PUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
No. 08-4588
TIMOTHY LAMONT JENKINS, a/k/a
Big Tim,
Defendant-Appellant.
Appeal from the United States District Court
for the District of South Carolina, at Charleston.
David C. Norton, District Judge.
(2:07-cr-01119-DCN-1)
Argued: March 24, 2009
Decided: May 15, 2009
Before WILKINSON, Circuit Judge, Eugene E. SILER, Jr.,
Senior Circuit Judge of the United States Court of Appeals
for the Sixth Circuit, sitting by designation, and
Robert J. CONRAD, Jr., Chief United States District Judge
for the Western District of North Carolina,
sitting by designation.
Affirmed by published opinion. Judge Wilkinson wrote the
opinion, in which Senior Judge Siler and Judge Conrad
joined.
2 UNITED STATES v. JENKINS
COUNSEL
ARGUED: Ann Briks Walsh, OFFICE OF THE FEDERAL
PUBLIC DEFENDER, Charleston, South Carolina, for
Appellant. Sean Kittrell, OFFICE OF THE UNITED
STATES ATTORNEY, Charleston, South Carolina, for
Appellee. ON BRIEF: W. Walter Wilkins, United States
Attorney, Columbia, South Carolina, for Appellee.
OPINION
WILKINSON, Circuit Judge:
The sole issue in this case is whether, for purposes of a
four-level sentence enhancement under U.S.S.G.
§ 2K2.1(b)(6), the defendant’s unlawful possession of a fire-
arm was "in connection with" his possession of cocaine base.
The district court found that it was, and we affirm.
I.
At 11:45 p.m. on March 21, 2007, the Charleston Police
Department received a report that an individual had been fir-
ing a weapon near the corner of Johnson Street and Nassau
Street in downtown Charleston, South Carolina. Officers went
to this location and within fifteen minutes found defendant
Timothy Jenkins, who matched the description of the armed
individual. The officers tried to interview Jenkins, but he
refused and began acting aggressively towards them. They
then tried to detain him and, after a short struggle, succeeded
in restraining him on the ground. The officers found a Taurus
Model 80 revolver between Jenkins’s stomach and the
ground. The revolver had one spent round and one live round
in the chamber. The officers then took Jenkins to Police
Headquarters. While they processed him, they found a white
rock-like substance between his fingers, later identified as .29
grams of cocaine base.
UNITED STATES v. JENKINS 3
Jenkins was charged with one count of possession of a fire-
arm and ammunition by a felon, in violation of 18 U.S.C. §§
922(g), 924(a)(2), and 924(e). He pleaded guilty to the
offense without a plea agreement.
The presentence investigation report calculated Jenkins’s
total offense level as 21 based on the following: a base
offense level of 20 under U.S.S.G. § 2K2.1(a)(4), plus four
levels under U.S.S.G. § 2K2.1(b)(6) for possession of a fire-
arm in connection with another felony offense (possession of
cocaine base), minus three levels under U.S.S.G. § 3E1.1 for
acceptance of responsibility. Jenkins had an extensive crimi-
nal history, warranting a criminal history category of V. This
corresponded to a Guidelines range of 70 to 87 months of
imprisonment. Jenkins’s only objection to the presentence
report was to the application of the four-level enhancement
under Section 2K2.1(b)(6).
At the sentencing hearing on May 15, 2008, the court first
adopted the undisputed facts in the presentence report and,
after hearing from the parties, ruled that the Section
2K2.1(b)(6) enhancement applied. The court sentenced Jen-
kins to 71 months of imprisonment. He now appeals his sen-
tence.
II.
A.
Jenkins claims that the district court erred in applying the
four-level enhancement under Section 2K2.1(b)(6). The rele-
vant part of Section 2K2.1(b)(6) provides for an increase of
four levels "[i]f the defendant used or possessed any firearm
or ammunition in connection with another felony offense."
