United States v. Cannon

United States Court of Appeals
For the First Circuit

No. 08-1156

UNITED STATES OF AMERICA,

Appellee,

v.

RASHIEK T. CANNON,

Defendant, Appellant.

APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS

[Hon. Morris E. Lasker, U.S. District Judge]

Before

Torruella, Ripple,* and Boudin,
Circuit Judges.

David J. Barend, for appellant.
Mark T. Quinlivan, Assistant U.S. Attorney, with whom Michael
J. Sullivan, United States Attorney, and Angel Kelley Brown,
Assistant U.S. Attorney, were on brief for appellee.

December 23, 2009

*
Of the Seventh Circuit, sitting by designation.
 TORRUELLA, Circuit Judge. Appellant Rashiek T. Cannon

pled guilty to a single count of being a felon in possession of a

firearm, after police found him carrying a loaded gun during a

routine traffic stop. The district court imposed a seventy month

sentence based, in part, on its determination that Cannon had

possessed the firearm "in connection with" a felony drug offense

for purposes of U.S.S.G. § 2K2.1(b)(6). In this appeal, Cannon

challenges the district court's application of the § 2K2.1(b)(6)

enhancement, contending that the government failed to prove by a

preponderance of evidence that he knew about the existence of drugs

found in the car in which he was arrested, or that those drugs were

intended for distribution and not personal use. After careful

review, we affirm.

I. Background

A. Cannon's Arrest1

On October 5, 2004, three Brockton police officers were

on patrol in the area of Walnut Street when they observed a red

sport utility vehicle (SUV) with three occupants exceeding the

speed limit. The officers flashed their lights and pulled over the

SUV. As one of the officers approached, he saw Cannon sitting in

the right front passenger seat with a firearm visible in his right

front jacket pocket. He alerted the other officers, secured the

1
We draw these facts from the uncontested portions of the
presentence report (PSR). See United States v. Brewster, 127 F.3d
22, 24 (1st Cir. 1997).

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gun –- a loaded .38 caliber Charter Arms revolver –- and then

removed Cannon from the vehicle and placed him on the pavement.

The officers ordered the driver, Corey Allen, to get out of the

SUV; they told the rear seat passenger, Carlos Báez, to remain

inside. Allen tried to flee, but he was quickly caught by the

officers.

The officers searched Allen and found that he was

carrying a bag of marijuana. The quantity of marijuana is not

reflected in the record. The officers then removed Báez from the

rear seat and searched the SUV. They found two bags, which the PSR

describes as containing "two large pieces and one small piece" of

crack cocaine. However, there is no information in the record as

to the specific drug quantity. The record also fails to indicate

where in the SUV the crack cocaine was found, whether it was

accessible to Cannon in the front passenger seat, or whether it was

in plain view.

All three occupants were arrested. Later, during the

booking process, the police discovered that Allen had a second bag

of marijuana, also of unknown quantity, hidden in his sock and

$1,715 in cash. Báez had $100 on him and Cannon had $272. All of

the men said that they were unemployed.

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 B. Guilty Plea and Sentencing

Cannon, who had some prior convictions, qualified as a

felon for purpose of 18 U.S.C. § 922(g)(1), and was charged under

the statute with unlawful possession of a firearm.2 In March 2007

Cannon moved to have a pre-plea PSR prepared by the Probation

Department. The PSR assigned Cannon a criminal history category of

V, and recommended a four-level enhancement under U.S.S.G.

§ 2K2.1(b)(6) because Cannon had possessed the firearm "in

connection with another felony offense, to wit: distribution of

narcotics." The PSR allowed for a three-level reduction for

acceptance of responsibility and assigned a total offense level of

twenty-one. Cannon faced a maximum term of imprisonment of ten

years, and the PSR arrived at a sentencing range of seventy to

eighty-seven months.

Cannon objected to the PSR's recommended § 2K2.1(b)(6)

enhancement, contending that there was no evidence he knew about

the drugs found in the SUV or, even if he did, that he intended to

distribute them. Cannon emphasized that he did not own the car

and, unlike the driver, did not attempt to flee. Thus, he argued,

there was no basis to conclude that he possessed the gun "in

connection with" any drug offense. The Probation Department

maintained that the enhancement was proper because it applies when

2
The record does not disclose what charges, if any, were brought
against Allen and Báez.

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a gun is found in close proximity to drugs and has the potential to

facilitate another felony offense. See U.S.S.G. § 2k2.1(B)(6),

application note 14.

