United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued January 26, 2009 Decided July 10, 2009
No. 08-3020
UNITED STATES OF AMERICA,
APPELLEE
v.
ANTOINE H. BLALOCK,
APPELLANT
Appeal from the United States District Court
for the District of Columbia
(No. 1:07-cr-00157-HHK-1)
Edward C. Sussman, appointed by the court, argued the
cause and filed the brief for appellant.
Michael T. Ambrosino, Assistant U.S. Attorney, argued the
cause for appellee. With him on the brief were Jeffrey A.
Taylor, U.S. Attorney, and Roy W. McLeese III, Assistant U.S.
Attorney.
Before: GINSBURG, GARLAND, and KAVANAUGH, Circuit
Judges.
Opinion for the Court filed by Circuit Judge GARLAND.
2
GARLAND, Circuit Judge: Appellant Antoine Blalock pled
guilty to unlawful possession of a firearm by a convicted felon,
in exchange for the government’s agreement to drop other gun
and drug charges. At sentencing, the parties disagreed over
whether Blalock was subject to an upward adjustment under the
United States Sentencing Guidelines for possessing the firearm
in connection with another felony offense. The district court
concluded that Blalock possessed the gun in connection with his
possession with intent to distribute marijuana, and it therefore
applied the enhancement. Blalock now appeals, contending that
the district court erred in enhancing his sentence. Finding no
error, we affirm the judgment of the district court.
I
On the morning of May 21, 2007, Blalock drove up to the
Metropolitan Police Department’s (MPD) Seventh District
station in southeast Washington, D.C.1 He stopped his car in the
middle of the street, got out, walked around to the back, and
pulled a black bag from the trunk. Moments later, he began
shooting a gun into the air. As he fired, a witness heard him
yell: “[T]he police should leave us alone and let us sell our
weed.” Proffer of Evidence 1 (Nov. 9, 2007). MPD officers
heard the shots and ran outside. An officer drew his weapon and
approached Blalock, ordering him to put the gun down. Blalock
removed the magazine from the gun and threw both magazine
and gun to the ground. He then took off all his clothes and stood
naked in the street.
1
Our recitation of the facts draws on information from a “Proffer
of Evidence” that Blalock signed as part of his plea agreement, and
from a factual statement in his Presentence Investigation Report that
he did not contest.
3
The police arrested Blalock without further incident. From
the area at his feet, they recovered a semi-automatic handgun
and five shell casings. Amidst Blalock’s belongings scattered
near his car’s trunk, officers found twenty-four individually
packaged bags of marijuana. According to the “Proffer of
Evidence” that Blalock signed as part of his plea agreement, the
bags contained an aggregate of 44.1 grams of marijuana, which
was “packaged in a manner and found in an amount that was
consistent with the way marijuana is distributed in the District
of Columbia.” Id. at 2.
Upon his arrest, Blalock told the officers that he had driven
to the police station to win recognition for his record label. The
officers then drove Blalock to a hospital, where he was found to
have phencylidine (PCP) in his bloodstream. He was released
to police custody later that day.
On June 9, 2007, a grand jury indicted Blalock on one count
of possession of a firearm and ammunition by a convicted felon,
in violation of 18 U.S.C. § 922(g)(1); one count of possession
with intent to distribute marijuana, in violation of 21 U.S.C.
§ 841(a)(1) & (b)(1)(D); and one count of using, carrying, and
possessing a firearm during a drug trafficking offense, in
violation of 18 U.S.C. § 924(c)(1). On November 9, 2007,
Blalock entered into a plea agreement with the government. He
agreed to plead guilty to unlawful possession of a firearm by a
convicted felon; in return, the government agreed to dismiss the
remaining charges. The agreement specifically stated that
neither party was “precluded from arguing for or against the
applicability of . . . §2K2.1(b)(6) of the Sentencing Guidelines,”
Plea Agreement 3 (Nov. 9, 2007), which provides for a four-
level increase in a defendant’s base offense level “[i]f the
defendant used or possessed any firearm or ammunition in
connection with another felony offense,” U.S. SENTENCING
4
GUIDELINES MANUAL § 2K2.1(b)(6) (2007) [hereinafter
U.S.S.G.].
Prior to sentencing, the U.S. Probation Office prepared a
Presentence Investigation Report (PSR) that calculated
Blalock’s criminal history and offense level under the
Guidelines. It noted that Blalock’s multiple previous
convictions generated a criminal history category of IV, and that
his base offense level started at 20 because he committed the
weapons offense after sustaining at least one felony conviction
for a crime of violence. See U.S.S.G. § 2K2.1(a)(4)(A).
