Lead Opinion
MOORE, J., delivered the opinion of the court in which ROGERS, J., joined. GUY, J. (pp. 244-46), delivered a separate dissenting opinion.
Guns have the potential to make a bad situation worse. In light of that reality, the United States Sentencing Guidelines (“U.S.S.G.” or “Guidelines”)., prescribe harsher penalties for defendants who have “used or possessed any. firearm or ammunition in connection with another felony offense.” U.S.S.G. § 2K2.1(b)(6)(B). This case principally presents the question whether that sentencing enhancement applies to Defendant-Appellant Darryl Jackson, who made two pairs of separately negotiated sales—each including one sale of a small amount of drugs, one of a gun— to a government informant in close succession, but without bringing both a gun and drugs to either sale or having reason to anticipate that the first sale would beget the second. This case also presents the question whether the district court committed plain error by failing to consider sentencing-factor manipulation as a ground to reduce Jackson’s sentence. Although wé find no plain error with regard to sentencing-factor' manipulation we conclude, despite giving due deference to the district court, that Jackson did not use or possess either gun in connection with either sale of drugs within the meaning of §'2K2,l(b)(6)(B). We thus VACATE the application of the four-level enhancement under § 2K2.1(b)(6)(B) and REMAND this case for resentencing.
I. BACKGROUND
The facts in this case are not materially in dispute. On October 28, 2015, a confidential informant (“Cl”) in Grand Rapids, Michigan, told law enforcement that drugs were available for purchase from someone named. “Dlite.” R. 26 (PSR at ¶ 12) (Page ID #67). “Dlite” turned out to be Jackson, and nearly a month later, on November 23, an undercover agent drove the Cl . to a property in Grand Rapids to meet Jackson and purchase approximately a gram of heroin from him. R, 26 (PSR at ¶¶ 12-13)
A few days later, on November 27, Jackson told the Cl that he had another gun for sale. R. 26 (PSR at ¶ 18) (Page ID #67). -The undercover agent again drove the Cl to meet Jackson at the property where they had previously met, and the Cl there purchased a second gun from Jackson for $500. Id. After the two had completed the exchange and Jackson had finished explaining to the Cl how the gun worked, the Cl asked Jackson if he wanted another customer to whom he could sell drugs. R. 24 (Gov’t Obj. to PSR at 4) (Page ID #61). Jackson said that he did. Id. The Cl indicated that this potential customer— the undercover agent in the car—had money to buy the drugs, and that Jackson could “come out to the car and meet him.” R. 24 (Gov’t Obj. to PSR at 5) (Page ID #62). The Cl then left the property with the pistol and returned to the undercover agent’s car. Id. “Shortly thereafter, the defendant also exited” the property, “walked to the same vehicle, and got inside.” Id. Jackson “had a short conversation with the Cl and the undercover agent and ... sold the undercover agent one-half gram of heroin[ ], for $45.” Id,; see also R. 35 (Plea Tr. at 20) (Page ID #134); R. 39 (Sentencing Tr. at 7-8) (Page ID #176-77).
On December 17, 2015, law enforcément executed a search warrant on the two properties involved in these sales. At one, they discovered $3,050 “and a plastic spoon with heroin residue.” R. 26 (PSR at ¶ 17) (Page ID #67). At the other, they discovered a relative of Jackson’s who “admitted to flushing a small quantity of marijuana and cocaine base down the toilet when he heard officers entering the residence.” R. 26 (PSR at ¶ 18) (Page ID #68). The relative identified these quantities as “approximately.$10.00 worth of marijuana and $25.00 worth of cocaine base” and said.that they had been left on the kitchen table by Jackson. Id. No guns were recovered, and the relative stated that he had not ever seen Jacksqn with a gun. See id.
