United States v. Alvin McKenzie, Jr.
410 F. App'x 943
6th Cir.2011Background
- McKenzie, a felon, was convicted for being in possession of a firearm in violation of 18 U.S.C. § 922(g) and received a 57-month sentence.
- The district court applied a four-level enhancement under USSG § 2K2.1(b)(6) for possession of a firearm in connection with another felony (marijuana possession) based on proximity.
- Marijuana weighed 1.1 grams, allegedly for personal use, and McKenzie had two prior possession convictions which Tennessee law treated as a felony.
- The marijuana and firearm were found in McKenzie’s car; the firearm was loaded and within reach, and McKenzie claimed it was for protection.
- McKenzie objected to the enhancement, arguing there was no nexus between the firearm and the marijuana offense; the government argued proximity sufficed.
- On appeal, the Sixth Circuit vacated the sentence and remanded for re-sentencing, holding the government failed to prove by a preponderance that the firearm had the potential to facilitate the marijuana offense.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether § 2K2.1(b)(6) requires a nexus showing the firearm facilitated the marijuana offense. | McKenzie argues no nexus; proximity alone is insufficient. | United States contends proximity and emboldening justify the enhancement. | Nexus not proven; vacate and remand. |
| Whether fortress/proximity evidence suffices to apply the enhancement in non-trafficking drug cases. | Government relies on fortress theory to show facilitation. | McKenzie contends facts do not show the gun facilitated the marijuana possession. | Proximity without additional facilitation evidence is insufficient; the enhancement was improper here. |
Key Cases Cited
- Angel v. United States, 576 F.3d 318 (2009) (fortress theory; firearm may facilitate drug offense)
- Bullock v. United States, 526 F.3d 312 (2008) (need nexus by preponderance for § 2K2.1(b)(6))
- Burns v. United States, 498 F.3d 578 (2007) (explained nexus concept for firearm facilitating offense)
- Hardin v. United States, 248 F.3d 489 (2001) (firearms as tools of the trade; context matters)
- Ennenga v. United States, 263 F.3d 499 (2001) (drug stash context with firearms)
- Clay v. United States, 346 F.3d 173 (2003) (gun, drugs, and cash in close proximity; upheld)
- Berkey v. United States, 406 F. App’x 938 (2010) (simple possession can support enhancement when facts show emboldening)
- Jeffries v. United States, 587 F.3d 690 (2009) ( Fifth Circuit; sparse facts may defeat enhancement)
- Jenkins v. United States, 566 F.3d 160 (2009) (possession with gun on public street can support enhancement)
- Regans v. United States, 125 F.3d 685 (1997) (gun with small quantity of heroin; emboldening rationale)