§284 Cases Upholding Enhancement for Weapon in Drug Offense
3d Circuit upholds increase where co-conspirators possessed firearms during drug offense. (284) Defendant was convicted of drug trafficking. At sentencing, the district court added two levels under § 2D1.1(b)(1) because coconspirators possessed firearms during the offense. Defendant argued that he did not know the other conspirators would possess firearms. The Third Circuit rejected the argument, relying on defendant’s personal experience with drug dealing and guns, testimony that defendant had a conversation about shootings occurring in the area, and evidence that defendant was aware of firearm possession and use by other members of the conspiracy. U.S. v. Womack, __ F.4th __ (3d Cir. Nov. 29, 2022) No. 16-1682.
6th Circuit says fact that gun was not loaded did not show that it was not used in drug offense. (284) At defendant’s sentencing for drug trafficking, the district court added two levels under § 2D1.1(b)(1) for possessing a firearm during the drug offense. Defendant admitted that he possessed the firearm but argued that it was not during the drug offense. The Sixth Circuit found a “mountain of evidence” supporting the enhancement, including that the gun was found only a foot and a half from his drug stash. The court found that the fact that the gun was unloaded did not mean it was not used during the drug offense. U.S. v. Mosley, __ F.4th __ (6th Cir. Nov. 18, 2022) No. 21-1136.
7th Circuit says one incident of transporting drugs is enough for gun increase. (284) At defendant’s sentencing for drug trafficking, the court added two levels under § 2D1.1(b)(1) because defendant possessed a firearm. The court relied on a loaded weapon found in defendant’s car, which defendant used to ferry drugs. Defendant argued that the firearm was unlikely to be used for drug trafficking because he had used the car only once to ferry drugs. The Seventh Circuit ruled that one incident of ferrying drugs was enough to connect the firearm to the drugs. U.S. v. Zamudio, __ F.4th __ (7th Cir. Nov. 18, 2021) No. 20-3016.
11th Circuit says other uses for gun did not negate its use in connection with drug trafficking. (284) Defendant engaged in a drug with an undercover officer in his trailer. A search of the trailer produced a bolt-action rifle close to drugs and a drug ledger. At sentencing, the district court added two levels under § 2D1.1(b)(1) for possessing a firearm in connection with a drug trafficking offense. On appeal, the Eleventh Circuit affirmed, ruling that it did not matter whether the rifle could have had other uses. U.S. v. Montenegro, __ F.3d __ (11th Cir. June 11, 2021) No. 19-13542.
8th Circuit affirms finding that defendant had gun in connection with drug trafficking. (284) Defendant was convicted of drug trafficking. At sentencing, the district court added two levels under § 2D1.1(b)(1) for possessing a firearm in connection with drug trafficking. The Eighth Circuit affirmed, noting that the district court found the gun was seized near the drugs in a room where defendant engaged in drug trafficking. U.S. v. Bandstra, __ F.3d __ (8th Cir. June 7, 2021) No. 20-1616.
11th Circuit finds defendant failed to show that guns were not possessed in connection with drugs. (284) Police officers intercepted two packages of drugs addressed to defendant. They then searched defendant’s home and found two firearms and multiple silencers. At sentencing for importing drugs, the court enhanced the offense level under § 2D1.1(b)(1) for possession of firearms in connection with the offense. Defendant argued that he was an avid gun collector and target shooter and there was no evidence of drug dealing. The Eleventh Circuit ruled that once the firearms were found in proximity to the drugs, the burden shifted to defendant to show that they were not possessed in connection with the drugs. The court found the presumption applied and defendant had not rebutted it. U.S. v. Delgado, __ F.3d __ (11th Cir. Nov. 23, 2020) No. 19-11997.
8th Circuit finds evidence sufficient to uphold firearms enhancement. (284) Defendant pleaded guilty to drug trafficking, and at sentencing, the district court increased the offense level under § 2D1.1(b)(1) because defendant possessed a firearm in connection with the offense. That finding was based on evidence that earlier in the month of his arrest, defendant had murdered a drug dealer with a firearm in an argument over a drug transaction. There was also evidence that defendant “always” had the gun, and on the day he was arrested, defendant had shot and killed another man, and two firearms were seized from his coconspirator. The Eighth Circuit held this evidence was sufficient to show that defendant possessed a firearm in connection with his drug trafficking offense. U.S. v. Sterling, __ F.3d __ (8th Cir. Nov. 1, 2019) No. 18-2974.
6th Circuit affirms enhancement based on codefendant’s possession of firearm. (284) A search of a residence pursuant to a warrant discovered defendant in an upstairs bedroom with multiple rounds of ammunition and six pounds of cocaine. In a downstairs bedroom, officers discovered a codefendant in possession of a firearm. Defendant pleaded guilty to drug trafficking. At sentencing, the district court enhanced his offense level under § 2D1.1(b)(1) for possession of a firearm during a drug-trafficking offense. The Sixth Circuit upheld the enhancement, finding that defendant could reasonably foresee that his codefendant would possess a firearm. U.S. v. Barron, __ F.3d __ (6th Cir. Oct. 15, 2019) No. 18-5222.
7th Circuit finds sufficient evidence that firearm was used in connection with drug offense. (284) Defendant pleaded guilty to conspiracy to distribute heroin. At sentencing, the district court found under § 2D.1(b) that defendant possessed a firearm in connection with the drug-trafficking offense, relying on defendant’s DNA on a loaded firearm in his residence where a large quantity of drugs was found. The Seventh Circuit held that the district court had not erred in finding the enhancement. U.S. v. Fincher, __ F.3d __ (7th Cir. July 9, 2019) No. 18-2520.
10th Circuit finds evidence sufficient for gun enhancement. (284) Defendant was convicted of drug trafficking based on a raid on his farm that turned up marijuana. He admitted that he had possessed firearms in the past, but claimed that he did not possess any firearms the day of the raid. At sentencing, the district court enhanced his offense level under § 2D1.1(b) because defendant possessed a weapon while engaged in drug trafficking. The Tenth Circuit affirmed, finding sufficient evidence to support the district court’s conclusion. U.S. v. Griffith, __ F.3d __ (10th Cir. June 24, 2019) No. 17-1365.
8th Circuit affirms gun increase where defendant failed to challenge one of two grounds. (284) In imposing an increase under § 2D1.1(b) for possessing a firearm during a drug-trafficking offense, the district court relied on two grounds: (1) defendant “racked” a gun in the presence a confidential source while discussing drug sales, and (2) a firearm was discovered in defendant’s possession when he was arrested. On appeal, defendant challenged only the first ground, and the Eighth Circuit held that the second ground was sufficient to support the enhancement. U.S. v. Guzman, __ F.3d __ (8th Cir. June 13, 2019) No. 18-1506.
D.C. Circuit says firearm is a “dangerous weapon” regardless of whether it is capable of being fired. (284)(770) Defendant was convicted of drug charges, and received a two-level enhancement for possession of a dangerous weapon, § 2D1.1(b)(1). The weapon was a pistol that defendant carried as he conducted drug trafficking business. The gun was inscribed with “l Aguila”—Spanish for “the Eagle.” In finding that defendant possessed the pistol, the district court relied on the Mexican evidence report, which indicated that he was captured with the pistol. The court also credited two co-conspirators’ reports of having witnessed defendant in possession of a pistol. These hearsay statements were corroborated not only by one another, but also by the Mexican evidence report. The DC Circuit affirmed, and also rejected defendant’s argument that the weapon was an inoperable collector’s item. A firearm is a “dangerous weapon’ within the meaning of § 2D1.1 regardless of whether it is capable of being fired. U.S. v. Leyva, __ F.3d __ (D.C. Cir. Feb. 26, 2019) No. 17-3027.
7th Circuit upholds firearm increase based on gun carried by co-conspirator girlfriend. (284) Defendant was convicted of drug conspiracy charges. The Seventh Circuit held that the district court did not clearly err in imposing a firearm enhancement under § 2D1.1(b)(1) based on a gun carried in the purse of defendant’s co-conspirator girlfriend, Rowland. The court credited the testimony of Smith, another co-conspirator, that as she was walking with Rowland and defendant at the hotel, defendant noticed the firearm sticking out of Rowland’s purse and pushed it back in and reprimanded her for not hiding it. The fact that defendant grilled Rowland to “keep a firearm away from me because I did not want firearms around me because I had already been to prison for a firearm,” actually supported the conclusion that defendant knew that Rowland was carrying a firearm, as did the text from Rowland to defendant which said, “meet the newest member of our family,” and included a picture of a gun. U.S. v. Jones, __ F.3d __ (7th Cir. Aug. 14, 2018) No. 17-2658.
6th Circuit upholds dangerous weapon enhancement where defendant was pulled over with gun after leaving house with drug proceeds. (284) Defendant was convicted of heroin charges, and received a two-level enhancement under §2D1.1(b)(1) for possessing a dangerous weapon. The Sixth Circuit upheld the enhancement. It was clear that defendant possessed a firearm during the heroin conspiracy. He was pulled over by police after leaving a house where heroin had been sold, having collected the proceeds of a drug transaction. The weapon was a Glock pistol, not an antique musket or hunting rifle that might be impractical in connection with drug trafficking. The weapon was concealed on defendant and was loaded. Defendant was arrested with the proceeds on him in the car while departing from the location of a drug transaction. While it was possible that defendant happened to be carrying his legally licensed firearm without any connection to the conspiracy, it was just as likely that he brought the gun to protect himself and his trade. This possibility was insufficient to show that the connection to the offense was clearly improbable. U.S. v. Pryor, 842 F.3d 441 (6th Cir. 2016).
1st Circuit finds defendant failed to provide innocent explanation for gun in stash house. (284) Defendant pled guilty to crack cocaine conspiracy charges, and the district court applied a two-level firearm enhancement under §2D1.1(b)(1) for possessing a dangerous weapon during the course of a drug-trafficking crime. The First Circuit affirmed. The district court based the increase on a firearm owned by co-conspirator Eddie Cogswell. The court relied on defendant’s own testimony (in a different case), admitting that he had carried the Cogswell firearm at the place where the conspiracy’s inventory of drugs was stashed. Based on this, the court found that defendant possessed the Cogswell firearm and, thus, used the firearm in the course of the conspiracy. Evidence of possession at the stash house was sufficient where, as here, defendant did not provide an innocent explanation and did not identify any evidence indicating the improbability of a link between the gun and the crime of conviction, U.S. v. Nunez, 840 F.3d 1 (1st Cir. 2016).
7th Circuit finds defendant constructively possessed handgun found in his bedroom. (284) Defendant pled guilty to heroin charges. The district court applied a dangerous weapon enhancement under §2D1.1(b)(1) based on a handgun that federal agents found when they searched defendant’s residence. Defendant argued that the government failed to establish that he possessed the handgun. The Seventh Circuit disagreed. At sentencing the government noted the handgun’s location adjacent to defendant’s bedroom in the residence that defendant shared with Hayes, one of his couriers. The government also noted that the gun was found near a small quantity of heroin and a variety of materials used to package heroin, including a hydraulic press, razor blades, scales, and plastic bags. These facts were easily sufficient to establish that defendant, a convicted heroin distributor, constructively possessed the handgun. U.S. v. Morris, 836 F.3d 868 (7th Cir. 2016).
1st Circuit upholds dangerous weapon increase based on padlock in bandana carried for legitimate job. (284) Defendant was convicted of drug charges. At the time of his arrest, defendant possessed a padlock in a bandana, for which the district court applied a dangerous weapon increase under §2D1.1(b)(1). Defendant argued that the district court erred in finding that it was not “clearly improbable” that the weapon’s presence was connected to his drug offense. The First Circuit disagreed, ruling that the district court reasonably found that defendant used the padlock-bandana “for multiple purposes,” and also reasonably found that drug dealers use weapons “to protect themselves and the drugs from outside parties.” Thus, defendant’s friendly relationship with his drug trafficking partners did not negate the connection between the padlock-bandana and the drug offense. U.S. v. Mercer, 834 F.3d 39 (1st Cir. 2016).
7th Circuit agrees that defendant possessed firearm during his drug trafficking activity. (284) Defendant, a ranking official of a Chicago street gang, pled guilty to selling 366.2 grams of crack cocaine to a confidential witness. The Seventh Circuit upheld the district court’s finding that defendant possessed a firearm during his drug trafficking activity, §2D1.1(b)(1). Defendant’s long-time customer, Brewer, testified that that in 2012, defendant almost invariably had a firearm when Brewer met with him, either on his person or in his vehicle. Brewer also testified that defendant had supplied him with three different guns in 2011 for use in a dispute with a rival drug gang. A drug defendant’s possession of a firearm warrants the enhancement “unless it is clearly improbable that the weapon was connected with the offense.” Note 11(A) to §2D1.1. Defendant did not show a clear improbability. U.S. v. Blackman, __ F.3d __ (7th Cir. July 29, 2016) No. 15-2003.
10th Circuit upholds firearm enhancement based on co-conspirator’s weapon possession. (284)(770) Defendant was convicted of drug distribution and conspiracy. At sentencing, the district court found that he was responsible for a firearm possessed by co-conspirator Granado, and applied a §2D1.1(b)(1) enhancement. When Granado was arrested, the officers seized a Glock pistol from his home. Granados’s wife told investigators that her husband said defendant had given him the gun as a form of protection against Edgar, a former drug trafficking partner. Although Granado’s wife testified at defendant’s trial, she did not testify as to these specific facts. However, the investigator to whom she spoke did. Given this, the Tenth Circuit held that the district court did not clearly err in finding Granados’s possession of the weapon was both foreseeable to defendant and connected to their joint criminal enterprise. Although the testimony regarding Granados’s gun was hearsay, the record provided ample indicia of reliability. U.S. v. Bustamante-Conchas, __ F.3d __ (10th Cir. Aug. 8, 2016) No. 15-2025.
6th Circuit affirms firearm increase despite rejection of firearm increase for co-conspirator. (284)(855) Defendant challenged for the first time on appeal a firearm enhancement under §2D1.1(b)(1), noting that the district court sustained an objection to the same increase in co-conspirator Casilla’s case. The Sixth Circuit found no plain error. The government cited numerous instances when defendant possessed a weapon during the course of the cocaine conspiracy. Because these events occurred during the course of, and were related to, the charged conspiracy, there was a presumption that the weapons were connected to the offense. Defendant did not attempt to rebut that presumption, and fact that the district court found insufficient evidence to connect co-conspirator Casillas to the guns did not undermine this finding. U.S. v. Rios, __ F.3d __ (6th Cir. July 21, 2016) No. 14-2495.
D.C. Circuit upholds firearm increase for carrying weapon while running drug lab. (284) Defendant was part of a Columbian organization that conducted a large-scale cocaine-trafficking operation. He objected to a two-level enhancement under §2D1.1.(b)(1) for possession of a firearm during a drug offense. The D.C. Circuit upheld the enhancement. Two witnesses testified to having seen defendant carry a handgun while committing drug offenses. Although defendant challenged the credibility of those witnesses, credibility determinations are entitled to the greatest deference on appeal. U.S. v. Vega, __ F.3d __ (D.C. Cir. June 24, 2016) No. 10-3083.
5th Circuit reverses gun increase for lack of evidence defendant grew marijuana where guns were found. (284) Defendant was convicted of marijuana charges. Weapons, ammunition, and a hydroponic growing system were found in defendant’s residence, so the district court increased his sentence under §2D1.1(b)(1) for possessing a firearm in connection with the drug offense. In a room with a rifle and pistol, there was information about growing hydroponic plants and notes referring to the purchase of marijuana seeds, and a “drug code sheet” and money orders sent between other co-conspirators. The district court found that the hydroponic growing system was “drug paraphernalia” and that the drug code sheet tied the guns to the drug conspiracy. The Fifth Circuit disagreed, noting that the system found in defendant’s home was intended for general gardening use. There was only vague circumstantial evidence to suggest that it ever would be used to grow marijuana. Moreover, there was no evidence that the organization sought to grow or distribute its own product. U.S. v. Romans, __ F.3d __ (5th Cir. May 19, 2016) No. 13-40219.
5th Circuit upholds gun increase based on location of gun and drug ledger and drug transaction. (284) Defendant was convicted of marijuana conspiracy, and received a §2D1.1(b)(1) increase for possessing a firearm. Tarter, a long-time customer of defendant’s, testified that he delivered drug proceeds to defendant’s residence on several occasions, and that once defendant showed him a Glock that he kept in his kitchen and an AR-15 that he kept in his basement. A detective testified that when state police searched defendant’s home, they found a Glock in a kitchen drawer with a drug ledger and the $24,000 in cash, delivered minutes before by Tarter, in the living room. The Fifth Circuit concluded that the location of the gun and the ledger and the occurrence of the drug transaction was sufficient to establish that “a temporal and spatial relation existed between the weapon, the drug trafficking activity, and the defendant.” U.S. v. Romans, __ F.3d __ (5th Cir. May 19, 2016) No. 13-40219.
8th Circuit approves firearm increase despite claim that defendant had permit to carry loaded firearm. (284) Defendant was the owner and operator of a head shop that sold synthetic drugs. The district court applied a firearm enhancement under § 2D1.1(b)(1) because defendant kept guns at the shop and also carried a loaded gun while selling regulated substances there. The Eighth Circuit affirmed the enhancement. Although defendant claimed he had a permit to carry a loaded handgun, § 2D1.1(b)(1) does not require the district court to take account of such a permit. Defendant also contended that the other 28 firearms recovered at the shop were mostly unloaded and stored in a safe on the floor below the retail level as part of his gun collection. This however did not show that the district court clearly erred by finding a nexus between the firearms and his drug activity. U.S. v. Carlson, __ F.3d __ (8th Cir. Jan. 14, 2016) No. 14-2986.
5th Circuit affirms increase for gun in stash house not linked to particular conspirator. (284) Defendant pled guilty to marijuana conspiracy charges. The district court applied a § 2D1.1(b)(1) increase for a shotgun found in a residence being used by the conspiracy as a stash house. The Fifth Circuit upheld the enhancement. Although the district court did not connect the shotgun to any particular conspirator, there was a temporal and spatial relationship between the weapon, the drug trafficking activity, and defendant or a co-conspirator. First, the house where the shotgun was found was used to package and transport bundles of marijuana. Second, bundles of marijuana were found in the master bedroom’s bathroom, making it plausible that either defendant or another conspirator accessed the master bedroom where the shotgun was found. Third, the amount of ammunition involved suggested that the weapon belonged to defendant or his co-conspirators in connection with the drug trade. Fourth, the shotgun was found on the same day that law enforcement observed defendant and his co-conspirators at the house. Because the only purpose of the house was for drugs, it was plausible that the only purpose of the weapon was to support the drug business. U.S. v. Rodgriguez-Guerrero, __ F.3d __ (5th Cir. Oct. 30, 2015) No. 14-41289.
D.C. Circuit upholds enhancement for gun found during relevant conduct. (284) Defendant was a member of a loose-knit gang that sold crack cocaine in Washington, D.C. for 13 years. He was convicted of three counts of distributing crack, but acquitted of a variety of other charges, including a crack conspiracy charge. The district court applied a § 2D1.1(b)(1) firearm enhancement based on a loaded handgun found hidden in defendant’s bedroom in proximity to other tools of the drug trade. The search leading to the firearm occurred in 1996, during the lifetime of the acquitted crack conspiracy, but defendant argued the enhancement could only be applied if a firearm was present during one of the counts of conviction. The D.C. Circuit disagreed. The increase applies whenever a firearm is possessed during conduct relevant to the offense of conviction. The court did not err in finding that the firearm was possessed during relevant conduct. The weapon was found “hidden in a speaker … in proximity to other tools of the narcotic trade,” and the judge found that the life of the drug conspiracy encompassed both the time of the search and the time of the offenses of conviction. U.S. v. Bell, __ F.3d __ (D.C. Cir. July 28, 2015) No. 08-3037.
1st Circuit upholds firearm enhancement where defendant did not challenge PSR’s allegations. (284) Defendant pled guilty to drug charges, and received a §2D1.1(b)(1) firearm enhancement. In support of the enhancement, the district court referred to defense counsel’s acknowledgment that co-conspirators possessed firearms as described in the PSR. The stipulated version of the facts in the plea agreement also reflected that defendant and his co-conspirators engaged in transactions for a thousand or more kilograms of cocaine at a time. Finally, defendant did not object to allegations in the PSR that enforcers in the organization used guns to protect the organization’s members and its proceeds. The First Circuit upheld the firearm enhancement. U.S. v. Miranda-Martinez, __ F.3d __ (1st Cir. June 24, 2015) No. 14-1149.
1st Circuit upholds firearm increase for runner in large drug trafficking conspiracy. (284) Defendant participated in a far-reaching drug trafficking conspiracy in Puerto Rico. Although there was no direct evidence at trial or in the PSR that defendant firearms were used in connection with the conspiracy, the First Circuit upheld a §2D1.1(b)(1) firearm enhancement. The trial testimony showed that defendant was a runner of crack, cocaine, and marijuana, and that she helped stash all four types of drugs sold by the organization. She had contact with several other co-conspirators, including Delgado, who had a reputation for shooting his gun. Thus, the use of firearms during and in furtherance of the conspiracy was not “clearly improbable” from defendant’s perspective. The district court did not clearly err in applying the firearm enhancement. U.S. v. Flores-Rivera, __ F.3d __ (1st Cir. May 22, 2015) No. 10-1434.
7th Circuit affirms increase for using firearm in connection with another felony. (284)(770) Defendant pled guilty to being a felon in possession of firearm. The district court applied an increase under §2K2.1(b)(6)(B) for using or possessing a firearm “in connection with another felony offense,” finding that defendant had pointed a loaded firearm at Harris. Although Harris’s accounts of the evening to two police officers differed in some respects, the Seventh Circuit upheld the enhancement. The district court thoroughly reviewed all the evidence, and found Harris’s accounts to be sufficiently reliable. Numerous details were consistent with each other, including her identification of defendant as the perpetrator, her description of the interior of defendant’s residence, her description of the gun, her contention that defendant pointed the weapon at her head in an effort to obtain sex, and her statements that they had been drinking together while at his residence. The court found defendant’s account of the evening not credible, noting that he kept changing stories. U.S. v. Sandidge, __ F.3d __ (7th Cir. Apr. 20, 2015) No. 14-1492.
7th Circuit attributes co-conspirators’ gun possession to defendant with “substantial and important role” in drug conspiracy. (284) Defendant, a courier and bookkeeper in a methamphetamine distribution ring, was arrested after she left a stash housing carrying five pounds of meth. A search of the house yielded two handguns, and two additional firearms were later found in other houses used by her co-conspirators. The district court found that the co-conspirators’ firearm possession was reasonably foreseeable to defendant, and applied a two-level enhancement under §2D1.1(b)(1) for possession of a dangerous weapon. The Seventh Circuit found no clear error. The judge was permitted to draw common-sense inferences when determining whether someone in defendant’s position reasonably should have foreseen that guns were in use in the conspiracy. Here, defendant had substantial and important roles in a sizable drug enterprise. Under these circumstances, it was not clear error to attribute the co-conspirators’ gun possession to her for purposes of the §2D1.1(b)(1) enhancement. U.S. v. Ramirez, __ F.3d __ (7th Cir. Apr. 15, 2015) No. 13-1013.
1st Circuit finds defendant could reasonably foresee use of weapons during drug conspiracy. (284) Defendant was convicted of drug conspiracy charges. The district court increased the sentence under §2D1.1(b)(1) for possessing firearms during the conspiracy, finding that defendant reasonably could have foreseen that his co-conspirators and subordinates would possess firearms to protect the drug-trafficking enterprise. The First Circuit affirmed. Members of the conspiracy regularly carried firearms for the purpose of protecting drug points (including defendant’s drug point). Moreover, turf wars were common, and members of the conspiracy participated from time to time in shoot-outs with rival gangs. Given this scenario, the district court could plausibly infer that defendant, who was a drug point owner and a leader of the conspiracy, knew of these practices and incidents and could foresee their continuation. The fact that defendant was not charged with a weapons count like other conspirators did not matter. The district court properly found that the use of weapons during the conspiracy was reasonably foreseeable to defendant. U.S. v. Burgos-Figueroa, __ F.3d __ (1st Cir. Feb. 13, 2015) No. 13-2379.
6th Circuit applies firearm increase for guns in defendant’s house in another state. (284) Defendant was arrested shortly after the failure of a massive drug sale in Michigan. The Sixth Circuit upheld an increase under § 2D1.1(b)(1) for multiple guns found in defendant’s Kansas City home shortly after his arrest. Defendant admitted the guns were his property given to him by co-defendant Garcia, but argued that the guns were un-connected with his offenses. However, defendant stayed in that house for two days before he left for Michigan, which was within the time period of the conspiracy. In the bedroom, police also found personal documents of defendant’s, a vacuum sealer and rolls, black rubber bands, a bag of marijuana, and over $2,000 in currency. In the house’s basement and in a car in the garage, police found other materials commonly associated with drug trafficking. Further, one of the co-conspirators testified that he would regularly transport large quantities of cash used in drug transactions to and from defendant at the house. All of this evidence strongly suggested that the weapons were connected to the drug distribution conspiracy, even though the drugs were seized in Michigan, far from the guns in Kansas City. U.S. v. Sierra-Villegas, __ F.3d __ (6th Cir. Dec. 23, 2014) No. 13-2513.
1st Circuit upholds firearm enhancement where de-fendant traded gun for drugs. (284) Defendant was convicted of drug conspiracy charges. The district court applied a §2D1.1(b)(1) firearm enhancement based on evidence that defendant traded a gun to the conspiracy in exchange for crack. Defendant challenged the enhance¬ment, arguing that testimony from Nunez, a co-conspir¬ator, showed that defendant traded the gun for drugs before he joined the conspiracy. The First Circuit upheld the enhancement. The evidence showed that defendant traded the gun for crack cocaine in December 2010. At least three other witnesses testified that defendant was part of the conspiracy as early as August or September 2010. The district court credited these witnesses over Núñez regarding when defendant joined the conspiracy. U.S. v. Trinidad-Acosta, __ F.3d __ (1st Cir. Dec. 5, 2014) No. 13-1830.
1st Circuit upholds increase based on gun found in suitcase defendant was carrying.(284) Defendant was arrested in possession of a suitcase containing 33 pounds of marijuana, drug paraphernalia and a loaded revolver. He was convicted of drug charges, but acquitted of pos¬sessing a firearm in furtherance of a drug-trafficking offense. The district court applied a two-level firearm enhancement under § 2D1.1(b)(1). Defendant argued that there was insufficient evidence that he knew or could have reasonably foreseen the presence of the gun in the suitcase, particularly where the jury acquitted him of the firearm charge. The First Circuit upheld the increase. Given the different standards of proof, acquitted conduct can form the basis of a sentence enhancement. Here, the district court found that defendant either was moving his own suitcase or that he was moving it at the behest of another person. If it was his suitcase, defendant knew that the firearm was present. If it belonged to someone else, defendant had been entrusted with $50,000 worth of drugs, and therefore could foresee the coincidence of guns and drugs. The court properly concluded that it was more likely than not that defendant “knew of and/or could reasonably foresee the presence of [the] firearm.” U.S. v. Fermi, __ F.3d __ (1st Cir. Nov. 14, 2014) No. 13-1108.
1st Circuit holds defendant accountable for firearm possession by co-conspirator. (284) Defendant sold 14 grams of crack cocaine to a confidential informant. The district court applied a § 2D1.1(b)(1) firearm enhancement based on a gun possessed by Soto, her co-conspirator. Defendant argued that the gun belonged to Soto, not her, and that Soto only had possession of the weapon in October 2007, two months before the conspiracy began. The First Circuit upheld the firearm enhancement. In cases of jointly undertaken criminal activity, a defendant may be held responsible for all reasonably foreseeable acts and omissions of others in furtherance of the jointly undertaken criminal activity. Defendant did not dispute that she knew Soto possessed a gun. The fact that defendant never handled the gun herself did not relieve her of responsibility for its foreseeable possession by a co-conspirator in connection with their drug dealing. As for chronology, the government presented evidence that she and Soto were engaged in the distribution of crack cocaine at least as far back as October 2007, the same month that Soto possessed the gun. U.S. v. Vazquez, 724 F.3d 15 (1st Cir. 2013).
1st Circuit holds that defendant waived challenge to dangerous weapon enhancement. (284) Defendant challenged a two-level dangerous weapon enhancement under § 2D1.1(b) (1), arguing that the record did not support it. The First Circuit upheld the enhancement, noting that defense counsel admitted in the district court that defendant possessed firearms during the offense. This constituted a waiver of the claim of error that he now attempted to advance. Moreover, the PSR specifically stated that defendant carried and possessed firearms in furtherance of the drug trafficking organization, and defendant did not object to the PSR’s factual account. U.S. v. Murphy-Cordero, 715 F.3d 398 (1st Cir. 2013).
1st Circuit approves firearm enhancement based on photo and video of defendant holding weapon. (284) Defendant was one of 12 co-defendants charged with various crimes related to a drug trafficking enterprise at a public housing facility. The district court applied a §2D1.1(b)(1) firearm enhancement based on evidence presented at trial, including a photograph and a video of defendant with co-conspirators holding weapons, a video of defendant himself loading a magazine with a bullet, and witness testimony that the witness, like other co-conspirators, consistently carried firearms at the drug point in order to protect it. The First Circuit found no error in the application of the enhancement. U.S. v. Flores-de-Jesus, 569 F.3d 8 (1st Cir. 2009).
1st Circuit approves firearm enhancement for manager of drug point. (284) Defendant was convicted of drug conspiracy charges. The First Circuit found sufficient evidence to support a § 2D1.1(b)(1) firearm increase. One witness testified that he sold firearms to “Hiram,” who was a runner for the drug point managed by defendant. Another witness testified that he gave a shotgun to the person in charge of storing firearms at the drug point. A third witness who sold drugs to defendant testified that he regularly carried a firearm for protection. A fourth witness who also purchased cocaine from defendant testified that he also carried a firearm for protection. The evidence was sufficient to allow an inference that defendant, who was the manager of the drug point, was likely aware of and could have foreseen that many of the people who worked for him carried or used firearms. U.S. v. Vazquez, 470 F.3d 443 (1st Cir. 2006).
1st Circuit says defendant cannot not raise objection to firearm enhancement for first time on appeal. (284) Defendant failed to object to a § 2D1.1(b)(1) firearm enhancement either after sentence was pronounced or earlier, when expressly invited by the district court to offer any corrections or objections to the PSR. Thus, the First Circuit ruled that defendant could not raise the issue on appeal. Moreover, even if the issue were open on appeal, there was adequate evidence to allow the court to impose the weapon enhancement without committing error, plain or otherwise. There was evidence that defendant concealed weapons for a co-conspirator and possessed a firearm as part of his drug trafficking activities. A cooperating witness testified that defendant concealed weapons and drugs for him between 1994 and 1999. He testified that when someone had shot defendant’s brother, defendant and his brother both possessed weapons of their own. U.S. v. Escobar-Figueroa, 454 F.3d 40 (1st Cir. 2006).
1st Circuit holds that finding that defendant was eligible for safety valve reduction did not preclude firearm enhancement. (284) The district court applied a two-level sentencing enhancement for firearm possession under § 2D1.1(b)(1), since defendant acknowledged that police had found a loaded handgun in his apartment, and that defendant stated that he bought the gun for personal protection. The court also applied a two-level reduction under the “safety valve” provision of U.S.S.G. § 5C1.2, despite its requirement that the defendant show that he was not in possession of a firearm. The First Circuit found nothing contradictory about applying both the firearm enhancement and the safety valve reduction, since different standards apply for each. The application of the safety valve requires the defendant to establish by a preponderance of the evidence that he did not possess the firearm in connection with the offense. For the firearm enhancement, the government has the initial burden of establishing that a firearm possessed by the defendant was present during the commission of the offense. After that, the burden shifts to defendant to persuade the court that a connection between the weapon and the crime is clearly improbable. Defendant’s failure to meet the higher burden of proof required for the firearm enhancement did not preclude the defendant from meeting the lower burden of proof in the safety valve provision. U.S. v. Anderson, 452 F.3d 87 (1st Cir. 2006).
1st Circuit affirms firearm increase based on co-conspirator’s gun possession. (284) One conspirator testified that defendant helped him and two others guard 675 kilograms of cocaine that were stored at another conspirator’s house. The four of them guarded the cocaine for about one week. The conspirator testified that he and another conspirator carried guns in the process. It was not clear error for the district court to credit this testimony and find that, in the course of guarding cocaine with two other armed individuals for over a week, defendant both knew of and could reasonably foresee his co-conspirators’ possession of firearms. Thus, the First Circuit affirmed a § 2D1.1(b)(1) increase. U.S. v. Casas, 356 F.3d 104 (1st Cir. 2004).
1st Circuit upholds firearms increase where no evidence showing improbability of connection between gun and drugs. (284) The government demonstrated that a gun was used in the course of the drug conspiracy. Defendant went to Texas to help a co-conspirator collect a marijuana debt and a co-conspirators brought a .38 caliber pistol along when they went to collect the debt. Defendant’s testimony at the co-conspirator’s trial indicated he knew his co-conspirator had the gun. Defendant presented no evidence to show the improbability of the connection between the gun and the conspiracy. Therefore, the First Circuit held that the § 2D1.1(b)(1) dangerous weapon enhancement was not clear error. U.S. v. May, 343 F.3d 1 (1st Cir. 2003).
1st Circuit upholds firearm enhancement for defendant present when gun was given to co-conspirator. (284) The district court found that defendant was present when the conspiracy’s leader gave Diaz a gun to give to Hernandez. Diaz testified that he met with defendant and the leader, and that the leader told Diaz that Hernandez could use the gun because it was “clean.” Defendant claimed that he left the meeting before the leader gave Diaz the gun, but this claim was not supported by the record. Defendant was the last person to arrive at the meeting, but the leader gave Diaz the gun at the end of the meeting as they were saying goodbye. It was not clear error for the district court to determine that defendant remained at the meeting at this point. The First Circuit affirmed the increase. U.S. v. Nelson-Rodriguez, 319 F.3d 12 (1st Cir. 2003).
1st Circuit applies enhancement for gun found in same bureau drawer as cocaine stash. (284) Police found cocaine, a gun, ammunition and drug paraphernalia at defendant’s house. Defendant challenged a § 2D1.1(b)(1) firearm enhancement, claiming that he had purchased the weapon for personal protection and not for any drug-related purpose. The First Circuit agreed with the district court that the presence of the weapon in the same bureau drawer as the cocaine stash demonstrated a culpable connection between the two. When a firearm’s location indicates a link between it and the possessor’s drug business, the evidence is sufficient to support an enhancement under § 2D1.1(b)(1) enhancement. U.S. v. Sandoval, 204 F.3d 283 (1st Cir. 2000).
1st Circuit applies enhancement for gun in glove compartment while transporting drugs. (284) After watching defendant conduct an apparent drug transaction from his car, police searched the car, finding two bags of cocaine in the ashtray, a handgun in the glove compartment and more cocaine and crack hidden in a cooler in the back of the car. The First Circuit affirmed a § 2D1.1(b)(1) enhancement because defendant had a gun in the glove compartment of his car while transporting and dealing drugs. The claim that he merely possessed drugs for his own use was refuted by his guilty plea and by his witnessed involvement in at least one drug sale. U.S. v. Aker, 181 F.3d 167 (1st Cir. 1999).
1st Circuit applies firearm enhancement for gun found near drugs recovered from smugglers. (284) Police observed defendants and three co-conspirators waiting in a heavily wooded coastal area for a boatload of smuggled drugs. Agents seized eight packs containing 380 kilograms of cocaine. They also found an assault rifle with the sacks of cocaine. Nearby, agents found a pickup truck that had been seen driving to the offloading spot earlier. Inside the pickup, the agents found ammunition and black clothes matching the clothes worn by the conspirators. The First Circuit affirmed a § 2D1.1(b)(1) firearm enhancement, holding that defendants failed to meet their burden of proving that the connection between the weapon and the drug conspiracy was clearly improbable. The fact that ammunition was found in the pickup truck suggested that the weapon was possessed by the conspirators well before the boat was offloaded. In addition, defendants were seen placing sacks of cocaine where the gun was found. From this location, the weapon was readily available to protect both the conspirators and the drugs. U.S. v. Mateo-Sanchez, 166 F.3d 413 (1st Cir. 1999).
1st Circuit says defendant waived challenge to link between him and seized firearms. (284) Defendant participated in a large conspiracy that distributed narcotics from various housing projects. The district court applied a § 2D1.1(b) (1) firearm enhancement based on loaded assault rifles seized from a residence used by the conspiracy to process cocaine. Defendant claimed on appeal that the seized guns were not definitively linked to him. The First Circuit affirmed the enhancement, holding that because defendant failed to challenge the link between himself and the firearms at sentencing, his claim was waived. At sentencing, the district court correctly rejected defendant’s claim that a relationship between the drugs and the firearms was “clearly improbable.” The court found that the weapons had a “definite, clear connection with drug trafficking.” The court relied in part of the fact that the weapons, loaded assault rifles, were not the sort of weapons ordinary people have to defend their home from a burglar. U.S. v. Candelaria-Silva, 166 F.3d 19 (1st Cir. 1999).
1st Circuit says firearm enhancement only requires possession of weapon during drug trafficking. (284) The district court applied a § 2D1.1(b)(1) firearm enhancement because it found that defendant possessed a weapon during his drug trafficking activities. Defendant urged the court to apply the same standard as in Bailey v. United States, 516 U.S. 137 (1995), which requires proof, for prosecution under 18 U.S.C. § 924(c), that the defendant’s “use” of a firearm had an active relation to the underlying drug offense. The First Circuit held that under the guidelines, a defendant’s mere possession of a gun during a gun trafficking offense is sufficient to justify a § 2D1.1(b)(1) firearm enhancement. Note 3 clearly states that the enhancement applies if the weapon was present, unless it is clearly improbable that the weapon was connected with the offense. U.S. v. Marrero-Ortiz, 160 F.3d 768 (1st Cir. 1998).
1st Circuit finds gun was relevant conduct even though it was possessed during a different conspiracy. (284) Due to a shift from domestic to foreign suppliers, the cocaine operation involved two conspiracies: one from 1986 to March 1988, and the other from March 1988 to later that year. Defendant received a firearm enhancement based on a June 1987 incident in which he threatened a drug courier at gunpoint. The version of § 2D1.1(b)(1) that took effect in January 1988 provided for enhancement if a firearm “was possessed during commission of the offense.” The First Circuit held that the phrase “during the commission of the offense” includes all relevant conduct. A November 1991 amendment deleted the “during the commission of the offense” language, making it clear that relevant conduct provisions apply to § 2D1.1(b)(1). The First Circuit found that the 1987 incident was relevant conduct to drug counts in April 1988, even though the use of the firearm occurred during the first conspiracy. “A course of conduct or common scheme or plan” is broader than the definition of a “conspiracy.” Here, although defendant’s drug trafficking resulted in two separate conspiracy charges, they were part of an ongoing series of offenses that constituted the same course of conduct. Defendant never deviated from his main business: the acquisition and sale of cocaine in a specific region. David v. U.S., 134 F.3d 470 (1st Cir. 1998).
1st Circuit affirms enhancement for gun at co-conspirator’s residence. (284) An undercover agent made four heroin purchases from a group of conspirators, one of whom was defendant. Defendant challenged a § 2D1.1(b)(1) firearms enhancement because he did not possess or use a gun during any of the sales and he was arrested at a different location from where the gun was found. The First Circuit affirmed the § 2D1.1 (b)(1) enhancement because defendant was seen leaving the residence where the gun was found, he had made many calls to this residence, the residents were co-conspirators, and the residence was the center for the drug operation. U.S. v. Berrios, 132 F.3d 834 (1st Cir. 1998).
1st Circuit upholds increase for defendant who was arrested where gun was found. (284) Defendant was convicted of charges stemming from his involvement in a heroin conspiracy. He argued that he should not have received a § 2D1.1(b)(1) firearms enhancement because he never actually possessed or used a gun. The First Circuit affirmed the enhancement because defendant was arrested at the residence where the gun was found, and this residence was the center of operations for the drug conspiracy. Once the weapon’s presence is established, the § 2D1.1 (b)(1) enhancement is proper unless the defendant shows a clear improbability that the weapon was connected to the drug offense. U.S. v. Berrios, 132 F.3d 834 (1st Cir. 1998).
1st Circuit upholds gun enhancement for armed watchman of drug points. (284) Defendant participated in a large cocaine distribution conspiracy. The First Circuit upheld a § 2D1.1(b)(1) enhancement based on evidence that defendant was armed when he served as a watchman for drug points in a housing project. U.S. v. Alicea-Cardoza, 132 F.3d 1 (1st Cir. 1997).
1st Circuit upholds gun enhancement despite defendant’s denial of knowledge. (284) Police searching defendant’s apartment found drugs, money, and drug paraphernalia hidden in the parlor. They also found a semi-automatic pistol and a plastic bag containing several live rounds in a secret compartment in the bathroom vanity. Defendant pled guilty to possessing crack with intent to distribute. He denied all knowledge of the gun. The First Circuit upheld a § 2D1.1(b)(1) enhancement. The government showed that the firearm was present during the commission of the offense, so the burden shifted to defendant to persuade the court that the connection between the weapon and the crime was clearly improbable. Defendant’s denial of the knowledge of the gun did not meet this burden. He did not present evidence to support the denial and did not suggest an innocent explanation for the gun’s presence. U.S. v. McDonald, 121 F.3d 7 (1st Cir. 1997).
1st Circuit applies firearm enhancement despite § 924(c) acquittal. (284) Defendant was convicted of drug charges and acquitted of aiding and abetting the use of firearms during a drug offense. He argued that his acquittal on gun charges precluded a § 2D1.1(b)(1) enhancement for possessing a gun during a drug trafficking offense. The Second Circuit held that because of the difference in burden of proof, an acquittal on a charge of using a firearm in connection with a drug transaction does not foreclose a § 2D1.1(b)(1) enhancement. The enhancement only requires a defendant to reasonably foresee that a co-conspirator would possess a gun. Here, there was direct testimony that defendant gave two co-conspirators a weapon. Moreover, the nature of large-scale drug transactions permits the sentencing court to infer that an accomplice’s possession of a gun was reasonably foreseeable to the defendant. U.S. v. De Leon Ruiz, 47 F.3d 452 (1st Cir. 1995).
1st Circuit upholds firearm enhancement even though no gun was ever found. (284) The district court imposed a § 2D1.1(b)(1) firearm enhancement based on based on testimony linking defendant and his co-defendants to a firearm. The 1st Circuit held that this testimony was sufficient to support the firearm enhancement, even though no gun was ever found. A co-defendant testified that at a meeting to finalize drug smuggling plans, defendant gave him two firearms. Additionally, an informant testified that the co-defendant had brought one of the guns with him when they went to the Dominican Republic a few days later to pick cocaine. Absent circumstances showing that it was clearly improbable that the firearms were connected to the drug offense, there was sufficient evidence to support the enhancement. U.S. v. Ovalle-Marquez, 36 F.3d 212 (1st Cir. 1994).
1st Circuit upholds firearm enhancement for defendant who was bodyguard during drug deal. (284) Defendant pled guilty to drug charges. At sentencing, a charge of using a firearm in connection with the drug offense was dismissed. Nevertheless, the 1st Circuit upheld an enhancement under § 2D1.1(b)(1) for carrying a firearm in connection with a drug trafficking offense. Defendant carried a pistol and served as a bodyguard while one of his co-conspirators negotiated a drug deal. The government is not required to show the same elements as required for conviction under 18 U.S.C. § 924(c)(1). Under the guidelines, once the government establishes the underlying crime and the presence of a firearm, the burden shifts to defendant to show the existence of special circumstances that would render it “clearly improbable” that the weapon was connected to the drug crime. The fact that the enhancement increased defendant’s sentence by 52 months (as compared to a statutory minimum of 60 months for a § 924(c)(1) conviction) did not require proof beyond a reasonable doubt. U.S. v. Gonzalez-Vazquez, 34 F.3d 19 (1st Cir. 1994).
1st Circuit upholds firearm enhancement for gun found outside car where defendants were sitting. (284) The 1st Circuit upheld a firearm enhancement under section 2D1.1(b)(1) based upon a gun found outside the car in which defendants were sitting at the time of their arrest. A co-conspirator was found in possession of five bullets compatible with the gun. The court could properly infer that the co-conspirator had the gun on his person before throwing it from the car. Here, given the jury’s conclusion that defendants were involved in the drug transaction, and the lack of any evidence to contradict the reasonable foreseeability of the co-conspirator’s gun possession at the scene of a large-scale drug deal, the enhancement was not clearly erroneous. Although the co-conspirators who pled guilty did not receive a similar enhancement, the court rejected defendant’s claim that the enhancement was the result of vindictive sentencing. U.S. v. Mena-Robles, 4 F.3d 1026 (1st Cir. 1993).
1st Circuit upholds firearm enhancement despite failure to charge defendant with possession and co-defendant’s acquittal. (284) Defendant was convicted of drug charges based on cocaine found in the dresser of the bedroom she shared with a co-defendant. The 1st Circuit upheld a firearm enhancement under section 2D1.1(b)(1) based on a gun found under the mattress of the bed. The fact that defendant was not charged with possessing the weapon and that her co-defendant was acquitted did not make the enhancement erroneous. The sentencing court reasonably inferred that defendant knew of the gun’s presence: she lived in the apartment with the co-defendant; the firearm was hidden under their bed; the ammunition for the pistol lay on the floor, next to the bed, plainly within her view; the apartment was used to traffic narcotics; and the gun was located only a few feet from where the cocaine and cutting agent were found. The judge was entitled to disregard defendant’s claim that she knew nothing of the weapon. U.S. v. Jackson, 3 F.3d 506 (1st Cir. 1993).
1st Circuit affirms firearm enhancement based on weapon found in locked closet with heroin. (284) Police found in a locked closet outside defendant’s apartment a quantity of heroin, a balance scale, a bag containing two guns and a small box of ammunition. The 1st Circuit affirmed an enhancement for possession of a firearm during a drug trafficking crime. The district court’s finding that defendant was aware that the guns were in the closet was supported by evidence that the only person observed at the closet was defendant, the only key to the closet was recovered from defendant, and defendant’s fingerprints were found on the scale in the closet. The weapon was readily accessible to defendant. While a nexus must be shown between the weapon and the criminal act, the defendant need not have the weapon on his person or in the immediate vicinity. Defendant’s acquittal on the charge of using and carrying a firearm in relation to a drug trafficking crime was not determinative in the sentencing decision. U.S. v. Pineda, 981 F.2d 569 (1st Cir. 1992).
1st Circuit upholds enhancement for defendant who sold cocaine and firearm to undercover agent. (284) Defendant sold cocaine and an unloaded .22 revolver and six bullets to an undercover agent. The firearms charge was severed from the drug charges. In sentencing for the drug charges, the 1st Circuit found no plain error in an enhancement under section 2D1.1(b) for possessing a firearm during a drug trafficking crime. The fact that defendant was selling the firearm to the agent, and not using it in the drug offense, was not important. There is no requirement that the weapon be intended for use in perpetrating the drug offense. Defendant arrived at the scene of the drug transaction in possession of a firearm, which was enough to trigger the enhancement. The presence of the weapon and ammunition likely instilled confidence in defendant, if not fear in those with whom he was dealing. U.S. v. Castillo, 979 F.2d 8 (1st Cir. 1992).
1st Circuit affirms firearm enhancement based on assistant’s use of Uzi to collect drug debts. (284) Defendant was convicted of conspiring to distribute cocaine. The 1st Circuit affirmed an enhancement for use of a firearm during the offense based upon evidence that defendant’s assistant carried an Uzi submachine gun in “strong-arming drug debt collections.” U.S. v. Bello-Perez, 977 F.2d 664 (1st Cir. 1992)
1st Circuit affirms that co-conspirator’s firearm possession was foreseeable based on large quantity of money and drugs. (284) The 1st Circuit affirmed a two-level enhancement under 2D1.1(b)(1) for defendant based upon a co-conspirator’s possession of a gun during a drug transaction. Defendant set up the transaction and knew that a large quantity of money ($28,000) and drugs (one kilogram of almost pure cocaine) would be exchanged. In addition, a large number of co-conspirators were present at the transaction as a show of force. Thus, it would be “reasonably foreseeable” to expect a co-defendant to possess such a weapon. U.S. v. Sostre, 967 F.2d 728 (1st Cir. 1992).
1st Circuit upholds firearm enhancement for weapons purchased by spouse for “home protection.” (284) Defendant was involved in her husband’s drug trafficking business, which he conducted from their residence. A search uncovered drugs and two guns which had been purchased by defendant’s husband for “home protection.” The husband had a “concealed guns” permit. Defendant testified that she never handled the weapons, but admitted knowing where they were located. The 1st Circuit affirmed an enhancement under section 2D1.1(b)(1) for possession of a firearm during a drug trafficking crime. The fact that there may have been an alternative, legal basis for the guns’ possession did not, by itself, prevent the enhancement. When the weapon’s location makes it readily available to protect the participants or the drugs and cash during the commission of the illegal activity, there is sufficient evidence to connect the weapons to the offense. U.S. v. Corcimiglia, 967 F.2d 724 (1st Cir. 1992).
1st Circuit affirms firearm enhancement even though principal reason for gun was prior robberies in neighborhood. (284) Defendant was arrested after a search revealed drugs at the market she owned and operated. A gun was found hidden in a box underneath the counter where defendant was working. The 1st Circuit affirmed an enhancement under section 2D1.1(b) for possession of a firearm during a drug trafficking crime. Defendant testified that the gun was there for protection because the market was in a bad neighborhood and had been robbed several times. This established that she was aware of the gun’s presence. It was not clearly improbable to believe that defendant would have used the gun during the drug transaction if necessary. The fact that the principal reason for the gun was the previous robberies was not relevant. U.S. v. Almonte, 952 F.2d 20 (1st Cir. 1991).
1st Circuit finds no disparity in enhancing defendant’s sentence for possession of firearm. (284) Police recovered a loaded pistol and a quantity of drugs from defendant’s residence. The 1st Circuit found no “unjustifiably wide” sentencing disparity in giving defendant, but not his two co-defendants, an enhancement under guideline section 2D1.1(b) for possession of a firearm during a drug trafficking crime. Defendant, unlike his partners, lived in the apartment, which permitted the district court to conclude that he was in constructive possession of the weapon, whether or not he owned it. U.S. v. Font-Ramirez, 944 F.2d 42 (1st Cir. 1991).
1st Circuit affirms firearm enhancement based upon gun held to drug courier’s head. (284) Defendant ran a continuing criminal enterprise involving vast amounts of drugs. When one of his couriers faked a robbery` in order to steal a drug shipment, defendant and others took the courier to an apartment where the courier was beaten and a gun held to his head in order to make him confess to faking the robbery. The 1st Circuit affirmed an enhancement under guideline § 2D1.1(b) for use of a firearm during a drug trafficking offense. Defendant was responsible for the gun’s use, whether or not he actually held the gun himself. It was perfectly reasonable for the district court to conclude that, in brandishing, or causing the firearm to be brandished, while trying to retrieve a stolen shipment of cocaine, defendant was furthering the substantive offense related to that shipment. U.S. v. David, 940 F.2d 722 (1st Cir. 1991).
