UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
_____________________
No. 92-9017
_____________________
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
VERSUS
GARY FRANK CONDREN,
Defendant-Appellant.
____________________________________________________
Appeal from the United States District Court
for the Northern District of Texas
___________________________________________________
March 31, 1994
Before WISDOM, BARKSDALE and EMILIO M. GARZA, Circuit Judges.
BARKSDALE, Circuit Judge:
Gary Frank Condren's sentence for being a felon in possession
of a firearm was enhanced under Sentencing Guidelines § 2K2.1(b)(5)
because illegal drugs, in addition to the firearm, were found in
his home. The only issue on appeal is the construction to be given
the "specific offense characteristic" (sentence enhancement) found
in that section: "used or possessed any firearm or ammunition in
connection with another felony offense". We AFFIRM.
I.
On January 13, 1992, Dallas undercover police officers traded
two televisions and a VCR to Condren, in exchange for five pieces
("rocks") of crack cocaine. Based on this, a search warrant for
his home was obtained; it was executed the next day. Drug
paraphernalia, including crack pipes, mirrors, and a scale were
found. And, on top of a desk in the bedroom, two rocks of crack,
which weighed .1 gram, as well as 33.3 grams of marijuana seed,
were found. Moreover, a loaded .22-caliber revolver was found in
a drawer in the desk.1
Condren was indicted on, and pleaded guilty to, one count of
violating 18 U.S.C. § 922(g)(1), possession of a firearm by a
felon. The presentence investigation report (PSR) set his base
offense level at 24;2 and added four points pursuant to the
Guidelines section in issue, § 2K2.1(b)(5), which requires that
adjustment if the firearm was possessed "in connection with another
felony offense".3
Condren filed objections to the PSR, including to the sentence
enhancement. The enhancement objection, however, was to the wrong
subsection of § 2K2.1.4 In any event, at the sentencing hearing in
1
Condren asserts that the drawer was locked and that the
firearm was being held only as collateral for a loan made by his
then wife to their neighbors.
2
This is the required level for a § 922(g) violation, where the
defendant also had at least two prior felony convictions for crimes
of violence or controlled substance offenses. See U.S.S.G. §
2K1.2(a)(2) (setting offense levels for firearms possession
offenses).
3
Because Condren had a criminal history category of VI, see
U.S.S.G. Ch. 5, pt. A, the guideline imprisonment range was 140 to
175 months. But, because the statutory maximum term of
imprisonment for § 922(g) violations is 10 years, see 18 U.S.C. §
924(a)(2), the imprisonment term was adjusted downward to 120
months. U.S.S.G. § 5G1.1(a) (if guideline range exceeds statutory
maximum, the latter shall be guideline sentence). The PSR
recommended the 120 months.
4
Condren's written objection to his offense level was to PSR ¶
11, which set his base offense level. The enhancement, however,
2
mid-November 1992, Condren's counsel objected (unsuccessfully) to
the enhancement in relation to the subsection in issue.5
was covered (recommended) in PSR ¶ 12. And, in the objection, he
referred to the cross-reference provision of § 2K2.1(c)(2). The
objection stated that there should be "some nexus with the offense
of conviction", and that Condren objected to the enhancement
because there was no connection between "possession of a gun made
in November, 1991 [when the firearm allegedly was taken as
collateral], and on conduct alleged to have occurred in January,
1992". This may be similar to the contention made on appeal,
because, apparently, the reference to the latter conduct concerns
the possession and/or distribution of cocaine.
As noted, the objection referred to PSR ¶ 11, and to the
cross-reference provision of § 2K2.1(c); the written objections do
not mention either PSR ¶ 12, which covered the § 2K2.1(b)(5)
enhancement that is in issue, or that section. And, although §
2K2.1(c) relates to use or possession of a firearm in connection
with another offense, as does § 2K2.1(b)(5), it was not used for
the sentence, as the Probation Officer pointed out in his responses
to Condren's objections. Rather, as also pointed out by the PSR
addendum, the enhancement was under § 2K2.1(b)(5).
5
At sentencing, Condren was represented by a different federal
public defender than the one who had prepared the written
objections to the PSR. Condren's counsel for the first time
described his objection to the enhancement in terms of §
2K2.1(b)(5). The following colloquy occurred:
[DEFENSE COUNSEL]: ... I believe ... that in
[PSR ¶] 12 four additional offense levels were
added, because under 2K2.1(b)5 the defendant was
alleged to have possessed this weapon in connection
with another offense.
Well, that's simply not the facts here. The
only information that grants any credence to that
or even any mention of it is from the defendant's
ex-wife.... This gun has never been alleged by any
law enforcement officer or the United States
attorney to have been used in another crime. And
for that, Your Honor, we would object.
