19a0238n 06

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1 NOT RECOMMENDED FOR PUBLICATION File Name: 19a0238n.06 18 - 5776 No. UNITED STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT , ) UNITED STATES OF AMERICA ) - , Plaintiff ) Appellee ) ON APPEAL FROM THE ) v. UNITED STATES DISTRICT ) WESTERN COURT FOR THE ) , ROBERT SMITH DISTRICT OF TENNESSEE ) . Appellant - ) Defendant OPINION ) BEFORE: COLE, Chief Judge ; S TRANCH and READLER , Circuit Judges . JANE B. STRANCH, Circuit Judge . Robert Smith pleaded guilty to being a felon in in violation of sentenced to 98 months’ (1) , and was possession of a firearm, 18 U.S.C. § 922(g) - imprisonment. On appeal, he argues that the district court erred in applying a four level enhancement to his Gu idelines offense level for possessing a firearm “in connection with another felony offense.” USSG § 2K2.1(b)(6)(B). He also argues that the written judgment impermissibly varies from the oral sentence because it does not include a provision that Smith’s federal sentence run concurrently to any forthcoming state sentence for related conduct. For the following reasons, AFFIRM the application of a § 2K2.1(b)(6)(B) enhancement but REMAND for the district we court to amend the written judgment to conform to t he oral sentence. I. BACKGROUND On February 4, 2017, Memphis police officers responded to a domestic violence call. Smith’s girlfriend told the police that Smith had punched her in the face and strangled her,

2 No. 18 5776 , United States v. Smith - temporarily stopping her from breathing, du arrested and ring an argument. Police officers searched Smith, finding eight individually wrapped bags of marijuana (weighing 8.4 grams in an obliterated serial number in his pocket. Because Smith had previously total) and a handgun with f a felony, he been convicted o was subsequently charged in federal court with being a felon in possession of a firearm. He was charged with aggravated assault — a felony — and other crimes also in state court in connection with this incident . Smith subsequently pleaded guilty to being a felon in possession of a firearm. At the - level enhancement under Guideline sentencing hearing, the parties disputed whether a four § 2K2.1(b)(6)(B) applied for using or possessing a firearm “in connection with another felony offe nse.” After hearing argument as well as testimony from one of the police officers involved in Smith’s arrest, the district court ruled that it did , citing two separate grounds. he crime of the district court concluded that this enhancement applied based on t First, elying on the officer’s testimony and the presentence report, the court found R aggravated assault. that it was more likely than not that Smith had the gun in his pocket while he was strangling his 1 gun In so doing, it rejected the def ense’s argument girlfriend that Smith may have retrieved the . out of a back room after the physical altercation and before the police arrived. The court also e knew found that possession of the gun “emboldened” Smith to commit this assault because “ [h] to shove that if pus h comes found that Smith’s , he ha [d] the ultimate trump card. ” T he court thus felony offense of aggravated assault. possession of the gun was “in connection” with the 1 still Although Smith did not admit to committing aggravated assault, as this charge was pending in state court , he did not dispute the facts stated in the presentence report. On appeal, he refers to the “alleged aggravated assault” but does not argue that the district court erred in finding by the that the preponderance of evidence that he committed this felony offense. Instead, he argues only government did not prove that he “possessed the firearm during the alleged aggravated assault.” - - 2

