In the
United States Court of Appeals
For the Seventh Circuit
No. 15‐1346
UNITED STATES OF AMERICA,
Plaintiff‐Appellee,
v.
DERRICK R. CLINTON,
Defendant‐Appellant.
Appeal from the United States District Court for the
Eastern District of Wisconsin.
No. 2:14‐cr‐00058‐RTR‐1— Rudolph T. Randa, Judge.
ARGUED NOVEMBER 30, 2015 — DECIDED JUNE 16, 2016
Before ROVNER and WILLIAMS, Circuit Judges, and SHAH,
District Judge.*
ROVNER, Circuit Judge. On March 11, 2014, a grand jury
returned a two‐count indictment against Derrick Clinton,
charging him with possession of a firearm as a convicted felon
*
Hon. Manish S. Shah of the Northern District of Illinois, sitting by
designation.
2 No. 15‐1346
in violation of 18 U.S.C. § 922(g), and possession with intent to
distribute a mixture and substance containing cocaine base in
the form of crack cocaine in violation of 21 U.S.C. § 841(a)(1).
Pursuant to a plea agreement with the government, Clinton
entered a plea of guilty to the felon‐in‐possession count, and
the government agreed to dismiss the second count and to
recommend a sentence within the advisory guidelines range.
The district court ultimately sentenced Clinton to a term of
imprisonment of 76 months followed by three years of super‐
vised release and a $100 special assessment. Clinton now
appeals that sentence.
The arrest in this case stemmed from a domestic violence
call received by the Milwaukee police on January 9, 2014.
When the officers responded to the residence, they spoke with
the victim M.K., who informed them that Derrick Clinton sold
cocaine and had a firearm in the residence. She told the officers
that Clinton kept the firearm in the bedroom closet, but that
she had retrieved it and hidden it under a pile of clothes in the
dining room so that Clinton could not use it. The officers
conducted a search of the residence with M.K.’s consent, and
the officers found a Lorcin 9mm pistol under the clothes in the
dining room. Underneath the couch in the living room the
officers discovered a plate containing 2.29 grams of cocaine
base, a razor blade, a box of baggies, and a digital scale. The
following day, Clinton called a Milwaukee police officer and
admitted to possessing the gun. He stated that he purchased
the gun from a drug addict. He was arrested on January 21,
2014, and subsequently admitted that he owned the firearm
and that he cooked and sold crack cocaine.
No. 15‐1346 3
Prior to sentencing, the Probation Office prepared a
Presentence Investigation Report (PSR) that determined a base
offense level of 24 pursuant to U.S.S.G. § 2K2.1(a)(2) based on
his two prior felony controlled‐substances convictions. The
PSR further recommended that the district court apply a four‐
level enhancement under U.S.S.G. § 2K2.1(b)(6)(B) because
Clinton had possessed the 9mm weapon “in connection with
another felony offense”—the drug offense. The PSR also
advocated a three‐level decrease for Clinton’s acceptance of
responsibility, resulting in a total offense level of 25. In
conjunction with his undisputed Category III criminal history,
the PSR determined a Guidelines range of 70‐87 months, and
the district court sentenced him to 76 months. Clinton now
challenges that sentence, arguing that the district court erred
in applying the four‐level enhancement under § 2K2.1(b)(6)(B),
failed to consider mitigating circumstances, and relied on
improper factors in determining his sentence.
We review a district court’s sentencing procedures and
questions of law involving the interpretations of the Guidelines
de novo. United States v. Schmitt, 770 F.3d 524, 538 (7th Cir.
2014). “‘[W]here the district court bases the application of a
sentencing guideline on factual findings, we review for clear
error.’” United States v. Meece, 580 F.3d 616, 620 (7th Cir. 2009),
quoting United States v. Wagner, 467 F.3d 1085, 1089 (7th Cir.
2006). Clinton first argues that the district court erred in
applying the four‐level enhancement under § 2K2.1(b)(6)(B). A
district court’s application of those Guidelines is a mixed
question of law and fact, and is reviewed for clear error.
