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Table of Contents

200 – Offense Conduct, Generally (Chapter 2)

200 – Offense Conduct, Generally (Chapter 2)
  • 210 Homicide, Assault (§2A1 -2)
  • 215 Sexual Abuse, Kidnapping, Air Piracy, Threatening Communications (§2A3 -6)
  • 218 Fraud
  • 220 Theft, Embezzlement, Burglary (§2B1 -2)
  • 224 Robbery, Extortion (§2B3)
  • 226 Commercial Bribery, Counterfeiting, Forgery, VIN Nos. (§2B4 -6)
  • 230 Public Officials, Offenses (§2C)
  • 240 Drug Offenses, Generally (§2D)
  • 290 RICO, Loan Sharking, Gambling (§2E)
  • 300 Fraud (§2F)
  • 310 Sexual Exploitation of Minors (§2G)
  • 315 Civil Rights, Political Offenses (§2H)
  • 320 Contempt, Obstruction, Perjury, Impersonation, Bail Jumping (§2J)
  • 345 Espionage, Export Controls (§2M)
  • 348 Food, Drugs, Odometers (§2N)
  • 350 Escape, Prison Offenses (§2P)
  • 355 Environmental Offenses (§2Q)
  • 360 Money Laundering (§2S)
  • 370 Tax, Customs Offenses (§2T)
  • 380 Conspiracy/Aiding/Attempt (§2X)
  • 390 “Analogies” Where No Guideline Exists (§2X5.1)
  • 340 Immigration Offenses (§2L)
  • 330 Firearms, Explosives, Arson (§2K)

Back to main table of contents

§280 Possession of Weapon During Drug Offense, Generally

(U.S.S.G. §2D1.1(b))

Supreme Court to consider if “crime of vio­lence” in 924(c) firearm statute is vague. (120)(280)(330)(540) Recent Sup­reme Court cases have struck down as uncon­stitution­ally vague the “residual clauses” of the defini­tions of “crime of violence” in both 18 U.S.C. § 16(b) and the Armed Career Criminal Act, 18 U.S.C. § 924(e)(2)(B). There is a nearly identical “residual clause” in the defin­ition of “crime of violence” in § 924(c)(3)(B), which makes it a crime to possess, use, or carry a firearm in connection with a crime of violence. On January 4, 2019, the Court granted certiorari to consider whether the residual clause of 18 U.S.C. § 924(c)(3)(B) is unconstitu­tionally vague. U.S. v. Davis, __ U.S. __, 139 S.Ct. __ (Jan. 4, 2019).

Supreme Court holds that “machine gun” in § 924(c)(1) is an element of a separate offense, not a sentencing factor. (280) Under 18 U.S.C. § 924(c)(1), a defendant who uses or carries a firearm in relation to any crime of violence is sentenced to imprison­ment for five years, “and if the firearm is . . . a machine gun . . . to imprisonment for thirty years.” In a unanimous opinion written by Justice Breyer, the Supreme Court held that § 924(c)(1) uses the word “machine gun” (and similar words) to state an element of a separate, aggravated crime. The court relied on the structure of the statute and the fact that courts have not typically used firearm types (such as “machine gun”) as sentencing factors where the use or carrying of the firearm is itself the substantive crime. Moreover, asking a jury, rather than a judge to decide whether a defendant used or carried a machine gun “would rarely complicate a trial or risk unfairness.” The legis­lative history favored this interpretation. Finally, the length and severity of the mandatory sentence “weighs in favor of treating such offense-related words as referring to an element.” Castillo v. U.S., 530 U.S. 120 (2000).

 

Supreme Court says gun is “carried” even if it is in locked glove box or trunk of a car. (280) Under 18 U.S.C. § 924(c)(1), a person who “uses or carries a firearm” “during and in relation to” “a drug trafficking crime,” is subject to a five year mandatory minimum prison term. In a 5-4 opinion written by Justice Breyer, the Supreme Court held that the phrase “carries a firearm” is not limited to the carrying of firearms on the person. “Rather it also applies to a person who knowingly possesses and conveys firearms in a vehicle, including in the locked glove compartment or trunk of a car, which the person accompanies.” This ruling follows the unanimous conclusion of the circuit courts of appeals. Justice Ginsburg dissented, joined by Chief Justice Rehnquist and Justices Scalia and Souter. Muscarello v. U.S., 524 U.S. 125, 118 S.Ct. 1911 (1998).

 

Supreme Court permits habeas challenge to § 924(c) gun conviction if petitioner is “actually innocent.” (280) In a 6-3 opinion written by Chief Justice Rehnquist, the Supreme Court held that a defendant who pleaded guilty to “using” a firearm in violation of 18 U.S.C. § 924(c) can have his plea set aside if he can show “actual innocence,” i.e., that he did not “actively employ” the firearm as required by the Supreme Court’s decision in Bailey v. U.S., 516 U.S. 137, 144 (1995). The court emphasized that “actual inno­cence” means “factual innocence, not mere legal insufficiency.” In other words, “the government is not limited to the existing record to rebut any showing that petitioner might make.” Rather, on remand the govern­ment will be “permitted to present any admissible evidence of petitioner’s guilt even if that evidence was not presented during petitioner’s plea colloquy and would not normally have been offered before [the] decision in Bailey.” “In cases where the Government has forgone more serious charges in the course of plea bargaining, petitioner’s showing of actual innocence must also extend to those charges.” Bousley v. U.S., 523 U.S. 614, 118 S.Ct. 1604 (1998).

 

Supreme Court to decide if lack of certificate of appealability prevents review of Bailey firearms issue. (280) In Hohn v. U.S. 99 F.3d 892 (8th Cir. 1996), the Eighth Circuit refused to issue a certificate of appealability where a habeas petitioner claimed that a jury instruction concerning the use of a firearm during and in relation to a drug offense in violation of 18 U.S.C. § 924(c)(1) did not conform to Bailey v. U.S., 516 U.S. 137 (1995). The Eighth Circuit held that this asserted only a statutory, not a constitutional claim, and thus did not make a “substantial showing” of the denial a constitu­tional right” required by 28 U.S.C. § 2253(c)(2) for issuance of a certificate of appealability. On Nov. 3, 1997, the Supreme Court granted certiorari limited to the following question: “In light of fact that court of appeals denied petition­er’s request for certificate of appealability, does this court have jurisdiction to grant certiorari, vacate, and remand this case per suggestion of Acting Solicitor General? Hohn v. U.S., __ U.S. __, 118 S.Ct. 361 (1997).

 

Supreme Court to decide whether § 924(c) sen­tence can be concurrent to state sentence. (280) In U.S. v. Gonzales, 65 F.3d 814 (10th Cir. 1995), the Tenth Circuit held that a mandatory five-year sentence under 18 U.S.C. § 924(c), for using or carrying a firearm in relation to a drug trafficking crime or crime of violence could run concurrently with a previously-imposed state sentence which the defendant had already begun to serve, for the same conduct. The court reached this conclusion even though §  924(c) requires the sentence to be consecutive with “any other term of impri­sonment including that imposed for the crime of violence or drug trafficking crime in which the firearm was used or carried.” On June 17, 1996, the Supreme Court granted certiorari to review this ruling. U.S. v. Gonzales, 518 U.S. 1003, 116 S.Ct. 2522 (1996) (granting certiorari).

 

Supreme Court says trading firearm for drugs con­stitutes “use” of firearm. (280) Under 18 U.S.C. section 924(c)(1), a defen­dant who uses a firearm during a drug traf­ficking crime must be sen­tenced to five years imprisonment.  Where as here, the firearm is a “machine gun” or is fitted with a si­lencer, the manda­tory sentence is 30 years.  In this case, the defendant offered to trade his MAC-10 ma­chine gun for two ounces of cocaine.  In a 6-3 opinion written by Jus­tice O’Connor, the Supreme Court held that defen­dant’s offer to trade the gun for drugs con­stituted “use” within the meaning of section 924(c).  The court thus overruled U.S. v. Phelps, 877 F.2d 28 (9th Cir. 1989), which had held that using a gun as an item of barter did not constitute “use.”  Justices Scalia, Stevens and Souter dissented.  Smith v. U.S., 508 U.S. 223, 113 S.Ct. 2050 (1993).

 

1st Circuit permits resentencing on drug counts after vacating § 924(c) in § 2255 case. (280) Defendant successfully moved under § 2255 to vacate his § 924(c) firearm conviction based on Bailey v. U.S., 116 S.Ct. 501 (1995). However, the district court then imposed a § 2D1.1(b)(1) enhancement on the remaining drug counts. The First Circuit affirmed, holding that 28 U.S.C. § 2255 allows a court to correct the sentence where the guidelines contemplate an interdependent relationship between the sentence for the vacated conviction and the sentence for the remaining convictions. The court declined to determine whether this was true where the guidelines do not contemplate such an interdependent sentencing package. The court’s consideration of the conduct underlying the vacated conviction did not violate the Constitution. Given the language of § 2255 and the fact that defendant was still in custody, he could have no settled expectation of finality as to the drug sentence. U.S. v. Rodriguez, 112 F.3d 26 (1st Cir. 1997).

 

1st Circuit refuses to reduce super­vised release by time served on va­cated count. (280) On defendant’s § 2255 motion, the district court, ap­plying Bailey v. U.S., 116 S.Ct. 501 (1995), dismissed defendant’s § 924(c) conviction and vacated his 60-month sentence for that offense, of which de­fendant had already served over half. Since defendant had already completed serving his other sentences, the court ordered defendant released, directing that his 3 1/2 year supervised release term begin operating. Defendant argued that the supervised release term should be considered as beginning on the date the two served sentences ended, rather than the date he was released from prison. The First Circuit rejected the argument as contrary to the language of 18 U.S.C. § 3624. Moreover, supervised release terms are not alternate forms of punishment but rather are designed to ease a prisoner’s return to civilian life. Finally, defendant ignored the possibil­ity of relief under 18 U.S.C. § 3583(e), which allows a court to grant early ter­mination of supervised release “in the interests of justice” after serving one full year. U.S. v. Joseph, 109 F.3d 34 (1st Cir. 1997).

 

1st Circuit upholds use of drug guideline for felon who un­lawfully possessed firearm. (280) Defendant was con­victed of being a felon in unlawful possession of a firearm.  The district court determined that defendant used the firearm in “committing or attempting” a drug offense, and therefore under the 1987 version of the firearms guide­line, § 2K2.1, sen­tenced defendant under the drug of­fense guideline, § 2D1.1.  The 1st Circuit found that the record supported the district court’s determination.  Offi­cers searching defendant’s house found three plastic freezer bags with co­caine residue, a scale commonly used for drug transactions, a magazine folded a special way used for drug sales, some marijuana, inositol powder, $25,000 cash in a couch, $9,000 cash elsewhere in the house, a loaded shotgun and a loaded rifle.  Defendant was firing the rifle when offi­cers entered his house.  The 1st Cir­cuit also found that in applying the drug guide­line, it was proper for the district court to add two points to defendant’s offense level for pos­session of the guns.  The language in the 1987 firearms guideline made it clear that the court is to apply the cross-referenced drug guideline, including any upward adjustment for possess­ing guns.  U.S. v. Wheel­wright, 918 F.2d 226 (1st Cir. 1990).

 

2nd Circuit remands where court did not apply firearm enhancement despite gun found in room with drugs. (280) Defendant and his brother were convicted of distributing crack. Police found three handguns, assorted ammuni­tion, six grams of cocaine base, a scale and a razor blade in defendant’s bedroom. The commentary to § 2D1.1 says that the adjustment should be applied if the weapon was present, “unless it is clearly improbable that the weapon was connected with the offense.” Nonetheless, the district court refused to apply a § 2D1.1(b) (1) firearm enhancement, and did not make any findings about the weapons’ connection to defendant’s offense. The Second Circuit remand­ed because it was unable to determine the court’s basis for refusing to apply the § 2D1.1(b)(1) enhancement in the face of evidence that weapons were found at the scene of the drug distribution offense. The district court may have credited defendant’s assertion that he did not use or possess a weapon in connection with the offense. However, a “sentencing court is not bound to accept [a] defendant’s self-serving characterization of his role in an offense.” U.S. v. Smith, 174 F.3d 52 (2d Cir. 1999).

 

2nd Circuit allows resentencing on drug count after vacating gun count. (280) Defendant suc­cess­fully moved under 28 U.S.C. § 2255 to vacate his conviction under 18 U.S.C. § 924(c) for “using” a firearm in relation to drug trafficking. However, the district court then increased his sentence on the drug count by two levels under § 2D1.1(b)(1)for “possessing” the firearm. The Second Circuit held that under U.S. v. Gordils, 117 F.3d 99 (2d Cir. 1997), the district court had jurisdiction under § 2255 to resentence defendant on the drug count. Resentencing did not violate the Double Jeopardy clause. It merely put defendant in the same position he would have occupied had he not been convicted under § 924(c) in the first place. Resentencing also did not violate the Due Process Clause. There is no vindictiveness in a resentencing that results in the same sentence that would have been imposed in the absence of a § 924(c) conviction. Moreover, defendant’s resentenc­ing left him with an aggregate sentence four years less than that originally imposed. U.S. v. Mata, 133 F.3d 200 (2d Cir. 1998).

 

2nd Circuit resentences on drug count after firearm count vacated in § 2255 motion. (280) Defendant was originally convicted of drug and firearms charges. He successfully petitioned the court under § 2255 to vacate the § 924(c) firearm conviction in light of the Supreme Court’s decision in Bailey v. U.S., 116 S.Ct. 501 (1995). The district court then resentenced defendant on the drug count, imposing a § 2D1.1(b)(1) enhancement. The Second Circuit held that a court has jurisdiction to resentence an unchallenged drug conviction after a successful § 2255 challenge of a § 924(c) conviction. Every circuit to consider the issue has agreed with this view. The term “sentence” in § 2255 is not as narrow as defendant contended. Since the mandatory five year sentence imposed under § 924(c) runs consecutively to the drug sentence, defendant was currently serving the “sentence” for the drug crime. Defendant was only able to challenge the § 924(c) conviction by accepting some form of an aggregate sentence theory. This outcome makes good sense, given the interdependence of the two sentences. U.S. v. Gordils, 117 F.3d 99 (2d Cir. 1997).