1st Circuit affirms enhancement based upon co-defendant’s possession of firearm. (284) One defendant and a co-defendant were arrested attempting to purchase 100 pounds of marijuana from a government informant for the sum of $80,000. The other defendant was arrested for his role in brokering the deal. The 1st Circuit upheld the enhancement of both defendants’ sentences based upon the co-defendant’s possession of a gun. The court found that it was “fairly inferable” that the co-defendant’s possession of the gun was foreseeable given the intended exchange of a large quantity of controlled substances for a large amount of cash between drug dealers doing business together for the first time. Defendants presented no evidence to rebut this presumption. U.S. v. Bianco, 922 F.2d 910 (1st Cir. 1991).
1st Circuit upholds enhancement based upon gun found in car in airport parking lot. (284) Defendant was arrested at the airport attempting to open a locker which he had been told contained cocaine. A loaded semiautomatic pistol was seized from defendant’s automobile, which was parked in the airport parking lot. The 1st Circuit upheld an enhancement based on defendant’s possession of the gun during a drug offense, noting that “we would be blinking reality were we to hold that the weapon’s presence was purely coincidental or that any connection between it and the crime of conviction was improbable.” U.S. v. McDowell, 918 F.2d 1004 (1st Cir. 1990).
1st Circuit affirms firearm enhancement. (284) Six operable firearms were found at defendant’s residence, with three loaded and one within arm’s reach. Also found were 64 grams of cocaine, two surveillance cameras and a camera monitoring the driveway and front of the residence, as well as notebooks describing drug transactions. Based on these facts the 1st Circuit held that a finding that the firearms were connected with a drug offense was not clearly erroneous. U.S. v. Preakos, 907 F.2d 7 (1st Cir. 1990).
1st Circuit affirms firearm enhancement even though defendant carried a gun in his occupation as a police officer. (284) Defendant was a police officer convicted of racketeering and drug trafficking. At sentencing, the district court elevated his basic offense level for possession of a firearm during a drug offense. Defendant argued the connection was tenuous since he lawfully carried a gun as a police officer rather than as a means for facilitating drug offenses. The 1st Circuit rejected the argument, ruling that there is no requirement that the weapon be used or be intended to use in a drug crime. Since defendant was known to carry a gun, confidence was likely instilled in those who relied on him for protection in selling drugs, and fear in those who dealt with his suppliers. Because it was not clearly improbable that defendant’s weapon was connected with his drug offenses, the district court’s factual finding was not clearly erroneous. U.S. v. Ruiz, 905 F.2d 499 (1st Cir. 1990).
1st Circuit affirms upward adjustment for possession of firearm during drug trafficking offense. (284) The District Court increased defendant’s offense level by two for possession of a firearm during the commission of a drug trafficking offense. Defendant admitted owning a firearm during the dates of the offense, but claimed he did so because of death threats and never carried it during the drug transactions for which he was convicted. Witnesses testified that they had seen defendant carry the weapon during the specific drug transactions and that defendant was known as an armed methamphetamine dealer. Based on these facts, the District Court’s finding that it was not “clearly improbable” that defendant possessed the weapon during the offense was not clearly erroneous. U.S. v. Luster, 896 F.2d 1122 (8th Cir. 1990).
1st Circuit rules proximity of gun to drug proceeds is grounds for enhancement of drug offense level where drugs were also nearby. (284) A drug defendant was also convicted of being an illegal alien in possession of a firearm. The sentencing court enhanced the base offense level for the drug charge by two points under § 2D1.1(b)(1) because he possessed the firearm during the commission of the drug offense. The 1st Circuit affirmed the enhancement on the grounds that it was not “clearly improbable” that the weapon was connected to the drug offense. The gun was found in the same location in the apartment where drug proceeds and records were kept. The drugs were found in an adjoining apartment. The court found that because the money “quite clearly” came from the sale of heroin, and the weapon was found next to the money “in this sense, it was clearly connected with the offense.” Since the sentencing court’s findings were not clearly erroneous enhancement was proper. U.S. v. Paulino, 887 F.2d 358 (1st Cir. 1989).
2nd Circuit rules dangerous weapon increase did not violate Second Amendment. (284) Defendant was convicted of drug trafficking charges, and received a § 2D1.1(b)(1) enhancement based on his possession of a firearm during the offense. The Second Circuit rejected defendant’s argument that applying the § 2D1.1(b)(1) enhancement violated the Second Amendment. The right to keep and bears arms is not unlimited. Courts have rejected Second Amendment challenges to federal felon-in-possession convictions and related expungement exceptions. By penalizing weapon possession during a drug offense, the § 2D1.1(b)(1) enhancement is consistent with the historical understanding of the right to keep and bear arms, which does not extend to possession of weapons for unlawful purposes. To hold the contrary would suggest that the Second Amendment protects an individual’s right to possess a weapon for criminal purposes. U.S. v. Greeno, 679 F.3d 510 (6th Cir. 2012).
2nd Circuit finds it reasonably foreseeable that firearm would be used in drug ring. (284) Defendant, a police detective, was convicted of charges in connection with a large narcotics trafficking ring. He challenged a two-level firearm increase under U.S.S.G. § 2D1.1(b)(1), arguing that a firearm was not found in physical proximity to him, and the conspiracy’s leader never informed him that a member of the narcotics conspiracy possessed a firearm. The Second Circuit upheld the enhancement. Although a physical nexus between the defendant and the firearm is often useful, such a nexus is not required. Courts should determine whether, by a preponderance of the evidence, possession of a firearm in connection with the offense was reasonably foreseeable to the defendant. Here, defendant was an experienced narcotics detective with the NYPD, who had conducted extensive undercover operations infiltrating illegal narcotics operations, and who was well aware that “drug dealers are often armed.” Defendant knew the general size and scope of the drug ring, and could easily have foreseen that someone would possess a firearm in relation to the illegal activities of the ring. U.S. v. Batista, 684 F.3d 333 (2d Cir. 2012).
2nd Circuit agrees that defendant possessed gun in connection with drug conspiracy. (284) Defendant pled guilty to conspiring to distribute cocaine, and received a § 2D1.1(b)(1) enhancement for defendant’s possession of firearms in connection with the drug conspiracy. The court found that defendant used a gun to shoot a man who planned to rob the location at which defendant had kept money from his drug-trafficking. Although defendant’s concern for his family was a “strong motivating factor” in the shooting, the court found that the “dominant factor” motivating the shooting was defendant’s need to protect the location where he had been storing his drug proceeds. The Second Circuit held that the § 2D1.1(b)(1) was supported by the evidence. Defendant’s neighbor testified that defendant possessed firearms to protect his drug-related activities. This testimony was unrebutted. U.S. v. Santiago, 384 F.3d 31 (2d Cir. 2004).
2nd Circuit applies § 2D1.1(b)(1) where drugs were exchanged for guns. (284) Defendant, a crack cocaine dealer, exchanged crack to undercover agents for 11 firearms. He argued that a § 2D1.1(b)(1) increase for possessing a dangerous weapon during the drug offense was not applicable because it was the agent who brought the unloaded guns to the scene and maintained control over them until after the drugs were delivered. The Second Circuit held that a defendant possesses a dangerous weapon within the meaning of § 2D1.1(b)(1) when he trades drugs for guns. There is no reason to draw a distinction between a gun’s role in a drug offense as a weapon and its role as an item of barter – in either capacity, it creates a grave possibility of violence and death. U.S. v. Smythe, 363 F.3d 127 (2d Cir. 2004).
2nd Circuit rules court should have found defendant lived at apartment where gun and drugs were found. (284) Defendant was stopped outside an apartment and found to be in possession of nine grams of cocaine base. He told police that there were drugs, drug paraphernalia and three weapons in the apartment. Police searched the apartment and found Perez flushing drugs down the toilet. The also found cash, drugs, drug paraphernalia, and three weapons matching the description given by defendant. The district court declined to impose a § 2D1.1(b)(1) firearm increase, finding the record unclear as to who possessed the weapons, and who resided at the address. The Second Circuit ruled that the district court clearly erred in not finding that defendant lived at the apartment. The court’s findings ignored key facts established by the PSR and undisputed or admitted by defendant. For example, the PSR noted that “at the time of the defendant’s arrest he admitted to law enforcement officials that he possessed three handguns at his apartment …” Defendant did not object to the inclusion of these facts in the PSR. Moreover, in one brief, defendant stated he lived at the apartment with Perez. Finally, the evidence demonstrated that defendant knew of the presence of the guns at his residence, where he also kept drugs and drug paraphernalia. Thus, unless it is clearly improbable that the weapons were connected with the offense, the enhancement must be applied. On remand, the district court must address the “clearly improbable” issue. U.S. v. Smith, 215 F.3d 237 (2d Cir. 2000).
2nd Circuit permits resentencing after successful § 2241 challenge to firearm conviction. (284) In U.S. v. Gordils, 117 F.3d 99 (2d Cir. 1997), the Second Circuit held that where the defendant has successfully challenged a § 924(c) firearm conviction in a 28 U.S.C. § 2255 petition, the district court has jurisdiction to resentence the defendant on the underlying drug conviction. In the present case, the Second Circuit held that such resentencing is permissible where the defendant has made an identical challenge in a § 2241 petition. Although 18 U.S.C. § 3582(c) limits the circumstances in which courts can modify a term of imprisonment once imposed, it does not limit the court’s authority under § 2243 to resentence defendant to the overall prison term he would have received absent his unlawful § 924(c) conviction. Other than the particular habeas statutes under which Gordils and defendant proceeded, there was no meaningful difference between these cases that would affect the courts’ respective resentencing powers. The resentencing did not violate the double jeopardy clause. Defendant’s two sentences were part of an interdependent sentencing package. U.S. v. Triestman, 178 F.3d 624 (2d Cir. 1999).
2nd Circuit considers admissions made during plea hearing even though count was later vacated. (284) In 1989, defendant pled guilty to drug charges and to using a firearm during a drug trafficking crime. During his plea hearing, he admitted that he possessed a gun to protect himself during his drug trafficking activities. In 1997, defendant successfully moved under § 2255 to have the firearm count vacated in light of the Supreme Court’s opinion in Bailey v. United States, 516 U.S. 137 (1995). The Second Circuit held that defendant’s 1989 plea admission that he possessed a gun to protect himself while drug trafficking was admissible at resentencing to support a § 2D1.1(b)(1) firearm enhancement. The fact that the statement was made as part of a plea to a later-vacated count did not make it inadmissible at sentencing. Although statements made in the course of a later-withdrawn guilty plea are not admissible at trial, that rule of evidence does not apply at sentencing. The Federal Rules of Evidence do not apply at sentencing. Defendant’s admission that he carried a gun to protect himself while selling crack adequately supported the enhancement. U.S. v. Simmons, 164 F.3d 76 (2d Cir. 1998).
2nd Circuit counts gun under § 2D1.1 despite § 924(c) acquittal on gun count. (284) The Second Circuit upheld a § 2D1.1(b)(1) enhancement for possessing a firearm during a drug offense despite defendant’s acquittal of using a gun during a drug trafficking crime under 18 U.S.C. § 924(c). An acquittal does not conclusively establishing the untruth of all the evidence introduced against the defendant. Disputed sentencing factors need only be proven by a preponderance of the evidence. There was ample evidence to find by a preponderance of the evidence that defendant possessed a gun during the commission of a narcotics offense. A co-conspirator testified that on two occasions he saw defendant in an apartment carrying a gun during the course of a narcotics transaction. The district court found this testimony credible. The ATF recovered a gun holster from the apartment on the day that defendant was arrested. U.S. v. Lynch, 92 F.3d 62 (2d Cir. 1996).
2nd Circuit upholds enhancement for guns found in trailer where drugs were stored and cut. (284) Defendant argued that two guns seized from his trailer were unconnected to his drug offense for purposes of a section 2D1.1(b)(1) enhancement. He stressed that all of his drug sales took place elsewhere, he was arrested several miles away from his home, and no drugs or paraphernalia were found in the trailer. The 2nd Circuit upheld the enhancement, since defendant cut and stored cocaine at the trailer. U.S. v. Sweet, 25 F.3d 160 (2nd Cir. 1994).
2nd Circuit upholds firearm enhancement where defendant was seen carrying a gun. (284) The 2nd Circuit found that the firearms enhancement was supported by one conspirator’s testimony that she had seen defendant carrying a gun at the store from which the narcotics operation was run, by another coconspirator’s testimony that he had seen defendant carrying a gun more than a dozen times, that defendant habitually wore a long black leather coat to conceal his guns, and that defendant had threatened to shoot him if he cheated on the organization. U.S. v. Tracy, 12 F.3d 1186 (2nd Cir. 1993).
2nd Circuit upholds enhancement based on gun seized over two months after last drug activity in apartment. (284) The 2nd Circuit upheld an enhancement under section 2D1.1(b)(1) based on a gun found in defendant’s apartment over two months after the last narcotics-related activity in the apartment. It was not error for the district court to find that, more likely than not, the gun was in the apartment during the period of drug activity. U.S. v. Wilson, 11 F.3d 346 (2nd Cir. 1993).
2nd Circuit affirms foreseeability of weapon where doing business with new customer. (284) The 2nd Circuit affirmed a firearm enhancement under section 2D1.1(b)(1) since it was reasonably foreseeable to defendant that one or more of his co-conspirators would bring a firearm to a drug transaction with an undercover agent. Defendant was part of the group carrying the weapon during the attempted heroin sale. There was evidence that the gun was found in one of the vehicles in the caravan assembled at the scene of the aborted sale, and was within easy reach of its occupants. Guns are among the tools of the narcotics trade. Defendant had stated to the agent that because they had never done business before, he intended to take precautions. U.S. v. Stevens, 985 F.2d 1175 (2nd Cir. 1993).
2nd Circuit upholds firearm enhancement where possession of firearm was reasonably foreseeable. (284) Defendant contended that an enhancement under guideline section 2D1.1(b)(1) based upon possession of a firearm during a drug trafficking crime was improper because he lacked actual knowledge of the weapon’s existence. The 2nd Circuit rejected this, holding that a firearm enhancement may be applied to a defendant’s sentence based on possession of a weapon so long as the possession of the firearm was reasonably foreseeable to the defendant. Here, defendant could have reasonably foreseen that firearms would be possessed in connection with the crack-packaging activities in the apartment. There was a large quantity of narcotics and narcotics paraphernalia in the apartment where defendant was arrested, and three types of various caliber ammunition were strewn about the apartment in plain view. U.S. v. Soto, 959 F.2d 1181 (2nd Cir. 1992).
2nd Circuit holds that defendant had sufficient connection with apartment in which guns were found to merit enhancement. (284) Defendant contended that his only connection with an apartment in which drugs and weapons were discovered was his presence, and that therefore an enhancement under section 2D1.1(b)(1) was improper. The 2nd Circuit ruled that there was sufficient evidence for the district court to find that defendant had substantial contact with the apartment and that the weapon was connected to the offense. U.S. v. Olvera, 954 F.2d 788 (2nd Cir. 1992).
2nd Circuit affirms firearm enhancement even though firearms offense was treated as drug offense. (284) Defendant was convicted of drug charges and being a felon in possession of a firearm. Section 2K2.1(c)(2) says that where the weapon is possessed in connection with another offense, the guideline for the other offense applies if the offense level is higher. This resulted in treating the weapons offense as a drug offense under section 2D1.1(c). The district court then grouped the weapons offense with the other drug offenses under section 3D1.2(d), and enhanced the sentence under guideline section 2D1.1(b) for possession of a weapon during a drug trafficking crime. The 2nd Circuit affirmed, stating that although the enhancement for gun possession might appear to be double counting, this dual use of the gun was intended by the Sentencing Commission. The cross-reference to the drug guideline includes all adjustments appropriate to drug offenses, including the enhancement for gun possession. Moreover, it was proper to add the gun enhancement to the offense level for the aggregated drug quantity, even though the gun was only possessed in connection with a small part of the drugs. U.S. v. Patterson, 947 F.2d 635 (2nd Cir. 1991).
2nd Circuit affirms enhancement for firearm possession during transaction that took place one month after offense of conviction. (284) Defendant contended it was error to enhance his offense level under guideline § 2D1.1(b)(1) for possession of a firearm during a drug transaction which took place on June 14, since the offense of conviction occurred May 16. The 2nd Circuit affirmed the sentence, holding that the gun possessed on June 14 could result in a weapons adjustment for the May 16 drug crime if the the gun was possessed in connection with drug activity and the drug activity on June 14 was part of the same course of conduct or common scheme as the May 16 sale. Both conditions were met here. Both transactions were one of a series of meetings in which defendant either arranged to sell or actually sold crack to undercover detectives following introductions by the same informant, and the weapon was possessed as a security measure. However, the district judge did erroneously state that the gun possession had to be linked to a transaction specified in one of the dismissed counts. U.S. v. Quintero, 937 F.2d 95 (2nd Cir. 1991).
2nd Circuit determines that stun gun is a dangerous weapon justifying enhancement. (284) The 2nd Circuit upheld an enhancement under guideline § 2D1.1(b) based upon defendant’s possession of a stun gun. A weapon need not permanently impair in order to be dangerous. The incapacitation caused by a stun gun constituted sufficient “impairment,” particularly in light of the increased violence that occurs when drug traffickers possess weapons. U.S. v. Agron, 921 F.2d 25 (10th Cir. 1990).
2nd Circuit upholds finding that gun under defendant’s bed was used in connection with his drug offenses. (284) Commentary 3 to U.S.S.G. § 2D1.1 provides that the adjustment for weapon possession “should be applied if the weapon was present, unless it is clearly unprobable that the weapon was connected with the offense.” In this case, defendant had a loaded semiautomatic handgun in his master bedroom under the bed. He stored the cocaine in his garage, kept the records of narcotics transactions at his house, and used the house phone to arrange cocaine deals. Under these circumstances, the 2nd Circuit upheld the trial judge’s finding that the firearm was possessed during the commission of the narcotics offenses. U.S. v. Schaper, 903 F.2d 891 (2nd Cir. 1990).
2nd Circuit upholds enhancement for possession of a firearm during a drug offense. (284) Defendant’s sentence was enhanced for possession of a firearm during a drug trafficking offense. Evidence showed he regularly went in and out of the apartment where the gun was found, and that minutes before its discovery he had been in the apartment and admitted the apartment was his. Based on these facts, the 2nd Circuit held that enhancement was proper. U.S. v. Rodriguez-Gonzalez, 899 F.2d 177 (2nd Cir. 1990).
3rd Circuit upholds firearm increase even though gun was never recovered by police. (284) In September 1999, a state trooper pulled over defendant and his two passengers for speeding. The trooper discovered a bag of heroin in the car, and defendant was convicted of drug conspiracy charges. At sentencing, one of the passengers testified about the numerous trips to New York he and defendant made over the past several years to purchase drugs. The passenger also testified that defendant gave him a gun to protect them on every trip they took to pick up drugs and that in particular, defendant gave him a gun on the September 1999 trip. Although the troopers did not recover the firearm from the vehicle or at the scene of arrest, the Third Circuit upheld a § 2D1.1(b)(1) firearm increase. The district court concluded that the passenger was credible on this point. The increase was not clearly erroneous. U.S. v. Givan, 320 F.3d 452 (3d Cir. 2003).
3rd Circuit upholds firearm increase even though gun was located under a desk in cluttered room. (284) At defendant’s father’s house, police found two unloaded guns, ammunition, more than $31,000 in cash, 1.2 grams of a cutting agent called “Inositol,” plastic zip-lock bags, and “owe sheets,” lists of money owed on drug transactions. The guns were arguably inaccessible because they were located under a desk, on top of and in front of which was piled a quantity of boxes, clothes, and bric-a-brac, which the investigating trooper had to move in order to get to the desk and prevent it falling on him while he searched. The Third Circuit upheld a § 2D1.1(b)(1) firearm increase, ruling that defendant did not establish that it was “clearly improbable” that the weapons found at defendant’s father’s house were connected with defendant’s drug conspiracy. First, while the bedroom in which the trooper found that weapons contained a great deal of junk, the desk under which the guns were stored was not completed blocked, the junk was not heavy or difficult to move, and the trooper was able to find the guns relatively quickly. Second, while there were no drugs in the house where the guns were found, there was a great deal of drug paraphernalia. In addition, the conspiracy lasted several years, and it was not clearly improbable that at some point during those years these guns, found so close to the drug money and the owe sheets, were used in conjunction with the drug money. U.S. v. Drozdowski, 313 F.3d 819 (3d Cir. 2002).
3rd Circuit holds that consideration of statement in violation of cooperation agreement was not prejudicial. (284) Defendant’s plea agreement provided that the statements he made during his cooperation would not be used against him in any subsequent prosecution or in the determination of his sentence under the guidelines. In enhancing defendant’s sentence under § 2D1.1(b)(1) for possessing a firearm, the district court relied in part on the fact that “defendant’s own admissions at one time confirmed the fact that the guns were in the house.” Defendant offered this information while cooperating with the government, and therefore the district court’s consideration of it violated defendant’s plea agreement as well as USSG § 1B1.8. However, defendant did not object to the district court’s consideration of his statement. The Third Circuit held that the district court’s consideration of the statement did not present reversible error because defendant failed to present any evidence regarding prejudicial effect. The government presented sufficient evidence, independent of defendant’s post-cooperation statements, in support of the increase. One of defendant’s co-conspirators admitted that when he, defendant and others were dealing drugs, they were in possession of a variety of handguns. The district court could consider this information without violating defendant’s plea agreement. U.S. v. Thornton, 306 F.3d 1355 (3d Cir. 2002).
3rd Circuit upholds firearm increase where loaded gun was found in bag with drugs and drug paraphernalia. (284) The district court applied a § 2D1.1(b)(1) increase because the marshals found a loaded .32 caliber revolver in one of defendant’s bags. Defendant challenged the increase for the first time on appeal. The Third Circuit held that the firearm enhancement was not plain error. Defendant possessed a loaded firearm in a bag containing drugs and drug paraphernalia. Defendant did not point to any evidence suggesting that it was “clearly improbable” that the loaded revolver in the bag “was connected with” his drug trafficking. The fact that a § 924(c) charge was dismissed on the government’s motion was irrelevant. U.S. v. Johnson, 302 F.3d 139 (3d Cir. 2002).
3rd Circuit applies firearm enhancement for showing guns to drug courier. (284) Pitt drove a quantity of cocaine from Utah to defendant’s house in Pennsylvania. Defendant took Pitt on a tour of his house, and showed him several firearms, including a .357 caliber revolver. The Third Circuit affirmed a § 2D1.1(b)(1) firearm enhancement. The weapons shown to Pitt were “connected to the offense” and were intended to indicate a potential for violence. Defendant displayed his weapons to Pitt not so that Pitt could admire them, but so Pitt, the drug courier, could clearly understand that defendant was never to be crossed. U.S. v. Pitt, 193 F.3d 751 (3d Cir. 1999).
3rd Circuit holds that firearm enhancement did not violate double jeopardy despite earlier gun conviction. (284) In 1996, while the investigation of the current drug conspiracy was ongoing, the government prosecuted defendant under 18 U.S.C. § 922(g) for being a felon in possession of a firearm. At sentencing for the current drug conspiracy, the district court applied a § 2D1.1(b)(1) enhancement for possessing the same weapon while serving as an enforcer for the conspiracy. The Third Circuit held that the firearm enhancement did not violate double jeopardy. The use of relevant conduct to increase the punishment of a charged offense does not punish the offender for that conduct. See Witte v. United States, 515 U.S. 389 (1995). Because defendant’s weapon possession was the basis for a conviction of a separate offense with different requirements, the current enhancement did not violate double jeopardy. U.S. v. Gibbs, 190 F.3d 188 (3rd Cir. 1999).
3rd Circuit increases drug sentence for using knife to attack man who stole drug proceeds. (284) Defendant was convicted of a drug conspiracy. The district court enhanced his sentence under § 2D1.1(b)(1) based on his possession of a knife he used to assault a man who had stolen his drug proceeds. The court also based the enhancement on defendant’s possession of two guns purchased by his girlfriend. Defendant argued that he used the knife in self-defense and that this was not the type of possession contemplated by § 2D1.1(b)(1). The Third Circuit disagreed. The enhancement applies if the weapon is present, unless it is clearly improbable that the weapon was connected with the offense. The confrontation between defendant and his victim was about drug proceeds. It was not improbable that the knife was connected with the drug offense. U.S. v. Russell, 134 F.3d 171 (3d Cir. 1998).
3rd Circuit allows § 2D1.1(b)(1) gun increase after § 924 sentence is vacated. (284) Defendant was found in lying on a bed with a loaded firearm in a room in which there was also a substantial quantity of cocaine base. He was convicted of drug and § 924(c) firearms charges. The government did not urge the court to apply a § 2D1.1(b)(1) enhancement. Defendant appealed, and while his appeal was pending the Supreme Court decided Bailey v. U.S., 116 S.Ct. 501 (1995), which required “active employment” of a firearm for a § 924(c)(1) conviction. Defendant and the government stipulated that the appeal would be dismissed so defendant could move to vacate his § 924(c) conviction. The district court vacated his sentence, but then imposed a § 2D1.1(b)(1) enhancement to the drug sentence. On appeal, the Third Circuit affirmed. The government did not waive its rights because no enhancement was previously possible because of the § 924(c) conviction. Defendant’s acquittal on § 924(c) charges did not bar the § 2D1.1(b)(1) enhancement. The district court did not lose jurisdiction over the drug count not challenged in defendant’s motion to vacate. U.S. v. Goggins, 99 F.3d 116 (3d Cir. 1996).
3rd Circuit infers that defendant possessed gun to further violent aims of conspiracy. (284) Defendant challenged an enhancement under section 2D1.1(b) arguing that there was no evidence he used the gun in furtherance of the drug conspiracy. The 3rd Circuit noted that there need not be evidence that defendant ever used the gun to commit acts of violence. It is the risk of violence caused by the combination of firearms and drugs that merits the increase. Moreover, the court found that defendant had participated in a shoot-out at City Hall. Even if there was no evidence that defendant used his gun at that particular encounter, a reasonable inference could be drawn that defendant possessed a gun in order to further the violent aims of the conspiracy. U.S. v. Price, 13 F.3d 711 (3rd Cir. 1994).
3rd Circuit upholds firearm enhancement based upon “arsenal” found in defendant’s house. (284) Defendant was arrested after selling cocaine from his residence to an undercover agent. A search of the residence disclosed numerous firearms. The 3rd Circuit upheld an enhancement under guideline § 2D1.1(b)(1) based upon defendant’s possession of a dangerous weapon during the commission of a drug crime. Although the weapons were not used during the crime, they were clearly present during it. The district court could properly determine that the size and composition of defendant’s “arsenal” created a strong inference that he possessed the weapons in order to further the drug transaction. U.S. v. Demes, 941 F.2d 220 (3rd Cir. 1991).
4th Circuit agrees that weapons found in residence were connected to drug conspiracy. (284) Defendant was convicted of drug conspiracy charges. The district court applied a § 2D1.1(b)(1) enhancement for possession of a dangerous weapon, finding it reasonably foreseeable to defendant that the firearms would be used in the conspiracy. The Fourth Circuit affirmed. Undisputed portions of the PSR established that weapons were connected to the drug conspiracy. The PSR found defendant responsible for more than 8,000 grams of cocaine and 700 grams of cocaine base recovered in the form of narcotics and currency from a residence. Three firearms were discovered in the residence as well, including one that was in plain view. Various tools for measuring, storing, and dissolving cocaine were also present. The district court found that defendant was tied to the residence both through his presence there when the police arrived as well as through the existence of an energy bill for the residence in his name. Defendant also appeared to have been close with his co-conspirators. U.S. v. Gomez-Jimenez, 750 F.3d 370 (4th Cir. 2014).
4th Circuit relies on co-conspirator testimony to support weapon enhancement. (284) Defendant was convicted of drug conspiracy charges. He received a § 2D1.1(b)(1) dangerous weapon enhancement based on the statement of King, a co-conspirator who purchased or received cocaine from defendant in 2005. King stated that defendant “always carried guns” in connection with his drug-trafficking activities. Defendant argued that this statement was not credible because it was uncorroborated and because he had been arrested for and convicted of several drug offenses where a gun was not involved. The Fourth Circuit found no clear error in applying the enhancement. Defendant was a member of the conspiracy from at least 2003 to January 2007, and a reliable co-conspirator who interacted with defendant in the course of that conspiracy related his knowledge that defendant “always carried guns” in connection with his drug-trafficking activity. Defendant did not show that it was clearly improbable that the firearms were connected with the drug conspiracy. U.S. v. Slade, 631 F.3d 185 (4th Cir. 2011).
4th Circuit upholds firearm enhancement for guns in house and drugs in car. (284) Authorities investigating defendant’s drug activities executed a search warrant at his house. In the back bedroom, agents found a shoe box containing two handguns, which the agents seized. The agents also searched a car found at the house and seized a bag containing 3.26 grams of cocaine from under the driver’s seat. Defendant was the registered owner of the car. Defendant was arrested that day in possession of marijuana, crack, and $9520 in cash. The Fourth Circuit upheld a § 2D1.1(b)(1) firearm enhancement. The lack of proximity between the two handguns and the drugs seized from defendant’s person and his car was his strongest contention against the enhancement. However, it was sufficient that the guns were seized from the location (defendant’s residence) that was the focal point of defendant’s drug activity, and the guns could be deemed readily accessible to him. In addition, defendant possessed two handguns, the weapon of choice for drug suppliers. Finally, defendant was a substantial drug supplier and, as such, was an offender who would typically possess a handgun in connection with drug activities. U.S. v. Manigan, 592 F.3d 621 (4th Cir. 2010).
4th Circuit allows firearm enhancement despite acquittal on firearms count. (284) Defendants were convicted of drug conspiracy charges, but the judge granted a judgment of acquittal on a firearms conspiracy charge. They argued that the acquittal foreclosed the judge from finding as a sentencing fact that they had possessed a firearm in connection with the crack conspiracy. The Fourth Circuit disagreed. Due to the different standards of proof applicable to trials and sentencing proceedings, an acquittal does not prevent the sentencing court from considering conduct underlying the acquitted charge, so long as that conduct has been proven by a preponderance of the evidence. At sentencing, the court was entitled to consider evidence relating to firearms possession, and the prosecution was only required to prove any such possession by a preponderance of the evidence. U.S. v. Brooks, 524 F.3d 549 (4th Cir. 2008).
4th Circuit holds that state gun conviction did not bar § 2D1.1(b) firearm enhancement. (284) Defendant argued that a § 2D1.1(b)(1) firearm enhancement was improper because he was previously convicted in state court for the same possession of the same firearm. However, under the doctrine of dual sovereignty, federal prosecutions are not barred by a previous state prosecution for the same or similar conduct. The government could have prosecuted defendant under 18 U.S.C. § 924(c)(1) for possession of the firearm, notwithstanding his state conviction. If the federal prosecution is allowed under the law, the Fourth Circuit concluded that the guideline enhancement must also be allowed. U.S. v. Christmas, 222 F.3d 141 (4th Cir. 2000).
4th Circuit finds sufficient nexus between shooting and drug conspiracy to support gun enhancement. (284) Defendant was a member of a drug trafficking organization that distributed cocaine from two trailer homes in Virginia. The district court applied a § 2D1.1(b)(1) firearm enhancement for defendant’s shooting of a police officer during a November 1996 search of defendant’s residence. Defendant claimed the increase was erroneous because no drugs were found during the search. However, Burton testified that when he went to purchase drugs at defendant’s home in September 1996, defendant and co-conspirator Womack discussed how a “bust” could come at any time. Womack added that if a bust “came down,” they had to be prepared to “take ‘em out, whoever it is.” The Fourth Circuit ruled that Burton’s testimony established a sufficient nexus between the shooting and the drug conspiracy to support the district court’s finding that defendant’s possession of the firearm was connected to a drug offense. U.S. v. Lipford, 203 F.3d 259 (4th Cir. 2000).
4th Circuit says firearm enhancement and criminal history point not double counting. (284) Defendant argued that the criminal history point he received for a May 1991 conviction for carrying a concealed weapon and a § 2D1.1(b) (1) enhancement for possessing a firearm during a drug trafficking crime constituted double counting. The Fourth Circuit found the two increases were proper. There was evidence at trial other than the 1991 conviction, including statements by two witnesses, that connected defendant to a firearm. In addition, the PSR detailed evidence relating to the possession of weapons by defendant’s co-conspirators. A § 2D1.1(b)(1) enhancement can be based upon a co-conspirator’s firearm possession if it was reasonably foreseeable to the defendant. U.S. v. Rhynes, 196 F.3d 207 (4th Cir. 1999), vacated in part on other grounds, U.S. v. Rhynes, 218 F.3d 310 (4th Cir. 2000) (en banc).
4th Circuit says unloaded gun does not bar § 2D1.1(b)(1) enhancement. (284) Defendant pled guilty to possessing a controlled substance with intent to distribute. The district court applied a § 2D1.1(b)(1) enhancement based on unloaded guns found at his residence. Defendant argued that the government failed to produce any evidence linking the guns to the drug-trafficking charge. The Fourth Circuit affirmed the enhancement because defendant failed to show that the connection between his firearms possession and his drug offense was clearly improbable. The fact that the guns were unloaded was not dispositive. U.S. v. Harris, 128 F.3d 850 (4th Cir. 1997).
4th Circuit holds that defendants could foresee co-conspirator’s firearms possession. (284) Defendants sentences were enhanced under section 2D1.1(b)(1) because their co-conspirator possessed a firearm. They argued that they were not aware of the gun. The 4th Circuit affirmed, finding ample evidence that defendants could foresee that one of their co-conspirators would carry a gun. One defendant testified that she saw a gun on the seat of the co-conspirator’s car when she drove him somewhere. At the same time, she observed and used cocaine in the car. Another defendant similarly testified to being in the car with the co-conspirator when both drugs and a gun were present. Moreover, absent exceptional circumstances, it is fair to infer that a co-defendant’s possession of a dangerous weapon is foreseeable where their collaborative criminal venture includes an exchange of drugs for a large amount of cash. U.S. v. Kimberlin, 18 F.3d 1156 (4th Cir. 1994).
4th Circuit upholds considering acquitted conduct against double jeopardy and due process claims. (284) Defendant was convicted of drug charges and acquitted of using a firearm in connection with a drug trafficking offense. Nevertheless, the court enhanced his sentence under section 2D1.1(b)(1) for possession of a firearm during a drug trafficking offense. The 4th Circuit held that considering the evidence underlying the acquitted count did not violate due process or double jeopardy. If there is no separate punishment for the acquitted conduct, there is no double jeopardy. Here, the evidence was considered only in determining the point within the statutory and guideline range at which his sentence was to be imposed. The use of acquitted evidence at sentencing satisfies due process so long as the facts necessary for sentencing are proved by a preponderance of the evidence. U.S. v. Nelson, 6 F.3d 1049 (4th Cir. 1993), overruled on other grounds by Bailey v. U.S., 516 U.S. 137 (1995).
4th Circuit upholds firearms enhancement despite acquittal on firearms count. (284) Defendant was convicted of drug charges and acquitted of using a firearm in connection with a drug trafficking offense. Nevertheless, his sentence was enhanced under section 2D1.1(b)(1) for possession of a firearm during a drug trafficking offense. The enhancement increased his guidelines by a range of 57 to 72 months. Defendant complained that if he had been convicted of the firearms offense, he would have faced only an additional 60 months. The 4th Circuit upheld the enhancement. The district court sentenced defendant at the bottom of the range and therefore he was not harmed. The evidence supported the enhancement. It was reasonably foreseeable to defendant that guns would be located at the house at which his co-conspirators manufactured, stored and distributed crack cocaine. U.S. v. Nelson, 6 F.3d 1049 (4th Cir. 1993), overruled on other grounds by Bailey v. U.S., 516 U.S. 137 (1995).
4th Circuit upholds firearm enhancement based on defendant’s involvement in earlier drug-related murder. (284) Defendant and others operated a drug distribution ring. When defendant’s partner was robbed of cocaine, defendant helped arrange the murder of the robber (although a third-party was shot and killed by mistake). Defendant was convicted of drug charges, and the 4th Circuit upheld a firearm enhancement under section 2D1.1(b)(1) based on defendant’s involvement in the murder. The sentencing judge found that the murder protected drugs in which defendant as well as his partner had an interest. Although defendant did not actually possess the firearm, a district court must look to the entire course of relevant criminal conduct, not merely the narrow offense of conviction, in deciding whether to apply a section 2D1.1(b)(1) enhancement for possession of a weapon. U.S. v. Falesbork, 5 F.3d 715 (4th Cir. 1993).
4th Circuit affirms weapon enhancement for weapon found in truck in which defendants and others were riding. (284) Defendants were found guilty of drug offenses after a highway patrolman discovered drugs and firearms in a truck driven by a co-conspirator and occupied by defendants. The 4th Circuit affirmed a firearm enhancement under section 2D1.1(b)(1) based upon the firearms found in the truck, even though the weapons belonged to the co-conspirator and not defendants. One of the guns was found in the same briefcase as the drugs, and the others, fully loaded, were found in the bed of the same truck. Even if the co-conspirator owned the guns, defendants possessed them for sentencing enhancement purposes. U.S. v. Rusher, 966 F.2d 868 (4th Cir. 1992).
4th Circuit upholds enhancement based on co-conspirators’ firearm possession. (284) Defendants were convicted of drug conspiracy charges. Although there was no evidence of direct firearm possession by either defendant, the district court imposed an enhancement under section 2D1.1 based on co-conspirators’ firearm possession. The 4th Circuit affirmed. The foreseeable possession of firearms by other members of a conspiracy during the commission of that offense may be attributed to a defendant who does not himself possess firearms, if the foreseeable possession occurs in furtherance of activity jointly undertaken with that defendant. It was undisputed that other conspiracy members possessed firearms. The evidence of defendants’ extensive leadership roles in central operations of the conspiracy supported the enhancement. U.S. v. Banks, 964 F.2d 687 (7th Cir. 1992).
4th Circuit upholds firearm enhancement for weapon found in apartment. (284) The 4th Circuit upheld an enhancement under 2D1.1(b)(1) for a firearm in defendant’s apartment. An undercover agent purchased and arranged for the distribution of narcotics at meetings held in the apartment. A loaded .32 caliber handgun was found in open view during a subsequent search of the apartment. The court rejected defendant’s claim that enhancement was improper because there was no evidence linking the gun to the conspiracy. Possession of the weapon during the commission of the offense is all that is needed to support the enhancement. The evidence here showed that the apartment was used as a base of operations for the conspiracy. U.S. v. Apple, 962 F.2d 335 (4th Cir. 1992).
4th Circuit upholds enhancement based upon co-conspirator’s possession of firearm. (284) The 4th Circuit affirmed an enhancement under guideline section 2D1.1(b) (1) based upon a co-defendant’s possession of a weapon during a conspiracy because such possession was in furtherance of the conspiracy and was reasonably foreseeable to defendant. Two murders were committed during the time defendant was a member of the conspiracy. The district court found that guns were “of the foremost importance” in this conspiracy, and “were available in abundance.” Defendant himself testified that at about the time of one of the murders, he was threatened at gunpoint by two of his co-conspirators. U.S. v. Brooks, 957 F.2d 1138 (4th Cir. 1992).
4th Circuit affirms firearm enhancement despite acquittal on firearms charge. (284) Defendant was convicted of possession of crack cocaine and acquitted of carrying a firearm in relation to a drug trafficking crime. Nonetheless, the district court found as a factual matter that defendant possessed the weapon and enhanced defendant’s base offense level by two under guideline section 2D1.1(b)(1) for possessing a dangerous weapon during a drug crime. The 4th Circuit upheld the enhancement against double jeopardy and due process challenges, ruling that acquitted conduct can properly be used to enhance a sentence once the requisite finding has been made. U.S. v. Romulus, 949 F.2d 713 (4th Cir. 1991).
4th Circuit holds concurrent acts not necessary for firearm enhancement. (284) Defendant was acquitted of carrying or using a firearm in relation to a drug trafficking crime, but the district court enhanced his sentence under § 2D1.1(b) for possession of a firearm during the commission of a drug trafficking offense. The 4th Circuit affirmed, rejecting defendant’s contention that proof of possession of weapons during commission of the offense of conviction required proof of concurrent acts, such as defendant holding the gun in his hand while in the act of storing drugs. The phrase, “during the commission of,” is not so narrowly construed. Here, four weapons were found in a co-conspirator’s home where the defendants stored drugs. The co-conspirator testified that defendant brought weapons to the home. On the day defendant was arrested he left guns at the co-conspirator’s home and crack hidden in one of her shoes. This was sufficient to show defendant possessed the weapons during the commission of the offense. U.S. v. Johnson, 943 F.2d 383 (4th Cir. 1991).
4th Circuit affirms firearm enhancement of defendant who buried weapons. (284) Defendant was convicted of various drugs crimes as a result of his involvement in a cocaine and crack conspiracy. The 4th Circuit found no merit to defendant’s challenge of the district court’s enhancement under guideline § 2D1.1(b) for possession of a firearm during a drug crime. There was testimony that defendant buried the firearms involved in the conspiracy, that two of the guns belonged to him, and that he cleaned the guns. U.S. v. Johnson, 943 F.2d 383 (4th Cir. 1991).
4th Circuit affirms firearm enhancement based upon co-conspirator’s possession of weapon. (284) Defendant contended that he should not have received a two-level enhancement for possession of a firearm during the commission of his offense under guideline § 2D1.1(b)(1) because (a) he was acquitted of being involved in the only incident in which a weapon was used, and (b) his co-conspirator’s weapon cannot be charged to him. The 4th Circuit rejected both of these arguments. First, the jury’s acquittal of defendant signified that the jurors found that the evidence against defendant failed to convince them of his guilt beyond a reasonable doubt. However, the standard of proof at sentencing is less demanding. Second, defendant did not dispute that he knew that his co-conspirator possessed the weapon during events which furthered the conspiracy. The § 2D1.1(b)(1) enhancement properly applies when a defendant has knowledge of his co-conspirator’s possession of a firearm during acts furthering the conspiracy. U.S. v. Morgan, 942 F.2d 243 (4th Cir. 1991).
4th Circuit upholds enhancement for firearm found between box spring and mattress in defendant’s bedroom. (284) Defendant was arrested for selling crack cocaine from his residence. A search conducted at his arrest uncovered a revolver hidden between the mattress and box spring in defendant’s bedroom. This was sufficient for the 4th Circuit to summarily reject defendant’s claim that his sentence should not have been enhanced for possession of a firearm during the commission of a drug crime. U.S. v. Curtis, 931 F.2d 1011 (4th Cir. 1991).
4th Circuit permits reliance on uncorroborated testimony to support enhancement for firearm. (284) A government informant who sold marijuana to defendant testified that during the transaction, an individual opened his jacket to reveal a gun sticking in the waistband of his pants. The 4th Circuit found that it was permissible for the district court to rely upon this uncorroborated testimony to support the enhancement for possession of a weapon. The type of information that may be considered at sentencing is unlimited. The presentence report advised defendant of this evidence. The testimony was under oath, and defendant had an opportunity to cross-examine the witness and present rebuttal evidence. The 4th Circuit also rejected defendant’s argument that sentencing him on the basis of the firearm violated the 6th Amendment’s notice requirements. The procedure followed at sentencing clearly gave defendant all of his 6th Amendment notice rights. U.S. v. Bowman, 926 F.2d 380 (4th Cir. 1991).
4th Circuit holds presence of weapon in car is sufficient to increase defendant’s base level for drug offense. (284) Defendant was a passenger in the car. After his arrest, the police found a gun under the driver’s seat. He argued that the district court erred in enhancing his base offense level by two points under § 2D1.1(b)(1) (possession of a weapon during a drug offense) because he did not physically possess the weapon. The Fourth Circuit affirmed the sentence, ruling that the defendant’s conduct satisfied the requirements of that section. It made no difference that he had pled guilty only to aiding and abetting rather than conspiracy. It was reasonably foreseeable to him that his co-participant was in possession of a firearm. U.S. v. White, 875 F.2d 427 (4th Cir. 1989).
5th Circuit finds sufficient connection between gun found in bedroom and drug conspiracy. (284) Defen¬dant pled guilty to drug charges, and received a firearm enhancement under §2D1.1 based on a loaded semi-automatic handgun police found in the master bedroom of his residence. The Fifth Circuit upheld the enhance¬ment. There was a temporal relationship between the handgun, defendant, and the drug conspiracy. The indict¬ment recited that the conspiracy lasted from January 2012 until about February 11, 2013, one day before defendant was arrested and the handgun was found. Although defendant argued that the PSR and Addendum suggested that he ceased his involvement in the con¬spir¬acy in July 2012, the indictment and the factual resume that he signed were important pieces of the record. Defendant was arrested in the residence where the hand¬gun, heroin, and drug paraphernalia were found. Al¬though he argued that the handgun could have been his wife’s and that it was found in his wife’s nightstand, he presented no evidence on these matters. There was no indication that defendant’s wife was involved in any drug activity, so the district court could reasonably infer that the handgun with an obliterated serial number belonged to defendant. Defendant did not carry his burden of showing that it was clearly improbable that the firearm was connected to his offense of conviction. U.S. v. King, __ F.3d __ (5th Cir. Dec. 4, 2014) No. 14-10146.
5th Circuit says acquittal on gun charges did not preclude § 2D1.1(b)(1) firearm increase. (284) Defendant was involved in a large drug trafficking conspiracy. The district court applied a two-level enhancement under § 2D1.1(b)(1) for possession of a firearm. The increase related to a loaded .30 caliber semiautomatic pistol that was seized from underneath the mattress where defendant and his girlfriend slept at the girlfriend’s residence. Small amounts of crack, heroin, and marijuana were also recovered during that search. Defendant had also been charged with two counts of using or possessing a firearm in furtherance of a drug trafficking crime, in violation of 18 U.S.C. § 924(c)(1), but the jury acquitted him on both firearms counts. The Fifth Circuit upheld the firearm enhancement. The fact that the jury acquitted defendant of actively employing the weapon in furtherance of the drug crime did not preclude the judge’s finding that the evidence met the lower standard of § 2D1.1(b)(1). Defendant knew the weapon was under the mattress on his side of the bed in a room where drugs were found, and he told his girlfriend how to use the weapon, so it was not clearly improbable that it was connected to the drug offense. U.S. v. Akins, 746 F.3d 590 (5th Cir. 2014).
5th Circuit affirms firearm enhancement based on testimony of FBI agent and DEA agent. (284) Defendant pled guilty to participating in drug and money laundering conspiracies. The Fifth Circuit upheld a § 2D1.1(b)(1) firearm enhancement based on testimony from St. John, an FBI agent, and Zurfas, a DEA task force officer. St. John testified at sentencing that various conspirators told him it was common knowledge that defendant carried a firearm because he feared for his life after being kidnapped. St. John also stated that no firearms were found during a search of defendant’s home, but that the search did reveal magazines for a Glock semiautomatic handgun and a bulletproof vest. Zurfas testified that, through wiretaps, he learned that defendant was “trying to purchase a .380 pistol and what sounded like an AR-15 assault rifle.” Zurfas further stated that many of the cooperators had said that defendant would carry a weapon during transactions, and that it was not uncommon for him to have a gun with him while he was making contact with a customer. This testimony, combined with the discovery of Glock magazines and a bulletproof vest at defendant’s residence, supported application of the firearm enhancement. U.S. v. Marquez, 685 F.3d 501 (5th Cir. 2012).
5th Circuit applies firearm enhancement where agent wore duty sidearm to meeting. (284) Defendant, a Border Patrol Agent, was convicted of accepting a bribe to facilitate shipments of drugs into the country. He argued that the district court erred when it enhanced his offense level by two under § 2D1.1(b)(1) for possessing a weapon in connection with the offense. Although he wore his duty sidearm when he met with the confidential witness and agreed to provide support for the drugs for a fee, defendant argued that there was no evidence that he or the witness possessed a firearm when the witness actually transported the cocaine. The Fifth Circuit upheld the firearm enhancement. Defendant acknowledged that he wore his duty sidearm when he met with the witness and agreed to provide ancillary support for a fee. That defendant never used or brandished his sidearm was irrelevant. U.S. v. Ruiz, 621 F.3d 390 (5th Cir. 2010).
5th Circuit applies firearm increase to corrupt police officers who escorted drug shipment. (284) Defendants, corrupt city police officers, were arrested as part of an undercover reverse sting operation. On separate occasions, they assisted in the transportation of what they believed to be sizeable marijuana shipments. In U.S. v. Marmolejo, 106 F.3d 1213 (5th Cir. 1997), the court held that a § 2D1.1(b)(1) firearm enhancement is proper when a law enforcement agent possesses a weapon at the time he uses his official position to facilitate a drug offense. The Fifth Circuit affirmed the application of the firearm enhancement since the evidence showed that defendants were serving as patrol officers, on duty, in uniform, and in a marked police vehicle, when they escorted the marijuana shipment through town. The record also showed that the town had a policy in place requiring uniformed officers to carry their firearms. U.S. v. Partida, 385 F.3d 546 (5th Cir. 2004).
5th Circuit approves increase for gun found in truck defendant was driving during countersurveillance. (284) Defendant was arrested as part of a sting operation aimed at his drug trafficking organization. The Fifth Circuit affirmed a § 2D1.1(b)(1) increase based on a handgun recovered from the truck defendant was driving the night of his arrest. Defendant’s argument that there was no connection between the firearm and his offense was unavailing. Although defendant argued that the gun was not in his possession at the warehouse during the marijuana exchange nor was it in the van where the marijuana was placed, he ignored the fact that the firearm was in his possession while he was acting as countersurveillance for the transaction. Thus, it was probable that the firearm was connected to the offense. U.S. v. Salado, 339 F.3d 285 (5th Cir. 2003).
5th Circuit upholds firearm increase for armed confrontation that took place during drug conspiracy. (284) Brice, a drug dealer, testified that defendant was in possession of a gun during an argument over some missing cocaine at a house where Brice had purchased cocaine in the past. Defendant argued that even if this testimony were true, the gun was used only to settle a personal argument and had nothing to do with the conspiracy. The incident occurred in February 2001, during the life of the conspiracy. Because this confrontation took place in the course of the drug trafficking activity, the Fifth Circuit ruled that the district court did not abuse its discretion in enhancing defendant’s sentence based on the possession of the firearm. U.S. v. Booker, 334 F.3d 406 (5th Cir. 2003).
5th Circuit approves firearm increase for gun carried onto boat when drugs were loaded. (284) The Coast Guard found four tons of cocaine hidden in a disabled sewer tank of a freighter bound for Portugal. Defendant, who admitted that he was responsible for accounting for the cocaine, also admitted that he possessed a .38 caliber revolver that he threw overboard when he heard the Coast Guard helicopters. He challenged a § 2D1.1(b)(1) firearm increase, claiming that he did not possess the weapon to assist himself in committing the offense. The Fifth Circuit affirmed the gun enhancement. Defendant admitted possessing the gun when he boarded the freighter. He boarded the vessel from the same speed boats that transported the cocaine from Colombia. He explained that he brought similar weapons on earlier drug smuggling voyages, but always gave them to the captain when he boarded the vessel. Defendant also admitted that he did not give the gun to the captain on this voyage. The fact that defendant did not display or brandish the gun during the voyage was irrelevant. U.S. v. Bustos-Useche, 273 F.3d 622 (5th Cir. 2001).