Schmitt, 770 F.3d at 538‐39. Section 2K2.1(b)(6)(B) provides for
a four‐level enhancement if the defendant “used or possessed
4 No. 15‐1346
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.”
Only the first of those two provisions is applicable in this case.
Application Note 14 to that section provides that subsection
(b)(6)(B) applies “if the firearm or ammunition facilitated, or
had the potential of facilitating, another felony offense.”
As we recognized in United States v. Harper, 766 F.3d 741,
747 (7th Cir. 2014), the broad language of § 2K2.1 presents a
danger of sweeping within its reach wide‐ranging offenses that
may be only tenuously connected to the offense of conviction.
Courts have responded to that potential for abuse by requiring
that the other offense must fall within relevant conduct in
order for the enhancement to apply, and the Sentencing
Commission has followed suit in an amendment effective
November 1, 2014 which clarifies that courts must consider the
relationship between the offense of conviction and the other
offense consistent with relevant conduct principles.
In this case, the defendant may be found to have used a
firearm in connection with another felony offense if he “‘used
or possessed’ the firearm in connection with (1) his general
drug dealing activities in his home or (2) the purchase of the
firearm, which he allegedly bought with drugs.” Schmitt,
770 F.3d at 539.
The district court began by relying on the second of those
two approaches. In considering whether the four‐level en‐
hancement was proper, the district court first stated that a
“solid presumption” exists that “where you have drugs you
No. 15‐1346 5
have guns and usually violence.” The district court then found
that “in any event, you have the defendant purchasing a gun
from a drug [dealer.]1 Sure, the inference could be drawn or the
argument can be made that it was purchased from the sale of
the drugs that he was making, but you’ve got an exchange here
for guns and drugs if you accept that as true.” We have held
that the § 2K2.1(b)(6)(B) enhancement is proper when the
defendant has engaged in an exchange of drugs for a weapon.
Schmitt, 770 F.3d at 539. Accordingly, the district court’s
finding, if proper, would support the application of that
enhancement.
That finding, however, is not supported in the record, and
the government to its credit acknowledges as much. The
underlying discovery and the factual proffer in Clinton’s plea
agreement establish only that the person from whom he
purchased the weapon was a drug addict. Although it is
possible that the person could have conveyed the firearm to
Clinton in exchange for drugs, there is no evidence of that, and
mere speculation is insufficient to support a four‐level en‐
hancement. United States v. Bradley, 628 F.3d 394, 400 (7th Cir.
2010) (due process requires that sentencing determinations be
based on reliable evidence rather than speculation or un‐
founded allegations). Therefore, the district court’s reliance on
the drugs‐for‐guns scenario in applying the enhancement was
reversible error.
1
The transcript says “drug clear” instead of “drug dealer” but the
government acknowledges that was likely a typographical error and that
the PSR‐writer and judge seem to have concluded that the seller of the
weapon was a drug dealer.
6 No. 15‐1346
In addition to finding that Clinton exchanged drugs for the
weapon, the court also considered whether the firearm was
used or possessed in connection with drug dealing in the
residence. The court noted that the need to protect drugs is
paramount, “especially if you are living in an area where this
is an activity that occurs on a daily basis,” and that “you can’t
engage in that type of activity and not think that you’re not in
need of some form of protection.” The court then concluded:
“that supports … the presumption—the rebuttable presump‐
tion for sure that the proximity of this gun in the house was
used for a secondary felony.”
That analysis lacks the findings that would support
application of the enhancement. The enhancement is proper
under § 2K2.1(b)(6)(B) if the court determines that the defen‐
dant used or possessed the firearm in connection with another
felony offense. Application Note 14 to that section provides
that “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 … application of [subsection]
(b)(6)(B) … is warranted because the presence of the firearm
has the potential of facilitating another felony offense.” That
presumptive determination reflects the axiom that guns are
indeed a routine part of the drug trade and facilitate that trade
by providing protection from the theft of drugs or the cash
proceeds of drug sales, as well as a deterrent to those who
would compete in that drug trade. If a firearm is found in close
proximity to the drugs or its paraphernalia, the conclusion that
the firearm is connected to that drug activity is a reasonable
one in light of the common use for that purpose. See United
States v. LePage, 477 F.3d 485, 489 (7th Cir. 2007).
