United States v. Gatewood

F I L E D
United States Court of Appeals
Tenth Circuit
PUBLISH
JUN 7 2004
UNITED STATES COURT OF APPEALS
PATRICK FISHER
Clerk
TENTH CIRCUIT

UNITED STATES OF AMERICA,

Plaintiff - Appellee,
No. 03-3163
v.

STEVEN JOE GATEWOOD,

Defendant - Appellant.

APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF KANSAS
(D.C. No. 02-CR-40117-JAR)

Submitted on the briefs: *

Eric F. Melgren, United States Attorney and Nancy Landis Caplinger, Assistant
United States Attorney, Topeka, Kansas, for Plaintiff - Appellee.

David J. Phillips, Federal Public Defender and Marilyn M. Trubey, Assistant
Federal Public Defender, Topeka, Kansas, for Defendant - Appellant.

Before KELLY, ANDERSON, and HENRY, Circuit Judges.

*
After examining the briefs and appellate record, this panel has determined
unanimously that oral argument would not materially assist the determination of
this appeal. See Fed. R. App. P. 34(a); 10th Cir. R. 34.1(G). The cause therefore
is ordered submitted without oral argument.
KELLY, Circuit Judge.

Defendant-Appellant Steven Joe Gatewood pleaded guilty to possession of

a firearm after having been convicted of a felony, in violation of 18 U.S.C. §

922(g). He was sentenced to a term of imprisonment of ninety-seven months, to

be followed by three years of supervised release. In arriving at the term of

ninety-seven months, the district court denied a reduction in offense level for

acceptance of responsibility and enhanced the offense level for possession of

three or more firearms, possession of a stolen firearm, and possession of a firearm

in connection with another felony offense–specifically the distribution of

methamphetamine. Mr. Gatewood appeals, contending that the district court erred

in (1) refusing to grant a reduction for acceptance of responsibility; (2) enhancing

the offense level for possession of three or more firearms; and (3) enhancing the

offense level for possession of a firearm in connection with another felony

offense. We have jurisdiction pursuant to 28 U.S.C. § 1291 and 18 U.S.C.

§ 3742(a), and we affirm.

Background

On July 18, 2002, law enforcement officers arrived at Mr. Gatewood’s rural

Kansas home in response to a 911 call regarding an accidental shooting. The

officers discovered that a two-year-old child, the son of Mr. Gatewood’s

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girlfriend Nicole Ouimette, had died from a self-inflicted gunshot wound. A

Glock 9mm semi-automatic pistol was found on the floor next to the child. An

empty gun safe located in Mr. Gatewood’s bedroom was open and the key was in

the lock. A second gun cabinet in the basement was also found unlocked and

empty, although a 7mm rifle was found on a shelf in one of the closets. An

anhydrous ammonia tank was also found in a shed behind the residence.

The police interviewed everyone at the scene, including Mr. Gatewood, Ms.

Ouimette, and Christina Gatewood, Mr. Gatewood’s niece. All three maintained

that they had been sleeping and did not hear the gunshot. They also maintained

that the gun had been locked in the gun safe, and that they assumed the child must

have found the key and unlocked the safe in order to obtain the weapon. The keys

to the safe were kept on the headboard of Mr. Gatewood’s bed. 5 R. at 4-5, ¶ 10-

11.

Mr. Gatewood acknowledged that the gun was his and told the police Ms.

Ouimette had given him the gun just a few weeks earlier. He did inform the

police that he was illegally in possession of the weapon due to his prior felony

conviction. He also admitted that he had been trafficking in methamphetamine

but maintained that he had been “clean” for about two months. He stated that

people nevertheless still frequently came to his home looking for

methamphetamine. Id. at 5, ¶ 12-13.

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 Ms. Ouimette informed investigators that she had moved in with Mr.

Gatewood only a few weeks before the shooting. Originally she told the officers

that she had purchased the pistol for her own protection. She later said that she

purchased the gun for Mr. Gatewood, even though she knew he was a convicted

felon and could not be in possession of the gun. Id. at 5, ¶ 14. In a subsequent

interview, she admitted that the previous statement was a story concocted with

Mr. Gatewood and told the police the gun was Mr. Gatewood’s and that he was in

possession of the gun before she moved in with him. Id. at 7, ¶ 22. Ms. Ouimette

also told police she had received methamphetamine from Mr. Gatewood just two

or three days before the shooting. Id. at 5, ¶ 15.