5th Circuit affirms firearm increase for pounds of marijuana in bed of truck and two guns in cab of truck. (284) Border patrol agents stopped the truck in which defendant was riding and found 286.44 pounds of marijuana in the bed of the truck and two unloaded handguns in the cab of the truck. Based on this, the Fifth Circuit ruled that the district court did not clearly err in finding that a § 2D1.1(b)(1) firearm increase was applicable. There was a temporal and spatial relationship between defendant, the guns, and his drug trafficking offense. The fact that defendant was not charged with the 18 U.S.C. § 924(c)(1) offense of possessing a firearm in furtherance of a drug trafficking offense did not make it clearly improbable that the guns were connected to his drug trafficking offense. It also was not material that the guns were not loaded; § 2D1.1(b)(1) is an added punishment for drug offenders who heighten the danger of drug trafficking by possessing a dangerous weapon, and the mere presence of a gun, loaded or not, can escalate the danger. U.S. v. Jacquinot, 258 F.3d 423 (5th Cir. 2001).
5th Circuit affirms firearm increase based on weapons found in same room as drugs. (284) Defendant challenged a § 2D1.1(b)(1) firearm increase because there was no evidence that he used a weapon in connection with his drug offense. Since authorities discovered the weapons in the same room as drugs at defendant’s home, the Fifth Circuit held that the district court did not clearly err in finding a connection between the weapon and the offense. U.S. v. Henderson, 254 F.3d 543 (5th Cir. 2001).
5th Circuit applies enhancement based on defendant’s admission that he carried gun at earlier meeting. (284) A police investigator made multiple drug purchases from defendant. The district court applied a § 2D1.1(b)(1) firearm enhancement because defendant gave the investigator a “Mac-10” semi-automatic firearm and told the officer that he had carried a firearm during their first drug transaction several months earlier. Defendant argued that the officer’s hearsay testimony about defendant’s statement, without any evidence of the actual gun, could not support the enhancement. The Fifth Circuit disagreed, finding the testimony sufficient to support the enhancement. The conclusion was bolstered by evidence that the defendant had easy access to firearms (as when defendant gave the officer the Mac-10). U.S. v. Ogbonna, 184 F.3d 447 (5th Cir. 1999).
5th Circuit applies enhancement for guns found in house where defendant conducted drug activity. (284) Defendant argued that a § 2D1.1(b)(1) firearm enhancement was erroneous because there was no nexus between his drug trafficking and guns found at his house. The district court found that the firearms were connected with the drug offense because they were located in the house from which defendant conducted drug activity. Police found drugs buried in the backyard of the premises. The Fifth Circuit found no clear error. U.S. v. Navarro, 169 F.3d 228 (5th Cir. 1999).
5th Circuit holds that by adopting PSR, court implicitly found defendant knew about firearm. (284) Defendant pled guilty to drug charges. The district court applied a § 2D1.1(b)(1) enhancement based on a loaded semi-automatic rifle under defendant’s bed. Defendant claimed he had no knowledge of the rifle, but the court made no explicit finding that defendant possessed or knew of the rifle. The Fifth Circuit held that the court’s adoption of the PSR was an implicit finding that defendant knew about, and possessed, the rifle during the course of the conspiracy. The part of the PSR referred to by the court provided a sufficiently clear factual basis for the enhancement. U.S. v. Myers, 150 F.3d 459 (5th Cir. 1998), abrogated on other grounds by U.S. v. Reyna, 358 F.3d 344 (5th Cir. 2004).
5th Circuit finds nexus between gun and drug offense. (284) Police officers searching defendant’s residence found a nine millimeter handgun in plain view on a night stand in defendant’s bedroom in close proximity to marijuana scales, packaging materials, ledgers reflecting drug sales, and a large sum of currency. A cooperating co-conspirator saw a nine millimeter handgun in defendant’s bedroom when he obtained five pounds of marijuana from defendant. The Fifth Circuit affirmed a § 2D1.1 (b)(1) firearm enhancement. This was not a case where it was clearly improbable that the weapon was connected with the offense. The PSR established the required nexus between the weapon and the drug trafficking offense. The district court was entitled to adopt the PSR because defendant did not challenge these findings at sentencing. U.S. v. Hare, 150 F.3d 419 (5th Cir. 1998).
5th Circuit affirms firearm increase even though it was not clear that guns were operable. (284) The district court applied a § 2D1.1(b)(1) firearm increase based on a statement a witness gave to an investigating probation officer. Defendant argued that the information did not indicate that he had knowledge of the guns or that they were operable. The Fifth Circuit found ample evidence to support the § 2D1.1(b)(1) enhancement. The witness testified at trial that he routinely saw defendant carrying a pistol in his waistband, that he had seen firearms strewn about defendant’s residence, and that co-conspirators had proudly displayed recently purchased guns at the residence. Firearm inoperability does not preclude application of § 2D1.1(b)(1). U.S. v. Franklin, 148 F.3d 451 (5th Cir. 1998).
5th Circuit upholds firearm enhancements. (284) Defendants were convicted of participating in a drug trafficking conspiracy. The Fifth Circuit affirmed a § 2D1.1(b)(1) enhancement for possession or use of a firearm. The evidence clearly indicated that the first defendant possessed firearms during the course of the conspiracy. His former girlfriend testified that defendant traveled to Memphis two to three times each week to pick up cocaine and that defendant carried a gun on nearly every trip. Two co-conspirators, and the wife of one of defendant’s co-conspirators testified that guns were kept at defendant’s house. A government investigator testified that he saw firearms carried by defendant’s co-conspirators while they were selling drugs in defendant’s driveway. The evidence also supported the second defendant’s enhancement. This defendant distributed drugs at the first defendant’s house, where guns were kept. In addition, on at least one occasion the second defendant traveled with the first defendant to Memphis to pick up drugs. U.S. v. Dixon, 132 F.3d 192 (5th Cir. 1997).
5th Circuit upholds § 2D1.1(b)(1) increase based on co-conspirator’s firearm. (284) Defendants were convicted of conspiring to possess and distribute cocaine base. The first defendant was one of several people arrested leaving an apartment that was under police surveillance. The second defendant was found in the apartment where drugs, drug paraphernalia and a semi-automatic pistol were found. The Fifth Circuit affirmed a § 2D1.1(b)(1) enhancement based on the gun found in the apartment and a gun carried by another conspirator who was arrested leaving the apartment. The government proved that on the dates the guns were found, defendants were jointly engaged in the crime of possession with intent to distribute a very large amount of cocaine at the apartment. The sentencing court did not err in finding that it was reasonably foreseeable to defendants that their co-defendants would possess a dangerous weapon. U.S. v. Thomas, 120 F.3d 564 (5th Cir. 1997).
5th Circuit upholds firearm increase based on witness testimony and guns at defendant’s house. (284) Defendant was convicted of drug and money laundering charges. The Fifth Circuit held that the following evidence supported a § 2D1.1(b) firearm enhancement: (1) a witness said he saw defendant and a co-conspirator carrying “Uzis;” (2) an anonymous caller reported to police that she saw defendant and two others carrying guns in a location near a crack house operated by the conspiracy; (3) a witnesses testified about two 9 mm handguns at a crack house and about a co-conspirator carrying a gun; and (4) police found 3 weapons in the residence occupied by defendant and his mother. Although police found no drugs in the house, police uncovered a drug ledger and drug paraphernalia in the house as well as crack hidden in a neighbor’s garage (which one witness connected to defendant). U.S. v. Westbrook, 119 F.3d 1176 (5th Cir. 1997).
5th Circuit affirms gun enhancement based on co-conspirator’s possession of firearm. (284) Defendant was convicted of drug conspiracy charges. The Fifth Circuit affirmed a § 2D1.1 (b)(1) enhancement based on a co-conspirator’s possession of a firearm. The district court found defendant was convicted of a drug conspiracy, his co-defendant possessed a pistol during the conspiracy, the pistol was directly connected to the offense because it was used to guard the marijuana, and the co-defendant pulled the weapon from his waistband when approached by police. On that basis, the court inferred that defendant should have reasonably foreseen that his co-defendant had a gun. U.S. v. Chavez, 119 F.3d 342 (5th Cir. 1997).
5th Circuit rules ammunition need not be found to link firearm to drug offense. (284) The district court applied a § 2D1.1(b)(1) enhancement based on a rifle, drugs and a loaded magazine found in defendant’s residence. Defendant argued that a loaded magazine was not found at his residence. The Fifth Circuit held that even if no ammunition was found, it did not make the enhancement inapplicable. The guidelines do not exempt unloaded weapons from § 2D1.1(b)(1. Moreover, defendant’s claim was unsupported by the record. In the addendum to the PSR, the probation officer stated that “according to DEA agents, a loaded magazine was seized from defendant’s house.” The report of a probation officer is generally considered reliable enough to be considered as evidence in making factual determinations under the guidelines. There was a sufficient nexus between the offense and the weapon. Even though defendant claimed the weapon was an inoperable souvenir of his Vietnam War service, the DEA tested the weapon and found it in working order. Moreover, the rifle was not found in a trophy case or gun cabinet, but in the same closet as a duffel bag full of marijuana. U.S. v. Griffith, 118 F.3d 318 (5th Cir. 1997).
5th Circuit finds defendant could foresee use of firearms since they were “tools of the trade.” (284) Defendant challenged a § 2D1.1 (b)(1) enhancement, arguing that it was not foreseeable to him that his co-defendants would possess firearms, especially in light of the fact that he arrived in Houston from Mexico only 48 hours before his arrest. The Fifth Circuit affirmed the enhancement. There was no question that the firearms were connected to the offense. Firearms and cocaine were found in vehicles, in an apartment, and in a house, and all the evidence was connected to the defendants. Defendant’s foreseeability argument failed. It was readily apparent that firearms would be used as tools of the drug trade. U.S. v. Garza, 118 F.3d 278 (5th Cir. 1997).
5th Circuit affirms firearm enhancement even though government did not seek enhancement against other defendants. (284) Defendants argued that the government did not adequately demonstrate that their firearm possession was related to their sale of drugs. One defendant also complained that the government did not seek this enhancement against all of the defendants. The Fifth Circuit found these arguments completely without merit. The district court heard testimony during the sentencing hearing that defendants carried guns and that guns were used by the gang in relation to the drug trade. Moreover, even assuming that defendants were no more likely to carry firearms than their co-conspirators against whom the government did not seek the § 2D1.1(b)(1) enhancement, the enhancements were proper here. There is no requirement of parity in the sentencing enhancements of similarly situated defendants. U.S. v. Wilson, 116 F.3d 1066 (5th Cir. 1997), vacated in part on other grounds sub nom. U.S. v. Brown, 161 F.3d 256 (5th Cir. 1998) (en banc).
5th Circuit upholds firearm increase for weapon defendant carried as INS agent. (284) Defendant, an INS agent, assisted a drug organization in transporting drugs across the U.S./Mexican border in INS buses and vans used to transport undocumented aliens. He challenged a § 2D1.1(b)(1) enhancement, claiming that because he was required by his job to carry a gun, it was not connected to the offense. The Fifth Circuit ruled that the firearm enhancement could be based on the weapon carried by defendant in his official capacity as INS agent. Defendant did not prove that it was “clearly improbable” that his gun was connected to his offense. The fact that carrying a gun was incident to his position did not undo the benefit that the drug traffickers received from having an armed guard to protect their goods. Defendant used his position to transport drugs and therefore any incidence of that position that facilitated the transport was properly taken into account at sentencing. U.S. v. Marmolejo, 106 F.3d 1213 (5th Cir. 1997).
5th Circuit adds gun increase even though gun was far removed in time and place. (284) On August 18, 1994, defendant helped cut and repackage 25 kilograms of cocaine at the residence of a confidential informant. During a search of defendant’s residence on November 2, 1994, police found a 9 mm pistol and a scale containing cocaine residue in the master bedroom, and drug paraphernalia containing cocaine residue and a shotgun in the hall closet. Defendant argued that there was no evidence that the guns found November 2 were part of the drug conspiracy for the drugs packaged August 18. Moreover, the firearms were far removed in both time and space from the repackaging activity and defendant produced evidence that the pistol had been pawned at the time of the August events. The Fifth Circuit affirmed a § 2D1.1(b)(1) enhancement despite the 2 1/2 month period between the drug packaging and the time the gun was found. The guns were found in close proximity to drug paraphernalia with cocaine residue. Defendant was not convicted merely of a single incident in August but of a conspiracy that ran from August through November 1994. There was no evidence that he withdrew from the conspiracy. U.S. v. Caicedo, 103 F.3d 410 (5th Cir. 1997).
5th Circuit affirms firearm increase for gun found under same seat of car as drugs. (284) Defendant and another man were stopped by police in a car carrying a box of cocaine base and a .380 caliber pistol underneath the passenger seat. The Fifth Circuit approved a § 2D1.1(b)(1) enhancement. The enhancement applies if the weapon was present, unless it is clearly improbable that the weapon was connected with the offense. The government may satisfy its burden of proving a connection between the weapon and the offense by showing that the weapon was found in the same location where drugs or drug paraphernalia are stored or where part of the transaction occurred. The district court’s finding that the gun was there for the purpose of aiding in the defense of the narcotics was not clearly erroneous. U.S. v. Flucas, 99 F.3d 177 (5th Cir. 1996).
5th Circuit says firearm enhancement does not “chill” right to possess weapons. (284) The district court imposed a firearm enhancement under § 2D1.1(b)(1) based on three guns found in defendant’s home along with large amounts of cocaine. Defendant argued that the enhancement chilled his constitutional right to possess weapons. He conceded that the Second Amendment, which concerns possession of weapons for a well‑organized militia, was inapplicable, but asserted that the right to possess weapons was among the rights reserved to citizens under the Ninth Amendment. The Fifth Circuit found no Ninth Amendment right to possess weapons. Defendant provided no authority in support of his argument except a law review article. The article was premised on the construct of self‑defense, while defendant claimed to possess the weapons to hunt and practice shooting guns. U.S. v. Broussard, 80 F.3d 1025 (5th Cir. 1996).
5th Circuit affirms firearm increase for gun, drug notes, and marijuana found in home. (284) Defendant was involved in a conspiracy to distribute marijuana. The Fifth Circuit upheld a § 2D1.1(b)(1) firearm enhancement based on a gun, handwritten notes that referred to shipments of marijuana and 18 pounds of marijuana found in defendant’s home. The district court could have inferred that defendant was storing marijuana in his home, in which case the connection between the gun and the conspiracy was not “clearly improbable.” U.S. v. Castillo, 77 F.3d 1480 (5th Cir. 1996).
5th Circuit says companion’s carrying gun was reasonably foreseeable. (284) Defendant was convicted of drug charges. The district court applied a § 2D1.1(b)(1) enhancement based on a confrontation between defendant and another man regarding missing drug proceeds. The other man testified that he saw a gun in the belt of defendant’s companion. The Fifth Circuit affirmed the enhancement. The court could infer, from the fact that the companion actually had a gun, that defendant could have reasonably foreseen that the companion would have one. U.S. v. Gaytan, 74 F.3d 545 (5th Cir. 1996).
5th Circuit upholds enhancement for gun in drug case despite acquittal. (284) The Fifth Circuit upheld a § 2D1.1(b)(1) enhancement for possession of a firearm even though the jury had acquitted defendant of aiding and abetting by using or carrying a firearm during a drug trafficking crime. While a conviction requires proof beyond a reasonable doubt, a district court may sentence a defendant on any relevant evidence that has sufficient indicia of reliability to support its probable accuracy. Police had found two assault-style weapons at defendant’s house. Defendant made statements to police showing that she knew how to use the weapons, and had contemplated firing them at police. U.S. v. Buchanan, 70 F.3d 818 (5th Cir. 1995).
5th Circuit approves gun increase where defendant knew girlfriend kept gun in home. (284) Defendant pled guilty to a drug sale that occurred in January 1991. Defendant was arrested in June 1991, and police found more cocaine and six firearms in his residence. Defendant objected to a § 2D1.1(b)(1) enhancement, arguing that there was no evidence that he owned or possessed a firearm. The Fifth Circuit affirmed the enhancement, since defendant admitted that the seized firearms belonged to his girlfriend and was aware that she kept firearms in his home. The government need only establish access to, rather than ownership of, the dangerous weapons to warrant enhancement. Even if the defendant did not use the weapon, it was sufficient if the weapon could have been used. U.S. v. Vital, 68 F.3d 114 (5th Cir. 1995).
5th Circuit approves enhancement for unloaded gun found a few feet from drug transaction. (284) Undercover investigators agreed to sell cocaine to defendant. Defendant insisted the sale take place at his house. Once investigators were at the house, defendant led one investigator to his bedroom where he retrieved the money. After defendant was arrested, police found an unloaded handgun, 50 rounds of ammunition and $8337 in cash in defendant’s bedroom. Defendant challenged a § 2D1.1(b)(1) enhancement since the gun was never displayed during the transaction and was unloaded when discovered by police. The Fifth Circuit affirmed the enhancement stating that the gun was readily accessible to defendant during the drug transaction. It had been placed on top of an armoire in defendant’s bedroom, a few feet from where defendant retrieved the buy money. U.S. v. Rodriguez, 60 F.3d 193 (5th Cir. 1995).
5th Circuit upholds firearm enhancement where defendants failed to object below to foreseeability or scope of conspiracy. (284) Defendants were convicted of a drug conspiracy. They challenged a § 2D1.1(b)(1) enhancement, arguing that their co-conspirator’s possession of a gun during a drug transaction was not reasonably foreseeable to them nor within the scope of their agreement to join the conspiracy. The Fifth Circuit found that because defendants failed to raise these objections below, the enhancement was not plain error. Questions of fact capable of resolution by the district court on proper objection at sentencing can never constitute plain error. U.S. v. Dean, 59 F.3d 1479 (5th Cir. 1995).
5th Circuit upholds firearm enhancement for gun found under seat of car. (284) Defendant, a suspended police officer, was involved in a conspiracy to steal drugs and money from drug dealers. He was arrested in a sting operation while he and a co-conspirator attempted to enter a truck they believed contained cocaine. Police found a loaded revolver under the driver’s seat of the car defendant had driven to the parking lot and had parked next to the truck. The Fifth Circuit upheld a § 2D1.1(b)(1) enhancement, agreeing with the district court’s conclusion that the gun was connected with the offense. U.S. v. Musquiz, 45 F.3d 927 (5th Cir. 1995).
5th Circuit upholds firearm enhancement based on different firearm than § 924(c) convictions. (284) Defendant was convicted of drug trafficking charges, and two counts of carrying a firearm during a drug trafficking crime. He complained that a § 2D1.1(b)(1) enhancement for possessing a firearm during a drug trafficking crime was double counting since he already was convicted of two counts under § 924(c). The Fifth Circuit upheld the firearm enhancement because it was based on a different firearm than the two § 924(c) counts. In addition to using two guns, defendant gave a third gun to a co-conspirator so that he could protect himself and the drugs while conducting a particular drug transaction. There was no double counting, since defendant was neither indicted nor convicted under § 924(c) for the use of that pistol. U.S. v. Washington, 44 F.3d 1271 (5th Cir. 1995).
5th Circuit approves enhancement for gun in kitchen cabinet four feet from cocaine. (284) Police found a 9mm pistol in the kitchen cabinet located three or four feet from a stack of cocaine. Defendant possessed a key to the house, and had lived there for nine months. He was present at the house on the day the cocaine and gun were seized. The district court found that he was leader/organizer of the operation who was in charge of the cocaine and the money. The 5th Circuit upheld a § 2D1.1(b)(1) enhancement for the gun based on these facts. U.S. v. Fierro, 38 F.3d 761 (5th Cir. 1994).
5th Circuit approves firearm enhancement for felon in possession of firearm. (284) Defendant argued that a § 2D1.1(b)(1) enhancement for possessing a firearm while manufacturing methamphetamine, when combined with his sentence for being a felon in possession of a firearm, was double jeopardy. The 5th Circuit disagreed, finding that defendant misperceived the distinction between a sentence and a sentence enhancement. A sentence enhancement for firearm possession seeks to discourage drug traffickers from possessing them. Loaded firearms were found at defendant’s residence where the drug laboratory was located. The district court properly found that the defendant possessed the firearms during a drug offense. U.S. v. Segler, 37 F.3d 1131 (5th Cir. 1994).
5th Circuit approves firearm enhancement for inoperable gun. (284) The district court enhanced defendant’s sentence under § 2D1.1(b) (1) because he twice possessed a firearm in connection with a drug conspiracy. The 5th Circuit affirmed. The fact that the gun might have been inoperable was not dispositive. The mere presence of a gun, loaded or not, can escalate the danger. Although defendant’s cousin owned the house where the gun was found, the government proved that defendant lived in the bedroom of that house. The probation officer relayed reports that the house was used for drug trafficking. Items found in the house, such as a pager, crack pipe, and documents containing the phone numbers of distributors, corroborated the reports. U.S. v. Mitchell, 31 F.3d 271 (5th Cir. 1994).
5th Circuit upholds enhancement based on gun found in co-conspirator’s apartment. (284) The 5th Circuit upheld an enhancement under section 2D1.1(b)(1) based on a gun found in a co-conspirator’s apartment. The government may prove that a defendant personally possessed a gun by showing a temporal and spatial relationship existed between the weapon, the drug trafficking activity, and the defendant. Here, DEA agents found a gun during a search of the co-conspirator’s residence. The fact that defendant left the apartment shortly before he delivered heroin, taken together with the fact that the officers discovered, on the same day, the loaded gun in the apartment, created a spatial and temporal connection between the weapon and the offense. The district court’s finding that the co-conspirator’s use of a weapon was foreseeable to defendant was not clearly erroneous. U.S. v. Mergerson, 4 F.3d 337 (5th Cir. 1993).
5th Circuit says leader’s possession of a firearm was reasonably foreseeable to other conspirators. (284) Defendants worked for a drug dealer selling crack from a field the dealer owned. The 5th Circuit upheld a firearm enhancement under section 2D1.1(b)(1), confirming that the leader’s firearm possession was reasonably foreseeable to defendants. One defendant once brandished a pistol while chasing someone off the field who had smoked his crack, sellers at the field exchanged crack for firearms, the leader went to great lengths to protect the conspiracy from detection, and the leader knowingly and intentionally possessed firearms at the field in furtherance of the conspiracy. The court rejected one defendant’s due process claim based on the fact that only those defendants who elected to go to trial, as opposed to those who pled guilty, had their sentences enhanced for firearm possession. Defendant could not use the sentences received by his co-defendants as a yardstick for the sentence he argued he should have received. U.S. v. Sparks, 2 F.3d 574 (5th Cir. 1993).
5th Circuit rejects claim that gun was planted in car after initial inventory search. (284) The 5th Circuit upheld an enhancement under §2D1.1(b)(1) based on (a) a revolver and cocaine found under the driver’s seat of defendant’s vehicle one week after his arrest, and (b) a handgun found in the glove compartment of his rental car when he was stopped in Florida. There was no evidence that the gun and cocaine were planted in the truck after the initial inventory search. It was plausible that, in the course of being towed and driven over bumpy gravel, the revolver and cocaine were shaken loose from deep beneath the front seat, where they may have been overlooked during the initial inventory. There was also no evidence that the handgun found in his car in Florida belonged to defendant’s passenger. Defendant admitted to the officer that there was a handgun in the glove compartment. An enhancement is proper if defendant possessed a gun during related relevant conduct. The stop in Florida was relevant and related to the cocaine conspiracy. U.S. v. Vaquero, 997 F.2d 78 (5th Cir. 1993).
5th Circuit affirms consideration of related conduct to apply firearm enhancement. (284) Defendants were convicted of a conspiracy to manufacture methamphetamine-amine, which was part of a larger multi-state conspiracy to manufacture and distribute methamphetamine. The 5th Circuit affirmed the district court’s consideration of defendants’ relevant conduct to apply a firearms enhancement under section 2D1.1(b)(1). Guns were found at the first defendant’s residence, and information indicated that he dealt methamphetamine from this residence. Agents discovered four firearms in a trailer on the property of the second defendant. Also in the trailer was a Merck Index and traces of methamphetamine. Agents also recovered $200,000 in cash and drug paraphernalia from the property. U.S. v. Eastland, 989 F.2d 760 (5th Cir. 1993).
5th Circuit affirms firearm enhancement even though other defendant did not receive it. (284) Defendants were arrested for attempting to purchase marijuana from a government informant. One defendant was arrested in his car and the other in his house. The 5th Circuit affirmed a firearm enhancement for the defendant arrested in his car, even though the defendant arrested at home did not receive a similar enhancement. The trial court reasoned that the guns found at the one defendant’s home were not clearly associated with his drug activity. In contrast, the other defendant had a loaded automatic pistol in the glove compartment of his truck at the time of his arrest. There was undoubtedly a difference between the two situations, and it was within the district court’s discretion to treat them accordingly. U.S. v. Brown, 985 F.2d 766 (5th Cir. 1993).
5th Circuit upholds firearm enhancement despite evidence that weapon was held as collateral for loan. (284) Defendant received an enhancement under guideline section 2D1.1(b(1) based upon a gun that was found at the restaurant from which he sold drugs. Defendant offered testimony at the sentencing hearing that the .22 caliber firearm was located on a shelf behind a stack of dinner plates in the kitchen area, and that in order to retrieve the gun, one would have to reach behind the stacked plates and possibly knock them over. The testimony also indicated that defendant was holding the weapon as collateral for a loan he made to the owner of the firearm. Nonetheless, the 5th Circuit upheld the enhancement. Once it is established that a firearm was present during the offense, the district court should apply the enhancement unless it is clearly improbable that the weapon was connected with the offense. Possession need only be established by a preponderance of the evidence. U.S. v. Webster, 960 F.2d 1301 (5th Cir. 1992).
5th Circuit affirms that presence of firearms was foreseeable in drug smuggling case. (284) The 5th Circuit upheld an enhancement for possession of a firearm during a drug trafficking crime, holding that the presence of the firearms was foreseeable to defendant. Defendant was offered $20,000 in Colombia to escort a “small package” to the United States. He stowed away for five days in cramped quarters with five other men, one of whom was carrying a sock full of bullets. The men, their clothes and their food all were in close proximity to the drugs and guns for the duration of the trip. U.S. v. Ortega-Mena, 949 F.2d 156 (5th Cir. 1991).
5th Circuit affirms firearms enhancement despite acquittal of substantive firearm offense. (284) The 5th Circuit found no error in the two-level increase in defendant’s offense level for possession of a firearm during a drug crime, even though defendant was acquitted of the firearm charge. U.S. v. McCusker, 936 F.2d 781 (5th Cir. 1991).
5th Circuit affirms firearm enhancement based upon photographs of defendant displaying weapon to co-conspirators. (284) A shotgun was seized from a co-conspirator involved in a methamphetamine laboratory. The district court found that defendant sold or gave the shotgun to the co-conspirator, and increased defendant’s offense level under guideline § 2D1.1(b)(1). The 5th Circuit rejected defendant’s claim that there was insufficient evidence to prove that defendant had possession of the weapon during the conspiracy. In addition to testimony by another co-conspirator that he thought the weapon belonged to defendant, several photographs seized from defendant’s residence showed him proudly displaying the weapon in the presence of other co- conspirators. U.S. v. Devine, 934 F.2d 1325 (5th Cir. 1991).
5th Circuit affirms both sentence enhancement for possession of firearm and sentence for felon’s possession of a firearm. (284) The 5th Circuit rejected defendant’s argument that it violated double jeopardy for her to receive a sentence enhancement for possessing a weapon during the commission of a drug offense under guideline § 2D1.1(b)(1), and be sentenced, pursuant to her guilty plea, for being a felon in possession of a firearm. Defendant’s argument “misperceive[d] the distinction between a sentence and a sentence enhancement.” A sentence is for a crime and a sentence enhancement is an adjustment within the permissible range for that or another crime. Because the two are separate, consideration of the two in separate contexts is not improper. U.S. v. Ainsworth, 932 F.2d 358 (5th Cir. 1991).
5th Circuit upholds firearms enhancement based on possession of unloaded rifles. (284) Federal agents seized four unloaded rifles from defendant’s bedroom and a handgun from a kitchen drawer. Cocaine was also found in the kitchen. A loaded revolver was found in a car parked outside defendant’s residence. Although the car was registered in the name of defendant’s sister, defendant had access to the car and was observed by DEA agents driving the car in connection with his drug trafficking activities. The 5th Circuit upheld the enhancement of defendant’s sentence for possessing a firearm during the commission of a drug offense. “It is not necessary for possession of the weapon to play an integral role in the offense or to be sufficiently connected with the crime to warrant prosecution as an independent firearm offense.” The weapons need not be loaded for the firearm enhancement to apply. The court also found that these weapons could not fairly be characterized as hunting equipment. U.S. v. Villarreal, 920 F.2d 1218 (5th Cir. 1991).
5th Circuit upholds consideration of relevant conduct in enhancing sentence for possession of firearm. (284) Defendant was arrested in possession of one quarter pound of amphetamine and notes indicating drug transactions. He was alone and no gun was found. However, he had been arrested by state officials eight days earlier, in possession of amphetamines and two handguns. He was charged in federal court, and pled guilty to one count of possession of amphetamines in return for dismissal of other counts, including conspiracy. His offense level was enhanced by two levels for possession of a firearm during the conspiracy and because co-conspirators possessed guns when arrested. Defendant argued that the enhancement in 2D1.1(b)(1) applies only if the firearm is possessed during the offense of conviction. The 5th Circuit rejected this argument, finding that guideline § 1B1.3 permits a court to consider relevant conduct in determining the application of specific offense characteristics, such as possession of a gun. U.S. v. Paulk, 917 F.2d 879 (5th Cir. 1990).
5th Circuit finds it “not clearly improbable” that at least one weapon on drug premises belonged to defendant. (284) Eight guns, including semi-automatic weapons were found throughout the house where amphetamine was being manufactured. A codefendant claimed ownership of many of the guns. Nevertheless, defendant was living at the residence “and was heavily involved in the drug processing activities occurring therein.” The 5th Circuit held that under the circumstances, “the district court was justified in concluding that [defendant] possessed at least one of the weapons.” U.S. v. McKeever, 906 F.2d 129 (5th Cir. 1990).
5th Circuit upholds enhancement for possession of a firearm during drug offense. (284) Five loaded guns were found in defendant’s residence when he was arrested, and another loaded gun was found in a truck on the premises. The 5th Circuit affirmed the district court’s upward enhancement for possession of a firearm during a drug trafficking offense, holding that since defendant was helping run an illegal drug organization, it was “not clearly improbable” that the weapon was connected with the offense. U.S. v. Mueller, 902 F.2d 336 (5th Cir. 1990).
5th Circuit rules evidence was sufficient to support conviction for carrying weapon in relation to drug activity. (284) The 5th Circuit affirmed the defendant’s conviction for possessing a gun during the commission of a drug offense in violation of 18 U.S.C. § 924(c)(1). The evidence included testimony that the defendant carried his weapon when entering a vehicle containing methamphetamine and that he reached for the weapon when confronted by the police. This was sufficient for the jury to infer that the weapon was “carried in relation to drug trafficking activities.” U.S. v. Wilson, 884 F.2d 174 (5th Cir. 1989).
5th Circuit holds weapon in back seat of auto is justification for increase in offense level for possession during drug transaction. (284) A drug defendant appealed his sentence, claiming that the district court erred in enhancing his offense level by two points under § 2D1.1(b) because a two shot Derringer was found in a box in the rear seat when he was arrested at the border for drug smuggling. The 5th Circuit affirmed the sentence, holding that the district court was entitled to discredit the defendant’s assertions that the gun was a gift and was only coincidentally in the car at the time of the arrest. The circumstances of this case did not approach the guidelines’ example of weapon possession unconnected to the offense. (See commentary, § 2D1.1(b)). U.S. v. Hewin, 877 F.2d 3 (5th Cir. 1989).
5th Circuit rules two level increase for possession of weapon during drug offense was proper. (284) Defendant brought a gym bag into the apartment where the cocaine transaction occurred and placed it in a nearby room. The bag contained a handgun and ammunition. One of the co-conspirators spoke of the plan to have the handgun present and to use it on the undercover agent if necessary. Defendant was quoted as saying he was given the gun to use if the deal “went bad.” The Fifth Circuit held that the trial court did not err, after accepting that version of the facts, in making the 2-level upward adjustment under 2D1.1(b)(1), for possession of a weapon during the commission of a drug offense. U.S. v. Morales, 880 F.2d 827 (5th Cir. 1989).
5th Circuit rules possession of firearm at defendant’s home several miles away from arrest is not grounds for two point increase in base offense level. (284) Defendant was arrested after he bought cocaine from an undercover agent in a parking lot. After his arrest, the police found a loaded handgun in his apartment several miles away. The 5th Circuit, in what it called a “close case,” held that there was no showing that the defendant possessed a handgun during the commission of a drug offense, which would justify a two point increase in his base offense level under § 2D1.1(b)(1). The gun and the cocaine were never less than several miles apart, the gun was not “present” at the time of the buy, and there was no showing that it was probable that the weapon was connected to the offense. Thus, the court vacated the sentence. The court noted that the lawfulness of the possession of the weapon is irrelevant. U.S. v. Vasquez, 874 F.2d 250 (5th Cir. 1989).
6th Circuit affirms increase for possessing firearm in connection with drug trafficking offense. (284) On two occasions, defendant sold methamphetamine to undercover law enforcement officers. Within three days of the second sale, officers searched defendant’s property, which contained a house, an RV, and a garage. The officers found a revolver in defendant’s RV, near drug paraphernalia. Officers also found several firearms in defendant’s garage, in his laundry room, and in a nearby tool room. A few yards outside the garage, officer found a canister of meth buried in the ground. Officers also found a smaller package of methamphetamine wrapped in black electrical tape outside defendant’s RV. The Sixth Circuit upheld a § 2D1.1(b)(1) dangerous weapon enhancement. The officer’s search was conducted only a few days after the controlled purchase of methamphetamine at defendant’s property. The firearms were found throughout the property in relatively close proximity to drugs and drug paraphernalia. Although there was no direct evidence showing defendant possessed a firearm when he sold the drugs, he did not offer any evidence demonstrating that it was clearly improbable that the firearms were connected to his drug offense. U.S. v. Greeno, 679 F.3d 510 (6th Cir. 2012).
6th Circuit rules defendant failed to prove connection between guns and drug trafficking was clearly improbable. (284) Defendant was convicted of drug conspiracy charges. He challenged a § 2D1.1(b) firearm increase, contending that the two guns found in his apartment were insufficient under § 2D1.1 because they were without ammunition and, he alleged, were not connected to the conspiracy. The Sixth Circuit upheld the enhancement, finding defendant did not meet his burden of proving that it was clearly improbable that the two firearms were related to the conspiracy. Witnesses testified that defendant was known to possess two handguns. During the search of defendant’s apartment, two firearms and ammunition (albeit for different weapons that were not used for hunting), and drug paraphernalia (kilo wrappers, baking soda) were found. Defendant used this residence for drug trafficking activity. Although defendant argued that there was no connection between the firearms at the residence and the drug conspiracy, the evidence showed otherwise. U.S. v. Benson, 591 F.3d 491 (6th Cir. 2010).
6th Circuit approves enhancement based on co-defendant’s possession of firearm even though no conspiracy was charged. (284) Defendant received a § 2D1.1(b)(1) increase based on co-defendant Cook’s possession of a firearm during their drug transactions. Possession of a firearm by a co-conspirator is attributable to any other conspirator if the co-conspirator’s possession was reasonably foreseeable. However, defendant was not charged with conspiracy. The Sixth Circuit held that whether co-defendants are charged as conspirators is of no consequence. A conspiracy charge is not required to impute one defendant’s possession of a firearm to a co-defendant. The enhancement was proper here because, although a finding of jointly undertaken activity is necessary, a conspiracy charge is not. U.S. v. Ward, 506 F.3d 468 (6th Cir. 2007).
6th Circuit upholds two-level firearm enhancement. (284) Police raided a house in which defendant and others were conducting a drug transaction. In the bathroom, police found other drugs and a loaded handgun belonging to Cruz, the owner of the house. Defendant challenged a § 2D1.1(b)(1) firearm increase, arguing that the government did not produce any evidence indicating that he possessed or had any knowledge of the existence of the weapon or that it was related to the drug transaction. Although a firearm’s presence is not always foreseeable to persons participating in illegal drug transactions, the Sixth Circuit found that the facts here supported the enhancement. Defendant traveled from Texas to Tennessee to supply Cruz with 1,007 grams of cocaine, worth more than $20,000. Defendant was arrested in the room where the gun was located after having struggled with officers attempting to enter that room to arrest him. A reasonable person would have foreseen that Cruz was armed with a dangerous weapon. The gun was also clearly possessed during the commission of the offense, having been recovered during the raid of the specific sale at issue. The burden then shifts to defendant to demonstrate a reasonable probability that the weapon was not connected to the offense. U.S. v. Catalan, 499 F.3d 604 (6th Cir. 2007).
6th Circuit rejects Sixth Amendment challenge but nonetheless remands. (284) Defendant argued for the first time on appeal that the district court violated his Sixth Amendment jury trial right by enhancing his sentence for his firearm possession under U.S.S.G. § 2D1.1(b)(1). The Sixth Circuit found no Sixth Amendment violation since the fact that defendant possessed the weapon was established by his plea of guilty to a firearms charge. Defendant was not entitled to have a jury second-guess his guilty plea. Nonetheless, the panel found it “prudent” to remand for the district court to “take another look at the sentence in light of the new dispensation,” and treat the guidelines as advisory rather than mandatory. U.S. v. McCraven, 401 F.3d 693 (6th Cir. 2005).
6th Circuit holds conspirator accountable for firearm he helped co-conspirator purchase. (284) Defendant pled guilty to conspiracy to distribute methamphetamine. The Sixth Circuit agreed that defendant possessed a firearm during the conspiracy, based on evidence that defendant participated in the purchase of the firearm and helped pay for it. He knew that his partner had the gun during the commission of their crimes. He and his partner requested that a co-conspirator acquire the gun, and was well aware that it would be used by his co-conspirators in the furtherance of the conspiracy. In fact, he saw his co-conspirator use the firearm to beat another conspirator for failure to pay a drug debt. U.S. v. Johnson, 344 F.3d 562 (6th Cir. 2003).
6th Circuit upholds firearm increase despite 14-month delay between end of charged conspiracy and discovery of guns. (284) Defendant was charged with a drug conspiracy that ended November 1999. In January 2001, over 14 months after the end of the conspiracy, defendant was arrested at his home. A search of his home uncovered a large amount of currency, firearms and ammunition, and drug paraphernalia. Defendant did not argue that the firearms and ammunition were not clearly related to drug trafficking, and admitted that $70,000 found in his home was drug proceeds. Instead, he contended that the 14-month delay from the end date of the charged conspiracy to the date the firearms were found barred a § 2D1.1(b)(1) dangerous weapon enhancement because the firearms were not shown to have been connected to the charged offense. The Sixth Circuit noted that defendant’s argument would have had some merit before November 1991, when the guidelines were amended to remove the requirement that the weapon be possessed during the commission of the offense. Since that date, all that the government need show is that the dangerous weapon was possessed during relevant conduct. Here, defendant’s continuing cocaine trafficking constituted the same course of conduct and had a common purpose as the offense of conviction. Therefore, the possession of the dangerous weapons during drug trafficking in 2001 was conduct relevant to the offense of conviction. U.S. v. Faison, 339 F.3d 518 (6th Cir. 2003).
6th Circuit says defendant failed to show connection between guns and bagging operation was clearly improbable. (284) The district court applied a § 2D1.1(b)(1) firearm enhancement based on seven firearms found pursuant to lawful searches of defendant’s home. Defendant contended that the weapons found in his home were not sufficiently linked to the drug activities that took place at the market that he owned and operated, and from which he sold drugs. The Sixth Circuit affirmed the increase because a marijuana bagging operation took place in the home where the guns were found. Thus, a presumption arose that the weapons were connected to the offense. Once this presumption took effect, the burden was on defendant to show that it was clearly improbable that the weapons were connected with the crime. Defendant failed to make this showing. U.S. v. Darwich, 337 F.3d 645 (6th Cir. 2003).
6th Circuit says defendant did not show it clearly improbable that weapons were connected to drug trafficking. (284) Defendant left his apartment in a truck that containing 40 pounds of marijuana. After defendant’s arrest, police searched defendant’s apartment and found two 9 mm handguns, located at the bottom of a pair of boots, which were on top of a little black bag that contained drug trafficking tools. Defendant claimed that he was not living in the apartment at the time of his arrest in March, but admitted that he and his wife had lived there the previous summer and that his name was on the lease. The Sixth Circuit affirmed a § 2D1.1(b)(1) firearm enhancement based on the weapons found in the apartment. The government met its burden of showing constructive possession – defendant leased the apartment where the guns were found and had left them in the apartment on the morning of his arrest. Defendant did not show that it was clearly improbable that the guns were connected to the offense. The type of guns found were weapons “often used in drug trafficking,” and they were found on top of a bag full of drug trafficking paraphernalia. When defendant was arrested, he had just smuggled 40 pounds of marijuana, apparently from the apartment. U.S. v. Solorio, 337 F.3d 580 (6th Cir. 2003).
6th Circuit upholds firearm increase despite wife’s testimony that gun belonged to her. (284) Defendant and his son conducted a fencing operation by paying for stolen merchandise with Dilaudid pills. At the business residence where undercover purchases of Dilaudid had been made, police recovered stolen merchandise, Dilaudid tablets, a .38 caliber revolver, and a disassembled submachine gun. At sentencing, defendant’s wife testified that the gun belonged to her. The Sixth Circuit upheld a § 2D1.1(b)(1) firearm increase. The district court considered the wife’s testimony in its entirety, but found it unconvincing. She could not identify the type of gun found at defendants’ place of business or even describe what the gun looked like. Although she claimed that she kept it for protection at her restaurant, the gun was found at defendant’s adjacent business location where all of the undercover drugs transactions had occurred. Defendants did not demonstrate that the court’s application of the enhancement was clearly erroneous. U.S. v. Webb, 335 F.3d 534 (6th Cir. 2003).
6th Circuit upholds firearm increase for drug trafficker. (284) The district court applied a two-point enhancement under § 2D1.1(b)(1) for possession of a dangerous weapon during a drug trafficking offense. Simpson testified at trial that he saw defendant in the basement of a crack house wearing a bullet-proof vest and in possession of a firearm and five kilograms of cocaine. A co-conspirator and Simpson also testified that defendant carried a gun. In light of these facts, the Sixth Circuit ruled that that district court’s factual determination was not clearly erroneous. U.S. v. Brown, 332 F.3d 363 (6th Cir. 2003).
6th Circuit affirms firearm increase where gun was found in closet next to basement where drug sales were held. (284) Defendant argued that the firearms found upstairs in his residence belonged to his roommate, and that there was no proof that the shotgun in his closet had any connection to marijuana trafficking. The Sixth Circuit affirmed the § 2D1.1(b)(1) enhancement. A shotgun and loose ammunition were found in a closet next the stairway that led to defendant’s basement. Marijuana sales were conducted in the basement. At least as to the shotgun, defendant failed to show that it was “clearly improbable that the weapon was connected with the offense.” U.S. v. Bartholomew, 310 F.3d 912 (6th Cir. 2002).
6th Circuit affirms increase based on guns found in bedroom of residence used to sell drugs. (284) The Sixth Circuit found that the district court’s application of the § 2D1.1(b)(1) firearm enhancement was not clearly erroneous. Both firearms were found in defendant’s bedroom, and the shotgun was located in the same closet as the seized cash. Drugs were also found in the residence, and evidence established that defendant sold cocaine in his residence as recently as the day before the search. U.S. v. Keszthelyi, 308 F.3d 557 (6th Cir. 2002).
6th Circuit applies firearm increase for loaded gun found under mattress. (284) Authorities found a .38 caliber revolver loaded with six hollow point rounds stuffed between defendant’s mattress and box spring. Defendant argued that the gun was not connected to his drug offense, contending that he had given the gun to his father as a gift and that upon his father’s death, the gun was returned to defendant so that he could give it to his own son once the boy turned 18 years old. The Sixth Circuit found that there was a sufficient nexus between the firearm and defendant’s drug activity. The loaded firearm, which as a convicted felon defendant should not have possessed anyway, was in defendant’s bedroom. Marijuana was also found in the bedroom. Defendant admitted that he traded marijuana to his cocaine suppliers in order to obtain a discounted price. Further, officers found various items used in the illegal drug trade in defendant’s garage. Defendant admitted that drug transactions were arranged from the residence. Moreover, the gun was loaded and kept under defendant’s mattress. Under these facts, defendant did not meet his burden of showing that it was clearly improbable that the weapon was connected to his drug trafficking offense. U.S. v. Stewart, 306 F.3d 295 (6th Cir. 2002).
6th Circuit affirms firearm increase based on husband’s gun. (284) Defendant and her husband were convicted of drug trafficking charges. At their residence, authorities found a loaded 9 millimeter pistol in the master bedroom dresser drawer. Authorities also seized more than $20,000 in cash. Recorded conversations revealed that the residence was used to collect drug money related to the drug trafficking offense. The government argued that a § 2D1.1(b)(1) firearm increase was proper because (1) the weapon was jointly possessed by both defendant and her husband and was used to protect themselves and their drug proceeds, or (2) defendant could reasonably foresee her husband’s possession of the gun during the conspiracy. The Sixth Circuit found that either theory supported the § 2D1.1(b) (1) increase. At a minimum, defendant had constructive possession over the weapon. She did not deny that she knew that the loaded weapon was in her bedroom dresser drawer. Currency related to her drug trafficking offense was found in the same location as the weapon. Moreover, it was foreseeable to defendant that her husband would possess the gun in connection with the drug trafficking conspiracy. She knew the gun was in her home and admitted that her husband was in possession of the weapon. U.S. v. Stewart, 306 F.3d 295 (6th Cir. 2002).
6th Circuit upholds firearm increase based on weapons kept in store used to sell drugs. (284) Police recovered several loaded guns from the store owned by defendant’s father and managed by defendant. Defendant challenged a § 2D1.1(b) (1) firearm increase, contending that there was no evidence that she had actual or constructive possession of the weapons. The Sixth Circuit affirmed the enhancement. Defendant admitted that she knew the handguns were in the store and were kept under the counter, which is where the drugs were kept. Co-defendants who worked at the store testified that that they and defendant were all involved in distributing drugs from the store for one to two years One witness testified that the guns recovered were frequently on the premises, including times when the drugs were being dealt out of the store. Another witness testified that one co-defendant often brought a .357 magnum with him to the store and asked defendant to “put it up” for him. Although defendant claimed that she did not have control over the premises where the firearms were located at the time the search warrant was issued, one witness testified that defendant worked at the store every day from about 6 am until 6 pm. It was inconceivable that the manager of the store who was present for so much of the day, who knew where the weapons were located, and who was involved in distributing drugs from the store, did not have dominion and control over the weapons during the drug trafficking. U.S. v. Stewart, 306 F.3d 295 (6th Cir. 2002).
6th Circuit upholds firearm increase despite § 924(c) acquittal. (284) Defendant was convicted of drug charges. He was acquitted of possessing various guns in furtherance of a drug trafficking crime under 18 U.S.C. § 924(c), but was found guilty of being a felon in possession of a firearm. The Sixth Circuit found that notwithstanding the § 924(c) acquittal, the district court properly applied a USSG § 2D1.1(b)(1) enhancement to his drug sentence for possession of a firearm. The government established by a preponderance of the evidence that defendant possessed a weapon in connection with the drug trafficking activity. During the search of the apartment shared by defendant and a co-conspirator, police found three weapons, one in the living room and two in the co-conspirator’s bedroom. While no evidence was introduced about the ownership of the weapons, the government presented evidence that defendant was involved in a conspiracy to distribute cocaine, and that the apartment was used to store items relating to the conspiracy’s drug activity. There was sufficient circumstantial evidence establishing defendant’s constructive possession of a firearm. U.S. v. Miggins, 302 F.3d 384 (6th Cir. 2002).
6th Circuit holds that defendant did not prove lack of connection between gun and firearms offense. (284) Defendant acknowledged at sentencing that he kept firearms in his house during the period of the drug conspiracy. He further admitted that he used his house to dry and weigh the marijuana once it had been removed from the plot of land where it was grown. The government thus met its burden under § 2D1.1(b) (1) of proving that defendant possessed dangerous weapons during the offense. The Sixth Circuit upheld the increase, ruling that defendant did not prove that there was no connection between the firearm and the marijuana manufacturing conspiracy. Defendant testified that he kept the .22 caliber pistol in his bedroom closet, but he never stated where in the house he dried and weighed the marijuana. If he did so in or near the bedroom, the pistol would have been reasonable accessible to defendant as he carried out the conspiracy. Moreover, defendant’s gun was not an uncommon type of weapon among those who commit drug crimes. Defendant offered no evidence showing that the pistol was unloaded. Finally, the only alternative explanation defendant offered for the presence of the firearm was that he used the .22 caliber pistol for hunting raccoons. The district court determined that this testimony lacked credibility, a determination that was due considerable deference. Thus, the Sixth Circuit upheld the firearm enhancement, ruling that defendant did not prove that there was no connection between the firearm and the drug offense. U.S. v. Moses, 289 F.3d 847 (6th Cir. 2002).
6th Circuit upholds firearm increase even though other drug dealers had access to defendant’s residence. (284) As evidence that defendant possessed a firearm to protect his drug trade, the government presented guns and ammunition that investigators found under a bed and in a dresser located in an upstairs bedroom in defendant’s residence. The Sixth Circuit affirmed a § 2D1.1 firearm increase, ruling that the government easily showed that defendant constructively possessed the firearms. Defendant’s name appeared on the lease to the premises. In the house, agents found a digital scale, a pager invoice in defendant’s name, a photograph of defendant holding a firearm similar to one of the recovered weapons, and a notebook printed with several entries of names and dollar amounts. In addition, a local resident saw defendant selling crack with a 9mm handgun on his person. Although defendant argued that the gun could not be attributed to him because his home was not exclusively his residence and other individuals in his home were armed drug dealers, this did not establish that it was “clearly improbable” that defendant possessed the firearms during the offense. The weapons were within easy reach had defendant wished to get them. U.S. v. Hough, 276 F.3d 884 (6th Cir. 2002).
6th Circuit upholds firearm increase even though gun was upstairs during drug sale. (284) Defendant sold crack to an undercover officer inside the kitchen of his house. The officer asked defendant if he had a gun to sell; defendant went upstairs and returned “a couple of moments later” with a pistol. The district court found that the proximity in time and location of the sale of crack and the gun was sufficient to warrant a § 2D1.1(b)(1) enhancement. After the government showed that the pistol was possessed by defendant during the drug transaction, the burden was on defendant to show how it was “clearly improbable” that the gun was connected to the offense. The fact that the gun was upstairs was not sufficient to rebut the presumption that it was connected to the offense; defendant could have retrieved it in moments had he so desired. While it was possible that defendant sold both guns and drugs, it was more likely that he instantaneously decided that the $50 purchase price for the gun was worth more than the protection it offered. U.S. v. Hough, 276 F.3d 884 (6th Cir. 2002).
