     Case: 18-40601      Document: 00514948882         Page: 1    Date Filed: 05/08/2019




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT
                                                                          United States Court of Appeals
                                                                                   Fifth Circuit

                                                                                 FILED
                                      No. 18-40601                            May 8, 2019
                                                                            Lyle W. Cayce
UNITED STATES OF AMERICA,                                                        Clerk


              Plaintiff - Appellee

v.

ISAAC DWAYNE CALDWELL,

              Defendant - Appellant



                   Appeal from the United States District Court
                        for the Southern District of Texas
                             USDC No. 2:17-CR-774-1


Before HIGGINBOTHAM, JONES, and COSTA, Circuit Judges.
PER CURIAM:*
       The Defendant Isaac Caldwell pled guilty to being a felon in possession
of a firearm.     The district court applied a sentencing enhancement over
Caldwell’s objection for possessing a firearm in connection with another felony
offense, namely, drug trafficking.          We conclude that the enhancement is
applicable and thus AFFIRM.




       * Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH
CIR. R. 47.5.4.
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                                No. 18-40601

                              BACKGROUND
      In October 2017, the Bureau of Alcohol, Tobacco, and Firearms learned
that Caldwell was seeking a source to supply him with cocaine. An undercover
ATF agent posed as a seller and contacted Caldwell to discuss a possible sale.
The agent learned that Caldwell planned to distribute the cocaine to other
people. Caldwell told the agent that “the people with the money were located
in Atlanta, Georgia,” but that he had several firearms that he could give the
agent as a down payment for the drugs. The agent agreed to this arrangement.
      Caldwell met the agent in a movie theater parking lot, where Caldwell
gave the agent a rifle and over one thousand rounds of ammunition. Caldwell
then drove away. There were no drugs at the scene of the encounter. After the
encounter, the agent continued to communicate with Caldwell regarding the
sale, but no cocaine was ever exchanged with Caldwell.
      Caldwell was eventually arrested and indicted for being a felon in
possession of a firearm in violation of 18 U.S.C. §§ 922(g)(1) and 924(a)(2).
Caldwell pleaded guilty without a plea agreement. At sentencing and over
Caldwell’s objection, the district court applied a four-level sentencing
enhancement pursuant to U.S.S.G. § 2K2.1(b)(6)(B) for possessing a firearm in
connection with another felony offense. Caldwell was ultimately sentenced to
77 months in prison.       Caldwell now appeals the application of the
enhancement.
                         STANDARD OF REVIEW
      “This court reviews the district court’s application of the Sentencing
Guidelines de novo and its factual findings for clear error. In determining
whether a Guidelines enhancement applies, the district court is allowed to
draw reasonable inferences from the facts, and these inferences are fact
findings reviewed for clear error.” United States v. Coleman, 609 F.3d 699, 708


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                                  No. 18-40601

(5th Cir. 2010) (internal citation omitted). “The district court’s determination
of the relationship between the firearm and another offense is a factual
finding.” Id.
                                 DISCUSSION
      We conclude that the district court correctly applied the sentencing
enhancement to Caldwell. Under that enhancement, “[i]f the defendant . . .
used or possessed any firearm or ammunition in connection with another
felony offense . . . increase by 4 levels.” U.S.S.G. § 2K2.1(b)(6)(B). The relevant
Application Notes provide more explanation. Application Note 14(A) is labeled
“In General” and states that the enhancement applies “if the firearm or
ammunition facilitated, or had the potential of facilitating, another felony
offense or another offense, respectively.”      U.S.S.G. § 2K2.1 cmt. n. 14(A).
Application Note 14(B) is labeled “Application When Other Offense is Burglary
or Drug Offense.” It states that the enhancement applies “in the case of a drug
trafficking offense in which a firearm is found in close proximity to drugs, drug-
manufacturing materials, or drug paraphernalia.” U.S.S.G. § 2K2.1 cmt. n.
§ 14(B).
      A glance at the titles of these application notes might suggest that Note
14(B) applies exclusively when the “other offense” is burglary or drug
trafficking offenses, and Note 14(A) applies when the “other offense” is
everything else. A closer examination, however, reveals that Note 14(B) is not
the exclusive way in which the enhancement applies to drug trafficking
offenses. Therefore, 14(A) may apply when the other offense is one for drug
trafficking.
       First, nothing in 14(B)’s text indicates that it creates the exclusive rule
when drug trafficking is the “other offense.” It says that the Guideline applies
“in the case of a drug trafficking offense in which a firearm is found in close


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proximity to drugs,” not that the Guideline applies only in such a case. It is
true that this court said in United States v. Jeffries that while Note 14(B)
applies to drug trafficking offenses, “all other felony offenses” fall under Note
14(A).     587 F.3d 690, 692–93 (5th Cir. 2009).           But the court made this
statement to clarify that 14(B) does not apply to mere drug possession (as
opposed to trafficking). See id. at 693. In other words, Jeffries does not mean
that for drug trafficking, 14(B) is the only relevant application note, unlike
drug possession.
         Additionally, other circuits all indicate that meeting 14(B) is a sufficient
but not necessary way in which the enhancement may apply to drug trafficking
offenses. See United States v. Paneto, 661 F.3d 709, 717-18 (1st Cir. 2011);
United      States   v.   Jenkins,   566    F.3d    160,    163     (4th   Cir.   2009);
United States v. Fuentes Torres, 529 F.3d 825, 827 (8th Cir. 2008). Indeed, the
Sentencing Commission adopted 14(B) as a “second clarification” after 14(A) to
explain that “in the case of a drug trafficking offense, there is a sufficient nexus
between the gun and the offense when the firearm is found in close proximity
to the drugs.” Paneto, 661 F.3d at 717 (internal quotation marks and emphasis
omitted). That clarification highlights one way in which a gun can facilitate a
drug trafficking offense, not the only way.           See United States v. Reyes,
668 F. App’x 858, 858–59 (11th Cir. 2016) (explaining, in a drug trafficking
case, that section 2K2.1(b)(6)(B) applies if the gun facilitated an offense under
Note 14(A) and “also applies” under Note 14(B) if the other offense is drug
trafficking; upholding enhancement against defendant who sold gun and drugs
in one transaction because the sale of the gun “both facilitated the
simultaneous drug transaction and had the potential to facilitate future drug
resale transactions”). For these reasons, we conclude that Note 14(B) is not




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the exclusive way in which § 2K2.1(b)(6)(B) can apply to drug trafficking
offenses.
      Because 14(B) is not exclusive, 14(A), the general rule, may apply to
Caldwell. Caldwell gave the ATF agent a gun as a down payment for drugs.
Thus, “the firearm . . . facilitated, or had the potential of facilitating, another
felony offense or another offense, respectively,” namely, attempted drug
trafficking. U.S.S.G. § 2K2.1 cmt. n. 14(A). The district court did not clearly
err in finding that the gun facilitated Caldwell’s attempted trafficking offense.
      The district court’s sentence is therefore AFFIRMED.




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