 

2nd Circuit finds drug and firearms sentences interdependent despite judge’s statement. (280) Defendant was convicted of drug and firearms charges. After he successfully challenged his firearm conviction under § 2255, the district court concluded that it lacked jurisdiction to resentence him on the remaining drug count. The Second Circuit reversed, ruling that the court did have jurisdiction to resentence defendant under U.S. v. Gordils, 117 F.3d 99 (2d Cir. 1997), decided the same day as this opinion. In stating that she lacked jurisdiction, the judge said she had originally sentenced defendant to individual sentences for each count rather than a single sentencing package. Defendant argued that the judge explicitly took into account his possession of a weapon in determining his original drug sentence, and therefore she could not now enhance his sentence under § 2D1.1(b)(1). This argument was meritless. The guidelines establish a truly interdependent relationship between the mandatory consecutive firearm sentence and the sentence for the underlying drug count. At the original sentencing, because of the § 924(c) conviction, the government could not seek, nor could the court impose, the two level enhancement called for by § 2D1.1(b)(1). Given that legal relationship, the district judge’s subjective belief that the sentences were separate was not sufficient to defeat jurisdiction under § 2255 to resentence defendant on the drug count. Rodriguez v. U.S., 116 F.3d 1002 (2d Cir. 1997).

 

2nd Circuit affirms firearm enhancement despite acquittal and omission from PSR. (280) Defendant was convicted of various crimes in connection with his participation in a large drug organization. The district court applied a § 2D1.1(b)(1) enhancement based on defendant’s use of a firearm in connection with the murders of four unnamed Colombians. Defendant argued that this was impermissible because there was no recommendation for such an enhancement in the PSR, the government did not object to the lack of such an enhancement, and the jury acquitted him of the murders. The Second Circuit affirmed the enhancement. The sentencing judge was not bound by the sentencing recommendations of the PSR. Defendant did not claim he was denied the opportunity to oppose the government’s tardy request for the enhancement. A sentencing court is entitled to rely on any type of information known to it, including evidence at trial that the jury viewed as insufficient to convict beyond a reasonable doubt. The court was free to consider the evidence concerning the murder of the four Colombians despite defendant’s acquittal. The district court found the evidence established by more than a preponderance of the evidence that defendant possessed guns “on a regular basis” in connection with the gang’s drug trafficking activity. U.S. v. Miller, 116 F.3d 641 (2d Cir. 1997).

 

2nd Circuit permits increase for gun under § 2D1.1(b)(1) after § 924(c) con­vic­tion rever­sed. (280) Defendant was convicted of several drug offenses and using a firearm in connection with one of those offense. The Second Circuit vacated the § 924(c)(1) conviction in light of Bailey v. U.S., 516 U.S. 137 (1995) and remanded for resentencing on the remaining counts. The court said that at resentencing, the district court may consider whether to enhance defendant’s offense level under § 2D1.1(b)(1) for possession of a dangerous weapon in connection with a drug trafficking offense. A sentencing judge can, on remand, increase the sentence on a specific count where the original sentence was imposed as part of a “package” that included a mandatory conse­cu­tive sentence that was later found to be invalid. U.S. v. Bermudez, 82 F.3d 548 (2d Cir. 1996).

 

2nd Circuit says considering acquitted conduct and consecutive sentence did not violate double jeopardy. (280) Defendant was ac­quitted of narcotics charges and con­victed of several firearms offenses.   Both firearm guidelines, section 2K2.1 and section 2K2.2 (1988), provide that if the firearm was used in connection with another offense, a court is to apply the other guideline if it would re­sult in a higher offense level.  The district court found that defendant had used the firearms in con­nection with a narcotics conspiracy, and therefore sentenced him un­der section 2D1.1.  The 2nd Circuit rejected defendant’s claim that the district court’s consideration at sentencing of the acquitted conduct constituted double jeopardy.  In con­sidering the ac­quitted conduct as a basis for enhancing defendant’s sentence, the district court was not punishing the defendant for the extraneous offense, but justifying the heavier penalties for the offense of conviction.  Nor did the consecutive sentences defendant re­ceived for his two firearms offenses violate double jeopardy.  There was no question that the offense of possession of an unregistered weapon and possession of a weapon as a pre­viously convicted felon were distinct.  U.S. v. Concep­cion, 983 F.2d 369 (2nd Cir. 1992).

 

2nd Circuit upholds sentence at top of range based on facts already considered in offense level. (280) The judge imposed the maximum guideline sentence based on de­fendant’s possession of a weapon during the drug offense, and his attempt to smuggle marijuana into prison while awaiting sen­tencing.  Defendant contended that this con­stituted impermissible double counting, since the marijuana smuggling was already ac­counted for in the denial of acceptance of re­sponsibility, and the gun possession was ac­counted for by his five-year con­secutive sen­tence under 18 U.S.C. section 924(c)(1).  The 2nd Circuit found no double counting, noting that the Commentary to section 2K2.4, which directs a court to avoid double counting un­der section 924(c), only precludes a court from enhancing a defendant’s base of­fense level under section 2D1.1(b)(1).  U.S. v. Olvera, 954 F.2d 788 (2nd Cir. 1992).

 

2nd Circuit affirms finding that defendant used weapon in dealing drugs. (280) Defen­dant was convicted of being a felon in posses­sion of a firearm.  The district court departed upward based upon its conclusion that defen­dant had used the weapon in dealing drugs.  The 2nd Circuit found this conclusion was not clearly erroneous.  Defendant admitted he had the gun for protection.  In addition to the gun, the police found in his apartment more than $35,000 in cash, a portable telephone, a beeper, and a triple beam scale.  This amply supported the conclusion that the gun was used in drug trafficking.  U.S. v. Hernandez, 941 F.2d 133 (2nd Cir. 1991).

 

2nd Circuit rejects downward departure for disparity caus­ed by government’s plea bar­gaining practices. (280) The guidelines direct that a defendant who uses a firearm in connec­tion with narcotics trafficking shall re­ceive a two-level offense level enhancement, except that if he is convicted under 18 U.S.C. § 924(c), the en­hancement should be disre­garded, and he should be sentenced to the mandatory five-year term.  The District Court found that the U.S. Attorney often charged de­fendants who refused to plead guilty with § 924(c), but allowed similarly situ­ated de­fendants who pled guilty to avoid § 924(c) charges.  The district court found that this plea bargaining practice created a disparity between those defendants who pled guilty and those who went to trial.  To eliminate the dis­parity the court de­parted downward.  The 2nd Circuit re­versed, finding no impropriety.  It is “constitutionally legiti­mate” for the prosecutor to threaten more severe charges to persuade a defendant to plead guilty.  U.S. v. Stanley, 928 F.2d 575 (2nd Cir. 1991).

 

2nd Circuit holds that possession of licensed handgun dur­ing offense is proper basis for of­fense level en­hancement. (280) Defendant was convicted of extortion and ar­gued that the dis­trict court erroneously enhanced his offense level by three points under § 2E2.1(b)(1)(c) even though defendant was li­censed to carry the gun and did not use or dis­play the gun during his offense.  Co-defendant argued that he should not be punished for de­fendant’s possession of the gun.  The 2nd Cir­cuit rejected both arguments, holding that the section does not require a particular defendant to be in pos­session of the weapon and that the definition of a firearm under § 1B1.1, ap­plication note (1)(e) does not de­pend upon the whether the defendant had a license to carry the gun.  U.S. v. Lanese, 890 F.2d 1284 (2nd Cir. 1989).

 

3rd Circuit permits resentencing on drug count after vacating firearm conviction. (280) In U.S. v. Davis, 112 F.3d 118 (3d Cir. 1997), the Third Circuit held that a district court has jurisdiction to resentence a § 2255 petitioner on unchallenged counts where the petitioner successfully attack a § 924(c)(1) conviction under Bailey v. U.S., 116 S.Ct. 501 (1995). In a case pending when Davis was decided, the Third Circuit found that it was bound by internal operating rules to follow Davis. However, Judge Sloviter filed a concurring opinion in which she disagreed with the holding in Davis. U.S. v. Martin, 116 F.3d 702 (3d Cir. 1997).

 

3rd Circuit allows gun increase on drug counts after § 924(c) count is vacated. (280) Defendant successfully moved under 28 U.S.C. § 2255 to vacate his § 924(c) conviction. However, In resentencing defendant, the district court imposed a § 2D1.1(b)(1) enhancement for possessing a firearm during a drug crime. The Third Circuit held that after vacating the § 924(c) conviction, the district court had jurisdiction under § 2255 to resentence on the remaining drug counts. The language “correct the sentence” in § 2255 is not limited to the portion of the sentence directly associated with the vacated conviction. The § 924(c) offense and the underlying offense are interdependent and result in an aggregate sentence, not sentences that may be treated discretely. Resentencing did not violate defendant’s due process rights because defendant had no legitimate expectation of finality in his sentence. U.S. v. Davis, 112 F.3d 118 (3d Cir. 1997).

 

4th Circuit finds no double jeopardy in resentencing after completing drug sentence. (280) Defendant was sentenced to 168 months on drug counts, and a consecutive 60-month sentence for using a firearm, under 18 U.S.C. § 924(c). Thereafter, the district court granted the government’s Rule 35(b) motion and reduced the drug sentence to 37 months, leaving in place the 60-month § 924(c) sentence. Defendant then successfully challenged the § 924(c) conviction on the ground that he did not actively employ the firearm, as required by Bailey v. U.S., 116 S.Ct. 501 (1995). Nevertheless, at resentencing on the drug counts, the court granted the government’s request for a two-level enhancement under guideline section 2D1.1(b)(1) for possessing the firearm, and imposed an overall 89-month sentence. The Fourth Circuit affirmed, relying on U.S. v. Hillary, 106 F.3d 1170 (4th Cir. 1997). Resentencing did not violate double jeopardy, even though defendant had already served 37 months on his drug sentence. The double jeopardy clause only bars resentencing where the sentence has been fully discharged. Under the sentencing package theory, defendant was serving one “unified term of imprisonment” of 97 months when he was resentenced. U.S. v. Smith, 115 F.3d 241 (4th Cir. 1997).

 

4th Circuit says court may order resentencing on drug count after vacating firearm conviction. (280) Defendant was originally convicted of drug and firearms charges. In light of Bailey v. U.S., 116 S.Ct. 501 (1995), the district court granted his 28 U.S.C. § 2255 motion and vacated the § 924(c) firearms conviction However, it refused to order resentencing on the drug count, which would have allowed the government to argue for a § 2D1.1(b)(1) forearms enhancement. Since the defendant only sought relief from his § 924(c) sentence, the district court believed it lacked jurisdiction under § 2255 to do anything to the drug sentence. The Fourth Circuit held that the “sentence” conferring § 2255 jurisdiction includ­ed the sentence for the drug conviction, and therefore the district court had authority to direct the district court to resentence on the drug count. Where a sentencing issue was not actually litigated in the original proceeding, and the failure to litigate it was directly caused by the error in the judgment of which the § 2255 petitioner complains, it is appropriate for the district court to resolve the issue. U.S. v. Hillary, 106 F.3d 1170 (4th Cir. 1997).

 

4th Circuit finds reasons inadequate to en­hance sen­tence based upon weapons found in drug trafficker’s home. (280) Defendants’ sentences were enhanced un­der guideline § 2D1.1(b)(1), based upon various weapons and drugs found in their New York apartment and their Maryland house.  In one defendant’s case, the district court justified the enhance­ment because the de­fendant was “well aware” that the weapons were in the apartment, and in the other defen­dant’s case, the en­hancement seemed to based solely upon the fact that weapons were found in the defendant’s resi­dence.  The 4th Circuit found that these rea­sons were inade­quate for enhancement.  En­hancement is proper only if a court determines that it is not “clearly im­probable” that the guns were connected to the drug offenses.  The case was re­manded to the district court with in­structions to make a spe­cific finding as to the connection between the guns and the drug of­fenses.  U.S. v. Apple, 915 F.2d 899 (4th Cir. 1990).

 

5th Circuit says decision to charge separate firearm offense did not make sentence unreasonable. (280) Defendant was convicted of drug charges and possessing a firearm in furtherance of drug trafficking, in violation of 18 U.S.C. § 924(c). He argued that the Guidelines are “internally inconsistent” because the conduct of possessing a firearm in furtherance of a drug trafficking crime can either be prosecuted as an independent crime under § 924(c) or as a two-level enhancement under the drug guideline, U.S.S.G. § 2D1.1(b)(1). He argued that his applicable guideline range would have been 30-37 months if the firearm had only been considered as an enhancement rather than prosecuted as a separate offense. The 5th Circuit rejected this argument, noting that the government has great discretion in deciding whether, and which offenses to prosecute. The fact that defendant might have been subject to a less severe punishment if the government had made a different prosecutorial decision did not make his sentence infirm. The Guidelines recognize § 924(c)’s mandatory minimum punishment and they specifically account for the possibility that the same conduct could be punished either as a substantive count or as an enhancement. U.S. v. Molina, 530 F.3d 326 (5th Cir. 2008).

 

5th Circuit says increase was based on lead­er­ship role, not firearms. (280) Defen­dant argued that the district court improperly increased his sentence based on his possession of firearms when he had already been convicted of using or carrying the same firearms. He pointed to the court’s statement that it was adopting the four level increase recommended by the PSR because of his leadership role and his possession of firearms dur­ing the drug trafficking offense. The Fifth Circuit held that the district court did not apply a firearm enhancement. The PSR recommended a four level increase for his leadership role under § 3B1.1(a). In doing so, the PSR expressly rejected any increase based on possession of a firearm. Although the court adopted the four level increase partly because of defendant’s possession of firearms, the court did not use § 2D1.1(b)(1) to calculate the four level increase. U.S. v. Brown, 102 F.3d 1390 (5th Cir. 1996), overruled on other grounds by U.S. v. Brown, 161 F.3d 256 (5th Cir. 1998).

 

5th Circuit upholds authority under § 2255 to resentence drug count after vacating § 924(c) count. (280) Defendant was originally convicted of drug and firearms counts. He later filed a successful § 2255 petition to vacate the § 924(c)(1) conviction. Following U.S. v. Rodriguez, 114 F.3d 46 (5th Cir. 1997) the Fifth Circuit held that after a § 2255 vacatur of a § 924(c) conviction, the court may impose a § 2D1.1(b)(1) enhancement on the remaining drug count. This does not violate double jeopardy because of the defendant’s lack of a legitimate expectation of finality in the original sentence. Nor does this conflict with the circuit’s en banc decision in U.S. v. Henry, 709 F.3d 298 (5th Cir. 1983). The sentences involved in Henry were separable and did not present a case of intertwined illegality in sentencing. U.S. v. Hernandez, 116 F.3d 725 (5th Cir. 1997).

 

5th Circuit permits resentencing on drug count after vacating § 924(c) conviction. (280) Defendant was originally sentenced for drug and firearms charges. He successfully filed a § 2255 petition to vacate the § 924(c) conviction in light of Bailey v. U.S., 116 S.Ct. 501 (1995). The district court then resentenced him on the remaining drug offenses, applying a § 2D1.1(b)(1) enhancement for using a possessing a firearm in connection with the offenses. The Fifth Circuit upheld the district court’s jurisdiction under § 2255 to resentence defendant on the remaining drug counts. It did not violate double jeopardy to consider the firearms at resentencing. The Constitution only prohibits resentencing if a defendant has a legitimate expectation of finality in his original sentence. Defendant did not have such an expectation because he challenged two of his four interrelated convictions, placing the validity of his entire sentence at issue. U.S. v. Rodriguez, 114 F.3d 46 (5th Cir. 1997).