In April 2016, Jackson was indicted on two counts of being a felon in possession of a firearm and two counts of distribution of heroin. R. 12 (Indictment) (Page ID #22-25). He pleaded guilty without a plea agreement. R. 35 (Plea Tr. at 2) (Page ID #116). On October 3, 2016, he was sentenced in the district court. R. 39 (Sentencing Tr. at 1) (Page ID #170). The Presen-tence Investigation Report (“PSR”) that was prepared in advance of the hearing calculated Jackson’s total offense level to be 25 and his criminal history category to be VI, recommendations that correspond to a suggested imprisonment range of 110 to 137 months. R. 26 (PSR at 22) (Page ID #85). The PSR included in this calculation a four-level enhancement pursuant to U.S.S.G. § 2K2.1(b)(6)(B) for “us[ing] dr possessing] a firearm in connection with another felony offense,1 to wit: Distribution of Heroin.” R. 26 (PSR at ¶ 30) (Page ID #69). Jackson objected to this enhancement, arguing that “[t]he guns and the drugs were not connected in any way,
The district court was not persuaded, stating that counsel was “talking about a production of a drug and a production of a gun from the same person on or about the same time,” R. 39 (Sentencing Tr. at 15) (Page ID #184), and concluding that “the basic’ framework of a felon in possession of a firearm and a distribution of heroin and the drug in connection with the' sale of hard drugs is clearly met here,” R. 39 (Sentencing Tr. at 16) (Page ID #185). Nevertheless, the district court departed downward by ten months from the lower bound of the Guidelines’ recommendation, imposing a sentence of 100 months. R. 39 (Sentencing Tr. at 25) (Page ID #194). Had the court ruled that the four-level enhancement under U.S.S.G. § 2K2.1(b)(6)(B) was not applicable to Jackson, the recommended sentencing range, in- light of Jackson’s criminal history category of VI, would have been 77 to 96 months. See U.S.S.G. § 5A (sentencing table). Jackson appealed.
II. DISCUSSION
Jackson argues that the district court (1) improperly applied the four-level enhancement under § 2K2.1(b)(6)(B) to his sentence, and (2) committed plain error by not detecting—and accordingly reducing his sentence on the basis of—sentencing-factor manipulation. For the reasons that follow, we agree with Jackson’s first argument and deny his second.
A. Standard of Review
“We review a district court’s sentence for procedural and substantive reasonableness, applying the abuse of discretion standard.” United States v. Seymour,
“In the specific context of the § 2K2.1(b)(6)(B) firearm enhancement, ‘we review the district court’s factual findings for clear error and accord due deference to the district court’s determination that the firearm was used or possessed in connection with the other felony, thus warranting the application of the ... enhancement.’ ” Id. (internal quotation marks omitted) (quoting United States v. Taylor,
Where a defendant'has “failed to preserve [a] procedural objection by first giving the district court the opportunity to address and remedy it, we review only for plain error.” United States v. Coppenger,
This case turns on whether the four-level enhancement prescribed by U.S.S.G. § 2K2.1(b)(6)(B) applies to Jackson’s conduct. The subsection provides for the enhancement to apply “[i]f the defendant ... used or possessed any firearm or ammunition in connection with another felony offense.” Id. § 2K2.1(b)(6)(B). The accompanying notes clarify that this subsection applies “if the firearm or ammunition facilitated, or had the potential of facilitating, another felony offense or another offense, respectively.” Id. § 2K2.1 cmt. n. 14(A). Further, the enhancement applies “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.” Id. § 2K2.1 cmt. n. 14(B).
We have outlined a number of fact situations that can fall within the “broad wording,” see United States v. Williams,
On the other hand, “[pjossession of firearms that is merely coincidental to the underlying felony offense is insufficient to support the application of’ the enhancement, as is the simple “presence of drugs in a home under a firearm conviction.” United States v. Taylor,
In the sections that follow, and in light of the lack of any indication that Jackson actually used a gun in connection with a drug sale, we discuss (1) Jackson’s lack of actual or constructive possession of a gun in connection with the drug sales; (2) the lack of close proximity between any gun and any drugs and, relatedly, the inapplicability of the fortress theory; and (3) the lack of any way in which a gun facilitated a drug sale.
