*2 tence can be enhanced for Before JORDAN, BARKETT and of a firearm by another person if four Circuit Judges, HALL,* District requirements “(1) are met: possessor Judge. of the firearm (2) was a co-conspirator, possession was in furtherance of the con- PER CURIAM: (3) spiracy, the defendant was a member we vacated the sentence im- the conspiracy at the time of posses- posed on Terry Patrick sion, (4) Turner and re- the co-conspirator possession manded for further proceedings. We con- was reasonably foreseeable by the defen- * Hall, Honorable J. Randal gia, sitting Dis- by designation. Judge trict for the Southern District of Geor- arrest subsequent Stephens’ Gallo,
dant.” charges. 1999). court made *3 remand, district the On findings of court’s district the review We following findings: error, and the for clear § 2D1.1 under
fact facts to those demonstrated guidelines has the The application 1280. A defen- Gallo, that the F.3d at 195 evidence reliable through See de novo. findings co-conspira- subsidiary relationship Gallo with had a court’s dant district only for involved that Stephens review that we Guerra and factual ones tors are trafficking v. in See, States firearms United e.g., exchange the error. clear Cir.2006) (11th Ste- and 1239, Guerra 1246 Pham, methamphetamine. F.3d 463 in by during err the not firearms (“[T]he possessed court did phens district of the a member foreseeable was that it was the defendant finding time co- by and be Guerra would firearm that Fields, 408 in furtherance v. States firearms the conspirator.”); (“The themselves, Cir.2005) dis (11th protect to 1356, conspiracy 1359 the F.3d during money, clearly err and their drugs, not did trict was possession possession The co-conspirators’] [the that of their defendant to the furtherance was foreseeable firearms the not set to the will We provided conspiracy_”). because “left are were we finding unless a factual aside that and firm conviction protection for a definite with v. Jones financed. been committed.” the defendant has that tions mistake Cir.1994) Childers, 18 F.3d court concluded district at 7-8. R:631 marks (citations internal appropriate that omitted). firearm co-conspirators’ session. II that asserts Turner Mr. appeal, On Turner Mr. convicted jury does methamphetamine in a involvement possession gun findings that court’s Flori- in northern conspiracy distribution furtherance was in Custodio Celso Co-conspirators da. possession gun Turner drugs. Mr. supplied challenge He does to him. foreseeable pur- methamphetamine financed several Gallo subsidiary court’s through brothers the Guerra chases findings. co-conspirator liaisons, including various at the The evidence Stephens. Jonathan A indicated hearing initial record argues that first Mr. Turner to Custo- a rifle provided had Turner Mr. co- connecting the directly lacks sold then Guerra, Mr. Guerra which dio of firearms conspirators’ Admin- Drug Enforcement an undercover disagree. We drug conspiracy. hear- agent who testified istration is mere than More transaction, Mr. During this ing. court’s to affirm required often had another Mr. Turner indicated also enhance of a application had Turner Mr. for sale. gun available Stallings, v. States firearm, ment. See United with a Mr. provided also Cir.2006) (requiring during Mr. recovered authorities testimony. nexus between the firearm and the Whittle’s See some crime). Ladson, permit To an enhancement 2011) co-conspirator’s posses- based on a (noting that sup- factual sion, must have been “in port enhancement must be phrase conspiracy, furtherance” of long affirmed so they plausible as are mean which has been construed to whole). based on the record as a furthered, helped, promoted, “the firearm points Mr. Turner out that no or advanced” the See United exchanged particular Timmons, *4 transaction between Agent and Whittle Cir.2002) (discussing “in further- however, Mr. argument, Guerra. This 924(c)). § ance” in the context of 18 U.S.C. misses the mark because evidence indicat case, In Mr. Turner’s district court ing a general practice carrying guns specifically found that during drug transactions can support an purpose the firearms for the enhancement for of a firearm. themselves, “protect[ing] drugs their and Slade, See United States v. 631 F.3d conclude, money.” finding, This we Cir.2011) (affirming clearly was not erroneous. 2Dl.l(b)(l) § based, part, testimony The record includes from testimony on “always that the defendant Whittle, Agent Kevin an undercover DEA guns” during carried drug trafficking); agent purchased guns drugs who and Alred, 1405,1420 144 F.3d various occasions (11th Cir.1998) (affirming a Agent purchased testified that he Whittle gun enhancement based on a defendant’s Guerra, rifle Mauser from Mr. Custodio co-conspirator’s testimony and purchasing and discussed a .45 semi-auto- that guns “laying everywhere” dur handgun Agent matic from Mr. Guerra. transaction). ing testimony further Whittle testified that Mr. Guerra Mr. about Guerra’s stated of car “Pat,” guns received both from who he rying guns selling drugs when Turner, understood to be Mr. and that Mr. suggesting history and personal practice discussed his guns associated with Mr. Turner and his being during drug armed co-conspirators reasonably dis Although Mr. Guerra separately was not finding trict court’s that Mr. Guerra used armed his transaction with Agent protection. firearms for Whittle, that did not prevent not, moreover, This was evi- court inferring from that Mr. dence supporting the enhancement. As generally guns protec- earlier, gave noted Mr. Turner another co- including the one he received tion— conspirator, Stephens, Mr. one least selling drugs. Mr. Turner —while After apparent “gun swap.” firearm in an And all, the transaction between Mr. Guerra gave