Lead Opinion
Defendant Alvin McKenzie appeals his fifty-seven-month sentence for being a felon in possession of a firearm, in violation of 18 U.S.C. § 922(g). McKenzie challenges the district court’s application of a four-level sentence enhancement for possession of a firearm “in connection with” another felony offense, marijuana possession. Under § 2K2.1(b)(6) of the United States Sentencing Guidelines Manual (“USSG”), such a connection is established if the government proves by a preponderance of the evidence that the firearm had the potential to facilitate the additional
I
The underlying facts in this case are not disputed. On April 9, 2007, McKenzie, accompanied by an unknown passenger, was pulled over by a Memphis police officer for driving without a seatbelt and with an illegible temporary license tag. The officer observed a bag of marijuana on the arm rest of the driver-side door and saw McKenzie reach several times between his seat and the car’s center console.
McKenzie got out of the car at the officer’s request, while his passenger fled. McKenzie informed the officer that he had hidden a gun between the driver’s seat and the center console. He claimed he had the gun for protection because he had been fired upon earlier that day. A vehicle search revealed a loaded Pietro Beretta 7.65-caliber pistol. The officer also recovered a bag containing 1.1 grams of marijuana. McKenzie was advised of his rights and arrested. A criminal history search uncovered a previous felony conviction. On August 27, 2008, McKenzie pled guilty to one count of being a convicted felon in possession of a firearm, in violation of 18 U.S.C. § 922(g). The pre-sentence report (“PSR”) assigned McKenzie an initial base offense level of 20. It then applied a four-level enhancement, pursuant to § 2K2.1(b)(6), for possession of a firearm in connection with another felony offense: felony possession of marijuana. The PSR explained that, under Tennessee law, possession of a controlled substance is a felony when a defendant has “two or more prior convictions” for similar offenses. McKenzie had two prior adult convictions for possession of a controlled substance. After a three-level reduction for acceptance of responsibility, the PSR assigned McKenzie a total offense level of 21. McKenzie’s criminal history category was IV. This yielded an advisory Guidelines range of fifty-seven to seventy-one months of imprisonment.
At sentencing, McKenzie objected to the four-level enhancement, arguing that there was no connection between the marijuana possession and the firearm. He argued that the small amount of marijuana was clearly meant for personal use and explained that he was carrying the gun for personal protection because he had been shot at earlier that day. The prosecutor conceded that there was no evidence McKenzie was engaged in drug trafficking, but contended that, because possessing drugs in any amount is “a dangerous business,” the simultaneous presence of the gun and the drugs in McKenzie’s car was sufficient to connect the firearm to the drug offense.
The district court found that under Tennessee Code Annotated § 39-17-418, McKenzie’s marijuana possession would be considered a felony, given his two prior convictions for drug possession. Looking to the Guidelines commentary, the court noted that, for the enhancement to apply, the firearm must have “had the potential of facilitating” the drug offense. See USSG § 2K2.1, comment. (n.l4(A)). The court concluded that because “the firearm and the marijuana were in close proximity to each other[,] .... the firearm in this case did have the potential of facilitating another felony offense.” The court then sentenced McKenzie to the low end of the Guidelines range. McKenzie filed this timely appeal.