1. Lack of Actual or Constructive Possession of a Gun in Connection with the Drug Sales
Even giving due deference to the district court’s application of this case’s undisputed facts to the language of the Guidelines, Jackson’s sentence was procedurally unreasonable. Even if a defendant
“Constructive possession occurs when a person ‘knowingly has the power and the intention at a given time to exercise dominion and control over an object, either directly or through others.’” Hardin,
Here, by contrast, Jackson’s conduct does not reveal that he at any time had both “the power and intention ... to exercise dominion and control” over a gun in connection with the sale of drugs. See Hardin,
During the second pair of sales, Jackson transferred a gun for money at one property and then, with the gun out 'of his possession, was asked if he wanted to sell a half-gram of heroin. R. 24 (Gov’t Obj. to PSR at 4-5) (Page ID #61-62). Jackson agreed, at which point the Cl left the property and Jackson went to an unestablished location
2. Lack of Proximity and Inapplicability of the Fortress Theory
Moreover, just as there is no evidence that Jackson ever possessed, actually or constructively, a gun in connection with either of the drug deals, there is likewise no indication that Jackson ever kept a gun in “close proximity” with drugs, see U.S.S.G. § 2K2.1 cmt. n. 14(B), or that he satisfied a close relative of this basis, the “fortress theory,” see, e.g., Seymour,
The fortress theory applies “if it reasonably appears that the firearms found on the premises controlled or owned by a defendant and in his actual or constructive possession are to be used to protect the drugs or otherwise facilitate a drug transaction.” Angel,
While it is true, as the Government notes, Appellee’s Br. at 10, that we have turned to “the fortress theory to uphold applications of the firearm enhancement where the defendant was engaged in drug trafficking or simply in a house associated with drug trafficking,” we have generally done so in cases in which (1) large quantities of drugs have been found (2) “in close proximity to” the relevant guns themselves. See Seymour,
By contrast, as Jackson points out, Appellant’s Br. at 9—10, we have ruled application of the enhancement procedurally unreasonable where “[fjirst, Defendant had only a small amount of drugs in his possession, and the government admitted] that nothing in the record show[ed] that Defendant was engaged in any sort of narcotics trafficking,” and “[sjecond, ... Defendant was attempting to sell”—rather than keep for protection or intimidation— “his handgun,” Seymour,
There is no evidence that Jackson ever actually kept a gun near his drugs. See R. 24 (Gov’t Obj. to PSR at 2, 4-5) (Page ID #59, 61-62).
3. Lack of Facilitation
Similarly, there is no reason to believe that either “firearm ... facilitated, or had the potential of facilitating,” either heroin sale. See U.S.S.G. § 2K2.1 cmt. n. 14(A). As noted above, one way in which a gun can facilitate a drug sale is by “sweeten[ing] the pot,” Henry,
Jackson’s conduct is unlike the conduct at issue in Davis and Henry, but much like Davis’s “more convincing” coun-terfactual. See Davis,
Sweetening the pot is not the only way, of course, that a gun can facilitate a drug sale. In fact, as we have made clear, all that “use or possession of’ a gun must do is “make the sale of the pills easier.” Henry,
For reasons similar to those just noted, however, Jackson’s conduct does not meet this standard of facilitation. Because the first drug sale was concluded before the idea of a gun sale was even introduced, there is no way that the already-completed gun sale could have enticed Jackson’s purchaser away “from a competitor.” See id. And because the second gun sale was completed
Needless to say, of course, this was also not a situation in which there was facilitation or use through exchange—as, for example, in Sweet, a case in which “defendants traded the ’firearms for drugs.” Sweet,
The Government nevertheless argues that this causal inference is justified in the context of the second drug sale. Appellee’s Br, at 15 (“[B]ut for the firearm sale on December 1, the heroin transaction would not have occurred.”). It contends that “[w]hile the firearm was not, as in Sweet, part of the consideration for the drug transaction; the firearm sale on December 1 was a literal ‘but for’ cause of the heroin transaction.” Id. Presumably, the Government’s theory here is that if the Cl had not arranged to purchase a gun from Jackson on December 1, then the Cl would not have been there, with Jackson, to begin to negotiate—after the gun sale was completed, for separate consideration—a separate exchange for drugs.