U.S.S.G. § 2K2.1(b)(6). Jenkins does not dispute two of the
necessary elements for the enhancement: he concedes that he
possessed a firearm at the same time as he committed "an-
4 UNITED STATES v. JENKINS
other felony offense" (simple possession of cocaine base).1 He
disputes only the district court’s finding that his possession of
the revolver was "in connection with" his possession of
cocaine base.
According to a 2006 amendment to the Sentencing Guide-
lines that affirmed our prior practice, a firearm is possessed
"in connection with" another offense if the firearm "facili-
tated, or had the potential of facilitating" the other offense.2
U.S.S.G. § 2K2.1 cmt. n. 14(A). See also United States v.
Blount, 337 F.3d 404, 411 (4th Cir. 2003). This requirement
is satisfied if the firearm "ha[d] some purpose or effect" with
respect to the other offense, Blount, 337 F.3d at 411, includ-
ing if the firearm "was present for protection or to embolden
the actor," United States v. Lipford, 203 F.3d 259, 266 (4th
Cir. 2000) (interpreting "in relation to" in 18 U.S.C. § 924(c)).
See also United States v. Bullock, 526 F.3d 312, 317 (6th Cir.
2008) (whether firearm emboldens defendant is a factor for
U.S.S.G. § 2K2.1(b)(6)); United States v. Smith, 535 F.3d
883, 885-86 (8th Cir. 2008) (whether firearm was present for
protection or emboldened defendant are factors); United
States v. Gambino-Zavala, 539 F.3d 1221, 1230 (10th Cir.
2008) (whether firearm was present for protection is a factor).
But the requirement is not satisfied if the firearm was present
due to mere "accident or coincidence." Blount, 337 F.3d at
411.
1
Because Jenkins’s enhancement was premised on his possession of a
firearm, his reliance on Watson v. United States, 128 S. Ct. 579 (2007),
is misplaced. Watson addressed only the meaning of the phrase "uses" a
firearm in 18 U.S.C. § 924(c). Id. at 581.
2
This interpretation of "in connection with" is a direct quotation of the
Supreme Court’s interpretation of the phrase "in relation to," 18 U.S.C.
§ 924(c), in Smith v. United States, 508 U.S. 223, 238 (1993). See
U.S.S.G. Supp. App. C, amdt. 691 (2006). Therefore, when interpreting
"in connection with," we continue to treat the phrases as synonymous and
to rely on our cases interpreting "in relation to." See United States v.
Blount, 337 F.3d 404, 411 (4th Cir. 2003). We also continue to rely on our
cases analyzing the pre-2006 version of Section 2K2.1(b)(6), which used
identical language and was numbered Section 2K2.1(b)(5).
UNITED STATES v. JENKINS 5
Here, after adopting the facts in the presentence report, the
district court found "on the facts in this case, that the gun has
the potential of facilitating the possession of crack cocaine, no
matter what the amount." This was a factual determination
based on the specific circumstances of this case and, as such,
is subject to a clearly erroneous standard of review. See
United States v. Battle, 499 F.3d 315, 323 (4th Cir. 2007);
United States v. Garnett, 243 F.3d 824, 828 (4th Cir. 2001).
Thus, we will not disturb the district court’s finding unless we
are "left with the definite and firm conviction that a mistake
has been committed." United States v. Dugger, 485 F.3d 236,
239 (4th Cir. 2007).
B.
Jenkins tries to turn this whole matter into a question of
law. He makes two arguments as to why the district court
erred in finding that the revolver "ha[d] the potential of facili-
tating" his possession of cocaine. First, he suggests that the
finding was improper as a matter of law because he possessed
only a small amount of drugs for personal use, rather than a
larger amount for distribution. This argument implies that the
enhancement requires a drug trafficking offense. It requires
only "another felony offense," however, and thus a drug pos-
session offense is sufficient to support the enhancement when,
as in this case, it constitutes a felony under state law. See
U.S.S.G. § 2K2.1 cmt. n. 14(C) (defining "another felony
offense" as including any state offense "punishable by impris-
onment for a term exceeding one year").