THE COURT: It appeared to me from the
presentence report that at the same time that the
defendant was possessing this gun that he was
possessing controlled substances. It would appear
to the Court that that [firearm] possession was
then during the commission of another felony. So
3
The district court, however, sustained Condren's objection to
not being granted a § 3E1.1 acceptance of responsibility
adjustment. As a result, and pursuant to a recent amendment that
allowed a maximum of three, rather than two, points for the
adjustment, the court reduced the offense level by three points to
that objection is overruled.
(Emphasis added.)
Based on this exchange, however, the objection to the §
2K2.1(b)(5) enhancement was arguably not raised adequately in the
district court. It was based only on Condren's assertion that he
had not used the firearm in connection with another offense,
whereas the district court's conclusion that the § 2K2.1(b)(5)
enhancement applied was based on its finding, under the
subsection's alternative ground, that Condren possessed it.
Condren's counsel never addressed the firearm possession basis for
the enhancement, which is mandated if the firearm is either used or
possessed in connection with another felony. Nor did he object to
the court's possession finding. Had he done so, the district court
would have had the requisite opportunity to further address this
point, and, therefore, possibly save this issue from being the
possible basis for a remand for resentencing.
In short, it is arguable that the issue was not properly
preserved in district court; if it was not, it would be reviewed
here only for plain error. See, e.g., United States v. Olano, ___
U.S. ___, 113 S. Ct. 1770 (1993); United States v. Rodriguez, No.
93-7291, 1994 WL 49536 (5th Cir. Feb. 18, 1994); Fed. R. Crim. P.
52(b). In this instance, however, we fully review the issue,
because, as discussed infra at note 8, it is here (took its present
form) on instructions from our court, as contained in the order
denying Condren's counsel's Anders motion to withdraw.
4
25.6 The ensuing guideline range was 110 to 137 months.7 Condren
was sentenced to 120 months imprisonment, to be followed by a
three-year term of supervised release.
II.
As noted, only the sentence enhancement is in issue. It goes
without saying that, in reviewing "sentences, we examine factual
findings subject to the `clearly erroneous' standard ... and ...
accord great deference to the trial judge's application of the
sentencing guidelines." United States v. Humphrey, 7 F.3d 1186,
1189 (5th Cir. 1993) (citing United States v. Martin, 893 F.2d 73,
74 (5th Cir. 1990) and United States v. Mejia-Orosco, 867 F.2d 216,
218 (5th Cir.), clarified, 868 F.2d 807, cert. denied, 492 U.S. 924
(1989)). The sentence will be upheld unless, inter alia, "`it was
6
Condren's PSR, prepared in September 1992 using the 1991
Sentencing Guidelines, recommended against an acceptance of
responsibility adjustment. Condren's objection asserted that he
should receive a full three-point adjustment, pursuant to the
amendments to the Guidelines effective November 1, 1992.
Because Condren was sentenced on November 19, 1992, the 1992
amendments were applicable. They provide, as did the 1991
Guidelines, for a two-point adjustment if the defendant "clearly
demonstrates acceptance of responsibility". U.S.S.G. § 3E1.1(a).
Under the 1992 amendments, however, defendants whose offense level
is 16 or greater and who qualify under § 3E1.1(a) may also receive
an additional one-point adjustment, if they have "assisted
authorities in the investigation or prosecution of [their] own
misconduct". U.S.S.G. § 3E1.1(b). This assistance may be shown,
inter alia, by the defendant's timely entering a plea of guilty.
U.S.S.G. § 3E1.1(b); see United States v. Tello, 9 F.3d 1119, 1123-
24 (5th Cir. 1993) (construing § 3E1.1(b)). In awarding Condren
the full three points, the district court stated that the
additional (third) point was included because of "the timeliness of
[Condren's guilty] plea."
7
But, again Condren could not be given a term of imprisonment
greater than the statutory maximum of 10 years. See U.S.S.G. §
5G1.1(c), 18 U.S.C. §§ 922(g), 924(a)(2).
5
imposed ... as a result of an incorrect application of the ...
guidelines....'" United States v. Haymer, 995 F.2d 550, 552 (5th
Cir. 1993) (quoting United States v. Howard, 991 F.2d 195, 199 (5th
Cir.), cert. denied, __ U.S. __, 114 S. Ct. 395 (1993)); accord,
Humphrey, 7 F.3d at 1189 (quoting Mejia-Orosco, 867 F.2d at 218,
and citing 28 U.S.C. § 3742(e)(1)).
Consistent with this court's order detailing the issues to be
presented, Condren challenges the § 2K2.1(b)(5) enhancement.8 It
8
Pursuant to Anders v. California, 386 U.S. 738 (1967),
Condren's counsel (federal public defender) filed a motion to
withdraw and supporting brief, maintaining that this case presented
no non-frivolous issues. Among other things, the brief asserted
that § 2K2.1(b)(5) had been properly applied, but it did not
address the issue raised now: the construction to be given
possession "in connection with another felony offense". Upon
receiving, from our court, the requisite notice of the withdrawal
submission, Anders, 386 U.S. at 741, Condren responded that, inter
alia, the district court had erred in enhancing his sentence for
possession of a firearm in connection with another felony for which
he had not been convicted. (As discussed in note 11, infra, a
conviction for the other felony is not required.)
