United States Court of Appeals
FOR THE EIGHTH CIRCUIT
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No. 07-3879
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United States of America, *
*
Plaintiff - Appellee, *
* Appeal from the United States
v. * District Court for the Eastern
* District of Missouri.
James P. Dalton, *
*
Defendant - Appellant. *
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Submitted: December 8, 2008
Filed: March 6, 2009
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Before MELLOY and BENTON, Circuit Judges, and DOTY,1 District Judge.
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MELLOY, Circuit Judge.
Defendant James P. Dalton pleaded guilty to being a felon in possession of a
firearm in violation of 18 U.S.C. § 922(g)(1). He appeals his sentence, arguing that
the district court made several clearly erroneous factual findings and erroneously
applied three separate enhancements. He also argues that the district court
erroneously denied his request for a downward departure based on overstated criminal
history. Having carefully reviewed the arguments and the record on appeal, including
the sentencing transcript, we find Dalton’s arguments to be without merit, save one.
1
The Honorable David S. Doty, United States District Judge for the District of
Minnesota, sitting by designation.
We address in detail his argument regarding the district court’s application of a four-
level enhancement for his possession of firearms “in connection with” another felony
offense, namely, the felony possession of methamphetamine under Missouri law. See
U.S. Sentencing Guidelines Manual § 2K2.1(b)(6) (2007); Mo. Rev. Stat. § 195.202.2.
As to this issue, remand for further findings is necessary in light of United States v.
Blankenship, 552 F.3d 703 (8th Cir. 2009) and USSG § 2K2.1 cmt. (n.14).
I. Background
Based on a tip that Dalton, a convicted felon, possessed methamphetamine and
several firearms, officers obtained a search warrant for Dalton’s home. In the affidavit
supporting the search warrant application, the affiant claimed to have seen
approximately one-quarter pound of methamphetamine in a black duffel bag in
Dalton’s home. When executing the warrant, officers did not discover this quantity
of drugs. Rather, near Dalton’s bed, officers found a line of methamphetamine on a
sheet of paper and a baggie containing methamphetamine residue. Officers also found
assorted drug paraphernalia, including methamphetamine pipes, a pill crusher, and
several bottles containing methamphetamine residue. The parties agree that the total
quantity of methamphetamine the officers discovered in Dalton’s home was a user
quantity insufficient to support an inference of drug trafficking.
Under Dalton’s bed, officers found a semi-automatic rifle; a fully automatic
rifle and a loaded magazine for the fully automatic rifle; and a partially disassembled,
fully automatic rifle with a missing bolt assembly. One of the fully automatic rifles
was a semi-automatic rifle that had been modified to be fully automatic. The missing
bolt assembly for the second fully automatic rifle was in a nearby drawer. Officers
also found fifty-four rounds of ammunition and a second magazine in the bedroom.
Both magazines were “large capacity magazines” within the meaning of USSG §
2K2.1 cmt. (n.2).
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During execution of the search warrant, Dalton arrived home, admitted
possession of the materials the officers had found, and voluntarily opened a locked
safe for the officers. In the safe, officers found a blasting cap and an explosive
emulsion of a type used for underwater applications.
Dalton pleaded guilty to being a felon in possession of a firearm in violation of
18 U.S.C. § 922(g)(1). The district court ordered preparation of a presentence
investigation report, and in paragraph twenty-two of the report, the probation office
recommended a four-point increase in the offense level for possession of firearms “in
connection with” the separate offense of felony possession of methamphetamine. See
USSG § 2K2.1(b)(6); Mo. Rev. Stat. § 195.202.2. Dalton objected, and the parties
addressed this issue at the sentencing hearing. The district court noted the proximity
of the firearms and drugs, the nature and number of firearms, and the presence of the
explosive material. The court held that the application of the four-point offense-level
enhancement was appropriate in Dalton’s case.
II. Discussion
We recently have had opportunities to address application of the section
2K2.1(b)(6) enhancement as applied to felony drug-possession offenses as contrasted
with its application to felony drug-trafficking offenses. See Blankenship, 552 F.3d
at 705; United States v. Smith, 535 F.3d 883, 886 (8th Cir. 2008). We noted that
prior to the Sentencing Commission’s addition of Application Note 14 to USSG §
2K2.1(b)(6) in 2006, we “routinely upheld the adjustment when weapons and drugs
were in the same vicinity, regardless of whether the underlying drug offense was for
possession or trafficking.” Blankenship, 552 F.3d at 705. After the addition of
Application Note 14, however, we have distinguished possession offenses from
trafficking offenses and required more than a temporal and spatial nexus between
firearms and drugs to support the enhancement in relation to a possession offense. Id.
(“[W]ith the addition of Application Note 14, the Sentencing Commission decided to
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make a distinction between the factual circumstances of when the other felony was a
drug trafficking offense, or alternatively, a simple drug possession offense.”
(interpreting USSG § 2K2.1(b)(6) cmt. n. 14(B))). We have emphasized that the 2006
change to the commentary for this Guidelines section established a higher threshold
for proving that firearms facilitated the drug offense when the separate felony is a
drug-possession offense rather than a drug-trafficking offense. Id. (“If the underlying
drug offense is for simple possession, the district court may still apply the adjustment,
but only after making a finding that the firearm facilitated the drug offense.”).
Our rationale, and the rationale of the Sentencing Commission, has been that
the quantities of drugs and money involved in drug trafficking easily support the
inference that an offender possesses firearms in connection with the drug offense —
firearms are tools of the trade in drug trafficking and are frequently present to protect
large quantities of drugs and money. Smith, 535 F.3d at 885. This inference is less
supportable when an offender possesses a mere user quantity of drugs and the offense
is possession rather than trafficking. See id. (“We recognize the role of firearms in
protecting drugs, drug proceeds, and drug transactions. But, the district court’s
inference that Smith would seek to protect this amount of methamphetamine and
facilitate this possession with firearms is unsupported.” (internal citation omitted)).
Accordingly, to support application of the enhancement based on a felony drug
possession, the government must prove, and the district court must find, “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.” Id. (quotation and citation
omitted). We review such a finding for clear error. Id.
We read the present record as indicating that the district court applied the
section 2K2.1(b)(6) enhancement based on a temporal and spatial nexus between the
drugs and firearms. The district court noted the nature and number of firearms, but
there was no finding that the firearms “facilitated or had the potential to facilitate the
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[felony drug possession] offense, as opposed to being the result of mere accident or
coincidence.” Smith 535 F.3d at 885. Accordingly, we must vacate the sentence and
remand for further proceedings consistent with this opinion.2
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2
We express no opinion regarding the merits of the issue. We note only that if
the district court applies the enhancement on remand, it must make the necessary
finding that the firearm possession facilitated or had the potential to facilitate the
felony drug possession.
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