United States v. Howard

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit

FILED
June 6, 2008

No. 07-10592 Charles R. Fulbruge III
Clerk

UNITED STATES OF AMERICA

Plaintiff - Appellee
v.

ORLANDO HOWARD, also known as, Gator

Defendant - Appellant

Appeal from the United States District Court
for the Northern District of Texas
USDC No. 4:06-CR-86-2

Before JONES, Chief Judge, and WIENER, and CLEMENT, Circuit Judges.
PER CURIAM:*
Orlando Howard was found guilty by a jury of conspiracy and drug
charges. The district court imposed a sentence of 180 months followed by four
years of supervised release. He appeals his sentence only. For the reasons
stated below, we vacate his sentence and remand for resentencing.
I. FACTS AND PROCEEDINGS
Starting in early 2005, the Department of Justice began a nationwide
effort to reduce crime by targeting street gangs who were responsible for

*
Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.
R. 47.5.4.
 No. 07-10592

substantial amounts of crime in neighborhoods throughout the nation. As part
of that effort, the Federal Bureau of Investigation (“FBI”) and the Fort Worth
Police Department formed a joint task force known as the Safe Streets Gang
Unit. This unit began investigating individuals associated with the Crips street
gang in an area south of Fort Worth, known as the “Fish Bowl.” As early as
March 2005, undercover officers and confidential informants started purchasing
cocaine base or “crack” in that targeted area.
Howard and DeAngelo Bell sold crack and powder cocaine to undercover
officers of this task force. Between June 30 and July 13, 2005, Howard sold
33.47 grams of crack and 5.92 grams of powder to undercover officers from his
residence at 1113 East Davis Drive in Fort Worth. Bell had arranged some of
these sales. Based upon these transactions, a grand jury in the Northern
District of Texas indicted Howard and Bell on drug charges on May 10, 2006,
and FBI agents arrested Howard at his residence on May 17, 2006. At the time
of his arrest, Howard consented to a search of his residence. During this search,
FBI agents found a handgun and shotgun between the mattress and box spring
of Howard’s bed, a semi-automatic rifle in Howard’s bedroom closet, and crack
and heroin in the pocket of a shirt that was also in his closet. Laboratory
analysis indicated that the seized substances were 66.53 grams of crack and 7.16
grams of heroin. Bell was also arrested around this time.1

1
Following their arrests, a grand jury returned a five-count superseding indictment
against Howard and Bell on July 6, 2006. This superseding indictment charged Howard and
Bell with conspiracy to possess and distribute more than five grams of crack, in violation of 21
U.S.C. §§ 841(a)(1) and (b)(1)(B) and 846, and two counts of distribution of more than five
grams of crack and aiding and abetting in that distribution, in violation of 21 U.S.C. § 841(a)(1)
and (b)(1)(B)(iii) and 18 U.S.C. § 2. It also charged Howard with possession with intent to
distribute more than fifty grams of crack, in violation of 21 U.S.C. § 841(a)(1) and (b)(1)(A), and
unlawful possession of a firearm in furtherance of a drug trafficking crime, in violation of 18
U.S.C. § 924(c). Howard pleaded not guilty to each count, but Bell pleaded guilty to Counts
One, Two, and Three on July 19, 2006. He was sentenced to 235 months of imprisonment
followed by three years of supervised release on October 30, 2006.

