USA v. Tony Crockett

Filing

Opinion issued by court as to Appellant Tony Crockett. Decision: Affirmed. Opinion type: Non-Published. Opinion method: Per Curiam.

Case: 12-13791

Date Filed: 05/24/2013

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[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
__________________________
No. 12-13791
Non-Argument Calendar
__________________________
D.C. Docket No. 1:11-cr-20742-JAL-1
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
TONY CROCKETT,
Defendant-Appellant.
__________________________
Appeal from the United States District Court
for the Southern District of Florida
__________________________
(May 24, 2013)
Before WILSON, ANDERSON, and COX, Circuit Judges.
PER CURIAM:
Tony Crockett appeals his 51-month sentence imposed following his guilty
plea to one count of possessing a firearm after being previously convicted of a

Case: 12-13791

Date Filed: 05/24/2013

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felony in violation of 18 U.S.C. § 922(g)(1). The district court applied a four-level
enhancement pursuant to Sentencing Guideline § 2K2.1(b)(6)(B).

Crockett

challenges the application of that enhancement. After careful review, we affirm.
Crockett sold two firearms and around three grams of cocaine to an
undercover officer.

He was arrested and pleaded guilty to being a felon in

possession of a firearm.

At sentencing, the district court applied the

§ 2K2.1(b)(6)(B) four-level enhancement over Crockett’s objection, finding that
Crockett possessed a firearm “in connection with” another felony offense—his sale
of cocaine. On appeal, Crockett argues that his possession of firearms was not in
connection with his sale of cocaine because he sold both in the same transaction;
the firearms were simply part of the consideration the buyer would receive.
We review the district court’s interpretation and application of the
sentencing guidelines de novo. United States v. Rhind, 289 F.3d 690, 693 (11th
Cir. 2002). Whether a firearm was used “in connection with” a felony offense is a
factual finding that we review for clear error. United States v. Whitfield, 50 F.3d
947, 949 & n.8 (11th Cir. 1995).
Guideline § 2K2.1(b)(6)(B) calls for a four-level enhancement when the
defendant “possessed any firearm . . . in connection with another felony offense.”
U.S. Sentencing Guidelines Manual § 2K2.1(b)(6)(B).
2

The question here is

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whether Crockett’s sale of firearms and drugs together constitutes the possession of
a firearm “in connection with” a felony offense—the sale of cocaine.
The phrase “in connection with” is not defined in the Guidelines. However,
the commentary to § 2K2.1 explains what “in connection with” means.
Application Note 14(A) says that the application of the enhancement is warranted
if the firearm “facilitated, or had the potential of facilitating, another felony
offense.”

U.S. Sentencing Guidelines Manual § 2K2.1 cmt. n.14(A).

The

commentary to the Guidelines is “authoritative unless it violates the Constitution or
a federal statute, or is inconsistent with, or a plainly erroneous reading of, that
guideline.” Stinson v. United States, 508 U.S. 36, 38, 113 S. Ct. 1913, 1915
(1993). Crockett does not contend that the commentary to § 2K2.1 violates the
Constitution, violates a federal statute, or is inconsistent with the guideline. We
therefore give the commentary authoritative weight.
Here, we cannot say that the district court clearly erred in concluding that
Crockett’s possession of the firearms was “in connection with” his sale of cocaine.
The district court found that the possession of “the firearms had the potential of
facilitating . . . the possession with intent to distribute” cocaine. (R.4 at 19.)
Moreover, the firearms were in close proximity to the drugs. See U.S. Sentencing
Guidelines Manual § 2K1.2 cmt. n.14(B) (noting that the application of the
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enhancement is warranted in a drug trafficking offense case when the firearm is
found in “close proximity” to the drugs). Finally, we note that the fact that the
firearms were not used to embolden or protect Crockett while selling the cocaine
does not change our conclusion. We have never held that the application of the
§ 2K2.1(b)(6)(B) enhancement is appropriate only when a defendant uses a firearm
to embolden or protect himself. As long as the firearms facilitated, or had the
potential of facilitating, another felony offense, application of the enhancement is
not improper. In this case, the district court did not clearly err in finding that
Crockett possessed the firearms in connection with the sale of cocaine. Thus, the
court did not err in applying the four-level enhancement of § 2K2.1(b)(6)(B).
AFFIRMED.

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