PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
No. 09-2860
UNITED STATES OF AMERICA
v.
WILLIAM WEST,
Appellant
On Appeal from United States District Court
for the Middle District of Pennsylvania
(D.C. No. 4-08-cr-00238-001)
District Judge: Honorable John E. Jones, III
Argued February 4, 2010
Before: McKEE, Chief Judge, HARDIMAN, Circuit Judge,
and RUFE, District Judge*
(Filed: April 29, 2011)
OPINION
*The Honorable Cynthia M. Rufe, United States
District Judge for the Eastern District of Pennsylvania, sitting
by designation.
Stephen F. Becker (Argued)
Shapiro & Becker
114 Market Street
Lewisburg, PA 17837-0000
Attorney for Appellant
Theodore B. Smith, III (Argued)
Executive Office of the
United States Attorney
Evaluation & Review Staff
600 E. Street, N.W.
Suite 8500, Bicentennial Bldg.
Washington, DC 20530
Attorney for Appellee
RUFE, District Judge.
William West appeals the sentence imposed on him by
the District Court for possession of a stolen firearm in violation
of 18 U.S.C. § 922(j). Specifically, West challenges the District
Court’s application of a four-level enhancement to his sentence,
pursuant to U.S.S.G. § 2K2.1(b)(6), for possessing a firearm in
connection with another felony offense. We have jurisdiction
over this appeal pursuant to 18 U.S.C. § 1291 and 18 U.S.C. §
3742. For the reasons that follow, we vacate West’s sentence
and remand to the District Court for resentencing.
I.
Under 18 U.S.C. § 3742(a)(1)–(a)(2), this Court has
jurisdiction to review sentences imposed in violation of the law
or as a result of an incorrect application of the United States
Sentencing Guidelines (the “Guidelines”). United States v.
Harrison, 357 F.3d 314, 317 (3d Cir. 2004), sentence vacated
and remanded, 543 U.S. 1102 (2005). At sentencing, a district
court should apply a preponderance of the evidence standard to
all facts relevant to the Guidelines, including any finding that
the defendant committed the offense of conviction in connection
with another felony. United States v. Grier, 475 F.3d 556, 568
(3d Cir. 2007) (en banc); see also United States v. Berry, 553
2
F.3d 273, 280 (3d Cir. 2009). “That the District Court applied
an acceptable burden of proof does not, of course, mean that its
findings of fact should be upheld.” Grier, 475 F.3d at 568. We
review the District Court’s factual findings relevant to the
Guidelines for clear error and exercise plenary review over the
District Court’s interpretation of the Guidelines. Grier, 475
F.3d at 570; see also Harrison, 357 F.3d at 317 (“This Court
reviews a district court’s interpretation of the sentencing
guidelines de novo, and a district court’s findings of fact
supporting application of the guidelines for clear error.” (citing
United States v. Butch, 256 F.3d 171, 177 (3d Cir. 2001))). We
also review for clear error the District Court’s determination of
what constitutes “relevant conduct” for the purposes of
sentencing. See Harrison, 357 F.3d at 317 (citing United States
v. Perez, 280 F.3d 318, 352–54 (3d Cir. 2002)). “‘A finding is
clearly erroneous when, although there is evidence to support it,
the reviewing body on the entire evidence is left with the
definite and firm conviction that a mistake has been
committed.’” Grier, 475 F.3d at 570 (quoting Concrete Pipe &
Prods. of Cal., Inc. v. Constr. Laborers Pension Trust for S.
Cal., 508 U.S. 602, 622 (1993)) (internal citations and
punctuation omitted). “A sentence imposed as a result of a
clearly erroneous factual conclusion will generally be deemed
‘unreasonable’ and, subject to the doctrines of plain and
harmless error, will result in remand to the district court for
resentencing.” Id. at 570.
II.
In order to support its application of the four-level
Sentencing Guidelines enhancement for possession of a firearm
in connection with another felony, the District Court relied on
two events: (1) West’s February 28, 2007 arrest and subsequent
plea to possession of a stolen firearm; and (2) a July 27, 2007
incident which led to an arrest, but not a conviction.
A.
On February 28, 2007, West was pulled over by a
Pennsylvania State Police trooper for a traffic offense while
traveling on Interstate 80 in the vicinity of Bloomsburg,
3
Pennsylvania. The trooper issued a warning for the traffic
offense and obtained West’s consent to search the vehicle.
1
In the glove compartment, the trooper found approximately
$9,000 in cash, a small amount of marijuana,
2
and a .45 caliber Taurus handgun.
3
Police took West and his passenger into custody and obtained
a search warrant for the rest of the car, pursuant to which they
discovered a .38 caliber Taurus revolver inside a backpack in the
trunk.
4
In a post-arrest interview, after waiving his Miranda rights,
West admitted both to possession of the cash and marijuana
found in the glove compartment and to knowledge that the car
1
See Sentencing Tr. 6 (June 16, 2009) (Dkt. No.
61). All court documents cited herein, except the appellate
briefs and the Presentence Investigation Report, are entered on
the docket for United States v. William West, No. 4:08-cr-00238
(M.D. Pa.) (filed June 11, 2008).
