PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
No. 19-1469
UNITED STATES OF AMERICA
v.
LESANDRO PEREZ, also known as TOAST,
Appellant
Appeal from the United States District Court
for the Eastern District of Pennsylvania
(D.C. Criminal Action Nos. 2-17-cr-00596-001; 2-17-cr-
00597-001 and 2-17-cr-00599-001)
District Judge: Honorable Robert F. Kelly
Argued on January 26, 2021
Before: AMBRO, SHWARTZ, AND BIBAS, Circuit Judges
(Opinion filed: July 22, 2021)
Christy Martin, Esq. (Argued)
Federal Community Defender Office for the Eastern District
of Pennsylvania
601 Walnut Street
The Curtis Center, Suite 540 West
Philadelphia, PA 19106
Counsel for Appellant
Sarah Damiani, Esq.
Bernadette A. McKeon, Esq.
Robert A. Zauzmer, Esq. (Argued)
Office of United States Attorney
615 Chestnut Street
Suite 1250
Philadelphia, PA 19106
Counsel for Appellee
____________
OPINION OF THE COURT
____________
AMBRO, Circuit Judge
Lesandro Perez pled guilty to federal firearm and drug
offenses arising from, among other things, selling guns to an
undercover law enforcement officer. The Sentencing
Guidelines recommended between 84 and 105 months’
imprisonment for Perez’s crimes. But at the Government’s
urging, the District Court applied a sentencing enhancement
that brought Perez’s recommended prison time up to 121 to
2
151 months. The reason? The undercover officer observed
that Perez had guns and drugs together in the same room.
We now decide whether the mere physical proximity
between guns and drugs is enough to justify the significant
increase in Perez’s Guidelines range. We hold that it is not.
While the Commentary to the Guidelines, on which the District
Court relied, deserves deference, we are persuaded that the
Court misapplied it in this instance. We believe the
Commentary creates a rebuttable presumption, rather than a
bright-line rule, that the enhancement should apply when a
defendant possesses guns and drugs together. We therefore
vacate the District Court’s judgment and sentence and remand
for further proceedings.
I. BACKGROUND
Over a six-month period in 2017, Perez sold firearms
and controlled substances to various confidential informants
and undercover officers. On March 9, 2017, he sold two
firearms to an undercover officer. 1 Perez kept those guns
under a mattress in the room where he conducted the
transaction. During it the officer observed drugs, drug-
packaging materials, and drug paraphernalia in the same room
as the two guns.
Perez was later charged in three separate indictments in
the Eastern District of Pennsylvania, all involving sales of guns
or drugs. One of the indictments concerned the March 9th
1
Perez also sold a third firearm that day to the undercover
officer at another location, but that transaction is not at issue
here.
3
transaction. Perez ultimately pled guilty to all three
indictments. The Sentencing Guidelines range was 121 to 151
months, based on a total offense level of 29 and a criminal
history of IV. This calculation included a four-level
enhancement per U.S. Sentencing Guidelines Manual
§ 2K2.1(b)(6)(B) (U.S. Sentencing Comm’n 2016), which
applies when the defendant “used or possessed any
firearm . . . in connection with another felony offense.” While
there were numerous other sales in the three indictments, the
Government conceded that the March 9th transaction was the
only arguable basis for the enhancement.
Perez objected to the enhancement at sentencing,
arguing that he did not use the guns “in connection with” his
felony drug-trafficking offense because he was merely offering
the guns for sale in the same room as the drugs. But the District
Court overruled the objection and concluded that the
enhancement applied because the guns “were in close
proximity to drugs and . . . drug material.” App. 109. The
Court thus applied the initial total offense level of 29 and
criminal history of IV, and sentenced Perez to 121 months’
imprisonment followed by five years’ supervised release. On
appeal, he renews his argument that the four-level
enhancement does not apply because he possessed the firearms
to sell them, and thus they should not be deemed as used or
possessed in connection with a drug-trafficking offense based
solely on their close proximity to drugs.
II. JURISDICTION AND STANDARD OF REVIEW
The District Court had subject-matter jurisdiction over
this prosecution for federal crimes under 18 U.S.C. § 3231. We
4
have jurisdiction to review Perez’s sentence under 28 U.S.C.
§ 1291 and 18 U.S.C. § 3742(a).
When a defendant does not contest the facts of his
offense, we review without deference a district court’s
interpretation of the Guidelines. United States v. Bell, 947 F.3d
49, 54 (3d Cir. 2020). Here, Perez does not contest the facts of
the March 9th transaction. Rather, he argues that the District
Court made a legal error in interpreting the Guidelines to
require a four-level enhancement any time guns are physically
near drugs or drug paraphernalia. We thus conduct a fresh
review of the Court’s decision. 2
2
The Government argues that we review the District Court’s
decision for only clear error under United States v. Richards,
674 F.3d 215, 219–20 (3d Cir. 2012). But in Richards “the
District Court’s interpretation of the Guidelines [was] not
really at issue,” as the defendant did not contest the Court’s
“articulation” of the Guidelines standard. Id. at 218; see also
Bell, 947 F.3d at 54 (discussing the factual nature of the
Richard Court’s inquiry). In contrast, we have often held that
we review anew a district court’s legal interpretation of the
Guidelines. See, e.g., United States v. Nasir, 982 F.3d 144, 156
(3d Cir. 2020) (en banc); United States v. Metro, 882 F.3d 431,
437 (3d Cir. 2018). And before us is not a situation in which
the Guidelines “set[] forth a predominantly fact-driven test”
such that “the legal issue decided by the district court is, in
essence, a factual question.” United States v. Thung Van
Huynh, 884 F.3d 160, 165 (3d Cir. 2018) (alteration in original)
(quoting Richards, 674 F.3d at 220, 223). Perez is complaining
about a purely legal error with no factual component at all. We
therefore decline to adopt the Government’s proposed
approach.
5
III. ANALYSIS
Section 2K2.1(b)(6)(B) of the Sentencing Guidelines
requires a four-level sentencing enhancement in cases where a
defendant “used or possessed any firearm . . . in connection
with another felony offense.” U.S. Sentencing Guidelines
Manual § 2K2.1(b)(6)(B) (U.S. Sentencing Comm’n 2016).