 

5th Circuit says 2D1.5(a) refers to all of 2D1.1, including specific offense characteris­tics. (280) Defendant re­ceived a life sentence for engaging in a continuing criminal enterprise. He later moved to reduce his sentence under 18 U.S.C. § 3582(c)(2) based on a 1994 Amend­ment to § 2D1.1(c) (Amendment 505), which reduced the maximum base offense level from 42 to 38. The district court summarily denied the motion. Defendant argued that Amendment 505 lowered his total offense level to 42, re­sulting in a guideline range of 360 months to life, and that the court abused its discretion when it sentenced him at the top of the sentencing range without weighing the § 3553(a) factors. The Fifth Circuit found that defendant’s offense level was 44, once the specific offense characteristics were applied to enhance his offense level. Section 2D1.5(a)(1) provides for an offense level of 4 plus the offense level from § 2D1.1 for the underlying offense. Although § 2D1.5 does not list any speci­fic of­fense characteristics, it references § 2D1.1 in its entirety, including the specific offense characteristics of § 2D1.1(b). Thus, the two level en­hancement in § 2D1.1(b)(1) for posses­sion of a dangerous weapon applied to defendant, raising his offense level from 42 to 44. U.S. v. Gonzalez-Balderas, 105 F.3d 981 (5th Cir. 1997).

 

5th Circuit upholds “clearly improbable” standard for firearm enhancement. (280) Application note 3 to § 2D1.1 provides that the enhancement for pos­sessing a firearm during a drug trafficking crime ap­plies if the weapon was present, unless it is “clearly improbable” that the weapon was connected with the offense.  Fifth Circuit cases have held that the “clearly improbable” standard of note 3 governs the applica­tion of § 2D1.1(b)1).  The 5th Circuit rejected defen­dant’s claim that this standard violated due process by shifting the burden of proof at sentencing from the government to the defendant.  One panel may not overrule the decisions of another panel. U.S. v. Ortiz-Granados, 12 F.3d 39 (5th Cir. 1994).

 

5th Circuit upholds firearm enhancement despite acquittal on 924(c) charges. (280) The 5th Circuit upheld an enhancement un­der guideline sec­tion 2D1.1(b)(1) for pos­sessing a firearm in connec­tion with a drug trafficking offense, despite defen­dant’s ac­quittal on charges of carrying a firearm in connection with a drug trafficking offense un­der 18 U.S.C. section 924(c)(1).  U.S. v. Juarez-Ortega, 886 F.2d 747 (5th Cir. 1989), which upheld an enhance­ment in such a sit­uation, was controlling.  Defendant never contested the reliability of the government’s evidence regarding the weapon.  U.S. v. Carter, 953 F.2d 1449 (5th Cir. 1992).

 

5th Circuit rules court did not comply with Rule 32 in en­hancing sentence for posses­sion of weapon during drug crime. (280) At sentencing, defendant claimed that he had no knowledge that the gun existed, nor that a gun was involved in the offense.  The presen­tence report con­tained no evidence of who owned or ex­ercised control over the gun.  The district court ne­glected to make a specific finding on knowledge, nor did it indicate that knowledge of the gun’s presence would not be considered at sentencing.  The court also failed to address defendant’s contention that the gun was not found near him or any of his possessions, and that the residence in which it was found was not his.  The 5th Circuit found that the district court’s summary re­fusal to address defendant’s objections vio­lated Fed. R. Crim P. 32, and re­quired re­mand.  In addition, the court failed to re­solve issues required by guideline section 2D1.1.  For ex­ample, the court never addressed the ques­tion of who pos­sessed the pistol, and, if a co-con­spirator possessed the gun, whether defen­dant could have reason­ably foreseen that possession.  U.S. v. Hooten, 942 F.2d 878 (5th Cir. 1991).

 

5th Circuit remands because district court failed to en­hance defendant’s sentence for possession of a firearm. (280) A search of the condominium from which defen­dant sold co­caine uncovered additional cocaine, money, drug parapher­nalia and a gun.  The district court refused to en­hance de­fendant’s sentence for possession of the firearm during the com­mission of a drug crime, finding it “improbable that the weapon was used in the commis­sion of this offense.”  The 5th Circuit remanded be­cause the district judge may not have consid­ered possession to be a sufficient ground for sentence enhancement.  U.S. v. Register, 931 F.2d 308 (5th Cir. 1991).

 

5th Circuit remands for district court to de­termine defen­dant’s intent in possessing inop­erable gun. (280) An un­loaded, inoperative firearm was found in the glove compart­ment of a car which defendant drove to the scene of a drug transaction.  At the time of defendant’s arrest, he was some distance from the car, ob­serving a co-conspirator’s sale of drugs to an undercover agent.  Defendant claimed that he had intended to take the gun to a gunsmith for repair, and had forgotten that he put it in his car.  The 5th Circuit re­jected defendant’s argu­ment that he did not possess a firearm during the com­mission of the drug transaction.  The fact that the gun was inoperative did not alter the analysis.  The mere presence of a gun can “escalate the danger inher­ent” in a drug deal.  However, the version of guideline § 2D1.1(b)(1) under which defendant was sen­tenced had a scienter requirement.  Since de­fendant claimed he was un­aware that the gun was in the glove compartment, the case was remanded for the district court to determine defendant’s intent in possessing the weapon.  U.S. v. Paulk, 917 F.2d 879 (5th Cir. 1990).

 

5th Circuit rules that prior version of guide­lines re­quired showing of scienter to increase offense level for possession of a firearm. (280) Defendant pled guilty to pos­session of cocaine with intent to distribute.  The dis­trict court in­creased defendant’s offense level by two based upon her possession of an unloaded semi-auto­matic pistol and a fully loaded clip.  The gun and clip were found under defendant’s bed at the time police of­ficers searched her house and seized various amounts of drugs both from her room and other parts of the house.  On these facts the 5th Circuit upheld the district court’s finding that defendant possessed the weapon and that she did so while committing the drug offense. However, the 5th Circuit found that the version of guideline § 1B1.3 in effect at the time defendant committed the crime re­quired a showing of scienter before a defen­dant’s offense level could be increased under guideline § 2D1.1(b).  Section 1B1.3 had been amended by the date of defendant’s sen­tencing to remove the scienter requirement.  Although the Sentencing Reform Act re­quires courts to consider the guidelines and policy state­ments in effect on the date of sentencing, the 5th Circuit found that application of the amended guideline to defen­dant’s crime would violate the ex post facto clause, since it would clearly “change the legal consequences of acts com­pleted before its effective date.”  The case was remanded for the district court to deter­mine whether defendant had the requisite sci­enter.  U.S. v. Suarez, 911 F.2d 1016 (5th Cir. 1990).

 

5th Circuit holds that defendant may be re­sponsible for co-defendant’s possession of a gun. (280) In sentencing the de­fendant, the district court increased his base of­fense level by two points under § 2D1.1(b)(1) be­cause his co-defen­dant possessed a loaded re­volver during the commission of a drug of­fense.  The defen­dant emphatically maintained that he had no knowledge whatsoever of the weapon.  The 5th Circuit remanded the case, holding that although sentencing courts may hold defendant account­able for a co-defen­dant’s “reasonably foreseeable possession of a firearm during the commission of a drug of­fense,” this cannot be solely due to the mere presence of a weapon, which was the only finding made in this case.  The case was re­manded for a specific finding as to whether the defendant should “reasonably have foreseen the presence of the weapon.”  U.S. v. Aguilera-Zap­ata, 901 F.2d 1209 (5th Cir. 1990).

 

5th Circuit holds multiple count section of guidelines prevented “double counting” of gun in drug and weapon counts. (280) The “multiple count” section of the guide­lines, § 3D, re­quires that when one count embod­ies conduct that is treated as a specific offense charac­teristic in the guideline applicable to an­other count, the counts are grouped to­gether as a single group.  Thus, the 5th Circuit held that because the base offense level for pos­session of a ma­chine gun (level 12) was so much less than that for de­fendant’s drug of­fense (level 36), the firearm offense “was es­sentially disregarded” in arriving at defen­dant’s com­bined offense level under § 3D1.4(c).  Furthermore, the court stated that defendant was not punished twice for the same crime.  She was separately sentenced for the separate crimes of posses­sion of an un­registered ma­chine gun and drug offenses.  U.S. v. Shaw, 883 F.2d 10 (5th Cir. 1989).

 

5th Circuit upholds enhancement for pos­session of weapon during drug offense. (280) A drug defendant pled guilty and appealed the two point enhancement of his base offense level for possession of a weapon during a drug offense under § 2D1.1(b)(1).  The 5th Cir­cuit affirmed, finding that the evi­dence clearly supported the enhancement.  The defen­dant had brought the gun in a gym bag and left it in the next room while the trans­action occurred.  He admit­ted to police that a co-con­spirator had given him the gun to use in the event “the transaction went bad.”  A co-conspirator admitted that the defendant and he had discussed having a gun in case “the deal soured.”  Thus, it was not “clearly im­probable that the weapon was connected with the of­fense” as stated in the commentary to § 2D1.1(b)(1) and the en­hancement was proper.  U.S. v. Morales, 880 F.2d 827 (5th Cir. 1989).

 

5th Circuit holds departure from guidelines based on posses­sion of hand­gun was proper despite acquittal on that offense. (280) Ex­pressing disagreement with the jury’s verdict, the trial judge departed upward based on the defendant’s carrying a firearm during a drug offense (18 U.S.C. § 924(c)(1)), even though the jury ac­quitted on that count.  The Fifth Circuit upheld the de­parture, stating that “[a]lthough the jury may have deter­mined that the government had not proved all of the el­ements of the weapons of­fense beyond a rea­sonable doubt, such a deter­mination does not necessarily pre­clude consid­eration of underly­ing facts of the offense at sentencing so long as those facts meet the reli­ability stan­dard.”  U.S. v. Juarez-Ortega, 866 F.2d 747 (5th Cir. 1989).

 

6th Circuit upholds authority under § 2255 to resentence on remaining drug count. (280) The district court granted defendant’s § 2255 petition and vacated his conviction for using or carrying a firearm in relation to a drug trafficking offense in violation of 18 U.S.C. § 924(c). However, it then added two levels to his sentence on the drug count, under guideline § 2D1.1 (b)(1). The Sixth Circuit affirmed, upholding the district court’s authority under § 2255 to resentence defendant on the unchallenged conviction after vacating the § 924(c) count. Every circuit that has considered this issue has agreed with this holding. At the original sentencing, the § 924(c) conviction precluded the court from applying the § 2D1.1(b)(1) enhance­ment. Resentencing simply put defendant in the same position he would have occupied if he had never been convicted of the § 924(c) count. Even though he had already served the portion of his sentence allocated to the drug charge, he lost any expectation of finality when he challenged one of two interrelated convictions and placed the validity of his entire sentence at issue. U.S. v. Pasquarille, 130 F.3d 1220 (6th Cir. 1997).

 

6th Circuit remands for § 2D1.1(b)(1) increase after vacating § 924(c) con­viction. (280) Defendant was originally convicted of drug and firearms charges. The Sixth Circuit vacated the § 924(c) conviction in light of Bailey v. U.S., 116 S.Ct. 501 (1995). It also remanded for the district court to consider whether to impose a § 2D1.1(b)(1) enhancement for the drug sen­tence, even though the government did not cross-appeal the drug sentence. An appellate court has jurisdiction to vacate an entire sen­tencing package, even when certain portions of the sentence have not been challenged. The sentences here were interdependent. If defendant had not been convicted under § 924(c), the dis­trict court would have had discretion to enhance defendant’s sentence for fire­arm possession under § 2D1.1(b)(1). U.S. v. Milledge, 109 F.3d 312 (6th Cir. 1997).

 

6th Circuit remands after reversal of gun count to consider firearm enhancement. (280) Defen­dant’s conviction under § 924(c) was reversed in light of Bailey v. U.S., 116 S.Ct. 501 (1995). The government asked for resentencing on the remaining drug counts, contending that defendant was now eligible for a § 2D1.1(b)(1) enhance­ment. The Sixth Circuit agreed that reversal of the § 924(c) conviction meant that the government could now seek the § 2D1.1(b)(1) enhancement. U.S. v. Tucker, 90 F.3d 1135 (6th Cir. 1996).

 

6th Circuit remands for gun enhancement after § 924(c) conviction reversed. (280) After defendant’s drug and firearms convic­tions and sentence were affirmed on appeal, he moved for reconsideration in light of Bailey v. U.S., 516 U.S. 137 (1995). The govern­ment conceded that under Bailey, defendant’s conviction under 18 U.S.C. § 924(c) was improper, but asked the court to remand to permit the district court to consider imposing a § 2D1.1(b)(1) enhancement. Defen­dant argued that the court lacked authority to remand for resentencing because his conviction and sentence had been affirmed on appeal. The Sixth Circuit held it had authority under 28 U.S.C. § 2106 to vacate defendant’s sentence and remand for resentencing to consider the enhancement. Defendant’s sentences for his multi­ple convictions were interdependent, because the § 924(c) convic­tion barred the § 2D1.1(b)(1) en­hance­ment. Where several sentences are interdepen­dent, a court has the authority under § 2106 to vacate all of the sentences even if only one is reversed on appeal. U.S. v. Clements, 86 F.3d 599 (6th Cir. 1996).

 

6th Circuit holds § 924(c)(1) requires sentence consecutive to state and other federal sentences. (280) Defendant pled guilty to carrying a firearm in relation to a drug trafficking offense.  He argued that 18 U.S.C. § 924(c)(1) only requires a sentence to be served consecutively to other federal sentences but not to state sentences.  The 6th Circuit rejected this argument.  Defendant’s reliance on a single isolated bit of legislative history was repudiated by the statute, which unequivocally states that the imprisonment term shall not run concurrently “with any other term of imprisonment.”  The term “any other term of imprisonment” is not ambiguous.  It is simply broad.  U.S. v. Ospina, 18 F.3d 1332 (6th Cir. 1994).

