Case: 17-13158 Date Filed: 07/06/2018 Page: 1 of 8
[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT ________________________
No. 17-13158 Non-Argument Calendar ________________________
D.C. Docket No. 8:16-cr-00487-SDM-AEP-1
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
TITO BURNEY, JR.,
Defendant-Appellant.
________________________
Appeal from the United States District Court for the Middle District of Florida ________________________
(July 6, 2018)
Before MARTIN, JILL PRYOR and HULL, Circuit Judges.
PER CURIAM: Case: 17-13158 Date Filed: 07/06/2018 Page: 2 of 8
After pleading guilty to being a felon in possession of a firearm, in violation
of 18 U.S.C. §§ 922(g)(1) and 924(a)(2), defendant Tito Burney Jr. appeals his
total 33-month sentence. On appeal, Burney argues that the district court erred in
applying a four-level enhancement under U.S.S.G. § 2K2.1(b)(6)(B) for possessing
a firearm in connection with another felony offense. After review, we affirm.
I. BACKGROUND FACTS
A. Offense Conduct
On February 26, 2016, police officers in St. Petersburg, Florida observed
Burney standing beside a road with a bag of marijuana protruding from his front
pocket. When the officers searched Burney incident to his arrest, they found a
loaded 9mm pistol in his front pocket. At the time of his arrest, Burney was a
convicted felon, having been convicted in state court of grand theft of a motor
vehicle in November 2015.
In November 2016, a federal grand jury indicted Burney on one count of
being a felon in possession of a firearm, namely the 9mm pistol found in his
pocket. On January 10, 2017, while Burney was on pretrial release, officers
observed Burney and others in a Facebook Live video possessing guns and making
threatening remarks. As a consequence, on January 12, 2017, Burney was arrested
for violating a special condition of his pretrial release by possessing a firearm.
2 Case: 17-13158 Date Filed: 07/06/2018 Page: 3 of 8
On the same day, agents with the Federal Bureau of Alcohol, Tobacco,
Firearms, and Explosives (“ATF”) searched Burney’s home and discovered three
guns, 30.4 grams of marijuana individually packaged in 13 separate plastic bags,
and a digital scale next to the marijuana. Burney’s mother told police officers that
one of the firearms recovered during the search—a sawed-off shotgun—belonged
to her, but said the other two guns likely belonged to Burney. Burney admitted
that one of the two remaining guns was the gun he had possessed in the Facebook
Live video and that both guns were given to him by two other men.
B. Sentencing
After Burney entered his guilty plea, the presentence investigation report
(“PSI”) recommended a four-level increase in Burney’s offense level, pursuant to
U.S.S.G. § 2K2.1(b)(6)(B), because he had possessed a firearm in connection with
the felony offense of possession of marijuana with intent to distribute. The PSI
stated that when Burney possessed the firearm on February 26, 2016, officers
“found 22.6 grams of marijuana which was packaged in eight small Ziploc bags in
the defendant’s front right pocket.” The PSI further stated, that when officers
searched Burney’s home on January 12, 2017, they found three firearms, “30.4
grams of marijuana which was packaged for distribution in 13 separate plastic
bags, and a digital scale next to the baggies of marijuana.”
3 Case: 17-13158 Date Filed: 07/06/2018 Page: 4 of 8
Before and at sentencing, Burney objected to, among other things, the
proposed four-level increase, arguing that there was no evidence that he had
possessed the marijuana with the intent to sell it and that his marijuana possession
was a misdemeanor under state law. At the sentencing hearing, the government
presented evidence in support of the four-level increase, including: (1) a DVD
recording of the Facebook Live stream; and (2) the testimony of St. Petersburg
police officer Brian Prest, who arrested Burney in February 2016, and ATF special
agent Scott Boshek, who searched Burney’s home in January 2017 and interviewed
Burney and his mother after the search. Burney presented testimony from his
mother.
