UNITED STATES OF AMERICA, Plаintiff-Appellee, versus MICHAEL STEPHEN MARTINEZ, Defendant-Appellant.
No. 18-12950
IN THE UNITED STATES COURT OF APPEALS FOR THE ELEVENTH CIRCUIT
(July 14, 2020)
[PUBLISH] D.C. Docket No. 8:18-cr-00106-SDM-TGW-1
Before WILLIAM PRYOR, Chief Judge, JILL PRYOR and LUCK, Circuit Judges. Opinion by LUCK, Circuit Judge.
[PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
No. 18-12950
D.C. Docket No. 8:18-cr-00106-SDM-TGW-1
UNITED STATES OF AMERICA, Plaintiff-Appellee,
versus
MICHAEL STEPHEN MARTINEZ, Defendant-Appellant.
Appeal from the United States District Court for the Middle District of Florida
(July 14, 2020)
Before WILLIAM PRYOR, Chief Judge, JILL PRYOR and LUCK, Circuit Judges.
The sentencing guidelines increase a defendant‘s advisory guideline range if he unlawfully possessed a firearm and he did so “with knowledge, intent, or reason to believe that it would be used or possessed in connection with another felony offense.”
FACTUAL BACKGROUND AND PROCEDURAL HISTORY
On January 27, 2018, deputies with the Polk County Sheriff‘s Office pulled over a car because it had an illegible tag. The deputies approached the car and spoke to the driver, Martinez, who admitted that he was driving with a suspended license. Inside the car were Martinez‘s girlfriend, who was in the front passenger seat, and his infant son, who was in a car seat in the back. When the deputies asked Martinez whether he would consent to a search of the car, Martinez deferred to his girlfriend because she was the owner. Martinez‘s girlfriend agreed to the search. The deputies found a backpack on the passenger floorboard containing a digital scale and several baggies; a pipe with methamphetamine residue in the driver‘s side door compartment; brass knuckles on the driver‘s side floorboard; and a backpack on the back seat (next to his son‘s car seat) containing a detached twenty-gauge shotgun barrel and handle stock. In Martinez‘s pockets, deputies found plastic baggies with meth. After the deputies read him his Miranda rights, Martinez admitted that everything inside the car belonged to him; he knew the shotgun was stolen; and he knew the serial numbers had been obliterated. Martinez later admitted he planned to sell the shotgun for a pound of “dope” because he needed money to pay his bills and buy drugs for personal use.
Before the traffic stop, Martinez had four prior convictions in Florida for: robbery; grand theft; possession of meth; and another possession of meth. Having admitted the stolen shotgun was his, Martinez was indicted for possessing a firearm as a convicted felon. He pleaded guilty without a plea agreement.
The probation office prepared а presentence investigation report. The probation office started with a base offense level of twenty because Martinez possessed the stolen shotgun “subsequent to sustaining one felony conviction” for a crime of violence: robbery.
Martinez had two objections to the presentence investigation report. He first objected that his robbery conviction was not a “crime of violence” under section 2K2.1(a)(4)(A). The district court overruled the objection because, as Martinez conceded, we held in United States v. Lockley, 632 F.3d 1238 (11th Cir. 2011), and United States v. Dixon, 718 F. App‘x 924 (11th Cir. 2018), that a Florida robbery conviction qualified as a crime of violence.
Martinez also objected that he did not use or possess the shotgun in сonnection with another felony offense under section 2K2.1(b)(6)(B). The district court overruled the objection based on three findings of fact: (1) Martinez‘s plan to sell the stolen shotgun for the pound of dope was a drug trafficking offense; (2) the stolen shotgun had the potential of facilitating the pound-of-dope sale; and (3) the stolen shotgun was in close proximity to the drug paraphernalia, the scale. After hearing from the parties and considering the
STANDARD OF REVIEW
“We review a distriсt court‘s interpretation of the [s]entencing [g]uidelines and application of the [g]uidelines to the facts de novo, and we review the district court‘s findings of fact for clear error.” United States v. Dimitrovski, 782 F.3d 622, 628 (11th Cir. 2015) (citing United States v. Barrington, 648 F.3d 1178, 1194–95 (11th Cir. 2011)). “A district court‘s determination that a defendant possessed a gun ‘in connection with’ another felony offense is a finding of fact that we review for clear error.” United States v. Bishop, 940 F.3d 1242, 1250 (11th Cir. 2019). “A factual finding is clearly erroneous when although there is evidence to support it, the reviewing court on the entire evidence is left with the definite and firm conviction that a mistakе has been committed.” Barrington, 648 F.3d at 1195 (quoting United States v. Ellisor, 522 F.3d 1255, 1273 n.25 (11th Cir. 2008)). “Although review for clear error is deferential, a finding of fact must be supported by substantial evidence.” United States v. Robertson, 493 F.3d 1322, 1330 (11th Cir. 2007).
