[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FILED
FOR THE ELEVENTH CIRCUIT U.S. COURT OF APPEALS
________________________ ELEVENTH CIRCUIT
JULY 29, 2010
No. 10-10499 JOHN LEY
Non-Argument Calendar CLERK
________________________
D. C. Docket No. 1:09-cr-20560-JAL-1
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
SELWYN EMERSON HAZEL,
Defendant-Appellant.
________________________
Appeal from the United States District Court
for the Southern District of Florida
_________________________
(July 29, 2010)
Before HULL, WILSON and FAY, Circuit Judges.
PER CURIAM:
After pleading guilty, Selwyn Emerson Hazel appeals his 100-month
sentence for possession of a firearm by a convicted felon, in violation of 18 U.S.C.
§ 922(g)(1). On appeal, Hazel argues that the district court erred in applying a
four-level enhancement, under U.S.S.G. § 2K2.1(b)(6), for possessing the firearm
in connection with another felony offense. After review, we affirm.1
Under U.S.S.G. § 2K2.1(b)(6), a defendant’s base offense level is increased
by four levels if “the defendant used or possessed any firearm or ammunition in
connection with another felony offense . . .” U.S.S.G. § 2K2.1(b)(6). “Another
felony offense” includes crimes that would be punishable by imprisonment for a
term exceeding one year under federal, state, or local law, “regardless of whether a
criminal charge was brought, or a conviction obtained.” U.S.S.G. § 2K2.1 cmt.
n.14(C). The “in connection with” requirement is satisfied when “the firearm . . .
facilitated, or had the potential of facilitating, another felony offense . . . .”
U.S.S.G. § 2K2.1 cmt. n.14(A). The guidelines commentary clarifies that the four-
level enhancement applies when the other felony offense is a “drug trafficking
offense” and the “firearm is found in close proximity to drugs . . . because the
presence of the firearm has the potential of facilitating another felony offense . . . .”
U.S.S.G. § 2K2.1 cmt. n.14(B).
1
We review a district court’s application of the Sentencing Guidelines de novo and its factual
findings for clear error. United States v. Smith, 480 F.3d 1277, 1278 (11th Cir. 2007).
2
Here, the district court properly applied § 2K2.1(b)(6)’s four-level
enhancement. The Presentence Investigation Report (“PSI”) recounted these facts,
which Hazel did not dispute and thus admitted. See United States v. Wade, 458
F.3d 1273, 1277 (11th Cir. 2006) (“It is the law of this circuit that a failure to
object to allegations of fact in a PSI admits those facts for sentencing purposes.”)
While conducting surveillance on a street-level drug dealer at an apartment
complex, police officers saw Hazel arrive in a taxicab and purchase a small baggie
of a white substance from the drug dealer. Because the taxicab did not wait, Hazel
left the area on foot. An officer approached Hazel and told him, “Don’t get rid of
the dope.” The officer then saw Hazel throw the baggie of white powder into the
grass in an abandoned lot. When Hazel began to reach into his right pocket, the
officer grabbed him and placed plastic flex cuffs on his left hand. Hazel elbowed
the officer in the chest and broke free, running approximately five feet before the
officer tackled him to the ground. During the struggle, Hazel continued to try to
reach for his right pocket. After Hazel was subdued, officers found a loaded .38
caliber revolver in his right front pants pocket. Officers were unable to find the
baggie of white powder Hazel had thrown away.
At the sentencing hearing, Detective Andy Valdes testified that on the
morning of Hazel’s arrest, he observed the drug dealer conduct five other drug
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transactions that resulted in arrests, after which officers recovered cocaine and
marijuana. From a car parked approximately twenty to thirty feet away, Detective
Valdes used binoculars to watch as Hazel exited the taxicab, walked up to the drug
dealer and handed him U.S. currency. In exchange, the drug dealer gave Hazel a
small plastic baggie of white powder. Detective Valdes described the baggie Hazel
purchased as roughly one-half inch square.
Hazel does not dispute that his cocaine purchase is “another felony offense”
within the meaning of U.S.S.G. § 2K2.1(b)(6). See Fla. Stat. § 893.13(2)(a)(1)
(providing that purchase of cocaine under Florida Statute § 893.03(2)(a)
—irrespective of quantity—is a second-degree felony). Instead, Hazel argues that,
because he purchased only a small, personal-use amount, he did not commit a
“drug trafficking offense.” However, application of § 2K2.1(b)(6) is not limited to
drug trafficking offenses. Rather, § 2K2.1(b)(6) applies to “another felony
offense,” which includes a felony drug offense that does not involve trafficking.
See U.S.S.G. § 2K2.1 cmt. n.14(A). The commentary to U.S.S.G. § 2K2.1(b)(6)
merely clarifies that, when the other felony offense is a drug trafficking offense, to
satisfy the “in connection with” requirement, the drugs must be found in close
proximity to the firearm. See U.S.S.G. § 2K2.1 cmt. n.14(B)(ii). Thus, whether
Hazel’s other felony is a drug trafficking offense is immaterial, so long as his
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possession of the firearm “facilitated, or had the potential of facilitating” the other
felony.
Hazel’s argument that § 2K2.1(b)(6) requires an affirmative finding that the
gun actually facilitated the cocaine purchase is also meritless. The commentary to
§ 2K2.1(b)(6) plainly states that for a firearm to be possessed “in connection with
another felony offense,” it need only have the “potential of facilitating” the other
felony offense. See U.S.S.G. § 2K2.1 cmt. n.14(A). This Court has concluded that
possession of a single bag of cocaine is an offense for which “mere possession of a
firearm” is sufficient to trigger the § 2K2.1(b)(6) enhancement. See United States
v. Smith, 480 F.3d 1277, 1279-81 (11th Cir. 2007) (concluding that district court
properly applied § 2K2.1(b)(6) enhancement where officer saw defendant, who
was a passenger in a car, try to hide a bag of a white powdery substance in his sock
and a firearm under his seat and, after car left the scene, officer found bullets in
defendant’s pockets).2 A reasonable fact-finder could readily infer from the factual
circumstances of Hazel’s possession of the firearm—a loaded gun in his front
pocket where it was readily accessible while he purchased the cocaine and left on
foot—that the firearm had the potential of facilitating Hazel’s cocaine purchase.
2
Because we affirm the district court’s finding that Hazel possessed the firearm in connection
with his cocaine purchase, which was sufficient to support the § 2K2.1(b)(6) enhancement, we do
not address the district court’s alternative basis for the enhancement—that Hazel also possessed the
firearm in connection with his resisting arrest.
5
Thus, there was ample evidence to support the district court’s finding that Hazel
possessed the firearm “in connection with” his felony cocaine purchase.
Accordingly, the district court did not err in imposing the four-level
enhancement pursuant to U.S.S.G. § 2K2.1(B)(6). We affirm Hazel’s 100-month
sentence.
AFFIRMED.
6