Because Blalock accepted responsibility for the gun crime, the
PSR reduced his offense level to 17, see id. § 3E1.1, which,
coupled with his criminal history category, would have yielded
a sentencing range of 37 to 46 months’ imprisonment. See id.
ch. 5, pt. A (sentencing table). But the PSR then added a four-
offense-level enhancement under Guideline § 2K2.1(b)(6) based
on the conclusion that Blalock had used or possessed the firearm
in connection with another felony offense, namely, possession
with intent to distribute marijuana. The resulting offense level
of 21 generated a sentencing range of 57 to 71 months. See id.
ch. 5, pt. A.
At the sentencing hearing that followed, Blalock’s counsel
objected to the four-level enhancement under § 2K2.1(b)(6).
Counsel argued that, because Blalock was suffering from PCP
intoxication at the time of his arrest, he did not possess the
marijuana with the specific intent to distribute it. The
government responded that Blalock’s PCP intoxication did not
prevent him from forming the intent necessary to commit the
drug offense. Although the court told Blalock that his counsel
“ma[d]e a very good argument on [his] behalf,” Sentencing Hr’g
Tr. 31-32 (March 7, 2008), it nonetheless found by a
preponderance of the evidence that Blalock possessed the
marijuana with the intent to distribute it. The court imposed a
5
sentence of 57 months’ incarceration, which is the subject of this
appeal.
II
In the wake of the Supreme Court’s decision in United
States v. Booker, 543 U.S. 220 (2005), the Sentencing
Guidelines “are now advisory, and appellate review of
sentencing decisions is limited to determining whether they are
‘reasonable.’” Gall v. United States, 128 S. Ct. 586, 594 (2007).
We review the reasonableness of a sentence in two steps. First,
we must “ensure that the district court committed no significant
procedural error, such as . . . improperly calculating . . . the
Guidelines range.” Id. at 597. Second, we “consider the
substantive reasonableness of the sentence imposed under an
abuse-of-discretion standard.” Id. This appeal involves only the
accuracy of the district court’s Guidelines calculation.
Blalock’s sole contention is that the court erred by
increasing his offense level under Guideline § 2K2.1(b)(6). To
determine whether the increase was warranted, the district court
properly applied a preponderance of the evidence standard. See
United States v. Watts, 519 U.S. 148, 156-57 (1997) (citing
U.S.S.G. § 6A1.3 cmt.); In re Sealed Case, 246 F.3d 696, 698
(D.C. Cir. 2001). In reviewing a sentencing determination, we
“‘shall accept the findings of fact of the district court unless they
are clearly erroneous’ and ‘shall give due deference to the
district court’s application of the guidelines to the facts.’”
United States v. McCants, 554 F.3d 155, 160 (D.C. Cir. 2009)
(quoting 18 U.S.C. § 3742(e)).2 “[D]ue deference presumably
2
Although Booker “held § 3742(e) unconstitutional insofar as it
required courts to reverse sentences falling outside the applicable
Sentencing Guidelines range, we have since held that this section
continues to provide the standard by which we review a district court’s
6
. . . fall[s] somewhere between de novo and clearly erroneous.”
Id. (internal quotation marks omitted).
Section 2K2.1(b)(6) provides for a four-level increase in a
defendant’s offense level if he “used or possessed any firearm
or ammunition in connection with another felony offense.”
U.S.S.G. § 2K2.1(b)(6). The “[]other felony offense” the court
found here was possession with intent to distribute marijuana in
violation of 21 U.S.C. § 841(a)(1) & (b)(1)(D), as charged in
Blalock’s indictment. Blalock objects to two determinations the
district court made in applying § 2K2.1: (1) that he possessed
marijuana with the intent to distribute it; and (2) that he
possessed his weapon “in connection with” that drug crime.
We review the first of these determinations for clear error,
as it is plainly a finding of fact. McCants, 554 F.3d at 160.
What standard applies to the district court’s “in connection
with” determination is a closer question. On the one hand, the
Eighth Circuit has treated the issue as a factual finding subject
to clear error review. See United States v. Regans, 125 F.3d
685, 686 (8th Cir. 1997). On the other hand, when this circuit
“has focused on whether particular conduct was sufficient to
warrant [an] enhancement, it has largely accorded due
deference.” United States v. Henry, 557 F.3d 642, 645 (D.C.