DISCUSSION
Section 2K2.1(b)(6)(B) increases the defendant‘s offense level by four if he unlawfully possessed a firearm and he did so “with knowledge, intent, or reason to believe that it would be used or possessed in connection with another felony offense.”
“Another Felony Offense”
The district court found that Martinez‘s plan to sell his stolen shotgun for a pound of dope was “another felony offense” of drug trafficking. Martinez contends there was no evidence he was engaged in a drug trafficking offense. While he concedes “that he intended to use the gun to purchase a quantity of drugs,” Martinez argues “there was no evidence presented that he intended to later sell those drugs.”
After the traffic stop, and the digital scale, pipe, baggies, meth residue, brass knuckles, and stolen shotgun were found, Martinez waived his Miranda rights and admitted to the officers: “the items found in the vehicle belonged to him“; “he knew the shotgun was stolen“; “he was also aware that the serial number had been obliterated“; and “he planned to sell the shotgun for a pound of ‘dope.‘” The presentence investigation report also included Martinez‘s statement that he committed this offense “because he needed money to pay for bills and his drug use.”
Personal drug use was one reason Martinez planned to sell the stolen shotgun for a pound of dope. But it wasn‘t the only reason. Martinez also needed money to pay his bills. And the only way to make money from the pound of dope was to traffic it to others rather than smoke, snort, or shoot it himself.
The weight of the dope Martinez was fixing to buy—a pound—is also evidence that it was intended for distribution rather than personal use. A pound, whether it‘s cocaine, heroin, marijuana, or methamphetamine, is more than personal users typically buy. Because of how much a pound costs and how difficult it is to sell hand-to-hand, you don‘t see users buying one-pound baggies on street corners. We‘ve held with even lower weights that there was sufficient evidence to suрport convictions for possessing controlled substances with the intent to distribute. See, e.g., United States v. Mercer, 541 F.3d 1070, 1073 n.3, 1076 (11th Cir. 2008) (finding that the amount of meth found in the defendant‘s hotel room (15.6 grams) was a quantity that supported his conviction for possession of meth with intent to distribute); United States v. Poole, 878 F.2d 1389, 1391–92 (11th Cir. 1989) (concluding that the defendant‘s possession of 148.775 grams of cocaine supported her conviction for possession of cocaine with intent to distribute because that crime “can be proven circumstantially from, among other things, the quantity of cocaine“). The same analysis would apply to Martinez‘s pound of dope.
In addition to Martinez‘s statement and the weight of the dope, the other items found in the car were evidence that he intended to distribute the pound of dope. Martinez had a digital scale and plastic baggies in the backpack on the passenger floorboard. He had more plastic baggies in
Martinez also argues that the stolen-shotgun-for-dope deal was not “another felony offense” under section 2K2.1(b)(6)(B) because it was only a someday intention to do something in the future. He couldn‘t have committed the “drug trafficking offense,” the argument goes, because the drug deal hadn‘t happened yet.
We disagree because section 2K2.1(b)(6)(B) applies even if a felon-in-possession defendant had “knowledge, intent, or reason to believe” the firearm “would be,” but wasn‘t actually, “used or possessed in connection with another felony offense.”
Of course, Martinez is right that not every far-flung fantasy to commit a future felony will result in a section 2K2.1(b)(6)(B) enhancement. If Martinez had the detached shotgun tucked away under the bed at his Bubbe‘s house, and the only evidence was his statement that he was wishing and hoping and thinking about swapping the gun for drugs the Purim after next, then we‘d have trouble finding evidence supporting the enhancement. But these were not the facts the district court had. Martinez‘s intent was not some pie-in-the-sky summit two years in the future.
“In Connection With”
Section 2K2.1(b)(6)(B) also requires that the defendant have reason to believe the firearm would be used or possessed “in connection with” another felony offense.
As to the “in connection with” element, Martinez contends that “the record does not support a finding that the gun in any way facilitated his possession of drugs for personal use.” “There is no suggestion in the record,” he says, that he “possessed the shotgun for the purposes of emboldening him to engage in drug trafficking or using the shotgun to protect his drugs.” The “evidence presented by the government,” Martinez concludes, “did not demonstrate how the firearm did, or could potentially, facilitate the offense of simple drug possession or a drug trafficking offense.”