Accordingly, although both Condren and his counsel addressed
the § 2K2.1(b)(5) enhancement, neither raised the issue now before
us. Moreover, as discussed, it was arguably not presented in the
district court. See supra notes 4-5.
Of course, the duty to raise issues for appeal is usually
counsel's, rather than the court's. Indeed, under Anders, counsel
has an affirmative duty to advise the court of any non-frivolous
issues that, even arguably, could support an appeal. Anders, 386
U.S. at 741, 744; Lofton v. Whitley, 905 F.2d 885, 887 (5th Cir.
1990), citing and quoting Anders, 386 U.S. at 744, and Penson v.
Ohio, 488 U.S. 75 (1988). Certainly, an issue of first impression,
such as the one we consider now, should be brought to the court's
attention.
Nevertheless, if counsel does not find a non-frivolous issue
after a "conscientious examination of the case", Lofton, 905 F.2d
at 887, the duty to examine the case for issues shifts to the
court. In such cases,
the court -- not counsel -- then proceeds, after a
6
is mandated if, among other things, the "defendant used or
possessed [the] firearm ... in connection with another felony
full examination of all the proceedings, to decide
whether the case is wholly frivolous.... [I]f it
finds any of the legal points arguable on their
merits (and therefore not frivolous), it must,
prior to decision, afford [appellant] the
assistance of counsel to argue the appeal.
Anders, 386 U.S. at 744; e.g., Moss v. Collins, 963 F.2d 44, 46-47
(5th Cir. 1992) (citing cases), cert. denied, ___ U.S. ___, 113 S.
Ct. 983 (1993).
Upon such review, our court found the non-frivolous issue we
now address. Indeed, research revealed no previous cases from this
circuit construing the relevant language of § 2K2.1(b)(5). United
States v. Hernandez, No. 91-8249 (5th Cir. Feb. 26, 1992)
(unpublished), construed somewhat similar language in §
2K2.1(c)(1); but, as noted, that section provides a cross-reference
provision for, inter alia, firearm use or possession "in connection
with the commission or attempted commission of another offense"
(emphasis added); Condren was not sentenced under it. As shown,
the language of § 2K2.1(c)(1) differs from that of § 2K2.1(b)(5).
Therefore, our court denied the motion to withdraw, and
ordered counsel to file a brief addressing § 2K2.1(b)(5), as
detailed below, "as well as any other non-frivolous issues
[counsel] chooses to raise". The court stated:
A review of the record reveals that the issue of
whether the district court correctly found that
Condren's offense level should be increased by four
points under U.S.S.G. § 2K2.1(b)(5) for use or
possession of a firearm in connection with another
felony offense is not frivolous under Anders ....
Whether the evidence is sufficient to show that
Condren used or possessed the firearm in connection
with the offense of distribution of cocaine is not
a frivolous issue. Whether the presence of the
drugs and the firearm in the same room is
sufficient to show use or possession of a firearm
in connection with the offense of felony possession
of controlled substances under § 2K2.1(b)(5), as
opposed to § 2K2.1(c)(1), is not a frivolous issue.
See United States v. Hernandez ....
After the supplemental brief was filed, the case was placed on the
oral argument calendar, because of the issue of first impression.
7
offense".9 Condren contends that the government failed to show
that his firearm possession was "in connection with," i.e., in any
way related to, his commission of "another felony".10 Therefore,
we must first identify the other felony employed in the district
court's enhancement calculus.
A.
The PSR states that Condren possessed the firearm in
connection with distribution of cocaine:
U.S.S.G. § 2K2.1(b)(5) requires that if the
defendant possessed a firearm in connection with
another felony offense, four-levels should be
added. The defendant was in possession of a
firearm while involved in the distribution of
crack/cocaine. Therefore, four-levels are added.
In response to Condren's written (apparent) objection to this, the
Probation Officer stated only that "section [2K2.1(b)(5)] ha[d]
been appropriately applied."
As stated, at sentencing, except for its finding acceptance of
responsibility, the district court adopted the findings in the PSR.
9
The section states:
If the defendant used or possessed any firearm or
ammunition in connection with another felony
offense; or possessed or transferred any firearm or
ammunition with knowledge, intent, or reason to
believe that it would be used or possessed in
connection with another felony offense, increase
[the base offense level] by 4 levels. If the
resulting offense level is less than level 18,
increase to level 18.
U.S.S.G. § 2K2.1(b)(5) (emphasis added).
10
As noted, however, in objecting at sentencing to the
enhancement, Condren's counsel referenced "use", not "possession":
"This gun has never been alleged by any law enforcement officer or
United States attorney to have been used in another crime."
