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                                                        [DO NOT PUBLISH]



            IN THE UNITED STATES COURT OF APPEALS

                    FOR THE ELEVENTH CIRCUIT
                      ________________________

                            No. 12-12864
                        Non-Argument Calendar
                      ________________________

               D.C. Docket No. 2:11-cr-00026-LGW-JEG-1

UNITED STATES OF AMERICA,

                                                              Plaintiff-Appellee,

                                 versus

WESLEY HAMPTON LINKER,

                                                         Defendant-Appellant.

                      ________________________

               Appeal from the United States District Court
                  for the Southern District of Georgia
                     ________________________

                            (February 27, 2013)

Before BARKETT, WILSON and ANDERSON, Circuit Judges.

PER CURIAM:
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      Wesley Linker appeals his 65-month sentence after pleading guilty to one

count of possession of a firearm and ammunition by a convicted felon, in violation

of 18 U.S.C. §§ 922(g)(1) and 924(a)(2). On appeal, Linker raises two arguments.


First, he argues that that the district court erred in applying a four-level

enhancement, under U.S.S.G. § 2K2.1(b)(6)(B), for illegally possessing a firearm

in connection with another felony offense. He contends that the court wrongfully

applied the enhancement, arguing that the evidence was insufficient to support the

court’s finding that he possessed the firearm while committing the separate felony

offense of obstruction of a law enforcement officer with violence. Second, Linker

argues that his 65-month sentence is substantively unreasonable and that the

district court should have varied downward from the guideline range, as his

predicate crime of breaking and entering was of his parents’ unoccupied home and,

therefore, did not present a risk of violence.


                                           I.


      The record shows that, at sentencing, the government called Officer Mark

Drury of the Darien Police Department to testify regarding the events immediately

preceding Linker’s arrest. Officer Drury testified that on May 3, 2011, he stopped

Linker for speeding on Interstate 95, and that his police car had a forward-mounted

video camera that recorded the stop. Officer Drury, narrating the video, testified

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that he patted down Linker to make sure that he was not carrying any weapons and

then obtained consent from Linker to search the vehicle. Drury then directed him

to remove two dogs that were in the car and became suspicious as Linker took a

long time to corral the dogs and was “fiddling around” with the front of his

waistband. Drury then testified that, after Linker removed the dogs, he was still

holding his waistband and then a gun, which Linker had held, dropped to the

ground. When Linker reached down to pick up the gun, and Linker fought with

Officer Luis Perez who was attempting to restrain him from behind, Drury tased

Linker, and Perez tackled him to the ground.

      Linker testified that the firearm belonged to his girlfriend, Chelsea Smith,

who had been riding in the passenger seat and had not told him about the gun until

after they had been stopped. He claimed to have panicked and decided to hide the

gun in his pants. After the gun fell from his waistband, he saw Officer Perez step

on the gun, and then claims he reached down and pulled the magazine out of the

gun “to try to diffuse the situation.” He further testified that he did not pick up the

gun, and that the gun never actually left the ground. He also stated that he never

pushed Perez, and that he had no recollection of what happened immediately after

Officer Drury’s taser hit him.

      After hearing all of the evidence, the district court stated that it found

Officer Drury’s testimony credible and consistent with the video. Accordingly, the


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court applied the four-level § 2K2.1(b)(6)(B) enhancement. The video, in relevant

part, shows Officers Drury and Perez questioning Linker while all three men are

standing in front of Drury’s patrol car. At one point, Linker, under direction from

Perez, stands up, turns around, and places his hands on the hood of the car. Perez

then motions towards Linker and begins to lift up the back of his shirt, as if he is

going to pat down Linker. Linker, who was already looking down at the hood of

the patrol car, suddenly looks to the ground, takes his hands off the car, and tries to

retrieve something from the ground. The ground is out of view from the camera.

As Linker is reaching towards the ground, Perez is standing behind him and

attempts to restrain him, for about three to four seconds, while Linker resists.