2
The record does not provide the specific amount
of marijuana found in the glove compartment. The parties
concede that “small amount[s]” of marijuana were seized during
both the February and July incidents, but the precise measures
are not identified in either party’s appellate brief, the
Presentence Investigation Report, either party’s sentencing
memorandum (Dkt. Nos. 41 & 42), the District Court’s
sentencing Opinion and Order (Dkt. No. 49), or the transcript of
the sentencing proceeding (Dkt. No. 61). The only document
suggesting the amount of drugs seized in either incident is a
motion filed by the Government post-sentencing, which states
that “[i]n the course of the investigation and prosecution of the
above-captioned case, police seized and retained . . .
contraband,” including “2 small baggies of marijuana.” Mot. to
Confiscate & Destroy Firearm (Sept. 9, 2009) (Dkt. No. 62).
The Motion provides no further detail, however, as to the total
quantity of marijuana the baggies contained or what portion of
that total was seized in each incident.
3
Sentencing Tr. 7, 11.
4
Id.
4
contained at least one firearm, but did not admit to possession or
ownership of either of the guns found in the car.
5
The gun in the glove compartment, he asserted, belonged to
Tyana Martin, the sister of West’s girlfriend, Taniea Martin.
6
West had observed Tyana Martin place the .45 in the glove
compartment the preceding Saturday, February 24th, while the
two of them were attending a party, but did not notice that the
gun was still there when he placed his own items in the glove
compartment on the morning of February 28th.
7
West also told police that he and Tyana Martin had not driven
the car home from the party, but had left it parked on the street
overnight. When he returned to retrieve the car the Monday
morning after the party, he noticed a .38 revolver lying on the
rear seat; he picked up the revolver, handled it, and replaced it
on the rear seat.
8
Post-arrest, West also admitted that he had placed cash and
marijuana in the glove compartment on the day of his arrest,
9
but did not explain how the .38 found its way onto the rear seat
of the car, or later, into a backpack in the trunk.
10
West was charged locally for this incident and released on
bail.
5
Id. at 11–15
6
Id. at 12.
7
Id. at 12–13, 15.
8
Id. at 12, 15–16
9
Id. at 12–13, 15.
10
At the time of his guilty plea, West acknowledged
that he knew the .38 was stolen. Mem. Op. & Order 2 (May 21,
2009) (Dkt. No. 49).
11
Id.
5
11
He later pleaded guilty to possession of the stolen .38
revolver found in the trunk, but not to possession of the .45 in
the glove compartment.
12
B.
Five months later, on July 27, 2007, during a fire-code
inspection of West’s girlfriend’s rented apartment at 319 Louisa
Street, in Williamsport, Pennsylvania, a local fire marshal
observed a handgun resting on top of a bureau in a bedroom in
which West was sleeping.
12
The Presentence Investigation Report (“PSR”)
lists four arrests for West between February and November of
2007: (1) February 28th, for possession of a firearm and
possession of marijuana; (2) July 27th, for possession,
conspiracy to manufacture, and possession with intent to deliver
a controlled substance; (3) November 7th, for possession of drug
paraphernalia, and possession of and possession with intent to
deliver a controlled substance; and (4) November 11th, for
possession of marijuana. See PSR ¶ 36–39 (Feb. 23, 2009). No
federal charges were filed regarding the November 2007 arrests,
and no evidence was presented on those allegations at
sentencing. After the instant federal indictment was filed, all
local charges were dismissed in lieu of federal prosecution. See
id.
13
Sentencing Tr. 21–22. The Presentence Report
notes that a fire department employee “observed suspected
narcotics in the home” and contacted police. PSR ¶ 9. This
account was later contradicted by testimony presented at
sentencing, in which Patrol Supervisor John McKenna stated
that fire marshals contacted police because they observed a
handgun on top of a dresser. Sentencing Tr. 21. Both parties
cited McKenna’s version of the facts in their respective briefs.
See Appellant’s Br. 6; Appellee’s Br. 9. No further clarification
of this discrepancy is found in the record.
6
13
Police, summoned by fire marshals, arrived at the scene just
as West was leaving the apartment.
14
Police detained West and questioned him about the presence
of firearms on his person or in the apartment.
15
He led the officers upstairs to the bedroom, but the gun was
no longer on the bureau.
16
West summoned his girlfriend, Taniea Martin, who admitted
to police that she had moved the gun, and consented to have the
apartment searched.
17
The gun, a 9mm Kel-Tec pistol, was recovered from a
clothing-filled trash bag located outside the bedroom door.
18
A search of the entire apartment led to the discovery of an
unspecified amount of cash, a small amount of marijuana,
19
unspecified drug paraphernalia, and an empty box for a
handgun with the same serial number as that seized five months
earlier from the glove compartment of the vehicle operated by
West.
14
Sentencing Tr. 22.
15
Id.
16
Id. at 23.
17
Id. at 23, 26.
18
Id. at 27.