Cannon pled guilty in October 2007. At the Rule 11

hearing, Cannon admitted only to possessing the firearm; there was

no discussion regarding the § 2K2.1(b)(6) enhancement or the facts

supporting that enhancement. Cannon acknowledged that he could

face up to ten years in prison as a result of his plea.

Later, at the sentencing hearing, the government

recommended that Cannon receive full credit for acceptance of

responsibility and a sentence at the low end of the Guidelines

range. Cannon's attorney reasserted his objection to the § 2K2.1

(b)(6) enhancement and, in his allocution, Cannon denied that he

had "anything to do with the drugs they found." The government

countered that circumstantial evidence supported the enhancement,

stating "there is a very strong argument that the defendant was in

constructive possession of the drugs."

The district court found that, while it was "not possible

to decide the question with absolute certainty or, necessarily

beyond a reasonable doubt," the evidence supporting the enhancement

was "very strong against the defendant." The court concluded that

"a fair determination of the [enhancement issue] is that it be

decided by putting a sentence at the very bottom of the

Guidelines." Accordingly, Cannon was sentenced to seventy months'

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imprisonment, at the low end of the recommended range. As the

court noted, the sentence "[took] into consideration that [Cannon]

was found with drugs and that that was related to the offense in

this case." This appeal followed.

II. Discussion

We review the district court's interpretation of the

Sentencing Guidelines de novo, factual findings for clear error,

and its application of the Guidelines to a particular set of facts

on a "sliding scale." United States v. Sicher, 576 F.3d 64, 71 &

n.6 (1st Cir. 2009). Where, as here, a defendant challenges the

factual predicate supporting the district court's application of a

sentencing enhancement, "we ask only whether the court clearly

erred in finding that the government proved the disputed fact by a

preponderance of the evidence." United States v. Luciano, 414 F.3d

174, 180 (1st Cir. 2005). "[W]here there is more than one

plausible view of the circumstances, the sentencing court's choice

among supportable alternatives cannot be clearly erroneous."

United States v. Campusano, 556 F.3d 36, 39 (1st Cir. 2009)

(internal quotation marks omitted).

Pursuant to U.S.S.G. § 2K2.1(b)(6), a defendant is

subject to a four-level increase in his base offense calculation if

he "used or possessed any firearm or ammunition in connection with

another felony offense; or possessed . . . any firearm . . . with

knowledge, intent, or reason to believe that it would be used or

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possessed in connection with another felony offense." We have held

that, as used in this provision of the Guidelines, "the phrase 'in

connection with' should be interpreted broadly." United States v.

Thompson, 32 F.3d 1, 7 (1st Cir. 1994).

Although there must be a causal or logical
relation or sequence between the possession
and the related offense, and mere coincidental
possession is insufficient, we will find that
a firearm has been used "in connection with"
an offense if the possession has the potential
to aid or facilitate the other crime.

United States v. Peterson, 233 F.3d 101, 111 (1st Cir. 2000).

"[I]n the case of a drug trafficking offense in which a firearm is

found in close proximity to drugs, . . . [the enhancement] is

warranted because the presence of the firearm has the potential of

facilitating another felony offense." U.S.S.G. § 2K2.1(b)(6),

application note 14.

In this appeal, Cannon argues that the § 2K2.1(b)(6)

enhancement should not have applied because the record is

insufficient to support the inference that he knew about the drugs

or, in the alternative, that the drugs were intended for anything

but personal consumption. While Cannon acknowledges that he was

found with the firearm in "close proximity" to drugs, he emphasizes

the absence of direct proof linking him to the drugs or drug

distribution, including evidence as to drug quantity, whether the

drugs found in the SUV were in plain view, or whether they were

otherwise readily accessible to him in the front seat. He

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maintains that his possession of the firearm was merely

coincidental.