After hearing the evidence, the district court found that it was more probable
than not that Burney intended to sell the marijuana and overruled Burney’s
objection to the four-level increase for possessing a firearm in connection with
another felony offense. Based on its resolution of Burney’s objections, the district
court found that Burney’s total offense level was 17 and his criminal history
category was III, which resulted in an advisory guidelines range of 30 to 37
months’ imprisonment. After hearing argument from the parties, the district court
found no reason to vary from that advisory range and imposed a 33-month
sentence.
4 Case: 17-13158 Date Filed: 07/06/2018 Page: 5 of 8
II. SECTION 2K2.1(b)(6)(B) FIREARM INCREASE
Section 2K2.1(b)(6)(B) provides for a four-level increase if the defendant
“used or possessed any firearm or ammunition in connection with another felony
offense; or possessed or transferred any firearm or ammunition with knowledge,
intent, or reason to believe that it would be used or possessed in connection with
another felony offense.” U.S.S.G. § 2K2.1(b)(6)(B). Application Note 14 to
§ 2K2.1(b)(6)(B) explains that the increase can be applied “if the firearm or
ammunition facilitated, or had the potential of facilitating, another felony offense.”
U.S.S.G. § 2K2.1 cmt. n.14(A). The commentary further provides that the increase
applies “in the case of a drug trafficking offense in which a firearm is found in
close proximity to drugs, drug-manufacturing materials, or drug paraphernalia . . . .
because the presence of the firearm has the potential of facilitating another felony
offense or another offense.” Id. § 2K2.1 cmt. n.14(B).
This Court has determined that “[a] firearm found in close proximity to
drugs or drug-related items simply ‘has’—without any requirement for additional
evidence—the potential to facilitate the drug offense.” See United States v.
Carillo-Ayala, 713 F.3d 82, 92 (11th Cir. 2013).1
1 A district court’s finding that a firearm was possessed in connection with another felony offense is a factual finding that this Court reviews for clear error. United States v. Whitfield, 50 F.3d 947, 949 & n. 8 (11th Cir. 1995). To conclude the district court’s finding was clearly erroneous, this Court must have a “definite and firm conviction that a mistake was committed.” United States v. Rothenberg, 610 F.3d 621, 624 (11th Cir. 2010) (quotation marks omitted). 5 Case: 17-13158 Date Filed: 07/06/2018 Page: 6 of 8
III. BURNEY’S CLAIM
The district court did not clearly err in applying the four-level enhancement
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Case: 17-13158 Date Filed: 07/06/2018 Page: 1 of 8
[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT ________________________
No. 17-13158 Non-Argument Calendar ________________________
D.C. Docket No. 8:16-cr-00487-SDM-AEP-1
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
TITO BURNEY, JR.,
Defendant-Appellant.
________________________
Appeal from the United States District Court for the Middle District of Florida ________________________
(July 6, 2018)
Before MARTIN, JILL PRYOR and HULL, Circuit Judges.
PER CURIAM: Case: 17-13158 Date Filed: 07/06/2018 Page: 2 of 8
After pleading guilty to being a felon in possession of a firearm, in violation
of 18 U.S.C. §§ 922(g)(1) and 924(a)(2), defendant Tito Burney Jr. appeals his
total 33-month sentence. On appeal, Burney argues that the district court erred in
applying a four-level enhancement under U.S.S.G. § 2K2.1(b)(6)(B) for possessing
a firearm in connection with another felony offense. After review, we affirm.
I. BACKGROUND FACTS
A. Offense Conduct
On February 26, 2016, police officers in St. Petersburg, Florida observed
Burney standing beside a road with a bag of marijuana protruding from his front
pocket. When the officers searched Burney incident to his arrest, they found a
loaded 9mm pistol in his front pocket. At the time of his arrest, Burney was a
convicted felon, having been convicted in state court of grand theft of a motor
vehicle in November 2015.