8
Thus, it adopted the finding that Condren possessed the firearm
"while involved in" drug distribution.11 See United States v.
Sherbak, 950 F.2d 1095, 1099 (5th Cir. 1992) (court need not
explicitly adopt individual findings, but may adopt PSR as a
whole).
But also, at sentencing, see note 5, supra, the district court
found that Condren possessed the firearm "at the same time that ...
he was possessing controlled substances. It would appear to the
Court that that [firearm] possession was then during the commission
of another felony". Accordingly, it found that Condren possessed
the firearm while in possession of small quantities of crack and
marijuana seed,12 and determined that this possession was a felony,
because he had been convicted previously of a narcotics offense.13
21 U.S.C. § 844(a); 28 C.F.R. §§ 76.1, 1316.91(c). As Condren
conceded at oral argument in our court, the district court did not
err in ruling that, for enhancement purposes, Condren's drug
possession was a felony.14
11
Of course, the defendant need not be charged with or convicted
of the other felony used as the basis for the enhancement.
U.S.S.G. § 2K2.1, comment. (n.7).
12
Contrary to Condren's contention, the finding by the district
court that Condren possessed the firearm and drugs at the same time
is not a rejection of the PSR's finding that he possessed the
firearm while involved in drug distribution. See Sherbak, 950 F.2d
at 1099. The court's drug possession finding constitutes an
addition to, not a rejection of, the PSR drug distribution finding.
13
The PSR contained ample evidence of Condren's previous
narcotics convictions; and the district court noted that it was
aware of them.
14
But, although counsel conceded this point at oral argument, it
was raised as an issue in the supplemental brief, filed after we
9
Therefore, the district court found that Condren was engaged
in both drug felonies -- possession and distribution; the
enhancement is triggered if Condren possessed the firearm "in
connection with" either. Hence, we turn to the issue before us:
the relationship that must exist between firearm possession and the
other felony; specifically, the construction to be given "in
connection with".
B.
We first examine Condren's firearm and drug possession.15
Neither the district court nor the PSR defines the phrase "in
connection with", or otherwise discusses the construction to be
given it. But, the PSR, which the district court adopted, does use
the phrase in explaining the enhancement. In ruling against the
enhancement objection, the district court found that Condren
possessed the firearm "at the same time that" he was possessing
drugs; that the firearm possession "was then during the commission
of another felony." Similarly, the adopted PSR finding was that
Condren possessed the firearm "while involved in" the distribution
of cocaine. (The district court's findings of fact -- i.e., that
denied the Anders motion to withdraw. See supra note 8. The
supplemental brief contended that the district court had
"erroneously assumed" that Condren's possession of controlled
substances was a felony. This contention was meritless. The
district court's finding was, as noted, neither erroneous nor an
"assumption". Rather, it was based properly on evidence contained
in the PSR, to which the court expressly referred. See supra note
13.
15
Obviously, because we conclude that the firearm was possessed
in connection with the drug possession, we need not reach whether
the enhancement would also have been proper based on the drug
distribution.
10
Condren possessed the firearm while engaged in both drug possession
and distribution -- are, as stated, reviewed only for clear error.)
Therefore, in imposing the enhancement, the district court
implicitly concluded that the firearm possession was in connection
with the drug possession.
1.
"Connection" is defined as a "causal or logical relation or
sequence". Webster's Ninth New Collegiate Dictionary 278 (1990).
Condren contends that "in connection with" requires the government
to establish a "nexus" between his firearm and drug possessions,
and that it is lacking because the drug quantity -- .1 gram of
cocaine and 33.3 grams of marijuana seed -- is consistent with
personal use and too small to support a conclusion that he
possessed the firearm in order "to protect" the drugs. In
addition, giving Condren's contention a very liberal reading, he
seems to assert that the absence of the nexus is demonstrated
further by the facts that the firearm was in a drawer (allegedly
locked) and was kept only as collateral for a loan, rather than for
any purpose related to drug possession.16
16
Condren's wife filed for divorce approximately six weeks after
Condren was arrested. In an interview with the probation officer
who prepared the PSR, she stated that Condren periodically carried
the firearm with him when he left their house. Condren objected to
the use of this statement, stating that his ex-wife had "made all
that up and has used it as vendetta to try to get him as much time
in federal court as possible." The court required that the PSR "be
supplemented to indicate the defendant's extreme disagreement with
the statements of his ex-wife." It noted, however, that "[i]t
doesn't appear to the Court that any of the statements of the wife
resulted in raising the guideline levels for the defendant." As
discussed infra, the enhancement is amply supported by the record,
regardless of whether Condren carried the firearm outside the
11
The phrase "in connection with" for § 2K2.1(b)(5) purposes is
not defined in the Guidelines; and, as noted, our circuit has not
squarely addressed the issue. The nexus requirement that Condren
urges is borrowed from 18 U.S.C. § 924(c) (proscribing the use or
carrying of a firearm "during and in relation to any crime of
violence or drug trafficking crime" (emphasis added)). See, e.g.,
United States v. Pace, 10 F.3d 1106, 1117-18 (5th Cir. 1993)
(applying § 924(c)); United States v. Capote-Capote, 946 F.2d 1100,
1104 (5th Cir. 1991), cert. denied, __ U.S. __, 112 S. Ct. 596
(1992) (same). Although, as the Tenth Circuit has noted, the
standard of proof required under § 924(c) "provides some guidance"
in construing § 2K2.1(b)(5), United States v. Gomez-Arrellano, 5
F.3d 464, 466 (10th Cir. 1993), we decline to adopt it as the
controlling standard.
