Defendant Taurus Oglesby appeals to this Court the sentencing decision of the district court, which applied a 4-level enhancement, pursuant to U.S. Sentencing Guidelines Manual § 2K2.1(b)(5) (2005), to Defendant’s sentence for a conviction under 18 U.S.C. § 922(g)(1) for being a felon in possession of a firearm. For the reasons set forth below, we AFFIRM the sentence of the district court.
BACKGROUND
On January 23, 2003, the Metro Nashville Police Officers searched the home of Defendant and his girlfriend Tamika Caruthers, pursuant to a valid search warrant. At the time of the search, both Caruthers and Defendant were present. The officers recovered $2,022 in cash on Defendant’s person, and a subsequent search of the residence uncovered powder cocaine, crack cocaine, marijuana, and digital scales in various rooms throughout the house. Additionally, threе firearms were uncovered in the residence: A loaded Beretta, 9 mm caliber semiautomatic pistol was found in Defendant’s bedroom; and a loaded Colt .22 short ¿aliber revolver and a loaded FIE .25 caliber pistol were discovered in the shoe box in the kitchen where the drugs were found. After being Mirandized, Defendant admitted that the drugs and firearms belonged to him. He explained that he bought the Beretta for $150 for protection and that he was holding the Colt for a friend. He also stated that he was going to sell the FIE to another party for $20. Defendant was a convicted felon at the time of his arrest, after having been convicted of possession with intent to sell controlled substances in 1997 and again in 2003. Defendant pled guilty to being a felon in possession of a firearm, in violation of 18 U.S.C. §§ 922(g)(1) and 924 on January 5, 2005.
At the sentencing hearing, Officer Matthew Howlett testified that the marijuana, cocaine, and the crack cocaine were all found in a Nike shoe box along with the FIE pistol and the Colt revolver. He further testified that both guns were loaded and that the box was found on the kitchen counter. Officer Howlett also testified that he found a set of digital scales outside of the shoe box, and additional digital scales throughout the house, which indicated to him a drug trafficking offense, and that he found the third gun, the Beretta, in Defendant’s bedroom. Based on these facts, Defendant’s Presentencing Report (“PSR”) recommended the imposition of a 4-level sentencing enhancement pursuant to § 2K2. 1(b)(5) for possession of a firearm in connection with another felony offense, drug trafficking.
Defendant additionally introduced evidence aimed at showing his efforts at rehabilitation. Defendant testified at the sentencing hearing that since his arrest, he voluntarily enrolled in and completed the Lifelines program, which is a correctional program offered at the Davidson County Correctiоnal facility. Defendant called Bobby Aylward (“Aylward”), supervisor of Lifelines, to testify about the program. Aylward was unable to confirm that Defendant had enrolled in the Lifelines program voluntarily, nor could he testify as to Defendant’s level of participation in the program because he did not work with Defendant.
Defendant was subsequently sentenced to 120 months in prison, which was the maximum statutory sentence and the minimum sentencе according to the advisory sentencing guidelines range. In determining that this sentence was appropriate, the district court stated, “I think the advisory guideline range is appropriate based on your long-term history of drug-dealing and acts of violence, and it is needed to protect the public.” (J.A. at 78). Defendant filed timely Notice of Appeal.
DISCUSSION
I. The district court properly applied a 4-level enhanсement, pursuant to U.S. Sentencing Guidelines Manual § 2K2.1(b)(5) to Defendant’s sentence
1. Standard of Review
The Supreme Court in Buford v. United States,
2. U.S. Sentencing Guidelines Manual § 2K2.1(b)(5)
Section 2K2. 1(b)(5) states: “If the defendant used or possessed any firearm or ammunition in connection with another felony offense ... increase by 4 levels.” This Court has adopted the rule promulgated by the Eighth Circuit that the “in connection with” requirement of § 2K2.1(b)(5) “ ‘should be construed as equivalent to the ‘in relation to’ language of 18 U.S.C. § 924(c).’ ” Hardin,
3. The Fortress Theory
To determine whether a firearm can be said to facilitate the offense, this Court has adopted the “fortress theory.” This theory “holds that if it reasonably appears that
There still exists some confusion regarding the status of the fortress theory after the Supreme Court’s decision in Bailey v. United States,
Essentially, the fortress theory asks whether there exists a nexus between the drugs and the guns to support the application of the enhancement. A nexus refers to more than mere proximity. We have explained that “the presence of drugs in a home under a firearm conviction does not ipso facto support application of a § 2K2. 1(b)(5) enhancement.” Hardin,
4. Application of the Fortress Theory
In the present case, the drugs were found in the same shoe box as two of the firearms. The box was found “in the open” on the kitchen counter. (J.A. at 44). While proximity may nоt be dispositive, it is certainly indicative of a connection between the guns and the drugs. Hardin,
Defendant argues that this theory is undermined by the fact that the guns were found at the bottom of the box beneath the bags of drugs. In order to use the guns, Defendant contends, he would have had tо dig past the drugs to get to where the guns were being stored. According to Defendant, this is not the type of “easy access” the Hardin court envisioned. We are unpersuaded by this argument. Stripped to its essence, Defendant’s argument is that the “in connection with” prong requires more accessibility than the facts of this case indicate existed. We must, however, give due deference to the district court’s applicatiоn of a legal principle to undisputed facts. Id. at 493. Without any facts indicating that storing the guns at the bottom of a shoe box rendered them incapable of being used in connection with the drug trafficking, we will not reverse the district court’s decision. In or
We are equally unpersuaded by Defendant’s argument that because he has given alternative explanations for thе presence of these guns, he has successfully discredited the inference that the guns were being used to facilitate a drug offense. This is wholly without merit because an alternative explanation for the presence of a gun does not preclude that gun from also being used to facilitate a drug offense. See Hardin,