19
As with the marijuana found in West’s vehicle on
February 28th, supra note 2, no document in the record specifies
the amount of drugs recovered or cash seized at 319 Louisa
Street, nor does the record offer any further information or
evidence regarding the location of the drugs, drug paraphernalia,
or cash within the apartment. West ultimately agreed to forfeit
$16,110, see Corrected Plea Agreement ¶ 13 (Sept. 12, 2008)
(Dkt. No. 22); thus, we may infer that the cash seized at 319
Louisa Street was approximately $7,110 ($16,110 minus the
$9,000 seized in February).
20
Sentencing Tr. 27.
7
20
The gun recovered at 319 Louisa Street was later reported by
its owner as stolen.
21
III.
On June 11, 2008, a grand jury sitting in Harrisburg,
Pennsylvania returned an indictment charging West with
possession with intent to distribute marijuana in violation of 21
U.S.C. § 841(a)(1) and possession of firearms and ammunition
by a convicted felon in violation of 18 U.S.C §§ 922(g)(1) and
924(e).
22
The indictment also included, as a third count, notice of
criminal forfeiture pursuant to 21 U.S.C. § 853.
23
The charges were intended to encompass West’s alleged
criminal activities from February through November of 2007.
24
On July 1, 2008, West entered a plea of not guilty to the
charges in the indictment.
Approximately two months later, the United States
Attorney filed a one-count Information, charging West with
receipt and possession of a stolen firearm “[o]n or about July
2007” in violation of 18 U.S.C. §§ 922(j) and 2.
25
The Information was accompanied by a written plea
agreement
26
which provided that West would plead guilty to the single
count charged, and the Government would accept his plea in
satisfaction of the charges set forth in the original indictment.
21
PSR ¶ 9.
22
Indictment 1–2 (June 11, 2008) (Dkt. No. 1).
23
Id. at 3.
24
Id. at 1.
25
Information (Aug. 25, 2008) (Dkt. No. 14).
26
Plea Agreement (Aug. 25, 2008) (Dkt. No. 15).
27
See Corrected Plea Agreement ¶ 1 (Sept. 12, 2008)
(Dkt. No. 22).
8
27
West waived indictment and pleaded guilty to the
Information; however, instead of admitting to the charged
conduct of possession of a stolen 9mm handgun in July, West
admitted only to possession of the stolen .38 revolver found in
the trunk of his car on February 28th.
28
The Government attempted to reconcile this conflict by
moving to amend the Information to read, “Beginning on or
about February 2007 and continuing through on or about July
2007 . . . [,]” so that “the charge embrace[d] the totality of the
alleged relevant conduct.”
29
West concurred in the Motion, which was granted by the
District Court, but reserved his right to contest his culpability for
the July events.
30
At the direction of the District Court, the United States
Probation Office prepared a Presentence Investigation Report.
The probation officer determined that West’s base offense level
for possession of the stolen .38 revolver was 24, pursuant to
U.S.S.G. § 2K2.1(a)(2), and recommended three enhancements
to the base offense level: a two-level increase for possessing
three firearms under U.S.S.G. § 2K2.1(b)(1)(A); a two-level
increase for possession of a stolen firearm under U.S.S.G. §
2K2.1(b)(4); and the four-level enhancement relevant to the
instant appeal, for using or possessing a firearm in connection
with another felony offense
31
under U.S.S.G. § 2K2.1(b)(6).
28
See Mem. Op. & Order 3.
29
Motion to Amend Information ¶¶ 1–2 (May 17,
2009) (Dkt. No. 45).
30
Id. ¶ 3.
31
Namely, felony possession of marijuana by an
individual previously convicted of one or more drug offenses.
See 21 U.S.C. § 844(a).
32
Appellee’s Br. 10–11.
9
32
The probation officer subtracted two levels for acceptance of
responsibility under § 3E1.1(a) and one level for entering a
timely guilty plea, resulting in a total offense level of 29.
33
At that offense level, West’s Criminal History Category of IV
34
yielded a Guideline Range of 121 to 151 months
imprisonment, adjusted downward to the statutory maximum of
120 months for a § 922(j) violation.
35
See 18 U.S.C. § 924(a)(2) and U.S.S.G. § 5G1.1(a). West
timely objected to two of the enhancements recommended in the
Presentence Report: the two-level increase for possessing three
firearms and the four-level increase for possessing one or more
guns “in connection with” another felony offense.
36
Both parties filed sentencing memoranda addressing West’s
objections and the District Court issued a Memorandum Opinion
and Order preliminarily resolving several of those objections.
In that Opinion, the District Court determined that the July 2007
incident qualified as conduct relevant to the offense of
conviction under U.S.S.G. § 1B1.3; therefore, evidence
recovered in both February and July would be considered at
sentencing. Taking the events of July into account and
explaining that it was interpreting the phrase “in connection
with” “broadly” and “expansively,” pursuant to this Court’s
decision in United States v. Loney, 219 F.3d 281, 284 (3d Cir.
2000), the District Court overruled West’s objection to the
application of § 2K2.1(b)(6) and found that West had possessed
at least one firearm in connection with another felony offense.
33
Id. at 11.
