NOT PRECEDENTIAL



  UNITED STATES COURT OF APPEALS
         FOR THE THIRD CIRCUIT
             _______________

                  No. 12-3880
               ________________


        UNITED STATES OF AMERICA

                        v.

               ANTWAN SHAIRD,
                        Appellant

  On Appeal from the United States District Court
     for the Eastern District of Pennsylvania
          (D.C. No. 2-09-cr-00356-001)

    District Judge: Honorable Juan R. Sanchez
                  _____________

    Submitted Under Third Circuit LAR 34.1(a)
               September 10, 2013

Before: SMITH, GARTH, SLOVITER, Circuit Judges

           (Filed: September 13, 2013)

                 ______________

                  OPINION

                 ______________
SLOVITER, Circuit Judge.


         Antwan Shaird appeals from the sentence imposed following his conviction for

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

the following reasons, we will affirm the judgment of sentence.1

                                             I.

         On February 7, 2009, a team of Philadelphia Warrant Officers arrived at a house

with an arrest warrant. During the execution of the warrant, Officer Charles Zul observed

Shaird throw a black handgun from the kitchen down the basement stairs. Upon

searching the basement, Officer Zul found a black handgun. Warrant Officers also

discovered marijuana, two digital scales, and a box of sandwich bags in the dining room,

adjacent to the kitchen. See United States v. Shaird, 463 Fed. App’x 121, 122 (3d Cir.

2012).

         The police took Shaird and two other men found in the house into custody. At the

police station, a detective questioned Shaird and the other men about the marijuana

before they had been given Miranda warnings.2 Shaird admitted that the marijuana

belonged to him. The detective then advised Shaird of his Miranda rights, and Shaird

provided a written statement admitting ownership of the marijuana.

         Shaird was indicted on May 26, 2009 on three counts: Count I for possession of

marijuana with intent to distribute, in violation of 21 U.S.C. § 841(a)(1); Count II for


1
  The District Court had jurisdiction pursuant to 18 U.S.C. § 3231. We have jurisdiction
pursuant to 28 U.S.C. § 1291.
2
  See Miranda v. Arizona, 

(1966).
                                             2
possession of a firearm in furtherance of a drug trafficking crime, in violation of 18

U.S.C. § 924(c)(1)(A); and Count III for possession of a firearm by a convicted felon, in

violation of 18 U.S.C. § 922(g)(1). At a suppression hearing, the District Court ruled that

Shaird’s oral confession was inadmissible under Miranda but that his written confession

was admissible. See Shaird, 463 Fed. App’x at 123. A jury convicted Shaird of all three

offenses.

       On appeal, this court determined that both confessions were inadmissible but that

the District Court’s admission of the written confession was harmless with respect to

Count III, the felon in possession count. See Shaird, 463 Fed. App’x at 125-26. This

court reversed the judgment of conviction with respect to Counts I and II and remanded

for further proceedings. See id at 127.

       On remand, the government elected not to retry Shaird on Counts I and II. At

sentencing on Count III, the District Court applied a four-level enhancement pursuant to

U.S.S.G. § 2K2.1(b)(6)(B) and Application Note 14(B) for possessing a firearm in

connection with another felony offense because it determined that the gun Shaird threw

down the basement stairs was found in close proximity to the marijuana and drug

paraphernalia. It also applied a two-level increase pursuant to U.S.S.G. § 2K2.1(b)(4)

because the firearm in question was stolen. These enhancements brought Shaird’s base

offense level to twenty-six, which, combined with his criminal history category of IV,

made his guideline range 92 to 115 months.

       The District Court sentenced Shaird to ninety-two months’ imprisonment on

Count III, to be followed by three years of supervised release. Shaird challenges this

                                             3
ruling and argues that the District Court erroneously applied the four-level enhancement

because the gun was not found in close proximity to the marijuana and the drug

paraphernalia.

                                             II.

       “We review a district court's legal conclusions regarding the [Sentencing]

Guidelines de novo, its application of the Guidelines to the facts for abuse of discretion,

and its factual findings for clear error.” United States v. Blackmon, 

, 118

(3d Cir. 2009) (citations omitted). The four-level enhancement under U.S.S.G §

2K2.1(b)(6)(B) applies 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). A district court

must find by a preponderance of the evidence that the defendant was engaged in a felony.

See 

. Under Application Note 14(B), if that felony is drug

trafficking, the enhancement applies when a gun “is found in close proximity to drugs,

drug-manufacturing materials, or drug paraphernalia.” U.S.S.G. § 2K2.1 cmt. n.14(B).

       Shaird argues that the District Court erred in applying the four-level enhancement

because the firearm was in a separate room from the marijuana and drug paraphernalia

when he threw it down the basement stairs. According to Shaird, the government

presented no evidence as to how far apart the gun and marijuana actually were, failing to

meet its burden of proving close proximity. However, the government showed that the

dining room and kitchen were adjacent, and that the marijuana could be seen from the

spot where Shaird threw the gun down the basement stairs. Thus, the District Court did



                                              4
not abuse its discretion in determining that the gun was in close proximity to the

marijuana and drug paraphernalia as required by the Guidelines.

       Second, Shaird argues that even if the gun had been in close proximity to the

marijuana and drug paraphernalia, the District Court erred in determining that it was

“found” in close proximity because the gun and marijuana were in close proximity for

only a short period of time while he was throwing the gun down the basement stairs.

U.S.S.G. § 2K2.1 cmt. n.14(B). However, the Guidelines do not provide a minimum

time during which the gun and marijuana need to be in close proximity to one another for

the enhancement to apply. Furthermore, as the government argues, Shaird was inside the

house in possession of the gun before the Warrant Officers entered, so it was reasonable

for the District Court to conclude that the gun was in close proximity to the marijuana

and drug paraphernalia for some time. Thus, the District Court did not err in determining

that the gun was found in close proximity to the marijuana and drug paraphernalia. 3

                                            III.

       For the foregoing reasons, we will affirm the judgment of the District Court.




3
  We note that Shaird has raised concerns about hypotheticals that might extend the
applications of sentencing enhancements pursuant to U.S.S.G. § 2K2.1(b)(6)(B) beyond
their logical limits. The determination of “close proximity” as spelled out in Application
Note 14(B) is a factual one necessarily dependent on the specifics of a given case.
Therefore, we do not address Shaird’s hypotheticals or announce a rule as to the
applicability of U.S.S.G. § 2K2.1(b)(6)(B) to facts other than those presently before us.
                                             5