[DO NOT PUBLISH]



             IN THE UNITED STATES COURT OF APPEALS

                     FOR THE ELEVENTH CIRCUIT          FILED
                      ________________________ U.S. COURT OF APPEALS
                                                         ELEVENTH CIRCUIT
                                                            APRIL 27, 2012
                             No. 11-15458
                                                             JOHN LEY
                         Non-Argument Calendar
                                                              CLERK
                       ________________________

                   D.C. Docket No. 3:11-cr-00054-LC-1



UNITED STATES OF AMERICA,

                                                               Plaintiff-Appellee,

                                  versus

CALVIN CURTIS WHITT,

                                                         Defendant-Appellant.

                      ________________________

                Appeal from the United States District Court
                    for the Northern District of Florida
                      ________________________

                             (April 27, 2012)

Before TJOFLAT, HULL and KRAVITCH, Circuit Judges.

PER CURIAM:
       After pleading guilty, Calvin Curtis Whitt appeals his 48-month sentence for

possession of a firearm by a convicted felon, in violation of 18 U.S.C. § 922(g)(1).

On appeal, Whitt argues that the district court erred in applying a two-level

dangerous weapon enhancement, pursuant to U.S.S.G. § 2D1.1(b)(1). After

review, we affirm.1

                  I. WHITT’S GUIDELINES CALCULATIONS

       At sentencing, the district court determined Defendant Whitt’s base offense

level using U.S.S.G. § 2K2.1, the guideline applicable to firearm offenses. Under

§ 2K2.1, Whitt’s initial base offense level was 14. See U.S.S.G. § 2K2.1(a)(6)(A).

However, because Whitt possessed his firearm “in connection with” the uncharged

offense of possessing cocaine base with intent to distribute, the district court

applied § 2K2.1(c)’s cross reference. See U.S.S.G. § 2K2.1(c); United States v.

Webb, 

, 1381 n.2 (11th Cir. 2012) (explaining that § 2K2.1(c)’s

cross reference includes uncharged offenses). Section 2K2.1(c) directs the district

court “to apply U.S.S.G. § 2X1.1 (Attempt, Solicitation, or Conspiracy) in respect

to that other offense,” i.e., the base offense level for the drug trafficking offense, if

that offense level is greater. U.S.S.G. §§ 2K2.1(c), 2X1.1(a).


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        We review for clear error the district court’s findings of fact under U.S.S.G.
§ 2D1.1(b)(1), and we review de novo the application of the Sentencing Guidelines to those
facts. United States v. Pham, 

, 1245 (11th Cir. 2006).

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       Under U.S.S.G. § 2D1.1, the guideline applicable to drug trafficking

offenses, Whitt’s base offense level was 22, which was the greater offense level.

See U.S.S.G. § 2D1.1(c)(9) (2011). Thus, the district court used U.S.S.G.

§ 2D1.1’s level 22 for Whitt’s base offense level.

       The district court then applied the two-level dangerous weapon adjustment

in § 2D1.1(b)(1) (explained below), for an adjusted offense level of 24.

       After a three-level reduction for acceptance of responsibility, Whitt’s total

offense level was 21. Whitt’s criminal history category was III, which yielded an

advisory guidelines range of 46 to 57 months’ imprisonment. The district court

imposed a 48-month sentence. On appeal, Whitt challenges only the district

court’s application of U.S.S.G. § 2D1.1(b)(1)’s two-level enhancement.2

           II. TWO-LEVEL ENHANCEMENT IN U.S.S.G. § 2D1.1(b)(1)

       Under U.S.S.G. § 2D1.1(b)(1), a defendant’s offense level increases by two

levels “[i]f a dangerous weapon (including a firearm) was possessed.” U.S.S.G.

§ 2D1.1(b)(1). This two-level increase applies “if the weapon was present, unless



       2
          The “in connection with” requirement in § 2K2.1(c) is satisfied when “the firearm . . .
facilitated, or had the potential of facilitating” the other offense. U.S.S.G. § 2K2.1 cmt. n.14(A).
In the context of drug offenses, the cross reference applies when the other offense is “a drug
trafficking offense in which a firearm is found in close proximity to drugs, drug-manufacturing
materials, or drug paraphernalia.” 

n.14(B). On appeal, Whitt does not
challenge the district court’s application of § 2K2.1(c), but rather the application of
§ 2D1.1(b)(1).