6th Circuit affirms firearm increase for guns carried during drug robbery. (284) After learning that cocaine had been stashed at a woman’s house, defendants entered the residence at gunpoint and restrained the occupants with duct tape. Police apprehended one defendant as he was leaving through the back door of the house, and found the second defendant hiding in the basement. The officers asked the robber where the weapons were, and he indicated a box from which the officers recovered two handguns. The first defendant admitted to the DEA that he and the second defendant had heard about the cocaine and had gone to the residence to steal the drugs. The Sixth Circuit affirmed a § 2D1.1(b)(1) firearm enhancement based on the trial testimony of the arresting officers and the victim. The officers testified that when the second defendant was arrested, he indicated that the guns could be found hidden in a box. The victims testified that both defendants were armed when they entered the home. Once the government has established that the defendant actually or constructively possessed the weapon, the burden shifts to the defendant to show that it is clearly improbable that the possession or the weapon was connected to the offense. Defendants failed to carry that burden. U.S. v. Brown, 276 F.3d 211 (6th Cir. 2002).
6th Circuit holds defendant in Florida responsible for firearms found in Tennessee house. (284) Defendant and his girlfriend shared a house in Tennessee, even though defendant split his time between Tennessee and Florida. He sent numerous drug packages from Florida to his girlfriend in Tennessee. After intercepting one of these packages, authorities searched their Tennessee house and found drug paraphernalia and two handguns in the bedroom. Expert testimony established that the handguns are typically used in connection with drug offenses. Furthermore, the jury found defendant guilty of being a felon in possession of a firearm, in addition to conspiring with his girlfriend to distribute cocaine base. The Sixth Circuit affirmed a § 2D1.1(b)(1) firearm enhancement even though defendant was in another state when the drug conspiracy and firearms were uncovered. Defendant’s situation was not legally distinguishable from any other conspirator who is shown to be knowledgeable about the presence of the firearms but is not physically present on the premises where part of the illegal activity occurred. Defendant was in constructive possession of a firearm during a drug-trafficking offense. U.S. v. Bender, 265 F.3d 464 (6th Cir. 2001).
6th Circuit upholds firearm enhancement for defendant also convicted of being felon in possession. (284) Defendant argued that a § 2D1.1(b)(1) enhancement for possessing a dangerous weapon in connection with a drug offense constituted double counting because he was also convicted and sentenced for being a felon in possession of the same weapon. 18 U.S.C. § 922(g)(1). The Sixth Circuit, agreeing with the Third Circuit in U.S. v. Gibbs, 190 F.3d 188 (3d Cir. 1999), held that the § 2D1.1(b)(1) enhancement did not violate double jeopardy. The use of relevant conduct to increase the punishment for a charged offense does not punish the offender for that relevant conduct. Defendant was convicted of several distinct drug offenses. The district court found that he had used a weapon in connection with those offenses. Because of his possession of that offense, he was also convicted under § 922(g), an offense entirely independent of and distinct from the drug offenses. Defendant’s possession of a weapon was the basis for one offense and a mandatory ground for enhancement in a separate offense with different requirements. U.S. v. Taylor, 248 F.3d 506 (6th Cir. 2001).
6th Circuit affirms firearm enhancement for gun found in crack house operator’s car. (284) Defendant operated a crack house. To protect his drug transactions, he allegedly instructed Gadsen, his girlfriend, to purchase a Glock 9 mm semi-automatic pistol for him. Police stopped defendant and two individuals in a car owned by defendant’s brother. They found Gadsen’s loaded gun in the locked glove compartment, ammunition, and $22,000 in cash. Defendant challenged a § 2D1.1(b)(1) firearm enhancement, claiming that there was no evidence that he possessed a firearm during the drug-trafficking offense. The Sixth Circuit affirmed the enhancement. Defendant obtained the gun to protect his drug trafficking activities and he showed the gun to Johnson, one of his drug sources. Johnson told a competitor in a taped conversation that defendant was carrying the weapon in a shoulder holster. Moreover, the gun was found along with $22,000 in cash in the vehicle defendant was driving. Finally, a loaded shotgun was seized from defendant’s bedroom. The court found that the evidence defendant presented “explaining” the presence of the guns (testimony from his brother and mother) was not credible. U.S. v. Saikaly, 207 F.3d 363 (6th Cir. 2000).
6th Circuit applies firearm enhancement for gun found under seat of car. (284) A state trooper found a pistol under the front passenger seat and two kilograms of cocaine and another gun in a gym bag in the trunk of a car in which defendant was a passenger. Defendant claimed that Owusu was in exclusive possession and control of the gun found under the seat. The gun was registered to Owusu’s sister, and defendant claimed that Owusu had secreted himself on the floor of the back seat to have access to the gun while defendant was sitting passively in the front passenger seat. The trooper testified, however, that he saw defendant make a furtive movement as the car was pulling over as if he was “either hiding something or retrieving something.” The Sixth Circuit upheld a § 2D1.1(b)(1) firearm enhancement, since the evidence strongly suggested that defendant placed or helped place the gun beneath his seat and thus had control over and constructive possession of the gun. Moreover, under U.S. v. Duncan, 918 F.3d 647 (6th Cir. 1990), the enhancement is appropriate if a weapon is found in the car that facilitated the drug transaction. When defendant and Owusu were stopped by the troopers, they were returning to Ohio from New York, where they had purchased two kilograms of cocaine. U.S. v. Owusu, 199 F.3d 329 (6th Cir. 2000).
6th Circuit affirms firearm enhancement for gun found above stairs to basement where drugs were kept. (284) Defendant and his family were members of a large marijuana distribution conspiracy. He challenged a § 2D1.1 (b)(1) firearm enhancement on the grounds that the gun found in his house did not belong to him but to relatives who lived in the house with him. The Sixth Circuit ruled that defendant did not show it was clearly improbable that the gun was possessed in connection with the offense. Defendant’s only grounds for contending that the gun was not connected to the offense were that (1) other people lived in the house, (2) the gun was not registered to him, and (3) most conspiracy activity took place in the basement, and the gun was not found in the basement. The first two factors were irrelevant to the inquiry. The fact that the drug activity took place in the basement actually supported the enhancement, since the gun was found in a cubbyhole above the stairwell to the basement. U.S. v. Maliszewski, 161 F.3d 992 (6th Cir. 1998).
6th Circuit affirms firearm enhancement despite lack of direct evidence linking defendant to gun. (284) Defendant was a member of a large marijuana distribution conspiracy. At trial a witness testified that one co-conspirator owed a second co-conspirator some money. The second co-conspirator told defendant to take away the gun and car belonging to the first co-conspirator. The witness said she knew defendant did as he was told because she later saw the second co-conspirator with both the car and the gun. Although this evidence in support of defendant’s gun possession was weak, the Sixth Circuit affirmed a § 2D1.1(b)(1) firearm enhancement. The lack of evidence directly linking defendant to the gun was troubling. However, the district court did not clearly err in inferring from the circumstantial evidence that defendant was responsible for getting the gun for the second conspirator. U.S. v. Maliszewski, 161 F.3d 992 (6th Cir. 1998).
6th Circuit upholds firearm increase for guns stored at house where drugs were stored. (284) Defendant pled guilty to a drug conspiracy and received a § 2D1.1(b)(1) firearm enhancement. He complained that although he possessed guns and engaged in drug trafficking, he never possessed a gun while engaging in drug trafficking. He admitted that he stored his guns at a co-defendant’s residence where drugs were also stored, but he claimed he never knew there were drugs present at the same time he stored firearms. The Sixth Circuit affirmed the § 2D1.1(b)(1) enhancement based on ample evidence that defendant possessed a gun during the time of the drug trafficking offense. First, defendant admitted owning four or five guns, including several semi-automatic weapons. He also admitted that he gave a co-defendant crack to protect his car, which he purchased with drug money. Taped telephone conversations from that day indicate that he also left the co-defendant a firearm to use in protecting at least the vehicle if not additional cocaine. Defendant also participated in a “rumble” involving guns that originated, in part, from a drug trafficking dispute. The judge also did not believe defendant’s denials of knowledge that he stored guns at the house at the same time drugs were stored there. U.S. v. Pruitt, 156 F.3d 638 (6th Cir. 1998).
6th Circuit affirms increase where defendant admitted in plea that he knew about co-conspirator’s guns. (284) Defendant pled guilty to a cocaine conspiracy. He challenged a § 2D1.1(b)(1) firearm enhancement, claiming there was no factual record because no sentencing hearing was held. The Sixth Circuit held that defendant’s plea supported the enhancement. In his original plea, which defendant did not move to revoke, he admitted he was involved with co-conspirators who used firearms in connection with drug trafficking. At sentencing, defendant did not object to the PSR, which also indicated that defendant’s co-defendants possessed and carried firearms in relation to drug trafficking and that defendant knew of this activity. Defendant objected to the PSR only on the basis of actual ownership of the firearms. However, actual ownership is irrelevant; possession is sufficient. U.S. v. Pruitt, 156 F.3d 638 (6th Cir. 1998).
6th Circuit affirms firearm increase for numerous weapons and drugs found at same apartment. (284) Defendants were convicted of various drug distribution charges. The Sixth Circuit affirmed a § 2D1.1(b)(1) enhancement for possession of a firearm during a drug distribution offense. Police executing a search warrant found heroin, cocaine, ammunition, several loaded guns and rifles, thousands of dollars in cash, drug paraphernalia and defendant at an apartment. There was overwhelming evidence that the weapons and defendant were present in the apartment in connection with the drug offenses. U.S. v. Kincaide, 145 F.3d 771 (6th Cir. 1998).
6th Circuit applies firearm increase for taking guns from undercover police in return for drugs. (284) Defendant sold crack cocaine to an undercover officer a number of times. At the last sale, at the officer’s insistence, defendant accepted two unloaded guns as payment for 13.0 grams of crack. The Sixth Circuit held that the § 2D1.1(b)(1) firearm enhancement was properly applied to the delivery of an unloaded gun by an undercover police officer to a drug seller as payment for the drugs. Defendant “possessed” the gun and the gun was linked, or “connected” to the offenses. Consequently, the enhancement was proper. U.S. v. Gibson, 135 F.3d 1124 (6th Cir. 1998).
6th Circuit vacates resentencing on drug count as beyond scope of remand on gun count. (284) Defendant was convicted of drug and firearms charges. While his appeal was pending, the Supreme Court decided Bailey v. U.S., 116 S.Ct. 501 (1995). On rehearing, the Sixth Circuit 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), and remanded to determine whether there was sufficient evidence to support it. On remand, the court granted the government’s motion to dismiss the § 924(c) conviction, but added two levels to the drug sentence under § 2D1.1(b)(1) for possession of firearms during the drug crime. The Sixth Circuit held that resentencing on the drug count after vacating the § 924(c) conviction was beyond the scope of the limited remand. A limited remand constrains the district court’s resentencing authority to the issue or issues remanded. Here, the remand was specifically limited to determining the sufficiency of the evidence for the § 924(c) conviction. The district court exceeded the scope of this remand order. Judge Merritt dissented. U.S. v. Moore, 131 F.3d 595 (6th Cir. 1997).
6th Circuit finds dangerous weapons were possessed in connection with drug offense. (284) Defendant participated in a large cocaine distribution conspiracy. The Sixth Circuit upheld a § 2D1.1(b)(1) enhancement for possession of a dangerous weapon during the offense. Bailey v. U.S., 116 S.Ct. 501 (1995), held that a defendant could be convicted of “using” a gun under § 924(c)(1) only if he “actively employed” the gun. But Bailey did not decide what constituted “possession” of a weapon under guideline section 2D1.1(b)(1). Here, defendant possessed a nine-millimeter pistol and an AK‑47 rifle at the apartment he shared with a co‑defendant during the course of the conspiracy. At that apartment defendant stored cocaine and drug proceeds and bagged cocaine for resale. Defendant also used a baseball bat to assault another co‑defendant in relation to an argument concerning cocaine. Also, pipe bombs and a shotgun were stored at an apartment where defendant stayed and where cocaine was stored and bagged for resale. Finally, defendant’s employees regularly carried weapons when distributing cocaine at a housing project. U.S. v. Elder, 90 F.3d 1110 (6th Cir. 1996).
6th Circuit upholds firearm enhancement despite § 924(c) acquittal. (284) Defendant argued that a § 2D1.1(b)(1) enhancement was improper since he was acquitted of using or carrying a firearm during a drug trafficking crime in violation of 18 U.S.C. § 924(c). The Sixth Circuit, relying on U.S. v. Duncan, 918 F.2d 647 (6th Cir. 1990), rejected the claim. Moreover, defendant was subject to a mandatory minimum 240-month sentence, and even if the enhancement was erroneous, it would not have changed his sentence. U.S. v. Barnes, 49 F.3d 1144 (6th Cir. 1995).
6th Circuit approves firearm enhancement for loaded firearm kept under bed. (284) Police arranged a controlled delivery of drugs to defendant’s apartment. After she was arrested, police found a loaded shotgun under the bed. She argued that a § 2D1.1(b)(1) enhancement was improper because there was no evidence that the gun was used in connection with drug trafficking. The Sixth Circuit approved the enhancement since defendant did not prove that it was clearly improbable that the weapon was connected with the offense. Once the government shows that defendant was in possession of a weapon during a drug trafficking offense, the burden is on the defendant to show that it was clearly improbable that the weapon was connected with the offense. Defendant did not meet this burden. The weapon was of a type associated with drug trafficking, was easily accessible, and was kept loaded. U.S. v. Calhoun, 49 F.3d 231 (6th Cir. 1995).
6th Circuit upholds enhancement where defendant’s weapon was found in codefendant’s car. (284) Defendant’s base offense level under 2D1.1 was enhanced for possession of a weapon during his drug offense. The 6th Circuit affirmed, noting that defendant knew the gun was in his codefendant’s car and that the codefendant was going to transport marijuana in the car en route to a drug sale. The gun’s connection to the offense was not “clearly improbable” so as to preclude the enhancement, for it was probable that the gun was to be used to secure the marijuana during shipment and to protect the cash proceeds of the sale. U.S. v. Perkins, 994 F.2d 1184 (6th Cir. 1993).
6th Circuit affirms that conspirators’ possession of weapons was foreseeable to defendant. (284) The 6th Circuit affirmed an enhancement under section 2D1.1(b)(1) for possessing a firearm during the commission of a drug offense. In imposing the enhancement, it was proper for the district court to rely on incidents not mentioned in the presentence report. Particularly where, as here, the sentencing hearing occurs after a lengthy, multi-defendant jury trial, a defendant should not be surprised when a trial court considers evidence developed at trial. Moreover, the fact that guns were housed in defendant’s apartment during the course of the conspiracy sufficiently linked defendant to the weapons. The trial judge, who heard extensive evidence at trial regarding the intricacy and interrelationship of the conspiracy and its members, did not err in finding that the other members’ gun possession was reasonably foreseeable to defendant. U.S. v. Medina, 992 F.2d 573 (6th Cir. 1993).
6th Circuit says co-conspirator’s firearm possession during drug transaction was foreseeable. (284) The 6th Circuit upheld a section 2D1.1(b)(1) enhancement because a co-conspirator’s possession of a firearm during a drug transaction was reasonably foreseeable to defendant, even though defendant was not present at the transaction. The co-conspirator testified that he asked defendant immediately prior to the deal whether he should carry a gun with him, and defendant advised him to do whatever he wished. Moreover, defendant purchased a number of firearms from the co-conspirator in the months preceding his arrest, and these firearms were linked to defendant’s and the co-conspirator’s drug trafficking activities. While this evidence might be insufficient to establish actual knowledge, section 2D1.1 does not demand scienter. U.S. v. Nichols, 979 F.2d 402 (6th Cir. 1992), cert. granted in part, Nichols v. U.S. 114 S.Ct. 39 (1993).
6th Circuit affirms that unloaded semi-automatic weapon found in basement was connected to drug offense. (284) Defendant received a firearm enhancement under guideline section 2D1.1(b)(1) based on an unloaded Mac-10 semi-automatic firearm found in the basement of her apartment, the same apartment in which she allowed a co-conspirator to store cocaine. Defendant admitted constructive possession of the weapon but contended the enhancement was improper because it was improbable that the gun was associated with her drug activities: she was not the owner of the gun, she never handled the gun, and there was no trace of drugs or drug paraphernalia found in the basement near the gun. The 6th Circuit affirmed the enhancement, distinguishing U.S. v. Garner, 940 F.2d 172 (6th Cir. 1991). Although as in Garner the weapon was unloaded, it was found in the basement rafters, which indicated purposeful concealment rather than possession for a legal purpose. Also the semi-automatic weapon was the type of gun associated with drug activity. Even if defendant never actually possessed the weapon, she should have reasonably foreseen that her co-conspirator would possess the gun during, and in connection with the drug conspiracy of which she was a part. U.S. v. Chalkias, 971 F.2d 1206 (6th Cir. 1992).
6th Circuit upholds firearms enhancement despite dismissal of firearms charges. (284) The 6th Circuit rejected defendant’s contention that an enhancement under guideline section 2D1.1(b)(1) for carrying a firearm during a drug trafficking crime was improper because the government had dismissed the charge of using or carrying a firearm in relation to a drug trafficking offense, in violation of 18 U.S.C. section 924(c)(1). There is a distinction between possession of firearms required for enhancement under the guidelines and using or carrying required for a violation of section 924(c)(1), and an enhancement can be proper even if a defendant has been acquitted of the section 924(c)(1) charge. U.S. v. Blankenship, 954 F.2d 1224 (6th Cir. 1992).
6th Circuit upholds firearm enhancement for weapons found in bedroom of residence. (284) The 6th Circuit upheld an enhancement under guideline section 2D1.1(b)(1) based on handguns found in the bedroom of defendant’s residence. Defendant failed to show any clear error in the district court’s determination that these weapons were used in the furtherance of his drug conspiracy. U.S. v. Straughter, 950 F.2d 1223 (6th Cir. 1991).
6th Circuit affirms firearm enhancement based upon gun under co-defendant’s car seat. (284) The 6th Circuit upheld a two-level enhancement under guideline § 2D1.1(b)(1) for defendant based upon a gun which was located under his co-defendant’s car seat. The co-defendant’s ready access to the gun was foreseeable to defendant. U.S. v. Christian, 942 F.2d 363 (6th Cir. 1991), abrogation on other grounds recognized by U.S. v. Washington, 127 F.3d 510 (6th Cir. 1997).
6th Circuit affirms firearm enhancement based upon gun found in apartment leased by one of the co-conspirators. (284) Based on information from two suspects, police searched an apartment and uncovered a loaded revolver, $150 in cash, an apartment lease in the name of one of the defendants, a triple beam scale with cocaine residue, 31 zip lock bags containing cocaine, and a pager. The 6th Circuit upheld an enhancement based upon both defendants’ possession of a firearm during a drug crime. The fact that the drugs and weapon were found in the same apartment provided ample evidence that the gun was used during the commission of a drug crime. The apartment was leased to one of the defendants and he was residing there when the weapon was found. This provided sufficient evidence to support the finding that this defendant was in constructive possession of the weapon. Because the defendant’s possession was reasonably foreseeable, possession of the weapon was imputed to the other co-defendant. U.S. v. Sanchez, 928 F.2d 450 (6th Cir. 1991).
6th Circuit affirms enhancement for firearm laying on couch in room where defendant was seated. (284) The 10th Circuit upheld a two-level increase in offense level based upon defendant’s possession of firearm during a drug offense. Four weapons were found in the small crack house in which defendant was arrested. Although not in physical possession of any of the guns, defendant was in constructive possession of at least one sawed-off shotgun which, according to defendant’s testimony, was laying on the couch in the room where he was seated. U.S. v. Head, 927 F.2d 1361 (6th Cir. 1991).
6th Circuit affirms firearms enhancement even though defendant was acquitted of carrying a firearm. (284) A jury found defendant guilty of distributing and possessing cocaine, but not guilty of using and carrying a firearm during a drug trafficking crime. Defendant challenged the district court’s enhancement of his offense level under guideline § 2D1.1 for possessing a firearm during the commission of a drug offense. The 6th Circuit upheld the enhancement. The district court found that defendant possessed the weapon on the front seat next to him during a drug transaction that took place in his car. A later drug transaction took place in the home at which defendant’s car was parked, but it was still proper for the court to determine that the gun was easily accessible to defendant, and was therefore present, during the offense. Although defendant had been acquitted of the firearms carrying charge, there was still ample room for the district court to find by a preponderance of the evidence that the weapon was possessed during the drug offense. U.S. v. Duncan, 918 F.2d 647 (6th Cir. 1990).
6th Circuit upholds sentence enhancement based upon presence of gun in drug trafficker’s bedroom nightstand. (284) A search of defendant’s apartment and automobile uncovered two handguns, cocaine, cash and drug-related books and records. Defendant argued that the mere presence of firearms in his bedroom nightstand did not justify sentence enhancement under guidelines § 2D1.1(b)(1). The 6th Circuit rejected this argument, finding that defendant kept weapons in his apartment “readily accessible, to facilitate his drug transaction.” Actual physical possession of the weapon is not necessary. Guidelines § 2D1.1 should be “construed broadly to cover the gamut of situations where drug traffickers have ready access to weapons with which they secure or enforce their transactions.” U.S. v. Snyder, 913 F.2d 300 (6th Cir. 1990).
6th Circuit upholds use of hearsay to determine that defendant used a gun in drug crime. (284) Defendant challenged a two level enhancement based on his possession of a weapon during a drug sale. The government had introduced hearsay testimony that an informant had observed a gun on a nearby table during a drug sale by the defendant to the informant. This evidence was corroborated by defendant’s own admission that he kept guns in the house. The 6th Circuit upheld the introduction of hearsay testimony at the sentencing hearing, and found that the district court’s determination that defendant possessed a firearm was not clearly erroneous. U.S. v. Miller, 910 F.2d 1321 (6th Cir. 1990).
6th Circuit affirms enhancement for possession of a firearm during a drug trafficking offense. (284) When defendant was removed from the police car a small leather holster was found on the floor of the front passenger side seat. A passenger in the back seat could have dropped the holster and kicked it forward under the seat. Six days later officers found the gun that fit the holster in the car after acting on an informant’s tip that the defendant left it there. The District Court enhanced defendant’s sentence after finding by a preponderance of the evidence that defendant was in possession of a firearm during a drug trafficking offense. Defendant offered no evidence to rebut the presumption that the gun was connected to the offense. The 6th Circuit affirmed, finding the above facts established that the District Court’s finding was not clearly erroneous. U.S. v. Moreno, 899 F.2d 465 (6th Cir. 1990).
6th Circuit upholds finding that defendant possessed a firearm during drug offense. (284) The District Court enhanced defendant’s sentence after finding he possessed a firearm at his temporary residence while a drug conspiracy was ongoing. The pre-sentence report contained evidence of firearm possession and witnesses testified that defendant fired shots near a co-conspirator’s head to awaken him after a drug overdose. The 1st Circuit affirmed the District Court’s finding, holding it was not clearly erroneous. U.S. v. Moreno, 899 F.2d 465 (6th Cir. 1990).
6th Circuit upholds sentence for possession of gun during drug offense even though defendant was not charged with drug offense. (284) Defendant pled guilty to making a false statement to procure a firearm. The pre-sentence report stated that defendant took the gun to the crack house, and defendant did not challenge the report. Seven days after purchasing the gun defendant was arrested unarmed at an airport with 488 grams of cocaine. Defendant was not charged with running a crack house and had not yet gone to trial on the airport arrest. However, the district court found by a preponderance of the evidence that the defendant had used the firearm in drug trafficking and applied guideline § 2K2.1(c)(1), enhancing the sentence to five years from a range of 4-27 months. The 6th Circuit affirmed, noting that it “may be thought anomalous that a defendant can receive a five-fold increase in sentence because a preponderance of evidence indicates he is guilty of an uncharged crime” but such increases are possible under the guidelines, as stated in the commentary to guideline § 2K2.1. U.S. v. Bronaugh, 895 F.2d 247 (6th Cir. 1990).
6th Circuit finds evidence supported finding that defendant possessed weapons during drug offense. (284) The Sixth Circuit upheld the two point offense level enhancement under § 2D1.1 (b), rejecting the defendant’s contention that he had not possessed weapons during the commission of a drug offense. The evidence included the location of the weapons, and their inaccessibility to strangers and visitors. No evidence was introduced at trial which would “convince anyone” that defendant did not possess the weapons. In cases such as this, weapons need not be quickly and easily available to be possessed. U.S. v. McGhee, 882 F.2d 1095 (6th Cir. 1989).
7th Circuit rejects testimony that defendant was not involved in assault. (284) When police arrested defendant on assault charges, they found crack cocaine secreted in his pants leg. Defendant pled guilty to distribution of cocaine base. At sentencing, the perpetrator of the assault, Richardson, took sole responsibility for the assault, testifying that defendant did not participate, and was upstairs in the bathroom the entire time. However, the assault victim identified defendant as the man who had restrained him during the beating. The Seventh Circuit upheld a § 2D1.1(b)(1) enhancement for use of a dangerous weapon in connection with a drug offense. The judge had rejected Richardson’s testimony that defendant did not participate in the beating. She concluded that the victim’s identification of defendant showed he had seen defendant during the assault, and she did not find Richardson’s explanation of the events plausible. The panel refused to disturb the district court’s credibility determination. U.S. v. McCauley, 659 F.3d 645 (7th Cir. 2011).
7th Circuit approves firearm enhancement for corrupt police detective. (284) Defendant was a corrupt narcotics detective who stole marijuana and drug money from criminals. He challenged a § 2B1.1(b)(1) enhancement for possessing a firearm during the commission of a drug offense, arguing that it was clearly improbable that he used his firearm in connection with the drug pilfering. Instead, he claimed that he possessed the weapon to further his legitimate law enforcement The Seventh Circuit upheld the enhancement, since one lawful use did not vitiate another unlawful one. Defendant had his gun with him at multiple points during his drug offenses, and, in addition to effectuating his other law enforcement duties, his weapon clothed his acts with the authority of a police officer and helped further his crimes. For example, defendant made his gun readily available when he illegally entered the home of one drug dealer, intending to steal the dealer’s stash. This conduct alone made the enhancement proper. U.S. v. Long, 639 F.3d 293 (7th Cir. 2011).
7th Circuit upholds firearm enhancement based on weapons found in hall closet and bedrooms. (284) In 2008, defendant was convicted of methamphetamine charges. The previous year, authorities searching his residence found a loaded assault rifle in the hall closet, a loaded handgun in one bedroom, and revolver in another bedroom. Authorities also recovered $1,768 in cash from the living room. In the hall closet, they found a scale of the type commonly used to weigh controlled substances. He argued for the first time on appeal that the court erred in imposing a two-level enhancement for possession of guns. The Seventh Circuit affirmed the enhancement. Because the government demonstrated that the guns were found in close proximity to drug paraphernalia, and that defendant dealt in large quantities of meth on a frequent basis, the burden shifted to defendant to prove that it was “clearly improbable” that he possessed the firearm in connection with the drug offense. Defendant offered no such evidence. Although he proposed possible theories as to why the guns, cash, and scale were all present in his home, he never attempted to explain why he possessed the assault rifle, or the actual source of the cash, or the specific purpose for the scale. U.S. v. Rea, 621 F.3d 595 (7th Cir. 2010).
7th Circuit rules guns found in house and recorded conversations supported increase. (284) The district court applied a § 2D1.1(a)(1) firearm enhancement because firearms, ammunition and drugs were recovered from defendant’s residence at the time of his arrest. In addition, in telephone calls between defendant and co-conspirators recorded during the course of the conspiracy, defendant asked to borrow a “thumper” for protection, and bragged about carrying a “thumper” to avoid capture by the police. A co-conspirator testified that a “thumper” referred to a pistol. The Seventh Circuit upheld a § 2D1.1(b)(1) firearm enhancement. The government met its burden and the enhancement was correctly applied to defendant. U.S. v. Martin, 618 F.3d 705 (7th Cir. 2010).
7th Circuit applies firearm increase where defendant gave guns to officers in exchange for not arresting his girlfriend. (284) Defendant was given an enhanced sentence under § 2D1.1(b)(1) for possessing two guns in connection with a drug offense. He had been stopped by the police while driving with his girlfriend, and the police had found crack in her possession. Defendant made a deal with the arresting officers: they would let his girlfriend go for now in exchange for his surrendering two guns to them. He got two guns from fellow members of his drug gang and gave them to the police as he had promised. The Seventh Circuit upheld the § 2D1.1(b)(1) sentencing enhancement. Obviously, defendant possessed the guns when he gave them to the police, and the drug conspiracy on which he was convicted continued into the period in which he delivered the guns and he admitted that the girlfriend was a member of the conspiracy. So, the guns were possessed by him in connection with a conspiracy. U.S. v. Gonzalez, 608 F.3d 1001 (7th Cir. 2010).
7th Circuit approves firearm increase for guns found in safe with probable drug proceeds. (284) The district court applied a § 2D1.1(b)(1) enhancement based on two guns found in defendant’s home in a safe that also contained about $21,000. Defendant argued that the enhancement was improper because no drugs were found in the safe or anywhere in his home when agents arrested him and found the guns. The Seventh Circuit ruled that the temporal proximity to the conspiracy and the physical proximity to the cash suggested that the guns were connected to defendant’s drug dealing. The amount of cash found in the safe was roughly equivalent to the price of one kilogram of cocaine, the quantity that defendant had been providing to the conspiracy. The conspiracy was ongoing at the time the guns were found. Moreover, defendant did not claim that he had a legitimate source of income to account for the large amount of cash. The district court reasonably inferred that the cash was drug money. Defendant did not show that it was clearly improbable that the guns were connected to the drug conspiracy. U.S. v. Are, 590 F.3d 499 (7th Cir. 2009).
7th Circuit upholds dangerous weapon increase based on guns in apartment and defendant’s leadership of drug conspiracy. (284) Defendant participated in a conspiracy involving the distribution of large amounts of drugs by the Black Disciples street gang in Chicago. The Seventh Circuit upheld a § 2D1.1 (b)(1) dangerous weapon enhancement. Police found two loaded guns, along with more than $300,000 in small bills, in defendant’s apartment. One of the guns had its serial number obliterated, which a co-conspirator explained was a common Black Disciples tactic to prevent the gang’s weapons from being traced. Even without the guns in the apartment, however, the enhancement was justified based on defendant’s leadership role in the Black Disciples. The government introduced substantial evidence that the Black Disciples’ drug operation relied heavily on gun-carrying gang members to provide security and to discipline out-of-line gang members. Additionally, the gang controlled the housing project where a co-conspirator shot a police officer. Moreover, defendant ordered one gang member killed whom he suspected of cooperating with law enforcement, and another gang member shot for violating gang rules. U.S. v. White, 582 F.3d 787 (7th Cir. 2009).
7th Circuit says defendant failed to show connection between gun and drugs was clearly improbable. (284) Defendant argued that the district court improperly enhanced his sentence under § 2D1.1(b)(1) for possessing a gun in connection with a drug offense. The Seventh Circuit upheld the enhancement, ruling that the government plainly met its burden of proving that defendant possessed the gun found in his house. Defendant failed to carry his burden of establishing that it was clearly improbable that the gun was connected to the charged drug conspiracy. A government agent testified that he found the gun and ammunition in defendant’s home and the holster in his bedroom. He also testified that agents found a digital scale with traces of cocaine residue in the home, suggesting that defendant conducted drug transactions there. That there was no evidence that defendant actually used the gun in connection with a drug transaction did not make it “clearly improbable” that the gun was connected to the underlying drug conspiracy. U.S. v. Orozco, 576 F.3d 745 (7th Cir. 2009).
7th Circuit presumes that gun found in trailer where drugs were sold was connected to drug offense. (284) Defendant operated a used-car business. In 2003 and 2004, he sold heroin to a confidential informant in the office trailer of the business. In 2005, police conducted a search of the office trailer and found 409.3 grams of heroin in a safe. During the search, police also found a revolver, but the record did not show where in the office the revolver was found. The Seventh Circuit upheld a § 2D1.1(b)(1) increase for possession of a weapon. Because the government showed possession, the burden shifted to defendant to establish that it was “clearly improbable” that the gun was connected with the drug offense. The fact that employees of the used-car business had access to the trailer and it was not unusual for such employees to carry a gun for their self-protection did not show that that it was clearly improbable that defendant possessed the gun in connection with his drug business. The clearly improbable standard is not unconstitutionally vague. The vagueness doctrine does not apply to the Guidelines, since they do not establish the illegality of any conduct. U.S. v. Idowu, 520 F.3d 790 (7th Cir. 2008).
7th Circuit finds defendant waived claim that firearm enhancement constituted double punishment. (284) Defendant argued that a two-level enhancement under § 2D1.1(b)(1) for possession of a firearm constituted double punishment because he was also sentenced for violation of 18 U.S.C. § 924(c), which punishes those who use or carry a firearm “during and in relation to any crime of violence or drug trafficking crime.” The Seventh Circuit ruled that defendant waived any double counting argument. At sentencing, defendant argued that certain of the enhancements violated Apprendi, but he did not raise a double counting claim. That alone would indicate forfeiture, rather than waiver. However, the district court asked defendant and his attorney whether they had any other objections, and both affirmatively represented that there were no other objections to the PSR. Even if the argument were merely forfeited, defendant would fare no better. The firearm enhancement did enact a double punishment because it reflected the use of a firearm that was different from the firearm use relied upon for the § 924(c) count. The § 924(c) charge was based on the presence of a firearm in numerous drug-related transactions while the firearm enhancement related to an incident in which defendant ordered Garcia to shoot at the gang members who had followed him into the alley. U.S. v. DeSilva, 505 F.3d 711 (7th Cir. 2007).
7th Circuit holds that co-conspirators’ firearm possession was reasonably foreseeable to defendant. (284) Defendant challenged a § 2D1.1 (b)(1) firearm enhancement based on his co-conspirators’ possession of guns. The Seventh Circuit affirmed the enhancement. The record established that one co-conspirator, Davis, stored large quantities of drugs and firearms at his music studio during the conspiracy. Defendant visited Davis’s music studio many times during the conspiracy. His frequent presence at the studio and his knowledge of Davis’s large-scale cocaine distribution operation raised the inference that he could have reasonably foreseen his co-conspirator’s possession of firearms for intimidation or protection. Moreover, another conspirator, Johnson, regularly carried a gun during the course of the conspiracy. On at least one occasion, defendant asked Johnson for his help in delivering cocaine to one of defendant’s customers. Defendant reasonably could have foreseen that Johnson would carry a firearm for protection or intimidation when accompanying him on such deliveries. Defendant’s claim that he could not have foreseen the possession of firearms in the conspiracy was particularly unpersuasive since defendant himself was on home detention for his third conviction for carrying a firearm without a license. U.S. v. Luster, 480 F.3d 551 (7th Cir. 2007).
7th Circuit affirms firearm increase where defendant did not present evidence that guns were not connected with drugs. (284) At defendant’s house, DEA agents found a .22 caliber rifle and ammunition in a child’s bedroom. The agents also found marijuana and drug paraphernalia in the home. In an attic above defendant’s workshop, the agents found two rifles, a shotgun and more marijuana. Defendant was convicted of drug charges, and the Seventh Circuit upheld a § 2D1.1(b)(1) firearm enhancement. The government was not required to offer physical proof that defendant had touched the guns. Note 3 says the enhancement is to be applied “if the weapon was present, unless it is clearly improbable that the weapon was connected with the offense.” The government met its initial burden of showing that defendant possessed the guns. Defendant did not introduce any evidence compelling the district court to find that it was clearly improbable that the weapons were used in connection with the offense. U.S. v. Bothun, 424 F.3d 582 (7th Cir. 2005).
7th Circuit examines guideline issues before issuing limited Booker remand. (284) Before remanding defendant’s case to the district court to determine if it would have imposed the same sentence had it realized that the Sentencing Guidelines were advisory only, U.S. v. Paladino, 401 F.3d 471 (7th Cir. 2005), the Seventh Circuit examined the guideline issues defendant raised to guide the district court’s deliberations. The district court applied a § 2D1.1(b) (1) weapon increase based on a gun found under the mattress in defendant’s bedroom and the gun she kept in her purse. Defendant was selling drugs out of the house, and displayed a firearm to a co-conspirator to intimidate him. The panel saw “no clear error in these factual findings, whatever their relevance may be to the ultimate sentence.” The obstruction of justice increase found the most support in the record. The district court found that defendant lied when she testified that she had no knowledge of the drug trafficking conspiracy. However, the jury verdict contradicted this assertion. The court also found that defendant lied when she said that the drug ledger did not belong to her, and when she claimed that she was not acting as a lookout for a drug sale. The jury’s findings strongly contradicted these assertions. U.S. v. Parra, 402 F.3d 752 (7th Cir. 2005).
7th Circuit rejects enhancements but stays mandate until Supreme Court issues Booker. (284) Defendant argued that enhancements under § 2D1.1(b) for a gun found in his car and under § 3C1.1 for obstruction of justice were improper in light of Blakely v. Washington, 124 S.Ct. 2531 (2004), as interpreted by U.S. v. Booker, 375 F.3d 508 (7th Cir. 2004), reversed, 125 S.Ct. 738 (2005). Here, the district court made factual findings that went beyond the jury’s findings and defendant’s admitted conduct. The Seventh Circuit remanded for resentencing in light of Booker. However, given that the Supreme Court will issue its opinion in Booker in the coming weeks, the panel stayed its decision until Booker is decided. U.S. v. McKee, 389 F.3d 697 (7th Cir. 2004).
7th Circuit upholds firearm increase for gang leader with extensive history of firearm use. (284) The district court applied a two-level firearm enhancement, finding that guns were “used to enforce gang discipline, to facilitate the sale of drugs,” and “it is, frankly, not conceivable to me that [defendant] would have believed that he could exercise his … duties as a regional head of the north side without his subordinates using guns or threatening to use guns.” The judge also took note of defendant’s personal history, which showed “repeated use of guns on an illegal basis.” In addition, during the search of defendant’s home, agents recovered an empty gun box and ammunition. A co-conspirator testified that he frequently saw defendant with weapons. There were numerous discussions on the tape recordings between the conspiracy leader, defendant, and other conspirators about the use of violence and shootings to protect territory, to enforce the collection of drug debts and street taxes, and in disciplining gang members. Accordingly, the Seventh Circuit ruled that the district court did not err in applying the dangerous weapon enhancement. U.S. v. Souffront, 338 F.3d 809 (7th Cir. 2003).
7th Circuit upholds gun increase for leader of drug conspiracy. (284) Defendant was convicted of numerous drug-related offenses. The Seventh Circuit affirmed a § 2D1.1(b)(1) leadership increase. A gun was found in the apartment of defendant’s regional street boss and enforcer. In addition, defendant ordered that a co-conspirator’s punishment for the discovery by police of drugs and a gun in his apartment was to be shot. Testimony at trial revealed that weapons were carried and used for disciplinary and security purposes as part of the conspiracy. The district court did not err in determining that it was reasonably foreseeable that defendant, as leader of the drug conspiracy, knew guns were involved in maintaining and enforcing the work of the conspiracy. U.S. v. Souffront, 338 F.3d 809 (7th Cir. 2003).
7th Circuit holds that court properly shifted burden to defendant to show gun was not connected to drug offense. (284) In order to apply a § 2D1.1(b)(1) firearm increase, the government bears the initial burden of showing the defendant possessed a weapon in a place where drugs were present. Once the government meets its burden, the burden shifts to the defendant, who must then demonstrate that it is “clearly improbable” the gun was connected with the drug offense. Here, the government established that defendant had a firearm in the room where he was arrested after escaping from prison. At that point, the government satisfied its burden and the burden shifted to defendant to demonstrate the weapon was not connected with the drug offense. He failed. The Seventh Circuit held that the district court properly applied the firearm increase and correctly following the burden shifting provisions. U.S. v. Fudge, 325 F.3d 910 (7th Cir. 2003).
7th Circuit holds defendant hiding in closet of stash house accountable for gun hidden in bathroom. (284) Police searching a house found five pounds of marijuana hidden in a bean bag chair, drug paraphernalia, cash taped to the bottom of a chair, and a gun hidden in the tank of the toilet. Defendant was found hiding under clothing in a closet. The district court applied a firearm increase under § 2D1.1(b)(1) for being in possession of a firearm when arrested, and the Seventh Circuit affirmed. The district court made a factual finding that the apartment was a stash house – it was sparsely furnished, containing almost no food, few clothes, and little furniture. The court further found that defendant was a trusted part of the drug operation. He was left in sole possession of the apartment in order to allow a co-conspirator to pick up the drugs. On the day of his arrest, defendant clearly had the power and intention to exercise dominion and control over the entire apartment. The gun’s location in the bathroom did not diminish defendant’s control over it. It was not clearly improbable the gun was connected to the offense. Guns found in close proximity to drug activity are presumptive connected to that activity. U.S. v. Corral, 324 F.3d 866 (7th Cir. 2003).
7th Circuit holds that trial testimony supported firearm increase. (284) The district court applied a firearm increase based on a co-conspirator’s testimony that he saw defendant cooking crack with a black 9 mm handgun nearby, and another co-conspirator’s testimony that defendant “generally” carried a black handgun about eight to ten inches long throughout the three years she had known him. Although the second conspirator’s testimony did not link defendant to any drug activity per se, the fact defendant usually carried a gun at the least lent credence to the first conspirator’s testimony. The Seventh Circuit affirmed the § 2D1.1(b)(1) increase. U.S. v. Chatmon, 324 F.3d 889 (7th Cir. 2003).
7th Circuit rules defendants were aware of guns hidden in crack house. (284) Defendants challenged their receipt of a § 2D1.1(b)(1) firearm enhancement, arguing that neither had knowledge of the guns found at the crack house where they were arrested. The Seventh Circuit held that the district court did not err in finding that defendants possessed a firearm at the time of their arrest. First, there was sufficient evidence to refute the claim that they did not know there were guns in the house. This was an active crack house with a significant amount of crack cocaine present. It is common for drug dealers to fortify crack houses with weapons in order to protect the drugs and proceeds from robbery. Even if all three guns found at the house were concealed, agents recovered multiple boxes of ammunition sitting in plain view of anyone in the house. Moreover, both defendants ran to and were found hiding in a closet that housed a loaded firearm within reach of the defendants. Once the government established that defendants were in possession of weapons, the burden shifted to them to show that the weapons were not clearly connected to the offense. They did not do so. The district court correctly inferred from the close proximity of the guns to the drugs recovered from the house that they were connected to the offense. U.S. v. Starks, 309 F.3d 1017 (7th Cir. 2002).
7th Circuit upholds firearm increase based on guns found in residence with $100,000 cash. (284) Police found several firearms at defendant’s residence, where he kept more than $100,000, which was likely the product of the illegal drug trade. When police executed the search warrant for defendant’s used car lot, which was used as the drop-off location for a van filled with about 115 pounds of marijuana, they found a loaded shotgun in the bathroom of the garage. Defendant testified at trial that the shotgun belonged to his mechanic and that he was unaware it was on the premises. The Seventh Circuit affirmed a § 2D1.1 (b)(1) firearm increase. Defendant’s assertion about the shotgun in the bathroom did not demonstrate a sufficient improbability that the gun was connected to drug trafficking. In any event, defendant’s testimony did not explain an innocent explanation for the presence of the guns found at his residence, where he kept $100,000 in cash that was presumably drug proceeds. U.S. v. Smith, 308 F.3d 726 (7th Cir. 2002).
7th Circuit affirms firearm increase based on testimony that defendant brandished gun during drug buys. (284) A government informant testified at sentencing that he purchased drugs from defendant for about one and one-half year prior to the sting operation in which defendant was arrested. On two of these occasions, defendant emerged from his bedroom brandishing a gun. The witness told the drug unit officers about the gun before they searched defendant’s home, and the officers found a gun in a box under the bed in the bedroom shared by defendant and his wife. Defendant denied ownership of the gun and claimed not to know that it was under his bed. He also testified that he never brandished a gun in the informant’s presence. Nonetheless, the Seventh Circuit affirmed a § 2D1.1(b)(1) firearm increase based on the informant’s testimony that defendant brandished the gun during two drug buys. The informant told the drug unit officers that they should look for a .380 handgun in defendant’s bedroom. This testimony was corroborated when the police officers in fact found a .380 gun under defendant’s bed. The court was entitled to credit the informant’s testimony over that of defendant and his wife. U.S. v. Willis, 300 F.3d 803 (7th Cir. 2002).
7th Circuit holds that § 924(c) acquittal did not make firearm enhancement improper. (284) Defendant was acquitted of the charge of possessing a firearm during and in relation to a drug trafficking crime in violation of 18 U.S.C. § 924(c). The Seventh Circuit ruled that defendant’s acquittal of the gun possession charge did not make a § 2D1.1(b)(1) firearm increase improper. The acquittal only meant that the government failed to establish culpability beyond a reasonable doubt, not that the defendant did not commit the act. The facts supported the increase. Before he fled his car, defendant was in the driver’s seat. After defendant was arrested, officers recovered from a hidden compartment in his car a loaded handgun, $20,000, a scale for measuring drugs and plastic bags for breaking cocaine into smaller measurements, and cocaine residue. The record clearly supported the court’s conclusion that defendant had knowledge of and control over the firearm in the car in the process of committing a drug offense. U.S. v. Thomas, 294 F.3d 899 (7th Cir. 2002).
7th Circuit holds that defendant did not prove gun was unconnected to drug offense. (284) A search of defendant’s residence unearthed both drugs and a firearm in the top shelf of a utility closet. Defendant challenged a § 2D1.1(b)(1) firearm increase, contending that there was no evidence that he actually possessed the gun, or that he used it in the commission of the drug offense. The Seventh Circuit affirmed the enhancement. The government met its burden of proving that defendant possessed a firearm. Once the government meets its initial burden, the defendant must demonstrate that it is “clearly improbable” that the weapon was connected with the drug offense. Defendant’s explanation for the gun’s presence in his house was that the gun belonged to his wife’s friend, who asked defendant and his wife to store the gun while she traveled to Georgia. The district court was not required to give defendant’s self-serving testimony presumptive weight. U.S. v. Johnson, 289 F.3d 1034 (7th Cir. 2002), abrogation on other grounds recognized by U.S. v. Vaughn, 433 F.3d 917 (7th Cir. 2006).
7th Circuit rules its not clearly improbable that guns were connected with drug conspiracy. (284) Records from the Bureau of Alcohol, Tobacco & Firearms established that defendant Melvin purchased 14 firearms between 1995 and 1997. Melvin showed one of his drug customers a handgun, and threatened another customer, who he believed had been talking to the police, stating “[talking] was a good way to get a bullet in the head.” Defendant Victor joined the conspiracy in 1995, and ATF records showed that he bought a handgun in 1996. A regular customer of Victor’s testified that during one occasion when he went to Victor’s home, Victor showed him a gun, and this gun was later identified as the same one recovered from Victor’s home. The Seventh Circuit affirmed a § 2D1.1(b)(1) firearm increase for both defendants, rejecting the claim that there was no nexus between the firearms and the drug conspiracy. The government need only demonstrate that the defendant possessed a weapon during the drug conspiracy. It is up to the defendant to refute this claim by establishing that it was clearly improbable that the weapon was connected to the offense. The district court found that both Victor and Melvin possessed weapons during the relevant period of time and it was not clearly improbable that the weapons were connected with the drug conspiracy. There was no clear error. U.S. v. Martin, 287 F.3d 609 (7th Cir. 2002).
7th Circuit affirms firearm increase based on state gun possession conviction. (284) The district court based a § 2D1.1(b)(1) firearm increase in part on defendant’s state court conviction resulting from his possession of a firearm found on him during a search of one of the conspiracy’s stash houses where drug paraphernalia and other weapons were found. This incidence of possession occurred while the conspiracy was still in operation. Therefore, the Seventh Circuit affirmed the § 2D1.1(b)(1) increase. U.S. v. Thompson, 286 F.3d 950 (7th Cir. 2002).
7th Circuit relies on hearsay to support gun enhancement. (284) Police arranged for a confidential informant to make a controlled drug buy from defendant. The government’s sole evidence in support of a § 2D1.1(b)(1) firearm increase was Detective Pointer’s testimony that immediately after completing the controlled drug purchase, the informant told him that defendant pointed a gun at him and threatened him. Although this testimony was hearsay, the Seventh Circuit held that it bore sufficient indicia of reliability to support the enhancement. First, the timing of the informant’s statement to the detective supported the statement’s reliability. Further, the informant’s statement was consistent with his other statements to the detective and with the rest of the evidence in the case. For example, another witness testified that on several occasions, she saw defendant at a crack house where she often saw guns. Finally, the fact that police did not find any weapons at the house when they later arrested him was not important. The issue was whether he possessed a gun during the relevant conduct, not whether he possessed a gun when he was arrested. U.S. v. Smith, 280 F.3d 807 (7th Cir. 2002).
7th Circuit says current guidelines permit increase for possession of gun during relevant conduct. (284) Defendant cited U.S. v. Montgomery, 14 F.3d 1189 (7th Cir. 1994) for the proposition that a firearm must be possessed during the offense of conviction in order to support a § 2D1.1(b)(1) firearm increase. The Seventh Circuit noted that Montgomery was decided under a prior version of § 2D1.1(b)(1) that has since been replaced. Under the amended version of § 2D1.1, the government need not prove that the defendant possessed the weapon during the offense of conviction. The government need only show that the weapon was possessed during any relevant conduct. U.S. v. Adams, 125 F.3d 586 (7th Cir. 1997). As the district court found here, the government readily met that burden by presenting credible witnesses at trial who saw defendant in possession of a gun while selling drugs on a number of occasions. U.S. v. Williams, 272 F.3d 845 (7th Cir. 2001).
7th Circuit affirms firearm increase for guns found in residence where drugs were handled. (284) Defendant argued that he met the burden of showing that it was clearly improbable that the weapons discovered at his residence were connected to his drug offense. The Seventh Circuit disagreed and affirmed the § 2D1.1(b)(1) increase. In searching defendant’s basement, a location where marijuana had been delivered and divided, police found $122,640 in cash, a scale, two handguns, and a clip loaded with hollow-point bullets. Money was found in a safe together with the handguns. Defendant provided affidavits of two individuals who claimed that they, not defendant, owned the guns, and that they had stored them at defendant’s residence. However, the district court was not required to credit these affidavits. In addition, even if it was true that some or all of the guns were left at defendant’s residence, this would not prove that it was “clearly improbable” that they were connected to the offense. Given that the guns were found in a residence where drugs were delivered and handled, that they were found in close proximity to the proceeds from the crime, and that drug paraphernalia was also found in the house, the court did not clearly err in applying the § 2D1.1(b)(1) increase. U.S. v. Bjorkman, 270 F.3d 482 (7th Cir. 2001).
7th Circuit upholds firearm increase where gun was on couch with defendant during drug sales. (284) After making three controlled drug buys from defendant, police arrested defendant. Inside the crack house, they found a semi-automatic rifle. Defendant conceded that he had picked up the gun in the house because he thought it was ugly, and wanted to look at it. However, he argued that a § 2D1.1(b)(1) firearm increase was unwarranted because the gun was not connected to his drug sales. The Seventh Circuit disagreed. The informant saw a gun on the couch next to defendant during his first two purchases of crack. During the third purchase, he saw a gun near defendant as another conspirator was cutting up large amounts of crack into smaller portions on a table nearby. The gun’s proximity to defendant and to the drugs during the drug sales gave defendant the ability to use the weapon in an instant if he felt his personal safety or his illegal product was threatened. The § 2D1.1(b)(1) enhancement was designed to address the increased chance that firearms will be used if they are present during drug trafficking. U.S. v. Booker, 248 F.3d 683 (7th Cir. 2001).
