United States Court of Appeals
FOR THE EIGHTH CIRCUIT
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No. 07-3592
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United States of America, *
*
Plaintiff - Appellee, *
* Appeal from the United States
v. * District Court for the Western
* District of Missouri.
Daniel Ray Smith, *
*
Defendant - Appellant. *
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Submitted: June 11, 2008
Filed: July 30, 2008
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Before MELLOY, ARNOLD, and BENTON, Circuit Judges.
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MELLOY, Circuit Judge.
Daniel Ray Smith pled guilty to being a felon and an unlawful user of
methamphetamine in possession of firearms and ammunition, in violation of 18 U.S.C.
§ 922(g)(1) and (3), and to knowingly and intentionally possessing methamphetamine
in violation of 21 U.S.C. § 844(a). Over Smith’s objection, the district court imposed
a four-level enhancement under U.S.S.G. § 2K2.1(b)(6) for possessing firearms in
connection with the felony offense of possessing methamphetamine. The district
court sentenced Smith to 30 months of imprisonment. Smith appeals, arguing the
district court erred in imposing the enhancement because it was based on
methamphetamine residue found inside his home. We reverse.
I.
On February 23, 2007, a state probation officer and a deputy sheriff searched
Smith’s home with his consent. Smith admitted he possessed firearms and
methamphetamine and directed the deputy sheriff to their locations. The officers
discovered a rifle, a shotgun, a spare shotgun barrel, ammunition, a methamphetamine
pipe, a baggie containing methamphetamine residue, and marijuana. Smith admitted
using the rifle to kill coyotes and owning the pipe and baggie. He also admitted using
methamphetamine a few days earlier. Smith’s wife admitted owning the marijuana.
The methamphetamine found in the baggie was never weighed.
A grand jury indicted Smith, charging him with being a felon and an unlawful
user of methamphetamine in possession of firearms and ammunition, in violation of
18 U.S.C. § 922(g)(1) and (3), and with knowingly and intentionally possessing
methamphetamine in violation of 21 U.S.C. § 844(a). Smith, who had three prior
felonies for possession of methamphetamine, pled guilty to the two-count indictment.
The presentence investigation report recommended a four-level enhancement under
U.S.S.G. § 2K2.1(b)(6) for possessing firearms “in connection with another felony
offense,” the possession of methamphetamine. Smith objected to this enhancement.
At sentencing, Smith again objected to the enhancement under U.S.S.G.
§ 2K2.1(b)(6). He argued that Eighth Circuit case law does not have a per se rule that
any time drugs and firearms are present, § 2K2.1(b)(6) automatically applies. Rather,
he stressed that his individual facts should be considered to determine whether the
firearms “facilitated, or had the potential of facilitating,” his possession of
methamphetamine residue. U.S.S.G. § 2K2.1(b)(6) cmt. n.14(A). Smith also argued
that although he admitted to law enforcement that he had used methamphetamine
earlier, there was no evidence that the firearms were present at that earlier time. He
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emphasized that he pled guilty to possession, not use, of methamphetamine so that his
earlier use was not relevant.
In response, the government argued that case law strongly supports application
of § 2K2.1(b)(6) because Smith possessed firearms while committing a drug felony.
Additionally, the government argued that Smith should not benefit from using the
methamphetamine days earlier such that only residue remained when the search of the
home occurred.
The district court imposed the enhancement, stating: “[I]t’s pretty clear that Mr.
Smith has been using marijuana [sic] and that he had the guns present. And the case
law in their discussion of the risk of violence when you have use of the drugs and the
presence of firearms is increased . . . .” The district court then sentenced Smith to 30
months of imprisonment. Smith appeals.
II.
The district court’s determination that the defendant possessed the firearms in
connection with another felony is a factual finding that we review for clear error.
United States v. Washington, 528 F.3d 573, 574 (8th Cir. 2008).
The Guidelines provide for a four-level enhancement if a defendant “used or
possessed any firearm or ammunition in connection with another felony offense . . . .”
U.S.S.G. § 2K2.1(b)(6). “‘In connection with’ means that, at a minimum, the firearm
had a ‘purpose or effect with respect to’ the other felony offense because its presence
facilitated or had the potential to facilitate the offense, as opposed to being the result
of mere accident or coincidence.” United States v. Harper, 466 F.3d 634, 650 (8th
Cir. 2006) (citations omitted); see U.S.S.G. § 2K2.1(b)(6) cmt. n.14(A) (stating that
the “in connection with” language means that “the firearm or ammunition facilitated,
or had the potential of facilitating, another felony offense”). When the felony offense
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is drug possession, § 2K2.1 note 14A applies, and “the district court may make the
requisite ‘in connection with’ finding, but is not required to do so.” United States v.