While direct proof of Cannon's knowledge and intent

regarding the drugs may be lacking, "[a] sentencing court is

entitled to rely on circumstantial evidence, and draw plausible

inferences therefrom" in determining whether an enhancement should

apply. United States v. Marceau, 554 F.3d 24, 32 (1st Cir. 2009)

(internal citations omitted); see Sicher, 576 F.3d at 71. Indeed,

in narcotics cases, we have often recognized that knowledge and

intent "'must be proved largely by circumstantial evidence.'"

United States v. Hernández, 218 F.3d 58, 66 (1st Cir. 2000)(quoting

United States v. Valencia, 907 F.2d 671, 678 (7th Cir. 1990)). In

this case, the record reflects that Cannon, no stranger to the drug

trade, was arrested with a loaded revolver while traveling in a

vehicle in which police found multiple packages of drugs, as well

as a substantial amount of cash among the occupants, all of whom

indicated they were unemployed. These circumstantial facts, taken

together, were sufficient to permit the district court to

reasonably infer under a preponderance standard that Cannon had

knowledge of the drugs and that the drugs were intended for sale

and not personal consumption. As we discuss, these findings are

intertwined.3

3
The district court determined that Cannon was "found with drugs"
and that the firearm was possessed "in the presence at least of
drug transactions." These determinations necessarily encompass

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 First, the large quantity of cash found on the driver,

and the lesser but still substantial amounts found on Cannon and

Báez, support the inference that the car's occupants were engaged

in the sale, rather than casual use, of drugs. See, e.g., United

States v. Ayala-García, 574 F.3d 5, 13 (1st Cir. 2009) (finding

that "[t]he large amount of cash," viz., $1,068, found in bag

containing individually-packaged drugs supports inference that

drugs were intended for distribution); United States v.

Mangual-Santiago, 562 F.3d 411, 425 (1st Cir. 2009) (explaining

that "large amounts of cash," such as the $1000 found on the

defendant, "are . . . probative of the intent to distribute

narcotics" (internal quotation marks omitted)).

We have often held that firearms, too, are probative of

an intent to distribute narcotics. See, e.g., United States v.

Rivera-Calderón, 578 F.3d 78, 94 (1st Cir. 2009) (evidence that

defendant carried firearm in vicinity of armed drug conspiracy

supports inference of membership in the conspiracy; "[i]n drug

findings that Cannon knew about the drugs in the SUV and that those
drugs were intended for distribution and not personal consumption.
See Sicher, 576 F.3d at 71 (explaining that district courts need
not "specify the precise basis for the application of [an]
enhancement" because "a sentencing court's reasoning can often be
inferred by comparing what was argued by the parties or contained
in the pre-sentence report with what the judge did")(internal
quotation marks and alterations omitted); see also United States v.
Tavano, 12 F.3d 301, 307 (1st Cir. 1993). Because we find these
facts sufficient to permit application of the enhancement, we do
not address whether the district court found, or the government
proved, that Cannon was in constructive possession of the drugs, an
issue which the parties have not briefed in any detail.

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trafficking firearms have become 'tools of the trade' and thus are

probative of the existence of a drug conspiracy"). While we

acknowledge that a gun's physical proximity to drugs alone may be

insufficient to justify a court in applying the enhancement in all

circumstances, cf. United States v. Sturtevant, 62 F.3d 33, 34-35

(1st Cir. 1995)(per curiam)(citing as an example of coincidental

possession "an accountant who, while forging checks, happens to

have a gun in the desk drawer"), the district court was not

required to turn a blind eye to the logical relationship between

the presence of multiple packages of drugs, the loaded firearm, and

the large amount of cash in determining whether the drugs found in

the SUV were intended for distribution or personal use. See, e.g.,

United States v. Ford, 22 F.3d 374, 383 (1st Cir. 1994)

("[F]irearms and large amounts of cash are each probative of the

intent to distribute narcotics."); see also United States v.

Fisher, 912 F.2d 728, 731 (4th Cir. 1990)("The large amount of cash

found in [the defendant's] possession and his ownership of handguns

is . . . circumstantial evidence of his involvement in narcotics

distribution.").

We also find Cannon's history of drug distribution

relevant to the question of whether he was, as he claims, ignorant

of the drugs and their intended distribution. See United States v.