The Sentencing Commission’s Commentary to this provision,
however, applies different rules based on the type of other
felony involved. By default, the enhancement applies under
Note 14(A) of the Commentary “if the firearm . . . facilitated,
or had the potential of facilitating, another felony offense.”
U.S. Sentencing Guidelines Manual § 2K2.1 cmt. n.14(A)
(U.S. Sentencing Comm’n 2016).
But when the other felony offense is drug trafficking,
Note 14(B) creates a special rule: The four-level enhancement
applies as long as the firearm “is found in close proximity to
drugs, drug-manufacturing materials, or drug paraphernalia.”
Id. § 2K2.1 cmt. n.14(B). This special rule is justified “because
the presence of the firearm has the potential of facilitating
another felony offense.” Id.
Because Perez’s other felony was a drug-trafficking
offense, the District Court applied the more severe rule in Note
14(B). And the Court took a broad view of that rule,
concluding that Perez used or possessed guns in connection
with a drug-trafficking offense because he kept them in close
proximity to drugs and drug paraphernalia. We must therefore
decide what weight, if any, to give Note 14(B) as an
interpretation of the “in connection with” requirement of
6
§ 2K2.1(b)(6)(B). We then turn to whether the District Court
properly applied Note 14(B) in this case.
A. The Auer deference framework applies to
Sentencing Guidelines Commentary.
The “plain and unambiguous language” of the
Guidelines is the best course for their interpretation. United
States v. Kluger, 722 F.3d 549, 556 (3d Cir. 2013) (quoting
United States v. Wong, 3 F.3d 667, 670 (3d Cir. 1993)). But
“[t]he extent to which the [G]uidelines’ [C]ommentary
controls our interpretation of the [G]uidelines themselves is
informed by principles of administrative law.” United States
v. Nasir, 982 F.3d 144, 157 (3d Cir. 2020) (en banc), petition
for cert. filed on other grounds, 89 U.S.L.W. 3378 (U.S. Apr.
30, 2021) (No. 20-1522). The Guidelines “are the equivalent
of legislative rules adopted by federal agencies,” so
Commentary is “treated as an agency’s interpretation of its
own legislative rule.” Stinson v. United States, 508 U.S. 36,
44–45 (1993). This means the Commentary is subject to the
rules of Auer deference. Nasir, 982 F.3d at 157; see also id. at
157 n.12 (citing, among others, Auer v. Robbins, 519 U.S. 452
(1997)). Under this standard, Commentary “that interprets or
explains a [G]uideline is authoritative unless it violates the
Constitution or a federal statute, or is inconsistent with, or a
plainly erroneous reading of, that [G]uideline.” Stinson, 508
U.S. at 38.
However, the Supreme Court recently articulated
several limitations on Auer deference in Kisor v. Wilkie, 139 S.
Ct. 2400 (2019). First, an agency’s interpretation of its own
rules is entitled to that deference “only if a regulation is
genuinely ambiguous.” Id. at 2414. But before so concluding,
7
“a court must exhaust all the traditional tools of construction.”
Id. at 2415 (internal quotation marks omitted). Second, if a
regulation is genuinely ambiguous, the agency’s interpretation
must be reasonable. Id. And third, even if an agency’s
interpretation is reasonable, “a court must make an
independent inquiry into whether the character and context of
the agency interpretation entitle[] it to controlling weight.” Id.
at 2416. Of special importance in this analysis is whether the
interpretation is the agency’s “authoritative” or “official
position,” id. (internal quotation marks omitted); whether it
“implicate[s] [the agency’s] substantive expertise,” id. at 2417;
and whether it “reflects [the agency’s] fair and considered
judgment”—that is, the interpretation cannot be a “convenient
litigating position” or a “post hoc rationalizatio[n]” for past
agency action, id. (alteration in original) (internal quotation
marks omitted).
We applied this scaled-back approach to the Guidelines’
Commentary in United States v. Nasir, emphasizing that the
plain text of the Guidelines should control unless the language
is genuinely ambiguous. 982 F.3d at 158–60. We
acknowledged that previous Supreme Court precedent seemed
to allow Commentary to expand the scope of the Guidelines
beyond the Guidelines text itself “if the [G]uideline which the
commentary interprets will bear the construction.” Id. at 157
(quoting Stinson, 508 U.S. at 46). But we joined the Sixth
Circuit in concluding that “separation-of-powers concerns
advise against any interpretation of the [C]ommentary that
expands the substantive law set forth in the [G]uidelines
themselves.” Id. at 159; see also id. (citing United States v.
Havis, 927 F.3d 382, 386 (6th Cir. 2019) (en banc) (per
curiam)).
8
Under Kisor, then, as interpreted by our Court in Nasir,
we afford the Guidelines’ Commentary Auer deference when
the Guidelines’ language is ambiguous, the Commentary itself
is reasonable, and the “character and context” of the
Commentary “entitle[] it to controlling weight.” Kisor, 139 S.
Ct. at 2414–17. We must also be wary of Commentary that
“expands the substantive law set forth in the [G]uidelines
themselves,” and we should apply the plain text of the
Guidelines whenever possible. Nasir, 982 F.3d at 159–60.
B. Note 14(B) is entitled to Auer deference.
i. Kisor Steps One and Three
With these principles in mind, we turn to Guideline
§ 2K2.1(b)(6)(B) and Commentary Note 14(B). We first
decide whether the Guideline is “genuinely ambiguous” before
relying on the Commentary. See Kisor, 139 S. Ct. at 2415.
Again, § 2K2.1(b)(6)(B) provides that a four-level
enhancement applies if the defendant “used or possessed any
firearm . . . in connection with another felony offense”
(emphasis added). Perez argues that because the “in
connection with” language of § 2K2.1(b)(6)(B) plainly
requires “some relationship between the gun and the drug
offense,” the Guideline itself is unambiguous. Perez’s Br. at
14.
We disagree. We may only conclude that the Guideline
is ambiguous after we have “exhaust[ed] all the traditional
tools of construction.” Kisor, 139 S. Ct. at 2415 (internal
quotation marks omitted). Thus we “carefully consider[] the
text, structure, history, and purpose” of the Guideline. Id.
(alteration in original) (internal quotation marks omitted); see
9
also Nasir, 982 F.3d at 158. None of these considerations
weigh against finding ambiguity here, and two weigh
particularly in favor.