 

6th Circuit finds no 6th Amendment violation in judge’s ability to determine drug quantity and firearm possession. (280) It does not vio­late the 6th Amendment for the judge, rather than a jury, to determine the quantity of drugs involved in an offense.  It also is constitutional for the district court, rather than the jury, to determine whether defendant’s sentence should be enhanced for possessing a firearm in the scope of a drug transaction.  The district court relied upon testimony from a wit­ness that the court itself deemed “not all that credible.” But the 6th Circuit upheld the enhancement since defendant pre­sented no evidence showing that it was “clearly improbable” that the weapon was connected with the offense.  De­fendant only made the general and insufficient allegation that the judge’s determination would have been different under the “beyond a rea­sonable doubt” standard of proof.  U.S. v. Hodges, 935 F.2d 766 (6th Cir. 1991).

 

6th Circuit upholds upward departure based on defen­dant’s possession of a machine gun. (280) Defen­dant’s offense level was increased by two levels based upon his possession of a machine gun.  The 6th Circuit upheld the up­ward departure.  Guideline § 5K2.6 au­thorizes an upward departure when a weapon or dangerous instrumen­tality is used or pos­sessed in the commission of an offense.  The 6th Circuit concluded that the district court considered departure appropriate and found that increasing the offense level by two points was reason­able.  Judge Nelson, concurred in the result, arguing that the majority applied the wrong analysis.  Defendant did not receive an upward departure, but rather his base offense level had been increased by two under guide­line § 2D1.1(b).  Defendant argued that he was entitled to a downward departure.  Rather than review­ing defen­dant’s sentence as an upward departure, the major­ity should have dismissed defendant’s claim on the ground that a refusal to depart downward is not reviewable.  U.S. v. Smith, 918 F.2d 664 (6th Cir. 1990).

 

6th Circuit upholds consitutionality of en­hancement for possession of firearm during drug offense. (280) Defen­dant’s base of­fense level was increased two points under § 2D1.1(b) for posses­sion of a firearm during com­mis­sion of a drug of­fense.  He argued that the enhance­ment violated due process because it uncon­sti­tu­tion­ally shifted the burden to him to prove it was “highly im­probable that the weapon was connected with the of­fense.”  Re­lying on several Supreme Court cases, the Sixth Circuit rejected his chal­lenge, holding that sen­tencing provi­sions such as this do not vi­olate the due pro­cess clause, be­cause sentencing is­sues not bearing on guilt need not be proven beyond a reason­able doubt to a jury.  Based upon this rationale, there also is no viola­tion of the Sixth Amendment right to a jury trial.  U.S. v. McGhee, 882 F.2d 1095 (6th Cir. 1989).

 

7th Circuit finds below-range sentence was reasonable despite addition of five years for potential firearm. (280) Defendant was con­victed of two drug char­ges, and the district court declared a mistrial on the remaining weapons charge . His guideline range was 360 months to life, but defendant requested a downward depar­ture to a mandatory minimum 20-year sentence based on favor­able 18 U.S.C. § 3553(a) factors. The dis­trict court con­sidered defendant’s rehabil­itation efforts since his arrest, and imposed a 25-year sentence. The court rea­soned that defendant almost certainly possessed a weapon, which would have been associated with a 60-month sentence. It added those 60 months to the 240-months mandated by statute, to arrive at 25 years. De­fen­dant argued that his sentence was proced­urally unreason­able, but the Seventh Circuit disagreed. Defen­dant’s potential posses­sion of a gun was a circum­stance of the offense within the ambit of 18 U.S.C. § 3553(a)(1). The court care­fully consider­ed, among other factors, the guide­lines range, defen­dant’s arguments, de­fen­dant’s family history, and the impact that vari­ous sen­tences could have on defendant’s rehabil­itation. It then imposed a below-guidelines sen­tence. U.S. v. Booker, 612 F.3d 596 (7th Cir. 2010).

 

7th Circuit rules that firearm enhancement con­stituted double counting where defendant was convicted of possessing same gun. (280) Defendant pled guilty to drug and firearms charges. He argued that the court punished him twice for possessing the same firearm, and the Seventh Circuit agreed. When a defendant is sentenced for the possession of a firearm under § 2K2.1, the district court cannot increase the defendant’s sentence on another count for posses­sion of that same firearm. See Note 4 to § 2K2.4. The court increased defendant’s offense level on the drug conspiracy count for possessing a gun, and then it sentenced defendant to a concurrent 120-month sentence for posses­sing the same firearm. The court could do one or the other, but not both. U.S. v. Bustamante, 493 F.3d 879 (7th Cir. 2007).

 

7th Circuit upholds departure for aggravated use of gun. (280) Defendant sold cocaine from a tavern his father owned. He purchased a semi-automatic hand­gun and carried it in the small of his back and flashed it around to his customers. Shortly after obtaining the gun, he threatened two customers who owed him money for cocaine. He also pulled the weapon on a cus­tomer who complained about the poor quality of the cocaine. The district court applied a two-level enhance­ment under § 2D1.1(b)(1) based on defendant’s posses­sion of the gun during his drug crimes. The court further made a three-level departure because defendant’s reck­less be­havior could have resulted in the discharge of the weapon. The Seventh Circuit affirmed the upward depar­ture based on defendant’s aggra­vated use of the gun. The heartland of § 2D1.1(b)(1) cases is possession of a dangerous weapon. Defendant qualified for the enhance­ment simply by possessing a weapon connected with his offense. Defendant’s violent, threatening and out-of-control use of the gun during his drug dealing was sufficient to take his case out of the heartland of § 2D1.1(b)(1) cases. U.S. v. Raimondi, 159 F.3d 1095 (7th Cir. 1998).

 

7th Circuit upholds jurisdiction to resentence more than 3 months after granting 2255 motion. (280) Defendant was originally convicted of drug and firearms charges. On October 31, 1996, the district court granted defendant’s § 2255 petition to vacate the firearm conviction, and instructed the government to notify the court by December 1 whether it intended to retry defendant on the § 924(c) charge. On December 5, the government finally advised the court that it did not intend to retry defendant. On February 11, the court scheduled a sentencing hearing, and on March 14, the court resentenced defendant on the drug count, applying a § 2D1.1(b)(1) enhancement. The Seventh Circuit upheld the court’s jurisdiction to resentence defendant more than 3 months after deciding the merits of defendant’s collateral attack. There is no rule or statute implying a limit on the court’s jurisdiction to recalculate a sentence when one count is vacated. Even if there is a point at which the court might lose the power to resentence on an undisturbed count, that point was not reached here. A court must be given a reasonable time to recalculate the sentence. U.S. v. Walker, 118 F.3d 559 (7th Cir. 1997).

 

7th Circuit remands to different judge for refusing to apply 2D1.1(b)(1) after 924(c) acquittal. (280) A jury convicted defendant of operating a crack distribution house, but acquitted him of using a gun during a drug trafficking crime in violation of 18 U.S.C. § 924(c). At sentencing, the judge refused to apply § 2D1.1(b)(1) for possessing a firearm, citing the jury’s § 924(c) acquittal for using it. In U.S. v. Pollard, 72 F.3d 66 (7th Cir. 1995), the court reversed and remanded, since innocence of § 924(c) is entirely consistent with a § 2D1.1(d)(1) enhancement. On remand, the same judge refused to receive evidence on the issue of defendant’s firearm possession, stating that he would not overrule the jury’s “finding.”  The Seventh Circuit remanded with directions for a different judge to consider the § 2D1.1(b)(1) enhancement. A jury can conclude that the prosecutor did not establish beyond a reasonable doubt that defendant “used” a gun in his drug dealings, while a preponderance of the evidence could show that defendant “possessed” guns in connection with the offense. Judge Evans dissented. U.S. v. Booker, 115 F.3d 442 (7th Cir. 1997).

 

7th Circuit upholds resentencing on drug count after § 924(c) count va­cated, despite defendant’s release. (280) Defendant originally pled guilty to drug and firearms charges, and was sentenced to 67 months on the drug count and a mandatory consecutive 60-month sentence on the firearm count. After Bailey v. U.S., 116 S.Ct. 501 (7th Cir. 1995) was decided, the district court granted defendant’s § 2255 peti­tion and vacated the § 924(c) convic­tion. Since defendant had already com­pleted his 67-month drug sentence, he was released from custody while the parties briefed the resentencing issue. The Seventh Circuit held that defen­dant could be resentenced on the re­maining drug count despite his release. Under U.S. v. Smith, 103 F.3d 531 (7th Cir. 1996), vacating the firearm count “unbundled” defendant’s “sentencing package.” Defendant was released only after his sentencing package had been unbundled. Under these circum­stances, he had no expectation of final­ity until a new sentence was fashioned. Woodhouse v. U.S., 109 F.3d 347 (7th Cir. 1997).

 

7th Circuit affirms resentencing on drug count even though § 2255 peti­tion only challenged gun count. (280) Defendant successfully petitioned the court under § 2255 to vacate his § 924(c) firearm conviction in light of Bailey v. U.S., 116 S.Ct. 501 (1995). At resentencing, the district court imposed a § 2D1.1(b)(1) firearm enhancement to his sentence for the drug offense. De­fendant argued that the district court could not resentence him on a count not attacked in his § 2255 petition. The Seventh Circuit, relying on U.S. v. Smith, 103 F.3d 531 (7th Cir. 1996), held that the vacation of the § 924(c) portion of defendant’s sentence “unbund­led” his sentencing package and entitled the court to effectuate its original sentencing intent by resen­tencing defendant and adding a § 2D1.1(b)(1) firearm enhancement. Thus, in a § 2255 proceeding, the district court has the authority to restructure a defendant’s entire sentence even when the prisoner’s petition attacks the va­lidity of just one of the counts of con­viction. U.S. v. Binford, 108 F.3d 723 (7th Cir. 1997).

 

7th Circuit allows government to reduce its  § 5K1.1 request after Bailey. (280) Defen­dant originally pled guilty to drug, firearms and money laundering charges. He cooperated, and the government moved for a 14‑level downward depar­ture under § 5K1.1, which would have re­duced his sentence by 50%. After the Supreme Court’s decision in Bailey v. U.S., 116 S.Ct. 501 (1995), the government voluntarily dismissed the firearms charge. It then revised its § 5K1.1 motion to request only a 7‑level departure, which would still result in a 50% reduction in sentence. Defendant argued that government was required to make its recommendation solely on the basis of the quality of his cooperation. The Seventh Cir­cuit upheld the government’s rationale for amending its § 5K1.1 motion. It is not unusual for the government to recommend a sentence reduction based on a percentage of the defen­dant’s total sentence. Nothing in the guidelines bars a court from taking into account the final sentence in determining the degree of a departure. U.S. v. Senn, 102 F.3d 327 (7th Cir. 1996).

 

7th Circuit finds district court did not im­properly shift burden of proof to defendant concerning possession of weapon. (280) De­fendant contended that the district court im­properly shifted the burden of proof of non-posses­sion of a weapon to the defendant by having de­fendant’s counsel address his objec­tions to the applica­tion of the en­hancement provision before the govern­ment proceeded.  The 7th Circuit rejected this argu­ment.  There was no objection by the defendant at the sen­tencing hearing to this procedure.  Moreover, there was nothing in the record to reflect that the burden of proof had been shifted away from the government.  In­stead, the record re­flected that the judge permitted both sides to present evidence and make their arguments. “Even if it would have been a preferred proce­dure to have the gov­ernment make its argu­ments first in keeping with the fact that it had the burden of proving posses­sion, the defen­dant has not demonstrated that he suf­fered any prejudice as a re­sult of the district court’s cho­sen procedure for handling ob­jections to the presentence report.”  U.S. v. Armond, 920 F.2d 480 (7th Cir. 1990).

 

7th Circuit upholds constitutionality of firearm enhance­ment provision. (280) Defen­dant argued that guideline § 2D1.1(b)(1) (possession of a firearm during a drug of­fense) violated due process because the commentary im­properly placed the burden on the de­fendant to show that the en­hancement should not be ap­plied.  The 7th Circuit dis­agreed, relying on McMillan v. Pennsylvania, 477 U.S. 79 (1986), which upheld a mandatory minimum penalty for “visible pos­session of a firearm.”  The court held that § 2D1.1(b)(1) “no more offends the due process clause than the Pennsylva­nia Act that the Supreme Court upheld in McMil­lan.”  U.S. v. Durrive, 902 F.2d 1221 (7th Cir. 1990).

 

8th Circuit remands for resentencing on drug counts after 924(c) gun count reversed. (280) Defendants were originally convicted of drug and firearms charges. Thereafter, they moved to vacate their § 924(c)(1) convictions. The government conceded that the § 924(c)(1) convictions should be vacated, but requested resentencing on the underlying drug convictions in order to apply a § 2D1.1(b)(1) gun enhance­ment. The district court granted the motion to vacate the § 924(c) convictions, but denied the government’s motion for resentencing. The Eighth Circuit remanded for reconsideration, because the court erroneously believed it lacked authority to resentence the drug counts. Although the law was unclear when the district court ruled, several intervening circuit cases have held that in an motion under § 2255, a district court has authority to resentence on a drug trafficking conviction after vacating a related § 924(c) conviction. Cooper v. U.S., 129 F.3d 1013 (8th Cir. 1997).

 

8th Circuit holds resentencing on served portion of interdependent sentences did not violate double jeopardy. (280) Defendant originally was convicted of drug and firearms charges. The district court vacated the § 924(c) conviction in light of Bailey v. United States, 116 S.Ct. 501 (1995). The district court then recalculated defendant’s sentence on the related drug trafficking charge. Recent Eighth Circuit cases have upheld a district court’s authority in a § 2255 action to resentence a prisoner on a drug trafficking offense after vacating a related § 924(c) conviction. However, at the time of defendant’s resentencing, he had completed the 60-month drug trafficking sentence, and had begun the § 924(c) sentence. Defendant argued that because the drug trafficking sentence had expired, he had a legitimate expectation of finality in that sentence. The Eighth Circuit held that resentencing on the served portion of the two interdependent sentences did not violate double jeopardy. Defendant’s sentence on the drug charge had not expired because he was still in custody and subject to supervised release on that charge at the end of his imprisonment on the § 924(c) count. Also, the consecutive sentences for the related drug and firearms counts constituted a unified sentencing package. Judge Gibson dissented. U.S. v. Alton, 120 F.3d 114 (8th Cir. 1997).

 

8th Circuit upholds resentencing on drug count after § 924(c) conviction vacated. (280) Defendants were convicted of using a firearm in relation to a drug trafficking crime in violation of 18 U.S.C. § 924(c) and related drug crimes. They successfully moved to vacate their § 924(c) convictions in light of the Supreme Court’s decision in Bailey v. U.S., 116 S.Ct. 501 (1995). In two cases decided the same day, the Eighth Circuit relied on U.S. v. Harrison, 113 F.3d 135 (8th Cir. 1997) to hold that a district court has authority under § 2255 to resentence a prisoner on related convictions and to apply the § 2D1.1(b)(1) enhancement when it has vacated a § 924(c) conviction. Such a resentencing does not violate double jeopardy. Gardiner v. U.S., 114 F.3d 734 (8th Cir. 1997); Dossett v. U.S., 113 F.3d 148 (8th Cir. 1997).

