NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
File Name: 09a0436n.06
No. 08-5968
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
UNITED STATES OF AMERICA, )
FILED
Jun 24, 2009
)
LEONARD GREEN, Clerk
Plaintiff-Appellee, )
)
v. ) ON APPEAL FROM THE UNITED
) STATES DISTRICT COURT FOR
MILTON ROGERS, ) THE WESTERN DISTRICT OF
) TENNESSEE
Defendant-Appellant. )
)
)
Before: MARTIN and KETHLEDGE, Circuit Judges; WATSON, District Judge.*
KETHLEDGE, Circuit Judge. Defendant Milton Rogers challenges the sentence imposed
following his guilty plea to being a felon in possession of a firearm. We reject his arguments, and
affirm.
I.
In response to citizen complaints, Memphis police officers were patrolling an area near 785
Polk Avenue on April 23, 2007. They called out to Rogers, and he ran away. The officers chased
and eventually arrested him, finding a loaded .38-caliber revolver and 7.2 grams of marijuana on his
person. Rogers admitted to having purchased the marijuana just before the police arrived. He was
later charged in state court for his possession of it. A federal grand jury separately indicted Rogers
*
The Honorable Michael H. Watson, United States District Judge for the Southern District
of Ohio, sitting by designation.
No. 08-5968
USA v. Rogers
for being a felon in possession of a firearm, in violation of 18 U.S.C. § 922(g)(1). Rogers pled guilty
to that offense on March 24, 2008.
Rogers’ Presentence Investigation Report (PSR) recommended a base offense level of 24,
pursuant to U.S.S.G. § 2K2.1(a)(2), reflecting his two prior controlled-substance felony convictions.
The PSR also recommended a four-level increase pursuant to § 2K2.1(b)(6), because Rogers
possessed the firearm “in connection with another felony offense[,]” namely, his third or subsequent
possession-of-a-controlled-substance offense. See Tenn. Code. Ann. § 39-17-418(e) (simple
possession or casual exchange of a controlled substance “is a Class E felony where the person has
two (2) or more prior convictions under this section”). After incorporating a three-level reduction
for acceptance of responsibility, the PSR recommended a total offense level of 25. Rogers’
extensive criminal record placed him in Criminal History Category VI. His advisory Guidelines
range was therefore 110-137 months. The district court sentenced Rogers to 110 months’
imprisonment.
This appeal followed.
II.
We review the district court’s factual findings for clear error, United States v. Clay, 346 F.3d
173, 178 (6th Cir. 2003), and we review de novo “[w]hether the facts found by the district court
warrant the application of a particular guideline provision[.]” United States v. Richardson, 510 F.3d
622, 625 (6th Cir. 2007) (internal quotation marks omitted).
Rogers argues that he did not possess the firearm “in connection with” his controlled-
substance felony offense, and that the district court therefore should not have applied a four-level
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No. 08-5968
USA v. Rogers
enhancement under U.S.S.G. § 2K2.1(b)(6). That section applies “if the firearm . . . facilitated, or
had the potential of facilitating, another felony offense[.]” U.S.S.G. § 2K2.1 cmt. n.14(A). The
government must “prove[] by a preponderance of the evidence that the firearm served some purpose
with respect to the felonious conduct,” such as “embolden[ing] the defendant during” it. United
States v. Carter, 355 F.3d 920, 925 (6th Cir. 2004) (internal quotation marks omitted). Rogers
contends that this test was not met here, because “[h]e had no compelling desire to [possess a firearm
to] protect a small quantity of marijuana[,]” and, he says, his possession of the loaded firearm while
he possessed the drugs was “purely coincidental.” Appellant’s Br. at 14. We take a more narrow
view of coincidences, and instead agree with the district court’s finding that “it would be ignoring
common sense to say that a person who takes a gun to a drug transaction doesn’t have it there in
connection with the drug transaction. . . . [I]n this particular case, both the gun was possessed and
the drugs were purchased at the same time.” ROA Sentencing Tr. Vol. 1 at 13-14. Cf. Clay, 346
F.3d at 179 (upholding four-level enhancement where defendant carried a firearm while possessing
less than two grams of cocaine, and a large amount of cash). Rogers’ possession of a loaded revolver
facilitated—and had “the potential of facilitating”—his purchase and continuing possession of the
drugs.
Rogers next argues that the district court impermissibly double-counted when it used his two
prior felony convictions for drug possession “to assess both his base offense level and an
enhancement under U.S.S.G. § 2K2.1(b)(6).” Appellant’s Br. at 15. Because Rogers did not raise
this objection in the district court, we review it for plain error. See United States v. Oliver, 397 F.3d
369, 375 (6th Cir. 2005).
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No. 08-5968
USA v. Rogers
It is undisputed that the prior convictions were first counted in determining Rogers’ base-
offense level under the Guidelines. They were counted a second time, he contends, when they
converted otherwise non-felonious conduct—namely, his possession of 7.2 grams of marijuana in
the subject incident—into felonious conduct under Tennessee state law, which in turn made him
eligible for the § 2K2.1(b)(6) enhancement. But that conversion is not a counting at all, at least not
one made pursuant to the Guidelines. The Guidelines ask only whether the related offense was
“punishable by imprisonment for a term exceeding one year[.]” U.S.S.G. § 2K2.1 cmt. n.14(C). The
related offense was so punishable here, because Tennessee law defines Rogers’ possession offense
to be a Class E felony, punishable by one-to-six years’ imprisonment. Tenn. Code Ann. § 40-35-
112. The Guidelines take that definition as they find it. Under the Guidelines themselves, therefore,
Rogers’ prior convictions were counted only once.
We affirm the judgment of the district court.
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