There are two ways, the guidelines commentary tells us, to show that a firearm was used or possessed “in connection with” a drug trafficking offense. Way one: section 2K2.1(b)(6)(B) applies “if the firearm or ammunition facilitated, or had the potential of facilitating, another felony offense.”
Facilitating or having the potential to facilitate. The facilitate-or-potential-of-facilitating language was added to the section 2K2.1(b)(6)(B) commentary in 2006 to define the “in connection with” element. U.S.S.G. App. C, Amend. 691 (Nov. 1, 2006). The commentary, the sentencing commission explained, “аdopt[ed] the language from Smith v. United States, 508 U.S. 223 (1993) that [section 2K2.1(b)(6)] appl[ies] if the firearm facilitated, or had the potential of facilitating, another felony offense.” Id.
In Smith, the defendant offered to sell his automatic firearm and silencer to an undercover officer for two ounces of cocaine. 508 U.S. at 226. The defendant was arrested and indicted for two drug trafficking crimes, and the government alleged that he “knowingly used the [firearm] and its silencer during and in relation to a drug trafficking crime,” in violation of
meant “the gun at least must facilitate, or have the potential of facilitating, the drug trafficking offense.” Id. at 238 (internal quotation marks and alteration omitted). “[H]ere,” the Court concluded, “the gun was an integral part of the transaction.” Id. (internal quotation marks and ellipses omitted). “Without it, the deal would not have been possible.” Id.
In United States v. Carillo-Ayala, 713 F.3d 82 (11th Cir. 2013), we used Smith and the commentary to section 2K2.1(b)(6)(B) to define “in connection with” as used in another part of the sentencing guidelines, section 5C1.2(a)(2). Id. at 85, 93. Section 5C1.2 is the safety valve guideline. Id. at 88. It requires a district court to sentence a defendant convicted of certain drug crimes “without regard to the mandatory minimum specified by the statute,” id. (citing
Where a defendant engages in a drug offense and also possesses a firearm, but the firearm is not in proximity to drugs or paraphernalia, the Commission‘s application note in § 2K2.1 is similarly helpful. The Commission “adopt[ed] the language from Smith[],” to define what constitutes use or possession of a firearm “in connection with” a drug offense. Section 2K2.1 cmt. historical notes (2006). Smith was issued in the term immediately preceding Congress‘s amendment of
18 U.S.C. § 3553 , when it adopted the safety valve provision. Smith was the
Supreme Court‘s latest word on the interplay of guns and drugs when the statutory language of the safety valve was formulated.
Id. at 93. The Carillo-Ayala court then went through Smith and our cases applying section 2K2.1(b)(6)(B) and concluded: “Sale of a firearm in exchange for drugs facilitates a drug offense.” Id. at 96. “We hold that, under § 5C1.2(a)(2), a defendant possesses a firearm in connection with a drug offense if the firearm is in proximity to drugs or if the firearm facilitates the drug offense . . . by serving as an integral part of a drug transaction as in a barter situation . . . .” Id. (citations omitted).
We read “facilitate, or have the potential of facilitating” in the commentary to section 2K2.1(b)(6)(B) the same way the Supreme Court used it in Smith, and the same way we used it in Carillo-Ayala, to include gun-for-drugs barters and transactions. The sentencing commission borrowed “facilitate, or have the pоtential of facilitating” from Smith to define section 2K2.1(b)(6)(B)‘s “in connection with” element. The borrowing matters because “[w]hen a statutory term is ‘obviously
Also, as we noted earlier, where two guideline provisions use the same language, we presume they have the same meaning and generally interpret them the same way. Gordillo, 920 F.3d at 1299; Perez, 366 F.3d at 1182. In Carillo-Ayala, we read the safety valvе‘s “in connection with” requirement to mean “the firearm facilitates the drug offense . . . by serving as an integral part of a drug transaction as in a barter situation.” 713 F.3d at 96 (citation omitted). Critically, Carillo-Ayala used the section 2K2.1(b)(6)(B) commentary and case law to reach that conclusion. We see no reason to give the “in connection with” requirement in section 2K2.1(b)(6)(B) a different meaning.