 

8th Circuit upholds resentencing on drug count after firearms conviction is vacated. (280) In a § 2255 petition, defendant success­fully challenged his 18 U.S.C. § 924(c) firearm conviction. The district court vacated the mandatory 60-month firearm conviction, but then applied a § 2D1.1(d)(1) firearm enhance­ment to the drug sentence. It imposed a 151-month sentence, 30 months less than defendant’s total original sentence. The Eighth Circuit held that the district court had jurisdiction under § 2255 to resentence defendant on the drug count, even though defendant had not challenged the drug conviction or sentence in his § 2255 motion. Section 2255 gives district courts broad and flexible remedial authority to resentence a defendant and correct a sentence as appropriate. It is appropriate to allow the court to impose the sentence it would have imposed but for the challenged error. The gun conviction and the firearm enhancement on the drug conviction are interdependent, and therefore the terms of imprison­ment imposed on the gun and drug counts constitute a single “sentence” under § 2255. Resentencing does not violate double jeopardy or due process. Judge Heaney dissented. U.S. v. Harrison, 113 F.3d 135 (8th Cir. 1997).

 

8th Circuit remands to consider § 2D1.1(b)(1) increase after vacating firearms conviction. (280) After vacating a § 924(c) firearms conviction based on Bailey v. U.S., 116 S.Ct. 501 (1995), the Eighth Circuit remanded for the district court to consider whether to apply a § 2D1.1(b)(1) firearms enhancement. To avoid double count­ing, the guidelines preclude applica­tion of the § 2D1.1(b) enhancement if the defendant is convicted of violating 18 U.S.C. § 924(c). Therefore, when a § 924(c) conviction is reversed on appeal, the district court should be given the opportunity on remand to consider whether to impose a § 2D1.1(b)(1) enhancement. U.S. v. Friend, 101 F.3d 557 (8th Cir. 1996).

 

8th Circuit affirms firearm enhancement despite acquittal on related charges. (280) The 8th Circuit rejected defendants’ claim that an acquittal under 18 U.S.C. section 924(c) for carrying a weapon in con­nection with a drug-trafficking crime barred an en­hancement under section 2D1.1(b)(1) for similar conduct.  In order to obtain a convic­tion under sec­tion 924(c), the conduct must be proven beyond a reasonable doubt, while the enhancement need only be proven by a preponderance of the evidence.  Here, the evidence was sufficient to support the enhance­ment.  Each defendant had a large cache of weapons in his home.  Two wit­nesses testified that the defen­dants used firearms for protection of their drug busi­ness during the course of the conspiracy.  At the time of his arrest, while on his way to pick up drugs, one defendant had a weapon and am­munition in his car.  During searches of other defendant’s home, police found weapons near drug paraphernalia.  U.S. v. England, 966 F.2d 403 (8th Cir. 1992).

 

8th Circuit says first and second convic­tions un­der section 924(c) may arise in same in­dictment, but recommends rehear­ing en banc. (280) Defendant was convicted of six dif­ferent drug offenses and two counts of using a firearm during a drug transaction in violation of 18 U.S.C. section 924(c).  Al­though he had no prior felony convictions, de­fendant received a 44-year sen­tence:  19 years for the six drug offenses, a consecu­tive five year sentence for the first count of using a firearm during a drug crime, and an addi­tional con­secutive sentence of 20 years for the second count of using a firearm during a drug crime.  The 8th Circuit affirmed.  Sec­tion 924(c) mandates a five-year sen­tence for a first of­fense, and in the case of a second or subsequent con­viction, a sentence of 20 years.  Under Circuit prece­dent, a defendant’s first and sec­ond convictions may arise from counts alleged in the same indict­ment.  Be­cause section 924(c) might rea­sonably be read to require that an offender be con­victed of his first of­fense before he commits the of­fense resulting in his second conviction, the panel suggested that this issue be reheard en banc.  Judge Gibson dissented from the sug­gestion to rehear the issue en banc. U.S. v. Jones, 965 F.2d 1507 (8th Cir. 1992).

 

8th Circuit upholds enhancement for “second” convic­tion of carrying firearm in a drug of­fense even though both convictions were in one trial. (280) 18 U.S.C. 924(c)(1), governs sen­tencing for carrying a firearm in relation to a crime of violence or drug traf­ficking and states that “in case of a second or subsequent convic­tion under this subsection the sentence shall be 10 years.” Defendant was convicted of 2 firearm counts in connec­tion with a drug sale.  Pursuant to 18 U.S.C. 924(c)(1), he received a 5 year sentence for the first firearm of­fense and a 10 year sentence for the second firearm of­fense.  On appeal, defendant argued that the phrase “second or subsequent in 924(c)(1) does not include later counts of conviction contained in the same indict­ment as the initial count of conviction.  The 8th Circuit disagreed, follow­ing the reasoning of the 11th Circuit in U.S. v. Rawlings, 821 F.2d 1543 (11th Cir. 1987) which held that while the term “subsequent” implies a second conviction must occur on a later date than the first con­viction, the term “second” merely means “another or additional conviction” and may be applied to two convictions contained in the same indictment.  U.S. v. Foote, 898 F.2d 659 (8th Cir. 1990).

 

9th Circuit holds that Apprendi and Booker do not apply to mandatory minimum sentences. (280) Defendant pleaded guilty to possessing a firearm during a drug trafficking offense, in violation of 18 U.S.C. § 924(c), based on an incident in which he drunkenly fired a shotgun while selling 12 grams of marijuana to an under­cover agent. Section 924(c) requires a court to impose a minimum 10-year sentence if a defendant discharges a firearm while committing the offense. In Harris v. U.S., 536 U.S. 545 (2002), the Court held that a district court’s imposition of a mandatory minimum sentence required by Section 924(c) does not violate the rule in Apprendi v. New Jersey, 530 U.S. 466 (2000), which requires any fact, other than the fact of a prior conviction, that increases the defendant’s statutory maximum sentence to be admitted by the defendant or proved to a jury by a reasonable doubt. The Ninth Circuit held that Harris had not been overruled by U.S. v. Booker, 543 U.S. 220 (2005), and therefore that a court could impose a mandatory minimum sentence based on facts not admitted by the defendant or found by a jury. U.S. v. Dare, 425 F.3d 634 (9th Cir. 2005).

 

9th Circuit says gun possessed “in connection with” another felony must have potential emboldening role. (280) Defendant failed to appear for sentencing and a bench warrant was issued. Three days later, he was found hiding in a closet in his girlfriend’s house. A rifle was found on the floor of the closet 11 feet from him. The district court increased his sentence under § 2K2.1(b)(5) for possessing the rifle “in connection with” his failure to appear. On appeal, the Ninth Circuit reversed, holding that the phrase “in connection with” means that the firearm must have been “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.” U.S. v. Routon, 25 F.3d 815, 819 (9th Cir. 1994). Here, the rifle’s presence was an “accident or coincidence” that the phrase “in connection with” was specifically meant to exclude. See Smith v. U.S., 508 U.S. 223, 238 (1993) (interpreting the phrase “in relation to” in 18 U.S.C. § 924(c)(1)); U.S. v. Polanco, 93 F.3d 555, 566 (noting Ninth Circuit practice of equating “in relation to” language of § 924(c) with “in connection with” language of § 2K2.1(b)(5)). The case was remanded for resentencing. U.S. v. Ellis, 241 F.3d 1096 (9th Cir. 2001).

 

9th Circuit rejects “clearly improbable” test for denying safety valve based on gun possession. (280) Once the government demon­strates that a defendant possessed a dangerous weapon under § 2D1.1(b)(1), the burden of proof is on the defendant to prove that it is “clearly improbable” that he possessed the weapon in connection with the offense. By contrast, a defendant need only show by a preponderance that he is eligible for the “safety valve” under § 5C1.2, and this includes showing that a weapon was not used in connection with the offense under § 5C1.2(2). In the present case, the judge applied the “clearly improbable” test in denying the safety valve. The Ninth Circuit held this was improper and reversed. U.S. v. Nelson, 222 F.3d 545 (9th Cir. 2000).

 

9th Circuit says improper conviction for “use” of a firearm cannot be upheld on uncharged “carry” theory. (280) Defendant filed a 28 U.S.C. § 2255 motion challenging the validity of his plea of guilty to using a firearm in relation to a drug offense under 18 U.S.C. § 924(c)(1). The district court found that he did not “use” the gun within the meaning of Bailey v. U.S., 516 U.S. 137 (1995), but denied the motion on the ground that he admitted facts sufficient to satisfy the “carry” prong of § 924(c). On appeal, Judges Silverman, Brunetti and Rymer reversed, agreeing with the Sixth, Seventh and Tenth Circuits that a conviction cannot be sustained on a “carry” theory where the government only charged the defendant with “use.” However, as permitted by U.S. v. Handa, 110 F.3d 42, amended, 122 F.3d 690 (9th Cir. 1997), the case was remanded to the district court for resentencing on count one, the substantive drug charge [which permits a two level increase for possession of a gun in a drug trafficking offense under guideline section 2D1.1(b)(1)]. U.S. v. Romero, 183 F.3d 1145 (9th Cir. 1999).

 

9th Circuit says increase for gun possession necessarily defeats “safety valve.” (280) Defendant maintained a marijuana garden in the mountains of Nevada. When he came upon agents in the garden, he laid his backpack in the path and tried to avoid being seen. The backpack contained a semi-automatic pistol. The district court increased his sentence by two levels under § 2D1.1(b)(1) for possession of a firearm in connection with the drug offense, and denied his request for “safety valve” credit under § 5C1.2 because he possessed a firearm “in connection with the offense.” On appeal, defendant did not challenge the increase under 2D1.1, but sought safety valve credit. The Ninth Circuit rejected the argument, noting that “every circuit to consider the issue has held that conduct which warrants an increase in sentence under § 2D1.1(b)(1) necessarily defeats application of the safety valve.” See U.S. v. Vasquez, 161 F.3d 909, 911-12 (5th Cir. 1998); U.S. v. Hallum, 103 F.3d 87, 89 (10th Cir. 1996); cf. U.S. v. Burke, 91 F.3d 1052, 1053 (8th Cir. 1996) (equating “in connection with” for enhancement purposes under § 2K2.1(b)(5) with the phrase as used in the § 5C1.2 safety valve provision). U.S. v. Smith, 175 F.3d 1147 (9th Cir. 1999).

 

9th Circuit, en banc, says court cannot require plea withdrawal as condition of setting aside “gun” count. (280) In a 7-4 opinion by Judge Noonan, the en banc Ninth Circuit held that, when a judge grants relief under 28 U.S.C. § 2255 because a defendant’s gun conviction under 18 U.S.C. § 924(c) is illegal under Bailey v. U.S., 516 U.S. 137 (1995), the district court may not condition relief on the petitioner’s withdrawal of his entire plea to all counts. In the present case, that would have exposed petitioner to an increased sentence as an Armed Career Criminal under section 924(e). The major­ity held that the district court had only three options: grant a new trial, resentence, or correct the sentence. It cannot conditionally grant the motion. The majority did recognize that U.S. v. Handa, 122 F.3d 690 (9th Cir 1997), cert. denied, 118 S.Ct. 869 (1998) remains good law and there­fore presumably petitioner could have his sentence increased on remand by two levels on the drug count. The majority also held that government waived its right to argue that under Bousley v. U.S., 523 U.S. 614 (1998), petitioner was entitled to no relief because he was not “actually innocent” of the more serious charges that the government had dropped in the course of plea bargaining. Judges Graber, Trott, O’Scannlain, and Silverman dissented at length. U.S. v. Barron, 172 F.3d 1153 (9th Cir. 1999) (en banc).

 

9th Circuit upholds resentencing for posses­sion of gun after Bailey reversal. (280) In U.S. v. Handa, 122 F.3d 690, 692 (9th Cir. 1997), cert. denied, 118 S.Ct. 869 (1998), the Ninth Circuit held that when a defendant succeeds in having his conviction for using a firearm under 18 U.S.C. § 924(c) vacated under Bailey v. U.S., 516 U.S. 137 (1995), the district court has authority to resentence him and may increase his sentence on the underlying drug offense for possessing the gun. In this case, defendant argued that Handa was distinguishable because the § 924(c) conviction was set aside pursuant to 28 U.S.C. § 2255, whereas here the parties simply filed a stipulation which they asked the court to treat as the “functional equivalent” of a § 2255 motion. The Ninth Circuit rejected the distinction, noting that a district court does not have inherent power to resentence defendants at any time. U.S. v. Minor, 846 F.2d 1184, 1187 (9th Cir. 1988). Therefore, the only way the court could obtain jurisdiction was under § 2255. Therefore, Handa was completely applicable. U.S. v. Hock, 172 F.3d 676 (9th Cir. 1999).

 

9th Circuit says Muscarello overruled Ninth Circuit caselaw on “carrying” guns. (280) In Muscarello v. U.S., 524 U.S. 125, 118 S.Ct. 1911 (1998), the Supreme Court held that “carrying” a firearm in relation to a drug crime under 18 U.S.C. § 924(c) includes carrying a firearm in a vehicle’s trunk or locked glove compartment. In the present case, the Ninth Circuit acknowledged that Muscarello overruled the Ninth Circuit’s cases in U.S. v. Foster, 133 F.3d 704, 708 (9th Cir. 1998) (en banc), and U.S. v. Hernandez, 80 F.3d 1253, 1258 (9th Cir. 1996), which had held that to support a “carrying” charge, the gun must have been “immediately available for use.” Thus in the present case, the court held that defendant’s gun, which he purchased for “protection” and placed under the driver’s seat of the car that he drove to the drug deal was “carried” within the meaning of 18 U.S.C. § 924(c). U.S. v. Medina-Chavarin, 147 F.3d 1161 (9th Cir. 1998).

 

9th Circuit, en banc, to decide if dismissed counts can be reinstated in granting 2255 Bailey motion. (280) In U.S. v. Barron, 127 F.3d 890 (9th Cir. Oct. 22, 1997) the Ninth Circuit held that when a defendant succeeds in having firearms counts vacated in light of Bailey v. U.S., 116 S.Ct. 501 (1995), the district court has jurisdiction under 28 U.S.C. § 2255 to rescind the entire plea agreement and allow the defendant to be prosecuted on previously dismissed counts. The court reasoned that “[b]ecause the district court cannot possibly know what convictions or sentences [defendant] would have received had he not pleaded guilty to the § 924(c) count, or had the district court refused to accept his defective plea, an appropriate remedy is to put [defendant] in the position he was in before he entered into the plea agreement.” Judge Noonan originally concurred, but later filed a dissenting opinion on March 6, 1998, arguing that because the defendant had not breached the plea agreement, the government could not repudiate it and the district court was not free to set it aside, even though the § 924(c) conviction had been vacated. On April 7, 1998, the full court granted rehearing en banc and withdrew the panel opinion pending decision by the en banc court. U.S. v. Barron, 138 F.3d 809 (9th Cir. 1998) (granting rehearing en banc in U.S. v. Barron, 127 F.3d 890 (9th Cir. 1997), amended to add dissenting opinion, 136 F.3d 675 (9th Cir. 1998).