Furthermore, it is clear that the possession of a firearm can
facilitate a simple drug possession offense. A firearm can
embolden the actor to possess the drugs or provide the actor
protection for himself and his drugs, which are likely to be
personally valuable even in small amounts. As the Eighth Cir-
cuit observed in a case of simple possession, "when a drug
user chooses to carry his illegal drugs out into public with a
firearm, there are many ways in which the weapon can facili-
6 UNITED STATES v. JENKINS
tate the drug offense and dangerously embolden the offender."
United States v. Regans, 125 F.3d 685, 687 (8th Cir. 1997);
see also United States v. Fuentes Torres, 529 F.3d 825, 827
(8th Cir. 2008) (noting that Regans is consistent with the 2006
addition of Application Note 14).
This is not to say that drug trafficking offenses and drug
possession offenses are treated the same for purposes of Sec-
tion 2K2.1(b)(6). In the case of a drug trafficking offense,
Application Note 14(B) provides that when "a firearm is
found in close proximity to drugs, drug-manufacturing materi-
als, or drug paraphernalia" the firearm necessarily "has the
potential of facilitating another felony offense" and thus Sec-
tion 2K2.1(b)(6) applies. See U.S.S.G. § 2K2.1 cmt. n. 14(B).
But, in the case of a drug possession offense, the general rule
of Application Note 14(A) governs, and therefore the district
court must evaluate whether the firearm "facilitated, or had
the potential of facilitating" the other offense to determine
whether Section 2K2.1(b)(6) applies. See U.S.S.G. § 2K2.1
cmt. n. 14(A). See also United States v. Blankenship, 552 F.3d
703, 704-05 (8th Cir. 2009) (noting the different standards).
C.
Jenkins next argues that the district court erred in finding
that the revolver "ha[d] the potential of facilitating" his pos-
session of cocaine because the only evidence supporting the
court’s finding was that he possessed the revolver and the
cocaine simultaneously, and, he contends, that evidence was
insufficient as a matter of law. Regardless of whether evi-
dence of simultaneous possession alone could support the
enhancement, we reject Jenkins’s argument because in this
case there was other evidence supporting the court’s factual
finding.
The presentence report shows that Jenkins took the revolver
and cocaine onto a public street, near where a gun had
recently been fired, close to midnight. This environment sug-
UNITED STATES v. JENKINS 7
gests that there was a heightened need for protection and that
the firearm emboldened Jenkins. See United States v. Smith,
535 F.3d 883, 886 (8th Cir. 2008) (noting the importance of
"ventur[ing] into public" for a finding that a firearm embold-
ened the defendant). In addition, Jenkins possessed the
revolver on his person and it was loaded, with one round in
the chamber. Thus, it was accessible and ready for use, which
further suggests that it "was present for protection or to
embolden" Jenkins. Lipford, 203 F.3d at 266. See Blount, 337
F.3d at 410-11 (noting the importance of the accessibility of
a firearm for a finding of facilitation).
These facts support the district court’s conclusion that the
firearm "ha[d] the potential of facilitating" Jenkins’s drug
possession offense. To say that the only evidence of facilita-
tion in this case was the evidence of simultaneous possession
implies that the presence of the firearm was the result of mere
"accident or coincidence," Blount, 337 F.3d at 411, which cer-
tainly was not the case.
III.
In sum, we affirm the district court’s finding that Jenkins’s
possession of the revolver was "in connection with" his pos-
session of cocaine base. The resulting application of the
enhancement to Jenkins fits squarely within the purpose of
Section 2K2.1(b)(6) — to punish more severely a defendant
who "commits a separate felony offense that is rendered more
dangerous by the presence of a firearm." Blount, 337 F.3d at
406. The sentence is affirmed.
AFFIRMED