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On November 16, 2006, a grand jury returned a five-count second
superseding indictment against Howard. For his drug sales to undercover
officers, Howard was charged with conspiracy to possess and distribute more
than five grams of crack, in violation of 21 U.S.C. §§ 841(a)(1), (b)(1)(B), and 846
(Count One); distribution of more than five grams of crack, in violation of 21
U.S.C. § 841(a)(1) and (b)(1)(B)(iii) (Count Two); and distribution of crack, in
violation of 21 U.S.C. § 841(a)(1) and (b)(1)(C) (Count Three). For the
contraband found in his bedroom, Howard was charged with possession with
intent to distribute more than fifty grams of crack, in violation of 21 U.S.C.
§ 841(a)(1) and (b)(1)(A) (Count Four); and unlawful possession of a firearm in
furtherance of a drug trafficking crime, in violation of 18 U.S.C. § 924(c) (Count
Five). Howard’s jury trial began on January 22, 2007. The jury found Howard
guilty of Counts One, Two, and Three and not guilty of Counts Four and Five on
January 26, 2007.
To calculate the drug quantity for which Howard was responsible in the
PSR, the probation officer converted all of the aforementioned drug quantities
attributable to Howard into marijuana equivalents under U.S.S.G. § 2D1.1. This
calculation resulted in Howard being held responsible for the equivalent of
2008.34 kilograms of marijuana. Based on that quantity, Howard was assigned
a base offense level of 32. The probation officer applied a two-level enhancement
for Howard’s possession of a dangerous weapon in connection with a drug
transaction under § 2D1.1(b)(1), increasing his offense level to 34. The
combination of a total offense level of 34 and a category II criminal history
resulted in a Guidelines range of 168 to 210 months of imprisonment.
Howard objected to the PSR, arguing that, because he was acquitted of
Counts Four and Five, it was error for the probation officer to (1) hold him
accountable for the drugs discovered in his bedroom when he was arrested on
May 17, 2006 and (2) apply the two-level dangerous weapon enhancement. Prior

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to sentencing, Howard also filed a motion for a downward departure, arguing
that the calculation of his Guidelines range should not include conduct related
to the two offenses for which he was acquitted and requesting that the district
court give consideration to the crack/powder disparity in the Guidelines and to
the United States Sentencing Commission’s April 18, 2007 decision to amend the
relevant crack Guideline to address that disparity, which would become effective
on November 1, 2007. The amendment in question is Amendment 706, and it
reduced the base offense level for most crack offenses by two levels.2 The
Sentencing Commission designated that amendment as retroactive on
December 11, 2007, effective March 3, 2008.
At his sentencing hearing on May 14, 2007, Howard urged an objection
that he should not have received the dangerous-weapon enhancement because
there was insufficient evidence to connect him and the drugs to the firearms
found during the search of his residence. To demonstrate the propriety of the
enhancement, the government called FBI Special Agent Jennifer Coffindaffer,
the case agent in this investigation, as a witness, who testified to facts
concerning the search of Howard’s residence. In rebuttal, Howard called his
sister, Vicky Carter, as a witness, who testified that the bedroom where the
contraband was found was Howard’s bedroom and that she never saw Howard
wear the shirt in which the drugs were found. Howard also reasserted his
downward departure argument, asking the district court to consider the
crack/powder disparity and forthcoming amendment to the Guidelines. The
district court, however, overruled Howard’s objections to the PSR and denied his
motion for a downward departure, refusing to consider the disparity and the
amendment. In so ruling, the district court found that it was not required to
consider the amendment under the Guidelines because it was not yet in effect

2
This amendment was further amended in the technical and conforming amendments
set forth in Amendment 711, also effective November 1, 2007.

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and remained a mere recommendation to Congress. The district court was silent
as to the disparity and the amendment’s effect on its analysis of the sentencing
factors under 18 U.S.C. § 3553(a). The district court summarily concluded that
it had taken the § 3553(a) factors into account and sentenced Howard to 180
months of imprisonment on Counts One, Two, and Three, with each to run
concurrently. The district court also ordered Howard to serve four-year terms
of supervised release on Counts One and Two and a three-year term of
supervised release on Count Three, with each to run concurrently. Howard
appeals.
II. STANDARD OF REVIEW
This court reviews
a sentencing decision for reasonableness, and as the Supreme Court
has clarified, the explanation of reasonableness review in the Booker
opinion made it pellucidly clear that the familiar abuse-of-discretion
standard of review now applies to appellate review of sentencing
decisions. This standard applies regardless of whether the sentence
imposed is inside or outside the Guidelines range.
United States v. Cisneros-Gutierrez, 517 F.3d 751, 764 (5th Cir. 2008) (internal
quotations and footnotes omitted). This court has noted that, in Gall v. United
States, 128 S. Ct. 586 (2007), the Supreme Court bifurcated the process for
reviewing a sentence: (1) Appellate courts “must first ensure that the district
court committed no significant procedural error, such as failing to calculate (or
improperly calculating) the Guidelines range, treating the Guidelines as
mandatory, failing to consider the § 3553(a) factors, selecting a sentence based
on clearly erroneous facts, or failing to adequately explain the chosen sentence”;
and (2) if “the sentence is procedurally sound, the appellate court [must] then
consider[] the substantive reasonableness of the sentence imposed under an
abuse-of-discretion standard.” Id. (citing Gall, 128 S. Ct. at 597) (internal
quotations omitted). “Neither Gall, Rita v. United States, nor Kimbrough v.