 

9th Circuit permits resentencing after vacat­ing gun count even after drug sentence is completed. (280) In the first appeal in this case, the court reversed defendant’s conviction based on Bailey v. U.S., 116 S.Ct. 501 (1995), for using a weapon in relation to a drug trafficking offense, under 18 U.S.C. § 924(c). On remand, the district court refused to enhance his sentence for possession of a weapon during the drug trafficking offense under guideline section 2D1.1(b)(1), because he had already completed the portion of the sentence attributable to the drug trafficking offense. In this second appeal, the Ninth Circuit reversed and remanded for resentencing on the drug trafficking offense. Under U.S. v. Handa, 122 F.3d 690 (9th Cir. 1997), double jeopardy is not violated where a defendant is resentenced after his § 924(c) conviction and sentence are vacated. The fact that the defendant here had completed his sentence on the drug trafficking conviction was “irrelevant.” He was sentenced to a “single unified sentence,” and it was undisputed that the offense level for his drug trafficking conviction would have been increased by two levels but for the fact that he was also sentenced for the § 924(c) violation. Because the sentences were interrelated, defendant had no legitimate expectation of finality and therefore resentencing on the drug trafficking sentence would not violate double jeopardy. U.S. v. McClain, 133 F.3d 1191 (9th Cir. 1998).

 

9th Circuit, on rehearing, says court can resentence after vacating gun count under Bailey. (280) Following the decision in Bailey v. U.S., 116 S.Ct. 501 (1995), the district court granted defendant’s 18 U.S.C. § 2255 motion and vacated his conviction for using a firearm in relation to a drug trafficking crime in violation of 18 U.S.C. § 924(c). However, the district court held it had no power to resentence defendant so as to enhance the sentence on the remaining drug count for possession of the gun under guideline § 2D1.1. On appeal, the Ninth Circuit reversed, holding that in granting a motion under 28 U.S.C. § 2255, the district court has the power to resentence or correct the sentence as may be appropriate. In reaching this result, the Ninth Circuit agreed with seven other circuits. In particular, the court agreed with the Seventh Circuit’s reasoning in U.S. v. Binford, 108 F.3d 723, 728 that the sentence on a multiple count indictment should be viewed as a “package.” When part of the sentence is set aside as illegal, the package is “unbundled,” and the district court is free to put together a new sentencing package for the crimes of which he is still convicted. This does not violate double jeopardy. U.S. v. Handa, 122 F.3d 690 (9th Cir. 1997).

 

9th Circuit says plea to drug conspiracy does not admit gun possession alleged as overt act. (280) The government argued that defendant’s plea of guilty to the indictment charging a drug conspiracy and alleging gun possession as an overt act conclusively proved all factual allega­tions of the indictment. The Ninth Circuit disagreed, holding that a plea to a conspiracy charge under 18 U.S.C. § 846 does not admit conduct alleged as an overt act, but only admits facts constituting the elements of the crime. The court drew this conclusion from decisions holding that allegations not necessary to be proved for a conviction—in this case the overt acts—are not admitted by a plea. Moreover, to attribute to a defendant an admission that was never subject to a plea colloquy under Fed. R. Crim. P. 11 would undermine the rule’s prophylactic purposes. The court recognized that other circuits have on occasion treated guilty pleas as admitting factual allegations outside the elements of the charge, but they declined to follow these cases. U.S. v. Cazares, 121 F.3d 1241 (9th Cir. 1997).

 

9th Circuit holds co-conspirator is vicariously liable for firearm use in drug crime. (280) In Bailey v. U.S., 116 S.Ct. 501, 505, the Supreme Court held that 18 U.S.C. § 924(c)(1) “requires evidence sufficient to show an active employment of the firearm by the defendant.” Based on this sentence, defendant argued that Bailey overruled Pinkerton v. U.S., 328 U.S. 640, 647-48 (1946), which held that a co-conspirator is vicariously liable for reasonably foreseeable substantive crimes com­mit­ted by a co-conspirator in furtherance of the conspiracy. The Ninth Circuit found it “unlikely in the extreme” that the Supreme Court intended to overrule Pinkerton sub silentio. Thus, a co-con­spir­ator remains subject to vicarious liability for the use of a gun in a drug trafficking crime. In this case defendant could reasonably have foreseen that one of the participants would carry a firearm because, in similar earlier transactions, he himself had carried a gun. U.S. v. Fonseca-Caro, 114 F.3d 906 (9th Cir. 1997).

 

9th Circuit says entrapment may bar two-level increase for gun in drug crime. (280) The undercover informant traded a handgun to defendant for 1.4 grams of cocaine. Later that day, police executed a search warrant and found the gun and additional cocaine. A 924(c) count was dismissed as part of a plea bargain, but at sentencing, the court imposed a two-level enhancement under § 2D1.1(b)(1) for possession of a gun during a drug trafficking crime. Defendant argued that he had been entrapped by the informant into possessing the gun. The district judge rejected the argument and applied the enhancement. On appeal, the Ninth Circuit reversed and remanded to the district court to reconsider the evidence relating to defendant’s sentencing entrapment claim. If the defendant could show by a preponderance of the evidence that he was entrapped into possessing the gun, the two level increase could not be imposed. U.S. v. Parrilla, 114 F.3d 124 (9th Cir. 1997).

 

9th Circuit holds cross-references in 2K2.1 depend on whether gun was merely “present” or “actually used.” (280) Defendant was convicted of using and carrying a firearm in relation to drug trafficking in violation of 18 U.S.C. § 924(c)(1). The applicable guideline is § 2K2.1. Subsection (c)(1)(A) provides a cross-reference if the firearm was used or possessed “in connection with the commission” of another offense. And subsection (b)(5) provides for a four level increase if the firearm was used or possessed “in connection with” another felony offense. The Ninth Circuit found no ambiguity between these two sections that would require application of the rule of lenity. Instead, the court held that the difference in wording suggests that “only subsection (b)(5) be applied when firearms are merely present in connection with another offense, and that subsection (c)(1)(A) also be applied when firearms are actually used in connection with the commission of another offense.” (emphasis added) The case was remanded for an evidentiary hearing on the “connection” between the firearms and the drug trafficking offenses. Judge Rymer concurred in the judgment. U.S. v. Myers, 112 F.3d 406 (9th Cir. 1997).

 

9th Circuit bars “successive” 2255 motion chal­lenging “use” of gun under Bailey. (280) Under the Anti-Terrorism and Effective Death Penal­ty Act of 1996, a successive 2255 motion cannot be considered unless it is certified by a three-judge panel of the court of appeals to contain either newly discovered evidence of inno­cence or “a new rule of con­sti­tutional law, made retroactive to cases on collateral review by the Supreme Court.” In this successive § 2255 motion, petitioner argued that his conviction for using or carrying a firearm in violation of 18 U.S.C. § 924(c)(1) was invalid under Bailey v. U.S., 116 S.Ct. 501 (1995). The Ninth Circuit pointed out, however, that “Bailey an­nounc­ed only a new statutory inter­pretation, not a new rule of consti­tutional law.” Although some courts have made Bailey retroactive to cases on collateral review, see, e.g. U.S. v. Barnhardt, 93 F.3d 706, 708-09 (10th Cir. 1996), “that decision has not yet been made by the Supreme Court, as required by the amended § 2255.” The panel expressed “no opinion” as to whether petitioner may obtain relief by way of habeas corpus, 28 U.S.C. § 2241, or the All Writs Act, 28 U.S.C. § 1651. “[T]hose remedies, if they are available, must be sought first in the district court.” U.S. v. Lorentsen, 106 F.3d 278 (9th Cir. 1997).

 

9th Circuit says waiver of appeal did not waive jurisdictional defect in in­dictment. (280) Defendant pled guilty to violating 18 U.S.C. § 924(c)(1) and waived the right to appeal. Neverthe­less, he filed a notice of appeal and ar­gued that the indictment was defective because it did not allege that he used or carried a firearm during and in relation to the drug trafficking offense. The Ninth Circuit held that his waiver of appeal did not waive this defect be­cause the district court would be de­prived of jurisdiction if the indictment failed to state an offense. However, on the merits the court found the indict­ment was sufficient because the head­ing charged him with “use or carry of a firearm,” and referred to the statute, 18 U.S.C. § 924(c) which includes “use” and “carry.” This gave defendant notice of the elements of the offense even though the body of the indictment only stated that defendant “did possess” a firearm. U.S. v. Ruelas, 106 F.3d 1416 (9th Cir. 1997).

 

9th Circuit applies mandatory minimum even though assault weapon was unloaded and inoperable. (280) During a robbery of a credit union, one defendant was armed with a semi-automatic assault weapon that was unloaded and inoperable because the firing pin was pulled forward and bent. The district court imposed the ten year penalty in 18 U.S.C. § 924(c). On appeal, the Ninth Circuit affirmed, finding nothing in the language of 924(c) requiring the semi-automatic assault weapon to be loaded or operable. In construing the statute, the court assumed the legislative purpose was expressed by the ordinary meaning of the words used. Moreover, as a matter of statutory construction, the court presumed that “Congress is knowledgeable about existing law pertinent to the legislation it enacts,” noting that before the 1994 amendment added the ten year enhance­ment, many circuits had already applied other enhancement provisions of § 924(c) to unloaded and inoperable firearms. U.S. v. Hunter, 101 F.3d 82 (9th Cir. 1996).

 

9th Circuit remands for 2-level increase for gun under 2D1.1(b)(1) after reversing 924(c) count. (280) Because defendants were subject to separate consecutive sentences for using or carrying a firearm under 18 U.S.C. 924(c), their sentences were not enhanced by two levels for possessing a firearm in a drug trafficking offense under guideline section 2D1.1(b)(1). See Applica­tion Note 2 to guideline section 2K2.4. However, the Ninth Circuit held that because it was reversing their 924(c) con­victions, it would be appropriate for the district court on remand to consider apply­ing the 2-level enhancement under 2D1.1. Accordingly, the case was remanded with instructions for the district court to consider, on resentencing, whether an increase under 2D1.1(b)(1) was warranted. U.S. v. Lopez, 100 F.3d 98 (9th Cir. 1996).

 

9th Circuit says pistol in codefendant’s purse near drugs was “carried” in relation to drug sale. (280) Two defendants drove their pickup truck to a parking lot to conduct a pre-arranged drug sale with undercover DEA agents. After they sold the drugs, they were arrested and the truck was searched. Agents found a loaded .38 caliber super semi-automatic pistol inside the co-defen­dant’s purse. The purse was on the front passenger seat, within easy reaching distance of the defen­dants, and less than a foot away from the 270 grams of heroin. The Ninth Circuit held that the evidence was sufficient to support the conviction under 18 U.S.C. § 924(c) because the court instructed the jury under Pinkerton v. U.S., 328 U.S. 640, 648-49 (1946) that each coconspirator was vicariously liable for all acts taken by the other conspirator in furtherance of the conspiracy. U.S. v. Lopez, 100 F.3d 98 (9th Cir. 1996).

 

9th Circuit says offense was “non-violent” de­spite possession of firearm. (280) Under 18 U.S.C. § 3621(e)(2)(B), a prisoner “con­vict­ed of a non-violent offense” may have his sen­tence reduced for participating in a substance abuse treatment program in prison. In this case, defendant completed the program but was denied a reduction, because his sentence had been enhanc­ed under U.S.S.G. § 2D1.1(b)(1) for pos­session of a dangerous weapon in a drug offense. The Ninth  Circuit held that defendant was entitled to the credit because the enhancement was not a “convic­tion.” Under U.S. v. Cantu, 12 F.3d 1506, 1513 (1993) mere possession of a firearm by a felon is not a crime of violence for purposes of eligibility for a downward departure under § 5K2.13. Moreover, the Commission itself stated in § 4B1.2, application note 2, that the term “crime of violence” does not include the offense of unlawful possession of a firearm by a felon. Finally, in Taylor v. U.S., 495 U.S. 575 (1990), the Supreme Court required the trial court to look only to the fact of conviction and the statutory definition of the prior offense in deciding whether a prior burglary constituted a “conviction of a violent felony.” Downey v. Crabtree, 100 F.3d 662 (9th Cir. 1996).

 

9th Circuit holds firearm is “carried” in relation to crime if it “emboldens” the defen­dant. (280) The Ninth Circuit held that it is proper to instruct the jury that “a firearm is carried in relation to an offense if the firearm facilitated or had a role in the crime, such as emboldening or instilling boldness or courage in an actor who had the opportunity or ability to display or discharge the firearm to protect himself or to intimidate others, whether or not such display or discharge actually occurred.” After Bailey v. U.S., 116 S.Ct. 501 (1995), one cannot be convicted of using a firearm simply because the firearm emboldened him. But the carry element of 18 U.S.C. § 924(c) is satisfied if the firearm emboldens the defendant. In a footnote, the court noted that the instruction defined “in relation to,” but did not define “carried.” Since defendant did not object, the court expressed no view on whether the word “carry” is so well-understood that no separate definition is required. U.S. v. Loaiza–Diaz, 96 F.3d 1335 (9th Cir. 1996), disapproved of by U.S. v. Foster, 165 F.3d 869 (9th Cir. 1999).

 

9th Circuit says Bailey’s interpreta­tion of “use” of firearm applies equally to sentencing guidelines. (280) In Bailey v. U.S., 116 S.Ct. 501 (1995), the Supreme Court held that to be convicted of “using” a firearm during a drug trafficking offense in violation of 18 U.S.C. § 924(c), the defendant must “actively employ” the firearm. Here, the Ninth Circuit concluded that Bailey’s narrow interpretation applied equally to the term “use” under guideline § 2K2.1(b)(5). Since the gun in this case was not actively used by the defendant in his marijuana sales, his sentence should not have been enhanced for use of the firearm. Nevertheless, the Ninth Circuit found that he “possessed” the handgun in his car in connection with the sale of marijuana and therefore the four level enhancement was proper on the “possession” prong even though it could not be sustained on the “use” prong. U.S. v. Polanco, 93 F.3d 555 (9th Cir. 1996).

