                                                             [DO NOT PUBLISH]


               IN THE UNITED STATES COURT OF APPEALS

                        FOR THE ELEVENTH CIRCUIT
                          ________________________                   FILED
                                                            U.S. COURT OF APPEALS
                                 No. 09-14605                 ELEVENTH CIRCUIT
                                                                  MARCH 2, 2010
                             Non-Argument Calendar
                                                                   JOHN LEY
                           ________________________
                                                                    CLERK

                     D. C. Docket No. 09-00003-CR-AAA-4

UNITED STATES OF AMERICA,


                                                                   Plaintiff-Appellee,

                                      versus

JOE JOHNSON,

                                                             Defendant-Appellant.

                           ________________________

                   Appeal from the United States District Court
                      for the Southern District of Georgia
                        _________________________
                                (March 2, 2010)

Before BARKETT, HULL and KRAVITCH, Circuit Judges.

PER CURIAM:

      Joe Johnson appeals his 115-month sentence, imposed following his guilty

plea to possession of a firearm by a convicted felon. We affirm.
      Pursuant to a written plea agreement, Johnson pleaded guilty to possession

of a firearm by a convicted felon, in violation of 18 U.S.C. § 922(g). According to

the presentence investigation report (“PSI”), police obtained a search warrant for

the home Johnson shared with his girlfriend. Upon executing the warrant, police

found a firearm that had been reported stolen six months earlier, marijuana, and

scales and baggies used to package drugs. When Johnson returned home and was

arrested, he admitted that he purchased the firearm and that the marijuana was his.

He further admitted selling “a little bit” of marijuana. The amount of marijuana

found was 29.4 grams.

      The probation officer assigned a base offense level of 24 under U.S.S.G.

§ 2K2.1(a)(2) because Johnson had at least two prior felony convictions. That

level was increased by two because the firearm was stolen, § 2K2.1(b)(4), and by

four because Johnson possessed the firearm in connection with the sale of

marijuana, § 2K2.1(b)(6). With a 3-level reduction for acceptance of

responsibility, the total adjusted offense level was 27. Johnson had a lengthy

criminal history, which placed him in category VI, and the applicable guidelines

range was 130 to 162 months’ imprisonment. By statute, however, the maximum

sentence was 120 months and this became the guidelines range. See 18 U.S.C.

§ 924(a)(2); U.S.S.G. § 5G1.1(a).



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      Johnson objected to the base offense level and the two enhancements. First,

Johnson argued that his prior convictions had been consolidated for trial and

sentencing, which, under state law, made them one conviction. The court agreed

with Johnson and, accordingly, assigned a base offense level of 20 under

§ 2K2.1(a)(4).

      Johnson also objected to the enhancement for a stolen firearm, arguing that

there was no evidence, other than a preliminary report, that the gun had been

stolen. The government called ATF agent Lee Hoover to testify that he was

familiar with the initial report taken by an officer no longer with the police

department and that he had interviewed the owner of the gun. Based on this

testimony, Johnson withdrew his objection.

      Finally, Johnson objected to the enhancement for possession in connection

with another felony offense, asserting that the “smidgen” of marijuana police found

was not what the guideline enhancement was intended to reach. The court stated

that there was evidence that Johnson was in the drug business, and the government

confirmed that Johnson had admitted selling marijuana. The government further

explained that possession of even a small amount would qualify as a felony offense

because Johnson had prior drug convictions. The court overruled the objection,

recalculated the guidelines range to be 92 to 115 months’ imprisonment, and



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sentenced Johnson to 115 months. Johnson now appeals.

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

application of the law to those facts de novo. United States v. Williams, 527 F.3d

1235, 1247-48 (11th Cir. 2008) (internal citations omitted). Arguments raised for

the first time on appeal are reviewed for plain error. United States v. Sanchez, 586

F.3d 918, 930, n.30 (11th Cir. 2009). To establish plain error, a defendant must

show there is (1) error, (2) that is plain, and (3) that affects substantial rights. If all

three conditions are met, we may exercise our discretion to recognize a forfeited

error, but only if the error seriously affect[s] the fairness, integrity or public

reputation of judicial proceedings. Id. at n.30.

       Johnson raises two challenges to the district court’s calculations of his

guidelines range. First, he argues that the district court improperly applied the

enhancement for a stolen firearm under U.S.S.G. § 2K2.1(b)(4). Second, he argues

that he did not possess the firearm in connection with another felony offense under

§ 2K2.1(b)(6). We address each in turn.

       a. Stolen Firearm 1

       Section 2K2.1(b)(4) instructs the court to impose a two-level increase in the


       1
          Johnson abandoned his challenge to the enhancement for a stolen firearm when he
withdrew the objection to the enhancement during sentencing. See United States v. Masters, 118
F.3d 1524, 1526 (11th Cir. 1997). The government, however, did not raise this argument and
contends that plain error review is appropriate.

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offense level if the firearm involved was stolen. U.S.S.G. § 2K2.1(b)(4)(A).

      “The district court’s factual findings for purposes of sentencing may be

based on, among other things, evidence heard during trial, undisputed statements in

the PSI, or evidence presented during the sentencing hearing.” United States v.

Polar, 369 F.3d 1248, 1255 (11th Cir. 2004).

      Here, the government presented testimony that ATF agent Hoover had

interviewed the owner of the gun, the owner confirmed the serial number of the

gun, and the serial number matched the firearm taken from Johnson’s home. This

was sufficient for the court to impose the enhancement

      b. Another Felony Offense

      Section 2K2.1(b)(6) provides for a four-level increase in the base offense

level if the defendant possessed any firearm in connection with another felony

offense. U.S.S.G. § 2K2.1(b)(6). “Felony offense” is defined as “any federal,

state, or local offense. . . punishable by imprisonment for a term exceeding one

year, regardless of whether a criminal charge was brought, or a conviction

obtained.” U.S.S.G. § 2K2.1, comment. (n.14(C)) (emphasis added).

       Here, Johnson was found with drugs, baggies, and scales, which is

consistent with selling drugs, and Johnson admitted selling some marijuana. This

evidence was sufficient to constitute a felony for possession of drugs with intent to



                                          5
distribute under 21 U.S.C. § 841(a). The fact that Johnson was not charged with a

felony is not relevant. U.S.S.G. § 2K2.1, comment. (n.14(C)).

      Accordingly, we conclude that the district court properly calculated

Johnson’s sentencing range.

      AFFIRMED.




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