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United States purport to alter our review of the district court’s construction of
the Guidelines or findings of fact.” Id. (footnotes omitted). Therefore, a district
court’s interpretation or application of the Guidelines continues to be reviewed
de novo, and its factual findings continue to be reviewed for clear error. Id.
“There is no clear error if the district court’s finding is plausible in light of the
record as a whole.” Id. (internal quotations omitted).
III. DISCUSSION
Howard appeals his sentence, arguing that the district court erred by
(1) imposing an unreasonable sentence due to its refusal to consider the
crack/powder disparity, (2) applying the two-level dangerous weapon
enhancement under § 2D1.1(b)(1), and (3) considering underlying charges of
which he had been acquitted as relevant conduct for sentencing purposes. We
address each argument in turn.
A.
Howard first argues that his sentence is unreasonable, asserting that the
district court’s refusal to consider the crack/powder disparity resulted in a
sentence that failed to promote respect for the law and created unwarranted
sentencing disparities between similarly-situated defendants, which violated 18
U.S.C. § 3553(a)(2)(A) and (a)(6). In support, Howard states that “[s]entences
will arbitrarily vary based merely on the date on which the defendant is
sentenced and not on a substantive difference between defendants. Put another
way, for many defendants[’] sentencing will be more about lucky timing than
anything.” Howard notes that if the district court had considered the disparity
and applied the amendment, then his total offense level would be 32 instead of
34. With his category II criminal history, Howard’s Guidelines range would have
been 136 to 168 months of imprisonment rather than the 168 to 210 months of
imprisonment used by the district court. The government, on the other hand,
argues that the district court imposed a reasonable sentence under the 2006

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Guidelines, which were in effect on the date of Howard’s sentencing. The
government asserts that the Guidelines contained no provision that authorizes
a district court to consider a future Guideline, and thus the district court did not
commit error.
Since Howard’s sentencing and filing of his appeal, however, the Supreme
Court issued Kimbrough v. United States, 128 S. Ct. 558 (2007), and this court
decided United States v. Burns, No. 07-50321, 2008 WL 1914332 (5th Cir. May 2,
2008), both of which impact Howard’s appeal. In Kimbrough, the Court held
that district courts are free to consider, as part of their analysis of the § 3553(a)
factors, the crack/powder disparity in the Guidelines. 128 S. Ct. at 575. The
Court stated that the Guidelines for crack offenses are advisory only, and
therefore “it would not be an abuse of discretion for a district court to conclude
when sentencing a particular defendant that the crack/powder disparity yields
a sentence ‘greater than necessary’ to achieve § 3553(a)’s purposes.” Id.
Following Kimbrough, numerous circuit courts, including the Fifth Circuit, have
considered its impact in sentencings for crack offenses.
This court recently decided Burns, 2008 WL 1914332. Burns was
convicted by a jury of one count of conspiracy to possess with intent to distribute
crack and two counts of aiding and abetting the distribution of crack. Id. at *1.
The Guidelines for crack in effect at the time of sentencing placed Burns’s
sentencing range at 360 months to life imprisonment. Id. Burns filed a motion
for a downward departure based on the crack/powder disparity. Id. at *6. At
sentencing, Burns “reiterated his desire to have the district court exercise some
discretion in determining what kind of sentence he deserved based on, among
other things, the disparity in the sentences between crack and powder cocaine.”
Id. (internal quotations omitted). Burns noted that if the district court utilized
the Guidelines applicable to powder cocaine instead of crack, his sentencing