34
Id. See also PSR ¶ 29–35 (calculating West’s
criminal history points and criminal history category). West’s
previous offenses, convictions and sentences add up to seven
criminal history points pursuant to U.S.S.G. § 4A1.1–A1.2, and
place West in criminal history category IV (7–9 criminal history
points). See Sentencing Table, U.S.S.G. § 5A.
35
Appellee’s Br. 11.
36
Mem. Op. & Order 4.
37
Id. at 11-13.
10
37
In relevant part, the District Court noted:
In this case, during the February 2007 incident, a
firearm was found in the same glove compartment
as West’s marijuana and a large amount of cash.
A second firearm was found in the trunk of the
same car. During the July 2007 incident, another
firearm was found in the same residence as more
marijuana possessed by West. These
circumstances indicate that the confluence of
drugs and guns found here is not accidental. The
firearms were in close proximity to the drugs and
38
easily accessed by West.
However, recognizing that the underlying facts were disputed,
the District Court reserved its final rulings on West’s objections
for the sentencing hearing.
39
At sentencing, the Government presented two law
enforcement witnesses to the February traffic stop and post-
arrest interview with West, and two to the July arrest and search
of 319 Louisa Street. In turn, West presented several witnesses
in support of his objections to the sentencing enhancements:
Tyana Martin, who testified that she was the owner of the .45
caliber handgun recovered from the glove compartment on
February 28th;
40
Taniea Martin, who testified that she was the owner of the
9mm pistol found in her apartment in July;
41
and West’s mother, Earlirene Chapman, who testified that
West’s primary residence was her home at 623 Second Avenue,
not his girlfriend’s apartment at 319 Louisa Street, and that she
38
Id. at 12.
39
Id. at 14.
40
Sentencing Tr. 29–43.
41
Id. at 43–56.
11
had given West $5,000 of the $9,000 found in his glove
compartment in February, to buy a new car.
42
The District Court did not find the testimony of West’s
witnesses convincing, taking particular note of Taniea Martin’s
lack of credibility.
43
However, neither the Court nor the prosecutor questioned Ms.
Chapman at any length, and the Government offered no
evidence to counter her assertions regarding West’s primary
residence or the source of the cash seized in February.
Ultimately, the District Court found that West either possessed
or constructively possessed the 9mm recovered at 319 Louisa
Street in July, but ruled in favor of West with respect to
possession of the .45 recovered in February, finding that it did
indeed belong to Tyana Martin.
44
The Court stated:
I’m going to err on the side of caution, however,
as to the first incident. It is a very, very close call
for the Court. I’m particularly concerned again
about potentially—about manufactured testimony
and potential perjury in this case, but there is just
not enough. I’m going to drop the knife on Mr.
West’s side as it attends the first incident, which
takes away the two level enhancement under
2K2.1(b)(1)(A).
42
Id. at 59–62.
43
See id. at 69 (“I am able to easily reach a
determination by a preponderance of the evidence that Mr. West
did possess the . . . nine millimeter firearm, on that occasion. I
find the testimony of Taniea Martin incredible. Likely, it’s the
Court’s view that she perjured herself this morning . . . .”); see
also id. at 80 (“I’m quite sure that you suborned perjury this
morning. . . . You ought to be separately charged for that.”)
44
See id. at 70.
45
Id.
12
45
After determining that counsel had no additional outstanding
objections,
46
the District Court made no further factual findings and did not
revisit its earlier decision approving the four-level § 2K2.1(b)(6)
enhancement, leaving West with a base offense level of 27 and
a Guideline Range of 100 to 125 months. West received a
custodial sentence of 120 months imprisonment, three years of
supervised release, and a special assessment of $100.
47
On appeal, West challenges the sentence imposed,
contending that the District Court erred in finding that the July
incident was relevant conduct for the purpose of sentencing him
for the February offense of conviction, and erred in finding that
he possessed a gun or guns in connection with another felony
offense pursuant to § 2K2.1(b)(6). Absent the four-level
enhancement under § 2K2.1(b)(6), the Guidelines calculation for
West’s sentence would have resulted in a sentencing range of 70
to 87 months, rather than 100 to 125 months.
48
IV.
To ensure that a sentence reflects a defendant’s total
culpability, the Guidelines provide for an increase in the base
offense level—and consequently, the base sentencing
range—whenever a firearm is used or possessed “in connection
with” another felony offense. See United States v. Navarro, 476
F.3d 188, 192 (3d Cir. 2007) (citing Loney, 219 F.3d at 287–88).
Proper application of the four-level enhancement under §
2K2.1(b)(6) requires finding, by a preponderance of the
evidence, that the defendant used or possessed a firearm; that the
46
See id.
47
Id. at 81.
48
A base offense level reduction to 23, combined
with a Criminal History Category of IV, yields a Guideline
Range of 70–87 months. See Sentencing Table, U.S.S.G. § 5A.
13
defendant committed another felony offense, regardless of
whether a criminal charge was brought or a conviction obtained;
and that the firearm facilitated, or had the potential of
facilitating, the felony offense. See U.S.S.G. § 2K2.1, comment.
