. Jackson, 276 F.3d 1231, 1234 (11th Cir. 2007), we noted that “in

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certain circumstances, mere possession of a firearm can be enough to apply a

sentencing enhancement” when that possession occurred contemporaneously with

another felony. “For instance, where it is reasonable to assume that a defendant

possesses a firearm, even without using it, to prevent the theft of counterfeit

currency in his possession, an enhancement is properly applied.” Id.

      Based on this court’s interpretation of the “in connection with” language of

§ 2K2.1(b)(6), the district court did not commit plain error in finding that the

firearm at least had the potential to facilitate Pinckney’s marijuana possession,

possibly to prevent the theft of the marijuana.

                                          II.

      Pinckney also contends that his trial counsel was ineffective in failing to

(1) object to the § 2K2.1(b)(6) enhancement set forth in the PSI and (2) establish

that Pinckney’s firearm possession was for “self-protection” and was therefore not

“in connection with” the marijuana possession. “We will not generally consider

claims of ineffective assistance of counsel raised on direct appeal where the

district court did not entertain the claim nor develop a factual record.” United

States v. Bender, 290 F.3d 1279, 1284 (11th Cir. 2002).

      Although Pinckney raised these two claims of ineffective assistance of

counsel in a § 2255 petition before the district court, the district court did not

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reach the merits of the claims because it granted Pinckney’s petition on other

grounds. Because the district court did not entertain Pinckney’s claims or develop

a factual record, we will not consider his claims of ineffective assistance of

counsel in this appeal.

AFFIRMED.




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