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range would have been only 140 to 175 months of imprisonment. Id. The
district court denied Burns’s motion and stated:
I recognize what you claim, which is claimed not only by you but by
others . . . of the disparity between crack cocaine and cocaine
sentencing. And that argument has been-discussion and debate has
been going on in circuit courts and in the Congress and among the
Sentencing Commission, but the guidelines are what the guidelines
are today . . . . The Court finds that the facts do not warrant a
downward departure . . . for taking into consideration the difference
between crack cocaine crimes under the guidelines and cocaine
offenses under the guidelines as a decision that’s been made by the
Congress of the United States and the Sentencing Commission.
The Court finds it has no-limited discretion, if any. And if I do have
discretion, I exercise my discretion not to downward depart on that
basis.
Id. After denying this motion, the district court sentenced Burns to 360 months
of imprisonment. Id.
The Burns court noted that following the district court’s sentencing of
Burns and his appeal of that sentence, the Supreme Court issued Kimbrough
and the Sentencing Commission decided to amend the Guidelines to address the
crack/powder disparity. Id. at *7. The court then considered how these two
developments affected the validity of Burns’s sentence. See id. at *7–8. The
district court’s aforementioned statements were construed as a finding that
Burns was “not entitled to a downward departure under the Sentencing
Guidelines.” Id. at *7. As such, this court could not “tell from the record
whether, if the judge had known that he could consider policy disagreement as
an additional factor in the ‘array of factors warranting consideration’ in his
analysis under 18 U.S.C. § 3553(a), it would have affected the ultimate sentence
imposed on Burns.” Id. It noted that “[t]he new approach to sentencing brought
by these developments is that a district judge should consider the applicable
Sentencing Guidelines range and the policy behind the Guidelines, but the judge

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may deviate from either or both. The judge should tailor any deviations by using
the Section 3553(a) factors as a pattern.” Id. This court then vacated Burns’s
sentence, holding that he was entitled to have his sentence set by a judge aware
of the discretion that Kimbrough has announced, and remanded so that the
district court could analyze the § 3553(a) factors in light of Kimbrough. Id. at
*8. It provided, however, that on remand, the district court could, on its own
initiative, consider the applicability of the change in the Guidelines to the
defendant’s sentence under 18 U.S.C. § 3582(c)(2), which allows for the district
court to reduce a defendant’s sentence based upon a retroactive amendment to
a Guideline provision at issue.3 Id.
Our sister circuits have also considered the impact of Kimbrough in
similar cases. The Seventh Circuit in United States v. Padilla, No. 06-4370,
2008 WL 833994 (7th Cir. Mar. 31, 2008), vacated a defendant’s sentence and
remanded for resentencing in light of Kimbrough. Id. at *7. The court stated
that the district court made no comments about whether it thought it could
consider the crack/powder disparity in rendering a sentence and that on the

3
This section governs when an already-sentenced defendant is eligible for consideration
for a sentence reduction because of a lowered Guideline. It provides that
in the case of a defendant who has been sentenced to a term of imprisonment
based on a sentencing range that has subsequently been lowered by the
Sentencing Commission pursuant to 28 U.S.C. [§] 994(o), upon motion of the
defendant or the Director of the Bureau of Prisons, or on its own motion, the
court may reduce the term of imprisonment, after considering the factors set
forth in section 3553(a) to the extent that they are applicable, if such a reduction
is consistent with applicable policy statements issued by the Sentencing
Commission.
18 U.S.C. § 3582(c)(2). Based upon the last sentence of this section, retroactive application of
an amendment depends upon the policy statements issued by the Sentencing Commission,
which are located in U.S.S.G. § 1B1.10. Section 1B1.10(c) lists a number of amendments which
the Sentencing Commission has selected to be applied retroactively under 18 U.S.C.
§ 3582(c)(2). Here, on December 11, 2007, the Sentencing Commission decided that its
amendment would be retroactive, effective March 3, 2008. This amendment has been
expressly listed in U.S.S.G. § 1B1.10(c). Therefore, Howard is eligible for a discretionary
sentence reduction under 18 U.S.C. § 3582(c)(2).

