UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v. No. 02-4966
ANTHONY TERRELL GARNER,
Defendant-Appellant.
Appeal from the United States District Court
for the District of South Carolina, at Orangeburg.
Cameron M. Currie, District Judge.
(CR-01-945)
Submitted: May 12, 2003
Decided: June 2, 2003
Before NIEMEYER and LUTTIG, Circuit Judges,
and HAMILTON, Senior Circuit Judge.
Affirmed by unpublished per curiam opinion.
COUNSEL
Allen B. Burnside, Assistant Federal Public Defender, Columbia,
South Carolina, for Appellant. J. Strom Thurmond, Jr., United States
Attorney, Stacey D. Haynes, Assistant United States Attorney,
Columbia, South Carolina, for Appellee.
2 UNITED STATES v. GARNER
Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).
OPINION
PER CURIAM:
Anthony Terrell Garner pled guilty to two counts of possession of
a firearm by a convicted felon, 18 U.S.C. § 922(g)(1) (2000) (Counts
1 and 2), and one count of possession with intent to distribute mari-
juana, 21 U.S.C. § 841(b)(1)(D) (2000) (Count 4). He received con-
current sentences of 120 months for the firearms offenses and sixty
months for the marijuana offense. Garner appeals his sentence, argu-
ing that the district court erred in making a four-level enhancement
pursuant to U.S. Sentencing Guidelines Manual § 2K2.1(b)(5) (2001),
after finding that he possessed a firearm in connection with another
felony offense. We affirm.
On January 1, 2001, Garner was arrested on a number of state
charges, including unlawful possession of two firearms, one of them
a stolen pistol. On April 3, 2002, a federal search warrant was exe-
cuted at the mobile home where Garner lived with his girlfriend. Law
enforcement officers seized 31.4 grams of marijuana packaged for
sale and stored in a zip-lock plastic bag, another 54.95 grams of mari-
juana packaged for sale and stored in a Crown Royal bag, and a small
amount of cocaine that Garner had in his pants pocket. They also
found an unloaded .380 caliber pistol under the mattress of Garner’s
bed. Garner admitted that the gun and the marijuana were his and pled
guilty to the instant offenses.
At sentencing, the district court determined that Garner possessed
the gun seized from his residence on April 3 in connection with his
marijuana dealing, despite Garner’s testimony that he bought the gun
for the sole purpose of selling it and did not sell drugs from his home.
A factor in the court’s decision was Garner’s statement at the sentenc-
ing hearing that he had in the past carried a gun for protection while
selling marijuana and later sold that gun.
Because Garner admitted that the gun seized on April 3 belonged
to him, the only issue on appeal is whether the district court correctly
UNITED STATES v. GARNER 3
determined that he possessed it in connection with his marijuana
offense. The parties agree that the phrase "in connection with," as
used in § 2K2.1(b)(5), has been held by this Court to have the same
meaning as it does in § 2K2.1(c)(1), and that both phrases are analo-
gous to the "in relation to" language in 18 U.S.C. § 924(c) (2000). See
United States v. Garnett, 243 F.3d 824, 828 & n.6 (4th Cir. 2001).
The district court’s factual findings with respect to applicability of the
enhancement are reviewed for clear error. Id. at 828. To prove that a
firearm was possessed "in relation to" another felony, the government
must show that the gun had "some purpose or effect with respect to"
the other felony, and facilitated or had the potential to facilitate the
other offense. United States v. Lipford, 203 F.3d 259, 266 (4th Cir.
2000) (quoting Smith v. United States, 508 U.S. 223, 237 (1993)). The
presence of the firearm may not be simply accidental or coincidental,
but it is sufficient "if the firearm was present for protection or to
embolden the actor." Id. (citing United States v. Mitchell, 104 F.3d
649, 654 (4th Cir. 1997)).
Garner argues that no reliable evidence established a connection
between his drug sales and the pistol found in his home. He suggests
that his case is like United States v. Wilson, 115 F.3d 1185, 1191-92
(4th Cir. 1997) (reversing § 924(c) conviction where informant who
approached the defendant to buy marijuana bought rifle instead,
because there was no evidence that the rifle facilitated or had the
potential to facilitate a drug offense). Wilson is distinguishable from
Garner’s case, however, because Garner admitted that he had used a
gun to protect himself while selling drugs. The gun seized from Gar-
ner’s house had the potential to facilitate his drug dealing. Garner
could easily have obtained ammunition for the gun and, even
unloaded, the gun could have been used to intimidate. Therefore, the
district court did not clearly err in finding that Garner possessed the
gun in connection with his drug business.
We therefore affirm the sentence imposed by the district court. We
dispense with oral argument because the facts and legal contentions
are adequately presented in the materials before the court and argu-
ment would not aid the decisional process.
AFFIRMED