7th Circuit affirms firearm enhancement for gun stored near drugs to protect from thieves. (284) Defendant’s son testified that defendant told him to go to his grandmother’s house in Kansas to retrieve an assault rifle. The son explained that defendant was concerned that the success of his new crack business might attract the attention of thieves. On his way back from Kansas, with the rifle in his possession, the son stopped in St. Louis to buy more cocaine for himself and his father. Once back at home, defendant stored the rifle at a neighbor’s trailer, which was just a block from the apartment where defendant stored his drugs. On at least one occasion, defendant retrieved the gun and took it back to the apartment to break up an argument between two conspirators. Based on this evidence, the Seventh Circuit affirmed a § 2D1.1(b)(1) firearm enhancement. U.S. v. Nance, 236 F.3d 820 (7th Cir. 2000).
7th Circuit affirms firearm increase despite testimony that defendant did not give “drug credit” for gun. (284) Cooke testified that on one occasion he sold a gun to defendant at a discount in exchange for partial payment on a drug debt. Defendant contended that the gun sale was a strict cash transaction and was not connected to his sale of methamphetamine. In support of this, Williamson testified that he was present during the gun sale, and that defendant paid the full amount in cash and did not give Cooke a “drug credit.” The Seventh Circuit nonetheless found no error in the district court’s application of a § 2D1.1(b)(1) firearm enhancement. As the fact-finder, the district court was entitled to give Cooke’s testimony greater weight than that of Williamson’s. U.S. v. Berthiaume, 233 F.3d 1000 (7th Cir. 2000).
7th Circuit affirms firearm increase based on co-conspirator’s gun possession. (284) Defendant “worked the table”—he cooked, cut up, and packaged kilograms quantities of crack cocaine into smaller portions for distribution—as part of a large drug distribution ring. He worked the table at two drug houses that were equipped with sophisticated hidden compartments containing large caches of firearms. He was continuously in the presence of co-conspirators who routinely and openly carried guns, and once while he was present at one house several co-conspirators exchanged gunfire with other individuals. Based on these facts, the district court found that the presence of firearms was foreseeable to defendant, and imposed a § 2D1.1(b)(1) firearm increase. The Seventh Circuit affirmed. Although the government conceded that defendant never personally carried a gun, a defendant can “possess” a gun for § 2D1.1(b)(1) under co-conspirator liability principles. The PSR recounted numerous instance in which firearms were possessed by co-conspirators, and defendant did not object to those facts. U.S. v. Harris, 230 F.3d 1054 (7th Cir. 2000).
7th Circuit relies on conspirator’s interpretation of coded conversation to support gun increase. (284) The government introduced 188 tapes of conversations concerning a drug conspiracy into evidence. The recorded conversations were all in code and street slang, but Griffith, a cooperating conspirator, deciphered them for the jury. In one of the audio tapes, Griffith identified himself and defendant as the speakers. He explained that he said he had a .380 and defendant responded “I know, I got something too.” Defendant referred to a “zero.” Griffith said that these statements referred to guns possessed by both him and defendant. The Seventh Circuit affirmed a § 2D1.1(b)(1) firearm enhancement, holding that the district court properly found Griffith credible, and inferred from these tapes that either defendant possessed a gun to further the drug conspiracy, or that Griffith possessed it and his possession was reasonably foreseeable to defendant. U.S. v. Cavender, 228 F.3d 792 (7th Cir. 2000).
7th Circuit applies firearm increase for gun possessed during relevant conduct. (284) At sentencing, Nelson testified that he had seen defendant with a .45 caliber firearm on two separate occasions. On one occasion, defendant was with Harris, who was in possession of a large quantity of cash. On the other occasion, Nelson was purchasing drugs from defendant. Based on this evidence, the district court found that defendant had possessed the gun during his related course of conduct of selling crack and cocaine. Although the firearm possession did not occur during the transactions for which for which defendant was convicted, the Seventh Circuit affirmed the increase. The § 2D1.1(b)(1) enhancement applies if the sentencing court finds that the defendant possessed the gun during the offense that led to the conviction or during relevant conduct. Defendant possessed the firearm during his relevant conduct of selling crack cocaine and cocaine. U.S. v. Johnson, 227 F.3d 807 (7th Cir. 2000).
7th Circuit applies enhancement for gun possessed during relevant conduct. (284) On May 8, 1998, a confidential informant told police that defendant would be picking up $8,000 worth of methamphetamine that evening. Police intercepted defendant that night, and a search of his car revealed cocaine and methamphetamine, drug paraphernalia, $4,000 in cash, and a .32 caliber gun with two live rounds of ammunition. The Seventh Circuit affirmed a § 2D1.1(b)(1) firearm increase, since defendant possessed the gun during conduct relevant to the convicted offenses. Although defendant was only convicted of two drug sales that took place days before his car was stopped, his relevant conduct extended from February 1 until June 30. Moreover, the gun was found in close proximity to drugs, lending credibility to the trial court’s finding that it was not clearly improbable the gun was possessed in connection with the drug offense. U.S. v. Zehm, 217 F.3d 506 (7th Cir. 2000).
7th Circuit says court would have applied gun increase even without protected statement. (284) Police found drugs, drug paraphernalia, and a loaded gun in a stolen motor home. At his arrest, defendant admitted that the gun belonged to him. His plea agreement required him to make a “full, complete and truthful statement” regarding his offense, and barred the government from using at sentencing the information he provided under the agreement. Defendant told his probation officer that Cashman, his drug supplier, had given him the motor home, and that the gun was in the home “at the time.” The Seventh Circuit affirmed a § 2D1.1(b)(1) firearm increase. Given the tight confines of the motor home and defendant’s admission at his arrest, the district court properly found that defendant possessed the weapon while he conspired with Cashman to distribute drugs. It was not clearly improbable that the gun was connected with the conspiracy. Deputies found in the motor home a variety of drug paraphernalia, some of it containing methamphetamine residue. Finally, although the plea agreement prohibited the court from considering defendant’s statement as to the source of the gun, the district court’s consideration of that statement was not plain error. Given the independent indicia that defendant possessed the gun during and in connection with the drug conspiracy, the district court still would have applied the § 2D1.1(b)(1) increase even without defendant’s revelation that his drug supplier gave him the gun. U.S. v. Cashman, 216 F.3d 582 (7th Cir. 2000).
7th Circuit reaffirms that mere presence of gun is sufficient for firearm enhancement. (284) The commentary says that the § 2D1.1(b)(1) firearm enhancement should be applied if the weapon was present, unless it was clearly improbable that the weapon was connected with the drug offense. In U.S. v. Atterson, 926 F.3d 649 (7th Cir. 1991), the Seventh Circuit rejected an argument that the mere presence of firearms in a defendant’s residence does not warrant a § 2D1.1(b)(1) enhancement. In the present case, defendant argued that Atterson and similar cases were wrongly decided and should be overturned. The Seventh Circuit declined to do so. U.S. v. Pigee, 197 F.3d 879 (7th Cir. 1999).
7th Circuit finds co-conspirator’s foreseeable possession of guns sufficient for enhancement. (284) During the execution of a search warrant at defendant’s home, police found an unloaded handgun and two unloaded rifles. In addition, guns were stored at a stash house to which defendant had access. Defendant challenged a § 2D1.1(b)(1) firearm enhancement on the grounds that he did not possess the weapons found at his home, either actually or constructively, but was merely storing them at Bell’s request. The sentencing court found that it did not matter whether defendant had personal control over the guns because it was reasonably foreseeable to him that Bell kept firearms in connection with the conspiracy. The Seventh Circuit agreed. Bell owned the weapons kept at the stash house. Guns found in close proximity to illegal drugs are presumptively considered to have been used in connection with the drug trafficking enterprise. Furthermore, defendant knew about the weapons at the stash house. Thus, defendant’s assertion that he did not possess the weapons did not help him. U.S. v. Brack, 188 F.3d 748 (7th Cir. 1999).
7th Circuit applies enhancement for gun co-conspirator carried while obtaining cocaine for defendant. (284) Police found a gun in Flowers’ vehicle along with a kilogram of cocaine. Flowers testified that he had traveled to Houston to obtain two kilograms of cocaine, one for himself and one for defendant. He also said that defendant sold the gun to him. The Seventh Circuit affirmed a § 2D1.1(b)(1) enhancement for defendant based on Flowers’ gun possession. Flowers possessed the gun in the course of obtaining cocaine for himself and defendant. That possession was certainly foreseeable to defendant since defendant sold the gun to Flowers. U.S. v. Washington, 184 F.3d 653 (7th Cir. 1999).
7th Circuit applies firearm enhancement for gun found in car used six weeks earlier to transport drugs. (284) Defendant worked as a courier for a drug dealer. For all but one delivery, defendant used a car provided by the dealer. However, on one occasion in July 1997, defendant used his own car to transport marijuana. When defendant was arrested in August 1997, police found a handgun locked in the trunk of defendant’s car. Defendant did not have any drugs with him or in the car at the time of his arrest. The district court found that the gun was connected to the drug conspiracy offense because defendant used the car to deliver a load of marijuana six weeks earlier in July. The Seventh Circuit agreed that this temporal proximity provided a sufficient nexus between the drugs and the weapon to support a § 2D1.1(b)(1) enhancement. It was not “clearly improbable” that the weapon was used in connection with the offense. However, the court should consider the fact that the government initially conceded, at least implicitly, that the weapon was not used in connection with the offense when it agreed to recommend the safety valve provision. Since the case was being remanded on other grounds, the district court could take all these relevant factors into consideration at resentencing. U.S. v. Grimm, 170 F.3d 760 (7th Cir. 1999).
7th Circuit affirms firearm enhancement for gun found at house when defendant was arrested. (284) Defendant pled guilty to methamphetamine conspiracy charges. The district court imposed a § 2D1.1(b)(1) enhancement because when he was arrested, a .357 caliber handgun was found at his residence. In addition, a co-conspirator told investigators that he had seen defendant in possession of firearms on numerous occasions. The Seventh Circuit affirmed the firearm enhancement based on ample evidence that defendant possessed the gun during the course of the conspiracy. The government was not required to prove that defendant used the gun during the conspiracy. Defendant offered no evidence that it was clearly improbable that the gun was possessed in connection with the offense. U.S. v. Berkey, 161 F.3d 1099 (7th Cir. 1998).
7th Circuit upholds firearm enhancement where gun was in car that carried passenger to drug deals. (284) Narcotics investigators observed a green car making several short trips between residences and businesses known by police to be related to the drug trade. Police stopped the car for a traffic violation. Defendant, who was driving the car, admitted that there was a gun in the center console, which he carried for protection because his passenger had once been kidnapped. Officers arrested defendant and the passenger after learning that they had just delivered a kilogram of cocaine. The Seventh Circuit affirmed a § 2D1.1(b)(1) firearm enhancement based on the gun found in the car. The government is not required to show that the weapon was connected to the offense, but only that the weapon was possessed during the offense of conviction or during relevant conduct. The government met this burden because defendant admitted that the gun in the car was his, and that he was using the car to drive his passenger to and from various drug deals. The burden was on the defendant to show it was clearly improbable that the gun was connected to the offense. The district court found that defendant’s statement that he carried the gun for protection from kidnappers was not credible. U.S. v. Cain, 155 F.3d 840 (7th Cir. 1998).
7th Circuit applies firearm enhancement where weapon was present during relevant conduct. (284) Defendant was convicted of six counts of cocaine distribution. He challenged a § 2D1.1(b)(1) firearm enhancement, claiming that mere possession of the weapon was not enough. The Seventh Circuit held that the § 2D1.1(b)(1) enhancement only requires the government to show that the weapon was possessed during any relevant conduct, not that the weapon was present during a specific drug trafficking offense. The district court correctly inferred that the fully loaded revolver found at defendant’s home¾the same place where defendant was conducting his business¾was connected to the drug offense. U.S. v. Coleman, 149 F.3d 674 (7th Cir. 1998).
7th Circuit affirms gun increase for assault rifle near bank bags used to store drug proceeds. (284) During the execution of a search warrant at defendant’s residence, police found a loaded assault rifle and ammunition magazine in close proximity to a bank bag containing $15,550. The Seventh Circuit affirmed a § 2D1.1(b)(1) gun enhancement. At trial, testimony was presented that defendant’s method of operation was to transport and store the proceeds of his drug trafficking in bank bags. It was reasonable to infer that defendant chose to use the gun to aid him in protecting the proceeds of his drug trafficking. U.S. v. McClinton, 135 F.3d 1178 (7th Cir. 1998).
7th Circuit affirms firearms increase for gun and drugs found in same dresser drawer. (284) During a search of defendant’s residence, police found in a dresser drawer in his bedroom an unloaded gun, crack, powder cocaine and marijuana. Magazines for the gun were found elsewhere in the bedroom. An additional handgun was found in the trunk of defendant’s car. The Seventh Circuit affirmed a § 2D1.1(b)(1) enhancement based on the gun found in the dresser drawer with the drugs. When a firearm is discovered in close proximity to drugs, it is most likely that the two are connected. Defendant also purchased a second gun during the time that he was dealing in drugs, suggesting that defendant possessed the guns with his narcotics business in mind. The possibility that defendant may never have made affirmative use of the gun was irrelevant. U.S. v. Burns, 128 F.3d 553 (7th Cir. 1997).
7th Circuit affirms increase for gun on shelf of bedroom closet of wheelchair-bound defendant. (284) Defendant pled guilty to conspiring to distribute more than 100 kilograms of marijuana. Police found a loaded gun in a jewelry box atop a shelf inside defendant’s bedroom closet. Marijuana residue and drug paraphernalia were also found in the bedroom. Almost 100 grams of marijuana were found elsewhere in the house. A long-time acquaintance of defendant’s testified that he had seen a gun in defendant’s possession on about half of the more than 20 occasions he visited her. He observed her carry the gun with her in her wheelchair as she escorted customers in and out of her bedroom to conduct business. Defendant argued that because the gun was found on a shelf it was inaccessible to her. The Seventh Circuit affirmed a § 2D1.1(b)(1) enhancement. Given the testimony that defendant carried a gun with her during the drug dealings, the accessibility issue was moot. U.S. v. Tyler, 125 F.3d 1119 (7th Cir. 1997).
7th Circuit upholds gun enhancement for guns found at drug house. (284) Defendants were convicted of a drug conspiracy. The Seventh Circuit affirmed a § 2D1.1(b)(1) enhancement based on guns found at the drug house where defendants were arrested. Six weapons plus ammunition were found at the residence, which was a crack cocaine distribution center for the conspiracy. The guns were stashed strategically throughout the house to protect the large sums of cash and drugs. Even if the court disregarded five of the weapons, there was still a loaded gun in the kitchen cabinet just a short distance from one defendant’s bedroom where he was arrested with the other defendant. U.S. v. Singleton, 125 F.3d 1097 (7th Cir. 1997).
7th Circuit says gun need not be present during a specific drug transaction. (284) Defendant was convicted of a drug conspiracy. He argued that § 2D1.1(b)(1) requires the government to prove that the weapon was present at the scene of a drug transaction. The guns attributed to defendant were found in defendant’s residence and car and in his sister’s residence but were not linked to any specific drug trafficking incident. The Seventh Circuit held that the government need not show that the gun was present during a specific drug transaction; it must only show that the weapon was possessed during relevant conduct. The guidelines does not require actual possession; they apply to constructive possession. Guns found in close proximity to illegal drugs are presumptively considered to have been used in connection with the drug trafficking enterprise. The gun in defendant’s car was in the same compartment inside the engine where cocaine was transported. The assault rifles in defendant’s sister’s residence were identified as the same rifles discussed in a recorded phone call between defendant and a co-conspirator. Defendant wanted the co-conspirator to teach him how to use the rifles. U.S. v. Adams, 125 F.3d 586 (7th Cir. 1997).
7th Circuit approves firearm enhancement based on co-conspirator’s possession. (284) Defendant argued that because a § 2D1.1(b)(1) enhancement was predicated on his co-conspirators’ possession of firearms, the district court should have defined with greater precision the scope of his conspiracy agreement. The Seventh Circuit found this argument disingenuous, given that defendant’s primary responsibility as a conspirator was to supply his co-conspirators with firearms. Moreover, at resentencing, defendant did not contest that his co-conspirator carried a gun. This gun was carried in relation to and as a natural, foreseeable consequence of the conspiracy. U.S. v. Walker, 118 F.3d 559 (7th Cir. 1997).
7th Circuit upholds firearm enhancement for gun found in car at time of arrest. (284) Police stopped defendant on the highway and arrested him for his role in a drug conspiracy. Later a firearm was found behind a heating vent in his car. The Seventh Circuit approved a § 2D1.1 (b)(1) firearm enhancement based on the gun. Although at the time of his arrest defendant was ostensibly on a family outing, during the trip he had stopped at the house of an associate in the drug business and conducted business. The court was entitled to discount the testimony of defendant’s wife that he used the firearm—a 9mm semiautomatic Beretta handgun with hollow point ammunition—to hunt squirrels. U.S. v. Vargas, 116 F.3d 195 (7th Cir. 1997).
7th Circuit finds gun was present where defendant conducted drug transactions. (284) Defendant was convicted of participating in a crack cocaine distribution ring. The district court applied a § 2D1.1(b)(1) enhancement based on evidence that defendant purchased a .41 Magnum in the home of a co-conspirator where defendant also resided. Defendant argued that the government failed to prove that the gun was connected to his drug activity. The Seventh Circuit held that defendant’s possession of the gun at the house where he conducted his drug business sufficiently connected the gun to the drug business. The government did not need to prove that defendant used the gun; possession is all that is required under § 2D1.1(b)(1). Defendant’s mental state was irrelevant since he actually possessed the gun at the very place from which he conducted his drug business. U.S. v. Pippen, 115 F.3d 422 (7th Cir. 1997).
7th Circuit affirms increase for loaded gun in bag on floor of car defendant was driving. (284) Police found in a car defendant was driving a shopping bag containing crack cocaine on the floor in front of the driver’s seat and a gym bag containing a loaded gun on the floor of the front passenger seat. The Seventh Circuit affirmed a § 2D1.1(b)(1) increase based on the gun found in the bag next to the passenger’s seat. Application Note 3 says the enhancement should be applied if the weapon was present, unless it is clearly improbable that the weapon was connected to the offense. U.S. v. Green, 111 F.3d 515 (7th Cir. 1997).
7th Circuit affirms § 2D1.1(b)(1) enhancement based on co-conspirator’s gun possession. (284) Defendant was the leader of a gang that distributed heroin. The district court imposed a § 2D1.1(b)(1) enhancement based on a co-conspirator’s possession of a handgun during a drug sale. The Seventh Circuit affirmed the enhancement based on evidence that defendant gave the gun to the co-conspirator so that the co-conspirator could provide security for the drug operation. The co-conspirator’s carrying of the gun in connection with a drug transaction was not just foreseeable, but inevitable. U.S. v. Taylor, 111 F.3d 56 (7th Cir. 1997).
7th Circuit affirms gun enhancement where witnesses saw both defendants with weapons. (284) Defendants were convicted of drug conspiracy charges. The Seventh Circuit affirmed a weapon enhancement under § 2D1.1(b)(1) because a number of witnesses testified they saw both defendants with a weapon. For example, after one defendant discovered that the drugs he had purchased were missing, he pulled out a gun and threatened to kill the person who had taken the drugs. There was also testimony that the other defendant had a gun that he had pulled out of its case because he was storing “weed” in the case. U.S. v. Hall, 109 F.3d 1227 (7th Cir. 1997).
7th Circuit says court may increase for firearm after reversal of § 924(c) conviction. (284) Defendant was convicted of drug and firearms charges. After reversing the § 924(c) conviction, the Seventh Circuit remanded for resentencing on the affirmed drug convictions. The court ruled that even though the conviction for “use” of a firearm under § 924(c) had been invalidated, the district court was free, on resentencing, to increase defendant’s drug sentence under § 2D1.1(b)(1) for “possession” of the firearm. U.S. v. Jackson, 103 F.3d 561 (7th Cir. 1996).
7th Circuit allows revision of sentence in 2255 motion when one count is vacated. (284) After the Supreme Court decided Bailey v. U.S., 116 S.Ct. 501 (1995), defendant filed a 28 U.S.C. § 2255 petition requesting that his § 924(c) conviction for “use” of a firearm be vacated. The district court granted the petition, but then revised his sentence on the remaining counts to reflect possession of the firearm. Defendant argued that the district court had no jurisdiction to revise the entire “sentencing package,” but could only deal with the invalid count. The Seventh Circuit upheld the court’s authority on a § 2255 petition to revise the entire sentence. A multi-count sentence is a package, and severing part of the total sentence usually will unbundle the entire package. The resentencing did not violate double jeopardy, even though at the time the § 924(c) count was vacated defendant had served his time on the other counts under the original sentence. U.S. v. Smith, 103 F.3d 531 (7th Cir. 1996).
7th Circuit holds Bailey did not affect “possession” requirement of § 2D1.1(b)(1). (284) Police found marijuana in defendant’s bedroom, bedroom closet, bathroom and garage. They also found a rifle near the marijuana in the bedroom closet and another gun and ammunition and marijuana in an entertainment center in the bedroom. Defendant originally agreed in her plea agreement that the § 2D1.1(b)(1) enhancement applied. But after the agreement was signed, the Supreme Court decided Bailey v. U.S., 116 S.Ct. 501 (1995). At sentencing, defendant’s attorney argued that Bailey required active use of a firearm for a § 2D1.1(b)(1) firearms increase. The district judge agreed and refused to apply the enhancement. On appeal, the Seventh Circuit held that Bailey makes it clear that § 2D1.1(b)(1) casts a wider net than § 924(c). The guideline requires only possession of the firearm, which defendant admitted, not the active employment that Bailey requires under § 924(c)(1). U.S. v. Carmack, 100 F.3d 1271 (7th Cir. 1996) .
7th Circuit affirms § 2D1.1 increase for gun in tissue box next to defendant in car. (284) Defendant and an associate drove in separate vehicles to a drug transaction. While the associate parked in a motel parking lot and went into a room, defendant parked his car in an adjacent lot and maintained surveillance from a space in the lot about 100 yards from the room where the transaction was taking place. Defendant was arrested in his car after the transaction. The Seventh Circuit affirmed a § 2D1.1(b)(1) enhancement based on a box of tissues containing a loaded semiautomatic handgun that was on the seat next to defendant when he was arrested. Although defendant claimed he did not actually possess the handgun, § 2D1.1(b)(1); constructive possession is sufficient. The handgun was within defendant’s reach and control. It was unnecessary to determine whether defendant possessed the gun in sufficient proximity to the drug transaction since defendant was convicted of conspiracy. U.S. v. Wetwattana, 94 F.3d 280 (7th Cir. 1996).
7th Circuit upholds increase for gun in room with drugs and drug-making equipment. (284) Police searching defendant’s residence found a nine millimeter handgun in the master bedroom. An ammunition clip was stored in a nearby dresser. The weapon was found in the same room as 29 grams of methamphetamine and equipment that could have been used to manufacture and package the drug. The Seventh Circuit upheld a § 2D1.1(b)(1) enhancement. When a gun is found in a room near a large quantity of drugs and equipment used to make drugs, it is not “clearly improbable” that the weapon was connected with the offense. U.S. v. Turner, 93 F.3d 276 (7th Cir. 1996).
7th Circuit approves firearm increase based on defendant’s admissions in plea agreement. (284) The district court imposed a § 2D1.1(b)(1) firearm enhancement based on defendant’s possession of a gun during a cocaine transaction with informants and an undercover agent. The Seventh Circuit affirmed, since defendant admitted to the gun possession in his plea agreement and the undercover agent and one of the informants testified that defendant possessed a gun during the sale. U.S. v. Lewis, 79 F.3d 688 (7th Cir. 1996).
7th Circuit says firearm acquittal does not bar firearm enhancement under § 2D1.1(b)(1). (284) The district court rejected the government’s request for a § 2D1.1(b)(1) firearm enhancement because defendant had been acquitted of firearm charges under 18 U.S.C. § 924(c). The Seventh Circuit held that the § 924(c) acquittal did not bar the firearm enhancement. The burden of proof for each is different. In addition, § 2D1.1(b)(1) casts a wider net than § 924(c). U.S. v. Pollard, 72 F.3d 66 (7th Cir. 1995).
7th Circuit says guns were foreseeable given amount of drugs involved. (284) Defendant acted as an intermediary in a deal to purchase cocaine from a source he knew. He delivered $112,000 from the buyer to the seller. When the seller never delivered the cocaine, defendant and the other conspirators searched for the seller. The district court held defendant accountable under § 2D1.1(b)(1) for guns possessed by two of the co-conspirators. The Seventh Circuit agreed that the weapon possession was reasonably foreseeable to defendant light of the sizable drug money involved in the case. The drug industry is dangerous, and a reasonable fact-finder may conclude that in a drug deal involving sizable amounts of money, the presence of firearms is foreseeable. The district court reasonably inferred that while in pursuit of the drug money, defendant foresaw the possession of firearms by his co-conspirators. U.S. v. Berchiolly, 67 F.3d 634 (7th Cir. 1995).
7th Circuit finds passenger had knowledge of and control over gun found in car carrying drugs. (284) Defendant was a passenger in a car carrying 17 kilograms of marijuana. Police also found in the car a loaded semiautomatic pistol on top of the air conditioning duct behind the glove compartment. The Seventh Circuit upheld a § 2D1.1(b)(1) enhancement, agreeing that defendant had knowledge of and control over the gun in the car. Defendant had ridden in the front passenger side of the car for over 24 hours. She owned the car and was married to its driver. She repeatedly glanced at the glove compartment while she was speaking to the police officer. To prevent the officer from seeing inside the glove compartment, she closed it very quickly after retrieving papers requested by the officer. After being ordered out of the vehicle, she asked three times if she could retrieve more papers from the glove compartment. U.S. v. Covarrubias, 65 F.3d 1362 (7th Cir. 1995).
7th Circuit enhances for weapon found in house used regularly in defendant’s drug trade. (284) Defendant was the leader of a drug conspiracy. The district court enhanced his sentence under § 2D1.1(b)(1) based on guns found during the execution of a warrant at one of defendant’s homes. A submachine gun loaded with 43 rounds of ammunition was in a closet next to the room where defendant was sleeping, and the handgun was in a woman’s coat pocket. The raid also uncovered 13 baggies of cocaine and $32,000 in cash. The Seventh Circuit affirmed the § 2D1.1(b)(1) enhancement. U.S. v. Claiborne, 62 F.3d 897 (7th Cir. 1995).
7th Circuit approves firearm enhancement for gun found in car in which defendant was passenger. (284) Defendant was convicted of possessing piperidine, knowing it would be used to manufacture a precursor to PCP. The Seventh Circuit affirmed a § 2D1.11(b)(1) firearm based on a gun found in the car in which he was riding after picking up the piperidine from a parcel service center. The bottles that defendant picked up at the parcel service center were found in the same interior compartment of the vehicle as the gun. Thus, although defendant was not the registered owner of either the car or the firearm, the district court did not clearly err in concluding that defendant knew the gun was present. U.S. v. Anderson, 61 F.3d 1290 (7th Cir. 1995) (en banc).
7th Circuit affirms firearm enhancement based on co-conspirator testimony. (284) Defendant was convicted of conspiring to possess marijuana with intent to distribute it. The Seventh Circuit affirmed a § 2D1.1(b)(1) enhancement based on one conspirator’s testimony that defendant brandished a gun when he demanded payment for some drugs, and another conspirator’s testimony that defendant had a gun in his bag when the conspirator delivered the drug money. U.S. v. Curley, 55 F.3d 254 (7th Cir. 1995).
7th Circuit upholds firearm enhancement despite acquittal on firearms charges. (284) Defendant was convicted of drug charges and acquitted of carrying a firearm during a drug trafficking offense and being a felon in possession of a firearm. He argued that his firearms acquittals precluded the district court from enhancing his sentence under § 2D1.1(b)(1) for possessing a firearm during a drug trafficking offense. The 7th Circuit held that the firearms acquittals did not preclude the § 2D1.1(b)(1) enhancement. An acquittal does not mean a defendant did not do it; it merely means the prosecution did not establish guilt beyond a reasonable doubt. The enhancement need only be supported by a preponderance of the evidence. U.S. v. Jones, 54 F.3d 1285 (7th Cir. 1995).
7th Circuit holds defendant accountable for gun found in car in which he was passenger. (284) Police found drugs in a car in which defendant was a passenger. Both defendant and the driver were charged with drug crimes. Defendant received a § 2D1.1(b)(1) enhancement based on a gun found in the trunk of the car. He argued that he was not responsible for his co-conspirator’s gun possession because there was no evidence that the gun was ever retrieved from the trunk, or otherwise brandished or discharged in defendant’s presence. The Seventh Circuit upheld the enhancement because defendant was aware of the co-conspirator’s possession of the weapon during the drug offenses in which both were involved. Defendant knew the driver had brought along a weapon. Therefore, the gun possession was properly imputed to defendant. U.S. v. Price, 54 F.3d 342 (7th Cir. 1995).
7th Circuit approves § 2D1.1(b)(1) enhancement despite acquittal on firearms charges. (284) The Seventh Circuit upheld an enhancement under § 2D1.1(b)(1) for possessing a firearm during a drug trafficking crime even though defendant was acquitted of firearms charges. Nothing in the guidelines or the Constitution prevents a court from taking acquitted conduct into account. Moreover, defendant admitted to police that she a possessed a handgun and that she was convicted of participating in a conspiracy to distribute cocaine that lasted for a far greater period of time than the one day on which she was charged with a firearm violation. The district court could have easily concluded that defendant possessed the gun during her activities in furtherance of the conspiracy. U.S. v. Billops, 43 F.3d 281 (7th Cir. 1994).
7th Circuit upholds firearm enhancement based on testimony of co-conspirator. (284) Defendant pled guilty to drug conspiracy charges. The district court imposed a § 2D1.1(b)(1) enhancement based on a co-conspirator’s testimony that he had walked into a residence where defendant was packaging cocaine and that defendant had pulled a handgun on him. The 7th Circuit upheld the district court’s reliance on this evidence. The court did not need corroboration of this testimony, given that other statements by the co-conspirator were corroborated. The co-conspirator’s testimony was not unreliable simply because he had received certain benefits for testifying. Defendant failed to present any evidence other than his own testimony denying that he had a gun. Although the district court characterized the witnesses as “two liars,” it ultimately determined that the co-conspirator was more credible. U.S. v. Linnear, 40 F.3d 215 (7th Cir. 1994).
7th Circuit holds defendant accountable for gun possessed by co-conspirator during relevant conduct. (284) Defendant pled guilty to one count of possessing cocaine with intent to distribute. He did not possess a weapon during this offense. However, he was aware that a co-conspirator (in a conspiracy of which defendant was not convicted) carried a gun during several drug transactions that were related to, but not part of, the offense of conviction. Effective November 1, 1991, the Sentencing Commission amended § 2D1.1(b)(1) so that the enhancement is no longer restricted to guns possessed during the offense of conviction. The 7th Circuit held that a defendant is accountable under § 2D1.1(b)(1) for a co-conspirator’s gun possession during drug trafficking relevant to the offense of conviction, even where the weapon was not present during the offense of conviction. Here, the co-conspirator’s possession of a dangerous weapon was reasonably foreseeable to defendant and in furtherance of jointly undertaken criminal activity that was part of the same course of conduct or common scheme as the offense of conviction. U.S. v. Mumford, 25 F.3d 461 (11th Cir. 1994).
7th Circuit upholds firearm enhancement where defendant was wearing empty shoulder holster. (284) Under 7th Circuit law, a sentencing court can enhance a defendant’s sentence under § 2D1.1(b)(1) for possessing a firearm during a drug trafficking crime even if the defendant has been acquitted of using the gun in relation to a drug trafficking charge under 18 U.S.C. § 924(c). The 7th Circuit rejected defendant’s invitation to reconsider this position, and upheld the § 2D1.1(b)(1) enhancement. The government established that the pistol discovered in defendant’s car was connected with his sale and possession of crack cocaine. The gun was found on the front seat of defendant’s car shortly after he sold crack to an undercover agent, and crack was found on defendant’s person. When he was arrested, defendant was wearing an empty shoulder holster. A passenger in the car testified that during the drug sale and ensuing car chase, defendant removed the pistol from the holster and tried to hand it to him. U.S. v. Chandler, 12 F.3d 1427 (7th Cir. 1994).
7th Circuit upholds firearm enhancement based on possession by unknown and unindicted co-conspirators. (284) Several witnesses testified that firearms were present during the unloading of marijuana supervised by defendant. The 7th Circuit upheld a firearm enhancement under section 2D1.1(b)(1) even though neither defendant, nor any charged conspirator, was seen holding the weapons. To support an enhancement based on a co-conspirator’s firearm possession, the firearm possessor need not be an indicted co-conspirator, particularly where the possessor is under the defendant’s control and is in close proximity to the defendant and the drugs. Here, the weapons were present during the drug transactions in question, possessed by associates of defendant, and known to defendant. U.S. v. Johnson, 997 F.2d 248 (7th Cir. 1993).
7th Circuit says that guns need not be close to drugs at time of conspiracy’s defendant’s arrest. (284) Defendant argued that it was clearly improbable that the handguns found in the trunk of his car were related to his drug offense, since the seized drugs were found miles away. The 7th Circuit found that the guns had the requisite connection to the drug conspiracy to support an enhancement under section 2D1.1(b)(1). In cases cited by defendant, the enhancements were rejected because the weapon was not in close proximity to the specific drug transaction for which the defendants were charged. Here, defendant was charged with a conspiracy occurring over a two-year interval. Thus, the review was not limited to the evidence dealing with the proximity of the guns and the drugs at the time of the arrest, but rather whether the gun was possessed during the course of the conspiracy. The evidence was overwhelming that it was. The guns were found in the trunk of defendant’s car, in a bag with $17,000 cash. A courier testified that he expected to receive about $20,000 for the marijuana delivery. Defendant’s home was the destination of prior marijuana deliveries and his home was the original destination for the shipment the arrested courier was carrying. U.S. v. Cantero, 995 F.2d 1407 (7th Cir. 1993).
7th Circuit upholds firearm enhancement based on crack house tenant’s gun possession. (284) Defendant was convicted of maintaining a crack house. Based on a weapon recovered from his house, he received an enhancement under former section 2D1.8(b)(1) for possessing a firearm. The 7th Circuit affirmed, even though the gun belonged to a tenant at the house. The court rejected the suggestion that in the context of drug-house prosecutions, some nexus between the defendant’s possession of the weapon and the offense is required. When a house serves as the situs of ongoing drug crimes and guns are found within the house, the enhancement is appropriate unless it is clearly improbable that the weapon was connected to the offense. This was not such a case. The gun was found in the kitchen that defendant and others used to cook crack. Moreover, defendant could be held accountable for the gun because it was reasonably foreseeable that the tenant, a co-participant in a joint criminal venture, would possess it. U.S. v. Banks, 987 F.2d 463 (7th Cir. 1993).
7th Circuit upholds firearm enhancement for threatening co-conspirator with gun. (284) A co-conspirator testified that he went with another conspirator to meet defendant to pick up marijuana from him. While sitting at the table, defendant pulled an automatic weapon out of a suitcase, stuck it in the back of the co-conspirator’s head, and said “This is what we do to people that talk.” The other conspirator present confirmed this story. The 7th Circuit affirmed that this testimony was sufficient to support an enhancement under section 2D1.1(b)(1). U.S. v. Yanez, 985 F.2d 371 (7th Cir. 1993).
7th Circuit upholds firearm enhancement based on unloaded gun found in lockbox with drugs. (284) The 7th Circuit affirmed an enhancement under section 2D1.1(b)(1) based on defendant’s possession of a firearm during a drug trafficking crime, in light of the following evidence: a .32 caliber pistol was found inside a locked strongbox on defendant’s dining room table, the key to the box was found in defendant’s pants pocket when he was arrested, and the box also contained defendant’s wallet and recently issued driver’s license, his checkbook, a stash of cocaine, and drug ledgers. The fact that the gun was unloaded did not make the situation analogous to an unloaded hunting rifle found in a closet far removed from other incriminating evidence. The proximity of the cocaine and the gun demonstrated that defendant had the firearm handy when he was conducting drug transactions. The fact that defendant’s wallet was found under the cocaine and the gun indicated that he routinely handled all three. U.S. v. Ewing, 979 F.2d 1234 (7th Cir. 1992).
7th Circuit affirms firearm enhancement despite dismissal of gun counts. (284) The 7th Circuit rejected defendant’s claim that because the government voluntarily dismissed two gun counts against him, a firearm enhancement under section 2D1.1(b)(1) was improper. Defendant misunderstood the difference between a charged offense and a sentence enhancement under the guidelines. The government dismissed the firearm counts based upon its evaluation of the charges and did not promise not to seek enhancement. Under the guidelines, an enhancement is proper if the weapon was present during a drug trafficking offense, unless is it clearly improbable that the weapon was connected to the offense. Here, police found a .38 caliber revolver and a .9 millimeter pistol when they seized one-half a kilogram of cocaine from defendant’s home. The .38 was loaded when seized and the .9 millimeter was found with two partially loaded clips lying nearby. Defendant was unable to offer any evidence that the connection between the guns and his cocaine sales was clearly improbable. The type and location of the seized guns suggested that they were used in connection with defendant’s drug business. U.S. v. Nunez, 958 F.2d 196 (7th Cir. 1992).
7th Circuit upholds firearms enhancement despite acquittal on firearms charge. (284) The 7th Circuit affirmed an enhancement under section 2D1.1(b) for possession of a firearm during a drug trafficking crime even though defendant was acquitted of possessing the weapon during a drug trafficking crime. The fact that the jury did not find him guilty beyond a reasonable doubt did not prevent the court from finding the facts under the guidelines by a preponderance of the evidence. The court rejected defendant’s contention that his possession was analogous to an unloaded hunting rifle in the closet for which an enhancement is improper under application note 3 to section 2D1.1(b). Although there was testimony that defendant used the gun for private purposes such as shooting pigeons, the district court found that the semi-automatic pistol and loaded clip found in defendant’s van were readily accessible and available to defendant during the cocaine transaction which took place in the van. U.S. v. Welch, 945 F.2d 1378 (7th Cir. 1991).
7th Circuit finds that defendant had necessary scienter for firearm enhancement. (284) A search of the car defendant was driving uncovered two bags of marijuana in a box in the back seat and two handguns in a briefcase in the rear. The car and the briefcase belonged to a co-defendant, who was not present at the arrest. Defendant challenged the firearms enhancement under guideline § 2D1.1(b) on the ground that the government failed to prove that he had any knowledge of the weapons’ existence. The 7th Circuit agreed that language in the prior version of guideline § 1B1.3 (since eliminated in the November 1989 amendments) required that defendant have knowledge of the weapons in order to receive a § 2D1.1(b) enhancement. Nevertheless, the court upheld the enhancement, because the evidence demonstrated that defendant and the co-defendant worked closely with one another in the course of their drug conspiracy, and that defendant’s sister and the co-defendant’s wife were both linked to the weapons. U.S. v. Fiala, 929 F.2d 285 (7th Cir. 1991).
7th Circuit reverses failure to apply enhancement for possession of firearm during drug offense. (284) A search of defendant’s apartment uncovered marijuana, cocaine, drug records, a triple beam balance scale, two loaded handguns and $1000 in cash. The guns were found in a drawer in the headboard to defendant’s bed, while the cash was found in another headboard drawer. The 7th Circuit reversed the district court’s failure to increase defendant’s offense level based upon his possession of a firearm during the commission of a drug crime. Guideline § 2D1.1(b)(1) does not require the government to show a connection between the weapon and the offense, only that the weapon was possessed during the offenses. U.S. v. Atterson, 926 F.2d 649 (7th Cir. 1991).
7th Circuit upholds firearm enhancement based on gun found in cushions of living room couch. (284) The 7th Circuit upheld an increase in defendant’s offense level under guideline § 2D1.1(b)(1) for possession of a loaded, 9mm automatic pistol during the commission of a drug offense. The weapon was found in the cushions of the living room couch in defendant’s home where marijuana was seized. The weapon was a handgun typically used for personal protection. Its location made it secretly, but readily, accessible to defendant. Finally, the fact that drugs were stored in, and delivered from, defendant’s house made it more probable that the gun was connected to the drug offenses. U.S. v. Garcia, 925 F.2d 170 (7th Cir. 1991).
7th Circuit affirms firearm enhancement based on gun found under co-defendant’s truck seat. (284) Defendant was arrested after making a delivery of cocaine. A gun was found under the driver’s seat of the truck in which defendant had ridden to make the delivery. The 7th Circuit rejected defendant’s argument that the government did not produce sufficient evidence to prove that he “possessed” the weapon. Although he testified that he did not know that his co-defendant was carrying a weapon, the district court explicitly found that defendant’s testimony was not credible. The district court found that defendant knew and probably ensured that a weapon would be present while they made their deliveries. This was not a case where a defendant’s sentence was enhanced based upon a co-defendant’s possession of a gun. Rather, defendant’s sentence was enhanced based upon his own possession of the gun. U.S. v. Armond, 920 F.2d 480 (7th Cir. 1990).
7th Circuit upholds enhancement for drug dealer’s possession of a firearm. (284) Defendant argued that the sentence enhancement for possession of a dangerous weapon under sentencing guidelines § 2D1.1(b) was improper because the guns found in defendant’s house were not easily accessible, one being in a closet and the other in a drawer. Moreover, no guns were displayed or mentioned during the negotiations which took place at a motel, and the actual sale was to occur at the motel, and not defendant’s house. The 7th Circuit rejected this argument. Handguns are a common “tool of the trade.” Defendant was involved in a large scale drug transaction and had $314,000 in cash in his house. It was reasonable to infer that the cash was to be used in the drug transaction, and that the guns were present to protect the money. Therefore, “[t]here was a sufficient nexus between the handguns and [defendant’s] offense so that the district court could reasonably find that it was not ‘clearly improbable’ that the guns were connected to [defendant’s] offense.” U.S. v. Valencia, 913 F.2d 378 (7th Cir. 1990).
7th Circuit upholds enhancement for possession of a firearm before drug transaction occurred. (284) Defendant was convicted of conspiring to distribute cocaine and his base offense level was enhanced for possession of a loaded handgun in his apartment. Defendant argued that the enhancement was improper because there was no evidence that he was committing any offense or overt act in furtherance of the conspiracy at the time of his arrest. The 7th Circuit disagreed, holding that the presence of a loaded handgun in the possession of the conspirators several hours before a buyer was to appear and the day after negotiations for a buy took place strongly supported the finding that defendant possessed the gun during the life of the conspiracy. U.S. v. Durrive, 902 F.2d 1221 (7th Cir. 1990).
7th Circuit affirms enhancement for possession of firearms during drug offense. (284) During a search of defendant’s home, agents discovered over one kilogram of cocaine and three loaded handguns. Defendant’s offense level was increased two levels for possession of firearms during commission of a drug offense under U.S.S.G. § 2D1.1(b)(1). On appeal, defendant argued that the mere presence of firearms in his residence did not rise to the level of possession during an offense and that it was “clearly improbable” that the handguns were connected to the offense. The 7th Circuit affirmed the enhancement, stating that the proximity of the offense and loaded guns did not make it clearly improbable that the guns were connected to the drug offense. U.S. v. Franklin, 896 F.2d 1063 (7th Cir. 1990).
8th Circuit affirms pistol hidden in kit¬chen was re-lated to drug trafficking. (284) Defendant was arrested on drug charges and police searched his residence. They found drugs and drug para¬phernalia in a shed and in the bathroom, a small amount of meth under the kitchen sink, and a semi-automatic pistol and a loaded magazine in a container of cheese balls in the kitchen pantry. Defendant admitted that the meth in the shed and in the bathroom were stored in a manner consistent with drug trafficking, but argued that the meth in the kitchen was consistent with personal use. He admitted possessing the pistol, but said its presence was “pure happenstance” unrelated to drug trafficking. The Eighth Circuit upheld an increase under §2D1.1(b)(1) for possessing a firearm during a drug offense. To sup¬port the enhancement, the govern¬ment need only prove a temporal and spatial nexus among the weapon, defen¬dant, and drug-trafficking ac¬tivity. The presence of a fire¬arm in a location where it could be used to protect drugs can prove the requisite connection. Here, it was not clear¬ly improbable that the pistol was connected to defen-dant’s drug trafficking. U.S. v. Garcia, __ F.3d __ (8th Cir. Nov. 25, 2014) No. 14-1183.
8th Circuit upholds firearm enhancement where firearm was traded for drugs. (284) Defendant and confederate Otis worked together to distribute methamphetamine. Defendant was convicted of drug charges. The district court applied a § 2D1.1(b)(1) dangerous weapon enhancement based on Otis’s testimony that he arranged a transaction in late summer 2011 in which defendant sold an ounce of methamphetamine in exchange for a number of firearms. The Eighth Circuit upheld the increase, agreeing that a trade of a firearm for drugs warrants the § 2D1.1(b)(1) enhancement. U.S. v. Alexander, 714 F.3d 1085 (8th Cir. 2013).
8th Circuit approves firearm increase for guns found in house and apartment where defendant was tenant. (284) Defendant was convicted of drug conspiracy and received an enhancement under § 2D1.1(b)(1) for possessing a firearm. The Eighth Circuit upheld the enhancement, finding that the evidence proved that defendant knowingly possessed firearms in connection with the conspiracy. Defendant was the registered tenant of the house and the apartment where the firearms were discovered. Defendant also acknowledged possession of a firearm at the house when he sent a co-conspirator to retrieve a bag from the house that defendant claimed contained firearms. U.S. v. Chantharath, 705 F.3d 295 (8th Cir. 2013).
8th Circuit upholds firearm increase for guns found at defendant’s residence after termination of conspiracy. (284) Defendant was convicted of methamphetamine conspiracy charges, and received a § 2D1.1(b)(1) dangerous weapon enhancement. Defendant did not dispute that he possessed the weapons, but contended that it was “clearly improbable” the weapons found at his residence were connected to his meth conspiracy. The Eighth Circuit rejected his argument. Part of the conspiracy unquestionably took place in defendant’s home. The panel also rejected defendant’s claim that there was no temporal nexus. Although the guns were not seized until after the termination of the conspiracy, the panel rejected “the far-fetched conclusion” that defendant acquired five guns in the two-week period between the end of the conspiracy and the execution of the search warrant. Defendant ran a drug operation for many years. Given the long-standing duration of defendant’s conduct, the district court did not clearly err in finding he possessed the guns during the conspiracy. U.S. v. Garcia, 703 F.3d 471 (8th Cir. 2013).
8th Circuit bases firearm enhancement on unloaded gun found hidden in basement. (284) Three defendants were convicted of marijuana trafficking charges. They argued that the district court erred by imposing a two-level enhancement under § 2D1.1(b)(1) for possession of a revolver that officers found in the basement of the residence where two defendants lived. Defendants argued that the enhancement could not be applied for possession of a gun that they did not know existed. The Eighth Circuit upheld the § 2D1.1(b) (1) increase, ruling that each defendant constructively possessed the revolver. Two defendants were at the residence where officers found the gun; even though the gun was unloaded and hidden behind a ledge in the basement, these two defendants could access the basement. Although the third defendant was not at the residence when officers found the gun, he could have reasonably foreseen that his co-conspirators might be armed. It was not clearly improbable that the gun was connected to the drug offense. The gun was located in the basement of the residence, along with three plastic containers with marijuana residue, boxes of Ziploc bags, and two scales. U.S. v. Ruiz-Zarate 678 F.3d 683 (8th Cir. 2012).
8th Circuit upholds enhancement for rifle found in house near drugs. (284) Defendant did not dispute that he possessed a rifle that was found at his residence near methamphetamine. He nonetheless challenged a § 2D1.1(b)(1) firearm enhancement, claiming that because he used the gun solely for target practice, there was no relationship between the rifle and his drug offense. The Eighth Circuit upheld the enhancement. The use or intended use of firearms for one purpose, even if lawful, does not preclude a finding that the defendant used the firearm for the prohibited purpose of facilitating a drug trade. Defendant was present when officers found the rifle about 15 feet from a large amount of drugs. The rifle was accessible in a partially open case that extended from the open door of a closet, and defendant admitted that he normally stored drugs at his home. Under these circumstances, the district court’s finding that defendant possessed a firearm in connection with his drug offense was not clearly erroneous. U.S. v. Archer, 671 F.3d 149 (2d Cir. 2011).
8th Circuit approves firearm increase for gun found in house where defendant sold drugs. (284) During a home visit by defendant’s state probation officers, the officers discovered a revolver in defendant’s bedroom closet. They also found a scale with cocaine residue in a padlocked room of the house. During the same time period, defendant was observed selling drugs within 1000 feet of a school, and was convicted of multiple drug charges. The Eighth Circuit held that the evidence was sufficient to support a § 2D1.1 firearm enhancement based on the revolver found in his house. The unobjected to portions of the PSR showed that defendant kept the gun in the same house where he stored and dealt his drugs. At sentencing, a local police officer and one of his customers testified that firearms were tools of the drug trade in town. The customer also testified to seeing defendant in possession of a firearm while selling drugs. U.S. v. Hull, 646 F.3d 583 (8th Cir. 2011).
8th Circuit finds facts sufficient to show actual and constructive possession of firearm. (284) Defendant pled guilty to drug charges. The district court found that undisputed facts established that defendant possessed a firearm in connection with the drug offense and imposed an enhancement under § 2D1.1(b)(1). The Eighth Circuit affirmed. Defendant was arrested after he knowingly drove a co-conspirator from Minneapolis to Duluth to complete a methamphetamine sale. He saw the co-conspirator remove the drugs to be sold from a dashboard compartment where a loaded firearm and more meth were found following their arrest. Defendant admitted seeing the co-conspirator in possession of the weapon at the farm where they packaged the drugs prior to leaving for Duluth. Thus, he could reasonably anticipate that the firearm would continue to protect the contraband on the trip to Duluth, where it would be distributed. These undisputed facts were more than sufficient to support a finding that defendant and his co-conspirators were in actual and constructive possession of a dangerous weapon in connection with their drug trafficking. U.S. v. Muniz Ochoa, 643 F.3d 1153 (8th Cir. 2011).
8th Circuit denies safety valve relief to defendant in constructive possession of firearm. (284) Defendant was convicted of conspiracy to possess and distribute crack cocaine and related charges. The Eighth Circuit found the evidence sufficient to establish that defendant was in constructive possession of a firearm, and this was sufficient to preclude him from receiving safety valve relief. Defendant was a passenger in a car traveling from Minneapolis to Duluth to complete a methamphetamine sale. Defendant had arranged to sell the meth at a Duluth hotel, admitted possessing the meth hidden in the dashboard compartment of the car, and admitted recruiting Soto to accompany him on the drug trafficking trip. This was overwhelming evidence that defendant was in constructive possession of the loaded firearm found with 81.4 grams of actual meth in the compartment. Defendant failed to prove that he “did not … possess a firearm or other dangerous weapon or induce another participant to do so in connection with the offense.” 18 U.S.C. § 3553(f)(2). U.S. v. Muniz Ochoa, 643 F.3d 1153 (8th Cir. 2011).