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record, it “ha[d] no way of knowing if the district court would have imposed the
same above-guidelines sentence had the court known that [it] had discretion to
consider that disparity when deciding upon a sentence under § 3553(a).” Id. As
a result, the court held that “[b]ecause we cannot ascertain with any exacting
degree of certainty whether the sentencing judge would have imposed the same
term of incarceration in the wake of Kimbrough, . . . a remand is appropriate.”
Id. Likewise, the Eighth Circuit in United States v. Roberson, 517 F.3d 990 (8th
Cir. 2008), vacated a defendant’s sentence and remanded for resentencing in
light of Kimbrough. Id. at 995. The court noted that “the district court said
nothing in either [defendants’] sentencing hearing about the disparity,” and that
it was “unclear whether the district court declined to use its discretion in the
requested manner because of then-current Eighth Circuit precedent or because
it did not find that the disparity warranted any variance from the guidelines.”
Id. In addition, the Ninth and Eleventh Circuits have vacated defendants’
sentences and remanded for resentencings in light of Kimbrough where the
district court stated that it did not have authority to consider the disparity as
part of its consideration of § 3553(a) factors. See United States v. Dawson, No.
06-16372, 2008 WL 194914, at *5 (11th Cir. Jan. 24, 2008); United States v.
Medina Casteneda, 511 F.3d 1246, 1248–49 (9th Cir. 2008).
Because of these developments, Howard’s appeal turns on the district
court’s statements in its ruling denying Howard’s motion for a downward
departure based upon the disparity and the amendment. First, the district court
was silent as to the effect of the crack/powder disparity on Howard’s sentence.
Second, as to the amendment addressing that disparity, the district court
provided that it “saw nothing in [the amendment] that indicated that there was
any effect of law” as of the date of Howard’s sentencing hearing and that “[i]t’s
clear to me that the proposal by the commission is to Congress and that the
current ratios, current provisions, all remain in effect.” Based upon these

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statements alone, the district court denied Howard’s motion for a downward
departure. Thereafter, the district court summarily stated that it had
considered all of the factors under § 3553(a), without any discussion of the
disparity or amendment’s effect in that analysis, and sentenced Howard to 180
months of imprisonment.
Given the district court’s ruling, we hold that Burns controls this appeal
and we thereby vacate Howard’s sentence and remand for resentencing in light
of Kimbrough and Burns. As in Burns, the district court ruled that Howard was
not entitled to a downward departure under the Guidelines based upon the
amendment. The government’s argument reinforces this understanding of the
district court’s ruling, as it argues that the district court was not required to
consider the future amendment to the Guidelines and was thus correct in
sentencing Howard under the 2006 Guidelines, which were in effect at the time
of his sentencing. Faced with the district court’s ruling based completely on the
Guidelines, it cannot be determined whether the district court knew that it could
consider the disparity or the amendment as part of its § 3553(a) analysis when
sentencing Howard. The district court never indicated that it knew it could
consider the disparity or amendment in its analysis of the § 3553(a) factors, and
it never discussed them in pronouncing his sentence. Therefore, we do not know
whether, if the district court had known that he could consider policy
disagreement or amendment, as an additional factor in its analysis of § 3553(a),
it would have affected the ultimate sentence imposed on Howard. Accordingly,
we vacate Howard’s sentence and remand for resentencing.
Additionally, like we provided for in Burns, “[t]he district court may
combine the resentencing proceeding on remand with any additional proceedings
the district court may determine are appropriate in light of amendments to the
Sentencing Guidelines related to crack-cocaine, which became effective March 3,
2008.” 2008 WL 1914332, at *8. The district court, even without a motion from

