                NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
                           File Name: 13a0407n.06

                                           No. 12-1904                                   FILED
                                                                                     Apr 25, 2013
                          UNITED STATES COURT OF APPEALS                       DEBORAH S. HUNT, Clerk
                               FOR THE SIXTH CIRCUIT

UNITED STATES OF AMERICA,                            )
                                                     )
       Plaintiff-Appellee,                           )
                                                     )       ON APPEAL FROM THE
v.                                                   )       UNITED STATES DISTRICT
                                                     )       COURT FOR THE WESTERN
RESHARD MARTELL MOSES,                               )       DISTRICT OF MICHIGAN
                                                     )
       Defendant-Appellant.                          )
                                                     )



       BEFORE: COLE and COOK, Circuit Judges; KATZ, District Judge.*


       PER CURIAM. Reshard Martell Moses appeals the district court’s sentence.

       Moses pleaded guilty to being a felon in possession of a firearm, in violation of 18 U.S.C.

§ 922(g)(1). The district court determined that Moses’s base offense level was 20. The court added

four levels under U.S.S.G. § 2K2.1(b)(6)(B) because Moses possessed the firearm in connection with

the separate felony offense of possessing with intent to distribute marijuana. The court subtracted

three levels for acceptance of responsibility, resulting in a total offense level of 21. Based on the

total offense level of 21 and a criminal history category of III, Moses’s guidelines range of

imprisonment was 46 to 57 months. The district court sentenced Moses to 48 months in prison.




       *
        The Honorable David A. Katz, United States District Judge for the Northern District of
Ohio, sitting by designation.
No. 12-1904
United States v. Moses

       On appeal, Moses argues that the district court erred in two respects by applying the four-

level enhancement under § 2K2.1(b)(6)(B): (1) the prosecution failed to demonstrate that he

intended to distribute the marijuana found in his possession; and (2) the prosecution failed to

demonstrate a connection between his possession of the firearm and the marijuana offense. The

offense-level enhancement under § 2K2.1(b)(6)(B) applies where a defendant “possessed any firearm

or ammunition in connection with another felony offense.” U.S.S.G. § 2K2.1(b)(6)(B). The

prosecution must establish by a preponderance of the evidence a connection between the firearm and

an independent felony. United States v. Taylor, 648 F.3d 417, 432 (6th Cir. 2011). We review the

district court’s factual findings for clear error and accord due deference to the court’s determination

that the firearm was possessed in connection with another felony offense. Id.

       The district court did not clearly err in determining that Moses committed the independent

felony of possessing with intent to distribute marijuana. See United States v. Shields, 664 F.3d 1040,

1044 (6th Cir. 2011). The quantity and packaging of the marijuana found on Moses was consistent

with distribution, and Moses had tested negative for marijuana in four drug tests conducted as part

of his parole in the two months prior to his arrest. Based on that evidence, the district court could

reasonably conclude that Moses possessed the marijuana for the purpose of distributing it rather than

for his personal use. Further, given that officers found the marijuana and firearm in Moses’s clothing

and the incident occurred at approximately 4:00 a.m. in the parking lot of a lounge, the district court

did not err in determining that there was a sufficient connection between the firearm and the

marijuana offense to warrant an enhancement under § 2K2.1(b)(6)(B). See U.S.S.G. § 2K2.1 cmt.

n.14(B)(ii); United States v. Angel, 576 F.3d 318, 322-23 (6th Cir. 2009).

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No. 12-1904
United States v. Moses

       Accordingly, we affirm the district court’s sentence.




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