(n.14).
A.
We first address the District Court’s determination that
the July incident was relevant conduct for the purpose of
sentencing West for the February offense of conviction. Section
1B1.3 of the Sentencing Guidelines provides that, unless
otherwise specified, base offense levels, specific offense
characteristics, and various adjustments shall be determined on
the basis of “all acts and omissions committed, aided, abetted,
counseled, commanded, induced, procured, or willfully caused
by the defendant . . . that occurred during the commission of the
offense of conviction, in preparation for that offense, or in the
course of attempting to avoid detection or responsibility for that
offense.” U.S.S.G. § 1B1.3(a)(1)(A). With respect to offenses
of a character for which § 3D1.2(d) would require grouping of
multiple counts—such as an offense involving multiple firearms
under § 2K2.1(b)(1), or where a firearm was used or possessed
in connection with another felony offense under §
2K2.1(b)(6)—sentencing shall be determined on the basis of all
acts and omissions committed by the defendant “that were part
of the same course of conduct or common scheme or plan as the
offense of conviction.” U.S.S.G. § 1B1.3(a)(2); see also United
States v. Blackmon, 557 F.3d 113, 123 (3d Cir. 2009) (citing
United States v. Wilson, 106 F.3d 1140, 1144 (3d Cir. 1997)).
Solely for the purpose of objecting to the relevant conduct
analysis, West admitted to possession of all three guns, leaving
in question only the final element of the analysis—whether the
offenses were part of the same course of conduct. “For two or
more offenses to constitute part of a common scheme or plan,
they must be substantially connected to each other by at least
one common factor, such as common victims, common
accomplices, common purpose, or similar modus operandi.”
U.S.S.G. § 1B1.3, comment. (n.9(A)). Offenses that do not fall
within the definition of a common scheme or plan—as these
plainly do not—may nonetheless qualify as part of the same
14
course of conduct “if they are sufficiently connected or related
to each other as to warrant the conclusion that they are part of a
single episode, spree, or ongoing series of offenses.” U.S.S.G.
§ 1B1.3, comment. (n.9(B)). As we noted in Wilson, although
there is substantial overlap between the terms “common
scheme” and “course of conduct,” the latter envelops a greater
sphere of activity than the former. See Wilson, 106 F.3d at
1143.
In determining whether offenses are sufficiently related
to form a single course of conduct, three factors must be
considered: (1) the degree of similarity of the offenses; (2) the
regularity (repetitions) of the offenses; and (3) the time interval
between the offenses. See id.; see also Wilson, 106 F.3d at
1143–44 (adopting this three-prong test). No one of these
factors is dispositive; however, it is generally held that where
one factor is weak or absent, a stronger showing of at least one
of the other factors is required. See id. “For example, where the
conduct alleged to be relevant is relatively remote to the offense
of conviction, a stronger showing of similarity or regularity is
necessary to compensate for the absence of temporal proximity.”
U.S.S.G. § 1B1.3, comment. (n.9(B)).
The District Court found that, in light of the fact that
West was on bail for the February offenses when he was
arrested in July, the five-month interval between the two
incidents met the requirement of temporal proximity.
49
We are inclined to agree. Caselaw is not specific as to how
much time must elapse between offenses for conduct to be
irrelevant for the purpose of sentencing; but as we noted in
Wilson, courts have considered as relevant conduct offenses that
preceded the offense of conviction by as much as seventeen
months. See Wilson, 106 F.3d at 1144 (citing cases). We agree
with the District Court’s holding that the five-month interval
here is not of such duration as to render the events of July
indisputably remote from the events of February. Nevertheless,
where the time between offenses is not strongly supportive of
finding relevant conduct, the offenses must show significant
49
Mem. Op. & Order 8.
15
similarity and regularity. See United States v. Hahn, 960 F.2d
903, 910–11 (9th Cir. 1992).
As this Court recently stated in United States v. Nunez,
“‘[a] crime merely suggested by or arising out of the
commission of a previous crime is not . . . related to the earlier
crime in the special sense of being part of a common plan or
scheme,’ as required by § 1B1.3.” 322 Fed. Appx. 114, 116 (3d
Cir. 2009) (unpublished) (quoting United States v. Hallman, 23
F.3d 821, 826 (3d Cir. 1994) (“In determining whether there was
a common scheme or plan, intent of the defendant is a crucial
part of the analysis.”)). While offenses forming a course of
conduct need not demonstrate the same degree of similarity as
offenses forming a common scheme, the result—a finding of
relevant conduct—is the same, and the inquiry demands a
similarly careful analysis. Although we do not find that the
District Court’s finding that West “possessed” the 9mm
handgun recovered in July was clearly erroneous, based on the
underdeveloped factual record currently before us, we are
unable to agree that the July and February offenses were
sufficiently similar or regular to satisfy the relevant conduct
standard.