 

9th Circuit upholds 924(c) firearm statute against Commerce Clause challenge. (280) In U.S. v. Lopez, 115 S.Ct. 1624 (1995), the Supreme Court held that 18 U.S.C. § 922(q)(2)(A), which prohibited “any individ­ual knowingly to possess a firearm at a place that the individual knows or has reasonable cause to believe, is in a school zone,” violated the Commerce Clause. Rely­ing on Lopez, the defendant in this case argued that 18 U.S.C. § 924(c), which prohibits using and carrying a firearm during a drug transaction, also violated the Commerce Clause. The Ninth Circuit rejected the argument, noting that unlike the educational activities involved in Lopez, “drug traf­fick­ing is a commercial activity which substan­tially affects interstate commerce.” The court thus agreed with the Eighth Circuit’s decision in U.S. v. Brown, 72 F.3d 96 (8th Cir. 1995). Even though the defen­dant here was never actually charged with the underlying drug offense, the jury found that he had engaged in a crime of drug trafficking which could have been prosecuted in federal court. U.S. v. Staples, 85 F.3d 461 (9th Cir. 1996).

 

9th Circuit says silencer must play some role in drug crime for enhance­d sentence to apply. (280) In Bailey v. U.S., 516 U.S. 137 (1995), the Supreme Court held that the enhanced penalties in 18 U.S.C. § 924(c)(1) for using a firearm during and in relation to a drug trafficking offense do not apply unless the defendant “actively employed” the firearm. Here, a silencer was found in defendant’s closet after he was arrested for shooting a man during a drug deal. Judges Wright, Browning and Canby held that “at a minimum, the silencer must have played some role in the predicate drug trafficking crime in order for [defendant] to be subjected to the 30-year penalty for using a firearm equipped with a silencer.” Under the facts in this case, the enhanced penalty for using the silencer would apply only if the silencer had been actually attached to the gun. Since it was not, the enhanced penalty was reversed. U.S. v. Thompson, 82 F.3d 849 (9th Cir. 1996).

 

9th Circuit says gun is used “in connection with” a felony when it facilitates or emboldens defendant. (280) Section 2K2.1(b)(5) provides for a four level enhancement if the defendant possesses a firearm or ammunition “in connection with” another felony offense. The 9th Circuit interpreted this language to require a higher showing than in drug cases under §2D1.1(b)(1) which requires the government to prove “merely” that the defendant possessed a firearm, unless the defendant can show that it was clearly improbable that the firearm was “connected with” an offense. Thus, the court in this case held that “the prosecution will have to make a greater showing than a defendant’s mere possession of a firearm to obtain a §2K2.1(b)(5) enhancement.” Instead, the government 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. The court thus agreed with the 10th Circuit and disagreed with the 5th Circuit. In this case, since the defendant kept the firearm in the glove compartment of the stolen car, the district court properly found that the gun facilitated and emboldened him to continue his illegal conduct. U.S. v. Routon, 25 F.3d 815 (9th Cir. 1994).

 

9th Circuit applies weapon enhancement to offense level for aggravated drug quan­tity. (280) Defendant argued that because no weapon was present when he was arrested for the crime charged in count I, the weapon en­hancement could not be applied to that drug quantity.  The 9th Circuit rejected the argu­ment, noting that the commentary to guide­line section 3D1.3(b) (Nov. 1991), states: “Determine whether the specific offense char­acteristics [e.g., the weapons enhancement of U.S.S.G. section 2D1.1(b)] . . . apply based upon the combined offense behavior taken as a whole.” Thus, the district court “did not err in applying the two level enhancement to the offense level corresponding to the aggravated drug quantity.” U.S. v. Cueto, 9 F.3d 1438 (9th Cir. 1993).

 

9th Circuit says sentence must be based on most dangerous weapon used in drug offense. (280) Following the 6th and 10th Circuits, the 9th Circuit held that where de­fendant is convicted under 18 U.S.C. § 924(c)(1) for using both a handgun and a machine gun in relation to the same drug traf­ficking offense, he must be sentenced for the most dangerous weapon, i.e. the machine gun.  He cannot be sentenced for both guns, because under U.S. v. Smith, 924 F.2d 889, 894 (9th Cir. 1991), “each 924(c)(1) count must be supported by a separate predicate offense.”  The court held that where as here, the defendant is charged for using different types of weapons in connection with the same underlying drug offense, the district court should either (1) submit separate counts un­der section 924(c)(1) to the jury, and, if there is more than one conviction, merge those convictions after the trial, or (2) submit one section 924(c)(1) charge to the jury with spe­cial interrogatories requiring the jury to specify which weapon or weapons, the defen­dant used or carried.  U.S. v. Martinez, 7 F.3d 146 (9th Cir. 1993).

 

9th Circuit finds guns seized before drug offense not connected, but gun at house justified increase. (280) Defendant was convicted of two substantive cocaine distribu­tion counts, both of which occurred after de­fendant had been arrested in possession of two shotguns.  Agents also found a firearm at defendant’s residence after his arrest on the drug offenses.  The Ninth Circuit found it was improper to rely on the shotguns seized be­fore the substantive drug offenses to increase the offense level under §2D1.1(b)(1).  Defen­dant was not charged with conspiracy and could not have “possessed” the seized guns at the time of the substantive offenses.  How­ever, the shotgun found at defendant’s house at the time of his later arrest for the drug of­fenses justified the increase.   U.S. v. Pitts, 6 F.2d 1366 (9th Cir. 1993).

 

9th Circuit upholds firearms enhancement even though no firearms were charged in indictment. (280) The plea agreement stated that the government would not file a firearms charge based on the guns found when defen­dant was arrested, and the government did not do so.  However, the 9th Circuit held that this did not preclude the sentencing court from using the firearms possession to en­hance defendant’s sentence.  U.S. v. Roberts, 5 F.3d 365 (9th Cir. 1993).

 

9th Circuit says mandatory sentence for possess­ing weapon in drug crime is not cruel and un­usual. (280) The district court ruled that a thirty-year consecutive prison term for possessing a machine gun during a drug crime was cruel and un­usual punish­ment. The government appealed, and the 9th Cir­cuit reversed.   The court held that drugs and guns are a major societal ill, and manda­tory consecutive sentences are consistent with the eighth amend­ment.  However, the court rejected the gov­ernment’s argument that separate mandatory consec­utive sen­tences were required for each weapon.  The court ruled that each section 924(c) charge must be based on a separate predicate of­fense.  Here, while there were two weapons, there was only one drug crime.  Defendant’s sentence was va­cated and the case was re­manded for re­sentencing.  U.S. v. Mar­tinez, 967 F.2d 1343 (9th Cir. 1992).

 

9th Circuit holds parties cannot bargain away court’s right to consider use of firearm in drug offense. (280) The 9th Circuit said that the government’s deci­sion not to seek a super­seding indictment charging defendant with pos­session of a firearm in violation of 18 U.S.C. § 924(c) is an “entirely different matter” from precluding the court from considering the weapon as a specific offense characteristic.  Defendant successfully bargained as to the first but not as to the second.  “Indeed, the govern­ment could not bargain away the district court’s duty to consider all relevant facts in applying the sentencing guidelines.” Here the district court’s consideration of the weapon was en­tirely appropriate, as defendant knew that one of his codefendant’s possessed it.  U.S. v. Flo­res-Payon, 942 F.2d 556 (9th Cir. 1991).

 

9th Circuit looks beyond the crime of convic­tion in im­posing firearm enhancement. (280) The 9th Circuit stated that it was bound by the language of guideline § 1B1.3(a)(2) which says that specific offense characteristics “shall be determined on the basis of .ÿ.ÿ. all acts and omis­sions that were part of the same course of conduct or com­mon scheme or plan as the offense of conviction.”  Thus the court held that “for purposes of the firearm en­hancement” the dis­trict court properly looked to all of the offense con­duct, not just the crime of conviction.  Distinguishing other cases, the court said that it has never required that guns and drugs be found in proximity to each other, in order to sup­port a firearm enhancement.  It must only be shown that the defen­dant “possessed the guns during the commission of the of­fense, and that it is not clearly improba­ble that the guns were connected with the of­fense.”  U.S. v. Willard, 919 F.2d 606 (9th Cir. 1990).

 

9th Circuit upholds constitutionality of manda­tory mini­mum sentence for using a firearm in drug traf­ficking. (280) Defendant argued that the mandatory minimum 5 year sentence for using or carrying a firearm during a drug trafficking crime in violation of 18 U.S.C. § 924(c)(1), was unconstitution­ally overbroad and violated the doctrine of separation of powers.  The 9th Circuit rejected these arguments, ruling that defendant’s con­duct in attempting to sell a pound of heroin while carrying a loaded, cocked firearm was “not even arguably Constitutionally protected.”  More­over, Congress’s es­tablishment of mandatory minimum penalties for drug traf­ficking offenses does not vio­late the doctrine of sepa­ration of powers. The court also held that conspiracy to possess a controlled substance with intent to distribute constituted “drug traf­ficking” within the meaning of 18 U.S.C. § 924(c)(2).  U.S. v. Chaidez, 916 F.2d 563 (9th Cir. 1990).

 

9th Circuit upholds constitutionality of 5-year manda­tory sentence for use of gun in drug trafficking. (280) De­fendant argued that the 5-year mandatory sentence provision of 18 U.S.C. § 924(c)(1) violated the Fifth Amendment due process clause and the Eighth Amendment prohibition against cruel and un­usual pun­ishment.  He also argued that the section was unconsti­tutional because it pre­cludes the ex­ercise of discretion by the district court.  The 9th Circuit re­jected each of these arguments.  The court held that the de­fendants “do not have a constitutional right to individu­alized sen­tences,” and that many other courts had upheld the 5-year mandatory minimum sentence against Eighth Amendment chal­lenge.  U.S. v. Wilkins, 911 F.2d 337 (9th Cir. 1990).

 

9th Circuit rejects 11th Circuit’s Pinkerton test for determin­ing enhancement for cocon­spirator’s firearms pos­ses­sion. (280) In U.S. v. Otero, 890 F.2d 366 (11th Cir. 1989), the 11th Circuit established a three-part test for deter­mining the propriety of enhancing the defen­dant’s sentence based on a coconspirator’s firearms pos­session.  The 9th Circuit reject­ed this test on the ground that it dispensed with the requirement of rea­sonable foreseeability and relied on an erroneous interpre­tation of Pinkerton v. U.S., 328 U.S. 640 (1946).  “More im­portant, in relying on Pinkerton liability, the 11th Cir­cuit’s opinion in Otero ignored the fact that co­con­spirator liability for the purpose of sentence enhance­ment has been dealt with ex­plicitly in the guidelines.”  The court held that the commentary to U.S.S.G § 1B1.3 “makes clear that reasonable foreseeability is a prerequisite to sentence en­hancement on the basis of acts of a coconspirator.”  U.S. v. Gar­cia, 909 F.2d 1346 (9th Cir. 1990).

 

9th Circuit rules additional sentence for use of firearm in connection with drug trafficking must be consecutive. (280)  De­fendant pled guilty to receiving, while a felon, a firearm shipped in interstate commerce, 18 U.S.C. § 922(g)(1) and to drug trafficking with a firearm, 18 U.S.C. § 924(c)(1).  In a per curiam opinion, the court rejected the defen­dant’s contention that concur­rent sentences should be allowed because of ambiguity in § 924(c)(1).  The court held that the statute clearly re­quired a sentence in addition to and consecu­tive with any sentence for the underly­ing crime of vio­lence or drug trafficking.  U.S. v. Hunter, 887 F.2d 1001 (9th Cir. 1989).

 

9th Circuit holds conviction for use of a firearm in drug trafficking does not require separate conviction for traf­ficking. (280) De­fendant pled guilty to and was con­victed of drug traf­fick­ing with a firearm under 18 U.S.C. § 924(c)(1).  He was not, however, con­victed of any drug trafficking offense.  In a per curiam opinion, the court rejected the defen­dant’s contention that he could only be sen­tenced under § 924(c)(1) if he had first pled guilty to or been convicted of the underly­ing crime.  The statute defines a separate crime and is not merely an en­hancement.  De­fendant admitted pos­sessing 88 grams of co­caine and trafficking in the drug.  The govern­ment proffered corroborating evidence.  Defen­dant pled guilty.  The drug trafficking el­ement of the offense was therefore sufficiently proven to convict.  U.S. v. Hunter, 887 F.2d 1001 (9th Cir. 1989).

 

10th Circuit holds that weapon possession for § 2D1.1(b)(1) purposes did not bar safety valve relief. (280) Searching the home of a murder victim, police found drugs, five firearms and cash. A loaded handgun was found in the bedroom where defendant, who had spent the night, was lodging. He admitted selling drugs for the murder victim, and stipulated in his plea agreement that a § 2D1.1(b)(1) enhancement for possession of a firearm was appropriate. The Tenth Circuit held that the court’s finding that defendant possessed a dangerous weapon for purposes of § 2D1.1(b)(1) did not bar him from receiving safety valve protection under § 5C1.2. Although a defendant who “possess[es]” a firearm “in connection with the offense” is ineligible for safety valve protection, the word “possessed” is used in two different senses in the two different provisions. Under § 2D1.1(b)(1), the government need only show that the weapon was found at the same location where drugs were stored, while § 5C1.2(2) is written in the active voice, mandating that possession be “in connection with the offense.” Thus, the scope of activity covered by § 2D1.1 is broader than the scope of activity covered by § 5C1.2. U.S. v. Zavala-Rodriguez, 379 F.3d 1182 (10th Cir. 2004).

 

10th Circuit holds Apprendi does not bar firearm increase under § 2D1.1(b)(1). (280) The Tenth Circuit noted that the enhancement in § 2D1.1(b)(1) for possession of a firearm does not increase the penalty beyond the statutory maximum and therefore need not be proved as an element of the offense. Accordingly, Apprendi v. New Jersey, 530 U.S. 466 (2000) does not preclude this guideline enhancement. U.S. v. Alexander, 292 F.3d 1226 (10th Cir. 2002).

 

10th Circuit does not require resentencing on drug count when gun count is vacated. (280) Defendant was originally convicted of drug charges and using firearms during a drug trafficking crime. After the Supreme Court decided Bailey v. U.S., 516 U.S. 137 (1995), defendant moved under § 2255 to vacate his § 924(c) convictions. The district court vacated the § 924(c) convictions but refused to resentence defendant on the underlying drug count. On appeal, the Tenth Circuit affirmed. Under U.S. v. Mendoza, 118 F.3d 707 (10th Cir. 1997), a district court has authority to resentence a defendant after vacating a § 924(c) conviction. The district court did not misunderstand that discretion. The court, adopting the magistrate judge’s recommendations, found that resentencing was neither “required nor appropriate.” This language indicated the court simply declined to exercise its discretionary authority to resentence. U.S. v. Pearce, 146 F.3d 771 (10th Cir. 1998).

