On March 11, 2014, a grand jury returned a two-count indictment against Derrick Clinton, charging him with possession of a firearm as a convicted felon in violation of 18 U.S.C. § 922(g), and possession with intent to distribute a mixture and substance containing cocaine base in the form of crack cocaine in violation of 21 U.S.C. § 841(a)(1). Pursuant to a plea agreement with the government, Clinton entered a plea of guilty to the felon-in-possession count, and the government agreed to dismiss the second count and to recommend a sentence within the advisory guidelines range. The district court ultimately sentenced Clinton to a term of imprisonment of 76 months followed by three years of supervised release and a $100 special assessment. Clinton now appeals that sentence.
The arrest in this case stemmed from a domestic violence call received by the Milwaukee police on January 9, 2014. When the officers responded to the residence, they spoke with the victim M.K., who informed them that Derrick Clinton sold cocaine and had a firearm in the residence. She told the officers that Clinton kept the firearm in the bedroom closet, but that she had retrieved it and hidden it under a pile of clothes in the dining room so that Clinton could not use it. The officers conducted a search of the residence with M.K.’s consent, and the officers found a Lorcin 9mm pistol under the clothes in the dining room. Underneath the couch in the living room the officers discovered a plate containing 2.29 grams of cocaine base, a razor blade, a box of baggies, and a digital scale. The following day, Clinton called a Milwaukee police officer and admitted to possessing the gun. He stated that he purchased the gun from a drug addict. He was arrested on January 21, 2014, and subsequently admitted that he owned the firearm and that he cooked and sold crack cocaine.
Prior to sentencing, the Probation Office prepared a Presentence Investigation Report (PSR) that determined a base offense level of 24 pursuant to U.S.S.G. § 2K2.1(a)(2) based on his two prior felony
We review a district court’s sentencing procedures and questions of law involving the interpretations of the Guidelines de novo. United States v. Schmitt,
As' we recognized in United States v. Harper,
In this case, the defendant may be found to have used a firearm in connection with another felony offense if he “ ‘used or possessed’ the firearm in connection with (1) his general drug dealing activities in his home or (2) the purchase of the firearm, which he allegedly bought with drugs.” Schmitt,
The district court began by relying on the second of those two approaches. In considering whether the four-level enhancement was proper, the district court first stated that a “solid presumption” exists that “where you have drugs you have guns and usually violence.” The district court then found that “in any event, you have, the defendant purchasing a gun from a drug [dealer.]
That finding, however, is not supported in the record, and the government to its credit acknowledges as much. The underlying discovery and the factual proffer in Clinton’s plea agreement establish only that the person from whom he purchased the weapon was a drug addict. Although it is possible that the person could have conveyed the firearm to Clinton in exchange for drugs, there is no evidence of that, and mere speculation is insufficient to support a four-level enhancement. United States v. Bradley,
In addition to finding that Clinton exchanged drugs for the weapon, the court also considered whether the firearm was used or possessed in connection with drug dealing in the residence. The court noted that the need to protect drugs is paramount, “especially if you are living in an area where this is an activity that occurs on a daily basis,” and that “you can’t engage in that type of activity and not think that you’re not in need of some form of protection.” The court then concluded: “that supports ... the presumption — the rebuttable presumption for sure that the proximity of this gun in the house was used for a secondary felony.”
That analysis lacks the findings that would support application of the enhancement. The enhancement is proper under § 2K2.1(b)(6)(B) if the court determines that the defendant used or possessed the firearm in connection with another felony offense. Application Note 14 to that section provides that “in the case of a drug trafficking offense in which a firearm is found in close proximity to drugs, drug-manufacturing materials, or drug paraphernalia ... application of [subsection] (b)(6)(B) ... is warranted because the presence of the firearm has the potential of facilitating another felony offense.” That presumptive determination reflects the axiom that guns are indeed a routine part of the drug trade and facilitate that trade by providing protection from the theft of drugs or the cash proceeds of drug sales, as well as a deterrent to those who would compete in that drug trade. If a firearm is found in close proximity to the drugs or its paraphernalia, the conclusion that the firearm is connected to that drug activity is a reasonable one in light of the common use for that purpose. See United States v. LePage,
But that Application Note should not be interpreted to ordain such a connection whenever a defendant involved in drug distribution also is in possession of a firearm. The term “close proximity” must not be read out of the Application Note. It is the close proximity that allows the court to find such a connection without any further evidence — the proximity alone provides the evidence that the two are connected. If that “close proximity” is lacking, then the connection may still be established, but it must be determined through evidence of such a connection.