First, the text. We have yet to consider whether
§ 2K2.1(b)(6)(B) is genuinely ambiguous under Kisor. That
said, we have previously observed, before Note 14’s addition
to the Commentary in 2006, that the phrase “in connection
with” is “notable for its vagueness and pliability.” United
States v. Loney, 219 F.3d 281, 283 (3d Cir. 2000) (internal
quotation marks omitted); see also United States v. West, 643
F.3d 102, 112 (3d Cir. 2011) (discussing the addition of Note
14). Indeed, “no simple judicial formula can adequately
capture the precise contours of the ‘in connection with’
requirement, particularly in light of the myriad factual contexts
in which the phrase might come into play.” Loney, 219 F.3d at
284 (quoting United States v. Wyatt, 102 F.3d 241, 247 (7th
Cir. 1996)). We have nonetheless spoken of its “broad[]” and
“expansive[]” meaning. See id. (internal quotation marks
omitted). Thus the text of § 2K2.1(b)(6)(B) suggests, but does
not establish, its ambiguity.
What confirms the Guideline’s ambiguity is the history
of its text. After our first attempt to define the phrase “in
connection with,” the Sentencing Commission added Note 14
to the Commentary to “address a growing conflict among
circuits regarding the interpretation of § 2K2.1(b)(6).” See
West, 643 F.3d at 112; see also U.S. Sentencing Guidelines
Manual app. C (commenting, in Amendment 691, that Note 14
was adopted to “address[] a circuit conflict pertaining to the
application of” § 2K2.1(b)(6)). This conflict was based, at
least in part, on disagreement concerning whether the phrase
“in connection with” encompassed those cases where the
10
firearm’s presence was merely accidental or coincidental. See,
e.g., United States v. Young, 115 F.3d 834, 838 (11th Cir.
1997). And this disagreement continues among circuit courts
today. See infra Section III.C. We are therefore persuaded by
the text and history of § 2K2.1(b)(6)(B) that the Guideline is
ambiguous and meets Kisor’s first requirement.
As for Kisor step three, Note 14(B) meets its
requirements because its character and context entitle it to
controlling weight. See Kisor, 139 S. Ct. at 2416–17. The
parties do not contest that the Note is the Sentencing
Commission’s official position or that it implicates the
Commission’s substantive expertise. See id. The parties also
do not argue that the Commission’s views as provided in the
Note are “merely [a] convenient litigating position” created for
this or another case. See id. at 2417 (internal quotation marks
omitted). We concur that the Commentary meets these three
markers, and nothing about its character or context counsels
against deference. See id. at 2416–17. Hence Note 14(B)
meets Kisor step three.
ii. Kisor Step Two
So we are left with step two: whether, under Kisor, Note
14(B) is reasonable. According to Perez, the “in connection
with” language of § 2K2.1(b)(6)(B) requires a relationship
between the guns and drugs. But Note 14(B), he contends,
mandates that the enhancement applies any time guns and
drugs are in close physical proximity to each other even if there
is no relationship between them. Perez thus argues that the
Note conflicts with the Guideline and is therefore an
unreasonable interpretation of it.
11
We agree that the Note would be unreasonable if it
applied in the way Perez argues (which is also the way the
District Court appeared to apply it). But we are not convinced
it is so unforgiving. Our conclusion rests in part on the origin
of the language the Sentencing Commission chose for the
Note, which indicates that the “potential to facilitate”
requirement necessarily excludes cases in which the presence
of firearms was merely accidental.
We begin with the Supreme Court’s decision in Smith
v. United States, 508 U.S. 223 (1993). There the Court
considered 18 U.S.C. § 924(c)(1), which requires certain
penalties if the defendant, “during and in relation to any crime
of violence or drug trafficking crime[,] . . . uses or carries a
firearm.” See id. at 227. As the defendant in that case did not
dispute that he used a firearm “during” a drug-trafficking
offense, the Court focused in part on whether his use of the
firearm was “in relation to” the other offense. Id. at 237.
While the Court declined to “determine the precise
contours” of the provision, id. at 238, it
clarifie[d] that the firearm must
have some purpose or effect with
respect to the drug trafficking
crime; its presence or involvement
cannot be the result of accident or
coincidence. . . . [T]he “in relation
to” language “allay[s] explicitly
the concern that a person could be”
punished under § 924(c)(1) for
committing a drug trafficking
offense “while in possession of a
12
firearm” even though the firearm’s
presence is coincidental or entirely
“unrelated” to the crime. Instead,
the gun at least must “facilitat[e],
or ha[ve] the potential of
facilitating,” the drug trafficking
offense.
Id. (alterations in original) (emphasis added) (citations
omitted). The Court ultimately concluded that the defendant,
who had traded a gun for drugs, met the “in relation to”
requirement. Id. This was because the gun’s presence “was an
integral part of the [drug] transaction” rather than “the product
of happenstance.” Id. (internal quotation marks omitted).
We built on Smith’s approach in United States v. Loney,
219 F.3d 281 (3d Cir. 2000), which we decided before the
Sentencing Commission added Note 14 to the Guidelines’
Commentary. Loney held that the enhancement in
§ 2K2.1(b)(6)(B) (then § 2K2.1(b)(5)) applied when the
defendant was arrested with twenty-nine packets of heroin and
a loaded pistol on his person. Id. at 283. The defendant argued
that “in connection with” required “some causal nexus”
between the gun and the other felony, but we rejected his
proposed standard. Id. at 285. Rather, we determined that “in
connection with” meant there had to be “some relationship or
association” between the firearm and the other felony, which
could be “a causal or logical relation or other type of
relationship.” Id. at 284.
In so holding, we relied significantly on Smith by
acknowledging that it considered the phrase “in relation to,”
rather than “in connection with,” and that the two phrases may
13
not be fully synonymous. Id. at 287. Nonetheless, we adopted
the Smith Court’s reasoning insofar as both phrases “ensure[]”
that the firearm’s “presence or involvement . . . cannot be the
result of accident or coincidence.” Id. at 286 (quoting Smith,
508 U.S. at 238). We thus held that the “in connection with”
requirement would exclude situations in which “the presence
of the gun was merely ‘accidental,’ had no ‘purpose or effect
with respect to’ [the defendant’s] drug offense, or did not
‘facilitate or have the potential of facilitating’ [the defendant’s]
drug dealing.” Id. at 287–88 (quoting Smith, 508 U.S. at 238).
