UNPUBLISHED

UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT

No. 04-4035 UNITED STATES OF AMERICA, Plaintiff - Appellee, versus

MICHAEL BERNARD MURRY, Defendant - Appellant. Appeal from the United States District Court for the Southern

District of West Virginia, at Huntington. Robert C. Chambers,

District Judge. (CR-03-128)

Submitted: May 26, 2004 Decided: October 4, 2004

Before NIEMEYER, MOTZ, and DUNCAN, Circuit Judges.

Affirmed by unpublished per curiam opinion.

Mary Lou Newberger, Federal Public Defender, Edward H. Weis,

Assistant Federal Public Defender, Charleston, West Virginia, for

Appellant. Kasey Warner, United States Attorney, Stephanie L. Haines, Assistant United States Attorney, Huntington, West

Virginia, for Appellee.

Unpublished opinions are not binding precedent in this circuit.

See Local Rule 36(c).

- 2 - PER CURIAM: Michael Bernard Murry pled guilty to possession of a firearm by a convicted felon, in violation of 18 U.S.C. §§ 922(g)(1) and 924(a)(2) (2000). The district court sentenced

him to sixty-five months in prison. Murry appeals his sentence,

challenging the district courtÂ’s decision to enhance his sentence

under U.S. Sentencing Guidelines Manual

§ 2K2.1(b)(1)(A) (2002), on the ground that he possessed a firearm in connection with another

felony offense. We affirm. Murry, a convicted felon, was a passenger in a car that police officers stopped for reckless driving. Officers found a pistol in a case under MurryÂ’s seat. In addition, Murry possessed

a distributable quantity of cocaine base. Murry objected to the

probation officerÂ’s recommendation for a four-level enhancement

because Murry possessed a firearm in connection with another felony

offense, namely possession with intent to distribute cocaine base.

He contended that there was insufficient evidence that the firearm

and the drug offense were related. On appeal, he challenges the

district courtÂ’s application of the enhancement. Section 2K2.1(b)(5) provides for a defendantÂ’s offense level to be enhanced by four levels if he used or possessed a

firearm “in connection with another felony offense.” The

government bears the burden of proving the necessary facts by a

preponderance of the evidence, and we “review the district court’s

- 3 - findings of fact for clear error, giving due deference to the

district court’s application of the Guidelines to the facts.”

United States v. Garnett

, 243 F.3d 824, 828 (4th Cir. 2001). In this Circuit, § 924(c) (2000). United States v. Blount

, 337 F.3d 404, 411 (4th Cir. 2003). In other words, the firearm must facilitate or have the tendency to facilitate another offense. Id. at 411 (citing Garnett

, 243 F.3d at 829). “‘[T]he firearm must have some purpose

or effect with respect to the . . . crime; its presence or

involvement cannot be the result of accident or coincidence.’” Id. (quoting Smith v. United States

, 508 U.S. 223, 238 (1993)) (modification in original). However, the government has met its

burden of establishing that the firearm was used or possessed in

connection with another felony if it shows that the gun was

“present for protection or to embolden the actor.” United

States v. Lipford

, 203 F.3d 259, 266 (4th Cir. 2000) (citation omitted). Here, Murry was traveling in a car with a distributable quantity of cocaine base on his person and a firearm he admitted was his within his reach under his seat. Under the facts of this

case, we find that the district court did not clearly err in

determining that the enhancement applied.

- 4 - We therefore affirm the sentence imposed by the district court. We dispense with oral argument because the facts and legal

contentions are adequately presented in the materials before the

court and argument would not aid the decisional process. AFFIRMED