USCA11 Case: 21-11144 Date Filed: 03/15/2022 Page: 1 of 10
[DO NOT PUBLISH]
In the
United States Court of Appeals
For the Eleventh Circuit
____________________
No. 21-11144
Non-Argument Calendar
____________________
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
CLEOPHUS MCCASKILL,
Defendant-Appellant.
____________________
Appeal from the United States District Court
for the Middle District of Florida
D.C. Docket No. 3:19-cr-00165-BJD-PDB-1
____________________
USCA11 Case: 21-11144 Date Filed: 03/15/2022 Page: 2 of 10
2 Opinion of the Court 21-11144
Before JORDAN, LUCK, and BRASHER, Circuit Judges.
PER CURIAM:
Cleophus McCaskill appeals his 108-month sentence for
one count of possession of firearms by a convicted felon. He ar-
gues that the district court clearly erred when it imposed a four-
level enhancement under U.S.S.G. § 2K2.1(b)(6)(B) for possessing
firearms in connection with another felony offense. According to
Mr. McCaskill, the district court did not adequately find that he
engaged in another felony offense, and the evidence did not indi-
cate that it was more likely than not that the firearms were either
connected to drug trafficking, another felony, or had the potential
to facilitate another felony. After careful review of the parties’
briefs and the record, we affirm.
I
We assume the parties’ familiarity with the facts and pro-
cedural history and set out only what is necessary to explain our
decision. As to issues not discussed, we summarily affirm.
A
On March 17, 2019, during a lawful search of Mr.
McCaskill’s vehicle, Putnam County Sheriff’s Office deputies
found a pill bottle containing two baggies of eutylone (a Schedule
I controlled substance), an insulated lunch box containing 53.61
grams of marijuana, a scale with residue, and empty baggies.
Deputies also found three firearms in two separate locations in-
USCA11 Case: 21-11144 Date Filed: 03/15/2022 Page: 3 of 10
21-11144 Opinion of the Court 3
side of the vehicle: a loaded Taurus .38 caliber revolver in a small
purse in the front passenger seat area, and, in a duffle bag in the
backseat, a Zastava 7.62mm caliber pistol with a high-capacity, 30-
round magazine loaded with 19 rounds, and a loaded Rossi .357
caliber pistol with an obliterated serial number. The duffel bag
also contained a substance used to mask odors.
Mr. McCaskill was charged in Putnam County Circuit
Court with seven separate offenses, including possession of meth-
amphetamine with intent to sell, possession of cannabis with in-
tent to sell, and possession of drug paraphernalia. All charges
were dropped or dismissed.
B
Mr. McCaskill was later federally indicted and, in Decem-
ber 2020, pled guilty to possession of a firearm by a convicted fel-
on, in violation of 18 U.S.C. § 922(g). Before sentencing, the pro-
bation office prepared a presentence investigation report (PSR)
detailing the offense conduct. The PSR further detailed Mr.
McCaskill’s “offender characteristics.” It noted that “[Mr.
McCaskill] stated that he last used marijuana in approximately
1990” and that he “denied ever using any additional illegal drugs.”
PSR at ¶¶ 77–80. The PSR recommended that the district court
determine that Mr. McCaskill’s total offense level was 29 and his
criminal history category was III, which resulted in an advisory
guidelines range of 108 to 135 months’ imprisonment. Id. at ¶¶
30, 46, 87. This included a four-level increase under U.S.S.G. §
USCA11 Case: 21-11144 Date Filed: 03/15/2022 Page: 4 of 10
4 Opinion of the Court 21-11144
2K2.1(b)(6)(B), because “[Mr. McCaskill] possessed the firearms in
connection with drugs (i.e.[,] drug trafficking).” Id. at ¶ 22.
C
At his sentencing hearing, Mr. McCaskill objected to the
application of the § 2K2.1(b)(6)(B) enhancement. He argued that
United States v. Grimaldo, 993 F.3d 1077, 1082 (9th Cir. 2021),
and United States v. Bishop, 940 F.3d 1242, 1252 (11th Cir. 2019),
“indicate something more than mere presence and mere posses-
sion” is necessary to satisfy “the ‘in connection with’ language”
that triggers the § 2K2.1(b)(6)(B) enhancement. See D.E. 99 at 6.
The government responded by pointing the district court
to Application Notes 14(A) and 14(B) to § 2K2.1(b)(6)(B), which
make clear that the enhancement applies if the firearm “had the
potential of facilitating[ ]another felony offense” and “is found in
close proximity to drugs . . . or drug paraphernalia.” Id. at 8–9.
The government also cited United States v. Martinez, 964 F.3d
1329, 1338 (11th Cir. 2020), which holds that “the ‘in connection
with’ element is relaxed somewhat if the other felony offense is a
drug trafficking offense.”