This theory misunderstands but-for causation, a causal test that provides that “an act (omission, condition, etc.) was a cause of an injury if and only if, but for the act, the injury would not have occurred.” Richard W. Wright, Causation in Tort Law, 73 Cal. L. Rev. 1735, 1775 (1985). “That is, the act must have been a necessary condition for’ the occurrence of the injury.” Id.; see also United States v. Miller,
Although Jackson did sell both a gun and drugs in quick succession, the Government’s burden was to prove that he “used or possessed” the gun “in connection with” his drug dealing, U.S.S.G. § 2K2.1(b)(6)(B), for example by “facilitating]” it 'or “ha[ving] the potential of facilitating” it in some way, id. § 2K2.1 cmt. n. 14(A)! But the conduct here does not provide sufficient reason to conclude that these were anything but independent sales of guns and drugs—both illegal and rightly punishable, but not subject to the extra punishment that our laws reserve for
C. Sentencing-Factor Manipulation
Jackson also argues that the district court committed plain error by failing, on its own, to reduce his sentence on the ground that the Government had committed sentencing-factor manipulation. Appellant’s Br. at 14-16. This claim can be dealt with more briefly, particularly on the more deferential, plain-error standard of review that Jackson must overcome by virtue of having failed to make this argument to the district court. As noted above, plain error occurs when the district court makes an “obvious or clear” error that “affected defendant’s substantial rights” and thus “seriously affected the fairness, integrity, or public reputation of the' judicial proceedings.” Coppenger,
Even if we were to adopt the doctrine of sentencing-factor manipulation, the circumstances of Jackson’s case would not qualify. As the Government observes, Appellee’s Br. at 19, a defendant arguing sentencing-factor -manipulation “bears the burden of proof as to his lack of predisposition and to the outrageousness of government conduct,” Hammadi,
III. CONCLUSION
Jackson’s gun and drug sales lacked a connection sufficient to justify the district court’s imposition of the four-level sentencing enhancement under § 2K2.1(b)(6)(B). Because the transactions at issue appear instead to have been independent and unanticipated sales—with no indication that a gun was ever actually or constructively possessed in connection with a drug sale, or kept near a stash of drugs,. or facilitative of a drug sale—the enhancement did
Notes
. Jackson did not, in his written objections or at the hearing, argue sentencing-factor manipulation. See R. 39 (Sentencing Tr.) (Page ID #170-98).
, At the time that Hardin was decided, the provision now found at § 2K2.1(b)(6)(B) was located at.§ 2K2.1(b)(5), United States v. Seymour, 739 F,3d 923, 929 & n.2 (6th Cir. 2014),
. The heroin may have been located elsewhere within the property, but the record does not 'disclose if that was the Case, and the Government has not put forward evidence to clarify the. question. It is possible that the drugs were buried outside, or hidden on a neighboring property, or kept in some other place. '
. It is true, of course, that Jackson might have anticipated a potential drug sale at this second meeting, given that he had already sold heroin once to the CL But “[t]he government bears the burden of establishing the factors supporting this enhancement by a preponderance of the evidence,” Seymour,
. We observed in Herron, it bears emphasizing, that "[m]ost importantly, the loaded firearm was located on the first floor where the drugs and drug paraphernalia were located”; we thus concluded that "[t]he most likely reason that Herron possessed the loaded weapon was to protect himself during potentially dangerous drug transactions.” United States v. Herron,
. Indeed, the evidence presented in this case is consistent with—and perhaps points in favor of—the theory that Jackson kept whatever drugs he had to sell at one property and whatever guns he had for sale at another property down the street.