As we have noted, supra notes 2 and 19, the Government
did not present evidence regarding the quantity of drugs or
money found in West’s girlfriend’s apartment in July or the
proximity of the drugs to West or to the gun on the bureau. The
record is silent as to whether West knew that money, marijuana
and drug paraphernalia were present in his girlfriend’s
apartment, and there is no evidence that all the items belonged
to him or were found in locations under his control. While it is
correct that “[i]n evaluating offenses under the similarity prong,
a court must not do so at such a level of generality that would
render worthless the relevant conduct analysis,” Wilson, 106
F.3d at 1144 (internal punctuation and citation omitted), the
Government is not relieved of its responsibility to prove
sentencing factors by a preponderance of the evidence.
Although both incidents involved a stolen firearm in relatively
close proximity to cash and some small but unspecified quantity
16
of marijuana, these facts alone are not sufficient to show more
than a pair of similar but isolated and unrelated events.
50
We therefore hold that the District Court’s finding that the
events of July were relevant conduct for the purpose of
sentencing West for his offense of conviction was clearly
erroneous, and we will not factor the 9mm handgun, drugs, or
money recovered in July into our analysis of the § 2K2.1(b)(6)
sentencing enhancement.
B.
Section 2K2.1(b)(6) of the Sentencing Guidelines
provides that:
If the defendant used or possessed
any firearm or ammunition in
connection with another felony
offense; or possessed or transferred
any firearm or ammunition with
knowledge, intent, or reason to
believe that it would be used or
possessed in connection with
another felony offense, increase by
4 levels. If the resulting offense
level is less than level 18, increase
to level 18.
Until November 2006, the Guidelines did not define the phrase
“in connection with,” and many circuits, including this Circuit,
gave it a plain meaning interpretation, construing it broadly.
See, e.g., Loney, 219 F.3d at 284. In 2006, the United States
Sentencing Commission issued a number of Amendments to the
50
See, e.g., United States v. Hill, 79 F.3d 1477, 1482
(6th Cir. 1996) (“[Section 1B1.3] only applies if ‘there are
distinctive similarities between the offense of conviction and the
remote conduct’ and cannot be used to sentence a defendant
based on ‘isolated, unrelated events that happen only to be
similar in kind.’”) (quoting United States v. Sykes, 7 F.3d 1331,
1336 (7th Cir. 1993)).
17
Guidelines, and added Application Note 14 to § 2K2.1 to
address a growing conflict among the circuits regarding the
interpretation of § 2K2.1(b)(6).
51
Application Note 14(A) provides general guidance to the
sentencing courts, stating that “in general . . . subsections (b)(6)
and (c)(1) apply if the firearm or ammunition facilitated, or had
the potential of facilitating, another felony offense or another
offense, respectively.”
Application Note 14(B), however, provides more specific
guidance when the “other offense” is a drug trafficking offense,
stating in pertinent part, that:
Subsection[] (b)(6) . . . appl[ies] . . . 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 these cases, application of subsection[] (b)(6)
. . . is warranted because the presence of the
firearm has the potential of facilitating another
felony offense . . . .
U.S.S.G. § 2K2.1, comment. (n.14). With this commentary, the
Sentencing Commission sought to address the concern
expressed by the Supreme Court in United States v. Smith, 508
U.S. 223 (1993), that a defendant might be punished for
committing a drug trafficking offense while in possession of a
firearm, even when the presence of the firearm is purely
coincidental or unrelated. See id., 508 U.S. at 238.
Because § 2K2.1(b)(6) requires that a firearm be
possessed in connection with another felony offense, courts in
this Circuit have generally analyzed the application of the
51
See Final Amendments of the United States
Sentencing Guidelines, at 22–23 (2006) (available at
www.ussc.gov/2006guid/Finalamend2006.pdf). The 2006
Amendments also re-designated § 2K2.1(b)(5) as § 2K2.1(b)(6)
and (c)(1), due to unrelated additions and deletions elsewhere in
the Guidelines.
18
sentencing enhancement in connection with drug trafficking,
rather than drug possession, offenses.
52
See, e.g., Navarro, 476 F.3d at 197–98 (upholding the
enhancement where defendant had received a firearm in
exchange for crack cocaine, because the exchange itself
constituted felony drug distribution); Loney, 219 F.3d at 283
(upholding the enhancement where a firearm was found on
defendant’s person along with 29 packets of heroin). This case
is atypical in that respect. It is uncontested that West’s
possession of even a small quantity of marijuana in February
was a felony due to his previous drug convictions, see, e.g.,
Navarro, 476 F.3d at 190 n.3,
53
and, for this reason, the District Court never reached the issue
of whether West was engaged in drug trafficking. The initial
indictment charged West with possession with intent to
distribute in violation of 21 U.S.C. § 841(a)(1), but those
charges were dismissed by West’s later plea to possession of a
stolen firearm. The parties disagreed as to whether the
quantities of marijuana and cash seized were indicative of drug
distribution, but the District Court found the question immaterial
to the enhancement analysis because West’s mere possession of
drugs was an appropriate predicate felony. The District Court
therefore made no finding that West possessed marijuana for the
purpose of drug trafficking. Consequently, we will look to our
sister courts in the Fourth, Fifth, and Eighth, which have
52
That is, of course, in cases where the predicate offense
is drug related. “Trafficking” is usually defined as sale,
distribution, or manufacture of a controlled substance—or
possession with intent to sell, distribute or manufacture—but not
simple possession. See, e.g., U.S.S.G. § 2L1.2, comment.