8th Circuit requires firearm increase for drug conviction despite vacation of firearm conviction. (284) Defendant was a member of a drug trafficking conspiracy. He was initially convicted of drug charges, and using a firearm in a drug trafficking crime. 18 U.S.C. § 924(c)(1). The court’s jury instructions permitted the jury to find defendant guilty of violating § 924(c)(1) for receiving a firearm in exchange for drugs. While his appeal was pending, the Supreme Court ruled that § 924(c) does not apply in such circumstances. Watson v. U.S., 552 U.S. 74 (2007). The case was remanded for resentencing. On remand, the district court applied a § 2D1.1(b)(1) dangerous weapon enhancement, which defendant challenged on appeal as procedural error. The Eighth Circuit affirmed, holding that the district court can apply the firearm enhancement to a drug trafficking sentence after a § 924(c) conviction has been vacated. Vacating the §924(c) convictions without allowing for resentencing on the drug convictions would result in sentences based on an erroneous application of the Sentencing Guidelines. U.S. v. Elk, 632 F.3d 455 (8th Cir. 2011).
8th Circuit upholds firearm enhancement for unloaded gun found in locked safe with ammo and drugs. (284) When defendant was arrested, she told authorities that she kept a locked safe in her basement, provided them with the combination, and consented to a search of her home. Agents recovered from the safe an unloaded gun, ammunition, and 297 grams of cocaine. They also seized marijuana and small amounts of methamphetamine from three other locations in the house. The Eighth Circuit upheld a § 2D1.1(b) (1) firearm enhancement based on the unloaded gun found in the locked safe. Evidence that the weapon was found in the same location as drugs or drug paraphernalia usually suffices to show the necessary connection between the weapon and the drug offense. Because defendant possessed the weapon and agents found the weapon in the same location as a distributable amount of cocaine, the district court did not clearly err in finding that it was not clearly improbable that the gun was connected to the drug offense. U.S. v. San-Miguel, 634 F.3d 471 (8th Cir. 2011).
8th Circuit rejects credibility challenges to witnesses who testified that defendant possessed gun. (284) The district court found that defendant possessed a firearm in connection with a drug conspiracy, and applied a § 2D1.1(b)(1) increase. The finding was based on the testimony of two witnesses who claimed that they sold crack to defendant multiple times, and that defendant was in possession of a gun at least several of those times. The Eighth Circuit rejected defendant’s claim that the witnesses were not credible. Although the witnesses signed cooperation agreements, the government did not promise the witnesses that they would received sentence reduction in exchange for testifying, and even if it had, this would not have necessarily made the testimony unreliable. Although one witness gave inconsistent statements regarding what type of gun defendant possessed, he consistently and unequivocally stated that defendant was in possession of a gun. Finally, although the witnesses probably testified inaccurately regarding some of the dates that they sold crack to defendant (since he was incarcerated part of that time), they also testified that they sold crack to defendant on dates when he was not incarcerated. U.S. v. Jones, 628 F.3d 1044 (8th Cir. 2011).
8th Circuit finds defendant constructively possessed firearm in trunk of coconspirator’s car. (284) On several occasions, an undercover agent purchased crack cocaine from defendant. Defendant’s girlfriend Rhodes assisted, usually by providing surveillance in her nearby vehicle. The district court applied a § 2D1.1(b)(1) increase based on a loaded handgun found in the trunk of Rhodes’ car. The Eighth Circuit affirmed, finding sufficient evidence to establish defendant’s constructive possession of the weapon in his girlfriend’s trunk. Defendant admitted in a post-arrest interview that he knew that Rhodes owned a gun and that it was in the trunk of her car during an attempted October 9 transaction. The gun was indisputably connected to the October 9 offense. When defendant attempted to sell crack to the agent on October 9, Rhodes, sitting in her car, kept watch over defendant’s nearby stash of crack cocaine and stayed on the phone with defendant, all while the loaded handgun remained in the trunk of her car. U.S. v. Brewer, 624 F.3d 900 (8th Cir. 2010).
8th Circuit approves dangerous weapon enhancement for gun found in storage unit. (284) When defendant was arrested at his residence, police found crack cocaine in multiple locations. Officers also seized a set of keys on a key chain from the living room. Police obtained a search warrant for a storage unit rented under the name of defendant’s girlfriend. The keys seized from defendant’s residence opened both the padlock on the door of the unit and the lock on the safe inside the unit. Inside the safe officers found a handgun, two loaded clips, and a box of ammo. The Eighth Circuit upheld the application of a § 2D1.1(b)(1) enhancement for possession of a dangerous weapon. Defendant admitted that he placed the handgun in the storage unit, thus exercising sufficient control over the firearm to be considered in constructive possession of it. In addition, although a close case, the government proved that the handgun was connected to defendant’s ongoing drug activity. The storage unit was rented during the time defendant conducted his drug trafficking, and defendant displayed a modus operandi for hiding assets used in his drug trafficking. U.S. v. Anderson, 618 F.3d 873 (8th Cir. 2010).
8th Circuit finds it not clearly improbable that gun was part of same course of dealing as drug offense. (284) An officer stopped defendant for jaywalking and found crack cocaine in his pocket. Defendant later was convicted of conspiring to distribute cocaine base. At sentencing, a witness testified to seeing defendant with a gun twice. However, on neither occasion did the witness see defendant dealing drugs. The Eighth Circuit upheld a § 2D1.1(b)(1) firearm enhancement, finding a sufficient connection between the firearm and the drug activity. The witness saw the gun in a house where drug dealing occurred, albeit about two and one half years before the beginning of the drug conspiracy in November 2007. Defendant was, however, already dealing crack regularly in the same neighborhood during the time periods the witness saw him with a gun. U.S. v. West, 612 F.3d 993 (8th Cir. 2010).
8th Circuit finds sufficient evidence that firearm was possessed during drug conspiracy. (284) Defendant pleaded guilty to conspiracy to distribute crack cocaine. At his sentencing hearing, the district court heard testimony that defendant regularly carried a firearm on his person, a mechanic testified that he saw a gun in defendant’s car when defendant brought it in to be repaired, and there was testimony that defendant and a firearm were in a motel room that served as the “nerve center” for defendant’s drug operations. On this basis, the district court enhanced defendant’s offense level by two levels under § 2D1.1(b)(1) for possessing a firearm in connection with his offense. The Eighth Circuit found no clear error in the district court’s finding. U.S. v. Cosey, 602 F.3d 943 (8th Cir. 2010).
8th Circuit upholds firearm increase based on testimony about possession with drugs. (284) Defendant pled guilty to possession with intent to distribute cocaine base. Police seized a .45 caliber Glock handgun and over 100 rounds of ammunition from the house where defendant was arrested in February 2004. Lewis testified that he saw defendant with a Glock handgun around Christmas 2003, and Baker testified that he saw defendant with a firearm during two separate drug sales. Baker also claimed that defendant had told him about shooting Coleman, another drug dealer. Townsend testified that he was present during the Coleman shooting and that defendant had used a SKS rifle. The Eighth Circuit upheld a § 2D1.1 (b)(1) enhancement for possessing a dangerous weapon in connection with the drug offense. U.S. v. Boyce, 564 F.3d 911 (8th Cir. 2009).
8th Circuit applies firearm enhancement where defendant accepted gun to excuse drug debt. (284) Defendant was convicted of drug charges, and received a two-level enhancement under § 2D1.1(b)(1) for possession of a firearm. The Eighth Circuit affirmed the enhancement. The district court based the enhancement largely on the testimony of Flores that he delivered a firearm to defendant, and that defendant excused a drug debt in return. This was sufficient to support the enhancement. U.S. v. Martinez, 557 F.3d 597 (8th Cir. 2009).
8th Circuit approves increase for gun hidden in defendants’ bed. (284) Police searching defendants’ house found methamphetamine and numerous items related to the use and manufacture of meth. The Eighth Circuit affirmed a § 2D1.1(b)(1) increase based on a pistol hidden in the bed shared by defendants. The gun was well within the reach of a person lying in the bed and drug paraphernalia was scattered all over the bed at the time the gun was seized. Both defendants lived in the residence, slept in the bed where the gun was located, and participated in the possession of the paraphernalia and precursors. Both defendants were aware of the presence of the gun in the bedroom. Although one defendant’s brother testified that he gave defendant the gun several years before it was seized in order for defendant to “reblue” the gun, there were no rebluing materials in the house, and a firearms expert testified that the gun did not need to be reblued because the gun’s finish was in excellent condition. U.S. v. Canania, 532 F.3d 764 (8th Cir. 2008).
8th Circuit upholds enhancements for use of dangerous weapon and restraining victim. (284) Defendant’s methamphetamine co-conspirator, LeGrand, was robbed when he went to meet a potential buyer. Defendant and LeGrand blamed Hechtel for the robbery, so they summoned Hechtel to a trailer, and would not permit him to leave unless he provided them with $2,000 or sufficient collateral. When Hechtel could not come up with the money, they forced two tattoos on Hechtel, and LeGrand beat Hechtel. At one point, defendant held Hechtel to the floor by stepping on his chest, and he taunted him by tapping him on the chest with a spear. The Eighth Circuit affirmed enhancements under § 2D1.1(b)(1) for using of a dangerous weapon (the spear) during a drug trafficking crime, and under § 3A1.3 for restraining the victim. The government carried its burden to support the dangerous weapon enhancement. The physical restraint enhancement was proper even though the victim was left unsupervised at times. The victim was subject to various forms of physical abuse after being told he could not leave the trailer without furnishing collateral for the stolen drugs. U.S. v. Aguilar, 512 F.3d 485 (8th Cir. 2008).
8th Circuit finds sufficient evidence to support firearm increase for gun found in hotel room. (284) Defendant was arrested for drug possession at 4 am in the parking lot of a motel, as he was loading boxes into his car. He told police he was staying with two other people in the motel. An inventory search of the car uncovered significant evidence of drug use and trafficking. In his motel room, police found several rifles, and two duffel bags. One duffel bag contained a large quantity of pseudoephedrine pills, and the other bag contained equipment that could be used to manufacture methamphetamine. The Eighth Circuit affirmed a § 2D1.1(b) increase for possessing firearms in connection with a drug offense. It was not clearly improbable that the weapons were connected with the offense. Defendant possessed several rifles in a motel room, mere feet from a very large quantity of pseudoephedrine and other materials used to manufacture methamphetamine. That the rifles apparently caused little concern for the police (they seized the duffel bags but not the rifles, which the officers assumed were unloaded) did not change the fact that they were dangerous weapons and would have been easily accessible to defendant when he was in the room. The fact that defendant was arrested outside of the motel room did not overcome other evidence connecting him to the room and the rifles. U.S. v. Willie, 462 F.3d 892 (8th Cir. 2006).
8th Circuit holds that 14-inch machete was “dangerous weapon.” (284) Police found a 14-inch machete, also known as a corn knife, in the stolen truck defendant was driving, placed on the bench seat next to the driver and tucked between the seat and a few other items. The Eighth Circuit affirmed a § 2D1.1(b)(1) increase for possessing a weapon during the commission of a drug offense, agreeing that the machete was a dangerous weapon. A dangerous weapon is not limited to firearms, but is an instrument capable of inflicting death or serious bodily injury. A 14-inch knife can readily be used to cause death or serious bodily injury. Although the machete served as a dual purpose – a weapon and a harvesting tool, the enhancement was not erroneous. U.S. v. Burling, 420 F.3d 745 (8th Cir. 2005).
8th Circuit upholds gun enhancement where loaded pistol was found in bedroom with drugs. (284) Defendant did not dispute that a loaded pistol was found in his bedroom along with heroin, baggies, cutting agents, blenders, a scale, and notebooks with drug and weapons notations, but argued that those facts did not support a nexus between the gun and his drug activity. The Eighth Circuit disagreed. The presence of these articles supported the conclusion that at least part of defendant’s drug activities were also conducted in that room, and that the gun was also used in connection with those activities. U.S. v. Adams, 401 F.3d 886 (8th Cir. 2005).
8th Circuit says firearm enhancement not foreclosed by § 922(g) conviction. (284) Defendant was convicted of drug charges and being a felon in possession of a firearm, in violation of 18 U.S.C. § 922(g)(1). He argued that it was impermissible double-counting to assess the two-level enhancement under § 2D1.1(b)(1) for possessing a firearm in connection with the drug offense because the same firearm formed the basis of his firearm conviction. The Eighth Circuit found no double counting problem. In calculating a defendant’s offense level for a drug conviction, it does not constitute impermissible double-counting to apply a § 2D1.1(b)(1) enhancement, even though the defendant has also been convicted under § 922(g)(1) for possessing the same firearm. See U.S. v. Taylor, 248 F.3d 506 (6th Cir. 2001). U.S. v. Pierce, 388 F.3d 1136 (8th Cir. 2004).
8th Circuit holds that weapon used by others for defendant’s protection supported firearm enhancement. (284) The government contended that two different weapons supported the court’s finding that a weapon was possessed in relation to the conspiracy: co-conspirator Dobbs’ shotgun that he carried in his truck and the 9 mm rifle held by a man who defendant told an undercover agent would take care of defendant if something went wrong in their drug transaction. Defendant argued that there was no evidence that he ever possessed a weapon or that Dobbs’ shotgun was used as part of the conspiracy. He also noted that the undercover agent testified that the rifle was an air rifle, not a 9 mm rifle. The Eighth Circuit affirmed the § 2D1.1(b)(1) firearm enhancement. First, constructive possession suffices if “it is reasonably foreseeable that a co-conspirator would have possessed a weapon.” Both weapons were used for defendant’s protection and were sufficiently connected to defendant’s drug trafficking to support the enhancement. Dobbs testified that he was hired to watch defendant’s back, and drove defendant around in his truck with the shotgun visible. Further, although the agent testified that he thought that the weapon he observed was an air rifle, defendant told the agent that it was a 9 mm rifle. U.S. v. Mendoza, 341 F.3d 687 (8th Cir. 2003).
8th Circuit applies firearm increase for gun found under backseat of vehicle during traffic stop. (284) In 1996, police found a .45 semiautomatic pistol under the rear seat of defendant’s car. During defendant’s booking, the deputies found a motel key for a room where police later discovered methamphetamine. Defendant was convicted only of the weapons charge. However, in 2000, defendant was convicted of methamphetamine conspiracy charges. The district court applied a § 2D1.1(b)(1) increase for possessing a dangerous weapon in connection with the conspiracy. The Eighth Circuit found no clear error, since at the time of the traffic stop, defendant had constructive possession of both the drugs and the weapon. In addition to the motel key in defendant’s possession, a canine unit deployed during the stop alerted to the rear of defendant’s car, indicating that drugs previously had been stored there. Moreover, the trunk and rear wheel area of the car was modified to transport contraband, and a witness also identified defendant’s car as the same car used to deliver meth to his garage during the course of the conspiracy. U.S. v. Perez-Guerrero, 334 F.3d 778 (8th Cir. 2003).
8th Circuit applies firearm increase for gun thrown out of car after drug transaction. (284) Defendant sold Hawkins over 27 grams of crack. When police attempted to stop defendant and his two companions as they drove away, a passenger on the right side of the car threw a .45 caliber handgun out the window. The companion riding in the front passenger seat later pled guilty to possessing the handgun. The proceeds from the drug deal were found in the possession of the driver. Defendant was sitting in the right rear seat of the vehicle. He was convicted of drug charges and received a § 2D1.1(b)(1) enhancement for possessing a weapon during a drug crime. The Eighth Circuit affirmed. The district court did not err in finding that defendant had constructive possession of a firearm, given the gun was thrown from the vehicle in which defendant was riding, the police recovered drug proceeds from the driver, and Hawkins testified he knew the driver was a drug dealer who had previously shot at him. A substantial nexus between the firearm and the drug deal existed. Evidence suggested that defendant’s two companions, including the one who had possessed the gum, provided surveillance assistance during the drug transaction and were both part of the trafficking activity. U.S. v. Braggs, 317 F.3d 901 (8th Cir. 2003).
8th Circuit upholds firearm increase based on firearm witness saw several months before search of residence. (284) On April 1, 1997, police searched defendant’s house, finding drug paraphernalia, a short barreled shotgun, a box of .45 caliber ammunition and a loaded magazine in an upstairs bedroom. The jury convicted defendant of knowing involvement in a conspiracy “between about 1996 and 1997” to distribute and possess more than 50 grams of cocaine base. The district court found that it was not clearly probable that the short barreled shotgun possessed by defendant was connected with this offense, but it found that a .45 caliber handgun that defendant had in his bedroom and showed to a witness in the fall of 1996 was so connected. Accordingly, the court applied a § 2D1.1(b)(1) firearm enhancement. The court noted that ammunition and a magazine for a .45 caliber gun were seized in the April 1997 search, defendant pled guilty to possessing the .45 caliber ammunition, and the witness had previously seen the gun in the bedroom from which most of the seized items were taken. Although the witness did not mention the gun before the grand jury or in his proffer statement, the witness testified at the evidentiary hearing that he had not been asked about defendant’s involvement with guns until his pretrial interview. Given the fact that weapons are “key tools in the drug trade,” the Eighth Circuit held that the court did not err in finding that defendant possessed a .45 caliber gun and that it was not clearly improbable that the gun was connected with the drug offense. U.S. v. Harris, 310 F.3d 1105 (8th Cir. 2002).
8th Circuit finds it not clearly improbable that gun were connected to drugs. (284) During a search of defendant’s trailer, police found numerous drug-related items and seized numerous firearms. When asked about the cocaine base and guns found in the trailer, defendant admitted they all belonged to him and that he sold crack as a source of income. The crack had been found in the drawer of a dresser in the west bedroom. Three or four feet away officers found two long guns in the closet. Additionally, 19 guns were found in a closet near the front of the trailer. In the east bedroom, the officers found some marijuana and a handgun. Defendant’s sister, who lived in the east bedroom, told police that the handgun was defendant’s. Based on these facts, the Eighth Circuit affirmed a § 2D1.1(b)(1) firearm increase, finding it was not clearly improbable that the guns were connected to the drugs. The court did not err in considering conduct that was the basis for a dismissed count. Although a weapon charge against defendant was dismissed as part of a plea agreement, the government did not agree to exclude a § 2D1.1(b)(1) enhancement. U.S. v. Cave, 293 F.3d 1077 (8th Cir. 2002).
8th Circuit upholds firearm increase even though testimony was not clear as to time frame of gun possession. (284) Defendant operated the North Grand location where a large drug conspiracy sold drugs. Co-conspirator Jones testified at trial that a shotgun was kept in a closet at the North Grand location. The Eighth Circuit affirmed a § 2D1.1(b)(1) firearm increase based on Jones’s testimony. While the testimony was not crystal clear as to the specific time period when the weapon was kept at the North Grand location, the panel was not left with the “definite and firm conviction” that the weapon was not present when defendant operated the location. In fact, there was evidence that a shotgun was seized at two other drug locations and that shotgun shells were seized at a third location, supporting an inference that shotguns were part of the modus operandi of the drug houses. U.S. v. Frazier, 280 F.3d 835 (8th Cir. 2001).
8th Circuit upholds weapons enhancement based on testimony corroborated by police. (284) The district court imposed a § 2D1.1(b) weapons enhancement based on the testimony of Miller and Windles. In assessing Miller’s and Windles’ credibility, the court noted their testimony that defendant had an AR 15 rifle and a .9 mm pistol was corroborated by the testimony of two law enforcement officers. One officer testified that when he investigated a March 1998 peace disturbance call, he found defendant and several co-conspirators shooting guns along a road. Defendant had three semi-automatic guns in his hands, including a .9 mm pistol. A deputy testified that during a November 1998 search of defendant home, officers found an AR 15 rifle, two pistols, and a magazine clip. Although defendant asserted that he used the weapons for sporting purposes, the district court chose to credit the testimony of Miller and Windles that defendant had used the weapons in connection with the drug conspiracy. The Eighth Circuit saw no reason to disturb that finding. U.S. v. Luna, 265 F.3d 649 (8th Cir. 2001).
8th Circuit upholds increase for gun found in car parked in garage containing meth lab. (284) Police found a gun in defendant’s car, which was located in the garage joined to the basement of his parent’s house. They also found a methamphetamine lab in the basement and garage area. Based on this evidence, the Eighth Circuit affirmed a § 2D1.1(b)(1) increase for possessing a dangerous weapon in connection with a drug crime. The adjustment applies “if the weapon was present, unless it is clearly improbable that the weapon was connected with the offense.” There is no support for defendant’s contention that the enhancement requires a jury finding concerning possession of the firearm. U.S. v. Hollingsworth, 257 F.3d 871 (8th Cir. 2001), overruled on other grounds by U.S. v. Diaz, 296 F.3d 680 (8th Cir. 2002).
8th Circuit finds sufficient temporal and spatial relationship between gun and drug activity. (284) Defendant was involved in a conspiracy to manufacture and distribute methamphetamine. At sentencing, a drug enforcement officer testified regarding a September 1998 traffic stop of co-conspirator Schreckhise’s vehicle. Defendant was present in the car, along with a .25 caliber semi-automatic handgun, a loaded magazine, and a day planner with formulas for the manufacture of meth. Further testimony indicated that at the time of the stop, defendant and Schreckhise had been in close association for at least several weeks and that defendant visited Schreckhise’s residence, and was present while meth was being manufactured. The Eighth Circuit ruled that this testimony clearly established a temporal and spatial relationship between the weapon which was recovered in September 1998, and the drug activity of the conspiracy. U.S. v. Atkins, 250 F.3d 1203 (8th Cir. 2001).
8th Circuit upholds firearm increases for drug conspirators. (284) Defendant was involved in a conspiracy to distribute cocaine and other drugs from his apartment. Police searching the apartment discovered a semi-automatic handgun under his mattress. The magazine was out of the gun and contained five rounds of ammunition. The district court found that a § 2D1.1(b)(1) firearm increase was warranted, and the Eighth Circuit ruled that this finding was not clearly erroneous. A second defendant also received the firearm increase based on King’s trial testimony that once when he went to buy drugs from this defendant, he was searched and the defendant had a gun in his hand. Although the defendant argued that King’s testimony was not trustworthy because no one else corroborated it, none of the people King said were present at the time of the incident testified at trial. So, although there was no corroboration, there also was no contrary evidence. The district court recounted the details of King’s testimony about the kind of gun defendant had, which apparently convinced the court that the incident really happened. The court’s finding was not clearly erroneous. U.S. v. Calderin-Rodriguez, 244 F.3d 977 (8th Cir. 2001).
8th Circuit denies safety valve and applies enhancement based on firearm found in car. (284) The district court did not clearly err in finding that it was not clearly improbable that the gun found in defendant’s car was connected with criminal activity. Thus, the Eighth Circuit upheld a § 2D1.1(b)(1) firearm increase. In addition, the panel agreed that defendant did not qualify for a safety valve protection under § 5C1.2 and 18 U.S.C. § 3553(f)(2). A safety valve defendant has the burden of proving, among other things, that he did not possess a firearm or other dangerous weapon in connection with his offense. The district court found that there was a nexus between defendant’s gun and his drug activities. This finding was not clearly erroneous. U.S. v. Tyler, 238 F.3d 1036 (8th Cir. 2001).
8th Circuit affirms gun increase where co-defendants testified that defendant brought gun to drug house. (284) Police found a partial methamphetamine lab inside a truck observed leaving a residence. The driver told police that an individual named “Gary” was at the house in possession of two or three ounces of meth. Police found defendant and several others inside the house. During a search of the house, agents found items consistent with the manufacture of meth and several firearms. Defendant, whose first name was Gary, had in his pocket the keys to a car parked in the driveway of the house. Police found methamphetamine in the trunk of the car. Two co-defendants testified that the pistol found in the kitchen was defendant’s, and that he had brought the gun to the house. The Eighth Circuit affirmed a § 2D1.1(b)(1) firearm increase, since the record supported a finding that defendant possessed the pistol during the commission of his drug crimes. Although defendant denied ownership, witness credibility is an issue for the district court. Further, since the weapon was found in the house along with drugs and drug paraphernalia, and defendant drove to the house with the gun, the necessary temporal and spatial connection was satisfied. U.S. v. Fladten, 230 F.3d 1083 (8th Cir. 2000).
8th Circuit upholds longer sentence after vacation of § 924(c) sentences. (284) Defendant originally received a sentence of 350 months for his drug and money laundering offenses, and consecutive sentences of 60 months and 240 months for two § 924(c) offenses, for a total sentence of 650 months. The district court later granted his § 2255 petition to vacate his 924(c) convictions in light of Bailey v. United States, 516 U.S. 137 (1995). At resentencing, the court assessed a § 2D1.1(b)(1) firearm increase, resulting in an offense level of 43 and a mandatory life sentence. Defendant requested a downward departure, claiming that the guidelines did not contemplate a situation where the vacating of two § 924(c) convictions results in a longer overall sentence. The Eighth Circuit held that the court’s refusal to depart was unreviewable, since the court was aware of its authority to depart and decided defendant’s case was not suitable for a departure. The panel also rejected defendant’s claim that the increased sentence was the result of vindictiveness. Previous cases have upheld the assessment of a § 2D1.1(b)(1) enhancement after a § 924(c) conviction is vacated and that conviction was part of a multi-count sentencing package. The enhancement resulted in the same sentence defendant would have received had he been acquitted of the two § 924(c) counts. U.S. v. Edwards, 225 F.3d 991 (8th Cir. 2000).
8th Circuit says abbreviated findings were sufficient for firearm increase. (284) Defendant argued that the court failed to make specific findings to support a § 2B1.1(d)(1) firearm increase other than to state that “it is not clearly improbable that the weapon was connected with the offense.” The Eighth Circuit affirmed the enhancement, refusing to view the court’s abbreviated statement in a vacuum. First, the evidence that defendant possessed the weapon at the time of the offense, including the admission of the weapon itself into evidence and an arresting officer’s testimony that he found the weapon on defendant at the time of the arrest, was uncontested. Second, defendant presented no evidence at trial or sentencing that he was in possession of the weapon for any legitimate reason. U.S. v. Robinson, 217 F.3d 560 (8th Cir. 2000).
8th Circuit affirms firearm increase for gun found in defendant’s bedroom with scale, beeper and cash. (284) A detective testified at trial that, during his interview with defendant, defendant admitted owning a gun found between the mattresses in the south bedroom of his apartment. This testimony was sufficient for the district court to find that defendant possessed the gun, as ownership establishes constructive possession. There also was testimony connecting the gun to defendant’s drug dealings. First, the gun was found in a room defendant occupied, and that room contained at least one scale, two beepers, and about $2780 in cash. Second, the detective testified that defendant told him that he owned the gun to protect himself against those who wanted to get him. The district court might reasonably have concluded that those people were others involved in the drug trade. Accordingly, the Eighth Circuit ruled that the district court did not clearly err in determining that it was at least probable that the weapon was connected to defendant’s drug conviction, and affirmed a § 2D1.1(b)(1) increase. U.S. v. Moore, 212 F.3d 441 (8th Cir. 2000).
8th Circuit finds sufficient nexus between guns and drug activity. (284) Testimony indicated that on at least two occasions, defendant possessed a gun while he was actively engaged in drug transactions. In 1994, during the negotiation of a drug sale with an undercover FBI agent, defendant told the agent that he was carrying a handgun and then patted his left hip to indicate its location. Two years later, defendant fired a shotgun into the air while transferring drugs to one of his distributors. In light of this evidence, the Eighth Circuit ruled that the district court did not clearly err in finding a sufficient nexus between defendant’s drug activity and guns to support an increase under § 2D1.1(b)(1). U.S. v. Thompson, 210 F.3d 855 (8th Cir. 2000).
8th Circuit applies firearm enhancement for gun and drugs found in shared residence. (284) The district court did not clearly err in finding that the government’s evidence showed defendant had constructively possessed a sawed-off shotgun found adjacent to a bedroom dresser containing drugs and a scale in a residence that he shared with others, and in which some of his personal effects were found. Accordingly, the Eighth Circuit affirmed a § 2D1.1(b)(1) firearm enhancement. U.S. v. Alatorre, 207 F.3d 1078 (8th Cir. 2000).
8th Circuit finds sufficient nexus between guns and drug conspiracy. (284) Defendant was a leader of a nationwide motorcycle club called the Sons of Silence. He used his position to engage in an illegal drug trafficking enterprise. Pursuant to a search warrant, the police raided the home of one of the Sons of Silence drug conspirators and discovered 32 firearms, all of which were owned by defendant. In addition, defendant pistol-whipped one of his associates when the associate failed to comply with defendant’s orders regarding the payment of money for drugs. The Eighth Circuit upheld a § 2D1.1(b)(1) enhancement since defendant used a weapon during the commission of the drug trafficking offense. This provided a sufficient nexus to connect the guns to the drug conspiracy. U.S. v. Fairchild, 189 F.3d 769 (8th Cir. 1999).
8th Circuit does not consider double counting claim where outside evidence supported firearm increase. (284) Before his conviction in the current case, defendant pled nolo contendere to two separate firearms charges. In the present case, defendant argued that the district court double counted by including the firearms offenses in his criminal history under USSG § 4A1.2(a), and counting the same firearm offenses as proof that he possessed a gun during the course of the conspiracy for purposes of a § 2D1.1(b)(1) enhancement. The Eighth Circuit did not reach defendant’s double counting argument, since there was sufficient evidence to justify the § 2D1.1(b)(1) enhancement even without evidence of the firearms convictions. While investigating the drug conspiracy, federal agents searched defendant’s home and found several firearms and multiple rounds of ammunition. U.S. v. Fairchild, 189 F.3d 769 (8th Cir. 1999).
8th Circuit finds defendant’s hunting irrelevant where defendant also carried gun during drug buys. (284) Defendant admitted that a firearm was present at his home where he trafficked in drugs, but contended that it was only used for hunting purposes, as his witnesses testified at the resentencing hearing. The Eighth Circuit found the testimony inapposite because the witnesses admitted they were not involved in defendant’s drug dealing activities. Their testimony thus had no direct bearing on whether defendant carried a firearm in connection with his drug offenses. Defendant’s ex-wife told FBI agents that defendant carried a gun on the trips they made to Colorado to purchase methamphetamine. Two prior live-in girl-friends testified at trial that defendant always had a gun in the car on their trips to Colorado to purchase drugs. On the day of his arrest following a drug transaction at his residence, police found a gun in defendant’s bedroom. U.S. v. Behler, 187 F.3d 772 (8th Cir. 1999).
8th Circuit upholds firearm enhancement and denies safety valve protection for weapons found at house. (284) Defendant participated in a drug distribution conspiracy by (a) allowing his house to serve as the storage facility for the drugs, and (b) helping unload the drug shipment once the co-conspirators delivered them to his house. The Eighth Circuit affirmed a § 2D1.1(b)(1) firearm enhancement. The government can show that a weapon is connected with an offense by establishing a temporal and spatial relation between the weapon, the defendant, and the drugs. In this case, police found several firearms in defendant’s bedroom, including a loaded weapon under defendant’s pillow. Police also found a small quantity of drugs in his bedroom, a large quantity of methamphetamine in the next room, and 20 pounds of marijuana in the basement. This constituted a sufficient temporal and spatial relation between defendant, the weapon and the drugs. Since the § 2D1.1(b)(1) enhancement was proper, defendant was ineligible for “safety valve” protection under § 5C1.2(2). U.S. v. Moore, 184 F.3d 790 (8th Cir. 1999).
8th Circuit applies firearm enhancement for guns given by drug dealer as collateral for loan. (284) Over several months, defendant sold drugs to a confidential informant and an undercover agent. After defendant wrecked his vehicle while delivering drugs, the agent agreed to loan him money to purchase a new vehicle. To secure the loan, defendant agreed to post several guns as collateral. Defendant and the agent later agreed that the loan would be repaid with drugs. The Eighth Circuit affirmed a § 2D1.1(b)(1) enhancement based on the use of guns as collateral for a loan. The guns were “found in the same location where drugs or drug paraphernalia are stored or where part of the transaction occurred.” The use of the guns as collateral for the loan was sufficient to meet the “connected with” requirement of § 2D1.1(b)(1). The use or intended use of guns for one purpose, even if lawful, does not preclude their use for the prohibited purpose of facilitating the drug trade, and therefore does not automatically remove them from the purview of the § 2D1.1(b)(1). Because the guns directly facilitated the continuing drug transactions, there was a sufficient nexus between defendant, the firearms, and the drug transactions. U.S. v. Newton, 184 F.3d 955 (8th Cir. 1999).
8th Circuit applies dangerous weapon enhancement for possession of brass knuckles. (284) The district court applied a § 2D1.1(b)(1) dangerous weapon enhancement for defendant’s possession of brass knuckles. The Eighth Circuit held that (1) brass knuckles are dangerous weapons under note 1(d) to § 1B1.1, (2) defendant possessed the brass knuckles, (3) the possession was in connection with defendant’s drug trafficking activities. The police arrested a co-conspirator in room 207 of a hotel. The police found the brass knuckles in the pocket of a green coat in room 207. The police had previously observed defendant leaving room 207, and two conspirators testified that defendant owned the green coat. Other items found in the coat, including a hotel key, a business card, and a note to defendant, suggested that the coat belonged to defendant. At the time in question, defendant was attempting to obtain drugs and collect outstanding drug debts. U.S. v. Guel, 184 F.3d 918 (8th Cir. 1999).
8th Circuit applies firearm enhancement for gun found in defendant’s bedroom closet. (284) Defendant was convicted of methamphetamine charges. The Eighth Circuit upheld a § 2D1.1(b)(1) firearm enhancement based on a loaded gun and additional ammunition police found in a closet in defendant’s bedroom during a search of his premises. The enhancement applies “unless it is clearly improbable that the weapon was connected with the offense.” There was no such showing here. U.S. v. Hall, 171 F.3d 1133 (8th Cir. 1999).
8th Circuit upholds firearm enhancement for gun under driver’s seat and gun in bedroom of trailer. (284) Police searched the trailer of defendant Potts and found evidence that she had been extracting ephedrine from cold tablets. Police also found a .44 caliber pistol with ammunition lying on the floor of her trailer bedroom. Defendant Howard was arrested driving away from Potts’ trailer. His truck contained $5500 in cash, a loaded .45 caliber handgun, various drug paraphernalia, and a white powder later determined to be waste products from the cold tablets. The Eighth Circuit affirmed a § 2D1.1(b)(1) firearm enhancement for both defendants. A loaded .45 caliber handgun was present in Howard’s truck under the driver’s seat in which he was sitting. Howard was using the truck to dispose of the waste product from the ephedrine reduction process that had been conducted in the trailer. The ephedrine was to be used to make methamphetamine. A .44 caliber pistol was present in Potts’ bedroom. The gun was found on the floor next to ammunition and amid ephedrine and methamphetamine. Although two other people were present in the trailer when police arrived, they had not been in Potts’ bedroom that night. U.S. v. Howard, 169 F.3d 1127 (8th Cir. 1999).
8th Circuit applies enhancement based on defendant’s expressed willingness to use weapons. (284) The district court applied a § 2D1.1(b)(1) firearm enhancement based on firearms seized from a clubhouse where defendant and other conspirators trafficked in drugs. Defendant contended that the guns were kept at the club for security reasons and had nothing to do with his illegal drug activities. The Eighth Circuit upheld the enhancement based on the number, type and state of readiness of the guns, and defendant’s expressed willingness to use the guns to defend his drug trafficking. The seven weapons found at the club were either loaded or had ammunition nearby. Police also found weapons in defendant’s living quarters. In an intercepted discussion between defendant and the conspiracy’s leader, they discussed a possible problem with law enforcement surveillance of the club. Defendant said that if a particular person came to the door of the club, he would go out the back door and come up behind the person “locked and loaded.” It was not “clearly improbable” that the firearms were related to defendant’s drug trafficking activities in and around the club. Brown v. U.S., 169 F.3d 531 (8th Cir. 1999).
8th Circuit upholds firearm enhancement where drug money was kept in gun safe. (284) Defendant received a § 2D1.1(b)(1) enhancement based on a 26-piece firearm collection he kept in a safe in his residence. The collection consisted of several guns of a collector’s nature and others not usually associated with criminal activity. However, also among the collection were a loaded AMT .45 caliber pistol, a loaded Browning 9mm pistol, a loaded Colt .45 caliber pistol and a loaded Savage Arms .410 shotgun. Defendant contended that these firearms, kept in a gun safe on the main level of his residence, were merely a collection, like his collection of antique knives and scale models, and were unrelated to his drug offenses. The Eighth Circuit held that the close proximity of the firearms and drug money supported the firearm enhancement. Defendant sold cocaine out of his house on a regular basis. One purchaser testified that most of the time, defendant placed the money from the purchase inside the gun safe. When authorities searched defendant’s residence, inside the safe they found a wooden box containing $3505 in cash. Four of the $20 bills had serial numbers matching those on bills used by a confidential informant in a controlled buy. One of the loaded pistols in the safe was found directly adjacent to this box. Brown v. U.S., 169 F.3d 531 (8th Cir. 1999).
8th Circuit applies firearm enhancement for gun in couch where defendant was sleeping. (284) Defendant pled guilty to possessing more than 30 grams of cocaine base. The Eighth Circuit affirmed a § 2D1.1(b)(1) firearm enhancement. When police arrested defendant at an apartment where he was staying, they found a gun tucked in the couch where defendant had been sleeping. Police also found an ammunition clip and cocaine base on defendant’s person. U.S. v. Garrett, 161 F.3d 1131 (8th Cir. 1998).
8th Circuit says trading drugs for gun supported firearm enhancement. (284) Police searching defendant’s residence found methamphetamine and a loaded revolver in the cushion of a chair. They also found drug paraphernalia on a kitchen cabinet near where the revolver and methamphetamine were seized. A government informant said that he had traded the revolver to defendant in exchange for drugs. Defendant argued that because the gun was used like cash rather than as a weapon, a § 2D1.1(b)(1) enhancement was inapplicable. The Eighth Circuit held that obtaining a gun in exchange for drugs is sufficient to establish a nexus for a two-level enhancement under § 2D1.1(b)(1). Even though defendant may have neither fired nor flaunted the gun when he later sold drugs, the fact remained that he traded drugs to get the gun and that he could have easily converted the gun from “currency to cannon.” U.S. v. Rogers, 150 F.3d 851 (8th Cir. 1998).
8th Circuit bases firearm enhancement on guns seized from crack houses. (284) Defendant was the member of a violent street gang that distributed crack cocaine. The Eighth Circuit affirmed a § 2D1.1(b)(1) firearm enhancement because defendant possessed a number of firearms at the various houses at which he and a co-conspirator cooked and sold crack cocaine. In addition, on one occasion, defendant pistol-whipped one of his lieutenants as punishment for making “dummies,” or imitation crack, and passing it off to unsuspecting buyers. U.S. v. Brown, 148 F.3d 1003 (8th Cir. 1998).
8th Circuit applies firearm enhancement despite innocent reason for obtaining gun. (284) Defendant allowed a friend to store drugs and drug paraphernalia in his basement. The district court applied a § 2D1.1(b)(1) firearm enhancement based on a loaded semi-automatic pistol found upstairs on the television set in defendant’s living room. Defendant testified that the gun belonged to a friend and that defendant, a gunsmith, had been given the gun to make repairs. At the time the warrant was executed, defendant had completed the repairs and had told his friend to pick up the gun. He claimed to have left the gun on top of the TV so that his friend could easily retrieve it, and that he loaded the gun because it was loaded when he received it. The Eighth Circuit upheld the § 2D1.1(b)(1) enhancement. Another’s ownership of the gun does not matter if a defendant had constructive possession over the weapon. Although defendant may have had an innocent reason for obtaining the gun, it was found in an open area leading to the drugs, was loaded and was easily accessible. U.S. v. Belitz, 141 F.3d 815 (8th Cir. 1998).
8th Circuit rejects need for advance notice of firearm enhancement. (284) Defendant was convicted of methamphetamine charges. He argued that the district court erred when it imposed a 2-level firearm enhancement without giving him advance notice. The Eighth Circuit rejected U.S. v. Jackson, 32 F.3d 1101 (7th Cir. 1994), which held that a defendant has a right to advance notice, either through the PSR, the prosecutor’s recommendation, or the court, that a specific sentencing enhancement is being considered. Two Eighth Circuit cases have held that a district court can sua sponte impose an adjustment or enhancement to a defendant’s sentence. Here, the government suggested the adjustment at the sentencing hearing and the court provided defendant with an opportunity to object. Defendant did not ask for a recess or a continuance to prepare a response. It may have been appropriate to grant a recess, but since defendant never raised this issue on appeal, the appellate court declined to reach it. Evidence of the firearm was admitted at trial, and there was no error. U.S. v. Korn, 138 F.3d 1239 (8th Cir. 1998).
8th Circuit increases sentence for guns in house even though drugs were in truck. (284) Defendant argued that the district court erred in applying a § 2D1.1(b)(1) firearm enhancement because the guns were found in a bedroom of his house while the marijuana was found in his truck parked outside the residence. The Eighth Circuit affirmed the enhancement. Defendant admitted that he possessed two loaded firearms, that cash and scales used for weighing marijuana were found in the bedroom with the guns, and that he placed the 44 kilograms of marijuana in his truck and parked the truck at his home, intending the deliver the marijuana at a later date. U.S. v. Berry, 138 F.3d 1241 (8th Cir. 1998).
8th Circuit affirms § 2D1.1(b)(1) enhancement despite acquittal on gun-related charges. (284) Defendant was convicted of a drug conspiracy. The leader of the conspiracy had been arrested carrying $128,000 in drug proceeds. A co-conspirator present when the police seized the $128,000 testified that over the course of several months, defendant and his brother threatened to harm him unless he told police the $128,000 was his. Defendant’s brother made good on the threat by shooting the witness. The witness testified that he was “99% sure” defendant was present when he was shot, but he admitted he could not swear to it 100%. The jury acquitted defendant of gun-related charges arising from the shooting. The Eighth Circuit affirmed a § 2D1.1(b)(1) firearm enhancement despite the acquittal. The district court found that defendant participated in a series of intimidating acts against the witness to get him to cover up the leader’s drug activities, and that sufficient evidence placed defendant at the scene of the shooting. These findings were not clearly erroneous. U.S. v. Ortiz, 125 F.3d 630 (8th Cir. 1997).
8th Circuit approves firearms enhancement for members of motorcycle gang. (284) Defendants, members of a motorcycle gang, were convicted of RICO and drug charges. The Eighth Circuit affirmed § 2D1.1(b)(1) firearm enhancements because the record was replete with evidence of possession of firearms and other weapons by individual defendants as well as other members of the gang. U.S. v. Fairchild, 122 F.3d 605 (8th Cir. 1997).
8th Circuit affirms § 2D1.1(b)(1) increase for gun, drug paraphernalia and amphetamine seized during traffic stop. (284) Defendant pled guilty to a methamphetamine conspiracy. The Eighth Circuit affirmed a § 2D1.1(b)(1) enhancement based on a firearm, drug paraphernalia and amphetamine seized from him during a traffic stop in December 1994. He stipulated that he was involved in a methamphetamine conspiracy between April 1995 and February 1996. The district court did not clearly err in finding a sufficient nexus between defendant’s firearm possession and his drug-trafficking activity. U.S. v. Barresse, 115 F.3d 610 (8th Cir. 1997).
8th Circuit finds sufficient nexus between gun and drug offenses. (284) Defendant was convicted of numerous offenses involving cocaine, cocaine base and marijuana. He challenged a § 2D1.1(b)(1) enhancement, contending that the government did not prove a connection between the seized firearm and the drug offenses. The Eighth Circuit found there was a sufficient nexus to support the § 2D1.1(b)(1) enhancement. When officers executed a search warrant for defendant’s mother’s residence, they found defendant and several others counting money in the living room. In defendant’s bedroom, the officers discovered about 95 grams of cocaine and 80 grams of cocaine, along with a loaded .357 revolver on a dresser. Officers also seized almost $20,000 in currency, some of which was in defendant’s bedroom and some of which was elsewhere in the house. U.S. v. Vaughn, 111 F.3d 610 (8th Cir. 1997).
8th Circuit finds sufficient nexus between loaded guns and drugs found at defendants’ residence. (284) Defendants, father and son, were convicted of methamphetamine charges. The Eighth Circuit affirmed a § 2D1.1(b)(1) enhancement, finding a sufficient nexus between the three loaded guns found at defendants’ residence and their drug activity. Two of the guns, along with 110 grams of methamphetamine, were found in the father’s bedroom. During the search, the son was in the living room, where the officers seized another loaded firearm within close proximity to six grams of methamphetamine. U.S. v. McCracken, 110 F.3d 535 (8th Cir. 1997).
8th Circuit upholds § 2D1.1(b)(1) enhancement for guns and drugs found under mattress. (284) Police found seven plastic bags containing cocaine base, a .357 magnum handgun, and a .22 caliber rifle under the mattress of a bed in the house from which defendants sold cocaine. The Eighth Circuit affirmed a § 2D1.1(b)(1) enhancement based on the proximity of the firearms to the drugs, the ease with which defendants could access the firearms, the ongoing drug trafficking at the residence, and the likely need to protect both the drugs and the cash in the residence. U.S. v. Macklin, 104 F.3d 1046 (8th Cir. 1997).
8th Circuit says Bailey did not affect enhancement for possessing gun in drug offense. (284) Defendant pled guilty to drug trafficking and received a § 2D1.1(b)(1) enhancement for possessing a firearm during a drug trafficking crime. Defendant argued that this was error in light of Bailey v. U.S., 116 S.Ct. 501 (1995), which held that mere possession of a firearm is insufficient to support a conviction for using a gun in relation to a drug trafficking offense, under 18 U.S.C. § 924(c). The Eighth Circuit rejected the argument, holding that Bailey did not affect the guideline enhancement in § 2D1.1(b) (1) for possession of a firearm during a drug offense. Bailey permits the government to seek a § 2D1.1(b)(1) increase when a defendant merely possesses a firearm during a drug trafficking offense. U.S. v. Knight, 96 F.3d 307 (8th Cir. 1996).
8th Circuit says knife need not be produced for dangerous weapon enhancement. (284) Defendant received a § 2D1.1(b)(1) enhancement for possessing a dangerous weapon, a knife, during a drug trafficking crime. Because the knife was not produced or described at trial, defendant argued that there was no evidence that the knife was “dangerous,” i.e. capable of inflicting death or serious bodily injury as required by note 1(d) to § 1B1.1. The Eighth Circuit held that the government was not required to produce the knife to show it was dangerous. A co‑conspirator testified at trial that defendant threatened him with a knife because he smoked up the crack that defendant gave him to sell and did not pay for the drugs. The co‑conspirator felt threatened by this conduct. This testimony was sufficient to prove that defendant possessed a dangerous weapon, a knife, in connection with his criminal conduct. U.S. v. Scott, 91 F.3d 1058 (8th Cir. 1996).
8th Circuit approves increase for gun co‑conspirator put under mattress in motel room. (284) Defendant worked as a courier transporting cocaine from New York to Omaha. Police searched an Omaha motel room rented by defendant, seizing cocaine, a large amount of cash, and a semi-automatic pistol. The gun was under the mattress near the bundles of cash. Defendant was arrested returning to the room. A co‑conspirator testified that the gun was the same gun he kept under a mattress at an apartment he shared with defendant. Defendant admitted that the conspirators distributed cocaine from that apartment, that she knew that the co‑conspirator kept a gun in the apartment and that another conspirator had brought the gun to the hotel room. The Eighth Circuit affirmed a § 2D1.1(b)(1) enhancement. Even crediting defendant’s testimony that she was afraid of the gun and never used it, she knew that the other conspirators possessed the gun in furtherance of the conspiracy. U.S. v. Tauil‑Hernandez, 88 F.3d 576 (8th Cir. 1996).
8th Circuit approves § 2D1.1(b)(1) enhancement for guns found in residence and marijuana in sheds. (284) Defendant grew marijuana in a national forest. Police found several kilograms of marijuana, some seeds, cash, guns, chicken wire and other paraphernalia in his nearby home. He challenged a § 2D1.1(b)(1) firearm enhancement, arguing that it is common for people in rural areas to have firearms on their premises. None of the weapons were found in the shed where the marijuana was located. The Eighth Circuit approved the firearm enhancement, since the guns were found on premises from which defendant conducted drug related activities and were readily accessible to him. Three of the guns were loaded and one had ammunition nearby, suggesting more than a run‑of‑the‑mill state of readiness for immediate use. U.S. v. Betz, 82 F.3d 205 (8th Cir. 1996).
8th Circuit approves increase for weapon in apartment where part of conspiracy took place. (284) Police following a drug transaction were spotted and the conspirators were arrested over a mile away from an apartment where they had been observed entering and leaving on several occasions. Defendant was arrested leaving the downstairs bedroom. Police found a loaded semi‑automatic rifle leaning against a closet door in the downstairs bedroom, drug paraphernalia and a gun underneath a mattress in the upstairs bedroom. The Eighth Circuit affirmed a § 2D1.1(b)(1) firearm enhancement even though there was no proof defendant knew about the gun and his fingerprints were not found on it. Defendant lived at the apartment and was observed coming from the bedroom where the gun was found in a visible location. There was a sufficient nexus between the guns and the charged offense. The gun was found in the same location where drugs or drug paraphernalia were stored, and where part of the conspiracy took place. The “unless clearly improbable” standard of proof does not violate due process. U.S. v. Payne, 81 F.3d 759 (8th Cir. 1996).
8th Circuit upholds gun increase for showing gun to informant during drug sale. (284) The district court applied a § 2D1.1(b)(1) enhancement because defendant showed a firearm to a confidential informant during the course of a drug sale. Defendant contended that he was trying to sell the firearm as part of a separate transaction. The Eighth Circuit affirmed the enhancement. Even if defendant was trying to sell the gun, its presence increased the risk of violence associated with the drug transaction. The informant also testified that he had seen defendant with firearms at other drug sales, and defendant said he was going to shoot the informant if he didn’t know who he was when the informant arrived to buy the drugs. U.S. v. Early, 77 F.3d 242 (8th Cir. 1996).
8th Circuit approves § 2D1.1(b)(1) enhancement despite claim of another’s ownership. (284) Defendant was convicted of conspiring to distribute methamphetamine. The Eighth Circuit upheld a § 2D1.1(b)(1) enhancement based on a pistol found in defendant’s bedroom, despite defendant’s claim that he was merely adjusting the gun’s sight for its owner. Another’s ownership of a gun is not controlling if a defendant is found to have control over the gun and over the premises. Defendant need not have used the gun during the crime or have even touched it. U.S. v. Kinshaw, 71 F.3d 268 (8th Cir. 1995).
8th Circuit finds defendant regularly possessed and used weapons while selling drugs. (284) Defendant was involved in a long-term, violent drug trafficking organization. He argued that a § 2D1.1(b)(1) firearms enhancement was improper because he was not present at the drug trafficking for which he was held accountable and thus his weapons could not have been present either. The Eighth Circuit affirmed the enhancement, finding defendant regularly possessed and used weapons in connection with his drug offenses. One conspirator testified that defendant regularly carried a pistol while selling drugs for the enterprise. A police officer testified that in 1981, he found a loaded gun and numerous drugs underneath the seat of the car that defendant was driving. Another officer testified that a loaded revolver was found in the car defendant was driving in 1982. Other conspirators testified that in 1980, defendant shot an associate in connection with the drug trafficking business. U.S. v. Darden, 70 F.3d 1507 (8th Cir. 1995).
8th Circuit approves firearm enhancement despite 8-month lapse between seizure of gun and cocaine sale. (284) In January 1994, defendant sold cocaine to an undercover agent from defendant’s “quick shop.” Because of an ongoing investigation, defendant was not arrested until September 1994. Police seized a gun and marijuana from the office where defendant previously sold the agent the drugs, and seized drugs from defendant’s home. While in custody, defendant admitted he was a drug dealer and had used the pistol during “all of his transactions.” The Eighth Circuit affirmed a § 2D1.1(b)(1) enhancement, despite the 8-month lapse between the cocaine sale and the seizure of the gun. The government established a nexus between the pistol and the cocaine sale. The pistol was found along with drugs in defendant’s office–the site of the cocaine sale. Also, following his arrest defendant admitted that he was a drug dealer and had used the pistol during all of his transactions. U.S. v. Britton, 68 F.3d 262 (8th Cir. 1995).
