Amilcar Nicolas Calderon-Lopez v. Eric H. Holder, Jr.

United States Court of Appeals
FOR THE EIGHTH CIRCUIT
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No. 10-1616
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United States of America, *
*
Appellee, *
* Appeal from the United States
v. * District Court for the
* Eastern District of Missouri.
Anthony Wilson, *
* [UNPUBLISHED]
Appellant. *
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Submitted: September 20, 2010
Filed: September 29, 2010
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Before BYE, BEAM, and SMITH, Circuit Judges.
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PER CURIAM.
Anthony Wilson pleaded guilty to being a felon in possession of a firearm in
violation of 18 U.S.C. § 922(g), and the district court 1 sentenced him to an 87-month
term of imprisonment. In calculating the advisory sentencing range, the district court
applied a four-level enhancement pursuant to U.S. Sentencing Guidelines Manual
(U.S.S.G.) § 2K2.1(b)(6) after finding Wilson's possession of the firearm was in
connection with another felony offense, to wit, his possession of heroin. Wilson
appeals arguing (1) there was insufficient evidence his possession of the firearm
1The Honorable Carol E. Jackson, United States District Judge for the Eastern
District of Missouri.

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facilitated his possession of heroin, and (2) the district court's factfindings were
inadequate.
We review the district court's factual determination that a defendant possessed
a firearm in connection with another felony for clear error. United States v.
Strickland, 594 F.3d 1031, 1032 (8th Cir. 2010). When the other felony offense is
simple drug possession, rather than drug trafficking, a district court may still apply the
four-level enhancement under U.S.S.G. § 2K2.1(b)(6), but only after affirmatively
finding the weapon facilitated the drug possession offense. United States v.
Blankenship, 552 F.3d 703, 705 (8th Cir. 2009).
Wilson was apprehended with a handgun in his waistband and a small amount
of heroin (1.08 grams) on his person. In assessing whether the four-level
enhancement applied, the district court stated:
And as I understand it, there is no dispute here that the defendant's
possession of heroin that was found, whether it was on his person or in
his car, it was in his possession. And the parties don't dispute that that
is a felony. Whether it was for his possession for his own use or whether
it was for distribution, it doesn't matter. He had possession of a quantity
-- 1.08 grams of heroin -- and that is a felony. He also had possession of
a firearm, which is the subject of this indictment.
And the Application Notes provide some guidance here. Application
Note 14 provides that, "Subsection (b)(6) applies if the firearm facilitated
or had the potential of facilitating another felony offense or another
offense." And "another felony offense" is defined as, well, basically any
felony offense "other than one that involves explosives or firearms
possession or drug trafficking."
So the question here is whether the firearm that Mr. Wilson had in his
possession facilitated or had the potential of facilitating his felony
possession of heroin. And I believe that it would be appropriate to
conclude that the possession of the firearm did have the potential of
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facilitating the felony offense of possession because the firearm could be
used as a means of protecting the drugs that were in his possession and
thereby facilitating his possession of those drugs or his continued
possession of those drugs.
There is certainly no dispute that Mr. Wilson had knowing possession of
this firearm. I doubt that it was accidental that he had heroin in his
possession at the same time, and I don't believe that this is coincidental
that these two items were in his possession at the same time. Normally
when people have something of value to them in their possession, they
take measures to protect that item of value.
Unfortunately, Mr. Wilson decided to use a firearm to protect what was
of value to him; and I think that the four-level increase is appropriate.
Sent. Tr. at 16-17.
We reject Wilson's claim there was insufficient evidence for the district court
to find the firearm facilitated or had the potential to facilitate Wilson's drug
possession. Wilson argued the evidence showed the simultaneous possession of the
firearm and heroin was nothing more than coincidence, but the district court
specifically noted "when people have something of value to them in their possession
[i.e., the heroin], they take measures to protect that item of value." Id. at 17. See
Strickland, 594 F.3d at 1033 (affirming a § 2K2.1(b)(6) enhancement in a drug
possession case where a defendant gave his fear of being robbed as the reason for his
possession of a firearm, and the district court noted the only thing of value on the
defendant at the time of his arrest was drugs).
We also reject Wilson's claim that the district court's factfindings were
inadequate. The district court specifically found "the possession of the firearm did
have the potential of facilitating the felony offense of possession because the firearm
could be used as a means of protecting the drugs that were in his possession and
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thereby facilitating his possession of those drugs or his continued possession of those
drugs." Id. at 17.
Having identified no clear error, we affirm.
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