(n.1(B)(iv)).
53
As here, Navarro’s possession of cocaine and
marijuana was a felony because he had at least one prior drug
conviction. However, because the Government incorrectly
conceded that Navarro’s simple possession was not a felony, we
did not address his possession of a firearm in connection with
that offense, but rather with a separate and uncharged felony
offense of drug distribution.
19
analyzed the application of § 2K2.1(b)(6) in drug possession
(i.e., non-trafficking) cases, for guidance.
The Fourth, Fifth and Eighth Circuits have distinguished
possession offenses from trafficking offenses when applying the
enhancement under § 2K2.1(b)(6). Those Circuits have held
that in a simple possession case, the sentencing court must make
a specific finding that the firearm facilitated or had the potential
of facilitating possession of the drugs. With a drug trafficking
offense, on the other hand, a court is permitted to presume that
a firearm in relatively close proximity to drugs is used “in
connection” with the offense. For example, in United States v.
Jenkins, 566 F.3d 160 (4th Cir. 2009), the Fourth Circuit
observed:
[D]rug trafficking offenses and drug possession offenses
are [not] treated the same for purposes of Section 2K2.1(b)(6).
In the case of a drug trafficking offense, Application Note 14(B)
provides that when ‘a firearm is found in close proximity to
drugs, drug-manufacturing materials, or drug paraphernalia’ the
firearm necessarily ‘has the potential of facilitating another
felony offense’ and thus Section 2K2.1(b)(6) applies. But, in
the case of a drug possession offense, the general rule of
Application Note 14(A) governs, and therefore the district court
must evaluate whether the firearm ‘facilitated, or had the
potential of facilitating’ the other offense to determine whether
Section 2K2.1(b)(6) applies.
See id., 566 F.3d at 163 (internal citation omitted); see
also United States v. Jeffries, 587 F.3d 690, 692–93 (5th Cir.
2009) (under Application Note 14, a four-level enhancement is
permitted for non-trafficking drug offenses only if a firearm
facilitates or has the potential to facilitate the offense); United
States v. Mansfield, 560 F.3d 885, 887–88 (8th Cir. 2009) (an
underlying drug trafficking offense requires automatic
application of the four-level enhancement, but an underlying
simple drug possession offense requires an initial determination
that the firearm facilitated, or had the potential to facilitate, the
offense); United States v. Blankenship, 552 F.3d 703, 705 (8th
Cir. 2009) (when a defendant subject to a § 2K2.1(b)(6)
adjustment possesses a “user” amount of drugs and is not a
20
trafficker, the district court must affirmatively find that the
weapon facilitated the drug offense before applying the
adjustment); United States v. Smith, 535 F.3d 883, 885 (8th Cir.
2008) (evidence did not prove that a defendant’s simultaneous
possession of firearms, ammunition, and drug residue in his
home was anything other than coincidence). We believe this
distinction is appropriate.
The District Court correctly found that West possessed
the marijuana in the glove compartment of his car in February,
based on West’s own admissions during his post-arrest
interview.
54
The amount was unspecified but described as “small.”
55
The Government suggested that West acquired the cash found
in his glove compartment from the sale of illegal narcotics, and
pointed to the small amount of marijuana also located there to
support this contention. The District Court heard testimony
from West’s mother that $5,000 of the $9,000 was her gift to
West for the purchase of a new car, and she produced a check
stub for $5,000 to support that claim.
56
She also testified that she believed the remaining $4,000 was
earned by West, but no further evidence was offered to
corroborate that testimony.
57
The Government did not refute Ms. Chapman’s explanation
for the source and purpose of the cash, and the District Court
made no finding that the money was suggestive of drug
trafficking. Because the District Court did not make a factual
finding that West was engaged in drug trafficking, the District
Court was required to make a specific finding that the gun at
issue facilitated or had the potential to facilitate the possession
offense.
54
See Sentencing Tr. 11.
55
Appellant’s Br. 5; Sentencing Tr. 7.
56
Sentencing Tr. 59–60.
57
Id. at 62.
21
In its written Opinion issued before sentencing, the
District Court made a preliminary finding that West possessed
three guns in connection with his felony possession of
marijuana—the guns found in the glove compartment and trunk
of West’s car in February, and the gun recovered from his
girlfriend’s apartment in July—but reserved its final ruling for
the sentencing hearing.
58
As we discussed at length supra Part IV.A., the firearm
recovered in July no longer bears on the analysis of the §
2K2.1(b)(6) enhancement. At sentencing, the District Court
concluded that West did not possess the .45 caliber gun found in
the glove compartment, and sustained West’s objection to the
two-level enhancement for possession of three guns under §
2K2.1(b)(1)(A). We agree with this conclusion. In overruling
West’s objection to the four-level enhancement under §
2K2.1(b)(6), however, the District Court did not re-visit its
earlier determination that firearms “in close proximity to the
drugs and easily accessed by West . . . . undoubtedly
emboldened him in his possession of the drugs.”