Applying these principles, Loney stated that “when a
defendant has a loaded gun on his person while caught in the
midst of a crime that involves in-person transactions, whether
involving drugs or not, a district judge can reasonably infer that
there is a relationship between the gun and the offense.” Id. at
288. In contrast, we acknowledged there may not be a
relationship between a firearm and a drug offense when, for
example, a drug dealer has a “hunting rifle buried in his closet,”
even if the gun was present “around his drug dealing.” Id. at
289. We thus concluded that “physical proximity alone may
be insufficient in some cases” to establish a relationship
between guns and drugs. Id.
We next considered the language of § 2K2.1(b)(6)(B) in
United States v. West, 643 F.3d 102 (3d Cir. 2011), which we
decided after the Sentencing Commission adopted Note 14.
The issue was whether the enhancement in § 2K2.1(b)(6)(B)
applied even though the District Court had not made any
specific findings that the revolver “facilitated or had the
potential to facilitate” the defendant’s drug possession under
Note 14(A). See id. at 115. Thus West concerned drug
14
possession under subsection (A) rather than drug trafficking
under subsection (B). Id. at 113–14.
We adopted the approaches of the Fourth, Fifth, and
Eighth Circuits in holding 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.” Id. at 114. But we emphasized that mere
physical proximity would not be enough to support such a
finding. Id. at 116. We relied on Smith and Loney in holding
that “[w]hile a weapon’s physical proximity to narcotics may
be sufficient to show a connection between the weapon and the
drug charges in some cases, . . . where the predicate drug
offense is possession, mere proximity is insufficient to
establish the required nexus.” Id. (internal citations omitted).
Note 14(B), however, created different rules for drug-
trafficking cases; in that circumstance, a sentencing court could
“presume” that a firearm was used “in connection with” the
drug-trafficking offense based on physical proximity. Id. at
114.
Although they do not directly address Note 14(B), the
decisions in Smith, Loney, and West lead us to several helpful
conclusions. The first is that the “potential to facilitate”
requirement, which originated in Smith and is now part of
subsection (B), excludes those cases in which the firearm’s
presence is “the result of accident or coincidence.” Smith, 508
U.S. at 238; see also U.S. Sentencing Guidelines Manual app.
C (noting, in Amendment 691, that Note 14 adopts language
from Smith). Note 14(B) therefore aligns with both Smith and
our pre-Note decision in Loney, where we held that the “in
connection with” language of § 2K2.1(b)(6)(B) created an
identical requirement. Loney, 219 F.3d at 287 (citing Smith,
15
508 U.S. at 238). Given this significant overlap, we cannot say
that Note 14(B) is unreasonable as written. It is therefore
entitled to Auer deference.
But Loney and West lead us to another significant
conclusion—that “physical proximity alone may be
insufficient in some cases” to establish that the firearm had the
potential to facilitate drug activity. Id. at 289; see also West,
643 F.3d at 116; accord United States v. Angel, 576 F.3d 318,
321 (6th Cir. 2009) (affirming that “[p]ossession of firearms
that is merely coincidental to the underlying felony offense is
insufficient to support the application of § 2K2.1” (internal
quotation marks omitted)). This standard requires “some
relationship” between the firearm and the defendant’s drug
offense. Loney, 219 F.3d at 286. And while West dealt
specifically with drug-possession offenses, see 643 F.3d at
116, the drug possessor and the drug trafficker alike could
coincidentally have a hunting rifle buried in a closet, see Loney,
219 F.3d. at 289. So our conclusion in West—which was itself
a reaffirmation of Loney—applies with similar force here.
We are further persuaded that the “relationship”
standard in Loney and West is the correct one because the
Sentencing Commission itself adopted it. In 2014 the
Commission adopted Note 14(E), which provides in relevant
part that “[i]n determining whether subsection[]
(b)(6)(B) . . . appl[ies], the court must consider the relationship
between the instant offense and the other offense.” § 2K2.1
cmt. n.14(E); see United States v. Harper, 766 F.3d 741, 747
(7th Cir. 2014) (discussing the 2014 amendment). While it
does not spell out precisely how a court must weigh this
relationship, Note 14(E) further demonstrates that the
Commission did not intend for § 2K2.1(b)(6)(B) to apply in
16
cases where the firearm’s presence was mere accident or
coincidence.
Practically speaking, this means that a sentencing court
cannot stop reading Note 14(B) after the “close proximity”
language in the first sentence. It must continue to the second
sentence, which provides that the Note should apply in cases
where “the presence of the firearm has the potential of
facilitating” a drug-trafficking offense. See § 2K2.1 cmt.
n.14(B). And it must further take into account Note 14(E),
which directs sentencing courts to “consider the relationship”
between the firearm and drug-trafficking offenses. See
§ 2K2.1 cmt. n.14(E). The Note thus provides some
“boundaries,” which we explain more fully below, for when
the enhancement should apply. See Smith, 508 U.S. at 237. As
those boundaries are closely tied to ones approved by the
Supreme Court in Smith, we do not disturb them. See id. at
238.
In sum, Note 14(B) is entitled to Auer deference as a
reasonable interpretation of an ambiguous Guideline. The
Note incorporates certain “boundaries” laid out by the
Supreme Court in Smith. See id. at 237. Those boundaries
require a relationship between drug-trafficking activities and
firearms. Loney, 219 F.3d at 287. Hence the enhancement
does not apply merely because Perez possessed firearms,
drugs, and drug paraphernalia together in the same room.
17
C. Note 14(B) creates a rebuttable presumption that the
enhancement applies when a firearm is in close
proximity to drugs or related items.
But we cannot stop there. Just as the “potential to
facilitate” language in Note 14(B) has meaning, so too does the
Note’s “close proximity” requirement. We see this point most
clearly when we compare the language of Note 14(B) with that
of Note 14(A).
Again, Note 14(A) creates a general rule that the
enhancement in § 2K2.1(b)(6)(B) should apply if a firearm
“facilitated, or had the potential of facilitating, another felony
offense.” § 2K2.1 cmt. n.14(A). The Note directly applies the
Smith standard with no alterations. See Smith, 508 U.S. at 238.
