Opinion by Judge O'SCANNLAIN.
O'SCANNLAIN, Circuit Judge:
Is a gun used "in connection with" interstate transportation or unlawful possession of a stolen car, thereby justifying enhanced sentencing, if it is found in the glove compartment when the thief is eventually apprehended?
In January 1992, Routon stole a Cadillac from Renick Cadillac, a car dealership in Fullerton, California. Routon remained at large with this vehicle until April 1992, when an informant named Richard Adams contacted federal authorities in Las Vegas, Nevada and told them that Routon had started living with him earlier in the month. According to Adams, Routon had admitted to stealing the car and had stated that he eventually was going to "get rid of it" in Texas. After receiving Adams' tip, federal and local authorities arrested Routon while he was driving the Cadillac in Las Vegas.
During a search the police discovered a .22 caliber revolver in the compartment between the driver's and front passenger's seats. The location of the gun placed it within Routon's easy reach while driving. Adams later identified the gun as one that Routon always took with him whenever he drove the Cadillac. Routon had purchased the gun in California in March 1992.
The government charged Routon with interstate transportation of a stolen motor vehicle, possession of a stolen motor vehicle, and unlawful possession of a firearm. After a bench trial, Routon was found guilty of all counts and was sentenced to imprisonment. Routon's 33-month sentence was within the Sentencing Guidelines range established for offense level 18 and criminal history category I. Routon's base offense level had been 14, but the district court had made a four-point enhancement under section 2K2.1(b)(5).
Routon challenges this enhancement, asserting that it was based upon insufficient evidence.
Section 2K2.1(b)(5) of the Sentencing Guidelines provides for a four-point enhancement of a base offense level where a defendant
This circuit has not identified what evidence is sufficient to sustain a finding under section 2K2.1(b)(5) that a defendant used or possessed a firearm "in connection with" a felony. Indeed, the only courts which appear to have done so are the Tenth and Fifth Circuit Courts of Appeals. The Sentencing Guidelines provide no definition of this phrase.
In United States v. Sanders, 990 F.2d 582 (10th Cir.), cert. denied, ___ U.S. ___, 114 S.Ct. 216, 126 L.Ed.2d 172 (1993), the defendant was arrested for reckless driving. When police searched the defendant and his car, they found drugs and a large amount of money in his pockets, a soft gun case containing drugs on the back seat, and two loaded guns and drug paraphernalia in the trunk. The defendant pled guilty to drug possession with intent to distribute and to being a felon in possession of a firearm. The district court enhanced his sentence under section 2K2.1(b)(5), and he appealed. The court of appeals affirmed his sentence, holding that the "intermingl[ing]" of the drugs and guns was sufficient to demonstrate that the guns were possessed in connection with the defendant's drug trafficking. Id. at 585.
The Tenth Circuit revisited section 2K2.1(b)(5) in United States v. Gomez-Arrellano, 5 F.3d 464 (10th Cir.1993). Gomez-Arrellano ("Gomez") was arrested at his residence for reentering the country after deportation. A search of Gomez's residence uncovered marijuana, cocaine, a pistol, ammunition and drug paraphernalia. Gomez pled guilty to various drug and immigration charges, and the district court enhanced his sentence under section 2K2.1(b)(5) for use of the pistol in connection with the distribution of cocaine. Gomez appealed the enhancement.
The court of appeals vacated Gomez's sentence, holding that the government had not proven that the pistol had been used in connection with the drug offense. The court looked to 18 U.S.C. § 924(c) for guidance in applying section 2K2.1(b)(5). Id. at 466. Section 924(c) prohibits the use of a firearm during and "in relation to" the commission of a drug trafficking or violent crime. 18 U.S.C. § 924(c)(1). Following the Supreme Court's recent interpretation of section 924(c),
The Fifth Circuit affirmed. Disagreeing with Gomez, it declined to look to section 924(c) as a guide to interpreting section 2K2.1(b)(5). According to the court:
Id. at 1196 (internal citations and emphasis omitted).
The court found section 2D1.1(b)(1) of the Sentencing Guidelines to be a closer analogy to section 2K2.1(b)(5). Under section 2D1.1(b)(1), a defendant's sentence is enhanced by two points if he or she is convicted of a narcotics crime and the government proves that he or she was in possession of a firearm. U.S.S.G. § 2D1.1(b)(1). The court held that, despite differences, "similar policy reasons militate in favor of the enhancement provided by both § 2D1.1(b) and § 2K2.1(b)(5)" — both sections reflect the fact that possession of a firearm in the presence of drugs increases the risk of violence. Condren, 18 F.3d at 1197.