First, § 924(c) expressly proscribes the use or carrying of a
firearm during or in relation to a drug trafficking crime or crime
of violence; in contrast, § 2K2.1(b)(5) mandates an enhancement
even if the defendant only possesses a firearm in connection with
any other felony. U.S.S.G. § 2K2.1(b)(5); see United States v.
Sanders, 990 F.2d 582, 585 (10th Cir.) (rejecting defendant's
contention that § 924(c) standard should control § 2K2.1(b)(5)
determination), cert. denied, 114 S. Ct. 216 (1993).17
house. Mrs. Condren's statement, however, undermines his possible
contention that the firearm could not have been in connection with
his drug-related activities because it remained at all times in the
desk drawer.
17
The Tenth Circuit, one of the few to address "in connection
with" for § 2K2.1(b)(5) purposes, appears to have taken two
12
Second, § 924(c) is a criminal statute, requiring that the
government prove, beyond a reasonable doubt, the relationship of
the firearm to the drug trafficking crime or the crime of violence.
Pace, 10 F.3d at 1117. In contrast, because the subsection in
issue is under the Sentencing Guidelines, the relationship need be
proved only by a preponderance of the evidence. United States v.
Angulo, 927 F.2d 202, 205 (5th Cir. 1991); United States v. Kinder,
946 F.2d 362 (5th Cir. 1991), cert. denied, __ U.S. __, 112 S. Ct.
2290 (1992), cited in United States v. Mergerson, 4 F.3d 337, 343
(5th Cir. 1993), petition for cert. filed (U.S. Dec. 21, 1993) (No.
93-7246).
The government urges that we construe the enhancement phrase
according to its literal and straightforward meaning.18 See
somewhat disparate positions. As discussed, in Gomez-Arrellano, 5
F.3d at 466-67, its more recent (Sept. 1993) pronouncement on the
issue, it held that 18 U.S.C. § 924(c) was "more closely analogous"
to § 2K2.1(b)(5) than was U.S.S.G. § 2D1.1(b) (enhancement when
firearm "was possessed" during drug trafficking offense). But, as
also noted, in Sanders, 990 F.2d at 585 (Apr. 1993), it had
previously "reject[ed] at the outset defendant's suggestion that"
it should apply § 924(c)'s standard to § 2K2.1(b)(5). Instead, it
analogized § 2K2.1(b)(5) to § 2D1.1. See United States v.
Brewster, 1 F.3d 51, 53-55 (1st Cir. 1993) (following Sanders).
Given this apparent inconsistency, and the fact that Gomez-
Arrellano does not hold that § 924(c)'s standard is controlling, we
do not perceive our decision in this case to create a split between
the circuits. This is especially true in light of our February
1992 unpublished opinion in Hernandez, see supra note 8, which
construed § 2K2.1(c)(1)'s similar language. Hernandez, decided
over a year before either Sanders or Gomez-Arrellano, held that,
for § 2K2.1(c)(1) purposes, primarily because the firearm was
simply found in the same room as drugs, it was used "in connection
with" their possession. Hernandez, slip op. at 2.
18
In so doing, the government also refers to the connection
required between the firearm and the other offense as a "nexus".
Although Condren uses this term to denote the relationship that 18
U.S.C. § 924(c) requires, the government uses it in a more generic
13
Sanders, 990 F.2d at 585 ("We think it appropriate to apply the
phrase `in connection with' in a straightforward and literal
fashion."). It maintains that, if we do, the enhancement will
apply, because both the gun and the drugs were in Condren's
possession at the same time and in close proximity to one another.
"In the absence of any statutory definition, we construe th[e]
phrase [i.e., "in connection with",] according to its ordinary and
natural meaning." United States v. Guerrero, 5 F.3d 868, 872 (5th
Cir. 1993), cert. denied, 1994 WL 11576 (U.S. Feb. 22, 1994) (No.
93-7360) (construing "`in connection with' a crime of violence"
language of U.S.S.G. § 4B1.4(b)(3)(A), and citing Smith v. United
States, __ U.S. __, __, 113 S. Ct. 2050, 2054 (1993); Perrin v.