In November 2016, a federal grand jury indicted Burney on one count of
being a felon in possession of a firearm, namely the 9mm pistol found in his
pocket. On January 10, 2017, while Burney was on pretrial release, officers
observed Burney and others in a Facebook Live video possessing guns and making
threatening remarks. As a consequence, on January 12, 2017, Burney was arrested
for violating a special condition of his pretrial release by possessing a firearm.
2 Case: 17-13158 Date Filed: 07/06/2018 Page: 3 of 8
On the same day, agents with the Federal Bureau of Alcohol, Tobacco,
Firearms, and Explosives (“ATF”) searched Burney’s home and discovered three
guns, 30.4 grams of marijuana individually packaged in 13 separate plastic bags,
and a digital scale next to the marijuana. Burney’s mother told police officers that
one of the firearms recovered during the search—a sawed-off shotgun—belonged
to her, but said the other two guns likely belonged to Burney. Burney admitted
that one of the two remaining guns was the gun he had possessed in the Facebook
Live video and that both guns were given to him by two other men.
B. Sentencing
After Burney entered his guilty plea, the presentence investigation report
(“PSI”) recommended a four-level increase in Burney’s offense level, pursuant to
U.S.S.G. § 2K2.1(b)(6)(B), because he had possessed a firearm in connection with
the felony offense of possession of marijuana with intent to distribute. The PSI
stated that when Burney possessed the firearm on February 26, 2016, officers
“found 22.6 grams of marijuana which was packaged in eight small Ziploc bags in
the defendant’s front right pocket.” The PSI further stated, that when officers
searched Burney’s home on January 12, 2017, they found three firearms, “30.4
grams of marijuana which was packaged for distribution in 13 separate plastic
bags, and a digital scale next to the baggies of marijuana.”
3 Case: 17-13158 Date Filed: 07/06/2018 Page: 4 of 8
Before and at sentencing, Burney objected to, among other things, the
proposed four-level increase, arguing that there was no evidence that he had
possessed the marijuana with the intent to sell it and that his marijuana possession
was a misdemeanor under state law. At the sentencing hearing, the government
presented evidence in support of the four-level increase, including: (1) a DVD
recording of the Facebook Live stream; and (2) the testimony of St. Petersburg
police officer Brian Prest, who arrested Burney in February 2016, and ATF special
agent Scott Boshek, who searched Burney’s home in January 2017 and interviewed
Burney and his mother after the search. Burney presented testimony from his
mother.
After hearing the evidence, the district court found that it was more probable
than not that Burney intended to sell the marijuana and overruled Burney’s
objection to the four-level increase for possessing a firearm in connection with
another felony offense. Based on its resolution of Burney’s objections, the district
court found that Burney’s total offense level was 17 and his criminal history
category was III, which resulted in an advisory guidelines range of 30 to 37
months’ imprisonment. After hearing argument from the parties, the district court
found no reason to vary from that advisory range and imposed a 33-month
sentence.
4 Case: 17-13158 Date Filed: 07/06/2018 Page: 5 of 8
II. SECTION 2K2.1(b)(6)(B) FIREARM INCREASE
Section 2K2.1(b)(6)(B) provides for a four-level increase if the defendant
“used or possessed any firearm or ammunition in connection with another felony
offense; or possessed or transferred any firearm or ammunition with knowledge,
intent, or reason to believe that it would be used or possessed in connection with
another felony offense.” U.S.S.G. § 2K2.1(b)(6)(B). Application Note 14 to
§ 2K2.1(b)(6)(B) explains that the increase can be applied “if the firearm or
ammunition facilitated, or had the potential of facilitating, another felony offense.”
U.S.S.G. § 2K2.1 cmt. n.14(A). The commentary further provides that the increase
applies “in the case of a drug trafficking offense in which a firearm is found in
close proximity to drugs, drug-manufacturing materials, or drug paraphernalia . . . .
because the presence of the firearm has the potential of facilitating another felony
offense or another offense.” Id. § 2K2.1 cmt. n.14(B).