No. 15‐1346 7
But that Application Note should not be interpreted to
ordain such a connection whenever a defendant involved in
drug distribution also is in possession of a firearm. The term
“close proximity” must not be read out of the Application
Note. It is the close proximity that allows the court to find such
a connection without any further evidence—the proximity
alone provides the evidence that the two are connected. If that
“close proximity” is lacking, then the connection may still be
established, but it must be determined through evidence of
such a connection.
The government, citing United States v. Meece, 580 F.3d 616,
621 (7th Cir. 2009), argues that it may not be necessary that a
weapon be found in precisely the same location in a residence
in order for the court to find that it was in “close proximity.”
In Meece, two handguns were recovered under the mattress of
Meece’s bed, and in addition the search of the residence found
a scale, several plastic baggies, and a Tupperware bowl—all
containing cocaine residue—in the kitchen, and $3,400 in cash
hidden in the basement rafters. Therefore, paraphernalia and
possible proceeds of the drug trade were found in various
locations on multiple levels of the house. We noted that the
seizure of a firearm in close proximity to illegal drugs is
powerful support for the inference that the firearm was used
in connection with the drug trafficking operation, and we
considered Meece’s argument that the guns were not in close
proximity to the drug paraphernalia and that the enhancement
therefore did not apply. Id. We were unpersuaded by that
argument. The district court had concluded that Meece was
trafficking drugs and that the guns were in the house to protect
against the increased risk of home invasion occasioned by that
8 No. 15‐1346
drug trafficking. Id. We held that the evidence was capable of
multiple inferences, and the district court’s interpretation was
not erroneous. Id. In so holding, we noted that the bedroom
was a logical place to store guns if the purpose was to protect
against the increased risk of home invasion. We did not hold
that the guns were located in close proximity to the drug
paraphernalia triggering the enhancement, nor did we identify
any district court holding to that effect. Instead, we merely
addressed Meece’s argument that the guns were not in close
proximity, and held that the district court could nevertheless
properly find that the guns were present in the house to
protect against the increased risks associated with drug
trafficking. In Meece, we were presented with significant
evidence supporting such a finding, including the drug
paraphernalia and cash proceeds distributed through different
levels of the house, the amount of cash on hand in the home,
and the location of the guns under the mattress where they
would be easily accessible in the event of a nighttime home
invasion.
In the present case, we have essentially no fact findings at
all by the district court relevant to this issue. The court did not
find that the firearm was readily accessible in the bedroom
closet, that drugs were kept in that closet or even the bedroom,
or that significant amounts of drugs or cash were kept at the
home that presented a need for protection on that basis. Those
are indicative of the types of factual findings that can support
the enhancement. See, e.g, United States v. Sewell, 780 F.3d 839,
848‐49 (7th Cir. 2015) (noting that the district court in applying
an enhancement for possessing a firearm in connection with
drug dealing, made the relevant finding of fact: that the gun
No. 15‐1346 9
was found under the defendant’s side of the bed and was
loaded, and that in that location the gun was readily accessible
to the defendant and capable of being fired instantly). Al‐
though the court concluded that there was a rebuttable
presumption “that the proximity of this gun in the house was
used for a secondary felony,” the court never discussed the
proximity of the firearm to the drugs in so concluding. The
court discussed only the inherent dangers in the drug trade,
and the need for protection that often accompanies it. That
evidence is relevant to determining whether a connection may
exist sufficient to support the enhancement, but it does not
support the determination that the rebuttable presumption
based on close proximity is applicable.