The district court overruled Mr. McCaskill’s objection, and
explained its reasoning as follows: “I do believe that the sentenc-
ing guidelines application note, as well as the Martinez case, do
contemplate the specific offense characteristic enhancement that
has been calculated in these guidelines regarding the proximity of
firearms and controlled substances at the time of Mr. McCaskill’s
USCA11 Case: 21-11144 Date Filed: 03/15/2022 Page: 5 of 10
21-11144 Opinion of the Court 5
arrest.” D.E. 99 at 11. The district court later noted that the en-
hancement applied “[b]ecause the firearms were involved with
the possession of controlled substances.” Id. at 14. Ultimately,
the district court “concluded that the guidelines [were] accurately
calculated” in the PSR and “adopt[ed] them to use in connection
with the fashioning of a sentence in connection with [Mr.
McCaskill’s] crimes.” Id. at 15. Later in the hearing, the district
court noted that the “intersection of drugs and guns creates trag-
edy almost without exception” and that the high-capacity maga-
zine found in Mr. McCaskill’s possession “screams” and “portends
violence.” Id. at 49, 50–51. The district court then sentenced Mr.
McCaskill to 108 months’ imprisonment, to be followed by 24
months of supervised release.
II
A district court’s finding that a firearm was possessed “in
connection with” another felony offense is a factual finding that
we review for clear error. See United States v. Bishop, 940 F.3d
1242, 1250 (11th Cir. 2019). Factual findings are clearly erroneous
when, although there is evidence to support them, we, based on
the record as a whole, “[are] left with the definite and firm convic-
tion that a mistake has been committed.” United States v. Bar-
rington, 648 F.3d 1178, 1195 (11th Cir. 2001) (quotation marks
omitted). “Where a fact pattern gives rise to two reasonable and
different constructions, the factfinder’s choice between them can-
not be clearly erroneous.” United States v. Almedina, 686 F.3d
1312, 1315 (11th Cir. 2012) (quotation marks omitted).
USCA11 Case: 21-11144 Date Filed: 03/15/2022 Page: 6 of 10
6 Opinion of the Court 21-11144
III
A
The burden is on the government to show by a preponder-
ance of the evidence that a sentencing enhancement applies. See
United States v. Dimitrovski, 782 F.3d 622, 629 (11th Cir. 2015).
Under the preponderance of the evidence standard, the trier of
fact must believe that the existence of a fact is more probable than
not. Almedina, 686 F. 3d at 1315. “A district court’s factual find-
ings used to support a sentencing enhancement must be based on
reliable and specific evidence and cannot be based on specula-
tion.” United States v. Newman, 614 F.3d 1232, 1238 (11th Cir.
2010).
“The findings of fact of the sentencing court may be based
on evidence heard during trial, facts admitted by a defendant’s
plea of guilty, undisputed statements in the [PSI], or evidence pre-
sented at the sentencing hearing.” United States v. Wilson, 884
F.2d 1355, 1356 (11th Cir. 1989). See also United States v. Beckles,
565 F.3d 832, 843–44 (11th Cir. 2009) (holding that a district court
may base its factual findings on undisputed facts in the PSR).
Facts in the PSR are undisputed and deemed to have been admit-
ted unless a party objects to them before the sentencing court
with specificity and clarity. See id.
B
Under U.S.S.G. § 2K2.1(b)(6)(B), a court should add four
levels to a defendant’s base offense level if he used or possessed
USCA11 Case: 21-11144 Date Filed: 03/15/2022 Page: 7 of 10
21-11144 Opinion of the Court 7
any firearm or ammunition in connection with another felony of-
fense. See Bishop, 940 F.3d at 1250. “Another felony offense” in-
cludes crimes that are punishable by imprisonment for a term ex-
ceeding one year under federal, state, or local law, “regardless of
whether a criminal charge was brought, or a conviction ob-
tained.” Id. (quoting U.S.S.G. § 2K2.1(b)(6)(B) comment n.14(C)).
Application Note 14(A) to § 2K2.1(b)(6)(B) states that a fire-
arm is used or possessed “in connection with” another felony of-
fense if “the firearm or ammunition facilitated, or had the poten-
tial of facilitating, another felony offense.” Application Note
14(B) to § 2K2.1(b)(6)(B), in turn, states that the enhancement ap-
plies “in the case of a drug trafficking offense in which the firearm
is found in close proximity to drugs, drug-manufacturing materi-
als, or drug paraphernalia” and that the “presence of the firearm
has the potential of facilitating another felony offense” in drug
trafficking cases. We have also found that a firearm is “in close
proximity to” drug paraphernalia where it is located in the same
automobile. See United States v. Martinez, 964 F.3d 1329, 1339–
40 (11th Cir. 2019) (finding “close proximity” where a scale, bag-
gies, and a stolen shotgun were found in separate bags in the
same car).