Upon further investigation, the officers received additional information

from various sources about Mr. Gatewood’s illegal conduct. They learned that

five other people had been at the residence early in the morning before the

shooting. Mike Bacon, a person known by law enforcement as a

“methamphetamine cook,” had been living with Mr. Gatewood and was at the

house the morning of the shooting. Id. at 6, ¶ 17. Mr. Bacon left the house

before the police arrived and took with him a shotgun and a rifle when he left. Id.

at 7-8, ¶ 23, 28, 29.

Several people made statements to investigators regarding Mr. Gatewood’s

possession of guns and drug use. In addition to the Glock pistol and the rifle

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found at the residence on the day of the shooting, there was evidence Mr.

Gatewood was in possession of at least one other firearm. Various people spoke

with investigators regarding a black pistol, different from the Glock, that Mr.

Gatewood had in his possession. They also told the police he often left the gun

out of the safe and unattended. On one occasion, Mr. Gatewood answered the

door with a gun aimed at his visitors and then went into a back room where he

was cutting up methamphetamine. Id. at 7, ¶ 21.

On February 10, 2003, Mr. Gatewood pleaded guilty to possession of a

firearm after having been convicted of a felony, in violation of 18 U.S.C. §

922(g). As part of the plea agreement, the government agreed to (1) recommend a

sentence at the low-end of the applicable guideline range; (2) recommend that Mr.

Gatewood receive a three-level reduction in the applicable offense level for

acceptance of responsibility; and (3) not request an upward departure so long as

the defendant did not request a downward departure. 1 R. Doc. 30, Att. 1 at 2-3.

At the change of plea hearing, Mr. Gatewood received the government’s

petition to revoke his conditions of release (bond) based upon positive tests for

methamphetamine. A hearing on the revocation of Mr. Gatewood’s conditions of

release was scheduled for that afternoon. At the hearing, the court heard

testimony from the probation officer who was supervising Mr. Gatewood’s release

regarding six sweat patches worn by him during the period of his pretrial release

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that had tested positive for methamphetamine use. The court also accepted into

evidence the laboratory reports reflecting the positive drug tests. The court found

by clear and convincing evidence that Mr. Gatewood had violated the conditions

of his release and ordered that he be detained pending sentencing. 3 R. Doc. 54 at

25-26.

Prior to sentencing, a presentence report was prepared. The report

recommended that Mr. Gatewood’s offense level not be reduced for acceptance of

responsibility based on his use of controlled substances while on bond. 5 R. at

12. The report also recommended that the offense level be enhanced for

possession of three of more firearms, possession of a stolen firearm, and

possession of a firearm in connection with another felony. Id. at 11. Mr.

Gatewood filed an objection to the recommendations. 1 R. Doc. 40.

At sentencing, the government took the position that Mr. Gatewood’s

offense level should be reduced for acceptance of responsibility. 4 R. Doc. 55 at

6. The government did not advocate for the enhancements, and stated that the

information available was of “relatively dubious credibility.” Id. The court

nevertheless called the probation officer who prepared the report as a witness, and

she explained the basis for her recommendations. The investigative reports relied

on by the probation officer were also admitted into evidence. Id. at 8-9, 27.

The district court denied a reduction in offense level for acceptance of

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responsibility based on Mr. Gatewood’s alleged use of methamphetamine and Mr.

Gatewood’s false statements. The court also enhanced the offense level for

possession of three or more firearms, possession of a stolen firearm, and

possession of a firearm in relation to distribution of methamphetamine. Mr.

Gatewood’s total offense level was calculated at 28 and his criminal history

category at 3, giving the court a sentencing range of 97-120 months, with a

requirement by statute that the sentence be no more than 10 years. He was

sentenced to a term of 97 months, followed by three years of supervised release.

Id. at 46.

Discussion

“When reviewing an application of the Sentencing Guidelines, we review

the district court’s factual findings for clear error and questions of law de novo.”

United States v. Hurlich, 293 F.3d 1223, 1227 (10th Cir. 2002). The “quantum of

proof required for factual determinations under the Sentencing Guidelines is a

preponderance of the evidence and the burden of proof generally is allocated to

the government for sentence increases and to the defendant for sentence

decreases.” United States v. Rutter, 897 F.2d 1558, 1560 (10th Cir. 1990).

