Case: 16-17067   Date Filed: 07/10/2017   Page: 1 of 10


                                                          [DO NOT PUBLISH]



            IN THE UNITED STATES COURT OF APPEALS

                     FOR THE ELEVENTH CIRCUIT
                       ________________________

                             No. 16-17067
                         Non-Argument Calendar
                       ________________________

                D.C. Docket No. 3:15-cr-00128-BJD-JRK-1



UNITED STATES OF AMERICA,

                                                               Plaintiff-Appellee,


                                  versus

KEVIN ALLEN ROSE,

                                                          Defendant-Appellant.

                       ________________________

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

                              (July 10, 2017)

Before JORDAN, ROSENBAUM and FAY, Circuit Judges.

PER CURIAM:
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      Kevin Allen Rose appeals his conviction for possession of a firearm by a

convicted felon and his sentence for that crime and for distribution of marijuana.

We affirm in part, vacate in part, and remand.

                                I. BACKGROUND

      On May 11, 2015, Rose met a confidential informant at his home. Rose sold

the informant 13.5 grams of marijuana for $90. Rose and the informant discussed

guns; Rose told the informant he had two handguns. On May 26, 2015, the

informant returned to buy more marijuana. The informant again asked Rose about

guns and asked whether Rose would sell a gun. Rose stated the gun was not for

sale. Rose sold the informant 3.2 grams of marijuana for $50.

      The next day, Baker County detectives obtained a search warrant for Rose’s

house. Before the warrant was executed, a deputy pulled Rose over for a traffic

violation and saw marijuana in the car. Rose admitted to possession of marijuana

and possession of a gun at his house. The search warrant was executed. Rose’s

wife told the detectives that the gun was in the garage; the detectives then found a

loaded gun in the garage. Rose’s wife stated that Rose had put the gun in the

garage a few nights before.

      Rose was indicted with distribution of marijuana, in violation of 21 U.S.C.

§ 841(a)(1) and (b)(1)(D) (Counts 1 and 2), and possession of a firearm by a

convicted felon, in violation of 18 U.S.C. § 922(g) (Count 3). Rose pled guilty



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without a plea agreement. A magistrate judge concluded Rose was competent and

informed; he recommended the district judge accept his guilty plea, which the

district judge did. During the plea colloquy, the magistrate judge informed Rose of

the essential elements of the possession of a firearm offense, including the

knowing possession of a firearm in or affecting interstate or international

commerce. Rose confirmed he understood those elements and pled guilty.

      In the Presentence Investigation Report (“PSI”), Rose’s convictions were

grouped pursuant to U.S.S.G. § 3D1.2(c), because Count 3 included a specific-

offense characteristic that embodied the conduct comprising Counts 1 and 2. The

guideline applicable to Count 3, U.S.S.G. § 2K2.1, applied under U.S.S.G. §

3D1.3(a), because it provided for the highest offense level. Rose’s base offense

level was 20 under § 2K2.1(a)(4)(B). A four-level enhancement applied under §

2K2.1(b)(6)(B), because Rose had possessed the firearm in conjunction with the

sale of marijuana, a felony offense. Three levels were removed under U.S.S.G. §

3E1.1(a), (b) for Rose’s acceptance of responsibility. Rose’s total-offense level

was 21 and his criminal history category was VI. Rose’s Sentencing Guidelines

range was 77 to 96 months of imprisonment. The maximum term of imprisonment

was 60 months as to Counts 1 and 2, and 120 months as to Count 3.

      Rose objected to the four-level enhancement under § 2K2.1(b)(6)(B). At

sentencing, the district judge confirmed the parties had no objection to the PSI



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other than to the application of § 2K2.1(b)(6)(B). Rose argued there was no

connection between the firearm and his sale of marijuana. Rose also asserted his

wife had moved the gun from their bedroom into the garage after Rose was

arrested. The government responded § 2K2.1(b)(6)(B) did not require actual

physical possession of a firearm during the related felony offense.

       The district judge noted that he was “more inclined to put weight” on Rose’s

wife’s statement that Rose had placed the gun in the garage several nights before

his arrest. Sentencing Hr’g Tr. at 20 (Oct. 26, 2016). The district judge thus

concluded that it was “more likely than not that [the gun] was in the garage at the

time that [Rose] was engaging in the transaction for which he was found guilty.” 1

noted the Guidelines offered commentary on the reason behind the

enhancement.