59
That conclusion was based on the District Court’s initial
finding that West possessed all three firearms, including the .45
in the glove compartment with the marijuana, but only one
58
See Mem. Op. & Order 11–14.
59
Id. at 12 (paraphrasing United States v. Regans,
125 F.3d 685, 686–87 (8th Cir. 1997) (applying the
enhancement where the predicate offense was simple possession
because, “when a drug user chooses to carry his illegal drugs out
into public with a firearm, there are many ways in which the
weapon can facilitate the drug offense and dangerously
embolden the offender”)). Regans was issued more than nine
years before the implementation of Application Note 14 and the
Eighth Circuit decisions discussed herein, and we do not find its
reasoning persuasive here. Furthermore, Regans possessed a
gun on his person at the same time he possessed heroin on his
person, while West had neither guns nor drugs on his person at
the time of either arrest.
22
gun—the .38 revolver in the trunk of the car—remains relevant
to our analysis here.
60
In finding that West’s possession of firearms emboldened
his possession of drugs, the District Court relied on this Court’s
decision in Loney.
61
There, we instructed that the term “in connection with”
should be construed “broadly” and “expansively” to express
“some relationship or association . . . such as a causal or logical
relation or other type of relationship.” 219 F.3d at 284.
However, Loney should not be read to imply that simply
possessing a firearm during the commission of another felony
offense is sufficient to invoke the enhancement of §
2K2.1(b)(6). See Loney, 219 F.3d at 284–85; see also United
States v. Gregory, 345 F.3d 225, 229 (3d Cir. 2003). As the
Supreme Court cautioned in Smith, and as this Court has
reiterated, “‘the presence or involvement [of the firearm] cannot
be the result of accident or coincidence.’” Loney, 219 F.3d at
286 (quoting Smith, 508 U.S. at 238). While a weapon’s
physical proximity to narcotics may be sufficient to show a
connection between the weapon and the drug charges in some
cases, see Loney, 219 F.3d at 289, quoting United States v.
Gomez-Arrellano, 5 F.3d 464, 466–67 (10th Cir. 1993), we hold
60
As we state above, the District Court must make
a specific finding that the .38 revolver in the trunk facilitated or
had the potential to facilitate West’s possession of the marijuana
located in the glove compartment.
61
Like Regans, Loney was decided several years
before the implementation of Application Note 14, on a similar
set of facts. Loney was arrested with both a loaded gun and 29
packets of heroin beneath his clothing, and this Court had no
difficulty in concluding that “when 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 . . .
.” Loney, 219 F.3d at 288. In those circumstances, the
“immediate availability of the gun” has the potential to facilitate
such an in-person offense, and is sufficient to establish the
necessary connection under § 2K2.1(b)(6). See id.
23
that, where the predicate drug offense is possession, mere
proximity is insufficient to establish the required nexus.
The sparse facts of record do not support the conclusion
that West’s possession of the .38 revolver located in a backpack
in the trunk of his car emboldened him to engage in the crime of
marijuana possession, or served to protect the marijuana in his
glove compartment. The evidence that would permit a
sentencing court to draw such a conclusion must be something
more than simultaneous possession of a small quantity of drugs
and a firearm in the same vehicle, otherwise, the limitation of
Application Note 14 to drug trafficking has little effect. See
Jeffries, 587 F.3d at 695. West stated that he found the .38
revolver on the back seat of the car several days before he
placed marijuana in the glove compartment. West did not
explain how the gun came to be in a backpack in the trunk of the
car, where it was not very easily accessible to West from the
passenger area of the car. West has not claimed that he
possessed the .38 for self defense, as did the defendant in Loney.
In fact, although West ultimately pleaded guilty to possession of
the .38, nothing in the record suggests that West had ever used
or intended to use the gun. West’s lackadaisical attitude toward
firearms,
62
while admittedly troubling, may support his argument that the
presence of firearms and drugs in his vehicle was purely
coincidental. The Government offered no evidence to support
its contention that the mere presence of the .38 in the vehicle
facilitated West’s drug possession, and nothing in the record
suggests that West was more or less likely to possess marijuana
and cash based on the presence or absence of that firearm.
Because the District Court did not make a finding that West was
62
By way of example, according to State Trooper
Michael Reffeor, West told Reffeor that, on the morning he
found the .38 in his car, he simply “laid it back on the back seat
of the car and proceeded to just drive around Williamsport doing
errands.” Sentencing Tr. 12. The record does not reflect that
West ever attempted to conceal his firearms from police; he was
remarkably forthcoming when asked about the presence of
firearms in Ms. Martin’s apartment in July, and freely consented
to the police search of his vehicle in February.
24
engaged in drug trafficking, nor did it make a finding that the
.38 revolver facilitated or had the potential to facilitate West’s
drug possession, the District Court’s application of the four-
level enhancement under § 2K2.1(b)(6) will be reversed.
V.
For the foregoing reasons, we vacate the sentence
imposed by the District Court and remand for resentencing
consistent with this Opinion.
25