Cir. 2009); cf. McCants, 554 F.3d at 161 (noting that the due
deference standard applies to a district court’s determination that
a defendant’s acts “fall within the Sentencing Guidelines’
definition of relevant conduct”). Because whether a defendant’s
conduct meets the “in connection with” requirement seems best
described as an application of the Guidelines to the facts, we
review that determination under the due deference standard.
application of the Sentencing Guidelines.” McCants, 554 F.3d at 160
n.3; see United States v. Tann, 532 F.3d 868, 874 (D.C. Cir. 2008).
7
A
Blalock’s first contention is that he did not possess his
firearm in connection with “another felony offense,” U.S.S.G.
§ 2K2.1(b)(6), because he did not commit another felony
offense. He notes that the only such offense alleged --
possession with intent to distribute marijuana -- requires the
specific intent to distribute a controlled substance. And he
maintains that, as a result of PCP intoxication, he lacked the
capacity to form the necessary mens rea. We find no clear error
in the district court’s determination that Blalock had the
requisite intent. See Sentencing Hr’g Tr. 25-26.
It is true both that voluntary intoxication can prevent a
defendant from being able to form the requisite state of mind for
a specific intent crime, see Parker v. United States, 359 F.2d
1009, 1012 n.5 (D.C. Cir. 1996); Heideman v. United States, 259
F.2d 943, 946 (D.C. Cir. 1958), and that possession with intent
to distribute a controlled substance is such a crime, see United
States v. Douglas, 482 F.3d 591, 596 (D.C. Cir. 2007). But
intoxication does not always have that effect, and whether it
does in any given case depends upon the evidence. See
Heideman, 259 F.2d at 946. The leading precedent is Heideman
v. United States, in which the defendant -- a sailor attached to a
navy ship docked in Washington, D.C. -- was charged with
assaulting a taxi driver with the intent to rob him. The
defendant did not dispute that he had “sandbagged” the driver,
hitting him from behind with a sock filled with gravel. But he
did dispute that he had the requisite intent, employing --
literally -- a “drunken sailor” defense: the defendant maintained
that he was too intoxicated to have had the required intent to
rob. The court disagreed, observing that the defendant had not
been too drunk to fill the sock with gravel before entering the
taxi or to rifle the driver’s pockets after hitting him. Id. at 947.
Holding that “[d]runkenness, while efficient to reduce or remove
8
inhibitions, does not readily negate intent,” the court concluded
that “the evidence in this case could not create a reasonable
doubt in the mind of any reasonable man as to whether appellant
possessed the requisite intent” for the crime of robbery. Id. at
946-47 (footnote omitted).
We need not go that far to resolve this appeal. There is no
dispute that Blalock was high on PCP when he arrived at the
police station. Nor is there any doubt that Blalock’s intoxication
reduced his inhibitions, as evidenced by his decision to strip
naked on the street. At the same time, however, he was
sufficiently in control of his faculties to operate a motor vehicle,
deliberately drive to the police station, retrieve his gun from the
trunk, fire the weapon into the air several times, and then
remove the magazine and throw down both the gun and
magazine when ordered to do so. This evidence is adequate to
support the court’s conclusion, by a preponderance of the
evidence, that the PCP had not “negate[d]” Blalock’s ability to
form the necessary intent. Id. at 946.3
3
See United States v. Trabue, No. 99-6406, 2000 WL 1828671,
at *2 (6th Cir. Dec. 5, 2000) (holding that the district court reasonably
found the defendant’s alcohol consumption did not negate his intent
to commit aggravated assault because, “even though [the defendant]
had been drinking, [he] had the presence of mind to take hostages,
refuse to speak with a . . . negotiator, exit the back door in an attempt
to evade the SWAT team, and then circle around the house when he
was confronted by officers”); United States v. Briseno-Mendez, 1998
WL 440279, at *12 (10th Cir. July 17, 1998) (holding that, even if the
defendant “was drunk at the time he was arrested,” there was “no
evidence his intoxication created a mental impairment sufficient to
negate the existence of specific intent” to commit conspiracy).
9
Moreover, as the district court also concluded, what
Blalock’s intent was is indicated by the words he uttered while
firing his gun: “[T]he police should leave us alone and let us
sell our weed.” Proffer of Evidence 1. Indeed, those words
confirm the reasonable inference that can be drawn from the fact
that the twenty-four bags of marijuana scattered on the ground
around his trunk were “packaged in a manner and found in an
amount that was consistent with the way marijuana is distributed
in the District of Columbia.” Id. at 2; see, e.g., United States v.