But when the other offense is drug trafficking, Note 14(B)
provides that the enhancement should apply when “a firearm is
found in close proximity to drugs” or related items, as “the
presence of the firearm has the potential of facilitating another
felony offense.” § 2K2.1 cmt. n.14(B). Note 14(B), then,
creates a special rule for drug traffickers by focusing on the
proximity between guns and drugs. This makes it different
from Note 14(A). But, like subsection (A), it also adopts the
“potential to facilitate” language from Smith. See Smith, 508
U.S. at 238.
The upshot of this comparison is that we cannot wholly
collapse the requirements of Note 14(B) into the “potential to
facilitate” standard from Smith, as Note 14(A) adopts the Smith
standard as the general rule for all kinds of felony offenses.
Subsection (B) must mean something different from (A), and
the “close proximity” language suggests that this distinction
should center on the physical proximity between the guns and
18
the drugs. But, as previously discussed, Note 14(B) must also
account for the limitation in Smith that the presence of the
firearm cannot be accidental or coincidental.
Given these strictures, we hold that Note 14(B) creates
a rebuttable presumption that the enhancement should apply
for a drug-trafficking offense when a firearm is found in close
proximity to drugs or related items. We already suggested this
approach in West, as we said there in a dictum that Note 14(B)
permits a court to “presume” that, when the underlying felony
is drug trafficking, § 2K2.1(b)(6)(B) applies when a firearm is
in close proximity to drugs. 643 F.3d at 114. Several of our
sister circuits have used similar language in discussing Note
14(B). See, e.g., United States v. Slone, 990 F.3d 568, 572 (7th
Cir. 2021) (“Application Note 14(B) creates a presumption that
the § 2K2.1(b)(6)(B) enhancement is warranted whenever
guns are found in close proximity to drugs . . . or drug
paraphernalia.” (internal quotation marks omitted)); United
States v. Bolden, 964 F.3d 283, 287 (4th Cir. 2020) (“[U]nder
Application Note 14(B), a firearm found in close physical
proximity to drugs presumptively has the potential of
facilitating the trafficking offense.” (internal quotation marks
omitted)); United States v. Eaden, 914 F.3d 1004, 1007 (5th
Cir. 2019) (observing that Note 14(B) “provide[s] for a
presumption of facilitation when a firearm is possessed in close
proximity to a drug trafficking offense”).
This approach incorporates the boundaries suggested by
the “potential to facilitate” language while also heeding the
“close proximity” requirement that distinguishes Note 14(B)
from its companion subsection (A). Under our understanding
of subsection (B), a court may presume that a firearm is used
or possessed in connection with a drug-trafficking offense if
19
the firearm is found in close proximity to drugs or related
items. But because the presumption is rebuttable, a defendant
may present evidence that the firearm had no relationship to
drug-related activities (i.e., that the presence of the firearm was
mere accident or coincidence) and thus did not have the
potential to facilitate a drug-trafficking offense. 3 See Loney,
219 F.3d at 287.
In deciding whether a defendant has successfully
rebutted the presumptive relationship between firearms and
drug-trafficking activities based on proximity alone, a
sentencing court may look to any factors it deems relevant. By
3
Our concurring colleague suggests that this approach
“mistakenly relieves the Government of its burden of proof” in
criminal cases by requiring the defendant “to disprove a
connection.” Concurring Op. 10. But the initial burden of
proving that the presumption applies still rests with the
Government. It is only after the Government has carried its
burden—by showing that the guns and drugs were physically
near each other—that the defendant must disprove a
connection. This approach works much like an affirmative
defense. See, e.g., 18 U.S.C. § 2252(c) (providing an
affirmative defense to a child pornography possession charge
where the defendant possesses less than three images and
promptly destroyed the images or reported the matter to law
enforcement). In that circumstance, the Government has the
initial burden of proving all elements of a crime—but if it
succeeds, the burden shifts to the defendant to prove that he or
she is entitled to the defense. As affirmative defenses in
criminal cases do not typically offend the Constitution, see
Patterson v. New York, 432 U.S. 197, 210–11 (1977), we
discern no impermissible burden shifting here.
20
analogy, we have considered a similar presumption under
U.S.S.G. § 2D1.1(b)(1) 4 and identified factors that will
ordinarily matter: (1) the type of gun involved, with handguns
more likely to be connected with drug trafficking than hunting
rifles; (2) whether the gun was loaded; (3) whether the gun was
stored (or, we add, possessed) near the drugs or drug-related
items; and (4) whether the gun was accessible. 5 See United
4
Sentencing Guidelines § 2D1.1(b)(1) is essentially the mirror
image of § 2K2.1(b)(6)(B). It provides that, in a conviction for
unlawful manufacturing, importing, exporting, or trafficking
of drugs, “[i]f a dangerous weapon (including a firearm) was
possessed, increase [the offense level] by 2 levels.” U.S.
Sentencing Guidelines Manual § 2D1.1(b)(1) (U.S. Sentencing
Comm’n 2018). Thus the underlying offense for § 2D1.1(b)(1)
is drug trafficking (with the enhancement applying to conduct
involving a firearm), while the underlying offense for
§ 2K2.1(b)(6)(B) is unlawful possession (etc.) of a firearm
(with the enhancement applying to conduct involving drug
trafficking, among other offenses). But both enhancements
potentially require a sentencing court to consider the
connection between a defendant’s drug-trafficking activities
and firearms.
5
Our holding today is limited to the observation that these
factors will often, though perhaps not always, be relevant to
deciding whether § 2K2.1(b)(6)(B) applies. But not all
authority concerning § 2D1.1(b)(1) will be relevant to
§ 2K2.1(b)(6)(B), as the Commentary for § 2D1.1(b)(1)
creates a special standard not present in Note 14(B). See U.S.
Sentencing Guidelines Manual § 2D1.1 cmt. n.11 (U.S.
Sentencing Comm’n 2018) (providing that § 2D1.1(b)(1)
should apply “if the weapon was present, unless it is clearly
improbable that the weapon was connected with the offense”).
21
States v. Napolitan, 762 F.3d 297, 308 (3d Cir. 2014). We
think these factors provide a helpful starting point for Note
14(B) as well. But again, the primary inquiry under
§ 2K2.1(b)(6)(B) must be whether there is a relationship
between the firearm and the defendant’s drug-trafficking
offense. See Loney, 219 F.3d at 287. That relationship may be
presumed if the firearm is found in close proximity to drugs or
related items, but the defendant must have the opportunity to
disprove it based on the facts of each case.