The government, with laudable candor, acknowledges that
the propriety of the enhancement in this case is a close call. We
agree that the evidence supporting such an enhancement here
is sparse. As stated, the court has identified no evidence that
the firearm was in “close proximity” to the drugs, such that the
proximity alone could trigger the enhancement. The evidence
indicated that the firearm was kept in the closet in the bed‐
room, and there was no evidence that any drugs or drug
paraphernalia were found in that closet or even in the rest of
the bedroom. The only drug evidence was found under the
couch in the living room. The proximity of the weapon to the
drugs therefore was not “close” such that the distance alone
warranted the enhancement.
There was also little evidence regarding his drug trafficking
activities that would support a determination that the firearm
facilitated or had the potential to facilitate the drug offense. In
many cases regarding drug trafficking, the amount of drugs
10 No. 15‐1346
and/or cash on the premises increases the likelihood that a
firearm on the premises is connected to protection for that
activity. In this case, the evidence is atypical. The only evidence
of drug distribution occurring on the premises comes from a
statement by Clinton himself in an interview with a Milwaukee
police officer. The officer asked him how often he sells drugs
out of the house, and Clinton responded “Um, not too often.
Ah, just have a few people being we, like the regulars I’ve been
doing since maybe—it’s only been about two or three people.
The kids can even tell you that.” That evidence indicates that
the drug distribution from the residence was limited to sales to
two or three individuals who had been regulars for some time.
Moreover, there is no evidence indicating that a significant
amount of drugs were processed through the residence. The
amount found in the residence was only 2.29 grams of cocaine
base, which the defendant’s brief characterizes as an amount
worth approximately $200. See generally United States v. Atkins,
___ Fed.Appx. ___, 2016 WL 1077819 at *1‐2 (informant
testifying that 2 grams of crack cocaine cost $200). With the
evidence indicating only a small‐scale drug operation with
sales in the residence restricted to a few trusted regulars, there
is little basis to connect the firearm to the drug offense. Rather
than indicating a need for protection from unscrupulous drug
buyers, the evidence indicates that Clinton sold to only trusted
buyers in the residence. And there is no evidence that he kept
a sufficient amount of drugs or cash at the residence to support
an inference that the firearm on the premises facilitated, or had
the potential of facilitating, another felony offense. Finally,
there is no direct evidence of a connection, such as evidence
that he was seen in possession of the firearm during drug
No. 15‐1346 11
transactions, or that he purchased the firearm or retained it in
connection with the drug activity.
The record thus provides little support for such an enhance‐
ment. We do not hold that the enhancement is inapplicable as
a matter of law, but the fact findings in this record do not
support the enhancement. The district court identified only the
generalized need for protection by those engaged in drug
offenses. But that would apply whenever a person who sold
drugs also possessed a firearm in the residence. It would
transform the “close proximity” test of Application Note 14 to
a broad‐based rebuttable presumption that the enhancement
applied whenever a firearm was possessed and a drug offense
was also alleged regardless of the location of the firearm and
its proximity to the drugs. The Sentencing Commission could
have imposed an enhancement if any weapon was possessed
without requiring that it be possessed in connection with the
offense, but it chose not to do so. See United States v. Carillo‐
Ayala, 713 F.3d 82, 89‐90 (11th Cir. 2013)(comparing the
provision in § 2D1.1(b)(1) requiring only that a weapon was
possessed with the requirement under § 5C1.2(a)(2) that the
firearm was possessed in connection with the offense). Because
the court’s findings are insufficient to support application of
the four‐level enhancement, that determination is vacated and
the case must be remanded for resentencing.
Because we are remanding on the enhancement issue, we
address only briefly Clinton’s other challenges to his sentence.
First, Clinton argues that the court erred in failing to address
his health problems as a mitigating circumstance that war‐
ranted a sentence below the Guidelines range. Although a
district court may properly remain silent regarding frivolous
12 No. 15‐1346
arguments for leniency, “where a defendant presents an
argument that is ‘not so weak as not to merit discussion,’ a
court is required to explain its reason for rejecting that argu‐
ment.” United States v. Schroeder, 536 F.3d 746, 755 (7th Cir.
