[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT FILED
________________________ U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
No. 05-14615 JUNE 19, 2006
Non-Argument Calendar THOMAS K. KAHN
CLERK
________________________
D. C. Docket No. 04-00093-CR-T-27MSS
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
CARL STEWART, JR.,
Defendant-Appellant.
________________________
Appeal from the United States District Court
for the Middle District of Florida
_________________________
(June 19, 2006)
Before DUBINA, BLACK and BARKETT, Circuit Judges.
PER CURIAM:
Appellant, Carl Stewart, Jr. appeals his conviction and 92-month sentence
imposed after pleading guilty to being a felon in possession of a firearm, in
violation of 18 U.S.C. § 922(g)(1). First, Stewart argues that the district court
erred by applying a four-level enhancement under U.S.S.G. § 2K2.1(b)(5) when his
possession of the firearm was not in connection with another felony offense.
Second, Stewart argues that the district court violated the Fifth and Sixth
Amendments by enhancing his offense level based on facts not alleged in the
indictment nor admitted by him. Stewart also argues that the district court violated
due process and ex post facto principles by sentencing him based on the retroactive
application of the remedial opinion in United States v. Booker, 543 U.S. 220, 125
S. Ct. 738, 160 L. Ed. 2d 621 (2005). Third, Stewart argues that the district court
plainly erred by failing to conclude sua sponte that 18 U.S.C. § 922(g)(1), was
unconstitutional on its face and as applied to Stewart.
We “review[] the district court’s application and interpretation of the
sentencing guidelines under a de novo standard of review, but review[] its findings
of fact for clear error.” United States v. Rhind, 289 F.3d 690, 693 (11th Cir. 2002)
(citation omitted).
Federal law makes it unlawful for a convicted felon to possess a firearm. 18
U.S.C. § 922(g)(1). Section 2K2.1 of the Guidelines provides for a four-level
enhancement “[i]f the defendant . . . possessed any firearm . . . in connection with
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another felony offense.” § 2K2.1(b)(5). This section of the Guidelines does not
define the phrase “in connection with.” See § 2K1.1, comment.
A district court’s determination that a firearm was possessed “in connection
with” another felony offense is a factual one. See United States v. Whitfield, 50
F.3d 947, 949 & n. 8 (11th Cir. 1995) (addressing the “in connection with” phrase
in § 2K2.1(b)(5)). Some circuits require at least an inference that the firearm
facilitated the defendant’s felonious conduct, while other circuits have held that
mere possession is enough. Id. at 948-49 (citations omitted). We have refused to
adopt a more restrictive approach of interpreting “in connection with” used in other
courts. United States v. Young, 115 F.3d 834, 837-38 (11th Cir. 1997) (addressing
the phrase in § 4B1.4(b)(3)(A)). Subsequently, we could not discern a principled
reason why we should not follow the reasoning in the Young decision. United
States v. Matos-Rodriguez, 188 F.3d 1300, 1309 (11th Cir. 1999) (addressing the
phrase “in connection with” found in § 2B5.1(b)(3)). When the Guidelines do not
provide a definition, we have held that district courts should give phrases within
the Guidelines their ordinary meaning, unless there is a clearly contrary intent.
Rhind, 289 F.3d at 695. We have considered the definition of “in connection with”
in other sections of the Guidelines and have determined that the phrase “merely
reflects the context of the defendant’s possession of the firearm” and the firearm
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“does not have to facilitate the underlying offense.” Id. (citations omitted).
After reviewing the record, we conclude that the phrase “in connection with”
reflects the context of Stewart’s possession of the firearm, and the district court did
not clearly err in its factual determination that Stewart possessed the firearm in
connection with either of the two felony offenses that he committed.
Stewart’s two additional issues are foreclosed by prior precedent. Stewart’s
argument that the imposed sentence was unconstitutional because it was based in
part on facts neither charged in the indictment nor admitted by him, in violation of
the Fifth and Sixth Amendments, Due Process, and Ex Post Facto Clause, has been
rejected in United States v. Duncan, 400 F.3d 1297 (11th Cir.), cert. denied, 126 S.
Ct. 432 (2005). We have also held that “the use of extra-verdict enhancements in
an advisory guidelines system is not unconstitutional.” United States v. Rodriguez,
398 F.3d 1291, 1301 (11th Cir.), cert. denied, 125 S. Ct. 2935 (2005). Stewart’s
constitutional challenge, facial and as applied, that 18 U.S.C. § 922(g)(1) exceeds
Congress’s Commerce Clause power, has also been rejected. United States v.
McAllister, 77 F.3d 387, 390 (11th Cir. 1996). For the above-stated reasons, we
affirm Stewart’s conviction and 92-month sentence.
AFFIRMED.
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