8th Circuit approves firearm increase where defendant arranged for armed lookouts. (284) Defendant ran a crack cocaine distribution conspiracy. He managed a business in the vicinity of the apartments from which he distributed cocaine. During a search of the business, police found defendant with two loaded firearms, and found two armed men on the roof of the building. The Eighth Circuit approved a § 2D1.1(b)(1) enhancement based on the weapons seized from defendant’s business. Defendant, as leader of the conspiracy, arranged for the armed lookouts to be stationed on the roof of the building. Moreover, two co-conspirators testified that defendant had supplied firearms to them. U.S. v. Jackson, 67 F.3d 1359 (8th Cir. 1995).
8th Circuit affirms firearm increase even though weapon was in first vehicle and drugs were in second vehicle. (284) Defendant led a two-vehicle convoy from Houston to St. Louis. Police found a loaded semi-automatic pistol and $2,000 in cash in the truck defendant was driving, and eight kilograms of cocaine in the second vehicle. The Eighth Circuit approved a § 2D1.1(b)(1) based on the weapon found in defendant’s truck. The gun was readily accessible and loaded. The evidence suggested that the gun was connected to the overall conspiracy. The fact that the cash found on defendant during the stop was not seized, and the fact that defendant was not immediately charged after the arrest, did not undermine the enhancement. U.S. v. Baker, 64 F.3d 439 (8th Cir. 1995).
8th Circuit approves firearm enhancement based on guns in home on ranch used to store drugs. (284) Defendant operated a ranch that stored controlled substances for a drug trafficking organization. The Eighth Circuit approved a § 2D1.1(b)(1) enhancement based on numerous guns, drugs and cash seized from the mobile home where defendant lived with his family on the ranch. Officers also recovered 1100 pounds of marijuana in a storage building located on the ranch. They also found drug records detailing 24 separate accounts designating a total shipment of 10,262 pounds of marijuana. U.S. v. Hiveley, 61 F.3d 1358 (8th Cir. 1995).
8th Circuit upholds firearm enhancement for guns found in defendant’s bedroom. (284) Defendant ran a drug business from his bedroom. Police found two shotguns in the bedroom, one on each side of the bed. They also found shells for the guns, and a “stash can” containing methamphetamine and cash. The Eighth Circuit upheld a § 2D1.1(b)(1) gun enhancement. Given the proximity of the guns to the drugs, the location of the guns, and the transaction of drug business at the house, it was not “clearly improbable” that the guns were connected to defendant’s drug business. U.S. v. Alexander, 53 F.3d 888 (8th Cir. 1995).
8th Circuit upholds firearm enhancement based on sufficient evidence for § 924(c) convictions. (284) Defendants were originally convicted of three drug charges. The convictions were reversed because of prejudicial testimony about their ethnic background. On remand, each defendant pled guilty to one drug charge. They challenged a § 2D1.1(b)(1) firearm enhancement, arguing that there was insufficient connection between the gun found in the bottom of a duffel bag in their car and the drugs found in the apartment building where they were arrested. The 8th Circuit upheld the enhancement based on defendants’ original conviction for using or carrying a firearm during and in relation to a drug trafficking crimes. The enhancement could not be clearly erroneous, since the court on appeal from the original trial found that the evidence on all counts was sufficient to sustain defendants’ conviction. That finding was not affected by the reversal of defendants’ convictions on other grounds. U.S. v. Vue, 38 F.3d 973 (8th Cir. 1994).
8th Circuit upholds firearm enhancement based on gun defendant used to protect home. (284) Police came to defendant’s residence in response to a complaint that he was threatening two neighbors with a gun. They discovered a loaded nine-millimeter pistol in a box on the bed in the bedroom, and 3/4 pound of cocaine in a locked box in the kitchen. The 8th Circuit approved a § 2D1.1(b)(1) enhancement, holding that the government established a temporal and spatial connection between the gun and the cocaine. Defendant displayed the gun to protect his property while he was in possession of the cocaine. The gun and the cocaine were found in the same one-bedroom apartment. The bedroom and kitchen were not spatially distant from each other. Both items were out in the open. Given defendant’s willingness to use the gun to protect his non-drug related property, the district court reasonably concluded that defendant also used the gun to protect his substantial store of drugs. U.S. v. Richmond, 37 F.3d 418 (8th Cir. 1994).
8th Circuit upholds firearm enhancement based on gun found in luggage with drug paraphernalia. (284) Defendant was convicted of various drug-related offenses. The district court enhanced his sentence under § 2D1.1(b)(1) because when he was arrested at the airport, his luggage contained a .25 caliber gun and a digital scale containing cocaine residue. The 8th Circuit affirmed, holding that the government met its burden of establishing a relationship between the gun and the conspiracy. U.S. v. McMurray, 34 F.3d 1405 (8th Cir. 1994).
8th Circuit says guns were not for hunting or collection. (284) Postal officials intercepted a package to defendants containing 30.0 grams of methamphetamine. Police found 27 weapons in defendants’ house, including a shotgun in an unlocked case that also contained marijuana. Defendants argued that an enhancement under § 2D1.1(b)(1) was unwarranted because some the guns were part of a collection and others were used for hunting. The 8th Circuit found that it was not improbable that the weapons were connected to the drug offense. Handguns and ammunition were found in defendants’ bedroom and marijuana was found in a case with a shotgun. The fact that one defendant was in the process of moving out of the house did not mean she did not possess the weapons. At a minimum, she had constructive possession of the weapons. Moreover, her co-conspirator’s possession of the weapons would justify enhancement. U.S. v. Wright, 29 F.3d 372 (8th Cir. 1994).
8th Circuit holds that plastic explosive brick is a dangerous weapon. (284) Defendant was convicted of possessing ephedrine with intent to produce methamphetamine, and acquitted of knowingly carrying a destructive device, a C-4 plastic explosive brick. Despite the acquittal, the 8th Circuit upheld an enhancement under § 2D1.11(b)(1) for possession of a dangerous weapon. Because the standards of proof are different, acquittal on a weapons charge does not preclude a sentencing enhancement for the acquitted conduct. The plastic explosive brick was a dangerous weapon, even if it was missing the mechanism required for detonation. Since the brick appeared to be a destructive or dangerous weapon, it was properly treated as a dangerous weapon for sentencing enhancement purposes. U.S. v. Roach, 28 F.3d 729 (8th Cir. 1994).
8th Circuit says enhancements are not reviewable if overall sentence was a downward departure. (284) Defendant challenged a weapon enhancement under § 2D1.1(b)(1) and the denial of a minor role reduction under § 3B1.2(b). The 8th Circuit held that these issues were not appealable, since defendant’s sentence still represented a downward departure from the sentencing range that would have resulted if he had prevailed on both points. Moreover, there was no error. Defendant carried a loaded firearm while harvesting marijuana on a marijuana patch. Although he claimed that he carried the gun to disguise himself as a squirrel hunter, defendant posed a risk of danger to anyone who might have approached him on the patch. Defendant was not a minor participant because he harvested the marijuana and was to receive one-half of the marijuana he picked. U.S. v. Wyatt, 26 F.3d 863 (8th Cir. 1994).
8th Circuit finds sufficient nexus between firearms and drug activity. (284) The 8th Circuit upheld a firearm enhancement under § 2D1.1(b)(1) for three defendants, finding a sufficient nexus between defendants’ guns and their drug activity. The first defendant’s semi-automatic pistol was found at the back of a homemade stereo speaker cabinet. Although the pistol was not loaded, it was found near a portable police scanner and two pagers. Moreover, defendant advised his supplier that he had purchased the pistol. Police seized two weapons from the second defendant’s apartment. One gun was lying on the headboard of defendant’s bed next to $5,000 cash. Defendant claimed the second gun was for hunting, but admitted that he had never been hunting. Defendant sometimes stored cocaine at the apartment, and it had been the site of some drug transactions. A witness testified that he saw the third defendant waving a semi-automatic pistol in the housing project where this defendant’s subordinates sold drugs for him. U.S. v. Maxwell, 25 F.3d 1389 (8th Cir. 1994).
8th Circuit rejects claim that “antique” derringer was unrelated to drug activity. (284) Defendant challenged a §2D1.1(b)(1) enhancement based on a two-shot derringer found in her daughter’s room, claiming that it belonged to her daughter, who used it for protection. The 8th Circuit upheld the enhancement. The loaded gun was seized from the same room in which a bag of crack cocaine, a cellular phone, and $275 in cash were found. Defendant admitted storing money in her daughter’s room. Defendant’s claim that the “antique” gun was incapable of affording security for drug sales was belied by her claim that her daughter carried the gun for personal protection. Her implication that the gun was merely a collector’s item was further undercut by the fact that the gun was found loaded and in proximity to controlled substances. U.S. v. Cotton, 22 F.3d 182 (8th Cir. 1994).
8th Circuit rules sufficient nexus existed between drugs and firearms found in defendants’ houses. (284) Defendants were convicted of a drug conspiracy, and each received an enhancement under § 2D1.1(b)(1) for possessing a firearm during a drug trafficking offense. The 8th Circuit found that a sufficient nexus existed between the drugs and the firearms. Police seized a loaded handgun located near 60 grams of methamphetamine and a triple beam balance scale at one defendant’s house. From another defendant’s trailer they seized a loaded revolver and 30 grams of methamphetamine. Eight handguns were seized from another defendant’s house, along with methamphetamine residue, drug paraphernalia, ammunition and $6,000 cash. A revolver was found on the nightstand next to the last defendant’s bed, and a fully loaded semi-automatic gun was found under the bed. U.S. v. Lucht, 18 F.3d 541 (8th Cir. 1994).
8th Circuit upholds firearm enhancement based on weapons found in storage locker. (284) After receiving a package containing drugs, defendant drove away with it, driving evasively. He eventually pulled into a self-storage lot, drove through the lot, and then stopped at a residence where he was arrested. In his possession was an access card and key to a self-storage locker in the lot through which he had driven. The locker contained several loaded guns, drug paraphernalia, and photos of defendant. The 8th Circuit upheld a firearm enhancement under § 2D1.1(b)(1). Defendant had constructive possession of the firearms, and the court properly concluded the weapons were connected to the drug offense. The weapons were neither hunting weapons nor weapons connected with another recreational activity, but were of a type associated with drug distribution. Moreover, the weapons were found in a locker containing drug paraphernalia showing that the location was used to prepare drugs for distribution. U.S. v. Hayes, 15 F.3d 125 (8th Cir. 1994).
8th Circuit upholds firearm enhancement based on weapons and drugs found in home. (284) Defendant challenged a firearm enhancement under guideline section 2D1.1(b)(1), claiming that the government failed to prove that he used the weapons found in his home to further drug trafficking. The 8th Circuit upheld the enhancement based on evidence that, one day before the weapons were seized, he sent cocaine to his home. Authorities found marijuana and drug paraphernalia along with the weapons in his home. U.S. v. Patterson, 11 F.3d 824 (8th Cir. 1993).
8th Circuit bases enhancement on firearm found in upstairs room. (284) Police found defendant, cocaine and other drug paraphernalia in the kitchen on the first floor of an apartment. A firearm and $2500 was found in a second-floor bedroom, hidden behind a television console. The 8th Circuit found there was a sufficient nexus between the cocaine and the firearm to support a firearm enhancement under section 2D1.1(b)(1). The apartment was involved in the storing and selling of cocaine. The fact that defendant was arrested and the cocaine seized on the first floor of the apartment while the gun was found on the second floor was insignificant. The distance between defendant and the firearm was minimal. The firearm was loaded and found in close proximity to the cocaine, currency and drug paraphernalia. U.S. v. Williams, 10 F.3d 590 (8th Cir. 1993).
8th Circuit upholds firearm enhancement based on guns found in defendant’s house. (284) The 8th Circuit upheld a section 2D1.1(b)(1) enhancement based on two guns found in the house where defendant lived. At least one of the guns was on a dresser in the bedroom she used, and she admitted that she knew of that gun. Inside the gun’s carrying case was several hundred dollars’ worth of drug money. Drug packages were received at the house, and methamphetamine was cut, packaged, and distributed from the house. U.S. v. Hammer, 3 F.3d 266 (8th Cir. 1993).
8th Circuit permits two 924(c) convictions of for multiple weapons possessed at same time. (284) Under 18 U.S.C. §924(c), an enhanced penalty applies for use of a firearm in a drug offense or crime of violence, and additional penalties apply for a second or subsequent conviction. Defendant was convicted of two counts under section 924(c) based on the seizure of two separate stashes of weapons from his home. The 8th Circuit, relying on Deal v. U.S., 113 S.Ct. 1993 (1993), held that the enhanced penalty could be applied to defendant where the first and any subsequent convictions arise in the same proceeding. U.S. v. Ortiz-Martinez, 1 F.3d 662 (8th Cir. 1993).
8th Circuit enhances drug sentence for possession of unloaded firearm in open gun safe. (284) When a government informant came to defendant’s house to buy drugs, the informant noticed an unloaded gun in an open gun safe. Defendant and informant then went to another room, where defendant gave informant a drug sample. The 8th Circuit found no clear error in the district court’s conclusion that it was not clearly improbable that possession of the gun was connected with the offense. Defendant testified that he could have loaded the gun and been ready to fire it within four or five seconds. U.S. v. Wiley, 997 F.2d 378 (8th Cir. 1993), abrogation on other grounds recognized by U.S. v. Bieri, 21 F.3d 819 (8th Cir. 1994).
8th Circuit upholds firearm enhancement based on guns seized from brother’s house. (284) Defendant, his brother, and two others were convicted of drug conspiracy charges. The 8th Circuit upheld defendant’s firearm enhancement under section 2D1.1(b)(1) based on guns seized from his brother’s house. Defendant admitted he lived in his brother’s house and that he helped his brother package the marijuana. The rifle was found in the same closet with zip-lock style plastic bags containing marijuana residue and packaging materials. U.S. v. Garrido, 995 F.2d 808 (8th Cir. 1993).
8th Circuit upholds firearm enhancement despite acquittal on section 924(c) charges. (284) The 8th Circuit upheld a two-level increase under section 2D1.1(b)(1) for possession of a firearm during the commission of a drug trafficking offense, even though the jury had acquitted defendant of a firearms charge under 18 U.S.C. section 924(c)(1). Because the standards of proof differ, acquittal on the firearms charge does not prohibit enhancement under the guidelines. The connection between the gun and the drugs and drug paraphernalia found in defendant’s house was not “clearly improbable.” U.S. v. Meyers, 990 F.2d 1083 (8th Cir. 1993).
8th Circuit upholds firearm enhancement for gun found under bed after conspiracy ended. (284) The 8th Circuit affirmed a firearm enhancement under section 2D1.1(b) for possessing a firearm during a drug trafficking offense, even though the district court did not state to which of defendant’s drug conspiracies the gun was related. Enhancement was proper if it was not clearly improbable that the weapon was connected with either conspiracy. The weapon found under defendant’s bed was connected with defendant’s marijuana conspiracy, even though the conspiracy ended before the gun was found in his home. According to one witness, the gun had been in the house for some time and guns were kept loaded in the house for protection. Moreover, the gun was found loaded and near marijuana, a scale, and packaging materials. U.S. v. Bruce, 984 F.2d 928 (8th Cir. 1993).
8th Circuit affirms firearm enhancement for marijuana farmer who kept weapons in bedroom with drugs. (284) Defendant was arrested for growing marijuana on his farm. A search of the farm and outbuildings uncovered various marijuana cultivation items. A number of unloaded weapons, including two automatic pistols and an automatic rifle, were found in defendant’s bedroom. The 8th Circuit affirmed an enhancement for possession of a firearm during a drug trafficking crime. Although defendant had many hunting weapons, the proximity of automatic weapons, albeit unloaded, in his bedroom where he also kept marijuana, exacerbated the danger of drug-related violence. It was not clearly improbable that the weapons were connected to the offense. U.S. v. Rowley, 975 F.2d 1357 (8th Cir. 1992).
8th Circuit says defendant exercised dominion over shed in which weapons were found. (284) Defendant received an enhancement under section 2D1.1(b)(1) based on various firearms and ammunition and several jugs and jars filled with precursor chemicals and glassware found in a storage shed. The storage unit was leased to defendant’s former girlfriend. Defendant visited the storage unit with various members of the conspiracy five times between July and November. The FBI found the glassware that another conspirator delivered to defendant in the same storage unit. It was not clearly improbable that the weapons were connected to defendant’s methamphetamine conspiracy. Both guns were semi-automatic weapons with large magazines. An expert testified at sentencing that only drug traffickers use these paramilitary weapons. U.S. v. Montanye, 962 F.2d 1332 (8th Cir. 1992), opinion partially vacated on other grounds, 996 F.2d 190 (8th Cir. 1993) (en banc).
8th Circuit affirms firearm enhancement for defendant who threatened co-conspirator with a gun. (284) The 8th Circuit affirmed that defendant possessed a gun during a drug conspiracy. The presentence report indicated that defendant threatened to shoot a co-conspirator’s foot off if he did not pay a drug debt, even though the coconspirator later denied this. Moreover, defendant himself admitted that he owned a nine-millimeter semi-automatic handgun and collected guns during the conspiracy. He stated that, on one occasion when the co-conspirator came to his house to purchase cocaine, he noticed defendant’s gun collection. The mere presence and ready availability of a firearm where drugs are dealt constitutes the use of a gun during a narcotics offense. U.S. v. Granados, 962 F.2d 767 (8th Cir. 1992).
8th Circuit upholds firearm enhancement based upon firearms seen in apartment from which cocaine was distributed. (284) The 8th Circuit upheld an enhancement under guideline section 2D1.1(b)(1) based upon defendant’s possession of a firearm during a drug trafficking crime. Firearms were seen in defendant’s apartment on more than one occasion, which was the same apartment from which cocaine was distributed. U.S. v. Pou, 953 F.2d 363 (8th Cir. 1992).
8th Circuit affirms firearm enhancement for drug dealer who kept weapons at his “home base.” (284) The 8th Circuit affirmed an enhancement under section 2D1.1(b) based on evidence that defendant manufactured amphetamine, led a conspiracy to distribute amphetamine, and kept several guns at the “home base” of his drug operation. U.S. v. Haren, 952 F.2d 190 (8th Cir. 1991).
8th Circuit affirms firearm enhancement for weapon found in mobile home over which defendant had joint control. (284) The 8th Circuit affirmed a firearm enhancement under guideline section 2D1.1(b), rejecting defendant’s claim that she did not possess the weapons (her husband did), and that the weapons were not connected to the drug offense. Defendant, along with her husband, exercised dominion over the mobile home where the guns were, which was sufficient to show she possessed the weapons. The mobile home was adjacent to the sheds that served as methamphetamine labs. There was evidence that a drug transaction took place in the mobile home and that defendant counted drug proceeds there. She retrieved the guns from the sheriff’s office after her husband pled guilty to being a felon in possession of a firearm. U.S. v. Haren, 952 F.2d 190 (8th Cir. 1991).
8th Circuit affirms firearm enhancement based upon loaded firearms found in defendant’s residence. (284) A search of defendant’s residence uncovered drugs and four loaded firearms. Two 12 gauge shotguns were in an upstairs bedroom closet and two pistols were between the mattresses. The 8th Circuit affirmed the enhancement under § 2D1.1(b)(1) based upon defendant’s possession of the weapons during a drug offense. The weapons were loaded and found near drug paraphernalia. U.S. v. Marshall, 940 F.2d 382 (8th Cir. 1991).
8th Circuit affirms firearm enhancement despite acquittal for using a firearm in connection with a drug trafficking crime. (284) The 8th Circuit rejected defendant’s contention that his acquittal for using a firearm in connection with a drug trafficking crime under 18 U.S.C. § 924(c) precluded a two-level enhancement under guideline § 2D1.1(b)(1) for possession of a firearm during a drug trafficking crime. The government’s burden on the weapons charge is to prove guilt beyond a reasonable doubt, while the guidelines enhancement applies “if the weapon was present, unless it is clearly improbable that the weapon was connected with the offense.” U.S. v. Eberspacher, 936 F.2d 387 (8th Cir. 1991).
8th Circuit affirms firearm enhancement based on weapon and drugs found in defendant’s home. (284) The 8th Circuit found no abuse of discretion in increasing defendant’s offense level for possession of a firearm during the commission of a drug trafficking crime. According to the presentence investigation report, a search of defendant’s home uncovered 23 grams of a cocaine-like substance, two scales and a .22 caliber revolver. U.S. v. Duke, 935 F.2d 161 (8th Cir. 1991).
8th Circuit upholds firearm enhancement for weapon found in defendant’s home. (284) After meeting with a confidential informant who gave defendant $6,000 for the purchase of amphetamines, defendant left his home to deliver the money to his supplier. Defendant was arrested en route and a subsequent search of his house uncovered a semi-automatic pistol and three loaded clips. The 8th Circuit upheld an enhancement under guideline § 2D1.1(b)(1) for possession of a firearm during a drug trafficking crime. Despite defendant’s contention that all of the conversations concerning the drug purchase took place outside his residence, and that he was headed away from his residence at the time of his arrest, the appellate court found that the district court’s findings were not clearly erroneous. U.S. v. Burks, 934 F.2d 148 (8th Cir. 1991).
8th Circuit affirms firearm enhancement based upon firearm found in defendant’s girlfriend’s luggage. (284) Defendant was arrested on drug charges upon his return from a trip to California with his girlfriend. Defendant’s girlfriend was carrying defendant’s loaded semi-automatic weapon in her luggage. The 8th Circuit upheld an enhancement under guideline § 2D1.1(b)(1) based upon defendant’s possession of a firearm during a drug crime. Defendant admitted to his cell mate that the purpose of the trip to California was to arrange the purchase of 4 kilograms of cocaine. Defendant had told others that his supply of cocaine came from California. At the time of defendant’s arrest, he was carrying $7,000 in cash, which tested positive for cocaine residue. There was no dispute that the weapon found in his girlfriend’s suitcase belonged to defendant. U.S. v. Nash, 929 F.2d 356 (8th Cir. 1991).
8th Circuit upholds enhancement based upon possession of gun in automobile. (284) A witness testified that he saw a pistol in an automobile from which defendant and a co-defendant were distributing cocaine. The 8th Circuit held that this evidence was sufficient to support the upward adjustment in defendant’s offense level based upon her possession of a firearm during the commission of a drug offense. U.S. v. Turpin, 920 F.2d 1377 (8th Cir. 1990).
8th Circuit upholds enhancement based on co-defendant’s possession of a gun. (284) Defendant acted as a middleman between a bookie and his clients, warning one gambler to pay his debt to the bookie. Defendant also surreptitiously took pictures of another gambler which the bookie used to intimidate the gambler. Defendant was convicted of aiding and abetting the bookie’s use of extortionate means to collect gambling debts. His sentence was enhanced under § 2E2.1(b)(1)(C), based on the bookie’s possession of a gun. Defendant argued that this was improper because the charge of carrying a firearm had been dismissed against the bookie and defendant had not been charged with conspiracy. The 8th Circuit disagreed, noting that defendant was involved in criminal activity undertaken in concert with the bookie. The bookie’s possession and display of the gun was in furtherance of such activity, and such conduct was reasonably foreseeable by defendant. U.S. v. Barragan, 915 F.2d 1174 (8th Cir. 1990).
8th Circuit finds that defendant possessed firearm found underneath his living room couch. (284) While in defendant’s apartment searching for a man who sublet a room from defendant, police noticed the muzzle of a gun and some currency partially visible underneath the living room couch. The police looked under the couch and also found 38 bags of cocaine. Defendant was found guilty of possession of cocaine with intent to distribute. The 8th Circuit upheld the district court’s two level increase in defendant’s offense level based upon his possession of a firearm during the commission of a drug offense. The pistol was found in a common area of defendant’s apartment partially exposed. Moreover, defendant did not object to being sentenced on the basis of the 38 bags of cocaine found with the gun. U.S. v. Jackson, 914 F.2d 1050 (8th Cir. 1990).
8th Circuit upholds enhancement for weapons found on ground floor even though marijuana was in attic. (284) Defendant argued that the two-level enhancement for possessing firearms during a drug offense under 2D1.1 was improper because the weapons were found on the ground floor while the marijuana was found in the attic. Moreover, the guns were either hidden or encased. The 8th Circuit rejected the argument, holding that the connection of defendant’s guns to the offense was not “clearly improbable.” U.S. v. Streeter, 907 F.2d 781 (8th Cir. 1990), overruled on other grounds by U.S. v. Wise, 976 F.2d 393 (8th Cir. 1992).
8th Circuit upholds adjustment for possession of weapon during drug offense where gun was in box with drugs. (284) While executing a search warrant, a detective discovered approximately 585 grams of cocaine and loaded revolver in a metal box underneath a bed. The 8th Circuit held that the presence of the weapon justified an enhancement for possession of firearm during the commission of an offense under § 2D1.1(b)(1). U.S. v. Baker, 907 F. 2d 53 (8th Cir. 1990).
8th Circuit affirms firearm enhancement because defendant was allowed to rebut uncorroborated hearsay. (284) Defendant’s base offense level was increased by two for possession of a firearm during a drug offense. During the police raid, the weapon and drug items were found in the west bedroom. Defendant was arrested in an east bedroom. A confidential informant told police that defendant resided in the west bedroom, and it was this uncorroborated hearsay upon which the district court relied in making the increase. Because defendant was given an opportunity to rebut the evidence connecting him with the firearm, the 8th Circuit affirmed the district court’s finding. U.S. v. Weaver, 906 F.2d 359 (8th Cir. 1990).
8th Circuit upholds enhancement for possession during drug offense based on guns found in defendant’s house. (284) Quoting an earlier decision, the 8th Circuit stated that “just as weapons are kept at the ready to protect military installations against potential enemy attack, so too may weapons be kept at the ready to protect a drug house, thereby safeguarding and facilitating illegal transactions.” When the defendant’s home was searched, the police seized three handguns and a twelve gauge shotgun. There was substantial evidence that the defendant conducted his narcotics activities from his home. Accordingly the court upheld the district court’s finding that the firearms were connected with his drug activities. U.S. v. Wayne, 903 F.2d 1188 (8th Cir. 1990).
8th Circuit affirms increase for possession of a gun during drug trafficking offense. (284) While undercover agents were negotiating with the defendants they heard a defendant clicking the safety of a gun in his pocket. When one defendant was arrested they found a gun in his car, and when the second was arrested a gun was found in his apartment. The 8th Circuit held that the district court properly increased defendant’s offense level for possession of a gun during a drug trafficking offense. U.S. v. Figueroa, 900 F.2d 1211 (8th Cir. 1990).
8th Circuit upholds “drug gun” enhancement even though gun was unloaded and not in defendant’s actual possession. (284) Agreeing with the D.C. Circuit, the 8th Circuit held that “the inoperability of the firearm should not bar a 2D1.1(b) adjustment, provided that the firearm at the time of the offense did not clearly appear inoperable.” In the present case, although the rifle was unloaded, the agents did not know that it was not ready to fire. Moreover, defendant’s ownership of the home where the rifle was found, as well as his remarks that he was willing to use a weapon “were sufficient facts for the district court to find he constructively possessed the rifle” during the drug transaction. U.S. v. Luster, 896 F.2d 1122 (8th Cir. 1990).
8th Circuit holds that possession of handgun and ammunition at base of cocaine operations warranted upward adjustment. (284) The 8th Circuit affirmed a two level upward adjustment for possession of a firearm during the commission of a drug offense (§ 2D1.1(b)(1)). The single shot .22 caliber handgun and ammunition were found in the defendant’s bedroom, where the majority of approximately 70 grams of cocaine base were stored. Her undenied possession of a firearm and ammunition in the same place where she conducted drug transactions and the additional hazard the presence of the firearm created in her drug operation made it “not clearly improbable” that the firearm was connected to the drug offense. U.S. v. Green, 889 F.2d 187 (8th Cir. 1989).
8th Circuit rules proximity of guns to drugs is proper basis for enhancement of offense level. (284) During a search of a drug defendant’s residence, agents found a pistol in a briefcase containing drug paraphernalia, and another pistol in the house. The defendant did not dispute that the pistols were there or that he owned and possessed them. The 8th Circuit held that a two level enhancement under § 2D1.1 was proper. Either use or possession of a firearm is sufficient to warrant the enhancement, and the proximity of one gun to drug paraphernalia was sufficient in this case. U.S. v. Holland, 884 F.2d 354 (8th Cir. 1989).
9th Circuit sees no double counting in firearm enhancement that did not rest solely on firearm conviction. (284) Defendant was convicted of drug-trafficking conspiracy and possession of a firearm by a convicted felon. The district court enhanced defendant’s sentence on the conspiracy count under § 2D1.1(b)(1) because he possessed a firearm during the offense. The court relied on defendant’s conviction for possession of a firearm and, in the alternative, on the testimony of witnesses who testified that defendant possessed a firearm other than the one that formed the basis for his firearms conviction. The Ninth Circuit held that the enhancement for possession of a firearm did not constitute impermissible double counting because the district court relied on the witnesses’ testimony concerning different conduct than the conduct forming the basis for defendant’s firearm convictions. U.S. v. Cabaccang, 481 F.3d 1176 (9th Cir. 2007).
9th Circuit finds accomplice’s firearm use foreseeable. (284) With two other men, defendant planned a robbery in which the robbers would use firearms to threaten the victims. The gang attempted the robbery once, but abandoned it. Nine months later, defendant’s two accomplices committed the robbery without him. During a high-speed chase after the robbery, an accomplice fired shots at police officers. Defendant pleaded guilty to conspiracy to commit armed robbery. At sentencing, the district court enhanced his sentence under U.S.S.G. § 2B3.1(b)(2)(A) for discharge of a firearm. The Ninth Circuit held that because defendant planned to use firearms during the robbery, he was responsible for his accomplice’s discharge a firearm during the escape attempt. U.S. v. Franklin, 321 F.3d 1231 (9th Cir. 2003).
9th Circuit holds defendant “carried” the firearm that was found in his truck. (284) Defendant sought habeas relief, arguing that he was “actually innocent” of carrying a firearm in violation of 18 U.S.C. § 924(c). The Ninth Circuit rejected the argument, noting that before his arrest, petitioner had been observed driving the pickup truck in which the shotgun was found to the location of the methamphetamine laboratory, and the truck had been seen parked outside his motel room. At the time of his arrest, petitioner had the truck’s ignition key on his personalized key ring, and the truck was parked outside his methamphetamine laboratory. In addition, he was arrested emerging from a shed that contained drug paraphernalia and weapons, and the pickup truck likewise contained drug paraphernalia and weapons. One of petitioner’s co-conspirators testified that the pickup truck belonged to petitioner and that he had never seen anyone else drive the truck. Lorentsen v. Hood, 223 F.3d 950 (9th Cir. 2000).
9th Circuit, en banc, says gun was carried in relation to drug trafficking, not to shoot rattlesnakes. (284) The Supreme Court vacated an earlier en banc opinion in this case in light of Muscarello v. U.S., 118 S. Ct. 1911 (1998). On remand, Judge Trott, writing for a unanimous en banc court, noted that a handgun was found in the bed of defendant’s pickup truck under a snap-down tarp. Also under the tarp was a bucket containing a triple beam O’Haus scale commonly used by drug traffickers, several empty clear plastic baggies, and some handwritten notes bearing prices. Defendant’s factual defense did not focus on whether he was “carrying” a firearm; but on whether he was doing so “during and in relation to” a drug trafficking crime. He attempted to avoid conviction by claiming that he carried the gun to shoot rattlesnakes, not to facilitate any involvement in drug trafficking. Viewing the facts in the light most favorable to the government, the en banc Ninth Circuit concluded that the evidence that defendant carried the handgun in violation of 18 U.S.C. §924(c) was “overwhelming.” “All the relevant evidence regarding [defendant’s] engagement in the illegal drug business supports the juror’s rejection of the rattlesnake defense.” U.S. v. Foster, 165 F.3d 689 (9th Cir. 1999) (en banc).
9th Circuit upholds increase for gun possessed during drug conspiracy. (284) The Ninth Circuit found no indication that defendants’ drug conspiracy was limited to the sites where the overt acts of drug distribution took place. Further, after the defendants were arrested, the police found weapons at their residences. Therefore, under U.S. v. Stewart, 926 F.2d 899, 901 (9th Cir. 1991), they possessed the weapons during the commission of the drug conspiracy. Moreover, even though the seized handguns were unloaded, it was not “clearly improbable” that they were connected to the drug conspiracy. Commentary note 3 to § 2D1.1 explains that it is “clearly improbable” that a weapon is involved in a drug offense where a defendant is arrested at his home and the police find an unloaded hunting rifle in his closet. However, in this case, the police found a .22 caliber handgun in one defendant’s residence, and two handguns in the other defendant’s residence. The district court noted that they “were not hunting rifles.” U.S. v. Lopez-Sandoval, 146 F.3d 712 (9th Cir. 1998).
9th Circuit says gun on headboard was “foreseeable” to defendant. (284) Defendant argued that the pistol on the headboard of her bed was not hers nor used by her. On appeal she argued that the gun was not “foreseeable” by her. The Ninth Circuit found this contention was “almost frivolous.” The gun was not merely foreseeable; it was present, “ready for use to defend the drugs of the conspirators.” The sentence enhancement was proper. U.S. v. Lightbourne, 104 F.3d 1172 (9th Cir. 1997).
9th Circuit holds defendant “used” firearm when he showed it to co-defendant to intimidate him. (284) Defendant arranged to deliver a pound of methamphetamine to an undercover officer. As he was leaving his home to make the delivery, he showed a .25 caliber pistol to his co-defendant for the purpose of warning the co-defendant not to take advantage of him during the sale. He then put the gun in his car and drove with co-defendant to deliver the drugs to the undercover officer. When he was arrested, the gun was found under the driver’s seat. On appeal, the Ninth Circuit upheld defendant’s conviction under 18 U.S.C. § 924(c)(1) for “using” the firearm during and in relation to a drug offense within the meaning of Bailey v. U.S., 516 U.S. 137 (1995). Defendant “actively employed” the firearm by using it to intimidate the co-defendant, even though he never referred to it or displayed it to the buyer. U.S. v. Davis, 76 F.3d 311 (9th Cir. 1996).
9th Circuit upholds enhancement for possession of two guns in same house as the grow operation. (284) It was undisputed that the guns were present in the same residence as the grow operation. The district court found that an enhancement under § 2D1.1(b)(1) was appropriate and impliedly found that it was not clearly improbable that the guns were connected with the marijuana grow operation. The 9th Circuit upheld these findings as not clearly erroneous. U.S. v. Kyllo, 37 F.3d 526 (9th Cir. 1994).
9th Circuit finds codefendant’s possession of firearm was reasonably foreseeable. (284) The district court found that the codefendant’s possession of the firearm during the plan to kill Elias was reasonably foreseeable to all of the defendants. The 9th Circuit found the enhancement especially appropriate in defendant’s case because he was in the room when the plan to kill Elias was discussed between a codefendant and the informant. U.S. v. Arias-Villanueva, 998 F.2d 1491 (9th Cir. 1993), implied overruling recognized by U.S. v. Jimenez-Ortega, 472 F.3d 1102 (9th Cir. 2007).
9th Circuit holds that guidelines do not “presume” that a weapon is connected to a drug offense. (284) Defendant argued that the Commentary to § 2D1.1 presumed that a weapon is connected to an offense upon proof of mere possession. He argued that the burden was then shift-ed to the defendant to show that the weapon was not connected with the offense, and that this presumption and burden-shifting violated due process. The 9th Circuit noted that it had already rejected this argument in an earlier decision, holding that the Commentary “creates an exception to the terms of the guideline, not a presumption that a connection existed.” Moreover the court noted that the Supreme Court in McMillan v. Pennsylvania, 477 U.S. 79 (1986) held that “enhancement of sentences based on sentencing factors which came into play after a defendant has been found guilty do not violate due process.” U.S. v. Stewart, 926 F.2d 899 (9th Cir. 1991).
9th Circuit upholds enhancement despite fifteen mile distance between drugs and gun. (284) Guideline § 2D1.1 provides for a two level increase over the base offense level if “a firearm or other dangerous weapon was possessed during commission of the [drug] offense.” Here the weapon was possessed at defendant’s home fifteen miles away from the act of distribution in furtherance of the conspiracy. Relying on its recent opinion in U.S. v. Willard, 919 F.2d 606 (9th Cir. 1990), the 9th Circuit reiterated that the statutory language “possessed during the commission of the offense” refers to the entire course of criminal conduct, not only the offense of conviction. Thus the question is “whether the gun was possessed during the course of criminal conduct, not whether it was ‘present’ at the site.” Here the defendant was convicted of conspiracy, and the court found no indication that the conspiracy was limited to the site of the distribution. U.S. v. Stewart, 926 F.2d 899 (9th Cir. 1991).
9th Circuit permits departure for possession of weapons during drug offense even though that factor was already considered. (284) Defendant argued that his possessing a weapon during commission of the drug offense contributed to his sentence on the 18 U.S.C. § 924(c) weapons charge, and therefore was not a permissible ground for departure. The 9th Circuit rejected the argument, noting that the policy statement to § 5K2.6 permits such departures even if the guidelines take weapon possession into consideration, as long as that factor “is present to a degree substantially in excess of that which is ordinarily involved in the offense of conviction.” The court agreed with the district court’s assessment that defendant’s arsenal of 18 firearms, some fully automatic, elevated the factor of weapon possession to an extraordinary level and rendered it a suitable ground on which to depart. The court also rejected defendant’s argument that this violated double jeopardy. U.S. v. Nakagawa, 924 F.2d 800 (9th Cir. 1991).
9th Circuit holds that firearm in car was connected with the drug offense, and its presence was “reasonably foreseeable.” (284) Defendant was present in the car when his codefendant delivered 17 kilograms of cocaine to an undercover officer. Officers found a loaded 38 caliber handgun under the front floormat by the driver’s seat. The 9th Circuit held that this handgun was “connected with the offense,” within the meaning of § 2D1.1(b)(1) and that its possession could be attributed to the defendant, through § 1B1.3(a)(1), the commentary to which provides that a defendant is accountable for others undertaken in furtherance of the conspiracy that was “reasonably foreseeable by the defendant.” Noting that “trafficking in narcotics is very often related to the carrying and use of firearms,” the 9th Circuit held that “in light of the large amount of drugs involved in this case, [the codefendants] possession of the gun was reasonably foreseeable.” U.S. v. Garcia, 909 F.2d 1346 (9th Cir. 1990).
9th Circuit approves enhancement where defendant imported drugs in car with unloaded handgun in trunk. (284) The guidelines provide for a two-point enhancement in offense level for the possession of a firearm during the importation of controlled substances. The commentary to the guidelines preclude the enhancement when the weapon is present during the offense but the weapon’s connection to the offense is “clearly improbable.” Defendant argued that the enhancement was inappropriately applied to him when an unloaded firearm was found in his trunk near some ammo clips during a border search that also revealed drugs. He claimed to possess the gun as security for a loan that he expected to be paid off on the day he was carrying the gun, but the district judge refused to credit the testimony. Judges Alarcon, Brunetti, and O’Scannlain affirmed the sentencing judge’s determination that connection of the gun to the drug offense was not “clearly improbable” even though defendant claimed to possess only a “user’s quantity” of drugs; even those dealing in small quantities of drugs sometimes resort to violence, the court noted. U.S. v. Heldberg, 907 F.2d 91 (9th Cir. 1990).
9th Circuit holds that wife could reasonably foresee husband’s possession of a firearm during drug offense. (284) The commentary to the “relevant conduct” section of the guidelines requires the sentencing judge to consider the “conduct of others in furtherance of the execution of the jointly undertaken criminal activity that was reasonable foreseeable by the defendant.” Here the district judge applied a two level upward departure, pursuant to U.S.S.G. 2D1.1(b)(1), based on the defendant’s husband’s possession of a firearm during the commission of a drug offense. The 9th Circuit affirmed, holding that the district judge’s ruling was not “clearly erroneous” even though he did not explicitly adopt the “reasonable foreseeability” language used in the guidelines commentary. U.S. v. Willis, 899 F.2d 873 (9th Cir. 1990).
9th Circuit upholds upward adjustment for possession of weapon during drug offense. (284) The 9th Circuit noted that the guidelines provide that “[t]he adjustment should be applied if the weapon is present, unless it is clearly improbable that the weapon was connected with the offense.” (Commentary to Guideline 2D1.1(b)(1).) Because the defendant’s loaded firearm was located “in close proximity” to the drugs he was in the business of distributing, the court concluded that the upward adjustment for possessing a firearm while committing a drug offense was not clearly erroneous. U.S. v. Gillock, 886 F.2d 220 (9th Cir. 1989).
9th Circuit finds that handgun found under defendant’s mattress was in his possession. (284) A search of defendant’s home revealed numerous drugs and drug material, as well as a gun hidden under a mattress. The district court found the gun was possessed during the drug offense and increased the sentencing guideline base offense level two points. The 9th Circuit held that a jury could reasonably infer that defendant had possessed the gun during the offense because it was found in a house containing drugs and in a room where distribution occurred. The court rejected defendant’s argument that the commentary to sentencing guideline § 2D1.1 violated the due process clause by placing a burden on defendant to show there was no connection between the offense and the weapon. The court ruled that the language in the commentary does not create a presumption that a connection existed. U.S. v. Restrepo, 884 F.2d 1294 (9th Cir. 1989).
10th Circuit approves gun increase where defendant did not show “clear improbability” of connection to offense. (284) Defendant was convicted of crack cocaine charges. The district court applied a § 2D1.1(b)(1) firearm enhancement because police had found a gun under a couch and drugs in the apartment when they arrested him. Defendant argued that the government did not show that the firearm was connected to the offense. The Tenth Circuit found no error, because the government met its initial burden to show that the firearm was found in “physical proximity to the offense.” Once the government meets this burden, the defendant must show that it was “clearly improbable” that the weapon was connected to the offense. Here, a gun was found in a residence with drugs, scales, plastic bags, and other drug paraphernalia. Defendant failed to show a “clear improbability” that the weapon was connected to the offense. U.S. v. Thomas, __ F.3d __ (10th Cir. Apr. 29, 2014) No. 13-3046.
10th Circuit upholds firearm increase for officer of motorcycle gang that distributed drugs. (284) Defendant, an officer in a motorcycle club, was convicted of drug charges. The Tenth Circuit upheld a § 2D1.1(b)(1) enhancement for possessing a dangerous weapon during a drug trafficking offense. Martinez, the secretary and treasurer of the motorcycle club and a co-conspirator in the drug trafficking operations, testified at trial that defendant gave him a chrome pistol for his protection. The court found that this happened during the conspiracy. This finding was not clearly erroneous. The former president of the gang testified that defendant’s duties as “Sergeant at Arms” included providing guns and ammunition for club members, most of whom were involved in the drug conspiracy. U.S. v. Shippley, 690 F.3d 1192 (10th Cir. 2012).
10th Circuit upholds firearm increase. (284) The Tenth Circuit ruled that the district court’s decision to enhance defendant’s sentence for possessing a firearm in connection with a drug trafficking offense was reasonable. When defendant was arrested following a controlled buy on October 23, government agents recovered a handgun from defendant’s jacket pocket. Contrary to defendant’s claims of sentencing entrapment or manipulation, there was no evidence in the record suggesting that defendant brought the gun to the controlled buy at the request of government agents. The firearm was concealed during the October 23 controlled buy, and defendant did not attempt to sell it or disclose its presence to anyone. This created a clear temporal proximity between the firearm, the defendant, and the drug trafficking activity. It was not clearly improbable that defendant possessed the firearm in connection with a drug trafficking offense. U.S. v. Beltran, 571 F.3d 1013 (10th Cir. 2009).
10th Circuit increases drug sentence for gun despite acquittal on gun charge. (284) Defendant was convicted of drug charges and acquitted of possessing a firearm in relation to a drug trafficking crime. The Tenth Circuit upheld a § 2D1.1(b)(1) firearm enhancement, holding that defendant’s acquittal on the firearm charge did not bar the district court from considering that same conduct at sentencing. As for defendant’s possession of the gun, the government established the requisite temporal and spatial relationship between the weapon, the drugs, and defendant. The police searched the co-conspirator’s house where the gun was found shortly after a witness traded a weapon for drugs. During the search of the house, police found two guns and a variety of drugs. Defendant was found in the house at the time of the search along with the drugs and the pistol that the witness had traded for drugs. Defendant knew about and actually handled this weapon. In addition, a second firearm was found in defendant’s truck. A co-conspirator testified that defendant and his brother had driven the truck to his house while carrying drugs, and thus the presence of the gun was related to the drugs later found in the house. U.S. v. Sallis, 533 F.3d 1218 (10th Cir. 2008).
10th Circuit upholds increase where defendant did not rebut evidence that gun was connected to drugs. (284) Defendant offered Delgado $300 to go into a motel, rent a particular room, and retrieve a gun that defendant had placed in a ventilation shaft in the wall. Delgado refused, and informed the DEA after being arrested on drug charges. Law enforcement found the gun exactly where Delgado told them it would be. The gun had no fingerprints, and there was no record that defendant had ever rented that hotel room. Defendant pled guilty to drug charges, and received a § 2D1.1(b)(1) increase for possessing a dangerous weapon. Defendant argued that the government never proved he had possession of the gun and failed to demonstrate any proximity between the weapon and the offense. However, the government was not required to prove defendant had actual possession of the gun. The evidence that defendant offered Delgado $300 to retrieve his gun from the hotel satisfied the government’s initial burden of proof, because it demonstrated that defendant had actual knowledge of the gun. Whether a co-conspirator or defendant placed the gun in the room’s ventilation shaft was immaterial given that the co-conspirators were in town solely to import and deliver drugs. The Tenth Circuit ruled that the § 2D1.1(b)(1) increase was not clearly erroneous. U.S. v. Topete-Plascencia, 351 F.3d 454 (10th Cir. 2003).
10th Circuit upholds gun increase where handgun was found in a cigar box next to crack cocaine. (284) In the defendant’s cousin’s bedroom, officers found a handgun in a cigar box, in a closet, next to a quantity of crack cocaine. Defendant’s fingerprint was found on the cigar box. The Tenth Circuit held that this was sufficient to demonstrate that the firearm was connected to, or in proximity with, the drug crime because it established a “temporal, spacial (sic) nexus between the firearm and the crack cocaine.” “Once the government establishes that the gun was possessed in proximity to the drugs or transaction, the burden shifts to the defendant to ‘show it is clearly improbable that the weapon was related to the offense.’“ Here, the defendant did not meet that burden. U.S. v. Alexander, 292 F.3d 1226 (10th Cir. 2002).
10th Circuit holds that gun need not be seized from defendant in order to support firearm increase. (284) Defendant was convicted of a variety of drug trafficking crimes. He challenged a § 2D1.1(b)(1) firearm increase, noting that no firearm was ever seized from him. However, during the course of the drug conspiracy, defendant made statements during intercepted telephone calls that established that he had attempted and been successful in obtaining a gun. Defendant indicated that the gun was to be used in connection with his drug trafficking business. A gun of the same caliber was recovered from the address of one of defendant’s co-defendants. In addition, the government found two semi-automatic pistol magazines and live ammunition at defendant’s residence. The Tenth Circuit affirmed the firearm increase. There is no requirement that a gun be directly seized from the defendant. The government is only required to prove by a preponderance of the evidence that defendant possessed a firearm that was connected with the conspiracy offense. The gun itself need not be produced if adequate alternative evidence exists. U.S. v. Pompey, 264 F.3d 1176 (10th Cir. 2001).
10th Circuit affirms firearm increase even though gun was found 24 days after last known drug activity. (284) Defendant argued that the weapon found 24 days after his last documented drug activity had no physical proximity to the drug offense, as required by U.S. v. Gomez-Arrellano, 5 F.3d 464 (10th Cir. 1993). At trial, testimony established that defendant possessed the gun on October 23, 1997, in a location that was repeatedly the locus for drug trafficking, next to drug paraphernalia, and physically near defendant. Also, the gun had been procured from Sanders, defendant’s regular source of cocaine during the same period. Thus, the government met its burden of proof regarding possession in proximity to the offense. The burden thus shifted to defendant to show that it was “clearly improbable” that the weapon was connected to the offense. Defendant merely reiterated his denial of knowing possession of the gun at sentencing. Only on appeal did defendant assert that discovery of the gun 24 days after the last known drug activity was too distant to support the § 2D1.1(b)(1) increase. Since this assertion would not have demonstrated clear improbability even if it had been timely presented, the Tenth Circuit affirmed the firearm enhancement. U.S. v. Heckard, 238 F.3d 1222 (10th 2001).
10th Circuit finds sufficient connection between drug and gun found in trunk of car. (284) A roommate testified that defendants asked her to watch their house while they went out of town for several days to buy drugs. Defendants returned to the residence in a Dodge automobile. The next day, police searched the car and found a pistol in the trunk. Defendant Humphrey argued that there was insufficient physical proximity for a § 2D1.1(b)(1) firearm enhancement. The Tenth Circuit ruled that the district court properly found that the gun was connected with the conspiracy. Although no drugs were found in the car, other items connected with the conspiracy were, including drug ledgers. Moreover, the roommate’s testimony tied the car to a drug buying trip that was completed only one day before the gun was found in the car’s trunk. Defendant Regan was liable for Humphrey’s firearm possession. The relationship between Regan and Humphrey was much closer than in U.S. v. Cochran, 14 F.3d 1128 (6th Cir. 1994), where the court rejected an enhancement based on a co-conspirator’s gun possession. U.S. v. Humphrey, 208 F.3d 1190 (10th Cir. 2000).
10th Circuit applies firearm enhancement for guns found in drug house managed by defendant. (284) Defendant pled guilty to managing or controlling a building and making it available for illegal drug activity, in violation of 21 U.S.C. § 856(a)(2). During a search of defendant’s residence, police found a loaded handgun in the living room and a loaded rifle in one of the bedrooms. The Tenth Circuit affirmed a § 2D1.1(b)(1) firearm enhancement. Although neither firearm was located in the same room as the large quantity of crack seized by the officers, both firearms were located in relatively close proximity to that room. Finally, the firearms, drugs and drug paraphernalia were all located inside the house which defendant acknowledged, through his guilty plea, that he possessed and allowed others to use for drug trafficking activity. To the extent defendant was arguing that the government failed to prove he had actual or constructive possession of the firearms, the argument was irrelevant. Because defendant was convicted under § 856(a)(2), he could be held accountable for any reasonably foreseeable activities engaged in by the parties using his house for drug trafficking, including the possession of firearms. U.S. v. Dickerson, 195 F.3d 1183 (10th Cir. 1999).