Here, the district court did not clearly err in finding that Martinez‘s stolen shotgun had the potential of facilitating the pound-of-dope sale. As in Smith, Martinez had the stolen shotgun so he could barter it for a pound of dope. After his arrest, Martinez told law enfоrcement officers “that he planned to sell the shotgun for a pound of ‘dope.‘” Martinez admitted he possessed the firearm illegally “because he needed money to pay for bills and his drug use.” Martinez had the tools ready for his shotgun-for-pound-of-dope deal. He had an illicit gun to sell that was disassembled (so it could not be used for personal protection), stolen, and had the serial numbers removed. Martinez was ready for the dope with a digital scale and several baggies; a pipe for smoking; and brass knuckles on the driver‘s side floorboard. The shotgun did more than “merеly facilitate[] the offense.” Smith, 508 U.S. at 238. It “was an integral part of the transaction.” Id. (quotation omitted). “Without it, the deal would not have been possible.” Id.
Close proximity. The “in connection with” element is relaxed somewhat if the other felony offense is a drug trafficking offense. Section 2K2.1(b)(6)(B) applies, the guidelines commentary says, “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.”
In Gordillo, during a search of the defendant‘s home, law enforcement officers
The Gordillo court said the “only question for us to decide ... is whether a high-capacity magazine in a bag is in ‘close proximity’ to a locked firearm in a case ten feet away in the same room.” Id. We explained that while we‘ve “discussed proximity between firearms and drugs in a number of cases,” we “have never explicitly elaborated on its meaning.” Id. at 1299. We reviewed: the dictionary definitions of “close” and “proximity“; the history of how the “close proximity” language was added to the guideline commentary (it was added as part of the same amendment to section 2K2.1 as the commentary to subsection (b)(6)(B)); other guideline provisions (including section 2K2.1(b)(6)(B)) that had the same or similar language; and our case law applying similar guidelines (including case law applying section 2K2.(b)(6)(B)). Id. at 1297–1300. “Ultimately,” the court concluded, “we think that, as its plain language suggests and as our analysis of proximity in the related cases dealing with guns and drugs indicates, ‘close proximity’ encompasses both physical distance and accessibility.” Id. at 1300.
The Gordillo court drew from the same “close proximity” language in section 2K2.1(b)(6)(B). “Thе phrase ‘close proximity,‘” we said, “means the same thing in Application Note 2 (semiautomatic weapons) as it does in Application Note 14 (connection between drugs and guns).” Id. at 1299. “Indeed,” we continued, “Application Notes 2 and 14 using the phrase ‘close proximity’ were added simultaneously, in the 2006 amendments. There is no reason to believe the Sentencing Commission meant anything other than the plain meaning afforded ‘close proximity’ in both situations.” Id.
Having defined the term, the Gordillo court found no error in the district court‘s conclusion that the AR-15 in the locked case and the thirty-round magazines in the bag ten feеt away were in “close proximity.” Id. at 1300. “Under a definition of ‘close proximity’ that accounts for both physical distance and accessibility,” we said, “a semiautomatic weapon—even a locked firearm inside a case—is in ‘close proximity’ to a high-capacity magazine in a bag no more than ten feet away in the same small bedroom. We have little doubt that ten feet is close physical proximity.” Id.
We also have little doubt. Martinez‘s digital scale and baggies were found in one backpack and his stolen shotgun was found in another backpack. The backрacks containing the drug paraphernalia and firearm were in the same car. The two backpacks were no more than the short distance between the floor of the passenger seat and the backseat.
The district court had evidence that Martinez, the stolen shotgun, and the baggies and scales were physically near each other in the car and accessible with no more than a reach to the backseat or passenger floorboard. We can find no clear error with the district court‘s finding that Martinez‘s stolen shotgun was found in close proximity to drug paraphernalia.
CONCLUSION
Section 2K2.1(b)(6)(B) applies to defendants who unlawfully possess a firearm and intend that the firearm would be sold for drugs. Because Martinez planned to sell a stolen shotgun for a pound of dope so he could earn money to pay his bills, and he was found driving with the stolen shotgun and paraphernalia he needed to sell the dope, the district court did not err in enhancing Martinez‘s offense level. We affirm.
AFFIRMED.
LUCK
CIRCUIT JUDGE
Notes
Whoever, during and in relation to any crime of violence or drug trafficking crime (including a crime of violence or drug trafficking crime which provides for an enhanced punishment if committed by the use of a deadly or dangerous weapon or device) for which he may be prosecuted in a court of the United States, uses or carries a firearm, shall, in addition to the punishment provided for such crime of violence or drug trafficking crime, be sentenced to imprisonment for five years, and if the firearm is a machinegun, or is equipped with a firearm silencer or firearm muffler, to imprisonment for thirty years.