money Mr. Turner also to Mr. Ste- Agent and was not a Whittle phens on several tion, purchase occasions may Mr. Guerra not have needed methamphetamine from Mr. Guerra. Al- weapon given an additional that he was though regarding the record is unclear carrying selling Agent the rifle he was events, exact timing sequence not of these suggest Whittle. We do mean to supported the record not could find could finding. different All we conclude is that that Mr. Turner armed Mr. with permissible the district court’s while Mr. carried out Agent by based on reasonable inferences from transactions financed Mr. Turner. Giv- (11th Cir.1999) Varon, 175 F.3d “frequent overpow- en the sometimes (en banc). today merely Our re ruling between firearms and ering connection” given to a district Cruz, flects deference see States v. drug trafficking, court’s factual determinations (11th Cir.1986), connection, any, if err con- district court did drug conspiracy. and a See United States firearms were cluding that the Nino, in furtherance of the 1992) (noting “the deference due district factual B courts’ determinations for sentenc ing purposes”). that his Mr. Turner also contends Turner’s sentence is affirmed. Mr. co-conspirators’ foreseeable to him. We Affirmed. given argument unpersuasive find this BARKETT, Judge, dissenting: Circuit supplied Turner himself those co-con Mr. (Mr. spirators Stephens) Guerra and Mr. *5 Although findings the district court’s a tool of the with firearms. are “[G]uns § 2D1.1 fact under are entitled to defer- Cruz, trade,” 805 F.2d at may only ence and be reversed for clear court could find error, necessary it is nevertheless that it to Mr. that was foreseeable there exist some evidence of a connection possess would Turner the defendant’s in further provided firearms he himself charged drug trafficking firearm and the Pham, ance of the See 463 apply sentencing offense to enhance- Although F.3d at 1246. Mr. Turner ar ment. v. 463 Stallings, See United States gues that the firearm sales and the (11th Cir.2006) (“[T]he F.3d separate sales were and unrelated transac government must show that the firearm tions, rejected this theo purpose respect had ‘some or effect with to ry, “involved conspiracy crime; drug trafficking presence its or exchange trafficking of firearms in the involvement cannot be the result of acci- finding, That on methamphetamine.” ”) (citing dent or coincidence.’ United record, clearly erroneous. Timmons, this v.
(11th Cir.2002)). Ill the evidence here was suffi- Whether sum, the district court did not cient to establish this connection is a close applying err in a enhance- charged call because the crime and Tur- co-conspirators’ possession ment for the or to others gift ner’s sale not, course, adopt any firearms. We do approximate occurred same selling gun act of a a per se rule to Therefore, easy specu- time frame. it is to co-conspirator during the course of a might late that and firearms conspiracy automatically necessarily or specula- have been connected. gives sentencing to a enhancement. rise legal tion is different from a reasonable elsewhere, evidence, “a similar specific As we have noted inference based on may give fact rise to pattern required support occasion is what is and different construc- enhancement.1 See States v. New- reasonable United two (11th Cir.2010) man, Rodriguez tions.” States v. De Dictionary by considering "inference” as a “conclusion reached oth- 1. Black's Law defines (“A district court’s factual used to Stephens possessed all that the firearm must any drug transaction or that specific be based on reliable and evidence possession any was in way related and cannot be on speculation.”); drugs. Although present- Cataldo, United States ed evidence was engaged in (11th Cir.1999) (“[Cjourts must not drug transactions general around the same speculate concerning the existence of a firearm, time that he “the fact which permit would a more severe mere fact that a possesses offender (internal sentence under the guidelines.” firearm does not necessarily give rise to omitted)). the firearms enhancement. The govern- ment must show beyond some nexus mere
Here there is no evidence whatsoever
possession between the firearms and the
either that Turner’s co-conspirators pos-
drug crime.” Stallings,
therance of
charged. approximately A sentence unsupported erra’s statement majority 2. The contends during drug carrying guns reasonable "because trans- court’s inference was indicating general practice of car- actions, trying notably while he made sup- guns during drug rying transactions can buyer potential of the useful- to convince a a fire- port an enhancement Aired, guns. In United States v. a co- ness of majority cites arm.” the cases guns conspirator there were testified proposition contained sub- this marijuana "laying everywhere” stantially a nexus between more evidence of (11th Cir. transaction. 144 F.3d present here. and firearms than is 1998). Here, there was no evidence Slade, testimony there was during any guns present were co-conspirator that the from the defendant’s tions. during drug "always guns” carried defendant transactions, testimony detective from state enhancement, Tur- 3. Without the confirming investigation with the familiar sentencing range guidelines ner faced a co-conspirator's statements imprisonment. U.S. 151 to 188 months of reliable, the defen- evidence that truthful ch.5, A, pt. Sentencing sen- Manual Guidelines gun offenses dur- dant had been convicted (2009). tencing application table drug conspiracy, ing the course of the raised Turner’s the defendant shot known evidence that range Id. guidelines to 188 to 235 months. Cir.2011). dealers. Here, Turner to The district court sentenced tending support a range. guidelines low-end of the drugs is Gu- between the nexus