A. Denial of Adjustment for Acceptance of Responsibility

Mr. Gatewood initially challenges the district court’s refusal to grant a

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reduction in his offense level for acceptance of responsibility. Under USSG §

3E1.1(a), a defendant who “clearly demonstrates acceptance of responsibility for

his offense” is entitled to receive a two-level decrease in his offense level. Under

the Sentencing Guidelines, the defendant bears the burden of establishing that he

is entitled to a sentence reduction for acceptance of responsibility by a

preponderance of the evidence. United States v. Marquez, 337 F.3d 1203, 1209

(10th Cir. 2003). “[T]he trial court’s determination of whether a defendant has

accepted responsibility is subject to great deference on review and should not be

disturbed unless it is without foundation.” United States v. Amos, 984 F.2d 1067,

1071-72 (10th Cir. 1993).

Mr. Gatewood asserts he demonstrated his acceptance of responsibility by a

preponderance of the evidence, pointing to his timely plea of guilty, his statement

of acceptance of responsibility in which he expressed remorse over the boy’s

death, and the government’s recommendation that he receive such a reduction.

The district court nevertheless denied the adjustment for acceptance of

responsibility based on Mr. Gatewood’s continued use of drugs while on pretrial

release and his false statements to his probation officer and the police during the

investigation, concluding that the defendant “never accepted responsibility, full

responsibility, for possession of the Glock firearm and all of the consequences

that flowed from that on July 18th of 2002.” 4 R. Doc. 55 at 33.

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 Mr. Gatewood challenges the court’s reliance on the evidence of drug use,

arguing such evidence “did not bear the necessary indicia of reliability upon

which the lower court could reasonably have found that he violated the conditions

of release by using methamphetamine.” Aplt. Br. at 7. Initially we note that a

defendant’s use of drugs in violation of his conditions of release may be

considered in determining whether the defendant has accepted responsibility for

his actions. See United States v. Walker, 182 F.3d 485, 488 (6th Cir. 1999); see

also United States v. Hromada, 49 F.3d 685, 691 (11th Cir. 1995); United States

v. McDonald, 22 F.3d 139, 143 (7th Cir. 1994). The guidelines state that a

defendant’s voluntary withdrawal from criminal conduct is a relevant

consideration in determining whether to grant a reduction for acceptance of

responsibility. USSG § 3E1.1, cmt. n.1(b). In addition, “the guidelines do not

prohibit a sentencing court from considering, in its discretion, criminal conduct

unrelated to the offense of conviction in determining whether a defendant

qualifies for an adjustment for acceptance of responsibility under § 3E1.1.”

United States v. Prince, 204 F.3d 1021, 1024 (10th Cir. 2000). With regard to

drug use specifically, the guidelines state that, although “lying to a probation or

pretrial services officer about defendant’s drug use while on pre-trial release” is

not conduct that ordinarily warrants an upward adjustment for obstructing justice

under USSG § 3C1.1, “such conduct may be a factor in determining whether to

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reduce the defendant’s sentence under § 3E1.1.” USSG § 3C1.1, cmt. n.5.

Mr. Gatewood nevertheless argues that the evidence of drug use in this case

did not bear the necessary indicia of reliability. We disagree. There is a

“longstanding principle that sentencing courts have broad discretion to consider

various kinds of information” during sentencing. United States v. Watts, 519

U.S. 148, 151 (1997). This principle is codified at 18 U.S.C. § 3661, which states

that “[n]o limitation shall be placed on the information concerning the

background, character, and conduct of a person convicted of an offense which a

court of the United States may receive and consider for the purpose of imposing

an appropriate sentence.” The Sentencing Guidelines reaffirm this principle,

stating that “[i]n determining the relevant facts, sentencing judges are not

restricted to information that would be admissible at trial. Any information may

be considered, so long as it has sufficient indicia of reliability to support its

probable accuracy.” USSG § 6A1.3, cmt. (citations omitted); see also United

States v. Fennell, 65 F.3d 812, 813 (10th Cir. 1995); United States v. Browning,

61 F.3d 752, 755 (10th Cir. 1995); United States v. Beaulieu, 893 F.2d 1177,

1181 (10th Cir. 1990). Thus the court is not restricted by the federal rules of

evidence, and hearsay may be considered as long as it bears “some minimal

indicia of reliability.” Browning, 61 F.3d at 755.