Dissenting Opinion
dissenting.
DISSENT
I believe defendant’s second pair of transactions in narcotics and a firearm was sufficiently interconnected to justify imposing the enhancement. I also believe the but-for causation standard does not apply to whether one sale “facilitated” the other. Accordingly, I respectfully dissent.
On November 23, 2015, defendant sold the government’s confidential informant (“Cl”) some narcotics, and then, after some prodding by the Cl, a firearm. Defendant had to walk down the block to retrieve the firearm before selling it to the Cl. I agree with the majority that this pair of sales was insufficient to trigger USSG § 2K2.1(b)(6)(B).
On November 27, 2015, Jackson contacted the Cl and offered to sell the Cl another firearm. The Cl agreed, and on December 1, 2015, the Cl went to the same residence at which he previously met with defendant. Immediately after the Cl and defendant completed the firearm sale, the Cl offered to introduce defendant to his companion—who was waiting in the car— so that defendant could sell him narcotics. Defendant accepted the offer, telling the Cl, “you go to the car and I’ll be over there.” The Cl returned to the car, and “[sjhortly thereafter, the defendant also exited [the residence], walked to the same vehicle, and got inside.” Defendant then sold narcotics to the Cl’s companion.
The firearm enhancement can apply “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.” USSG § 2K2.1 cmt. n.14(B). The majority concludes that defendant lacked actual or constructive possession of the firearm in connection with the drug trafficking felony. Key premises to the majority’s analysis are “the facts that [defendant] seems to have kept his guns and drugs housed at separate locations, did not bring a gun and drugs together to either sale, and had no reason to believe that either initial sale for one of the two types of contraband would beget a sale of another type.”
The district court, however, did not abuse its discretion by finding otherwise. At the December 1 sale, defendant was observed delivering the narcotics after leaving the same residence from which he had just sold the firearm (and from which he had sold narcotics on November 23). These facts comprise circumstantial evidence that defendant brought narcotics to the December 1 firearm sale, and there is no evidence to the contrary.
In the alternative, the majority holds that “there is no reason to believe that either firearm ‘facilitated, or had the potential of facilitating,’ either heroin sale.” With respect to the December 1 transaction, I disagree. Facilitation can be found when a defendant becomes a “one-stop-shop for [drugs] and firearms.” United States v. Davis,
The majority rejects the government’s argument that, “[b]ut for the firearm sale on December 1, the heroin transaction would not have occurred,” on the basis that the government did not actually satisfy the but-for test for causation. However, we have held that “[b]ut-for causation is not the applicable standard under § 2K2.1(b)(6); all that is required is that the firearm ‘facilitated, or had the potential of facilitating, another felony offense.’ ” Id. (quoting USSG § 2K2.1 cmt. n.l4(A)). Because defendant’s possession of the firearm “ma[d]e the sale of the [drugs] easier” by bringing a drug customer to defendant’s doorstep, the facilitation test is satisfied. The government’s failure to show but-for causation is immaterial. Id.; see also Davis,
. The majority places a burden on the government to "clarify the question” of whether the firearm was located in the same residence as the drugs on December 1. But requiring the government to conclusively refute the possibilities "that the drugs were buried outside, or hidden on a neighboring property, or kept in some other place” fails to account for the evidence that the drugs were in the same residence, and the lack of evidence that they were stored somewhere else.
. Although the majority suggests that the bifurcated transaction was "inefficient,” any inefficiency was nominal. The record does not reflect any material inconvenience to defendant, as opposed to the November 23 sale, which required defendant to retrieve the firearm from another residence.
. The majority cites two cases in which a but-for connection between the drug and gun sales was sufficient to impose the enhancement, United States v. Sweet,