                                                      NOT PRECEDENTIAL

             UNITED STATES COURT OF APPEALS
                  FOR THE THIRD CIRCUIT
                       _____________

                           No. 11-1681
                          _____________

                 UNITED STATES OF AMERICA

                                 v.

                        JERRY JAY JONES,
                                     Appellant
                         _______________

           On Appeal from the United States District Court
              for the Western District of Pennsylvania
                    (D.C. No. 09-cr-00003-001)
                District Judge: Hon. Kim R. Gibson
                          _______________

             Submitted Under Third Circuit LAR 34.1(a)
                         January 13, 2012

Before: McKEE, Chief Judge, FUENTES, and JORDAN, Circuit Judges.

                      (Filed: January 17, 2012)
                          _______________

                    OPINION OF THE COURT
                        _______________
JORDAN, Circuit Judge.

       Jerry Jay Jones appeals the judgment of the United States District Court for the

Western District of Pennsylvania sentencing him to 72 months’ imprisonment for

distributing less than 50 kilograms of marijuana, in violation of 21 U.S.C. § 841, and

possession of a firearm by a convicted felon, in violation of 18 U.S.C. §§ 922(g)(1) and

924(a)(2). For the following reasons, we will affirm.

I.     Background

       A.    Factual History

       On February 7, 2008, two confidential informants disclosed to the Cambria

County Drug Task Force that they could purchase marijuana from Jones. Thereafter, an

undercover officer drove the two informants to Jones’s apartment in Johnstown,

Pennsylvania, where they paid him $500 for 109 grams of marijuana. Jones told the

informants that he could provide them with more marijuana as needed.

       The following day, Jones was arrested with $2,000 in cash, $490 of which was

identified as the money used by the confidential informants to purchase the marijuana. A

search warrant was obtained for Jones’s apartment, where officers found a scale and six-

to-seven ounces of marijuana inside his bedroom. The marijuana was split into smaller

bags and stored in a plastic container and a shoe box inside his closet. The officers also

found a fully-loaded Regent .32 caliber revolver with an obliterated serial number and a

box of .32 caliber ammunition on the nightstand, situated approximately nine feet from

the drugs.



                                            2
       A grand jury later returned a two-count indictment against Jones, charging him

with distributing less than 50 kilograms of marijuana, in violation of 21 U.S.C.

§§ 841(a)(1) and 841(b)(1)(D), and possessing a firearm as a convicted felon,1 in

violation of 18 U.S.C. §§ 922(g)(1) and 924(a)(2).

       B.       Procedural History

       Jones pleaded guilty to both counts of the indictment, and, on November 16, 2010,

the United States Probation Office filed a Presentence Investigation Report (“PSR”)

assigning Jones a base offense level of 20, pursuant to U.S.S.G. § 2K2.1(a)(4)(A). That

offense level was increased by four levels because Jones possessed a firearm in

connection with another felony offense, U.S.S.G. § 2K2.1(b)(6), and it was raised four

more because the firearm had an obliterated serial number, U.S.S.G. § 2K2.1(b)(4).

Finally, there was a three-level reduction because Jones had apparently accepted

responsibility for his crimes, U.S.S.G. §§ 3E1.1(a) and 3E1.1(b). The PSR thus assigned

Jones a total offense level of 25.

       Based on Jones’s prior convictions, the PSR listed a total of ten criminal history

points, placing him in criminal history category V. That calculation included three

criminal history points because Jones was incarcerated for a September 21, 1991

conviction for simple assault and witness intimidation within fifteen years of the

commission of the instant offense and because the maximum sentence for that 1991

conviction exceeded one year and one month. See U.S.S.G. § 4A1.1(a) (calling for the

addition of three criminal history points for a conviction resulting in a sentence of

       1
           Jones had a prior felony conviction for aggravated assault.
                                               3
imprisonment exceeding one year and one month); U.S.S.G. § 4A1.2(e)(1) (applying that

enhancement where the prior sentence resulted in the defendant being incarcerated within

fifteen years of the commission of the pending offenses). Jones’s criminal history and

total offense level resulted in a guideline range of 100 to 120 months’ imprisonment.