II
This court reviews a sentencing decision for procedural and substantive reasonable
Ill
The Sentencing Guidelines instruct a court to increase a defendant’s base offense level by four levels “[i]f the defendant used or possessed any firearm or ammunition in connection with another felony offense.” USSG § 2K2.1(b)(6). McKenzie need not have actually been charged with drug possession for the marijuana possession to constitute an additional felony offense. See id. § 2K2.1, comment. (n. 14(C)) (“ ‘Another felony offense’ ... means any federal, state, or local offense ... punishable by imprisonment for a term exceeding one year, regardless of whether a criminal charge was brought, or a conviction obtained.”). But for the enhancement to apply, the government must “establish[ ], by a preponderance of the evidence, a nexus between” the felonious drug possession and the firearm. United States v. Bullock,
In 2006, the Sentencing Commission clarified that, when the additional felony offense involves drug trafficking, the sentencing enhancement applies whenever “a firearm is found in close proximity to drugs, drug-manufacturing materials, or drug paraphernalia,” because “the presence of the firearm has the potential of facilitating another felony offense.” USSG § 2K2.1, comment, (n. 14(B)). In other cases, however, the enhancement applies only “if the firearm or ammunition facilitated, or had the potential of facilitating, another felony offense.” Id. § 2K2.1, comment. (n. 14(A)). The contrast between these two sections of the commentary indicates that, while close proximity between a firearm and drugs will suffice to justify the enhancement when an offender is engaged in drug trafficking, in other cases the enhancement applies only if the government can establish that the firearm actually or potentially facilitated that offense. This circuit’s case law confirms that, while proximity may be “indicative of a connection,” the government cannot always rely on proximity alone to establish a nexus. United States v. Angel,
In analyzing whether firearm possession is “in connection with” a drug felony, the Sixth Circuit has adopted the “fortress theory.” Under that theory, a nexus between the firearm and the drug felony exists “if it appears that the firearms ... are to used to protect the drugs or otherwise facilitate a drug transaction,” or “if the firearm had some emboldening role” in the drug offense. Angel,
Determining whether possession of a firearm actually or potentially facilitated a drug offense involves a fact-specific inquiry. Cases in which this court has applied the fortress theory have involved drug transactions, the use of firearms to protect a valuable stash of drugs, or some indication that a firearm was used to keep the defendant safe while using or transporting drugs. See, e.g., United States v. Rogers,
Under the circumstances at hand, however, the government has not proven by a preponderance of the evidence that McKenzie’s firearm had the potential to facilitate his marijuana possession. We first note that, in this case, there was no evidence that McKenzie was engaged in drug trafficking. There was no evidence as to where the marijuana came from, and the amount was too small to support an inference of trafficking. Second, although the “fortress theory” cases indicate that, under some circumstances, a firearm can facilitate mere drug possession, this case involved a very small amount of marijuana that was clearly meant for McKenzie’s personal use, not a valuable quantity like those involved in Richardson, Hardin, and Ennenga. Indeed, possession of the 1.1 grams of marijuana found in McKenzie’s vehicle would normally constitute a misdemeanor. See Tennessee Code Annotated §§ 39-17-401 et seq. Only McKenzie’s previous convictions led the PSR to conclude that in his case possession of even this small amount would constitute a felony. Even so, the street value of the marijuana was minimal.
On nearly identical facts, the Fifth Circuit recently rejected the argument that a defendant’s possession of a gun “emboldened” him to possess or served to “protect” the small amount of drugs found in his car. United States v. Jeffries,
IV
The government has failed to prove, by a preponderance of the evidence, that McKenzie possessed a firearm “in connection with” his possession of marijuana. The district court therefore improperly applied a four-level enhancement to his sentence. Miscalculation of a Guidelines range constitutes a procedural error. Bartee,
Notes
. The record does not contain evidence of the actual value of the marijuana, but previous cases and news articles indicate that 1.1 grams of marijuana was likely worth $2 to $15, depending on its quality. See United States v. Jiminez,
Dissenting Opinion
dissenting.
While the majority correctly cites the controlling precedent as established by this court, I believe that it has improperly applied it to the facts of this case. Accordingly, I respectfully dissent from the majority’s opinion, and I would affirm the district court’s application of the four-level enhancement under USSG § 2K2.1(b)(6).