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Howard, may on its own initiative (or at the request of the director of the federal
bureau of prisons) consider the applicability of the amendment to Howard’s
sentence under 18 U.S.C. § 3582. See id.
B.
Howard also argues that the district court erred when it applied the two-
level enhancement for possession of a dangerous weapon in connection with a
drug transaction under § 2D1.1(b)(1). Section 2D1.1(b)(1) provides for a two-
level enhancement “[i]f a dangerous weapon (including a firearm) was possessed”
during certain drug offenses. The government must demonstrate by a
preponderance of the evidence that “the defendant personally possessed the
weapon by showing that a temporal and spatial relation existed between the
weapon, the drug trafficking activity, and the defendant.” United States v.
Hooten, 942 F.2d 878, 882 (5th Cir. 1991). To satisfy this burden, “the
government must provide evidence that the weapon was found in the same
location where drugs or drug paraphernalia are stored or where part of the
transaction occurred.” Id. “It is not necessary for possession of the weapon to
play an integral role in the offense or to be sufficiently connected with the crime
to warrant prosecution as an independent firearm offense.” United States v.
Villarreal, 920 F.2d 1218, 1221 (5th Cir. 1991); United States v. Rodriguez, 62
F.3d 723, 724–25 (5th Cir. 1995) (stating that the weapon need not be
brandished or loaded). “Application Note 3 to § 2D1.1 explains that the
enhancement for possession of a weapon should be applied if the weapon was
present [at the time of the transaction], unless it is clearly improbable that the
weapon was connected with the offense.” United States v. Mitchell, 31 F.3d 271,
277 (5th Cir. 1994) (internal quotations omitted). The dispositive factor is
whether the weapon was accessible to protect the drugs, the cash, or the
participants themselves during the commission of the illegal activity. Rodriguez,
62 F.3d at 724–25. “The district court’s decision to apply § 2D1.1(b)(1) is

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essentially a factual determination reviewable under the clearly erroneous
standard.” Id. at 724.
In his attempt to show that the district court erred in applying the
dangerous weapon enhancement, Howard argues that (1) he did not possess a
gun during the commission of the offense for which he was actually convicted,
and (2) the government failed to show that a temporal and spatial relation
existed between the weapons found, drug trafficking activity, and himself.
Notably, as to his second argument, Howard cites no supporting case law
involving similar factual scenarios. Howard emphasizes only that “surveillance
during the investigation never saw him with a firearm,” and drugs were not
found with the handgun and shotgun discovered between the mattress and box
spring of his bed.
Howard’s first argument is without merit. He essentially argues that the
enhancement cannot be applied with respect to the firearms discovered in his
bedroom because the jury acquitted him of the charge related to that conduct.
The fact that he was acquitted of possessing a firearm in furtherance of a drug
trafficking offense (Count Four), however, does not bar the district court from
applying this enhancement. See United States v. Partida, 385 F.3d 546, 565 (5th
Cir. 2004); see also United States v. Hernandez, 457 F.3d 416, 423 (5th Cir. 2006)
(stating that “[t]he showing required for a section 2D1.1 sentencing
enhancement is lower than that required for a conviction under section 924(c)”).
Furthermore, “it does not matter whether [Howard] actually used or intended
to use the guns in his drug-trafficking offense; the pertinent fact is that they
could have been so used.” United States v. Jacquinot, 258 F.3d 423, 431 (5th Cir.
2001) (internal quotations omitted). Thus, Howard’s first argument fails.
Howard’s second argument also falls short of demonstrating district court
error. He argues that the government failed to show a temporal and spatial
relation between the weapons, drug activity, and himself. However, based upon