2008), quoting United States v. Miranda, 505 F.3d 785, 792 (7th
Cir. 2007). On appeal, Clinton argues that the district court
erred in failing to address his health problems identified in the
PSR, but Clinton never sets forth any details as to those health
problems nor does he present any argument as to how those
problems should impact his sentence. In fact, one has to read
the PSR or the government’s brief to even realize that the
significant health issue is Type 2 diabetes and complications
from it. We have recognized that serious health ailments may
militate in favor of a lower sentence, and specifically have
remanded for a district court to consider a defendant’s diabetes
which resulted in serious health issues. United States v. Harris,
567 F.3d 846, 855 (7th Cir. 2009). In this appeal, however,
Clinton has failed to discuss his health condition at all, instead
choosing to simply reference the PSR as setting forth that
information. That cursory discussion of the issue is insufficient
to properly present it on appeal. Nevertheless, because this
case is being remanded for resentencing, we note that severe
health conditions may indeed be a militating circumstance that
the court should consider in conducting the § 3553(a) analysis,
and unless the argument is clearly without merit the court
should address it in determining the appropriate sentence.
Finally, Clinton asserts that the district court improperly
considered extraneous factors that veered far beyond the
§ 3553(a) factors. Specifically, the district court lamented the
adverse impact the drug trade has had in Mexico and Latin
No. 15‐1346 13
America which supply the drugs, and referenced the kidnap‐
ping and murder of 23 school children by Mexican drug gangs.
The court then concluded that Clinton’s participation in that
type of enterprise is a very serious offense. Clinton argues that
the court erred in linking his offense to the kidnapping and
murder of school children in Mexico because there is no
indication in the record that Clinton is in any way connected to
a Mexican drug cartel, let alone involved in narco‐terrorism,
kidnapping, or murder. Clinton also argues that the court
veered beyond the proper bounds of sentencing in its state‐
ments as to his character in response to his claim that he is not
a bad person. The district court judge questioned that, stating
that “you just told me you’re a good man and made some
mistakes. But you’re not, you’re a bad man. And I’ll tell you
how simple this is. Good men do good things, bad men do bad
things. Dealing drugs is a bad thing; ergo, therefore, you’re a
bad man. Simple as that.” We have cautioned against a focus
on such extraneous factors in past cases. In United States v.
Figueroa, 622 F.3d 739, 743‐44 (7th Cir. 2010), we addressed a
similar “odd focus on nation‐states and national characteris‐
tics,” where the district court linked the drug trade to Mexico,
then to Colombia and Venezuela, and then to Iranian terrorists
through the person of then‐Venezuelan President Hugo
Chávez. In combination with other improper statements, we
held that the litany of inflammatory remarks undermined
anything else the court said during the hearing, and we had no
way of discerning how, if at all, those extraneous consider‐
ations influenced the sentence. Id. at 744.
Similarly, in United States v. Webster, 528 Fed.Appx. 648, 651
(7th Cir. 2013), we addressed remarks by the district court that
14 No. 15‐1346
people are basically “decent” or “indecent,” which mirror the
remarks in this case that there are “good people” and “bad
people.” In that case, we held that those remarks alone fell
short of the litany of inflammatory remarks that would
undermine the court’s explanation for the sentence. Id. at 652.
Therefore, we have repeatedly identified such remarks as
straying beyond the proper § 3553(a) analysis whether or not
the remarks required that the sentence be vacated. Because we
are remanding on other grounds, we need not determine
whether or not the remarks in this case would alone require
that the sentence be vacated. We simply note the potential for
such remarks to derail the sentencing hearing and require a
subsequent remand for resentencing, so that the court can
avoid that prospect in this resentencing.
The sentence is VACATED and the case REMANDED for
resentencing consistent with this opinion.