       Jones objected to the PSR on several grounds, two of which are the subject of this

appeal. First, he challenged the four-level enhancement for possession of a firearm in

connection with another felony. Second, he challenged the three-point addition to his

criminal history computation.

       With respect to Jones’s challenge to the offense level, the District Court found that

the evidence and testimony “establishe[d] that the defendant possessed the firearm in

connection with another felony offense” because “the weapon was in close proximity to

the drugs and [had] the potential to facilitate another felony offense.” (App. at 107.)

With respect to the criminal history challenge, the District Court found that, “based upon

the documents provided[,] the defendant was incarcerated for the subject offense within

the 15-year time period.” (Id.)

       After rejecting Jones’s other challenges to the PSR, the District Court sentenced

him to 36 months’ imprisonment for Count One and 72 months’ imprisonment for Count

Two, to be served concurrently, followed by concurrent three-year terms of supervised

release.




                                             4
II.    Discussion2

       Jones argues that the District Court erred in applying a four-level enhancement to

 his sentence for possessing a firearm in connection with a drug trafficking offense. He

 also argues that the District Court erred in concluding that his prior conviction for

 simple assault and witnesses intimidation fell within the applicable fifteen-year time

 period for purposes of adding three points to his criminal history computation. We

 “review factual findings relevant to the Guidelines for clear error and … exercise

 plenary review over a district court’s interpretation of the Guidelines.” United States v.

 Grier, 475 F.3d 556, 570 (3d Cir. 2007) (en banc).

       A.     Four-Level Enhancement Pursuant To § 2K2.1(b)(6)

       Jones argues that the gun-related enhancement to his offense level was improper

because the government did not prove that he possessed a gun on the day he sold

marijuana to the confidential informants.         “Proper application of the four-level

enhancement under § 2K2.1(b)(6) requires finding, by a preponderance of the evidence,

that the defendant used or possessed a firearm; that the defendant committed another

felony offense, regardless of whether a criminal charge was brought or a conviction

obtained; and that the firearm facilitated, or had the potential of facilitating, the felony

offense.” United States v. West, 643 F.3d 102, 110 (3d Cir. 2011).

       According to Jones, because the firearm first came to light on February 8, 2008

when the police executed a search warrant of his home, the enhancement for possessing it


       2
          The District Court had jurisdiction pursuant to 18 U.S.C. § 3231. We have
jurisdiction pursuant to 28 U.S.C. § 1291 and 18 U.S.C. § 3742(a).
                                             5
in connection with another felony was improper. He claims that even if the firearm had

been in his apartment during the February 7 drug transaction, it was in a different, closed

room of the apartment, and neither the confidential informants, nor the police, knew of its

existence. Thus, he argues, the firearm did not facilitate, and could not have facilitated,

his drug offense. Finally, he argues that he possessed the firearm to protect himself, not

to facilitate his drug trafficking.3

       Jones’s arguments are unpersuasive. It is undisputed that the firearm was found in

the same one-bedroom apartment where he sold marijuana only the day before. Given

the physical proximity between the weapon and the drugs discovered during the February

8 search, as well as the temporal proximity of the discovery of the gun to the February 7

marijuana sales, the District Court did not commit clear error in concluding that the

weapon facilitated or had the potential of facilitating Jones’s drug offense. Jones’s

arguments that the gun was not actually used in connection with the charged offense are

unavailing, as the weapon need only have the potential to be used in connection with a

felony offense.4 See West, 643 F.3d at 110 (noting that application of § 2K2.1 only




       3
         Specifically, Jones’s counsel argues that because his mother was slain when he
was nine years old, Jones had the “misguided belief that he had to have a gun to protect
himself.” (Appellant’s Opening Br. at 19 (internal quotation marks omitted).)
       4
          While the record is unclear as to whether the District Court applied the four-
level enhancement to Jones’s criminal offense computation in connection with the
charged offense of distribution or the uncharged offense of possession with intent to
distribute (stemming from the discovery, during the February 8 search, of marijuana
packaged for sale), the enhancement can be justified on either or both grounds. See
Fairview Twp., York Cnty., Com. of Pa. v. U.S. E.P.A., 773 F.2d 517, 525 n.15 (3d Cir.
1985).
                                            6
requires that “the firearm facilitated, or had the potential of facilitating, the felony

offense” (emphasis added)).