United States, 444 U.S. 37, 43 (1979)). As noted in Guerrero, the
Supreme Court
reads terms such as "used or possessed" quite
expansively in the context of firearms. For
instance, in order to prove a criminal defendant
"use[d] a firearm ... during and in relation to any
crime of violence or drug trafficking crime" for
purposes of 18 U.S.C. § 924(c)(1), the government
need not show the firearm was even "use[d] as a
weapon."
Id. at 872 (quoting Smith, __ U.S. at __-__, 113 S. Ct. at 2053-54
(internal quotations omitted)). In Guerrero, for purposes of §
4B1.4(b)(3)(A), we held that the defendant possessed firearms "in
connection with" a burglary even where they were not used to commit
the burglary, but were instead the fruits of it. Id.
sense, to signify only the relationship that the guideline
requires. This use is consistent with the general definition of
"nexus", i.e., a "connection, link". Webster's Ninth New
Collegiate Dictionary 797 (1990).
14
In addition, as noted, other circuits have looked to U.S.S.G.
§ 2D1.1(b) (enhancement for possession of firearm during drug-
trafficking crime) for guidance in interpreting § 2K2.1(b)(5). See,
e.g., Gomez-Arrellano, 5 F.3d at 466 (10th Cir. 1993); Sanders, 990
F.2d at 585 & nn. 2-3 (10th Cir.), followed by Brewster, 1 F.3d at
54 & n.4 (1st Cir.). They acknowledge, however, that § 2D1.1, like
18 U.S.C. § 924, is an imperfect analogy to § 2K2.1(b)(5) for at
least two reasons.
First, § 2D1.1 mandates an enhancement whenever, in a crime
involving the manufacture, import, export, trafficking, or
possession of drugs, "a dangerous weapon (including a firearm) was
possessed". Arguably, this language requires less of a
relationship, or specific connection, between the possession of the
weapon, and the drug offense. That is, § 2D1.1(b)(1) contains no
language requiring that the possession of the weapon be "in
connection with" (§§ 2K2.1(b)(5), 4B1.1(b)(3)(A)), or "in relation
to" (18 U.S.C. § 924(c)) the other offense. Second, unlike §
2K2.1(b)(5), the commentary to § 2D1.1 sets a standard by which to
judge the relationship between the firearm and the drug offense:
the enhancement applies unless it is "clearly improbable that the
weapon was connected with the offense." U.S.S.G. § 2D1.1, comment.
(n.3); Sanders, 990 F.2d at 585 (noting "explanatory vacuum"
accompanying § 2K2.1(b)(5), and declining to extend § 2D1.1's
"clearly improbable" standard to it).
Nonetheless, similar policy reasons militate in favor of the
enhancement provided by both § 2D1.1(b) and § 2K2.1(b)(5).
15
Sanders, 990 F.2d at 585; Guerrero, 5 F.3d at 872 & n. 9
(discussing Sanders in context of analogy between § 2D1.1(b)(1) and
"in connection with" language of § 4B1.4(b)(3)(A)). As does the
original commentary to § 2K2, the commentary to § 2D1.1 "explains
the enhancement for weapons possession ... as reflecting `the
increased danger of violence'" that exists when guns and drugs are
present together. Sanders, 990 F.2d at 585 (discussing and
comparing U.S.S.G. App. C, amend. 374 comment. (backg'd) (original
commentary to § 2K2) with U.S.S.G. § 2K1.1(b)(1) comment. (n.3)).
Simply stated, the enhancement in issue reflects the
undeniable fact that "[p]ossession of firearms obviously increases
the danger of violence whether or not such weapons are actually
used .... [I]t makes little difference how the [defendant] obtained
[the] firearms." Guerrero, 5 F.3d at 873 (emphasis in original).
As much as in a drug trafficking crime, e.g., Capote-Capote, 946
F.2d at 1104, or a crime of violence such as burglary, Guerrero, 5
F.3d at 873, this rationale applies in cases involving possession
of a firearm while in possession of drugs.19
Section 2K2.1(c)(1) presents another useful, if imperfect,
standard for comparison. As noted, it provides, as does §
2K2.1(b)(5), for an enhancement "[i]f the defendant used or
possessed any firearm or ammunition in connection with" another
offense. It specifies, however, that the firearm must be used or
possessed in connection with "the commission or attempted
19
We reiterate that the enhancement is required not only for
use, but also simply for possession, of a firearm in connection
with another felony. U.S.S.G. § 2K2.1(b)(5).
16
commission of another offense". U.S.S.G. § 2K2.1(c)(1) (emphasis
added). The requirement that the firearm possession be in
connection with the commission of another offense appears to
mandate a closer relationship between the firearm and the other
offense than that required for § 2K2.1(b)(5) purposes.