3 No. 18 5776 , United States v. Smith - Second, the district court determined that this enhancement applied based on the felony offense of possession with intent to distribute marijuana. It found that it was more likely than not that Smith had the intent to distribute the eight bags of marijuan a he possessed because, despite weighing only a little over eight grams, these drugs “were packaged for resale.” The court did not explain, however, why Smith’s possession of the gun was “in connection” with this offense or make any factual findings relat ing to this nexus. At sentencing , the district court orally granted Smith credit against his sentence for the time he spent in - trial state custody and ran his federal sentence concurren tly to “any sentence that pre may be forthcoming in state court” based on this incident. Yet the written judgment reflects only the former ruling , and not the latter. A NALYSIS II. A. § 2K2.1(b)(6)(B) Enhancement This court “review[s] a district court’s calculation of the advisory sentencing Guidelines as part of our obligation to determine whether the district court imposed a sentence that is procedurally unreasonable. In doing so, we review the district court’s factual findings for clear error and its legal conclusions de novo.” United States v. Angel , 576 F.3d 318, 320 (6th Cir. 2009) (citation s and internal quotation marks omitted). We also review deferentially “the district court’s determination that the § 2 K2.1 enhancement applies in a particular fact situation.” United States v. Taylor A district court should apply the enhancement only , 648 F.3d 417, 431 (6th Cir. 2011). “ if the government establish[es], by a preponderance of the evidence, a nexus between the firearm and an independent felony.” Angel , 576 F.3d at 321 (alteration in original) (citation and internal quotation marks omitted). The commentary to the Guidelines Manual states that § 2K2.1(b)(6)(B) applies “if the d the potential of facilitating, another felony offense.” USSG § 2K2.1 facilitated, or ha . firearm . . - - 3

4 No. 18 5776 , United States v. Smith - comment. (n. 14 ). “[P]ossession of firearms that is merely coincidental to the underlying felony (A) Angel , 576 F.3d at 321 (alteration in offense is insufficient to support the application of § 2K2.1.” ) (quoting , 263 F.3d 499, 503 (6th Cir. 2001) original) . Nevertheless , United States v. Ennenga this enhancement “applies if the firearm had some emboldening role in [a] defendant’s felonious conduct.” Id. ( alteration in original) (quoting Ennenga , 263 F.3d at 503 ) . Here, the district court found that Smith possessed the gun at the time he was committing aggravated assault . The court also found that possessing the gun emboldened Smith to commit the assault. Although a different court may not have made the same factual findings, upon our review of the record we are not left with “ the definite and firm conviction that a mistake has been United States v. quoting , 854 F.3d 341, 357 (6th Cir. 2017) ( United States v. Myers committed . ” did not clearly err. Sosebee therefore ). The court , 419 F.3d 451, 455 (6th Cir. 2005) Under our caselaw and deferential standard of review, the district court’s factual findings with regard to the assault support the application of a § 2K2.1(b)(6)(B) enhancement. See Angel , that 576 F.3d at 321 – 22 . Accordingly, w e need not reach the alternate ground for affirmance — Smith possessed a gun in connection with the possession with intent to distribute marijuana . B. Variance Bet ween Oral Sentence and Written Judgment It is well established “ that when an oral sentence conflicts with the written sentence, the oral sentence controls.” United States v. Schulz , 855 F.2d 1217, 1225 (6th Cir. 1988). “The reason for the primacy of the oral sentence lies in the fact that ‘[a] defendant is present only when being sentenced from the bench.’” United States v. Penson , 526 F.3d 331, 334 (6th Cir. 2008) (alteration in original) (quoting United States v. Villano , 816 F.2d 1448, 145 2 (10th Cir. 1987) (en banc) ). In this case , the written judgment conflicts with the oral sentence. The district court stated ntence that may be forthcoming federal sentence would be run concurrently to “any se that Smith’s in state court” based on this incident. But the order of commitment makes no mention of this - - 4

5 No. - 5776 , United States v. Smith 18 requirement G overnment nonetheless claims that there is no conflict between this document . The and the oral “Smith has not shown that he was actually subject to any other sentence, arguing that actual or potential state sentence for the conduct in question.” Smith has no burden to do so; it is efore We ther . pending sufficient that the presentence report indicates that state charges were remand for the district court to issue an amended judgment that conforms to the oral sentence. ONCLUSION C III. the § 2K2.1(b)(6)(B) enhancement For the foregoing reasons, we AFFIRM but REMAND limited purpose of amending the written judgment to conform to the oral sentence. for the - - 5

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