We acknowledge that other circuits have interpreted
Note 14(B) in dicta to mean that the enhancement
“necessarily” or “automatically” applies when drugs and guns
are physically near each other. See, e.g., United States v.
Jeffries, 587 F.3d 690, 692–93 (5th Cir. 2009); see also United
States v. Jenkins, 566 F.3d 160, 163 (4th Cir. 2009) (noting that
a nearby firearm “necessarily” has the potential to facilitate a
drug-trafficking offense under Note 14(B)); United States v.
Blankenship, 552 F.3d 703, 705 (8th Cir. 2009) (“Note 14(B)
mandates application of the adjustment if guns and drugs are
in the same location.”). And at least two other circuits have
directly held that for Note 14(B) “close proximity is all that is
required.” United States v. Paneto, 661 F.3d 709, 718 (1st Cir.
2011); accord United States v. Carillo-Ayala, 713 F.3d 82, 92
(11th Cir. 2013) (“A firearm found in close proximity to drugs
or drug-related items simply ‘has’—without any requirement
for additional evidence—the potential to facilitate the drug
offense.” (emphasis in original)).
Though this rule is consistent with the District Court’s
approach here, we are unpersuaded by this position. First,
Loney is controlling precedent in our Circuit, and it squarely
held that the “in connection with” requirement of
22
§ 2K2.1(b)(6)(B) necessarily excludes those cases in which the
firearm’s presence was accidental or coincidental. See 219
F.3d at 287. Under Loney we cannot, unlike our sister circuits,
apply Note 14(B) without regard to that constraining
consideration. A contrary conclusion would impermissibly
“expand[] the substantive law set forth in the [G]uidelines
themselves.” Nasir, 982 F.3d at 159.
Second, as we already discussed, the text of Note 14
itself does not require such a rigid construction. It specifically
directs sentencing courts to the reasoning behind the “close
proximity” requirement: the firearm’s potential to facilitate
drug-trafficking activity. Smith made clear that a firearm does
not have the potential to facilitate drug-trafficking activity if its
presence was mere accident or coincidence. See 508 U.S. at
238. And we have already interpreted “potential to facilitate”
as requiring some kind of “relationship” between the firearm
and the drug activity, which is also consistent with Note 14(E).
See Loney, 219 F.3d at 287.
Third, the courts that have discussed this issue in dicta
may have interpreted Note 14(B) rigidly because they
concluded that was the only way to distinguish it from Note
14(A). See, e.g., Jenkins, 566 F.3d at 163 (emphasizing the
difference between Note 14(A) and (B)); Blankenship, 552
F.3d at 705 (same). Put differently, these courts may have
believed that the only way to distinguish the two provisions
was to conclude that Note 14(B) must automatically require the
enhancement’s application when guns and drugs are in close
proximity to each other. But they did not have the benefit of
Note 14(E), as it was added several years after they issued their
23
decisions. 6 Plus our approach distinguishes Note 14(A) from
(B)—as only the latter creates a presumption based on
proximity—while still being true to the text of Note 14 itself
and our holdings in Loney and West.
* * * * *
Our holding here avoids the problem of a drug trafficker
who coincidentally has a “hunting rifle buried in his closet.”
Loney, 219 F.3d at 289. Under Note 14(B), a sentencing court
may presume that a firearm is used or possessed “in connection
with” a drug-trafficking offense under § 2K2.1(b)(6)(B) if the
firearm is found in close proximity to drugs or drug
paraphernalia. But the defendant must have a chance to prove
that the firearm’s presence was mere accident or coincidence.
Because Perez did not have that chance, 7 we vacate the District
Court’s judgment and sentence and remand for the Court to
reconsider whether there was a relationship between Perez’s
firearms and his drug-trafficking activities.
6
Jenkins and Blankenship were decided in 2009; Note 14(E)
was added in 2014. See Harper, 766 F.3d at 747 (discussing
Note 14(E)’s addition).
7
The Government has not argued that any error on this point
was harmless, perhaps because the application of an incorrect
Guidelines range “rarely” meets this standard. See United
States v. Langford, 516 F.3d 205, 217 (3d Cir. 2008). Thus the
error here warrants remand.
24
BIBAS, Circuit Judge, concurring in the judgment.
Judges are not editors. When an agency interprets its own
regulation, we must take its interpretation as we find it. Either
it deserves Kisor deference as written or it does not.
Here, Note 14(B) is invalid as written because it substitutes
proximity for a connection to a drug crime. The majority ad-
mits that this reading of the Guideline would be unreasonable.
So it misreads the Note to create a rebuttable presumption and
then defers to its own creation. But that innovation generates
its own problem. In criminal cases, the Government must prove
every element of a crime and every fact that enhances a sen-
tence. Yet the majority’s rebuttable presumption flips that bur-
den, forcing Perez to disprove a connection between the gun
and the drugs. If the evidence is scant or equal, the presumption
defaults to raising his sentence. That is unjust.
Because the majority’s reading does not square with the
wording of the Note and reverses the burden of proof, I concur
only in the judgment.
I. NOTE 14(B) UNREASONABLY INTERPRETS
THE REQUIRED “CONNECTION” BETWEEN
THE GUN AND THE FELONY
The Note does not fit the Guideline. The text of the Guide-
line requires a gun to relate to the other felony. But in drug
cases, the Note deems that relationship present whenever the
gun is found near drugs. Yet nearness alone does not make a
gun relate to a crime. Because the Note strays too far from the
Guideline that it claims to interpret, we should not defer to it.
A. The Guideline enhances a sentence only when the
defendant’s gun possession relates to another felony
causally or logically
The Guideline authorizes a sentence enhancement only
when the defendant possesses a gun or ammunition “in con-
nection with another felony.” U.S.S.G. § 2K2.1(b)(6)(B).
“Connection” means a “causal or logical relation or sequence.”
Connection (def. 1a), Webster’s Ninth New Collegiate Diction-
ary (1988); accord Connexion (def. 3), Oxford English Dic-
tionary (2d ed. 1989) (“a bond of interdependence, causality,
logical sequence, coherence, or the like”). If a drug dealer uses
a gun to fight off a rival dealer (or packs heat because it might
help him fight off rivals), the gun furthers his drug dealing.