In other words, for § 2K2.1(b)(5) purposes, the connection
could be even more remote and require less proof. Yet, in the only
case from this circuit to address the issue (Hernandez, discussed
supra at note 17,) we did not require a specific showing of a close
relationship between the firearm and the drug possession. There,
as noted, we affirmed a § 2K2.1(c)(1) enhancement based primarily
on "undisputed evidence that the firearm was found in the room with
the marijuana". Hernandez, No. 91-8249, slip op. at 2
(unpublished) (emphasis added). At bottom, in Hernandez, the
simple physical proximity of the firearm to the drugs allowed the
district court properly to "conclude that the firearm was used in
connection with the possession of the marijuana." Id. (emphasis
added).
In addition, it is well to remember that a sentencing
enhancement is being construed; a "specific offense
characteristic". Therefore, obviously, the purpose to be served by
such an enhancement must guide our giving effect to the ordinary
and natural meaning of the subsection. Specific offense
characteristics, such as those described in § 2K2.1(b), represent
the Sentencing Commission's attempt to consider "real offense"
aspects of the underlying offense. United States v. Manthei, 913
17
F.2d 1130, 1134 (5th Cir. 1990), citing and quoting U.S.S.G. Ch. 1,
Pt. A, intro., 4(a); see also U.S.S.G. Ch. 1, Pt. A, intro., p.s.
(3) (Guidelines attempt to establish "proportionality in sentencing
through a system that imposes appropriately different sentences for
criminal conduct of differing severity"). The Guidelines state
that, although they are "closer to a charge offense [rather than a
real offense] system", they
take account of a number of important, commonly
occurring real offense elements such as role in the
offense, the presence of a gun, or the amount of
money actually taken, through alternative base
offense levels, specific offense characteristics,
cross references, and adjustments.
U.S.S.G. Ch. 1, Pt. A, intro. p.s. 4(a); see also U.S.S.G. § 1B1.3,
comment. (discussing consideration of relevant conduct in
determining sentence). Specific offense characteristics represent
an integral part of the Guidelines' "return[] ... to an earlier
philosophy that the punishment should fit the crime...." Mejia-
Orosco, 867 F.2d at 218.
Chapter Two of the Guidelines relates to offense conduct; its
Part K -- including § 2K2.1(b)(5) -- pertains to offenses
"involving public safety", such as arson, use of explosives or
firearms, and transportation of hazardous materials. Section 2K2.1
provides offense levels for unlawful receipt, possession, or
transportation of firearms or ammunition. In 1991, the specific
offense characteristic represented by the subsection in issue was
added to the Guidelines (enacted in 1987). It was one of several
changes to § 2K2 that reflect increased concern about firearms,
crimes of violence, and drug offenses. Needless to say, the
18
unlawful use or possession of firearms represents an ever
increasing assault on public safety; it is a clear and present
danger. For example, 15,377 of the 22,540 murders in the United
States in 1992 were committed with firearms, of which 1,144
concerned drugs. 1992 FBI Uniform Crime Rep. for the United States
20.
Finally, § 2K2.1(b)(5) mandates that if the resulting offense
level -- after the enhancement is applied -- is less than 18, it
must be increased to that level. U.S.S.G. § 2K2.1(b)(5); see note
9, supra. This is yet another indication that the enhancement
represents an intention to impose a significantly heavier sentence,
regardless of the other offense (felony).
Under the ordinary and natural meaning of "in connection with"
as found in § 2K2.1(b)(5), especially as informed by the above
discussion, we cannot credit either Condren's contention that the
quantity of drugs involved was too small, or the possible
contention that the source of the firearm was too unrelated, to
support the enhancement.
a.
As to the quantity, it must be kept in mind that Condren was
actively involved in distributing cocaine; it would be more than
reasonable to infer that he would know, or assume, that other
persons would know, or assume, that he kept drugs in his home, and
that he would be concerned that those persons might seek to steal
them. (No authority need be cited for the fact that theft is a
19
close and ever present partner of illegal drugs, either to steal
the drugs, or to steal money or other items to purchase them.)
Therefore, as discussed infra, it would likewise be more than
reasonable to infer that Condren possessed the firearm in order to
protect even the small amount of drugs kept, or intended, for his
personal use. See United States v. Martinez, 808 F.2d 1050, 1057
(5th Cir.) ("Firearms are `tools of the trade' of those engaged in
illegal drug activities."), cert. denied, 481 U.S. 1032 (1987). In
any event, § 2K2.1(b)(5) does not specify that a certain amount of
drugs are required to support the enhancement. Indeed, it is
mandated whenever a firearm is possessed in connection with any
other felony, regardless of whether it involves drugs. U.S.S.G. §
2K2.1(b)(5).20
Moreover, Condren's assertion that § 2K2.1(b)(5) is not
applicable, in this case, because only a small amount of drugs was
involved, and was kept only for his personal use, is unsupported by
the case law he relies on.21 The § 2D1.1 cases Condren cites are
20
At oral argument, Condren's counsel argued that to allow the
enhancement on the claimed unconnected firearm and drug possessions
in this case will open the door to similar enhancements for any
felony so long as a firearm is also possessed, offering as examples
felonies not generally associated with firearms, such as bank
fraud. Needless to say, this assertion, which was not presented in
Condren's briefs and therefore arguably need not be addressed, has
some facial appeal, but no merit. The connection between the
firearm and the other felony must be proved.
