USA v. Darion Antwan Hughes

[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
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No. 19-15069
Non-Argument Calendar
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D.C. Docket No. 4:19-cr-00048-WTM-CLR-1
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
DARION ANTWAN HUGHES,
Defendant-Appellant.
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Appeal from the United States District Court
for the Southern District of Georgia
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(March 8, 2021)
Before WILSON, ROSENBAUM, and BLACK, Circuit Judges.
PER CURIAM:
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Darion Hughes appeals his 63-month sentence for being a felon in
possession of a firearm, in violation of 18 U.S.C. § 922(g)(1). Hughes asserts the
district court erred by applying a sentencing enhancement for possessing a firearm
in connection with another felony offense, pursuant to U.S.S.G. § 2K2.1(b)(6)(B).
No reversible error has been shown, and we affirm Hughes’ sentence.
Under U.S.S.G. § 2K2.1, a four-level enhancement applies if the defendant
“used or possessed any firearm or ammunition in connection with another felony
offense; or possessed or transferred any firearm or ammunition with knowledge,
intent, or reason to believe that it would be used or possessed in connection with
another felony offense.” U.S.S.G. § 2K2.1(b)(6)(B). The enhancement applies
automatically in drug trafficking offenses when the firearm is found in close
proximity to drugs, drug manufacturing materials, or drug paraphernalia. United
States v. Bishop, 940 F.3d 1242, 1250 (11th Cir. 2019); U.S.S.G. § 2K2.1(b)(6)(B),
comment. n.14(B). But for other felonies, it only applies if the district court finds
the firearm facilitated or had the potential to facilitate the other felony. Bishop,
940 F.3d at 1250. The government bears the burden of proving, by a
preponderance of the evidence, the facts necessary to support a challenged
sentencing enhancement. United States v. Martinez, 584 F.3d 1022, 1027 (11th
Cir. 2009).
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The district court did not clearly err in finding the evidence supported that
Hughes possessed the firearm while conducting drug sales. See Bishop, 940 F.3d
at 1250 (“A district court’s determination that a defendant possessed a gun ‘in
connection with’ another felony offense is a finding of fact that we review for clear
error.”); United States v. Monzo, 852 F.3d 1343, 1345 (11th Cir. 2017) (stating the
district court’s choice between two permissible views of the evidence will rarely
constitute clear error, so long as the basis of the court’s decision is supported by
the record and the court did not misapply a rule of law). Hughes was told to
“[g]rab the 38” and responded by text that he “[g]ot it” around the time he was
arranging drug transactions with the same individual. “Grab the 38” can
reasonably be understood to refer to the .38 caliber pistol, as supported by
Detective Newman’s testimony, especially given that this was the same caliber
pistol Hughes pleaded guilty to possessing. Because this exchange took place
while Hughes was conducting a drug transaction on the phone, the district court
did not err by finding that Hughes possessed a gun while committing another
felony and applying U.S.S.G. § 2K2.1(b)(6)(B).
AFFIRMED.
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