United States of America v. Franklin Clark

United States Court of Appeals
For the Eighth Circuit
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No. 22-1783
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United States of America
Plaintiff - Appellee
v.
Franklin Clark
Defendant - Appellant
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Appeal from United States District Court
for the Eastern District of Missouri - St. Louis
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Submitted: January 9, 2023
Filed: June 7, 2023
[Unpublished]
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Before KELLY, ERICKSON, and STRAS, Circuit Judges.
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PER CURIAM.
Franklin Clark pleaded guilty to possession of a firearm as a convicted felon
in violation of 18 U.S.C. § 922(g)(1). The district court1 sentenced him to 37
months’ imprisonment. Clark appeals, arguing that the district court erred when it
1 The Honorable Rodney W. Sippel, then Chief Judge, United States District
Court for the Eastern District of Missouri.

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continued his sentencing hearing over his objection and when it applied a four-level
sentencing enhancement for possessing a firearm in connection with another felony
offense. We affirm.
I.
On August 4, 2020, Clark was pulled over by local law enforcement for
operating a vehicle with expired license plates. Clark also had an “active parole
violation warrant.” Clark was arrested, and during a search, officers found in Clark’s
pocket a “clear plastic bag containing a crystallized substance,” later confirmed to
be 0.03 grams of methamphetamine. Clark also told the officers that there was a
firearm in his car. Officers searched the car and found an unloaded handgun under
a box on the passenger’s seat and a magazine with ammunition wedged between the
driver’s and front passenger’s seats.
Clark pleaded guilty to one count of possession of a firearm as a convicted
felon, in violation of 18 U.S.C. § 922(g)(1). The presentence investigation report
(PSR) recommended that Clark receive a four-level enhancement under United
States Sentencing Guidelines § 2K2.1(b)(6)(B) (2018) because he possessed the
firearm “in connection with another felony offense, specifically, Possession of
Methamphetamine.” Clark objected.
The district court held a sentencing hearing on March 31, 2022. The parties
confirmed that they had no objections to the facts in the PSR, but Clark maintained
that those facts were insufficient to support the § 2K2.1(b)(6)(B) enhancement.
Clark additionally argued that because the government failed to cite a statute for the
drug offense, it had failed to “present evidence” that possession of
methamphetamine “was in fact a felony offense.” The court continued the hearing
and asked the parties to “brief whether or not the possession of .03 grams of
methamphetamine is a felony under either state or federal law.” Clark objected, and
the court asked the parties to discuss in their briefs the propriety of the continuance
under the circumstances.

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The sentencing hearing was reconvened on April 5, 2022. The district court
found that the continuance had been necessary to allow the parties to address a new
legal argument and proceeded with the hearing. The court then concluded that
Clark’s possession of a “residual amount” of methamphetamine was a felony offense
under Missouri law and that the facts were sufficient to support the § 2K2.1(b)(6)(B)
enhancement. Clark’s resulting advisory Guidelines range was 37 to 46 months.
The court imposed a sentence of 37 months’ imprisonment, to be followed by 2 years
of supervised release. Clark now appeals.
II.
A.
We begin with Clark’s argument that the district court violated Federal Rule
of Criminal Procedure 32(i)(3)(B) by continuing the sentencing hearing and giving
the government a “second bite at the apple” to prove the § 2K2.1(b)(6)(B)
enhancement. We review de novo a district court’s compliance with rules of
criminal procedure. United States v. Theimer, 557 F.3d 576, 577 (8th Cir. 2009).
Under Rule 32(i)(3)(B), when a defendant objects to the “factual allegations”
contained in the PSR regarding an issue on which the government has the burden of
proof, “the government must present evidence at the sentencing hearing to prove the
existence of the disputed facts.” United States v. Poor Bear, 359 F.3d 1038, 1041
(8th Cir. 2004). Then, “as to each matter controverted,” the district court must
“make (i) a finding as to the allegation or (ii) a determination that no such finding is
necessary because the matter controverted will not be taken into account.” United
States v. Atkins, 250 F.3d 1203, 1212 (8th Cir. 2001) (quoting Fed. R. Crim. P.
32(i)(3)(B)).
According to Clark, the district court was required to rule on his objection to
the § 2K2.1(b)(6)(B) enhancement based on the record at the first sentencing
hearing, and therefore, the continuance improperly granted the government a second