The commentary’s interpretation of the “in connection
with” language is consistent with our precedent. We have ex-
pressly rejected a restrictive interpretation of the term “in connec-
tion with” and have indicated that the phrase, as used in
§ 2K2.1(b)(6)(B) and other sections of the guidelines, should be
USCA11 Case: 21-11144 Date Filed: 03/15/2022 Page: 8 of 10
8 Opinion of the Court 21-11144
given an expansive interpretation. See United States v. Smith, 480
F.3d 1277, 1280 (11th Cir. 2007). See also United States v. Rhind,
289 F.3d 690, 695 (11th Cir. 2002) (holding that firearms do not
need to be loaded or operable to apply the enhancement under
§ 2K2.1(b)(6)).
IV
On appeal, Mr. McCaskill argues that the district court’s
application of the U.S.S.G. § 2K2.1(b)(6)(B) enhancement was
clear error because (1) the government did not prove by a pre-
ponderance of the evidence that he committed a drug trafficking
offense as required by Application Note 14(b), or that the firearms
could have potentially facilitated another felony as required by
Application Note 14(A), and (2) the district court failed to make
sufficient factual findings to support application of the enhance-
ment under either Application Note 14(A) or 14(B). He also con-
tends that de novo review is proper because “the district court
failed to make findings sufficient to support application of the
four-level U.S.S.G. § 2K2.1(b)(6)(B) enhancement” and as such, his
challenge to “the guidelines application issue is purely legal.”
First, we reject Mr. McCaskill’s argument that the district
court failed to make sufficient factual findings concerning the dis-
puted enhancement to permit meaningful appellate review. See
Gall v. United States, 552 U.S. 38, 50 (2007) (holding that a district
court must “adequately explain” the chosen sentence to allow for
meaningful appellate review). The record reflects that the district
court adopted the PSR, the undisputed portions of which showed
USCA11 Case: 21-11144 Date Filed: 03/15/2022 Page: 9 of 10
21-11144 Opinion of the Court 9
that: (1) there were three firearms in close proximity to two forms
of narcotics and to drug distribution paraphernalia, and (2) local
authorities charged him with possession with intent to distribute
narcotics in violation of state law following his arrest. The district
court also explicitly noted that it had considered the arguments of
the parties—including the government’s arguments that the en-
hancement should apply because of the close proximity of the
firearms to the drugs and drug paraphernalia. See U.S.S.G.
§ 2K2.1(b)(6)(B), n. 14(B). These findings provide a sufficient basis
for meaningful appellate review. Id.
Second, the district court did not clearly err when it found
that Mr. McCaskill possessed firearms in connection with another
felony. See Martinez, 964 F.3d at 1339–40. Mr. McCaskill is cor-
rect that the mere proximity of a firearm to drugs possessed for
personal use, without more, is generally not enough to sustain
the U.S.S.G. § 2K2.1(b)(6)(B) sentencing enhancement. See Bish-
op, 940 F.3d at 1252. Here, however, there was enough evidence
for the district court to find by a preponderance of the evidence
that the drugs in Mr. McCaskill’s car were connected to drug traf-
ficking rather than personal use. See Almedina, 686 F.3d at 1315;
Wilson, 884 F.2d at 1356.
Undisputed portions of the PSI established that Mr.
McCaskill had not used marijuana or any other illegal drugs since
1990—nearly three decades before the offense conduct at issue
here. It was, therefore, reasonable for the district court to find
that Mr. McCaskill, who does not personally use marijuana or any
USCA11 Case: 21-11144 Date Filed: 03/15/2022 Page: 10 of 10
10 Opinion of the Court 21-11144
other illegal drugs, was more likely than not engaged in drug traf-
ficking when he had 56.31 grams of marijuana, two baggies of eu-
tylone, a scale with residue, empty baggies, and an odor masking
agent in his car. See Martinez, 964 F.3d at 1339–40. It was also
reasonable for the district court to find that the three loaded fire-
arms located in the same vehicle were more likely than not pos-
sessed in connection with drug trafficking, or that they had the
potential to facilitate such an offense. See U.S.S.G.
§ 2K2.1(b)(6)(B), n. 14(A), (B). Therefore, the close proximity of
the firearms to the two types of illegal drugs and drug parapher-
nalia warranted the sentencing enhancement. See Martinez, 964
F.3d at 1335.
V
Accordingly, we affirm Mr. McCaskill’s 108-month sen-
tence.
AFFIRMED.