At the sentencing hearing, the probation officer testified regarding the

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contents of the lab report submitted from PharmChem showing the positive drug

test results. 1 4 R. Doc. 55 at 9. She testified regarding when the sweat patches

were applied, when they were removed, and when they tested positive for

methamphetamine use. She also testified that Mr. Gatewood admitted to using

methamphetamine once while on release in December, prior to pleading guilty in

this case. Id. at 20. On cross-examination, she admitted that she did not apply

the patches, remove the patches, send them to the lab, or test them, and did not

know the methods by which the patches were tested. Id. at 18. Rather, she relied

on the laboratory report from PharmChem and the pretrial services officer’s notes.

Because such hearsay is not prohibited at the sentencing stage, however, our

inquiry is only whether the evidence had “sufficient indicia of reliability to

support its probable accuracy.” USSG § 6A1.3, cmt.

1
In his brief, Mr. Gatewood initially discusses the introduction of evidence
of drug use at the bond revocation hearing. He asserts his counsel received the
petition to revoke his conditions of release the morning of the plea, and that the
hearing was held that afternoon, giving the “defense very little time to prepare to
meet the allegations.” Aplt. Br. at 9. He asserts that the district court erred in
admitting the testimony of the pretrial services officer at the hearing based on
hearsay and a lack of foundation. However, Mr. Gatewood did not appeal the
revocation of his conditions of release, and it does not appear the sentencing court
relied on its earlier factual findings in arriving at its conclusion that Mr.
Gatewood had not accepted responsibility. The court took evidence on Mr.
Gatewood’s alleged drug use and came to the conclusion that Mr. Gatewood used
drugs while on pretrial release in violation of his release conditions. 4 R. Doc. 55
at 27-33. We also note that Mr. Gatewood did not make any objection regarding
the timing of the revocation hearing, nor did he present any contrary evidence
(about the drug test results) at either that hearing or his sentencing hearing.

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 Mr. Gatewood relies on United States v. Snyder, 187 F. Supp. 2d 52, 58-62

(N.D.N.Y. 2002), to support his argument that the sweat patch tests are

unreliable. In Snyder, the court discussed at length the use of sweat patches to

detect drug use, the procedures involved in testing, and the reliability of the

testing. The court concluded that “the sweat patch is generally reliable for drug

testing purposes,” although it is “susceptible to outside environmental

contamination in limited situations.” Id. at 59. Given that the defendant in

Snyder worked in a job where he sweated profusely and lived with someone who

used drugs in the home, the court rejected the reliability of the tests in that

specific instance and held that a violation of the defendant’s conditions of release

was not established by a preponderance of the evidence. Id. at 61.

In this case, Mr. Gatewood did not offer any evidence to counter the

reliability of the results based upon the sweat patches. Although his counsel did

bring out on cross-examination at the revocation hearing the fact that Mr.

Gatewood works in a job where he sweats a lot, that his clothing might be

contaminated given prior use, and that he was on various medications while being

tested, he did not bring this information to the district court at the time of

sentencing. 4 R. Doc. 55 at 17-22. Although the sweat patches indicated a total

of six total positive tests, the court noted only four positive results given that two

of the positive results could be attributed to residual use. Most importantly,

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although Mr. Gatewood generally denied any use of methamphetamine while on

pretrial release, he did admit that he had used methamphetamine at least once

during the relevant period. Id. at 19. Given the number of positive results and

his admission to use on at least one occasion, the evidence of drug use in

violation of his conditions of release in this case bears at least the minimum

required indicia of reliability.

The court’s consideration of Mr. Gatewood’s false statements was also not

in error. Mr. Gatewood changed his stories regarding his ownership and

possession of the gun on several occasions. He did not take full responsibility for

his ownership of the gun or for the fact that he did not always keep it locked up.

As the district court noted, he told an “outrageously preposterous story” about

how the gun was safely locked up and how the two year old boy must have found

the keys, unlocked the safe, and removed the gun in order to shoot himself. 4 R.

Doc. 55 at 32. Several people made statements that he did not always keep the

guns in his house secure, even when children were around. 5 R. at 6-7, ¶¶ 19, 21,

26. Although Mr. Gatewood argues that any false statements are generally

irrelevant to whether he accepted responsibility for this crime, we disagree.

“A defendant has acted in a manner inconsistent with [an] acceptance of

responsibility if he or she ‘falsely denies . . . relevant conduct.’” United States v.

Sarracino, 340 F.3d 1148, 1174 (10th Cir. 2003) (quoting USSG § 3E1.1, cmt.