Williams, 233 F.3d 592, 595 (D.C. Cir. 2000) (noting that intent
to distribute narcotics may readily be inferred when drugs are
packaged in a large number of individual bags).4 In combination
with the evidence that Blalock retained significant control of his
faculties, these facts require us to conclude that the district court
did not clearly err in finding that Blalock was capable of
forming -- and did form -- the specific intent to distribute
marijuana. See, e.g., United States v. Richardson, 459 F.2d
1133, 1134 (D.C. Cir. 1972) (holding that, despite some
evidence that the defendant might have been under the influence
of narcotics, “there [wa]s clear evidence supporting an inference
that appellant had the requisite specific intent [to commit
robbery], e.g., appellant’s statement to the teller, ‘Now you can
help me, you can give me those fives, tens, and twenties, and put
them neatly in a bag’”).
Blalock contends that “it would be ludicrous to conclude
that [he] . . . arrived [at the police station] with the distribution
4
See also United States v. Glenn, 64 F.3d 706, 711 (D.C. Cir.
1995) (“[T]he segregation of the cocaine found on [the defendant] into
nine individual ziplock bags could reasonably have supported the
jury’s inference that [the defendant] intended to distribute it.”); United
States v. Herron, 567 F.2d 510, 513 (D.C. Cir. 1977) (noting that
intent to distribute narcotics could be inferred from the fact that “the
heroin . . . was packaged in a convenient manner as if for sale”).
10
or sale of marijuana in mind.” Appellant’s Br. 7. But an intent
to distribute at any particular place or time is not an element of
21 U.S.C. § 841(a)(1). As the Seventh Circuit held in United
States v. Hairston, “[t]he question is not whether [the defendant]
intended to distribute the drugs at the moment of his arrest[,] . . .
but whether [he] intended to distribute them at any time (within
the period of limitations).” 23 Fed. Appx. 555, 556 (7th Cir.
2001). See generally United States v. Mancillas, 172 F.3d 341,
343 (5th Cir. 1999); United States v. Bruce, 939 F.2d 1053, 1056
(D.C. Cir. 1991). It was not clearly erroneous for the district
court to conclude that a man who said he wanted the police to
“let us sell our weed” intended to do just that.
B
Blalock’s second contention is that he did not use or possess
his weapon “in connection with” the marijuana offense.
Application Note 14 to § 2K2.1 provides that, in general, the “in
connection with” requirement is satisfied if “the firearm . . .
facilitated, or had the potential of facilitating, another felony
offense.” U.S.S.G. § 2K2.1 cmt. n.14(A). When the other
felony offense is a drug trafficking crime, the Application Note
states that the enhancement applies if the “firearm is found in
close proximity to drugs, drug-manufacturing materials, or drug
paraphernalia.” Id. § 2K2.1 cmt. n.14(B). In such a case,
“application of [the enhancement] is warranted because the
presence of the firearm has the potential of facilitating another
felony offense.” Id.; see also United States v. Hardin, 248 F.3d
489, 498-99 (6th Cir. 2001) (“The fact that the firearm was
found in the same room where the cocaine was stored can lead
to the justifiable conclusion that the gun was used in connection
with the felony.”); Regans, 125 F.3d at 686 (explaining that,
because “a firearm is a ‘tool of the trade’ for drug dealers[,] . . .
a factfinder may infer a connection when defendant carried a
firearm and a distribution quantity of illegal drugs”).
11
In this case, there is no dispute that Blalock’s handgun was
found “in close proximity to drugs”; when the police confronted
him, the gun was in his hand and the marijuana was scattered
nearby. Accordingly, his counsel had to concede that the only
way to reverse the district court’s “in connection with” finding
would be to disregard Application Note 14. Oral Arg.
Recording at 6:53-58. But “commentary in the Guidelines
Manual that interprets or explains a guideline is authoritative
unless it violates the Constitution or a federal statute, or is
inconsistent with, or a plainly erroneous reading of, that
guideline,” Stinson v. United States, 508 U.S. 36, 38 (1993),
and there is no such violation or inconsistency here. Indeed,
even without the Application Note, we would have to agree with
this observation of the district court: “[I]t’s hard to get around
the proposition that the firing [of] the gun in the air is . . .
connected with letting us sell our weed when, in fact, weed was
in the car from which Mr. Blalock emerged and was scattered
around on the ground[].” Sentencing Hr’g Tr. 25; see id. at 32.
III
For the foregoing reasons, the judgment of the district court
is
Affirmed.