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it is clearly improbable that the weapon was connected with the offense.” 

n.3(A).

      The government must show by a preponderance of the evidence that “the

firearm was present at the site of the charged conduct” or that “the defendant

possessed a firearm during conduct associated with the offense of conviction.”

United States v. Stallings, 

, 1220 (11th Cir. 2006). However, the

government is not required to prove that the firearm was used to facilitate the

distribution of drugs for the enhancement to apply. United States v. Audain, 

, 1289-90 (11th Cir. 2001). Once the government meets this burden,

then the evidentiary burden shifts to the defendant to demonstrate that a connection

between the weapon and the offense was “clearly improbable.” 

(quotation marks omitted).

      In Defendant Whitt’s case, the district court properly applied

§ 2D1.1(b)(1)’s two-level enhancement. According to the undisputed facts in the

presentence investigation report (“PSI”), Whitt and his roommate sold cocaine

base directly in front of their residence. Law enforcement conducted several

controlled buys from both Defendant Whitt and his roommate in amounts of less

than one gram per transaction. Before each controlled buy, law enforcement called

either Defendant Whitt or his roommate to arrange the transaction in front of the


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residence. During the transactions, either Defendant Whitt or his roommate

emerged from the residence, approached the confidential informant’s car to

complete the transaction and then returned to the residence.

      While searching the residence, officers found approximately twenty grams

of cocaine base, one gram of marijuana, smoking devices, plastic baggies, a digital

scale with cocaine residue, $620 in cash and a loaded pistol. Approximately

twelve grams of the cocaine base and the digital scale were found in a locked shed

outside the residence. The key to that shed was found in Defendant Whitt’s pants

pocket. The rest of the cocaine base was found in the roommate’s bedroom. The

loaded firearm was found in Defendant Whitt’s bedroom in a dresser drawer. The

$620 in cash was also found in Defendant Whitt’s bedroom in a juice bottle behind

the bed. In a subsequent interview, Whitt told investigators that he had the gun for

“protection.”

      Given the undisputed facts in the PSI, the government met its burden to

show that the firearm was at the site of the drug trafficking offense. Although the

drug transactions occurred right outside the residence, either Whitt or his

roommate emerged from the residence to conduct the transactions and then

immediately returned to the residence. Inside the residence, Whitt and his

roommate stored enough cocaine for multiple purchases and the baggies used to


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package them. The gun was loaded and was kept in the same room as the cash,

which it can reasonably be inferred was the proceeds of the drug sales.

      In short, the gun was on the premises where the cocaine base was stored and

packaged and where the transactions were arranged by telephone. The gun also

was present in the house while the transactions were completed just outside. These

facts are sufficient to support a finding that the gun was present at the scene of the

drug trafficking, even though the gun was not carried outside during a transaction

and was not found in the same room as the drugs. See United States v. Trujillo,

, 847 (11th Cir. 1998) (concluding the firearm was present where

defendant’s loaded gun was found in an office adjacent to the area where the

cocaine was discovered).

      Thus, the burden shifted to Whitt to show that the connection between his

loaded firearm in his bedroom and the drug trafficking was clearly improbable.

Whitt did not meet his burden. Whitt argues that the presence of the gun was

incidental to the drug trafficking because, as he told investigators, he bought the

gun for protection because of break-ins in his neighborhood. However, as the

district court explained, the fact that Whitt purchased the gun for personal safety

does not mean he would not have used it had someone tried to steal the drugs or

drug proceeds in his residence. See 

rejection of


                                           6
defendant’s proffered innocent explanation for gun’s presence and finding that gun

was actually present for security in case anything went wrong during drug deal).

Thus, Whitt did not show that the connection between the gun and the drug

trafficking was clearly improbable.

      Accordingly, the district court did not err in imposing the two-level

enhancement in U.S.S.G. § 2D1.1(b)(1). We affirm Whitt’s 48-month sentence.

      AFFIRMED.




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