II. The district court’s imposition of a 120-month prison sentence was reasonable
1. Standard of Review
“After Booker, which rendered the Sentencing Guidelines advisory for all criminal cases, district courts have enhanced discretion in the sentencing of criminal defendants. Ultimately, however, Booker requires that the sentence imposed by the district court be reasоnable.” United States v. Jackson,
In determining procedural reasonableness, we review “the factors evaluated and the procedures employed by the district court in reaching its sentencing determination.” Id. Specifically, we ask whether the district court “fail[ed] to ‘consider’ the applicable Guidelines range or neglect[ed] to ‘consider’ the other factors listed in 18 U.S.C. § 3553(a), and instead simply selected] what the judge deem[ed] an appropriate sentence without such required consideration.” Id. (footnote omitted). A district court is not duty-bound to recite each § 3553 factor and analyze it in order for this Court to conclude that the sentence is procedurally reasonable. The court must, however, “provide a reasoned explanation for its choice of sentence and its explanation must be sufficiently thorough to permit meaningful appellate review.” United States v. Blackwell,
2. Procedural reasonableness
Importantly, the presumption of reasonableness does not apply to our review for procedural reasonableness. “[T]he presumption of reasonableness does not ‘mean that a guidelinеs sentence will be found reasonable in the absence of evidence in the record that the district court considered all of the relevant section 3553(a) factors.’ ” Blackwell,
A district court must consider the applicable Guidelines range and the other factors listed in § 3553(a) in order to select a procedurally reasonable sentence. Jackson,
In the present case, the district judge listed the § 3553(a) factors he considered in determining Defendant’s sentence. Specifically, the court stated, “I think the advisory guideline range is appropriate based on your long-term history of drug dealing and acts of violence, and it is needed to protect the public.” (J.A. at 77). The court further concluded that the sentenсe should be accompanied by a supervised release with several special conditions, including ordering Defendant to participate in a substance abuse program, an adult education program, and a mental health program. (J.A. at 77). Therefore, the record reflects the court’s consideration of the nature of the offense, Defendant’s criminal history, and a desire to protect the public, all of which are § 3553(a) factors. 18 U.S.C. § 3553(a)(1)-(2)(C). Further, the record reflects that the court considered the need to provide Defendant with educational training and medical and correctional treatment. Section 3553(a) additionally provides for such considerations. 18 U.S.C. § 3553(a)(2)(D). Defendant’s argument that the district court did not sufficiently consider the § 3553 factors is unpersuasive. There is no magic number of factors that must be considered in order to yield a procedurally reasonable sentence. As long as the record makes it possible for this Court to conduct a meaningful review, the district court need not recite each § 3553 factor. Chandler,
3. Substantive Reasonableness
As we have stated above, this Court credits sentences that fаll within the appropriate guideline range with a rebuttable presumption of reasonableness. Williams,
In the present case, the appropriate guideline range for Defendant’s conviction was 120 months to 150 months, but the statutory maximum for Defendant’s offense was 120 months. Thus, while 120 months represented the highest sentence Defendant could have received, it still fell within the appropriate guideline range. Accordingly, based upon the factors taken into account by the district court, we afford the sentence a presumption of reasonableness. The burden is on Defendant to point to facts that show this sentence was “greater than necessary to comply with the purposes set forth in [§ 3553(a)(2) ].” Yopp,
Defendant argues that, in light of the mitigation evidence he presented, the court’s decision to apply a 120-month sentence was unreasonable. Specifically, Defendant argues that his voluntary participation in the Lifelines program should weigh in favor of his receiving a lower sentence. Because the district court did not engage in an on-thе-record consideration of this specific argument, Defendant contends that his sentence was unreasonable. As this Court has held, “[wjhere a defendant raises a particular argument in seeking a lower sentence, the record must reflect both that the district judge considered the defendant’s argument and that the judge explained the basis for rejecting it,” United States v. Richardson,
Despite this language, we conclude that the facts of this case render such consideration of Defendant’s mitigation argument unnecessary. Defendant’s mitigation defense was woefully unsupported, because he chose to call a witness who did not actually work with him in the Lifelines program and could not testify as to the nature of his involvement or whether his involvement was voluntary. Because the mitigation value of a post-offense treatment program is derived from a dеfendant’s choice to voluntarily participate, it is important that a defendant be able to demonstrate that such participation was voluntary. See United States v. Maddalena,
Defendant’s argument amounts to a contention that the district court erred in its consideration of the sentencing factors and that it should have come out a different way. Our role in reviewing the district court’s sentence for substantive reasonableness is not to substitute our discretion for that of the district court. Williams,
For the forgoing reasons, we AFFIRM the district court’s sentencing order.
Notes
. Importantly, all that is required for this еnhancement is a felonious offense or act; a conviction or even a charge need not arise out of the felonious act. Accordingly, the fact that drugs were uncovered can support this enhancement being applied even though there was no actual drug charge. “Felony offense, as used in subsection (b)(5), means any offense (federal, state, or local) punishable by imprisonment for a term exceeding one year, whether or not a criminal charge was brought, or conviction obtained.” U.S. Sentencing Guidelines Manual § 2K2.1 cmt. n. 4 (2005).