       [T]he guidelines provide commentary that say . . . : “The enhancement
       for weapon possession in subsection (b)(1) reflects the increased
       danger of violence when drug traffickers possess weapons. The
       enhancement should be applied if the weapon was present, unless it is
       clearly improbable that the weapon was connected with the offense.”

The judge then added: “The facts in this case and the proximity required

by the guidelines . . . don’t require that it be shown. It simply requires that there be

a proximity – are such that I believe application of the guideline and the


1
 There was no finding as to the precise location of the gun in the garage, i.e., whether or not it
was visible or in close proximity to Rose.



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enhancement is appropriate.” 

overruled Rose’s objection and

adopted the Sentencing Guidelines range as calculated in the PSI. The judge

sentenced Rose to 84 months of imprisonment – 60 months as to Counts 1 and 2

and 84 months as to Count 3, all terms running concurrently.

          On appeal, Rose asserts his conviction for possession of a firearm by a

convicted felon must be vacated, because § 922(g) exceeded Congress’s authority

under the Commerce Clause2 and is unconstitutional facially and as applied to him.

Rose also contends the district judge erred by using the wrong legal standard in

finding, under U.S.S.G. § 2K2.1(b)(6)(B), he possessed a firearm in connection

with a felony offense.3

                                      II. DISCUSSION

A. Conviction

          While we ordinarily review challenges to the constitutionality of a statute de

novo, claims not raised in the district court are reviewed for plain error. See

United States v. Wright, 

, 715 (11th Cir. 2010). In Wright, we

concluded the defendant’s argument that 18 U.S.C. § 922(g)(1) was

unconstitutional, facially and as applied, failed under plain-error review. 

We rejected the defendant’s facial challenge, because we previously had
2
    U.S. Const. art. I, § 8, cl. 3.
3
 The government agrees that the district judge used the wrong legal standard when sentencing
Rose.



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concluded § 922(g)(1) “is not an unconstitutional exercise of Congress’s power

under the Commerce Clause.” 

(quoting United States v. McAllister, 

, 389 (11th Cir. 1996)). We also rejected the defendant’s argument that

§ 922(g) was unconstitutional as applied. Section 922(g) “only requires that the

government prove some minimal nexus to interstate commerce”; the government

had accomplished this by demonstrating that the firearms had been manufactured

in a different state. 

-16 (internal quotation marks omitted).

       Rose did not raise this issue before the district judge; we therefore review for

plain error. 

. The district judge did not plainly err in failing to determine

§ 922(g) is facially unconstitutional, because Wright forecloses that argument.

Additionally, the statute is not unconstitutional as applied to Rose. Rose pled

guilty and admitted to all of the essential elements of the offense, which included

the firearm’s effect on interstate commerce. Accordingly, we affirm Rose’s

conviction for possession of a firearm by a convicted felon.

B. Sentence

       We typically review “purely legal question[s],” such as whether the district

judge misapplied a sentencing guideline, de novo. See United States v.

McCrimmon, 

, 728 (11th Cir. 2004). But “[a]n appellate court may

not correct an error that the defendant failed to raise in the district court unless

there is: ‘(1) error, (2) that is plain, and (3) that affects substantial rights.’” United



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States v. Rodriguez, 

, 1298 (11th Cir. 2005) (quoting United States v.

Cotton, 

, 631, 

, 1785 (2002)). “If all three conditions

are met, an appellate court may then exercise its discretion to notice a forfeited

error, but only if (4) the error seriously affects the fairness, integrity, or public

reputation of judicial proceedings.” 

535 U.S. at 631, 122 S.

Ct. at 1785). An error that affects substantial rights will “almost always” have

“affected the outcome of the district court proceedings.” 

(quoting

, 122 S. C. at 1786). “The standard for showing that is the

familiar reasonable probability of a different result formulation, which means a

probability sufficient to undermine confidence in the outcome.” 

marks omitted). The defendant bears the burden of persuasion. 

defendant’s base offense level is set under U.S.S.G. § 2K2.1

(firearms offenses), the Guidelines direct a sentencing judge to increase a

defendant’s offense level by four if the defendant “[u]sed or possessed any firearm

or ammunition in connection with another felony offense; or possessed or

transferred any firearm or ammunition with knowledge, intent, or reason to believe

that it would be used or possessed in connection with another felony offense.”