 

10th Circuit rules that after vacating gun count, court can resentence on drug counts. (280) Defendant was originally convicted of drug and firearms counts. He successfully petitioned under § 2255 to vacate the § 924(c) firearm conviction in light of Bailey v. U.S., 116 S.Ct. 501 (1995). The Tenth Circuit, joining seven other circuits, held that a district court has authority in such a situation to resentence a defendant on the unchallenged but related convictions. Once the court determined that defendant was entitled to § 2255 relief from his § 924(c) conviction, the court was obligated to set aside the judgment, which encompassed both convictions and sentences. Resentencing did not upset a legitimate expectation of finality. Because he challenged one of several interdependent sentences in his § 2255 motion, defendant did not have a legitimate expectation of finality in the related, but unchallenged sentence. U.S. v. Mendoza, 118 F.3d 707 (10th Cir. 1997).

 

10th Circuit says “set aside” means “vacate” or “resentence” on remand. (280) Defendant was convicted of drug and firearms charges. Following remand from the Supreme Court, the Tenth Circuit reversed the firearm conviction in light of Bailey v. U.S., 116 S.Ct. 501 (1995), and remanded with directions to “set aside” the conviction and sentence. On remand, the district court vacated the firearm sentence but then enhanced the drug sentence under § 2D1.1(b)(1). Defendant argued on appeal that the language “set aside” in the remand order precluded the district court from reconsidering the § 2D1.1 (b)(1) enhancement and violated the mandate. The Tenth Circuit held that the words “set aside” are equivalent to the words “vacate” or “resentence” on remand. Once the sentence on the firearms charge is “set aside” the district court is no longer prohibited from considering appropriate enhancements on the remaining drug count. The provisions of the guidelines operate interdependently. Precluding the district court from reconsidering the entire sentencing package after one count of conviction is vacated would be inconsistent with the purposes and structure of the guidelines. U.S. v. Smith, 116 F.3d 857 (10th Cir. 1997).

 

10th Circuit allows 2D1.1(b) gun enhance­ment after reversing 924(c) con­viction. (280) Defendant was convicted of carrying or using a firearm during and in relation to a drug trafficking crime in violation of 18 U.S.C. § 924(c). The Tenth Circuit reversed the conviction based on insufficient evidence, but remanded the case to the district court for resentencing. On remand, the court may consider the applicability of a sentence enhancement under § 2D1.1(b)(1) for use of a gun in a drug crime. Prior cases have held that the enhancement may be applied even when the defendant is acquitted of a § 924(c) charge, and there is no reason to treat an appellate reversal for insufficient evidence any differently. U.S. v. Lang, 81 F.3d 955 (10th Cir. 1996).

 

10th Circuit remands for statement of rea­sons for imposing firearm en­hancement. (280) The district court imposed an en­hancement under section 2D1.1(b)(1) for possessing a firearm during a drug trafficking crime, but over objection, failed to make any oral or written findings to support the enhance­ment.  Although the court stated it would prepare a short written ruling on each of defendant’s objec­tions, it never did.  The 10th Circuit remanded for the court to state its reasons for attributing a weapon to defen­dant.  Under 18 U.S.C. section 3553(c), the district court must make a generalized state­ment of its rea­sons for imposing a particular sentence so that the appellate court does not “flounder in the zone of speculation.”  A highly detailed statement is not nec­essary for re­view, but the appellate court must be able to tie the court’s sentencing decision to a factual basis in the record to be assured that basis meets the proper legal standard underpin­ning the enhance­ment.  A statement accepting the presentence report as corrected is in­sufficient.  U.S. v. Slater, 971 F.2d 626 (10th Cir. 1992).

 

10th Circuit affirms that court may not depart be­low mandatory minimum sen­tence for firearm of­fense. (280) Defendant was con­victed of carry­ing a firearm during a drug trafficking crime in viola­tion of 18 U.S.C. section 924(c)(1). The district judge found the minimum sentence mandated by statute to be unduly harsh, but found he lacked discretion to depart below it.  The 10th Circuit af­firmed, holding that the district court lacked author­ity to depart be­low the mandatory minimum sen­tence.  U.S. v. Mosley, 965 F.2d 906 (10th Cir. 1992).

 

10th Circuit applies prior version of § 2D1.1(b)(1) to avoid ex post facto problem. (280) Guideline § 2D1.1(b)(1) enhances a defendant’s sen­tence if the defen­dant pos­sessed or used a firearm during the course of a drug trafficking crime.  The 10th Circuit found it was necessary to apply the 1988 version of guideline § 2D1.1(b)(1) in effect at the time defendant committed his drug crimes in order to avoid an ex post facto problem.  It agreed with other circuit courts that the 1988 version of the guideline required a finding of scienter in order to enhance a defendant’s sen­tence, while the amended guideline, effective in November of 1989, deleted this requirement.  “Given the decreased burden of the govern­ment, we have little trouble concluding that retroactive application of the changed guide­line would disad­vantage defendant in this case.”  U.S. v. Under­wood, 932 F.2d 1049 (2nd Cir. 1991).

 

10th Circuit remands because district court failed to pro­vide adequate statement of rea­sons. (280) The district court adopted the pre­sentence report without making any specific findings.  The 10th Circuit remanded for resentenc­ing and an adequate statement of reasons as required by 18 U.S.C. § 3553(c).  The presentence report included a two level enhancement under § 2D1.1(b)(1) for posses­sion of a firearm during a drug traf­ficking crime.  However, the en­hancement may be based on either the defen­dant’s own possession or the reasonable fore­seeability of a co-de­fendant’s possession.  Al­though a district court need not make particu­larized findings for guidelines adjustments, the court must at a minimum make a finding that the require­ments for the adjustment have been satisfied.  Here, the ap­pellate court could not determine whether the firearms en­hancement resulted from the weapons found in defen­dant’s truck or found on the farms or both, or whether the district court applied the correct legal standard.  U.S. v. Under­wood, 932 F.2d 1049 (2nd Cir. 1991).

 

11th Circuit says firearm increase does not auto­matically bar safety valve relief. (280) One of the criteria for safety valve relief under 18 U.S.C. 3553(f) and U.S.S.G. § 5C1.2 is that the defendant “not … possess a firearm … in connection with the offense.” The Eleventh Circuit held that not all defendants who receive a § 2D1.1(b)(1) firearm enhancement are precluded from safety valve relief. Section 2D1.1 imposes an enhance­ment if “a weapon was possessed,” not if “a weapon was possessed in connection with the offense.” Where a fire­arm was possessed by the defendant personally, and the defendant also seeks safety valve protection, the district court must determine whether there is a connection between the firearm and the offense. The panel held that a defendant possesses a firearm “in connection with a drug offense” if the firearm is in proximity to drugs or if the firearm facilitated the drug offense, whether by emboldening an actor, by serving as an integral part of a drug transaction, by instilling confidence in others, or serving as a “badge of office.” A “connection” is shown by less evidentiary proof than is required to show pos­session “in furtherance of” a drug offense. U.S. v. Carillo-Ayala, 713 F.3d 82 (11th Cir. 2013).

 

11th Circuit upholds resentencing on drug counts after successful § 2255 challenge to gun counts. (280) Defendants successfully challenged their firearms convictions under § 2255 on the ground that the weapons were not actively employed during the crimes. After vacating the firearms sentences, the district court sua sponte applied a § 2D1.1(b)(1) firearm enhancement to defendants’ remaining drug counts. The Eleventh Circuit, agreed with the Third, Fourth, Seventh and Ninth Circuits that the district court has authority under § 2255 to resentence on a drug count after a prisoner has successfully challenged a § 924(c) conviction. The § 924(c) conviction and the § 2D1.1(b)(1) enhancement are interdependent because they are mutually exclusive. Section 2255 grants a district court broad flexible power to recalculate a defendant’s entire sentence. Resentencing did not violate the double jeopardy clause or defeat defendants’ expectations of finality. U.S. v. Mixon, 115 F.3d 900 (11th Cir. 1997).

 

11th Circuit finds mandatory minimum sen­tence does not violate due process. (280) 18 U.S.C. § 924(c)(1) requires that an indi­vidual convicted of using a firearm dur­ing a drug trafficking offense or crime of vi­olence receive a five year sentence.  Defendant con­tended that this violated due process by de­priving him of the right to receive an indi­vidualized sentence.  The 11th Circuit rejected this argu­ment, noting that a defendant who commits a non-capital offense generally has no right to re­ceive an individualized sentence.  The court also found that a mandatory sen­tence was neither arbi­trary nor capricious, since the use of weapons during a drug traf­ficking offense or crime of vio­lence increases the likelihood of harm to inno­cent persons.  U.S. v. Grinnell, 915 F.2d 667 (11th Cir. 1990).

 

D.C. Circuit permits resentencing on drug counts after vacating § 924(c) conviction under § 2255. (280) In U.S. v. Rhodes, 106 F.3d 429 (D.C. Cir. 1997), the D.C. Circuit held that 28 U.S.C. § 2106 authorizes a district court to apply a § 2D1.1(b)(1) enhancement to a defendant who successfully challenges a § 924(c) conviction on direct appeal. Here, the D.C. Circuit held that the court has jurisdiction to apply the enhancement to a defendant who successfully challenges a § 924(c) conviction under 28 U.S.C. § 2255. Every circuit to consider the issue has approved application of § 2D1.1(b)(1) to a defendant who has had his conviction vacated under § 2255. The reasoning has varied, but the outcome is compelled by the complete interdependence and mutual exclusivity of the two provisions. The court also rejected defendants’ double jeopardy and substantive due process claims. U.S. v. Morris, 116 F.3d 501 (D.C. Cir. 1997).

 

D.C. Circuit remands for gun enhance­ment after vacating § 924(c) conviction. (280) Defen­dant was convicted of drug and firearms charges. The Supreme Court vacated his § 924(c) conviction in light of Bailey v. U.S., 116 S.Ct. 501 (1995). The D.C. Circuit held that 28 U.S.C. § 2106 gave it authority to remand the drug sentences for resen­tenc­ing with a firearm enhancement under § 2D1.1(b)(1) after vacating the § 924(c) conviction. If the jury had acquitted defendant on the § 924(c) count, and defendant met the requirements of § 2D1.1(b)(1), the district court would have been required to apply the enhance­ment. Although the statute that governs a court’s authority to modify a sentence, 18 U.S.C. § 3582, does not by its terms address this situation, section 2106 provides that an appellate court may modify or reverse any judgment and may remand the case and direct the entry of an appropriate judgment or require such further proceedings “as may be just under the circumstances.” On the facts of this case, it was “just under the circumstances to remand.” U.S. v. Rhodes, 106 F.3d 429 (D.C. Cir. 1997).

 

D.C. Circuit remands after reversing §924(c) gun count to permit §2D1.1(b)(1) increase. (280) Defendant’s convictions for using a firearm during a drug trafficking crime in violation of 18 U.S.C. § 924(c) were reversed in light of Bailey v. U.S., 116 S.Ct. 501 (1995). The D.C. Circuit remanded for resen­tenc­ing so that the government could seek an enhancement of the offense levels on the drug offenses under § 2D1.1(b)(1) based on the presence of guns in the trunk. U.S. v. Catlett, 97 F.3d 565 (D.C. Cir. 1996).

 

D.C. Circuit holds only one 924(c) violation may be charged for each predicate drug offense. (280) 18 U.S.C. § 924(c) requires a consecutive five-year sentence for using or carrying a firearm during and in relation to a drug trafficking crime. A “second or subsequent conviction” requires a 20-year sentence. In Deal v. U.S., 113 S.Ct. 1993 (1993), the Supreme Court held that the phrase “second or subsequent conviction” includes multiple convictions in the same prosecution. Thus, a defendant convicted of carrying two firearms could be sentenced to 25 years consecutive. In the present case, defendant was convicted of using four different firearms in relation to the same drug conspiracy. On a 6-5 vote, the en banc D.C. Circuit held that the government may charge only one 924(c) violation for each predicate drug offense. The court thus reversed three of defendant’s 924(c) convictions. Most circuits agree, but the Eighth Circuit has held that the number of 924(c) convictions depends on the number of guns used, not the number of drug offenses. U.S. v. Anderson, 59 F.3d 1323 (D.C. Cir. 1995) (en banc).

 

D.C. Circuit holds that each use of gun requires separate underlying predicate con­viction. (280) Defendant was convicted of a drug conspiracy and four counts of using and carrying a firearm in relation to a drug trafficking conspiracy. The district court sentenced him to five years for each § 924(c) offense, the sentences to run consecutively. Defendant argued that multiple sentences for multiple violations of § 924(c)(1) linked to the same conspiracy charge violated the statute. The en banc D.C. Circuit agreed, holding that a defendant may be con­victed of only one 924(c) count for each under­lying crime of violence or drug trafficking crime. U.S. v. Anderson, 59 F.3d 1323 (D.C. Cir. 1995) (en banc).

 

D.C. Circuit holds enhancement for posses­sion of gun dur­ing drug offense requires proof of scienter. (280) The D.C. Circuit vacated a drug defendant’s sentence, holding that the District Court improperly enhanced his offense level under § 2D1.1(b) without a showing of scien­ter.  Under § 2D1.1(b), the gov­ernment must show that the defendant inten­tionally, recklessly or negligently possessed the weapon.  Possession without proof of knowl­edge requires that it be shown that the defen­dant was reckless or criminally negli­gent in pos­sessing the weapon.  This will be estab­lished when the defendant has di­rect physical control of the weapon and fails to take rea­sonable steps that would have disclosed the weapon.  The case was remanded for further pro­ceedings.  U.S. v. Burke, 888 F.2d 862 (D.C.Cir. 1989).

 

Commission emphasizes that relevant conduct sec­tion applies to possession of a dangerous weapon in a drug offense.  (280) The Novem­ber 1, 1991, amendment to sec­tion 2D1.1(b)(1) makes explicit that the provisions of sub­section (a)(2) of section 1B1.3 (relevant conduct) apply to the en­hancement for pos­session of a dangerous weapon during a drug trafficking offense, and that the weapon need not have been pos­sessed during the act consti­tuting the count of convic­tion.

Browse Contents

  • 100 Pre-Guidelines Sentencing, Generally
  • 110 Guidelines Sentencing, Generally
  • 150 Application Principles, Generally
  • 200 Offense Conduct, Generally
  • 400 Adjustments, Generally
  • 500 Criminal History, Generally
  • 550 Determining the Sentence
  • 700 Departures, Generally
  • 750 Sentencing Hearing, Generally
  • 780 Plea Agreements, Generally
  • 800 Violations of Probation and Supervised Release
  • 840 Sentencing of Organizations
  • 850 Appeal of Sentence (18 U.S.C. §3742)
  • 880 Habeas Corpus / 28 U.S.C. 2255 Motions
  • 900 – Forfeitures, Generally

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