We agree with the approach taken by the Tenth Circuit in Gomez. In contrast with the Fifth Circuit's view, we are persuaded that section 924(c) is an appropriate guide for interpreting section 2K2.1(b)(5). The texts of sections 2K2.1(b)(5) and 924(c) are very similar, and we discern no differences in the common understandings of the phrases "in connection with" and "in relation to." In fact, this circuit often has used these phrases interchangeably in describing section 924(c). See, e.g., United States v. Kessee, 992 F.2d 1001, 1002 (9th Cir.1993) (describing defendant's conviction under § 924(c) for carrying firearm during drug transaction "in connection with" sales of cocaine base); United States v. Singleton, 987 F.2d 1444, 1446 (9th Cir.1993) (describing indictment for possession of firearm "in connection with" trafficking cocaine in violation of § 924(c)); United States v. Harrison-Philpot, 978 F.2d 1520, 1522 (9th Cir.1992), cert. denied, ___ U.S. ___, 113 S.Ct. 2392, 124 L.Ed.2d 294 (1993) (describing conviction for use of firearm "in connection with" drug trafficking in violation of § 924(c)). Further, the one case in this circuit employing section 2K2.1(b)(5) has applied it in a manner analogous to that in which the Supreme Court recently applied section 924(c), suggesting that the two phrases are coterminous. Compare United States v. Shackley, 995 F.2d 166, 169 (9th Cir.1993) (§ 2K2.1(b)(5) applicable even where defendant used firearm as club rather than as firearm), with Smith, ___ U.S. ___, 113 S.Ct. 2050 (§ 924(c) applicable even where defendant used gun as barter for narcotics rather than as firearm).
We find neither of Condren's two reasons for distinguishing section 924(c) persuasive. As already noted, we discern no relevant textual difference between section 924(c)'s prohibition of "the use or carrying of a firearm in relation to" a narcotics offense and section 2K2.1(b)(5)'s enhancement for "use or possession [of] any firearm ... in connection with" a felony offense. Nor do we see any reason why the government's obligation to prove a section 924(c) violation beyond a reasonable doubt affects the meaning of that
We view section 2D1.1(b)(1) as an inappropriate guide for applying section 2K2.1(b)(5). Section 2D1.1(b)(1) requires a two-point enhancement if the government proves merely that a defendant convicted of various drug offenses possessed a firearm, unless the defendant can show that it was clearly improbable that the firearm was "connected with" an offense. U.S.S.G. § 2D1.1(b)(1), comment. (n. 3). The government's burden of proof is more demanding under section 2K2.1(b)(5), where the government must show that a firearm was possessed "in connection with" an offense. See Shackley, 995 F.2d at 166.
Consequently, as demonstrated by both Sanders and Gomez, and even acknowledged in Condren, 18 F.3d at 1197, the prosecution will have to make a greater showing than a defendant's mere possession of a firearm to obtain a section 2K2.1(b)(5) enhancement. Instead, to the extent that the government relies upon physical possession, it must show that the firearm was possessed in a manner that permits an inference that it facilitated or potentially facilitated — i.e., had some potential emboldening role in — a defendant's felonious conduct. See United States v. Perez, 989 F.2d 1111, 1115 (9th Cir.1993); United States v. Torres-Medina, 935 F.2d 1047, 1048 (9th Cir.1991).
At sentencing, the district court concluded that the gun had facilitated Routon's felonious conduct. This factual finding was not clearly erroneous, for there is evidence that Routon's gun emboldened him to maintain unlawful possession of the Cadillac. We have stated that, under section 924(c):
United States v. Stewart, 779 F.2d 538, 540 (9th Cir.1985) (underscore added).
Routon's apparent efforts to maintain the accessibility of his gun whenever he used his car permit the inference that the gun emboldened him to continue his illegal conduct. Not only did Routon bring the gun with him whenever he rode in the car, but he also kept it within a short distance of him when he was driving. In United States v. Garcia, 997 F.2d 1273 (9th Cir.1993), a defendant asserted that his trial counsel was ineffective for failing to argue that there was insufficient evidence to convict him under section 924(c). Police had found a loaded gun against a wall in the upstairs bedroom of the defendant's apartment. The bedroom was near a closet containing a cache of drugs. This court rejected the defendant's ineffective assistance claim, concluding that, because the defendant "possessed a loaded machine gun in an accessible place where it could have been used to embolden him in his commission of the drug trafficking offenses, he used the machine gun during and in relation to a drug trafficking crime within the meaning of' section 924(c). Id. at 1284. Accord United States v. Draper, 24 F.3d 83 (10th Cir.1994) (§ 2K2.1(b)(5) enhancement proper where defendant kept guns in house for protection as he cut rock cocaine and took one gun with him during drug deliveries).
Sufficient evidence was introduced to support the district court's finding that Routon's gun facilitated his illegal conduct. Enhancement under section 2K2.1(b)(5) was appropriate.
The Tenth Circuit's subsequent decision in Gomez to use § 924(c) as a model for interpreting § 2K2.1(b)(5) thus is not inconsistent with Sanders. The difference between their views of § 924(c) is explained by the subsequent lower standard for § 924(c) crafted by the Supreme Court.