U.S.S.G. § 2K2.1(b)(6)(B). The Application Notes add that § 2K2.1(b)(6)(B)

applies “in the case of a drug trafficking offense in which a firearm is found in

close proximity to drugs, drug-manufacturing materials, or drug paraphernalia.”



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U.S.S.G. § 2K2.1 cmt. n.14(B). In addition, the Notes indicate the inquiry as to

whether the defendant used a firearm “in connection with another felony offense”

is similar to an inquiry into whether the firearm-use and felony were “part of the

same course of conduct or common scheme or plan.” See U.S.S.G. § 2K2.1 cmt.

n.14(E)(i)-(ii) (explaining “the court must consider the relationship between the

instant offense and the other offense, consistent with relevant conduct principles”).

This court has determined “[a] firearm found in close proximity to drugs or drug-

related items simply ‘has’—without any requirement for additional evidence—the

potential to facilitate the drug offense.” See United States v. Carillo-Ayala, 

, 92 (11th Cir. 2013).

      When a defendant’s base offense level is set under U.S.S.G. § 2D1.1 (drug

trafficking offenses), the Guidelines direct a sentencing judge to increase a

defendant’s offense level by two “[i]f a dangerous weapon (including a firearm)

was possessed.” U.S.S.G. § 2D1.1(b)(1). As with § 2K2.1(b)(6)(B), the

Application Notes discuss proper application of the enhancement, stating that

“[t]he enhancement should be applied if the weapon was present, unless it is

clearly improbable that the weapon was connected with the offense.” U.S.S.G.

§ 2D1.1 cmt. n.11(A).

      The parties do not dispute that the district judge applied the standard

discussed in the Application Notes for § 2D1.1(b)(1) in applying an enhancement



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under § 2K2.1(b)(6)(B). Instead, the parties dispute whether Rose preserved his

claim of error and whether this court should exercise its discretion to correct the

error. Because Rose failed to sufficiently articulate an objection to the district

judge’s use of the correct standard and failed to preserve the specific Guideline-

calculation error that he asserts on appeal, review is limited to plain error. See

.

      The district judge, in overruling Rose’s objection, emphasized the

enhancement “simply requires that there be proximity” and the “proximity required

by the guidelines.” Sentencing Hr’g Tr. at 21. The judge relied on the standard

applicable to § 2D1.1(b)(1) and limited his findings to the specific facts necessary

to reach a conclusion using that standard. The judge did not make a conclusion as

to whether the facts also met the standard for the four-level enhancement under

§ 2K2.1(b)(6)(B). He also did not indicate whether he was finding the firearm was

in “close proximity” to actual drugs or drug paraphernalia or whether there was a

connection between the firearm and the drug offense. See 

(explaining the difference between application of § 2D1.1(b)(1),

§ 2K2.1(b)(6)(B), and the effect of the guiding principles of those provisions on a

defendant’s eligibility for safety-valve relief under U.S.S.G. § 5C1.2). Relying on

Rose’s wife’s statement, the judge concluded that the firearm was probably in the

garage when the drug transaction occurred. See United States v. Pham, 

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1239, 1246 (11th Cir. 2006) (noting § 2D1.1(b)(1) is to be applied “whenever a

firearm is possessed during conduct relevant to the offense of conviction” (internal

quotation marks omitted)).

      Without discussion from the district judge on the application of the

§ 2K2.1(b)(6)(B) standard, we cannot fully perform our function of appellate

review. Deciding whether specific facts support the enhancement on appeal in the

absence of a relevant ruling from the district judge would weaken the integrity of

the imposed sentence. See United States v. Banks, 

, 1271 (11th Cir.

2003) (“A court of appeals is not a fact finding body. . . . While it may make some

pragmatic sense to save time and judicial resources by holding that a given

sentencing court’s legal conclusion is probably consistent with facts that can be

circumstantially combed from the colloquy and the record, such a short cut makes

a sentence vulnerable to challenge for failing to specify in the record its factual

basis.”). Given the district judge’s findings, we conclude there is a “reasonable

probability”—that is, Rose is not certain to lose his argument, but he is not certain

to win either—that there will be a different result on remand. We thus vacate

Rose’s sentences and remand for a limited resentencing to permit the district judge

to make findings using the correct standard under § 2K2.1(b)(6)(B) or to otherwise

clarify his findings.

      AFFIRMED IN PART, VACATED IN PART, AND REMANDED.



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