21
With regard to this issue, Condren cites United States v.
Aguilera-Zapata, 901 F.2d 1209 (5th Cir. 1990) (defendant pleaded
guilty to possession with intent to distribute over 100 kilograms
of marijuana; district court applied § 2D1.1(b)(1) because co-
defendant possessed loaded revolver, and this court remanded to
determine whether co-defendant's possession of weapon was
reasonably foreseeable to defendant); United States v. Molinar-
20
inapposite; that they happen to involve larger quantities of drugs
than does this case is perhaps due to the fact that § 2D1.1
pertains specifically to offenses involving drugs, including drug
manufacture, import, and trafficking.
In contrast, as noted, § 2K1.1(b)(5) enhancements may be based
on any felony, including, as here, felony possession of a small
amount of drugs. See Sanders, 990 F.2d at 583, 585 (enhancement
applied where defendant possessed firearm in connection with drug
trafficking; defendant was carrying 7 grams of cocaine, 33.7 grams
of heroin, and assorted drug paraphernalia); see also United States
v. Rivera, 898 F.2d 442, 445-46 (5th Cir. 1990) (leaving open
possibility that, on remand, defendant could receive enhanced
sentence under § 2D1.1(b) for possession of firearm during
possession of as little as .37 grams of heroin).
b.
As to the possible contention that the firearm was simply
collateral for a loan, instead of being possessed for Condren's
drug-related activities, we reiterate that the enhancement
provision speaks to the real and obvious increase in the risk of
violence (threat to public safety) through the mere possession of
firearms in connection with drugs. See Guerrero, 5 F.3d at 873.
Apodaca, 889 F.2d 1417, 1424 (5th Cir. 1989) (presence of Uzi
rifle, handgun, and ammunition "at the time when a considerable
quantity of marijuana was seized on the premises" supported 18
U.S.C. § 924(c) conviction); United States v. Robinson, 857 F.2d
1006, 1010 (5th Cir. 1988) (jury could reasonably conclude that
possession of firearms was integral part of felony of possessing
cocaine with intent to distribute, where availability of firearm
increased likelihood that criminal undertaking would succeed).
21
This increased risk obviously exists regardless of whether the
weapons are used, and regardless of how, or why, they were
obtained, or for what other reasons they are possessed. Id.
2.
We turn now to the findings of fact and conclusion of law
concerning the connection. As stated, a finding is upheld unless
it is clearly erroneous -- it is implausible in light of the record
as a whole. E.g. United States v. Martinez-Moncivais, No. 92-5593,
1994 WL 38657 at *8 (5th Cir. Feb. 11, 1994) (citing United States
v. Sanders, 942 F.2d 896, 897 (5th Cir. 1991)).
Condren's firearm "was found in the same location where drugs
or drug paraphernalia [we]re stored or where part of the
transaction occurred." United States v. Hooten, 942 F.2d 878, 882
(5th Cir. 1991) (construing § 2D1.1, and citing cases). It was in
close "physical proximity to narcotics", Gomez-Arrellano, 5 F.3d at
466-67 (10th Cir. 1993) -- in a drawer of the very desk where the
drugs were found. Furthermore, it was fully loaded. Regardless of
how it came into Condren's possession, it was readily available to
him to protect his drug-related activities; and, based on our
review of the record, the district court implicitly finding this
was not clearly erroneous.22
Therefore, the district court did not err, as a matter of law,
in concluding that the firearm possession was "in connection with"
22
As noted, Condren asserts that the drawer was locked. He does
not, however, contend that he could not unlock it, or that the
firearm was otherwise unavailable to him. The record does not
contain evidence on either point, except for his stating to the
probation officer that the drawer was locked.
22
the drug possession. See Hernandez, No. 91-8249, slip op. at 2
(concerning § 2K2.1(c); "From the undisputed evidence that the
firearm was found in the room with the marijuana, the court could
conclude that the firearm was used in connection with the
possession of the marijuana."); United States v. Thomas, 12 F.3d
1350, ____ (5th Cir. 1994) (under 18 U.S.C. § 924(c), government
need only show that gun was available to provide protection to
defendant's drug activity); and Pace, 10 F.3d at 1117-19
(construing 18 U.S.C. § 924(c) and quoting Capote-Capote, 946 F.2d
at 1104 ("Weapons in the home may facilitate a drug crime because
the defendants could use the guns to protect the drugs".) (emphasis
in Pace; citations omitted)).
III.
Accordingly, the court correctly applied § 2K2.1(b)(5). The
sentence is
AFFIRMED.
23