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n.1(a)). Even if investigators were not hindered in their investigation by his

statements, as Mr. Gatewood asserts, the court may still consider his statements in

determining whether he has accepted responsibility. See USSG § 3C1.1, cmt. n.5

(noting conduct that might affect whether an acceptance of responsibility

adjustment should be applied includes “making false statements, not under oath,”

and “providing incomplete or misleading information, not amounting to a material

falsehood”). Although he appears willing to accept the consequences of his

conviction, he has never honestly admitted the conduct underlying his conviction.

See United States v. Gassaway, 81 F.3d 920, 922 (10th Cir. 1996). As the district

court concluded, it appears that “[D]efendant has not been entirely truthful about

his connection with that pistol.” 4 R. Doc. 55 at 29. It was not error for the court

to take into account his false statements to find that he has not clearly accepted

responsibility for his crime.

The burden is on the defendant to prove that he is entitled to an adjustment.

While the entry of a guilty plea and other relevant conduct may be “significant

evidence of acceptance of responsibility,” such evidence “may be ‘outweighed by

conduct of the defendant that is inconsistent with such acceptance of

responsibility.’” United States v. Hawley, 93 F.3d 682, 689 (10th Cir. 1996)

(quoting USSG § 3E1.1, cmt. n. 3). “A defendant who enters a plea of guilty is

not entitled to an adjustment under [§ 3E1.1] as a matter of right.” USSG §

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3E1.1, cmt. n.3; see United States v. Topete-Plascencia, 351 F.3d 454, 460 (10th

Cir. 2003). “True acceptance of responsibility for a crime includes acceptance of

whatever justice society deems proper in response.” United States v. Swanson,

253 F.3d 1220, 1225 (10th Cir. 2001). The district court’s determination that Mr.

Gatewood failed to take adequate responsibility for his offenses, given his

continued drug use and false statements, was not in error.

B. Enhancement for Three or More Firearms

Mr. Gatewood also appeals the district court’s enhancement of his offense

level for possession of “three or more firearms” under USSG § 2K2.1(b)(1)(A).

Mr. Gatewood asserts the district court abused its discretion by calling the

probation officer as a witness, pointing to the fact that the burden is on the

government to prove an enhancement is warranted. Mr. Gatewood also argues

that even if the court did not err in allowing the testimony, the evidence was

unreliable and should not have been considered.

“It is the government’s burden to prove the facts supporting a sentence

enhancement by a preponderance of the evidence.” United States v. Martinez-

Villalva, 232 F.3d 1329, 1333 (10th Cir. 2000). Even though the government

bears the burden of proof with regard to enhancements, however, the

“determination of a convicted offender’s sentence is a matter within the discretion

of the sentencing judge.” United States v. Garcia, 78 F.3d 1457, 1462 (10th Cir.

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1996). Before making the sentencing determination, “a judge may appropriately

conduct an inquiry broad in scope, largely unlimited either as to the kind of

information he may consider, or the source from which it may come.” United

States v. Grayson, 438 U.S. 41, 50 (1978) (internal quotation marks and citations

omitted). The sentencing judge is not bound by the government’s

recommendations, and the judge has an independent obligation under the

guidelines and Tenth Circuit precedent to make sure that the court considers all

conduct relevant to a proper sentence. Garcia, 78 F.3d at 1462; see also USSG §

6B1.4(d), & cmt. (contemplating an active role on the part of the sentencing judge

in determining the factors relevant to the determination of sentence).

The district court is not foreclosed from independently establishing facts

when the government, although it carries the burden, fails to present any evidence

and the presentence report suggests evidence exists that warrants a higher offense

level than the government’s recommendation. Garcia, 78 F.3d at 1467. In doing

so, the court may act within its discretion and investigate issues raised in the

presentence report that may conflict with the government’s recommendations,

including “call[ing] and examin[ing] witnesses to verify the accuracy of the

[presentence] report.” Id. at 1463; see also Fed. R. Evid. 614 (authorizing judges

to call and interrogate witnesses). Unlike in United States v. Guzman, 318 F.3d

1191, 1198 (10th Cir. 2003), the court’s actions in this case did not impermissibly

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shift the burden to the Defendant. The court did not abuse its discretion by

calling the author of the presentence report to testify with regard to her

investigation.

Mr. Gatewood asserts that even if the testimony is considered, there is no

reliable factual basis for the district court’s finding that Mr. Gatewood possessed

three or more firearms. Mr. Gatewood relies on the fact that only two weapons

were found in the residence when it was searched by law enforcement officers.

However, the probation officer testified to numerous statements from the police

reports that support the finding that Mr. Gatewood was in possession of three or

more firearms. These statements were unchallenged and corroborate one

another–they indicate Mr. Gatewood was in possession of a black pistol and at

least one other rifle. Such statements may be considered, despite the fact that

they constitute hearsay.