But closeness in time or space is not enough. Two strangers
may sit next to each other on a plane for hours, yet no one
would say they are travelling “in connection with” each other.
A knife block may sit on a kitchen counter, next to a stove
where a drug dealer cooks crack cocaine, yet have no “connec-
tion with” the crack.
We held as much two decades ago, before the Sentencing
Commission wrote Note 14(B). When we first interpreted the
Guideline, we defined “in connection with” as “express[ing]
some relationship or association, … such as a causal or logical”
one. Loney, 219 F.3d at 284. Under that reading, the Guideline
would reach a drug dealer caught carrying a handgun while
selling drugs. Id. at 288. One could reasonably infer that he
carried it to protect himself from drug-related violence. But the
Guideline might well not apply if the drug dealer kept a hunting
2
rifle in his closet. Id. at 289. The rifle might not be bound up
with the drug deal.
That reading relied on the Supreme Court’s similar reading
of a gun-crime law in Smith. Id. at 287 (quoting Smith v. United
States, 508 U.S. 223, 238 (1993)). Under 18 U.S.C. § 924(c), a
defendant earns a mandatory extra sentence if he uses or carries
a gun “during and in relation to” a violent or drug-trafficking
crime. For gun possession to be “in relation to” drug traffick-
ing, the gun “must have some purpose or effect” on that crime.
Smith, 508 U.S. at 238. Put another way, the gun must facili-
tate, or at least potentially facilitate, that crime. Id. Accidental
or coincidental gun possession is not enough. Id.
In short, a gun is not possessed “in connection with” a crime
unless it is somehow “involved in” or “related to” it. Loney, 219
F.3d at 284 (quoting Oxford English Dictionary). The text of
the Guideline asks whether the gun related to the crime caus-
ally or logically.
B. In drug-trafficking cases, the Note calls for an
enhancement whenever a gun is found near drugs
Though the Guideline requires us to ask about causation
and purpose, Note 14(B) adopts per se rules for burglary and
drug cases. In drug-trafficking cases, the Note applies the en-
hancement whenever “a firearm is found in close proximity to
drugs.” It applies even if the gun had no effect on a crime, and
even if the defendant had the gun for reasons unrelated to the
crime. The gun need only be nearby, even accidentally or
coincidentally.
3
C. Because the Note does not fit within
the Guideline’s “zone of ambiguity,”
it is not entitled to Kisor deference
Kisor reminded courts not to defer reflexively to an
agency’s reading of its own regulation. 139 S. Ct. at 2415. Be-
fore Kisor, we gave an agency’s reading “controlling weight
unless it is plainly erroneous or inconsistent with the regula-
tion.” Id. at 2411 (quoting Bowles v. Seminole Rock & Sand
Co., 325 U.S. 410, 414 (1945)). Kisor deference, we have held,
applies to the Sentencing Commission’s commentary on the
Guidelines. Nasir, 982 F.3d at 158–59.
So now, we must first confirm that the Guideline is ambig-
uous. Id. at 2415. To do that, we have to “exhaust all the ‘tra-
ditional tools’ of construction.” Id. (quoting Chevron, U.S.A.
Inc. v. NRDC, 467 U.S. 837, 843 n.9 (1984)). If those tools
yield only one answer, the Guideline’s text controls, not the
Commission’s later reading. If not, the text is ambiguous.
Second, even if there is an ambiguity, the Commission’s
reading must be reasonable. Id. at 2415–16. The Commission
cannot choose a meaning that has been ruled out. In other
words, its reading must fall within the remaining “zone of am-
biguity.” Id. Only then can we defer to it. (Kisor also lists other
requirements that are not implicated here. Id. at 2416–18.)
Yet the majority treats the Guideline as ambiguous without
first examining the text. True, the phrase “in connection with”
is “broad” and “expansive.” Maj. Op. 10 (quoting Loney, 219
F.3d at 284) (brackets omitted). But “a term … is not ambigu-
ous merely because it is broad in scope.” In re Phila.
4
Newspapers, LLC, 599 F.3d 298, 310 (3d Cir. 2010). Here, the
text has a single core meaning: a causal or logical relationship,
not a spatial one. Loney, 219 F.3d at 284; see also Da Silva v.
Att’y Gen., 948 F.3d 629, 635–36 & n.34 (3d Cir. 2020) (hold-
ing that, in immigration law, “connected to” unambiguously
means “having a causal or logical relationship”) (citing Loney).
So the text is not ambiguous.
Even if there were any ambiguity, it would be about the
type of relationship required, either causal or logical: whether
the gun must have enabled the defendant to commit the crime
or just potentially helped him do so.
Under the plain text, the defendant’s gun possession must
be involved with and related to the other felony. Yet the Note
extends well beyond a causal or logical link to a crime. It au-
thorizes the enhancement whenever the gun is found near
drugs. But under the Guideline’s text, just being nearby is not
enough. This spatial relationship falls outside any textual am-
biguity because it does not ensure a causal or logical relation-
ship between the gun and the crime. So the Note improperly
“expands the [Guideline’s] substantive law.” Nasir, 982 F.3d
at 159. It deserves no deference.
The majority disagrees, holding that the Note controls. Yet
it agrees that “the Note would be unreasonable if it applied” as
I have described it. Maj. Op. 11. And it agrees that Loney cor-
rectly defined the “connection” standard. See id. at 19–20. The
majority defers to the Note only because it misreads the Note’s
clear rule.
5
II. THE MAJORITY MISREADS THE NOTE
The Note provides:
14. Application of Subsections (b)(6)(B) and (c)(1). –
…
(B) Application When Other Offense is Burglary or
Drug Offense. –
Subsections (b)(6)(B) and (c)(1) apply
…
(ii) 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 subsections (b)(6)(B) and, if
the firearm was cited in the offense of conviction, (c)(1)
is warranted because the presence of the firearm has the
potential of facilitating another felony offense or another
offense, respectively.
U.S.S.G. § 2K2.1 cmt. n.14(B) (emphasis and line breaks
added).
The italicized clause sets forth a clear rule. Yet the majority
sets aside the plain meaning of the Note, adopted by the Dis-
trict Court, the parties, and every circuit to consider the issue.
Instead, it turns the Note’s rationale into part of the rule. And
with no textual basis, it transforms the Note’s rule into a rebut-
table presumption.
