UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 05-4807
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
JOSE TOMAS MACEDA CRUZ,
Defendant - Appellant.
Appeal from the United States District Court for the District of
South Carolina, at Spartanburg. Henry M. Herlong, Jr., District
Judge. (CR-05-6)
Submitted: January 31, 2006 Decided: February 15, 2006
Before NIEMEYER, LUTTIG, and DUNCAN, Circuit Judges.
Affirmed by unpublished per curiam opinion.
Jessica Salvini, SALVINI & BENNETT, L.L.C., Greenville, South
Carolina, for Appellant. Jonathan S. Gasser, United States
Attorney, Maxwell Cauthen, Assistant United States Attorney,
Greenville, South Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
See Local Rule 36(c).
PER CURIAM:
Jose Tomas Maceda Cruz, an illegal alien, pled guilty to
possession of counterfeit securities, 18 U.S.C.A. § 472 (West Supp.
2005) (Count One), and possession of a firearm by a prohibited
person, 18 U.S.C. § 922(g)(5)(A) (2000) (Count Two), and was
sentenced to a term of eighteen months imprisonment. Cruz appeals
his sentence, contending that the sentence violated United
States v. Booker, 543 U.S. 220 (2005), and that the district court
erred in finding that Cruz possessed a firearm in connection with
the counterfeiting offense. See U.S. Sentencing Guidelines Manual
§ 2K2.1(b)(5) (2004). We affirm.
Cruz was stopped for speeding and was found to be in
possession of a firearm and $120 in counterfeit currency. The
district court determined that a four-level sentence enhancement
was applicable because Cruz possessed the firearm in connection
with another felony offense; that is, his possession of the
counterfeit currency. Cruz argues that it was simply coincidence
that the gun and the counterfeit money were both present in the car
when he was stopped. In this circuit, “in connection with” has the
same meaning as “in relation to,” as used in 18 U.S.C.A. § 924(c)
(West 2000 & Supp. 2005). United States v. Blount, 337 F.3d 404,
411 (4th Cir. 2003). Thus, the weapon must facilitate or have the
potential to facilitate the other offense; its presence may not be
accidental or coincidental. Id. (citing Smith v. United States,
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508 U.S. 223, 238 (1993)). In an appropriate case, the government
may meet its burden of proof by showing that the gun “provid[ed] a
means of protection or intimidation,” Smith, 508 U.S. at 238, or
that the defendant “prepared for this contingency by keeping the
firearm close at hand.” Blount, 337 F.3d at 411. Because Cruz
chose to have the gun with him while he was in possession of
counterfeit currency, we conclude that the district court did not
clearly err in finding, impliedly, that Cruz possessed the firearm
to protect himself and his property, including the counterfeit
currency.
No Booker error occurred because the district court
treated the guidelines as advisory. See United States v. Hughes,
401 F.3d 540, 546 (4th Cir. 2005) (after Booker, sentencing court
must still make appropriate findings of fact to calculate the
guideline range and consider the range with other relevant factors
before imposing sentence).
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 argument would not aid the decisional process.
AFFIRMED
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