Martinez-Valencia

MEMORANDUM **

Abel Martinez-Valencia appeals his sentence following a guilty plea to one count of violating 18 U.S.C. §§ 922 (g)(5) and 924(a), possession of a firearm by an alien. Having requested and reviewed briefing by the parties as to whether the appeal is moot, we conclude that it is not. United States v. Allen, 434 F.3d 1166,1170 (9th Cir.2006). As Martinez-Valencia remains subject to a term of supervised release, his challenge to the sentencing enhancement pursuant to U.S.S.G. § 2K2.1(b)(5) remains before us. Nevertheless, we need not decide whether he was eligible for a reduction in his base-level offense pursuant to U.S.S.G. § 2K2.1(b)(2) as he has abandoned this claim because he already served the term of imprisonment based on a calculation at a higher base-level offense.

We do not believe that the district court clearly erred in finding pursuant to USSG § 2K2.1(b)(5) that Martinez-Valencia’s possession of the firearms was in connection with a drug offense, even though no drug crime was charged, given that cocaine residue was scraped off of the semi-automatic rifle, and that Martinez-Valencia was driving the vehicle at 2:30 a.m. when stopped with non-personal use…