This Court has determined that “[a] firearm found in close proximity to
drugs or drug-related items simply ‘has’—without any requirement for additional
evidence—the potential to facilitate the drug offense.” See United States v.
Carillo-Ayala, 713 F.3d 82, 92 (11th Cir. 2013).1
1 A district court’s finding that a firearm was possessed in connection with another felony offense is a factual finding that this Court reviews for clear error. United States v. Whitfield, 50 F.3d 947, 949 & n. 8 (11th Cir. 1995). To conclude the district court’s finding was clearly erroneous, this Court must have a “definite and firm conviction that a mistake was committed.” United States v. Rothenberg, 610 F.3d 621, 624 (11th Cir. 2010) (quotation marks omitted). 5 Case: 17-13158 Date Filed: 07/06/2018 Page: 6 of 8
III. BURNEY’S CLAIM
The district court did not clearly err in applying the four-level enhancement
for possessing a firearm in connection with another felony offense. The record
amply supports the district court’s determination by a preponderance of the
evidence that Burney possessed a firearm in connection with his possession of
marijuana with intent to distribute.2
According to the evidence presented at sentencing, when Burney was
arrested in February 2016, he was standing on a sidewalk on Auburn Street in a
high-crime area known for drug and gang activity and in a location where Officer
Prest had seen drug distribution many times in the past. The marijuana that Officer
Prest found on Burney was packaged in eight “nickel or dime bags” ready to be
sold individually. At the time, Burney was wearing two pairs of shorts, one
underneath the other, which Officer Prest explained was very common for
individuals called “runners,” who shed the outer layer of clothing to avoid
detection as they flee police on foot. Burney had the baggies of marijuana in the
pocket of his outer pair of shorts, and the firearm directly beneath the marijuana in
the pocket of the inner pair of shorts. Prest said that Burney’s possession of eight
2 Because the district court properly imposed the § 2K2.1(b)(6)(B) increase, Burney’s corollary argument that his sentence is procedurally unreasonable because of that alleged guidelines calculation error is also without merit. In this appeal, Burney raises no other procedural error at his sentencing and does not contend his sentence is substantively unreasonable. 6 Case: 17-13158 Date Filed: 07/06/2018 Page: 7 of 8
such individually packaged “nickel or dime” bags and a firearm while he was
standing on the sidewalk in that location was consistent with distribution, not
individual use.
Burney does not dispute that he was a member of the Auburn Park Gang,
although he maintains that he has since disassociated himself from them.
Furthermore, in January 2017, while on pretrial release, Burney appeared in a
Facebook Live stream from the garage of his residence. During the stream, Burney
and other individuals flashed firearms and threatened to shoot members of another
gang from the Jacksonville area if they came to St. Petersburg.
During a search of Burney’s residence two days later, ATF Special Agent
Boshek found marijuana that was packaged similarly to the marijuana found in
Burney’s pocket in January 2016. Specifically, ATF agents found 30.4 total grams
packaged into “13 dime bags.” Twelve bags were found on top of a dresser in
Burney’s bedroom next to a digital scale. The thirteenth dime bag of marijuana
was found with two firearms under a mattress in the bedroom of Burney’s brother.
In a subsequent interview, Burney admitted to special agent Boshek that he was
holding one of those two firearms in the Facebook Live stream, that he obtained
the firearm from “the gun guy” named “Masi,” and that he kept the firearm in his
brother’s room.
7 Case: 17-13158 Date Filed: 07/06/2018 Page: 8 of 8
In light of all this evidence, and given that Officer Prest found the 9mm
pistol that Burney was charged with possessing in close proximity to marijuana
and that the marijuana was packaged for distribution, the district court could
conclude that the firearm had the potential to facilitate a drug offense. See Carillo-
Ayala, 713 F.3d at 92. Accordingly, the district court did not err in imposing a
four-level increase in Burney’s offense level pursuant to U.S.S.G.
§ 2K2.1(b)(6)(B).
AFFIRMED.