Perez then flings Linker backwards and tackles him to the ground. The video

shows that Officer Drury, who was out of view during the scuffle between Perez

and Linker, then shot Linker with a taser after he had been pulled back by Perez,

but before Perez had tackled Linker. At that point, the two officers forcibly

restrain Linker, who is lying on the ground and out of view of the camera.

      We address each of Linker’s arguments in turn.

                                          II.

      Linker first argues that the district court erred in finding that he possessed

the firearm and that he obstructed the law enforcement officers with violence, both

necessary to support the sentencing enhancement for having “used or possessed


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any firearm or ammunition in connection with another felony offense.” U.S.S.G.

§ 2K2.1(b)(6)(B).

      We review a district court’s factual findings for clear error and its

application of the Sentencing Guidelines to those facts de novo. United States v.

Kinard, 

, 1297 n.3 (11th Cir. 2006). A district court’s enhancement

of a defendant’s offense level is a finding of fact that we review for clear error.

United States v. Rendon, 

, 1331 (11th Cir. 2003). The government

bears the burden of establishing by a preponderance of the evidence any facts

necessary to support a sentence enhancement. United States v. Askew, 

, 1183 (11th Cir. 1999). As we explained in United States v. Lawrence, 

, 1566 (11th Cir. 1995), “[a]lthough not as rigorous as the reasonable

doubt or clear and convincing standards, the preponderance standard is not

toothless. It is the district court’s duty to ensure that the Government carries this

burden by presenting reliable and specific evidence.”

      Section 2K2.1(b)(6)(B) of the Sentencing Guidelines states that a

defendant’s offense level is raised four levels if the defendant “used or possessed

any firearm or ammunition in connection with another felony offense.” U.S.S.G.

§ 2K2.1(b)(6)(B). Under Georgia law, obstruction or hindrance of a law

enforcement officer is a felony where a defendant “offer[s] or do[es] violence to

the person of such officer.” O.C.G.A. § 16-10-24(b). We have held that the


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§ 2K2.1(b)(6)(B) enhancement is properly applied where the defendant assaulted

police officers while in possession of a firearm. United States v. Jackson, 

, 1235 (11th Cir. 2001) (applying the enhancement from the 2000 Guidelines

Manual which was previously found at § 2K2.1(b)(5)).1

       First, the district court did not clearly err in finding credible Officer Drury’s

account of the events of Linker’s arrest. See United States v. Glinton, 

, 1259 (11th Cir. 1998) (explaining that we defer to the district court’s

assessment of the credibility of sentencing witnesses, and we accept the court’s

assessment unless it is clearly erroneous). Although the video of the arrest does

not conclusively show whether Linker attempted to grab, or was successful in

grabbing, the firearm, it does show that Linker, immediately after the gun fell from

his pants, reached towards the ground where the gun was located. Because of the

positioning of the camera, the gun, and to where exactly Linker was reaching, is

out of view. However, according to Drury’s testimony, Linker picked up the gun,

       1
          In Jackson, police officers stopped the defendant’s vehicle and advised him that there
was an outstanding warrant in his name and that he was under arrest. 

the
officers attempted to handcuff the defendant, he resisted, and a struggle ensued. 

of the arresting officers later testified that, during the struggle, the defendant repeatedly
attempted to reach into his left pant-pocket. 

eventually subdued and
handcuffed, and a subsequent search of his pocket revealed a firearm. 

district court’s application of the § 2K2.1(b)(6)(B) enhancement, holding the defendant’s
“attempted use [of the firearm] was sufficient to convert his possession of the firearm into
possession of the firearm ‘in connection with’ that crime [of assault of a police officer].” 

stated that, “[h]ad [the defendant] successfully pulled the pistol from his pocket, there
is no doubt that the enhancement would apply.” 

that the defendant’s
attempt to retrieve the firearm during his felonious assault of the officers was sufficient for the
enhancement to apply. 

