NONPRECEDENTIAL DISPOSITION
To be cited only in accordance with
Fed. R. App. P. 32.1
United States Court of Appeals
For the Seventh Circuit
Chicago, Illinois 60604
Argued December 16, 2008
Decided January 23, 2009
Before
TERENCE T. EVANS, Circuit Judge
ANN CLAIRE WILLIAMS, Circuit Judge
DIANE S. SYKES, Circuit Judge
No. 08‐1686
UNITED STATES OF AMERICA, Appeal from the United States District
Plaintiff‐Appellee, Court for the Central District of Illinois.
v. No. 07‐20020‐01
ABNER C. ROBERTSON, Michael P. McCuskey,
Defendant‐Appellant. Chief Judge.
O R D E R
Abner Robertson pleaded guilty to possession of a gun after a felony conviction, see
18 U.S.C. § 922(g)(1), and the district court sentenced him to 87 months’ imprisonment. On
appeal Robertson challenges only the court’s application of a four‐level increase to his
offense level based on the court’s finding that he possessed the gun in connection with
another felony, drug trafficking. See U.S.S.G. § 2K2.1(b)(6). Because the court did not err in
finding that Robertson possessed the gun in close proximity to drug paraphernalia and that
the gun facilitated and potentially emboldened his ongoing sale of drugs from his
apartment, we affirm the judgment of the district court.
The day before Robertson was arrested for possessing the gun, police officers in
Danville, Illinois, made a controlled purchase of crack cocaine from him at his apartment.
No. 08‐1686 Page 2
Based on this drug sale, the police obtained a warrant to search the apartment. Inside a
bedroom closet in the apartment the officers found a fully loaded .38 caliber revolver and a
box of ammunition. A police scanner was on the bedroom floor. In the kitchen the officers
found a digital scale and clear plastic baggies that had been trimmed down in size for
packaging drugs. One of those baggies contained suspected cocaine residue. In addition
the officers found a crack pipe inside a suitcase and a bag containing approximately one
gram of marijuana on top of the microwave. Robertson was arrested and taken to the police
station, where after receiving Miranda warnings he admitted that the gun was his.
Robertson stated that he had bought the gun for protection and confessed that he sold small
amounts of cocaine out of his apartment.
At sentencing Robertson objected only to the four‐level increase under § 2K2.1(b)(6).
Robertson did not testify or offer evidence, but his lawyer contended that the gun was for
personal protection and not for selling drugs, and that the drug paraphernalia was more
suggestive of personal drug use than drug trafficking. Counsel also noted that the gun was
found in the bedroom while the drug paraphernalia was found in the kitchen. In response
the government called one of the arresting officers who testified in detail about the items
found in the apartment as well as Robertson’s statements admitting that he had bought the
gun for protection two weeks prior to his arrest and that he sold crack cocaine from his
apartment.
The district court overruled the objection. Relying on United States v. Wyatt, 102 F.3d
241 (7th Cir. 1996), the court concluded that the evidence supported the reasonable
inference that the gun was possessed in connection with the sale of drugs and noted that, as
acknowledged in Wyatt, guns are tools of the drug trade. The court found that Robertson’s
admission that he was selling cocaine from his apartment and his sale of crack the day
before the search, combined with the doctored baggies, scale, and police scanner, all
established, “well beyond a preponderance of the evidence,” that Robertson was selling
drugs and that the gun “facilitated and had a potential emboldening role” in Robertson’s
drug sales.
Section 2K2.1(b)(6) provides for a four‐level increase in offense level if the defendant
used or possessed a firearm in connection with the commission or attempted commission of
another felony offense. U.S.S.G. § 2K2.1(b)(6). The adjustment applies if the firearm
“facilitated or had the potential of facilitating” another felony offense, which need not be
charged. Id. at cmt. n.14. That standard is met if the firearm “had some purpose or effect in
relation to that second crime.” United States v. LePage, 477 F.3d 485, 489 (7th Cir. 2007). We
review the district court’s application of sentencing guidelines de novo, but where the
application of a sentencing guideline is based on factual findings, we review for clear error.
No. 08‐1686 Page 3
United States v. Wagner, 467 F.3d 1085, 1089 (7th Cir. 2006); see United States v. Lang, 537 F.3d
718, 719 (7th Cir. 2008); United States v. Bryant, 420 F.3d 652, 656 (7th Cir. 2005).
As Robertson sees it, the record lacks any evidence that the gun was possessed
specifically in connection with the controlled drug buy the day before his arrest. Robertson
notes that we have analogized § 2K2.1(b)(6) to 18 U.S.C. § 924(c)(1), which defines as a
separate crime the possession of a firearm during and in relation to a drug trafficking crime.
And, says Robertson, we held in United States v. Castillo, 406 F.3d 806, 814 (7th Cir. 2005),
that the “in furtherance of” element of § 924(c)(1) is met only if the government can “clearly
show that a firearm was possessed to advance or promote the commission of the underlying
offense.” Robertson reasons that the only possible underlying offense in this case is the
controlled buy and contends that the government failed to show that the gun was accessible
during that transaction. The government makes a strained argument that Robertson waived
this contention at sentencing, but, preserved or not, Robertson’s claim is meritless.
The district court properly found that the gun was possessed in connection with
Robertson’s ongoing sales of drugs out of his apartment, including but not limited to the
transaction the day before his arrest. As the application notes to § 2K2.1(b)(6) explicitly
provide, the upward adjustment applies when “a firearm is found in close proximity to
drugs, drug‐manufacturing materials, or drug paraphernalia . . . because the presence of the
firearm has the potential of facilitating another felony offense.” U.S.S.G. § 2K2.1 cmt.
n.14(B); see also LePage, 477 F.3d at 489; United States v. Caldwell, 423 F.3d 754, 762 (7th Cir.
2005). This statement is based on the recognition that when “guns are possessed along with
the materials of a drug trafficker, it is a reasonable inference that the guns protect or
embolden the criminal enterprise.” LePage, 477 F.3d at 489. The gun here was found in
close proximity to the drug paraphernalia in Robertson’s apartment; he had sold crack
during a controlled transaction at the apartment the day before; he admitted to ongoing
sales at the apartment; and he confessed that he bought the gun two weeks earlier. Given
this undisputed evidence, the district court’s finding that the gun was possessed in
connection with drug trafficking is not clearly erroneous. See LePage, 477 F.3d at 489‐90
(upholding adjustment where defendant was found with bag containing sawed‐off shotgun
and large quantity of chemical used to dilute methamphetamine and had sold
methamphetamine to confidential informant earlier that summer); United States v. Wyatt,
102 F.3d 241, 247‐48 (7th Cir. 1996) (upholding adjustment where gun was found near
plastic baggies and drug‐transaction ledgers and defendant admitted he had been
distributing marijuana).
AFFIRMED.