6
A. The majority misreads the Note’s last sentence as
limiting the close-proximity rule
Under the Note’s rule (italicized above), the enhancement
“appl[ies]” when “a firearm is found in close proximity to
drugs”—period. The next sentence explains not what the
Note’s rule requires, but why: this per se rule “is warranted
because the presence of the firearm has the potential of facili-
tating another” crime. Id. (emphasis added).
So the Note’s last sentence is a rationale: the Commission
crafted the per se rule “because” the gun could facilitate an-
other crime. Id. The Note treats that as true whenever a gun is
near drugs. Under the Note, a sentencing judge need not also
find that the gun’s presence was deliberate or that the gun in
fact could have facilitated drug trafficking. Whenever guns are
found near drugs, it says, the enhancement applies “automati-
cally.” Jeffries, 587 F.3d at 692–93.
Yet the majority reads this rationale into the rule. The ma-
jority says that the last sentence “provides that the Note should
apply in cases where ‘the presence of the firearm has the po-
tential of facilitating’ a drug-trafficking offense.” Maj. Op. 17
(emphasis added). That phrase, it claims, “necessarily excludes
cases in which the presence of firearms was merely acci-
dental.” Id. at 12. But that rationale is not part of the rule. The
structure of the Note makes that clear.
Indeed, the District Court did not read the explanation to
limit the rule. At oral argument, the Government agreed: the
Note sets forth “a very clear rule.” Oral Arg. Tr. 30. The de-
fendant’s purpose does not matter. Id. at 31. If a drug dealer’s
7
hunting rifle is near the drugs, even coincidentally, “this en-
hancement applies.” Id. And as the majority concedes, our sis-
ter circuits uniformly read the Note as applying the enhance-
ment automatically whenever drugs are near guns. Maj. Op.
22. Though my colleagues try to distinguish these cases, their
efforts fail.
True, years later, the Commission did add a separate sub-
section to Note 14. That subsection, 14(E), tells courts to con-
sider the relationship between the two crimes before applying
the enhancement. But this general instruction does not repeal
or amend 14(B)’s drug-specific per se rule. Because a general
rule does not displace a more specific one, 14(B), not 14(E),
governs cases involving drugs and guns. See, e.g., Green v.
Bock Laundry Mach. Co., 490 U.S. 504, 524 (1989). And
14(B) states that the Guideline applies whenever guns are
found near drugs—no relationship required.
The majority also says that only this circuit is bound by
Loney’s holding that the Guideline cannot cover accidental or
coincidental firearms. Maj. Op. 22. But Loney predates 14(B).
And “prior judicial constructions of a particular guideline can-
not prevent the Commission from adopting a conflicting inter-
pretation.” Stinson, 508 U.S. at 46, overruled in irrelevant part
by Kisor, 139 S. Ct. at 2411 n.3, 2414–18. So Loney does not
tell us how to read 14(B). I agree that Loney’s reading is rea-
sonable. But rather than relying on that case to misread the
Note, I would just hold that 14(B)’s conflicting reading is un-
reasonable and unworthy of deference.
8
B. The majority turns the Note’s conclusive
presumption into a rebuttable one
Compounding its error, the majority treats the Note as cre-
ating a rebuttable presumption. On its reading, if a gun is found
near drugs, courts should presume that the defendant possessed
the gun in connection with the drug crime. The defendant can
then rebut that presumption by disproving a relationship be-
tween the gun and the drugs. Maj. Op. 17–19.
But the text does not say that. And no other circuit has
adopted this novel approach. The majority cites three circuits
that call this rule a presumption, but they do not call it rebutta-
ble. Rather, because the Note applies “automatically” when
guns are near drugs, these courts treat the presumption as con-
clusive. Eaden, 914 F.3d at 1008–09 (citing Jeffries, 587 F.3d
at 692). Plus, at oral argument, the Government rejected the
majority’s reading: “[I]t is not a rebuttable presumption under
the guideline.” Oral Arg. Tr. 27. So did Perez, who read the
note as a “very clear strict liability” rule. Id. at 38. The parties
got that right.
III. THE MAJORITY SHIFTS THE BURDEN OF PROOF ONTO
THE DEFENDANT
The majority’s rewrite makes Perez bear a burden of dis-
proof. The burden of proving every element of a crime rests on
the Government. Patterson v. New York, 432 U.S. 197, 215
(1977). The same is true for Sentencing Guidelines. United
States v. Douglas, 885 F.3d 124, 136 (3d Cir. 2018). This
Guideline’s plain text requires the Government to prove that
9
the defendant used or possessed a gun or ammunition “in con-
nection with” another felony. § 2K2.1(b)(6)(B).
As the majority agrees, a gun can be close to drugs without
being connected to drug trafficking. See Maj. Op. 16. Yet in
these cases, it lets the Government prove mere proximity.
Then, the burden shifts to the defendant to disprove a connec-
tion. That approach mistakenly relieves the Government of its
burden of proof.
This legal presumption differs from a mere factual infer-
ence. Factually, a district court may choose to infer that a gun
is connected to nearby drugs. Often, that will be obvious, as
when a drug dealer carries it in his holster or keeps an arsenal
right next to his stash. See Loney, 219 F.3d at 288 (affirming
similar factual inferences before the Note was added); United
States v. Spurgeon, 117 F.3d 641, 643–44 (2d Cir. 1997) (per
curiam) (same). But a factual inference is permissive. The
court can find that a gun under the mattress is connected to
drugs across the room—but it need not. Plus, a factual infer-
ence leaves the burden of proof where it belongs: on the Gov-
ernment.
Rather than create a legal presumption, we should remand
to let the District Court draw whatever inference it finds war-
ranted on the facts. But if the evidence is equally balanced, the
tie should go to the defendant. Because depriving someone of
his liberty is a severe sanction, our system of laws demands
that the Government bear the burden of proof. By rewriting the
text of Note 14(B), the majority strips away this bulwark.
10
* * * * *
Perez had guns near drugs but insists that they were uncon-
nected. He should be able to make this argument on remand.
Note 14(B) should neither determine the outcome nor create a
legal presumption that he must rebut.
The Note (and the majority’s approach) may be sensible
policy, reflecting the inherent danger of having guns near
drugs. But that policy decision belongs in the Guidelines, after
notice and comment, not in the Note. Because the Note de-
serves no deference, I respectfully concur only in the judgment.
11