    Date Filed: 02/27/2013   Page: 7 of 9

and the district court found Drury’s testimony credible while finding Linker’s

contrary account not credible. The video, inconclusive in itself, permits either

account: the government’s contention that Drury grabbed the gun, and Linker’s

contention that he attempted to eject the magazine from the gun to diffuse the

situation. Therefore, as two permissible views of the evidence existed, the court’s

determination that Drury’s account was credible was not clearly erroneous. See

United States v. Rodriguez De Varon, 

, 945 (11th Cir. 1999) (en banc)

(explaining that under clear error review, when two permissible views of the

evidence exist, the factfinder’s choice between them will not be clearly erroneous).

      Next, the district court did not err in applying the four-level enhancement

under U.S.S.G. § 2K2.1(b)(6)(B). Given the contents of Officer Drury’s testimony

and the video evidence, the court did not err in finding that Linker possessed the

firearm “in connection with” another felony offense. In Jackson, we held that the

§ 2K2.1(b)(6)(B) enhancement applied where the defendant, while resisting arrest,

attempted to retrieve a firearm from his pocket even though he never actually

retrieved it. See 

. Here, similarly, Linker concealed the

gun on his person during his encounter with the officers, and he attempted to reach

towards the gun when it fell from his pants. Linker’s firearm offense therefore was

“in connection with” another felony offense, as his possession of the firearm “had

the potential of facilitating” obstruction of an officer with violence. See § 2K2.1,


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comment. n. 14(A). The court therefore did not err in finding that the firearm

offense was in connection with another felony, as an offer of violence in resistance

of a law enforcement officer constitutes a felony offense under Georgia law. See

O.C.G.A. § 16-10-24(b).

       Moreover, even if we were to assume, arguendo, that the district court did

err in applying the § 2K2.1(b)(6)(B) enhancement, such error was harmless. A

Sentencing Guidelines miscalculation is harmless if the district court would have

imposed the same sentence without the error. United States v. Barner, 

, 1247-48 (11th Cir. 2009). The court stated at sentencing that, “[r]egardless

of how the guidelines had come out, I think sixty-five months is the right sentence

based on the § 3553(a) factors.” The court cited Linker’s offense conduct and his

prior criminal history as support of its decision to impose the 65-month sentence.

                                              III.

       Linker also argues that his 65-month sentence is substantively unreasonable

and that the district court should have given him a downward variance, although he

acknowledges that the district court properly calculated the Guidelines. 2 Linker’s

argument for a downward variance relies on his claim that the burglary of his

parents’ home, which provided the predicate felony for determining his base

offense level, had no propensity for violence because it was unoccupied at the

       2
         We review the reasonableness of a sentence under a deferential abuse of discretion
standard of review. Gall v. United States, 

, 41 (2007).
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time. However, the Supreme Court has rejected the contention that robberies of

unoccupied dwellings do not constitute crimes of violence. See James v. United

States, 

, 203 (2007) (“The main risk of burglary arises not from the

simple physical act of wrongfully entering onto another’s property, but rather from

the possibility of a face-to-face confrontation between the burglar and a third

party—whether an occupant, a police officer, or a bystander—who comes to

investigate.”). We, too, have held that a burglary of a dwelling is a crime of

violence for purposes of the Sentencing Guidelines. United States v. Davis, 

, 976 (11th Cir. 1989).

      The sentencing factors set forth in 18 U.S.C. § 3553(a) also supported a

within-Guidelines sentence. The record shows that Linker possessed a firearm as a

convicted felon, attempted to hide it from the police, and tried to retrieve it once it

fell to the ground. The presentence investigation report also indicated that Linker

had numerous previous convictions for larceny, burglary, and breaking and

entering. The court, therefore, properly considered both the nature and

circumstances of the offense and Linker’s personal history and characteristics

under § 3553(a) when it imposed the within-Guidelines sentence.

      AFFIRMED.




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