Fuentes Torres, 529 F.3d 825, 827 (8th Cir. 2008) (discussing why the “facilitate”
standard applies to drug possession felonies, and not the “clearly improbable”
standard, which applies to drug trafficking felonies).
The district court clearly erred in imposing the § 2K2.1(b)(6) enhancement
because the evidence is insufficient to show that Smith’s firearms and ammunition
“facilitated, or had the potential of facilitating” his possession of methamphetamine.
The evidence does not prove that Smith’s simultaneous possession of firearms,
ammunition, and methamphetamine residue was anything other than coincidence. The
nexus between the firearms, ammunition, and methamphetamine is lacking.
We recognize the role of firearms in protecting drugs, drug proceeds, and drug
transactions. United States v. Bordeaux, 436 F.3d 900, 904 (8th Cir. 2006). But, the
district court’s inference that Smith would seek to protect this amount of
methamphetamine and facilitate this possession with firearms is unsupported. The
government did not attempt to weigh the residue. Baggies with drug residue generally
are not valuable or useful to drug users and do not need protection. See, e.g., United
States v. Allebach, 526 F.3d 385, 386 (8th Cir. 2008) (stating that two plastic bags
with cocaine residue were found in trash bags outside of the defendant’s home).
The individual facts of this case present a rare case regarding the § 2K2.1(b)(6)
enhancement. Although a firearm is a “tool of the trade” for drug dealers, it is not
contended that Smith is a drug dealer, and Smith possessed only an unmeasured
quantity of methamphetamine residue, making the inference of a connection when a
defendant possesses a firearm and a distribution quantity of illegal drugs completely
inapplicable here. See United States v. Regans, 125 F.3d 685, 686 (8th Cir. 1997)
(discussing the inference that a sentencing court may make when a defendant carries
a firearm and a distribution quantity of drugs). This is not a drug trafficking case
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where drug residue is discovered along with firearms and drug paraphernalia but no
quantified amount of drugs, see, e.g., United States v. Jordan, 179 Fed. Appx. 500,
501-02 (10th Cir. 2006) (unpublished); United States v. Pena, 207 Fed. Appx. 406,
408 (5th Cir. 2006) (unpublished), and where the enhancement applies unless the
connection between the firearms and drugs is clearly improbable, United States v.
Pate, 518 F.3d 972, 978 (8th Cir. 2008).
This case is distinguishable from Regans where the defendant was found in a
car possessing a small amount of drugs for personal use and a firearm. 125 F.3d at
685. The Regans court rejected the defendant’s argument of coincidence, stating that
“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.” Id. at 687; cf. United States v. Wallace, 46 F.3d
1148, *1 (9th Cir. 1995) (unpublished) (affirming application of the § 2K2.1(b)(6)
enhancement where a search of the defendant’s truck during a traffic stop revealed a
firearm and several baggies and a vial with traces of methamphetamine). In our case,
Smith did not venture into public with either the methamphetamine residue or the
firearms; he simply possessed them in his home. This combination of factors makes
an emboldenment theory impermissible in this case.
Additionally, the evidence failed to prove a temporal link between the firearms
and a greater amount of methamphetamine than just the residue. We do not know if
Smith used or possessed methamphetamine in his home in the days before the search
or if he did, whether the firearms were present in his home at that time. Finally, the
evidence does not suggest that Smith disposed of any methamphetamine that might
have been in the baggie to evade its discovery by law enforcement during its search
of his home.
We make no bright line rule that § 2K2.1(b)(6) requires a certain amount of
drugs. We only reject the district court’s conclusion that the mere presence of drug
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residue, i.e., a de minimis amount of drugs, and firearms alone is sufficient to prove
the “in connection with” requirement of § 2K2.1(b)(6) when the “felony offense” is
drug possession. Whether a firearm “facilitated, or had the potential of facilitating”
a felony offense of drug possession must be determined based on the facts of each
individual case. Here, the district clearly erred because the record does not support
a finding that the firearms and ammunition “facilitated, or had the potential of
facilitating” Smith’s possession of methamphetamine residue.
III.
We reverse Smith’s sentence and remand for resentencing in accordance with
this opinion.
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