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Howard’s numerous admissions and the evidence presented at the hearing, the
district court’s finding is plausible, and there is sufficient evidence that it was
not clearly improbable that the firearms were connected to drug activity.
Howard admits that “[a] handgun and shotgun were found between the mattress
and box spring in the bedroom occupied by” him and that a rifle and drugs were
found in the closet of his bedroom. Even though Howard attempts to argue that
“little evidence” connects him to that bedroom, he admits that it was his
bedroom, that “[h]e appeared from this bedroom when officers entered the
house,” and that “his Texas ID was found in the bedroom.” Furthermore, Special
Agent Coffindaffer provided further evidence to establish the requisite nexus for
the enhancement. Specifically, Coffindaffer testified that, based upon the
investigation, which was supported by information from undercover officers, and
informants, and later from co-conspirators, (1) she believed Howard to be a
member of the Hoova Crips street gang, (2) agents recovered photographs from
Howard’s bedroom that showed him “flashing” Crips gang signs, (3) Howard’s
residence was a known crack distribution location, (4) the words “King O”
written above the headboard of the bed in Howard’s bedroom was meant to
reference Orlando Howard, and (5) crack, heroin, and firearms were discovered
in Howard’s bedroom and closet, in the home where numerous drug transactions
occurred. This evidence is sufficient to support the application of the
enhancement, especially considering that Howard’s only witness in rebuttal—his
sister, Vicky Carter—confirmed that the closet where the crack and rifle were
found was Howard’s.
Case law supports the district court’s application of this enhancement.
This court considered similar facts in United States v. Juluke, 426 F.3d 323 (5th
Cir. 2005) (per curiam), and upheld the dangerous weapon enhancement. Id. at
328. In that case, the “loaded weapons at issue were found in the same home as
the cash [i.e., drug proceeds], and one was found in the same closet as a portion

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of the cash. The weapons were also on the same property that the district court
found [the defendant] had used to store heroin.” Id. Based on these facts, we
held that the district court properly applied the enhancement. Id. Moreover, as
the government notes, the temporal and spatial relation in Howard’s case was
closer than that approved in United States v. Farias, 469 F.3d 393 (5th Cir.
2006). In Farias, “the gun was found underneath the seat where [the defendant]
had been sitting [in a vehicle], near methamphetamine in the trunk, on the way
to what one of [the defendant’s] passengers later testified was a drug debt
collection . . . .” Id. at 400. The defendant “offered no evidence to rebut the
resulting inference,” and we determined that the district court did not err in
applying the enhancement. Id. Moreover, the Seventh Circuit in United States
v. Noble, 246 F.3d 946 (7th Cir. 2001), upheld the enhancement in a similar case.
Id. at 954. There, drug proceeds were found in the defendant’s bedroom, and a
weapon and ammunition were found in the bedroom closet. Id. The court held
that the “proximity of a weapon to drug proceeds provide[d] a sufficient nexus
to conclude that it was not clearly improbable that the gun was connected with
the offense.” Id. (internal quotations omitted). Like these cases, we hold that
the district court did not err in applying the enhancement to Howard.
C.
Howard lastly argues that the district court erred in considering
underlying charges of which he had been acquitted as relevant conduct for
sentencing purposes. He specifically asserts that the district court erred in
calculating his base offense level based on his possession of drugs and firearms
in his bedroom and closet, which were the subject of the charges of which the
jury acquitted him. Howard, however, concedes that this argument is foreclosed
by the Supreme Court’s holding in United States v. Watts, 519 U.S. 148, 156–57
(1997) (per curiam). Moreover, “[a] jury’s verdict of acquittal does not prevent
the sentencing court from considering conduct underlying the acquitted charge,

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so long as that conduct has been proved by a preponderance of the evidence.”
United States v. Valdez, 453 F.3d 252, 264 (5th Cir. 2006) (citing Watts, 519 U.S.
at 157) (internal quotations omitted). Although the Valdez court did not
specifically state whether Watts remains valid after United States v. Booker, 543
U.S. 220 (2005), this court has since held that it does. See Farias, 469 F.3d at
399; United States v. Jones, 194 F. App’x 196, 198 (5th Cir. 2006) (per curiam)
(unpublished). Accordingly, Howard’s argument is without merit, and we hold
that the district court did not err.
IV. CONCLUSION
For the foregoing reasons, we VACATE and REMAND for resentencing
consistent with this opinion.

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