10th Circuit applies firearm enhancement to defendants who never used or owned guns. (284) Defendant and two of her sons, Adkins and Vaziri, were convicted of drug conspiracy charges. At sentencing, a detective testified that he found a 9mm and a .22 semi-automatic rifle in defendant’s residence. Adkins’s fingerprints were on the .22 and on .22 ammunition recovered from his nearby trailer. Defendant told the detective that the .22 belonged to her nine-year-old son who was not a defendant in the case, and that the 9 mm belonged to Adkins. The detective also testified that Vaziri said that both guns belonged to Adkins, and that two to four weeks before their arrests Adkins had given the guns to Vaziri because Adkins was a convicted felon. The Tenth Circuit affirmed § 2D1.1(b)(1) firearm enhancements for all three conspirators. The guns were recovered from defendant’s residence where all three conspirators had completed drug transactions during the previous two days. The burden fell on defendants to show that it was clearly improbable that the guns were connected with the conspiracy. Although defendant and Vaziri presented convincing evidence that neither ever used or owned guns, that did not establish a lack of connection with the conspiracy. U.S. v. Vaziri, 164 F.3d 556 (10th Cir. 1999).
10th Circuit upholds resentencing even though defendant had served one component of sentence. (284) Defendant was originally convicted of drug and firearms charges. In 1997, upon his habeas petition, the district court vacated his § 924(c)(1) firearms conviction, and resentenced him on the 21 U.S.C. § 846 count, adding two levels under guideline § 2D1.1(b)(1) for possessing a firearm during a drug trafficking crime. The Tenth Circuit rejected defendant’s argument that the court lacked jurisdiction to resentence him because he had already finished serving his § 846 sentence. Four other circuits have concluded that resentencing under these circumstances is permissible. The two sentences were, in essence, “one unified term of imprisonment.” Defendant could not have any legitimate expectation of finality in either sentence until he had fully discharged both. On resentencing, a district court is entitled to revisit a petitioner’s entire sentence, not just the challenged portion of that sentence. U.S. v. Easterling, 157 F.3d 1220 (10th Cir. 1998).
10th Circuit applies enhancement for guns found in close proximity to drugs. (284) Defendant challenged a § 2D1.1(b)(1) enhancement, arguing that the guns in his home had no connection to his drug dealing. The Tenth Circuit affirmed the firearm enhancement because the loaded shotgun was in close proximity to a large quantity of drugs in the headboard of defendant’s bed. Once the government proves that a weapon was found in near proximity to a distributable quantity of illegal drugs, the burden shifts to the defendant to prove that it was highly unlikely that the weapon had anything to do with the drug offense. Although in many cases the weapon will be involved with some sort of illegal transaction, it is not necessary for the government to show that drugs and money changed hands near the weapon. The weapon may simply serve as a potentially deadly means of protecting the trafficker’s goods, thereby increasing the danger of violence. U.S. v. Flores, 149 F.3d 1272 (10th Cir. 1998).
10th Circuit holds mandate permitted court to resentence drug counts. (284) Defendant was originally convicted of drug and firearms charges. On appeal, the Tenth Circuit reversed the § 924(c) conviction and remanded for a new trial on this charge. The opinion stated that “[t]he convictions and sentences are AFFIRMED in all other respects.” The government decided not to retry defendant on the gun charge. At the government’s request, the district court then resentenced defendant on the remaining drug crimes and applied a § 2D1.1(b)(1) enhancement for the gun. This increased his sentence for the drug crimes from 188 months to 235 months. Defendant argued that the language of the appellate court opinion specifically limited the district court’s power and that the court had no authority, on remand, to adjust his sentence on the remaining charges. The Tenth Circuit held that the mandate did not limit the court’s authority to resentence defendant on the remaining drug counts. A district court has inherent discretionary power to expand the scope of resentencing beyond the issue that resulted in the reversal and vacation of the sentence. An appellate opinion must specifically limit a district court’s authority to resentence on remand. The mandate here did not contain the needed specificity. Judge McKay dissented. U.S. v. Hicks, 146 F.3d 1198 (10th Cir. 1998).
10th Circuit approves gun increase for weapons used by co-defendants to protect meth lab. (284) Defendant lived with the leaders of a methamphetamine conspiracy and cooked methamphetamine for them. The district court applied a § 2D1.1(b)(1) enhancement based on the loaded guns found in the residence where defendant lived and in the lab where he worked. None of the guns were registered to defendant, and his fingerprints were not found on any of them. The Tenth Circuit ruled that the proximity of a loaded semiautomatic firearm to the entrance of the drug lab was sufficient to support the § 2D1.1(b)(1) enhancement. Defendant did not show it was clearly improbable the weapon was connected with his offense. Personal possession of a firearm is not necessary to support the enhancement. A sentencing court may attribute to a defendant weapons possessed by his co-defendants if the possession of weapons was known to the defendant or reasonably foreseeable by him. U.S. v. Smith, 131 F.3d 1392 (10th Cir. 1997).
10th Circuit increases for guns found in car used to transport drugs and at site of drug deal. (284) Defendant was convicted of two counts of distributing crack cocaine. A cooperating witness told police that defendant was in possession of two assault rifles during two meetings with a confidential informant. During an execution of several search warrants, police found both guns, loaded, in a car that was used to transport drugs. They also found a loaded .44 caliber pistol at the site of one of the drug transactions between defendant and the cooperating witness. The Tenth Circuit affirmed a § 2D1.1(b)(1) enhancement because it was not clearly improbable that these guns were connected with defendant’s drug distribution. U.S. v. McCloud, 127 F.3d 1284 (10th Cir. 1997).
10th Circuit affirms increase for gun in locked glove box of car in which defendant was riding. (284) During a traffic stop, police seized a pound of cocaine base and a firearm from the glove compartment of a car defendant rented and in which he was a front seat passenger. Defendant argued that there was insufficient evidence linking him to the weapon, since the glove compartment was locked, the arresting officer did not find the key when he searched the occupants, and another occupant claimed ownership of the gun. The Tenth Circuit affirmed a § 2D1.1(b)(1) enhancement. Defendant had rented the car, was a front seat passenger, and the gun had been stolen. U.S. v. McKneely, 69 F.3d 1067 (10th Cir. 1995).
10th Circuit upholds firearm enhancement based on proximity of loaded gun to drugs. (284) Defendant participated with several others in shipping large quantities of marijuana. On numerous occasions, he permitted his house to be used as a “stash house” for marijuana. Agents searching his house found a loaded rifle under a couch in the living room, and 238 pounds of marijuana in an attached garage about 25 feet from the gun. They also found marijuana residue in a closet in the house. Defendant told the agents the gun was for “personal home protection.” The Tenth Circuit approved a § 2D1.1(b)(1) enhancement based on the relatively close proximity between the gun and the valuable stash of marijuana, the unusual and potentially dangerous location of the gun, and the fact that the weapon was immediately accessible and loaded. These factors supported the district court’s conclusion that defendant’s possession was related to the drug offense. U.S. v. Contreras, 59 F.3d 1038 (10th Cir. 1995).
10th Circuit upholds firearm enhancement for drug dealer who exchanged drugs for gun. (284) Defendant was convicted of a drug conspiracy. The Tenth Circuit upheld a § 2D1.1(b)(1) enhancement based on evidence that he bought a gun from a customer with “fifty dollars worth of dope.” Defendant acquired the weapon by virtue of his drug trafficking activity. The exchange established a temporal and spatial relationship between the weapon, the drug trafficking activity, and the defendant. Defendant made no attempt to show that the weapon’s relationship to the offense was “clearly improbable.” U.S. v. Robertson, 45 F.3d 1423 (10th Cir. 1995).
10th Circuit approves firearm enhancement based on mere proximity between gun and drugs. (284) Police seized a loaded .30 caliber rifle, next to defendant’s bed. Near the bed was a dresser where an ounce of methamphetamine was found. The Tenth Circuit approved a firearm enhancement under § 2D1.1(b)(1) based solely on the proximity between the gun and the drugs. The enhancement may be based on mere possession of a gun even if there is no evidence other than proximity to suggest that the gun is connected to the drug offense. Once the government proves possession, mere proximity is sufficient unless it is “clearly improbable” that the gun is connected to the offense. The defendant bears the burden of showing that the connection is clearly improbable. Defendant presented no such evidence. U.S. v. Johnson, 42 F.3d 1312 (10th Cir. 1994).
10th Circuit upholds firearm enhancement based on gun found at defendant’s house. (284) Police arrested defendant on drug charges and found a partially loaded gun in defendant’s bedroom. Defendant challenged a § 2D1.1(b)(1) enhancement, arguing that there was no evidence that any drug transactions took place at his residence. The Tenth Circuit approved the enhancement. During the search of his residence, police found amounts of marijuana, consistent with distribution purposes, drug paraphernalia, and methamphetamine. Moreover, the government presented evidence that the residence was used in furtherance of the drug business through both telephonic communications and actual meetings. U.S. v. Earls, 42 F.3d 1321 (10th Cir. 1994).
10th Circuit upholds enhancement based on boyfriend’s firearm possession. (284) Defendant challenged a firearm enhancement under guideline section 2D1.1(b)(1) on the ground that her boyfriend was acquitted of firearm charges under 18 U.S.C. § 924(c). The 10th Circuit upheld the enhancement, since defendant accompanied her boyfriend in many of his dealings and knew he kept a weapon with his drugs in the duffel bag he always carried. That knowledge and her presence, standing alone, balanced the reasonable foreseeability equation of section 2D1.1(b)(1) and 1B1.1. The court rejected defendant’s invitation to require more than a preponderance of the evidence to support the increase. Unlike the evidentiary threshold necessary for a conviction under section 924(c), the guidelines require only a preponderance of the evidence to support fact-bound determinations. U.S. v. Roberts, 14 F.3d 502 (10th Cir. 1993).
10th Circuit upholds enhancement for gun in apartment even though drugs sold in parking lot. (284) Defendant was convicted of selling cocaine in a parking lot. In its original opinion, the 10th Circuit rejected a firearm enhancement under § 2D1.1(b)(1) for the loaded revolver found in defendant’s apartment. But on rehearing, the 10th Circuit upheld the enhancement, since defendant had distributed drugs from his apartment on other occasions. These sales were part of the same course of conduct or common scheme or plan as the offense of conviction, and thus were relevant conduct. “Offense” under sections 2D1.1(b)(1) and 1B1.1 refers to the offense of conviction and all relevant conduct. The district court could properly conclude that defendant possessed a firearm in his apartment during the course of his drug distribution activities. U.S. v. Roederer, 11 F.3d 973 (10th Cir. 1993).
10th Circuit upholds enhancement based on firearm near seized marijuana plants. (284) The 10th Circuit upheld an enhancement under section 2D1.1(b)(1) based on defendant’s possession of a shotgun in proximity to seized marijuana plants. The government bears the burden of proving by a preponderance of the evidence the defendant’s possession of a dangerous firearm. Once that burden has been met, the defendant bears the burden of proving that it was clearly improbable that the weapon was connected to the offense. U.S. v. Jackson, 11 F.3d 953 (10th Cir. 1993).
10th Circuit upholds enhancement based on agent’s observation of weapons at drug sale. (284) A government agent testified that during a drug sale, he saw firearms in the waistbands of defendant’s co-conspirators and the barrel of a gun sticking out from around a corner in close proximity to the drug sale. Based on this testimony, the 10th Circuit affirmed an enhancement for possessing a firearm during a drug trafficking offense. U.S. v. Reed, 1 F.3d 1105 (10th Cir. 1993).
10th Circuit upholds firearm enhancement despite acquittal on §924(c)(1) charges. (284) The 10th Circuit held that defendant’s acquittal of 18 U.S.C. §924(c)(1) charges did not bar a sentencing enhancement under §2D1.1(b)(1) for possession of a firearm during a drug trafficking offenses. Considering that the firearm was found in defendant’s backpack at the residence where marijuana was grown and that he possessed a shell matching that weapon at the time of the arrest, the enhancement was proper. U.S. v. Occhipinti, 998 F.2d 791 (10th Cir. 1993).
10th Circuit upholds firearm enhancement despite lack of evidence other than proximity to drugs. (284) Defendant received an enhancement under section 2D1.1(b)(1) based on a handgun found in the bedroom dresser in the apartment where defendant negotiated a drug sale. The 10th Circuit affirmed. The government met its burden by proving by a preponderance of the evidence that the gun was proximate to the offense, and defendant presented no evidence that it was clearly improbable that the gun was connected to the offense. U.S. v. Chatman, 994 F.2d 1510 (10th Cir. 1993).
10th Circuit affirms firearm enhancement based on co-conspirator’s weapon possession. (284) The 10th Circuit affirmed an adjustment under section 2D1.1(b)(1) for carrying firearms in the course of a drug transaction. A co-conspirator brought a weapon to the drug transactions, and under section 1B1.3(a)(1), defendant may be responsible for the conduct of others. Moreover, after their arrest, a second weapon was found on the floor of the passenger’s side of the front seat of the vehicle in which the conspirators were riding, at defendant’s feet. U.S. v. Brantley, 986 F.2d 379 (10th Cir. 1993).
10th Circuit says co-defendant’s firearm possession was reasonably foreseeable. (284) Defendant received an enhancement under section 2D1.1(b)(1) based upon his co-defendant’s possession of a firearm. At defendant’s first appeal, the 10th Circuit affirmed that a section 2D1.1(b)(1) enhancement could be based on a co-defendants’ possession of a firearm if the defendant knew of such possession or such possession was reasonably foreseeable to defendant. On remand, the district court reimposed the firearm enhancement. The 10th Circuit affirmed that there was sufficient evidence that defendant could reasonable foresee his co-defendants’ possession of the firearms. A number of firearms were found at various marijuana farms that defendant supervised. More importantly, one of defendant’s co-conspirators was in possession of a firearm at the time of his arrest. Moreover, several other loaded firearms were discovered out in open at one of the farms from where three co-conspirators were fleeing at the time of their arrest. U.S. v. Underwood, 982 F.2d 426 (10th Cir. 1992), abrogated on other grounds by U.S. v. Jones, 235 F.3d 1231 (10th Cir. 2000).
10th Circuit upholds firearm enhancement based upon weapons’ mere proximity to drugs. (284) Police seized marijuana, drug paraphernalia and three unloaded weapons from defendants’ home. Defendants argued that because the government presented no evidence linking the weapons to their offenses, an enhancement under section 2D1.1(b)(1) was improper. The 10th Circuit held that the plain language of section 2D1.1(b)(1) and its commentary permit a trial judge to enhance a drug defendant’s sentence for mere possession of a dangerous weapon even if there is no evidence other than proximity to suggest the gun was connected to the offense. The government bears the burden of proving possession by a preponderance. Once the government has met that burden, the commentary creates an exception if the evidence suggests that it is clearly improbable that the gun was connected to the offense. The defendant must show that the exception applies to him. The exception was not applicable here. U.S. v. Roberts, 980 F.2d 645 (10th Cir. 1992).
10th Circuit affirms firearm enhancement despite acquittal on related charges. (284) The 10th Circuit, following U.S. v. Coleman, 947 F.2d 1424 (10th Cir. 1991), affirmed an enhancement under section 2D1.1(b)(1) even though defendant was acquitted of possessing a firearm in connection with a drug trafficking offense. U.S. v. Martinez, 979 F.2d 1424 (10th Cir. 1992).
10th Circuit says that acquittal on firearms offense does not bar 2D1.1(b) enhancement. (284) The 10th Circuit held that defendant’s acquittal on charges of using or carrying a firearm during a drug trafficking crime did not preclude an enhancement under section 2D1.1(b) for possessing a firearm during a drug trafficking crime. Here, the enhancement was proper because defendant had a loaded handgun in his bag when he sold a controlled substance to a government informant. U.S. v. Eagan, 965 F.2d 887 (10th Cir. 1992).
10th Circuit affirms firearm enhancement despite acquittal on section 924(c) charges. (284) The 10th Circuit affirmed an enhancement under guideline section 2D1.1(b)(1) despite defendant’s acquittal on charges of violating 18 U.S.C. section 924(c). The standard to convict on section 924(c) is much higher than that necessary for an enhancement under the guidelines. It was not clearly improbable that the weapons were connected to the drug trafficking offense. Marijuana cultivation was occurring near defendant’s house. Near the door of the house leading to the carport, officers found a loaded rifle. In defendant’s truck, which had been used for marijuana cultivation, officers discovered a loaded rifle of which defendant’s son admitted ownership. Finally, near the shed where the tractor which had been used for the cultivation was parked, officers discovered another son’s loaded rifle. U.S. v. Morehead, 959 F.2d 1489 (10th Cir. 1992).
10th Circuit holds defendant waived question of scienter for weapon possession by failing to raise it below. (284) Defendant asserted for the first time on appeal that his enhancement under section 2D1.1(b)(1) for possessing a weapon during a drug trafficking crime was improper because he lacked the requisite scienter. Under the pre-November 1989 guidelines in effect when defendant committed his offense, a finding of scienter was required to support an adjustment under section 2D1.1(b)(1). Under the present guidelines scienter is not required. The 10th Circuit ruled that defendant’s failure to raise the scienter issue below constituted a waiver of his right to challenge it on appeal. Defendant’s knowledge is a factual issue which would be reviewed under the clearly erroneous standard had defendant raised it below. A factual dispute concerning the applicability of a particular guideline, not brought to the attention of the district court, does not rise to the level of plain error. U.S. v. Saucedo, 950 F.2d 1508 (10th Cir. 1991), abrogated on other grounds by Stinson v. U.S., 508 U.S. 36, 113 S.Ct. 1913 (1993).
10th Circuit upholds firearms enhancement despite acquittal on firearms charge. (284) The 10th Circuit upheld an enhancement under guideline section 2D1.1(b) despite defendant’s acquittal of carrying a firearm in connection with a drug trafficking crime. There was evidence that two guns had been located for several days at the arrest scene; that they were handled at will by those persons who lived at the apartment; and that they were kept for the protection of the conspiracy participants and the money and the cocaine. That the jury did not convict the defendant of possessing the weapon during a drug trafficking crime did not bar the sentencing judge from considering this evidence. U.S. v. Coleman, 947 F.2d 1424 (10th Cir. 1991).
10th Circuit affirms enhancement based upon co-defendant’s possession of firearm. (284) When police stopped a vehicle containing three men, defendant jumped out of the back seat and ran. Just prior to being caught, he threw a small bag of cocaine into a tree. One of the passengers of the vehicle told police he knew there was a handgun on the floor of the automobile between the front seats. The 10th Circuit affirmed a sentence enhancement based upon the co-defendant’s possession of the gun. A sentencing court may attribute to a defendant a weapon possessed by a co-defendant if the possession of the weapon was known to the defendant or reasonably foreseeable by him. Here, one of the passengers stated he had participated in the transaction as a show of force, he knew the gun was available in the front seat of the automobile, and he knew a drug deal was taking place. It was not clearly erroneous for the district court to find that defendant was aware of his co-defendant’s possession of the weapon or that such possession was reasonably foreseeable. U.S. v. McFarlane, 933 F.2d 898 (10th Cir. 1991).
10th Circuit upholds enhancement based upon co-conspirator’s possession of a firearm. (284) Defendant and a co-defendant drove the co-defendant’s truck to Arizona to purchase cocaine. After purchasing the cocaine defendant drove the truck back home while the co-defendant drove the cocaine to Las Vegas. A search of defendant’s truck uncovered a handgun in the co-defendant’s luggage. Defendant’s offense level was enhanced under guideline § 2D1.1(b)(1) based upon his co-defendant’s possession of the weapon during a drug trafficking offense. The 10th Circuit affirmed. Defendant admitted he knew that his co-defendant possessed the gun during their trip to Arizona. The fact that defendant may have been unaware that the gun was in the co-defendant’s luggage at the time of defendant’s arrest did not change the analysis. The 10th Circuit also rejected defendant’s contention that the selective application of § 2D1.1 to him and not to certain other co-defendants violated due process. These co-conspirators were not as actively involved in the drug transaction, and did not have actual knowledge that the gun was present. U.S. v. Goddard, 929 F.2d 546 (10th Cir. 1991).
10th Circuit upholds firearms enhancement for defendant who maintained crack house. (284) Defendant’s offense level was increased by two under guideline § 2D1.8 for possession of a firearm during the commission of the offense of maintaining a crack house. The 10th Circuit upheld the enhancement. Testimony placed defendant with the packaging for two semi-automatic firearms in a motel room from which drugs were distributed. There was also testimony that defendant was present in a stolen automobile containing the firearms, and with co-defendants who selected and arranged the purchase of the weapons, although he was not with them when the weapons were actually purchased. There was also testimony that the weapons were purchased to provide protection during the drug sales. The district court was “entitled, if not required,” to attribute to defendant weapons possessed by the co-conspirators. U.S. v. St. Julian, 922 F.2d 563 (10th Cir. 1990).
11th Circuit rejects safety valve relief for defendant who sold firearms and drugs to drug dealer. (284) Defendant was a drug dealer who also sold firearms. Although he received a § 2D1.1(b)(1) firearm enhancement, he argued that he was still entitled to safety valve relief, because he did not possess the firearms “in connection with” the charged drug offense. The Eleventh Circuit disagreed. Defendant had the burden of negating a connection, but he produced no evidence. Given the number and unusual types and firearms that defendant sold to Jones, the fact that defendant was not selling user quantities of drugs to Jones, and the duration and constant reiteration of Jones’s interest in both drugs and guns, it was clear that defendant knew he was selling firearms to a drug dealer. Moreover, on one date, defendant sold both meth and firearms to Jones. Although there was no evidence that the guns were loaded or that defendant felt he might need a firearm to protect himself against Jones, the proximity of the guns to the drugs alone had the potential to facilitate the offense. U.S. v. Carillo-Ayala, 713 F.3d 82 (11th Cir. 2013).
11th Circuit rules increase for possession of firearm was not improper double counting. (284) Defendant pled guilty to being a felon in possession of a firearm. Section 2K2.1(c)(1)(A) provides that if the defendant possessed the firearm in the attempted commission of another offense, the court should calculate the offense level under § 2X1.1, and apply the greater of the two resulting offense levels. Section 2X1.1(c) instructs the court to apply the guideline for the substantive offense, here § 2D1.1. Accordingly, the district court applied a two-level enhancement under § 2D1.1(b)(1) for possessing a firearm during the drug offense. This resulted in an offense level under § 2D1.1 that was greater than the one calculated under § 2K2.1. The Eleventh Circuit held that the § 2D1.1(b)(1) firearm enhancement was not improper double counting. The Sentencing Commission intended the enhancement to apply. The guidelines instruct the court to apply § 2D1.1 in its entirety, including any enhancements. U.S. v. Webb, 665 F.3d 1238 (11th Cir. 2012).
11th Circuit upholds increase where co-conspirators used firearm to collect drug debt. (284) Defendant pled guilty to conspiracy to distribute marijuana. The Eleventh Circuit upheld a § 2D1.1(b)(1) enhancement based on defendant’s constructive possession of a firearm. Salinas, a fellow drug dealer, attested to the presence of two semi-automatic firearms on a table in a marijuana stash house controlled by defendant. In addition, there was evidence to support a finding that defendant’s co-conspirator possessed a firearm that could be attributed to defendant. Smith, one of defendant’s marijuana customers, testified that defendant had “sent some guys up to take collections” for debts Smith owed to defendant. Smith further testified that these collectors would carry “firearms” or “a gun.” Defendant could have reasonably foreseen that his drug-debt collectors would use a firearm to collect payment. U.S. v. Villarreal, 613 F.3d 1344 (11th Cir. 2010).
11th Circuit upholds firearm enhancement even though defendant did not participate in robbery in which drugs were stolen. (284) Defendant was convicted of possessing MDMA (ecstasy) with intent to distribute. The ecstasy was obtained in one of a series of home invasions in the Atlanta area that was committed by defendant and his co-conspirators, although defendant did not personally participate in the home invasion from which this ecstasy was stolen (the Ogburn robbery). The Eleventh Circuit upheld a §2D1.1(b)(1) enhancement for use of firearms during the robbery of an ecstasy dealer. Although defendant did not personally participate in the Ogburn robbery, he had participated in four or five home invasion robberies before this robbery, and he participated with his co-conspirators in a second home invasion of Ogburn’s home one month later. There was no dispute that all of the home invasions committed by this group of co-defendants involved the use of at least one, and often several, firearms. It was reasonably foreseeable that defendant’s co-conspirators used firearms in the Ogburn robbery. U.S. v. Barner, 572 F.3d 1239 (11th Cir. 2009).
11th Circuit affirms firearm increase based on police officer/co-conspirator’s possession of service revolver. (284) Defendants were involved in a large cocaine distribution operation in which kilogram size bricks of cocaine were sold from a duplex in Miami. Two Miami police officers, including Lopez, were involved in the operation. They challenged a § 2D1.1(b)(1) firearm increase based on Lopez’s possession of a firearm. They argued that it was not reasonably foreseeable that Lopez’s possession of a gun was in furtherance of the conspiracy because Lopez was required to carry his firearm because was a police officer. The Eleventh Circuit rejected that argument. There was evidence that Lopez, while armed, provided protection for and escorted co-conspirators to and from the duplex while they were transporting drugs or drug proceeds. U.S. v. Novaton, 271 F.3d 968 (11th Cir. 2001).
11th Circuit applies firearm increase to armed INS agent who escorted drug couriers through airport. (284) Defendant, an immigration inspector at the Miami airport, helped drug traffickers smuggle drugs into the country. On two occasions, defendant met one smuggler at the jet way and escorted him through the airport in order to avoid Customs agents and INS agents. Defendant was in his uniform on both occasions, and carried a firearm. The Eleventh Circuit upheld a § 2D1.1(b)(1) firearm increase. The government was not required to prove that the firearm was used to facilitate the distribution of drugs. Defendant’s possession of the firearm was not irrelevant. A personal escort by an armed INS agent greatly increases the chances for successful drug trafficking. Thus, it was safe to assume that defendant’s presence, which included the presence of a firearm, was very important to the smuggler. Moreover, the smuggler, who also worked at the airport, testified that defendant was armed “at times” while he was in uniform. Thus, defendant was not required to be armed on the occasions that he escorted the smuggler through the airport, but exercised discretion in choosing to be armed on those occasions. U.S. v. Audain, 254 F.3d 1286 (11th Cir. 2001).
11th Circuit applies enhancement where gun and drugs found in shared hotel room. (284) Defendant and two others were arrested as they entered a shared hotel room. Police found drugs, drug paraphernalia, cash and a revolver in the hotel room. They also found drugs, drug paraphernalia and cash on the individuals they arrested. Defendant challenged a § 2D1.1(b)(1) enhancement on the grounds that the government did not demonstrate that the revolver found in the hotel room belonged to him or that the revolver was connected to the underlying offense. The Eleventh Circuit affirmed the enhancement. Even if the gun belonged to a co-conspirator rather than defendant, the adjustment was proper because the two were co-conspirators with equal dominion over the room where the gun was found. The gun was sufficiently connected to the offense. Note 3 states that the enhancement should be applied if the weapon was present, unless it is clearly improbable that the weapon was connected with the offense. The revolver was found in the hotel room directly under packaged bricks of marijuana, suggesting an active connection with the drug enterprise that defendant did not rebut. U.S. v. Cooper, 203 F.3d 1279 (11th Cir. 2000).
11th Circuit says co-conspirator’s gun possession must be reasonably foreseeable. (284) Defendant received a § 2D1.1(b)(1) enhancement because two of her co-conspirators possessed guns during the course of the drug conspiracy. Defendant argued that a “reasonable foreseeability” finding was required for a § 2D1.1 enhancement based on co-conspirator conduct. The district court applied the enhancement without addressing the issue. The Eleventh Circuit held that a § 2D1.1(b)(1) enhancement based on a co-conspirator’s firearm possession requires a finding that such possession was reasonably foreseeable. Reasonable foreseeability is not specifically mentioned in the three-part test in U.S. v. Otero, 890 F.2d 366 (11th Cir. 1989) for a § 2D1.1(b)(1) enhancement based on co-conspirator conduct (possessor charged as a co-conspirator; co-conspirator possessed gun in furtherance of conspiracy; and defendant was member of conspiracy at time of possession). However, later cases have consistently read Otero to contain such a requirement. Moreover, even if Otero did not contain a reasonable foreseeability requirement, that holding would be in conflict with the plain language of § 1B1.3(a)(1)(B) subsequently adopted by the Sentencing Commission. U.S. v. Gallo, 195 F.3d 1278 (11th Cir. 1999).
11th Circuit approves firearm enhancement for guns found at house during drug sale. (284) The evidence established the presence of two .357 magnum revolvers at defendant’s residence during a drug sale to Brand. A 9 mm semi-automatic pistol with extra magazines and ammunition was also recovered from defendant’s residence during the search, along with materials used in drug trafficking. Once the government showed by a preponderance of the evidence that the weapon was “present at the site of the charged conduct,” the burden shifted to defendant to demonstrate that a connection between the firearms and the offense was “clearly improbable.” Because defendant failed to show that such a connection was clearly improbable, the Eleventh Circuit held that the district court did not err in imposing a § 2D1.1(b)(1) enhancement. U.S. v. Diaz, 190 F.3d 1247 (11th Cir. 1999).
11th Circuit upholds firearm enhancement based on co-conspirator’s weapon possession. (284) Defendants relied on U.S. v. Henderson, 75 F.3d 614 (11th Cir. 1996) to argue that a § 2D1.1(b)(1) firearm enhancement is inappropriate when a defendant has been convicted of firearms charges under 18 U.S.C. § 924(c). The Eleventh Circuit found Henderson distinguishable because unlike defendants’ situation here, Henderson had no co-conspirators. The note in § 2K2.4 forbids the firearm enhancement for a defendant’s possession of the weapon in the event of a § 924(c) conviction, since punishment has been meted out in the § 924(c) sentence. However, the note does not suggest that enhancement for a separate weapons possession, such as that of a co-conspirator, is prohibited. U.S. v. Gonzalez, 183 F.3d 1315 (11th Cir. 1999).
11th Circuit says gun at site of relevant conduct supported firearm enhancement and grouping. (284) Defendant sold several grams of amphetamine from his car to an informant. At defendant’s house, located almost 100 miles away from the scene of the arrest, police found drug paraphernalia and five guns, but no drugs. The district court found that defendant was engaging in drug trafficking from his home, and such conduct was relevant. The district court grouped four drug charges with a gun charge under § 3D1.2 as counts “involving substantially the same harm.” Multiple counts involve substantially the same harm “when one of the counts embodies conduct that is treated as a specific offense characteristic” of another of the counts. USSG § 3D1.2(c). A firearm is a specific offense characteristic of a drug count under § 2D1.1(b) (1). The Eleventh Circuit held that the grouping was proper because the presence of the gun at the site of relevant conduct, located almost 100 miles away, supported a § 2D1.1(b) (1) firearm enhancement. Under U.S. v. Smith, 127 F.3d 1388 (11th Cir. 1997), the firearm enhancement applies “whenever a firearm is possessed during conduct relevant to the offense of conviction.” There was ample evidence for the district court to conclude that the drug paraphernalia found in defendant’s home was part of the same course of conduct as the offense of conviction. U.S. v. Hunter, 172 F.3d 1307 (11th Cir. 1999).
11th Circuit holds that co-conspirators’ firearm possession satisfied Otero. (284) Under U.S. v. Otero, 890 F.3d 366 (11th Cir. 1989), a defendant can receive a § 2D1.1(b)(1) enhancement based on a co-conspirator’s possession of a gun if (1) the actual possessor is charged as a co-conspirator; (2) the co-conspirator possessed the firearm in furtherance of the conspiracy; and (3) the defendant who receives the enhancement was involved in the conspiracy at the time of possession. The Eleventh Circuit held that three drug defendants were properly held accountable for guns possessed by co-conspirators during the course of the conspiracy. One co-conspirator was videotaped holding a gun during one drug transaction, and he later testified that guns were carried for protection. Nineteen guns were recovered from another co-conspirator’s home, the focal point of many of the largest deals; the police found a loaded gun next to a quantity of crack cocaine under the sofa cushion on which one defendant was sleeping when he was arrested; and another co-conspirator gave his runners guns to protect their cocaine cargo. This evidence established all three prongs of the Otero test. U.S. v. Matthews, 168 F.3d 1234 (11th Cir. 1999).
11th Circuit upholds resentencing drug counts after vacating firearm conviction. (284) Defendants successfully argued in their § 2255 motion that their § 924(c) convictions were invalid. The court ordered resentencing to determine whether their remaining sentences should be enhanced under § 2D1.1(b)(1) for possession of a gun during a drug trafficking crime. The Eleventh Circuit, relying on U.S. v. Mison, 115 F.3d 900 (11th Cir. 1997), upheld the court’s authority to resentence on the drug counts after vacating the firearms conviction. The case cited by defendant was a pre-guidelines case. U.S. v. Oliver, 148 F.3d 1274 (11th Cir. 1998).
11th Circuit applies firearm enhancement even though gun was in office separate from cocaine. (284) FBI and drug agents watched as conspirators carried 300 kilograms of cocaine to a warehouse. In the warehouse, police found 75 of the 300 kilograms of cocaine. Additional searches revealed a hidden door to a marijuana growing lab and the missing 225 kilograms of cocaine under a work bench. In an office separate from where the cocaine was found was a leather pouch containing a loaded pistol and a concealed weapon permit belonging to defendant. The Eleventh Circuit affirmed a § 2D1.1(b)(1) firearm enhancement based on the gun found in the warehouse. Although the gun was in an office separate from the cocaine, it still was “present” in the warehouse while defendant involved himself with the cocaine transaction. The fact that the gun was in the office and defendant carried the gun legally as a security guard did not make it “clearly improbable” that the gun was connected to the drug transaction. U.S. v. Trujillo, 146 F.3d 838 (11th Cir. 1998).
11th Circuit affirms firearm enhancement based on co-conspirators’ gun possession. (284) Defendant and his ex-wife engaged in an extensive marijuana distribution conspiracy involving thousands of pounds of marijuana. The Eleventh Circuit affirmed a § 2D1.1(b)(1) firearm enhancement based on a co-conspirator’s testimony that guns were prevalent during a 600-700 pound marijuana transaction. The possession of firearms by defendant’s co-conspirators made this enhancement applicable. U.S. v. Alred, 144 F.3d 1405 (11th Cir. 1998).
11th Circuit upholds enhancement for possessing gun during drug relevant conduct. (284) On October 25, 1995, defendant sold drugs to an informant. He was arrested three months later on January 16, 1996. At the time of the arrest, police found a loaded semi-automatic gun on the driver’s seat of the car he was driving. A passenger in the car also had a loaded gun in his jacket. Police also found a rock of crack cocaine in the car and eight slabs of crack behind defendant’s house. Defendant pled guilty to charges stemming from the October 25 sale of cocaine. He argued that a § 2D1.1(b)(1) enhancement was improper because the gun had not been in his possession at that time. The Eleventh Circuit held that a § 2D1.1(b)(1) enhancement can be based on the possession of a gun during relevant conduct. The court acknowledged that U.S. v. Bennett, 928 F.2d 1548 (11th Cir. 1991) held that the weapon must be possessed during the offense of conviction. But in November 1991, after Bennett was decided, the guideline was amended to delete this restriction. Now, the enhancement is authorized if the weapon was possessed during the offense of conviction or during related relevant conduct. U.S. v. Smith, 127 F.3d 1388 (11th Cir. 1997).
11th Circuit approves firearm enhancement based on weapons found in stash house. (284) Police arresting defendant and others on drug charges found drugs and three weapons in a house. Two of the weapons were found in a room that was deadbolt locked, and the other weapon was in a bedroom that contained some of defendant’s clothing and personal belongings. The Eleventh Circuit approved a § 2D1.1(b)(1) firearm enhancement based on a co-conspirator’s possession of the weapons. The evidence established that a co-conspirator purchased the guns that were found at the house. The house was a stash house which contained about 2,000 kilograms of cocaine and $1.6 million, thus substantiating the fact that the firearm was possessed in furtherance of the conspiracy. The co-conspirator did not need to have been found guilty of a firearms charge; a sentencing court need only find for sentencing purposes that a co-conspirator possessed a firearm in furtherance of the conspiracy while the defendant was a member of that conspiracy. U.S. v. Reid, 69 F.3d 1109 (11th Cir. 1995).
11th Circuit enhances sentence for co-conspirator’s firearm, despite defendant’s 924(c) conviction. (284) Defendant pled guilty to drug charges and using a firearm during a drug trafficking offense, in violation of 18 U.S.C. § 924(c). He received a § 2D1.1(b)(1) enhancement based on a co-conspirator’s possession of a weapon. He argued that note 2 to § 2K2.4 prohibits the enhancement where a § 924(c) sentence is imposed. The Eleventh Circuit held that the note only bars the enhancement for the defendant’s possession of the weapon that is the subject of the § 924(c) charge, and does not bar an enhancement based on a separate weapons possession, such as that of a co-conspirator. U.S. v. Rodriguez, 65 F.3d 932 (11th Cir. 1995).
11th Circuit affirms § 2D1.1(b)(1) enhancement for gun found in trailer used for drying and storing marijuana. (284) Defendant lived in a trailer on property used to grow marijuana. The district court imposed a § 2D1.1(b)(1) enhancement based on a loaded .9 millimeter pistol found in the trailer. The Eleventh Circuit affirmed, since defendant admitted that he used the back room of his trailer for drying marijuana and admitted that he stored marijuana in a refrigerator in the trailer and in a freezer on the porch of the trailer. It was not “clearly improbable” that the pistol was connected with the offense. U.S. v. Fernandez, 58 F.3d 593 (11th Cir. 1995).
11th Circuit affirms firearm enhancement even though co-conspirator was never charged with gun possession. (284) Defendant received a § 2D1.1(b)1) enhancement based on a co-conspirator’s gun possession. He argued that the three-prong test in U.S. v. Otero, 890 F.3d 366 (11th Cir. 1989) for the enhancement based on a co-conspirator’s gun possession was not met, since the co-conspirator was not charged with using and carrying a firearm in relation to a drug trafficking offense. The Eleventh Circuit held that a co-conspirator need not be found guilty of firearms charges to warrant the enhancement. The sentencing court need only make a factual finding that a co-conspirator possessed the firearm in furtherance of the conspiracy while the defendant was a member of that conspiracy. That was the case here. U.S. v. Delgado, 56 F.3d 1357 (11th Cir. 1995).
11th Circuit upholds firearm enhancement based on proximity of gun to drug-related items. (284) Police executing a search warrant at defendant’s house found a firearm. Defendant challenged a § 2D1.1(b)(1) enhancement, arguing that the gun was unrelated to his drug offense. The Eleventh Circuit upheld the enhancement based on the proximity of the gun to drug-related items. Agents found the gun and the drug-related items in defendant’s residence, where he engaged in conspiratorial conversations. Defendant did not present any evidence to suggest that a connection between the gun and his drug offense was clearly improbable. U.S. v. Hansley, 54 F.3d 709 (11th Cir. 1995).
11th Circuit approves firearm enhancement based on proximity of weapon to site of drug offense. (284) Police discovered in defendant’s bedroom a set of scales, a zip lock bag with cocaine residue, a purse containing $12,000, and a gun placed in a dresser drawer next to an undetermined amount of cash. The government presented no evidence showing that the gun was connected with defendant’s drug offense. Defendant argued that a § 2D1.1(b)(1) enhancement could not be based solely on the presence of the gun near the drug-related items. The Eleventh Circuit disagreed, holding that once the government has shown proximity of the firearm to the site of the charged offense, the evidentiary burden shifts to the defense to demonstrate that a connection between the weapon and the offense is “clearly improbable.” Since defendant presented no such evidence, the § 2D1.1(b)(1) enhancement was proper. U.S. v. Hall, 46 F.3d 62 (11th Cir. 1995).
11th Circuit holds defendant accountable for co-conspirator’s firearm possession. (284) The Eleventh Circuit upheld § 2D1.1(b)(1) enhancement based on a co-conspirator’s firearm possession. A defendant’s protestations that he was unaware of a firearm does not upset a finding that the firearm possession was reasonably foreseeable. The district court properly held defendant responsible for the co-conspirator’s possession of a firearm because (1) the co-conspirator was charged as a co-conspirator, (2) defendant was a member of the conspiracy at the time of the firearm possession, and (3) the firearm possession was in furtherance of the conspiracy. U.S. v. Green, 40 F.3d 1167 (11th Cir. 1994).
11th Circuit says defendant need not know of co-conspirator’s firearm possession if it is reasonably foreseeable. (284) Defendant received a § 2D1.1(b)(1) enhancement based on his co-conspirator’s possession of a firearm. He claimed that this was improper because the co-conspirator used the firearm without defendant’s knowledge. The 11th Circuit held that a defendant need not know of a co-conspirator’s firearm possession if its reasonably foreseeable. Here, it was reasonably foreseeable that the co-conspirator would use a firearm to protect the off-loading of 250 kilograms of cocaine. U.S. v. Pessefall, 27 F.3d 511 (11th Cir. 1994).
11th Circuit upholds enhancement for co-conspirator’s firearm possession despite acquittal. (284) Defendant and others were arrested after selling drugs to an informant. Defendant received a firearm enhancement under § 2D1.1(b)(1) because a co-conspirator threw a pistol out of defendant’s car just before they were arrested. The 11th Circuit affirmed despite defendant’s acquittal on firearm charges. Acquitted conduct may be considered because an acquittal represents a lack of proof higher than the preponderance of evidence required for relevant conduct at sentencing. The enhancement based on the passenger’s gun was proper because the passenger was charged as a co-conspirator, the firearm was possessed in furtherance of the conspiracy, and defendant was a member of the conspiracy at the time of the gun possession. U.S. v. Stanley, 24 F.3d 1314 (11th Cir. 1994).
11th Circuit finds co-conspirator’s firearm possession while transporting drugs foreseeable. (284) The 11th Circuit upheld an enhancement under section 2D1.1(b)(1) based on a co-conspirator’s possession of a firearm during a drug trafficking offense. When the co-conspirator was arrested transporting 13 kilograms of newly pressed cocaine, police retrieved a semi-automatic firearm from the back floorboard of his car. At the time of the co-conspirator’s arrest, defendants were members of the conspiracy. Finally, it was reasonably foreseeable that the co-conspirator, in furtherance of the conspiracy, would carry a weapon while transporting the 13 kilograms of cocaine. U.S. v. Freyre-Lazaro, 3 F.3d 1496 (11th Cir. 1993).
11th Circuit upholds enhancement for gun found in apartment where defendant “cooked” cocaine. (284) The 11th Circuit upheld an enhancement for possession of a dangerous weapon during commission of a drug offense. A handgun loaded with six rounds was found in defendant’s apartment on the headboard of the master bed. There was evidence that defendant “cooked” cocaine at the apartment, made deliveries there to a juvenile courier, and when agents found the pistol they also found drug-handling paraphernalia. U.S. v. Jones, 1 F.3d 1167 (11th Cir. 1993).
11th Circuit affirms enhancement based on co-conspirator’s firearm possession. (284) The 11th Circuit affirmed an enhancement under section 2D1.1(b)(1) based on a co-conspirator’s weapon possession. Such an enhancement is proper if (a) the possessor is charged as a conspirator, (b) defendant was a member of the conspiracy at the time of the firearm possession, and (c) the possession was in furtherance of the conspiracy. All of these elements were satisfied in the instant case. U.S. v. Saget, 991 F.2d 702 (11th Cir. 1993).
11th Circuit upholds firearm enhancement based on uncharged co-conspirator’s possession of firearm. (284) In U.S. v. Otero, 890 F.2d 366 (11th Cir. 1989), the court held that a firearm enhancement under section 2D1.1(b) may be based upon a co- conspirator’s possession of a firearm if (a) the possessor was charged as a co-conspirator, (b) the co-conspirator possessed the firearm in furtherance of the conspiracy, and (c) the defendant was a member of the conspiracy at the time of the firearm possession. Defendant received a firearm enhancement based upon two accomplices’ possession of a firearm. Neither accomplice was charged as a co-conspirator since one had died before the conspiracy ended, and the other cooperated with the government in exchange for immunity. The 11th Circuit affirmed the enhancement, holding that the sentencing guidelines do not require that the firearm possessor be charged as a co- conspirator if that co-conspirator dies or is otherwise unavailable for indictment. To the extent the words of the Otero opinion, as distinguished from the decision itself, suggest otherwise, those words are dicta and are not law. Judge Atkins dissented. U.S. v. Nino, 967 F.2d 1508 (11th Cir. 1992).
11th Circuit reaffirms that enhancement may be based on uncharged co-conspirator’s firearm possession. (284) Defendant contended that under U.S. v. Otero, 890 F.2d 366 (11th Cir. 1989), he could not be held accountable for his co- conspirator’s possession of firearms since they were never charged as co-conspirators. Nevertheless, the 11th Circuit affirmed the enhancement. Otero involved identifiable co-conspirators; because their identify was known, they could be charged with conspiratorial activities. In U.S. v. Nino, 967 F.2d 1508 (11th Cir. 1992), decided four days earlier, the court held that the sentencing guidelines do not require that the firearm possession be a charged co-conspirator when that co-conspirator dies or is otherwise unavailable for indictment. Defendant’s fellow conspirators were never identified and therefore were never available for indictment. U.S. v. Louis, 967 F.2d 1550 (11th Cir. 1992).
11th Circuit upholds firearm enhancement based on co-conspirator’s possession of firearm. (284) Defendant argued that an enhancement under section 2D1.1(b)(1) for possessing a firearm during a drug trafficking crime was improper because he was unaware of the two guns stored under the front seat of his co-conspirator’s truck. The 11th Circuit upheld the enhancement. A co-conspirator’s possession of a firearm will support enhancement of a second co-conspirator’s offense level under section 2D1.1(b)(1) if: (a) the firearm possessor was charged as a co-conspirator; (b) the co-conspirator possessed the firearm in furtherance of the conspiracy; and (c) the co-conspirator who is to receive the sentence enhancement was a member of the conspiracy at the time that his-conspirator possessed the firearm. These three prongs were met. The three defendants were convicted of conspiracy to distribute cocaine; two members of the conspiracy were convicted of possession of a firearm during and in furtherance of a drug transaction; and defendant was a member of the cocaine conspiracy when his co-conspirators possessed the firearms. U.S. v. Gates, 967 F.2d 497 (11th Cir. 1992).
11th Circuit finds firearm enhancement proper even if defendants were unaware of co-conspirator’s firearm. (284) The 11th Circuit rejected defendants’ arguments that a sentence enhancement based on their co-conspirator’s possession of a firearm during the commission of a drug offense was improper because they were unaware of the firearm. The district court found that the co-conspirator’s possession of the firearm was reasonably foreseeable. Basing the sentencing enhancement upon proof by a preponderance of the evidence rather than beyond a reasonable doubt did not violate due process. It was not unconstitutional to permit the district court to consider relevant conduct for which the defendant was neither charged nor convicted, so long as proof of that conduct has a reasonable indicia of reliability. U.S. v. Martinez, 924 F.2d 209 (11th Cir. 1991).
11th Circuit upholds enhancement for possession of weapon during drug transaction. (284) The district court found that the defendant was present when a drug transaction was discussed between his mother and the undercover police officer and at that time had in his possession a pistol and a shotgun. The 11th Circuit upheld this finding as not “clearly erroneous.” U.S. v. Shuman, 902 F.2d 873 (11th Cir. 1990).
11th Circuit upholds enhancement of defendant’s sentence for coconspirator’s firearms possession. (284) Defendant argued that his sentence should not have been enhanced under § 2D1.1 because the firearm was possessed by his coconspirator and he was unaware of its presence. The 11th Circuit rejected the argument, holding that enhancement for a coconspirator’s firearms possession is proper if three conditions are met: (1) the possessor must be charged as a coconspirator; (2) the coconspirator must be found to have possessed the firearm in furtherance of the conspiracy; and (3) the defendant must have been a member of the conspiracy at the time of the possession of the firearm. The defendant here met the test. U.S. v. Otero, 890 F.2d 366 (11th Cir. 1989).
D.C. Circuit affirms firearm increase where co-conspirator arrested with gun one hour after crime. (284) Within one hour of arresting defendant and his brother during a reverse sting, DEA agents arrested co-conspirator Smith, who left the crime scene before the conspirators were arrested. Agents discovered a loaded handgun in the glove compartment of the car Smith had driven from the crime scene. It was foreseeable to defendant that Smith would be carrying a firearm in view of the fact that defendant and his brother were purchasing five kilograms of cocaine for $75,000 from a stranger. Accordingly, the D.C. Circuit affirmed a § 2D1.1(b)(1) firearm increase. The district court’s finding that Smith possessed the firearm at the shopping mall where the reverse sting took place was supported by the evidence. U.S. v. Mathis, 216 F.3d 18 (D.C. Cir. 2000).
D.C. Circuit affirms drug quantity, firearm increase, and managerial role for lieutenant in violent drug ring. (284) Defendant participated in a large drug conspiracy. The D.C. Circuit affirmed the attribution of all the drugs in the conspiracy to defendant, a § 3B1.1(b) managerial role enhancement, and a § 2D1.1(b)(1) firearms enhancement. Defendant was a lieutenant in the drug ring who supervised street sellers, was close to some of the ring’s leaders, and engaged in violent activities on behalf of the ring. He delivered guns and handled and oversaw drug runners on the streets. He was convicted of carrying a firearm in the area the ring distributed drugs. There was testimony that at the time of his arrest, there was an ongoing situation with a rival gang over control of the territory. U.S. v. Thomas, 114 F.3d 228 (D.C. Cir. 1997).
D.C. Circuit affirms § 2D1.1(b)(1) enhancement based on defendant’s role in drug ring’s violence. (284) Defendant was involved in a large drug conspiracy. The D.C. Circuit affirmed a § 2D1.1(b)(1) firearm enhancement based on overwhelming evidence of defendant’s role in the drug ring’s numerous acts of violence. On repeated occasions defendant carried a gun while carrying out activities for the ring, and defendant was present on several occasions when the gang sought violent retaliation against rival gangs. Defendant participated in the armed robbery of two purchasers from the conspiracy. U.S. v. Thomas, 114 F.3d 228 (D.C. Cir. 1997).
D.C. Circuit finds defendant was aware of conspiracy’s use of firearms. (284) Defendant participated in a large drug conspiracy. The D.C. Circuit affirmed a § 2D1.1(b)(1) enhancement since defendant was aware of his co-conspirator’s use of firearms in furtherance of the conspiracy. There was abundant evidence that defendant handled large quantities of drugs and that the organization engaged in violent activity involving guns when the organization sought to crush rival drug operations. Although there was no direct evidence that defendant knew that the conspirator who delivered drugs to him was armed, direct evidence was not required. Defendant knew the value of the drugs the conspirator was delivering and was aware of the volume of drugs the conspiracy handled. In one instance, he assisted in removing a bullet lodged in a co-conspirator’s leg after a shootout with a rival gang. Defendant continued to associate himself with the conspirators after this incident. The district court could reasonably conclude that defendant knew that other members of the gang were armed and that the use of guns was reasonable foreseeable given the gang’s repeated violent interchanges with rivals. U.S. v. Thomas, 114 F.3d 228 (D.C. Cir. 1997).
D.C. Circuit remands for gun increase after vacating § 924(c) conviction. (284) Defendant was convicted of drug and firearms charges. One § 924(c)(1) conviction was based on two guns found in the trunk of his car. This conviction was vacated on appeal in light of Bailey v. U.S., 116 S.Ct. 501 (1995), because he did not “actively employ” the guns. The D.C. Circuit remanded for resentencing so that the district court could enhance defendant’s drug sentence for possession of the firearms under § 2D1.1(b)(1). The enhancement is appropriate where, as here, there is sufficient evidence that the defendant possessed a gun during the conspiracy. U.S. v. Harrison, 103 F.3d 986 (D.C. Cir. 1997).