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chance to present evidence in support of the enhancement. But Clark did not object
to the facts in the PSR. He argued the government failed to prove that possession of
methamphetamine was a “felony offense.” See USSG § 2K2.1(b)(6)(B). And
whether Clark’s drug possession offense was a felony was not an evidentiary
issue—it was solely a question of law. The parties offered no new evidence at the
second hearing, and the district court considered no additional facts, stating “the
facts are closed.” Thus, the record does not support Clark’s contention that the
district court gave the government a second opportunity to meet its evidentiary
burden regarding any dispute of fact. The district court committed no error under
Rule 32.
B.
Clark also challenges the district court’s application of a four-level
enhancement under Guidelines § 2K2.1(b)(6)(B). We review de novo the district
court’s interpretation and application of the Guidelines, and we review for clear error
its findings of fact. See United States v. Blankenship, 552 F.3d 703, 704 (8th Cir.
2009); United States v. Mitchell, 963 F.3d 729, 731 (8th Cir. 2020) (“This court
reviews for clear error a district court’s finding that a defendant possessed a firearm
in connection with another felony offense.”).
Under Guidelines § 2K2.1(b)(6)(B), a defendant’s base offense level increases
by four if he or she “used or possessed any firearm or ammunition in connection
with another felony offense.” USSG § 2K2.1(b)(6)(B). “Another felony offense”
means “any federal, state, or local offense,” other than the underlying offense of
conviction, that is “punishable by imprisonment for a term exceeding one year,
regardless of whether a criminal charge was brought, or a conviction obtained.”
Id. § 2K2.1, comment. (n.14(C)). For the enhancement to apply, the defendant’s
possession of the firearm must have “facilitated, or had the potential of facilitating,”
the other felony offense. Id. § 2K2.1, comment. (n.14(A)).

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On appeal, Clark does not dispute that his possession of methamphetamine at
the time of his arrest constituted a felony offense under Missouri law. See Mo. Rev.
Stat. § 579.015 (2017); United States v. Fisher, 965 F.3d 625, 631 (8th Cir. 2020)
(“Under Missouri law, possession of methamphetamine is a felony.”). He instead
contends that his possession of the firearm was “disconnect[ed]” from his possession
of methamphetamine because the firearm was unloaded and on the passenger seat,
while the drugs were “a user amount” found “in his pocket by his knee.”
But “[t]he Guidelines do not require a loaded firearm,” and the “‘facilitate’
standard may be met when a defendant concurrently possesses drugs and a firearm
while in public, like in a car.” United States v. Sneed, 742 F.3d 341, 344–45 (8th
Cir. 2014) (cleaned up) (quoting United States v. Swanson, 610 F.3d 1005, 1008
(8th Cir. 2010)). The district court expressly found that Clark possessed the firearm
“in connection with the controlled substances [offense],” and that the firearm
“facilitate[d] or had the potential to facilitate the felony offense of possession of
methamphetamine.” In making this finding, the court principally relied on “the
proximity of the drugs to the weapon,” and it noted several facts: that the firearm
was within “an arm’s length reach of Mr. Clark, who was operating the vehicle”;
that the firearm itself “was on the passenger seat next to” Clark; that “a magazine
with four live rounds of ammunition” was found “tucked between the seats” between
Clark and the firearm; and that while “another party wouldn’t [have] know[n]”
whether the firearm was loaded or unloaded, the firearm “certainly had the
ability . . . to be used and was certainly ready to be used.”
On these facts, the district court did not clearly err in applying the
enhancement. See, e.g., Swanson, 610 F.3d at 1008 (concluding that the district
court did not clearly err in applying the § 2K2.1(b)(6) enhancement where the
defendant “had the firearm and [drugs] in public, with him in his car,” “both [were]
within his immediate reach,” and the firearm and drugs “were purposefully together
and not close in proximity as a matter of coincidence”); Sneed, 742 F.3d at 341,
344–45 (holding that the district court did not clearly err in finding it “probable” that
a firearm “was connected with [the defendant’s] drug offense” where an unloaded

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firearm was found in a backpack that the defendant dropped while he fled from
police and 2.17 grams of methamphetamine were found in his front pocket).
III.
Based on the foregoing, we affirm the judgment of the district court.
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