      B.     Three-Point Enhancement Pursuant To § 4A1.1(a)

      Jones also argues that the District Court erred in assigning him three criminal

history points after accepting the PSR’s conclusion that he was incarcerated in connection

with another offense during the relevant fifteen-year time period.       The Sentencing

Guidelines provide for an enhancement of three points for a prior sentence of

imprisonment exceeding one year and one month, U.S.S.G. § 4A1.1(a), that resulted in

the defendant being incarcerated within fifteen years of the commission of the instant

offenses, U.S.S.G. § 4A1.2(e)(1).      When parole is revoked, the original term of

imprisonment is added to any term imposed upon revocation in calculating the duration

of the sentence. U.S.S.G § 4A1.2(k)(1). Jones claims that the records relied upon in the

PSR do not show the date of his release from incarceration or if he served his sentence in

an alternative housing program.

      Because the offense for which Jones is now being sentenced occurred at the latest

on February 8, 2008,5      in order to apply a three-point enhancement pursuant to

§ 4A1.1(a), the District Court was required to find that Jones was incarcerated after

February 8, 1993 for a prior offense bearing a sufficient maximum term of




      5
        While the offense charged in Count One, distribution of marijuana, occurred on
February 7, 2008, the offense charged in Count Two, unlawful possession of a firearm by
a convicted felon, occurred on February 8, 2008.
                                            7
imprisonment.6 The basis for such a finding exists in the prior sentence Jones received

for crimes committed in 1991 that resulted in Jones’s guilty plea to a four-count

indictment charging him with simple assault and witness intimidation. In connection

with those offenses, the Pennsylvania Court of Common Pleas sentenced Jones to a term

of imprisonment of not less than four months and not more than twelve months. Jones’s

sentence also included four years of probation. On February 8, 1993, Jones’s probation

for his 1991 offenses was revoked because he was charged with aggravated assault and

carrying a firearm without a license.      His probation was converted to a term of

imprisonment of not less than six months and not more than twelve months, with a

recommendation for alternative housing in a local drug treatment facility. Adding the

original maximum sentence to the maximum sentence imposed upon revocation, a

sentence of imprisonment exceeding one year and one month was imposed. The three-

point enhancement under § 4A1.1(a) was thus proper as long as Jones was incarcerated

for the prior crime within fifteen years of committing the now-pending offenses.

      Jones argues that the records relied upon by the District Court do not show the

date of his last release from incarceration in connection with the 1991 offenses, nor do

these records show whether he served his sentence in alternative housing, in which case

(he asserts) he would not have served time in prison for purposes of assessing the

applicability of § 4A1.1(a). Those arguments are unavailing.




      6
        The duration of the prior sentence is calculated on the basis of the maximum
sentence imposed. U.S.S.G. § 4A1.2(b)(1).
                                            8
       The District Court concluded that because Jones’s probation for his 1991 offenses

was revoked on February 8, 1993, he was in jail within the fifteen-year time period of

Jones’s commission of the instant offense. Jones acknowledges that he was in prison on

that date, but claims that he was serving a sentence for a different offense and argues that

the government has not proven that he did not serve his sentence for the 1991 offenses at

an alternative housing facility. There is, however, ample evidence in the record to have

allowed the District Court to conclude that Jones was imprisoned within the revenant

fifteen-year period for the 1991 offenses. It was not the government’s burden to negate

every conceivable scenario Jones could advance for why he might have been in prison for

something other than those crimes. The District Court therefore did not commit clear

error in applying a three-point addition to his criminal history score.

III.   Conclusion

       For the forgoing reasons, we will affirm the judgment of the District Court.




                                              9