Although the majority cites to cases in which application of the enhancement has been upheld in situations involving simple possession rather than a drug trafficking offense, it concludes that the facts here do not permit application of the enhancement to McKenzie. Yet, it is difficult to find a principled distinction between those cited cases and the instant case. For example, the majority cites United States v. White,
Despite admitting that he possessed both a firearm (albeit unloaded) and .3 grams of cocaine, White argues that the § 2K2.1(b)(5) enhancement cannot properly be applied to this situation because the record contains insufficient evidence that the gun was used “in connection with” the Michigan state law felony of possession of cocaine. The defendant, citing United States v. Hardin,248 F.3d 489 , 495 (6th Cir.2001), and United States v. Clay,346 F.3d 173 , 179 (6th Cir.2003), insists that the mere “presence of drugs in a home does not ipso facto support the application of a § 2K2.1(b)(5) conviction.”
In making the statement referenced by White, however, the court in Hardin was discussing the hypothetical situation “where a defendant arrested at his residence has an unloaded hunting rifle in the closet.” Hardin,248 F.3d at 501 . In contrast, White was not in his own residence and, although his gun was unloaded, he had it within his reach, presumably to give the impression that he was willing to use the weapon should anyone attempt to interfere with his possession or use of the illegal narcotics at the site. Thus, the appellate record indicates that the district court did not err in its application of § 2K2.1(b)(5) to the determination of the defendant’s sentence.
Id. at 489. Thus, while this court noted that White was not in his own residence, it did not focus on or even mention the fact that it was a house where drugs were often sold. Rather, the opinion emphasized the fact that White had the gun in reach to give the impression that he would use it to defend his drug stash, if necessary, from anyone else in the residence who sought to interfere with his possession of those drugs. This, according to the court, was sufficient to find by a preponderance of the evidence that White possessed the gun in connection with his possession of the cocaine.
The majority also cites to United States v. Clay,
Clay was apprehended in an uninhabited apartment late at night with a bag of cocaine and a large amount of cash on his person. He testified that he was in the apartment to have his hair braided by a woman whom he had met “on the streets,” although the alleged hairstylist was not in the building. Finally, Clay was carrying a firearm. See Hardin,248 F.3d at 499 (noting that firearms “are ‘tools of the trade’ in drug transactions”). Based upon this set of facts, the district court did not clearly err when it found that the government had proven by a preponderance of the evidence that Sentencing Guidelines § 2K2.1(b)(5) was satisfied.
Id. In fact, despite the presence of the cash on Clay’s person, he was only charged with and convicted of possession of cocaine base, not with any drug trafficking offense. Id. at 175-76. And, like the defendant in
In a more recent case, this court has again found that simple possession is sufficient to uphold application of the four-level enhancement. In United States v. Berkey,
Berkey’s own testimony supplied all of the facts that the district court needed to conclude that the firearm “emboldened the defendant during the felonious conduct.” Carter,355 F.3d at 925 . He acknowledged the accuracy of the facts presented in the presentence report, including that he “claimed ownership of the marijuana and the firearm” and that he “smoked two pipes of marijuana” in the car. PSR ¶ 6. He acknowledged that he had the drugs and pipe in one pocket and the gun in another when he left his house. Taken together, these facts allowed the court to reach the conclusion it did: that “the firearm ha[d] the potential of ... facilitating the felony offense,” R.48 at 25, and that Berkey thus possessed the firearm “in connection with” possession of marijuana, U.S.S.G. § 2K2.1(b)(6).
Id. at 939-10,
Thus, this court has upheld application on the enhancement for simple possession of user quantities of drugs, where the gun and drugs are in close proximity, and the defendant is in a public place. Our sister circuits have also come to the same conclusion in factually similar cases. In United States v. Jenkins,
The majority correctly notes that one circuit has held differently. In United States v. Jeffries,
Here, it is difficult to conclude that the application should not apply, as the facts cannot be described as “sparse,” as in Jeffries. Though the majority makes much of the fact that the quantity of drugs was small, this fact alone does not make McKenzie’s possession of the gun in connection with his possession of the drugs “implausible on its face,” as the majority concludes. See White,
Ultimately, there is not an overabundance of evidence here, but that is not what is required. The firearm need not actually be used in the commission of the felony; it must only have “the potential to promote another felony offense.” United States v. Angel,
. Unlike this circuit, the Fourth Circuit used the clear error standard of review.