The government, citing United States v. Meece,
In the present case, we have essentially no fact findings at all by the district court relevant to this issue. The court did not find that the firearm was readily accessible in the bedroom closet, that drugs were kept in that closet or even the bedroom, or that significant amounts of drugs or cash were kept at the home that presented a need for protection on that basis. Those are indicative of the types of factual findings that can support the enhancement. See, e.g., United States v. Sewell,
The government, with laudable candor, acknowledges that the propriety of the enhancement in this case is a close call. We agree that the evidence supporting such an
There was also little evidence regarding his drug trafficking activities that would support a determination that the firearm facilitated or had the potential to facilitate the drug offense. In many cases regarding drug trafficking, the amount of drugs and/or cash on the premises increases the likelihood that a firearm on the premises is connected to protection for that activity. In this case, the evidence is atypical. The only evidence of drug distribution occurring on the premises comes from a statement by Clinton himself in an interview with a Milwaukee police officer. The officer asked him how often he sells drugs out of the house, and Clinton responded “Um, not too often. Ah, just have a few people being we, like the regulars I’ve been doing since maybe — it’s only been about two or three people. The kids can even tell you that.” That evidence indicates that the drug distribution from the residence was limited to sales to two or three individuals who had been regulars for some time. Moreover, there is no evidence indicating that a significant amount of drugs were processed through the residence. The amount found in the residence was only 2.29 grams of cocaine base, which the defendant’s brief characterizes as an amount worth approximately $200. See generally United States v. Atkins,
. The record thus provides little support for such an enhancement. We do not hold that the enhancement is inapplicable as a matter of law, but the fact findings in this record do not support the enhancement. The district court identified only the generalized need for protection by those engaged in drug offenses. But that would apply whenever a person who sold drugs also possessed a firearm in the residence. It would transform the “close proximity” test of Application Note 14 to a broad-based rebuttable presumption that the enhancement applied whenever a firearm was possessed and a drug offense was also alleged regardless of the location of the firearm and its proximity to the drugs. The Sentencing Commission could have imposed an enhancement if any weapon was possessed without requiring that it be possessed in connection with the offense, but it chose not to do so. See United States v. Carillo-Ayala,
Because we are remanding on the enhancement issue, we address only briefly Clinton’s other challenges to his sentence. First, Clinton argues that the court erred in failing to address his health problems as a mitigating circumstance that warranted a sentence below the Guidelines range. Although a district court may properly remain silent regarding frivolous arguments for leniency, “where a defendant presents an argument that is ‘not so weak as not to merit discussion,’ a court is required to explain its reason for rejecting that argument.” United States v. Schroeder,
Finally, Clinton asserts that the district court improperly considered extraneous factors that veered far beyond the § 3553(a) factors. Specifically, the district court lamented the adverse impact the drug trade has had in Mexico and Latin America which supply the drugs, and referenced the kidnapping and murder of 23 school children by Mexican drug gangs. The court then concluded that Clinton’s participation in that type of enterprise is a very serious offense. Clinton argues that the court erred in linking his offense to the kidnapping and murder of school children in Mexico because there is no indication in the record that Clinton is in any way connected to a Mexican drug cartel, let alone involved in narco-terrorism, kidnapping, or murder. Clinton also argues that the court veered beyond the proper bounds of sentencing in its statements as to his character in response to his claim that he is not a bad person. The district court judge questioned that, stating that “you just told me you’re a good man and made some mistakes. But you’re not, you’re a bad man. And I’ll tell you how simple this is. Good men do good things, bad men do bad things. Dealing drugs is a bad thing; ergo, therefore, you’re a bad man. Simple as that.” We have cautioned against a focus on such extraneous factors in past cases. In United States v. Figueroa,
Similarly, in United States v. Webster,
The sentence is VACATED and the case REMANDED for resentencing consistent with this opinion.
Notes
. The transcript says "drug clear” instead of "drug dealer” but the government acknowledges that was likely a typographical error and that the PSR-writer and judge seem to have concluded that the seller of the weapon was a drug dealer.