Richardson, 510 F.3d 622, 628 (6th Cir. 2007) (where defendant "had

two prior convictions for possession with intent to distribute

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controlled substances and less than four months after the instant

offense, he was convicted again for possession and distribution of

marijuana . . . he had an established knowledge and participation

in drug trafficking activity" which supports inference that

defendant possessed gun "in connection with" drugs found in close

proximity); United States v. LePage, 477 F.3d 485, 489 (7th Cir.

2007) (defendant's prior sale of drugs "consistent with an

inference that he is a trafficker"). The PSR indicates that in

March 2002 Cannon was and charged with possession of, with intent

to distribute, crack cocaine, after he was found with a bag of

crack, three bags of marijuana, and $2,485 in cash -– circumstances

strikingly similar to those of the instant offense. The charge was

later reduced to simple possession, and Cannon was convicted. The

PSR also reveals that, just three months after his arrest in this

case, Cannon was again arrested and subsequently convicted for

possession of, with intent to distribute, crack cocaine. This

history further supports the inference that Cannon was no idle

passenger at the time of this offense, and that his possession of

the loaded gun was not mere happenstance. The district court was

permitted to use its common sense to conclude that Cannon's loaded

gun and the drugs found in the SUV were the tools of a single,

shared criminal endeavor. Cf. United States v. Batista-Polanco,

927 F.2d 14, 18 (1st Cir. 1991)("[I]t runs counter to human

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experience to suppose that criminal conspirators would welcome

innocent nonparticipants as witnesses to their crimes.").

In opposing the enhancement, Cannon's principal theme is

that the record in this case fails to reflect direct evidence of

knowledge, or an intent to distribute, of the sort present in other

cases where § 2K2.1(b)(6) enhancements have been upheld. Thus,

Cannon emphasizes that he has never admitted to knowledge of the

drugs, compare United States v. Gonzáles, 506 F.3d 940, 947 (9th

Cir. 2007); that no witness ever saw him involved in drug activity

related to the instant offense, compare Thompson, 32 F.3d at 7;

that there is no evidence that the drugs were visible or readily

accessible to him, or found alongside certain paraphernalia

associated with drug distribution, such as scales or ledgers,

compare Peterson, 233 F.3d at 104; and, finally, that there is no

evidence as to the nature of his relationship with Allen and Báez

sufficient to permit an inference of a close association, compare

Richardson, 510 F.3d at 627-28 (attributing knowledge to defendant

of drugs found in his girlfriend's purse). However, the cases on

which Cannon relies do not purport to lay a minimum evidentiary

threshold for application of an enhancement under § 2K2.1(b)(6).

Rather, as we have explained, the issue presented for review is

whether the district court clearly erred in finding, by a

preponderance of the evidence, that Cannon knew about the drugs and

that the drugs were intended for distribution. Based on the

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considerations discussed above, we conclude that the totality of

evidence before the district court plausibly supports such

conclusions.

Accordingly, because we find that the record supports the

inference Cannon possessed the loaded gun knowing that there were

drugs in the SUV which were intended for sale, we hold that

Cannon's possession of the firearm had the potential to facilitate

the offense of distribution -– by emboldening the enterprise,

aiding the collection of a drug debt, or in any number of

foreseeable ways –- and was therefore "connect[ed] with" that

felony for purposes of the enhancement. See, e.g., Thompson, 32

F.3d at 8 (noting that "the usual case in which the § 2K2.1

[enhancement] is used to apply drug guidelines to a firearms

offender is where the defendant used a firearm for protection

during a drug transaction or had the firearm available to protect

his supply of drugs"); see also United States v. Loney, 219 F.3d

281, 288 (3d Cir. 2000) ("[W]hen a defendant has a loaded gun on

his person while caught in the midst of a crime that involves

in-person transactions, . . . a district judge can reasonably infer

that there is a relationship between the gun and the offense

. . . ." (citing Sturtevant, 62 F.3d at 33)).4

4
Because we find that the district court plausibly determined
that the drugs were intended for distribution, we decline to
address the alternative argument raised by the government that
Cannon's possession of the gun in connection with the felony of
simple possession of drugs for personal use would support

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 Affirmed.

enhancement under § 2K2.1(b)(6). See LePage, 477 F.3d at 489
(noting that "possessing a gun while engaged in the casual use of
drugs might not give rise to the inference that the gun was
possessed in connection with the drugs").

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