We have found that where a preparing officer’s recommended enhancement

is based solely on the unsworn testimony of a girlfriend taken over the phone, the

statements did not meet the minimal indicia test. Fennell, 65 F.3d at 813. This

case is markedly distinguishable given that the police officers took the statements

in person from several people. The evidence of Mr. Gatewood’s possession of

three or more firearms bears the necessary indicia of reliability, and the court did

not err in considering the evidence. The enhancement was proper.

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C. Enhancement for Possession of a Firearm in Relation to Another Offense

Finally, Mr. Gatewood asserts that the court erred in enhancing his offense

level for possession of a firearm in relation to another offense. The burden of

proof with regard to the enhancement falls on the government. In support of his

argument against an enhancement, Mr. Gatewood argues that the evidence relied

upon by the court did not bear the necessary indicia of reliability, and that even

considering the evidence, the evidence was insufficient to support a finding that

Mr. Gatewood possessed a firearm in relation to the offense of distribution of

methamphetamine beyond a preponderance of the evidence.

An enhancement by two levels is appropriate under USSG § 2K2.1(b)(5) if

“the defendant used or possessed any firearm or ammunition in connection with

another felony offense.” A “felony offense” means any “offense (federal, state,

or local) punishable by imprisonment for a term exceeding one year, whether or

not a criminal charge was brought, or conviction obtained.” USSG § 2K2.1, cmt.

n.7. “[W]e have generally held that if the weapon facilitated or had the potential

to facilitate the underlying felony, then enhancement under § 2K2.1(b)(5) is

appropriate.” United States v. Bunner, 134 F.3d 1000, 1006 (10th Cir. 1998); see

also United States v. Gomez-Arrellano, 5 F.3d 464, 466-67 (10th Cir. 1993).

However, the enhancement is not appropriate if possession of the weapon “is

coincidental or entirely unrelated to the offense.” Id. at 467.

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 We have held that a “weapon’s proximity to narcotics may be sufficient to

provide the nexus necessary to enhance a defendant’s sentence under §

2K2.1(b)(5).” Bunner, 134 F.3d at 1006. The failure to find the Glock pistol in

proximity to narcotics at the time it was seized in this case, however, does not

mean that the weapon nevertheless has not facilitated or potentially facilitated the

distribution of methamphetamine. Here the court relied on (1) the defendant’s

own admission that he had been trafficking methamphetamine, but had been

“clean” for two months; (2) the defendant’s acknowledgment that people had

come to the house on the morning of the shooting, potentially looking to obtain

methamphetamine; (3) witnesses’ statements that the defendant sold

methamphetamine; (4) the fact that Mr. Gatewood distributed methamphetamine

to his girlfriend just two or three days prior to the shooting; and (5) the fact that

he answered the door two months before the shooting with a gun in his hand

while drugs were present in the house. 4 R. Doc. 55 at 38-39.

Given several statements that corroborate one another concerning Mr.

Gatewood’s drug distribution and his possession of firearms during this time,

sometimes in close proximity with drugs, the record supports the enhancement.

Most importantly, Mr. Gatewood admitted to trafficking methamphetamine up

until a few months previously, and there is overwhelming support that he was in

possession of guns during that time. Thus there is a clear nexus between the

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firearms and Mr. Gatewood’s trafficking activities.

Mr. Gatewood contends that he had not trafficked methamphetamine for

two months and therefore the weapon should not be found to have facilitated this

offense given this gap in time. Even if we ignore the evidence that Mr. Gatewood

had distributed methamphetamine to his girlfriend just a few days earlier and

assume Mr. Gatewood had ended methamphetamine distribution a few months

previously, the enhancement is nevertheless appropriate. An enhancement may

apply even where the alleged felony offense under the enhancement occurred

weeks or months before the date of the original offense. See United States v.

Draper, 24 F.3d 83, 85 (10th Cir. 1994).

Mr. Gatewood, as a felon, pleaded guilty to unlawfully possessing firearms.

The record supports the district court’s findings that his possession of the

firearms facilitated or had the potential to facilitate his distribution of

methamphetamine. Thus Mr. Gatewood falls within the provisions of USSG §

2K2.1(b)(5), and we affirm the enhancement for possession of a firearm in

connection with another felony offense. See Draper, 24 F.3d at 86.

AFFIRMED.

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