United States v. Greeno

RECOMMENDED FOR FULL-TEXT PUBLICATION
Pursuant to Sixth Circuit Rule 206
File Name: 12a0142p.06

UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
_________________

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Plaintiff-Appellee, -
UNITED STATES OF AMERICA,
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No. 10-6279
v.
,
>
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Defendant-Appellant. -
MARK GREENO,
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Appeal from the United States District Court
for the Eastern District of Tennessee at Chattanooga.
No. 1:10-cr-13-9—Curtis L. Collier, Chief District Judge.
Decided and Filed: May 21, 2012
Before: MOORE, GIBBONS, and ALARCÓN, Circuit Judges.*

_________________

COUNSEL
ON BRIEF: Charles P. Dupree, Chattanooga, Tennessee, for Appellant. Terra L. Bay,
ASSISTANT UNITED STATES ATTORNEY, Chattanooga, Tennessee, Luke A.
McLaurin, ASSISTANT UNITED STATES ATTORNEY, Knoxville, Tennessee, for
Appellee.
_________________

OPINION
_________________

ALARCÓN, Circuit Judge. Defendant-appellant Mark Greeno appeals from the
district court’s judgment sentencing him to 87 months in prison for conspiracy with
intent to distribute methamphetamine in violation of 21 U.S.C. § 841(a) and (b)(1)(A).
Greeno contends that the district court erred when it applied a dangerous weapon
enhancement to his sentence, pursuant to Section 2D1.1(b)(1) of the U.S. Sentencing

*
The Honorable Arthur L. Alarcón, Senior Circuit Judge of the United States Court of Appeals
for the Ninth Circuit, sitting by designation.

1
No. 10-6279 United States v. Greeno Page 2

Guidelines. Greeno also asserts that application of the Section 2D1.1(b)(1) dangerous
weapon enhancement violated his Second Amendment right to keep and bear arms. For
the reasons that follow, we affirm the district court.

I.

In May 2009, as part of an ongoing investigation of a methamphetamine
trafficking conspiracy in Tennessee and Georgia, law enforcement officers conducted
two controlled purchases of methamphetamine at Greeno’s property. Within three days
of the second controlled purchase, Officers Eric Allman, Toby Norris, and Dax
McGowan executed a search warrant on Greeno’s property, which contained a house,
a recreational vehicle (“RV”), and a garage.1

Officer Norris found a five-shot revolver between the bed and wall of Greeno’s
RV. The revolver was near drug paraphernalia, including black electrical tape that was
similar to the packaging used on methamphetamine purchased by officers in other
controlled purchases. Officer McGowan searched Greeno’s garage and found a handgun
in the laundry room. He also found an unloaded rifle and ammunition in a nearby tool
room. A few yards outside the garage, officers found a canister of methamphetamine
buried in the ground. Officers also found a smaller package of methamphetamine
wrapped in black electrical tape outside Greeno’s RV.

In January 2010, the Government charged Greeno, along with twenty-three other
individuals, with, inter alia, conspiracy to distribute at least fifty grams of
methamphetamine or at least five hundred grams of a mixture and substance containing
methamphetamine in violation of 21 U.S.C. § 841(a) and (b)(1)(A). A few months later,
Greeno pleaded guilty to the conspiracy charge pursuant to a written plea agreement.
The district court dismissed the remaining count against Greeno pursuant to the plea
agreement.

1
Greeno lived in the RV during construction on the house.
No. 10-6279 United States v. Greeno Page 3

At Greeno’s sentencing hearing, the district court adopted the presentence
investigation report and applied the advisory Sentencing Guidelines in determining his
sentence. The district court applied a two-level enhancement to Greeno’s offense level
for possession of a dangerous weapon during a drug offense, pursuant to Section
2D1.1(b)(1) of the U.S. Sentencing Guidelines. The application of this enhancement
resulted in an overall offense level of 29, which increased his advisory Guidelines range
from 70 to 87 months in prison to 87 to 108 months in prison.

At the sentencing hearing, Greeno objected to the application of the
Section 2D1.1(b)(1) dangerous weapon enhancement. He argued that there was
insufficient evidence connecting the firearms found on his property with his drug
trafficking offense. He also contended that the firearms were for personal protection.
In response, the Government presented testimony from Officers Allman, Norris, and
McGowan regarding their search of Greeno’s property and the controlled
methamphetamine purchases conducted at Greeno’s home. Greeno’s counsel cross-
examined the officers, but did not present any evidence at the sentencing hearing.

The district court concluded that the Government had met its burden of showing
that Greeno possessed a dangerous weapon during his drug trafficking offense and that
Greeno had failed to produce any evidence demonstrating that it was clearly improbable
that the weapon was connected to his offense. Thus, the court overruled Greeno’s
objection to the Section 2D1.1(b)(1) dangerous weapon enhancement and sentenced him
to 87 months in prison.

Greeno filed a timely notice of appeal on October 19, 2010, following entry of
judgment on October 14, 2010. The district court had jurisdiction under 18 U.S.C.
§ 3231. We have jurisdiction under 28 U.S.C. § 1291.

II.

Greeno contends in this appeal that the district court erred by applying the
Section 2D1.1(b)(1) dangerous weapon enhancement to his sentence because the
Government did not present sufficient evidence to show that Greeno possessed a firearm
No. 10-6279 United States v. Greeno Page 4

in connection with his drug trafficking offense. He also maintains that the application
of this enhancement violates his Second Amendment right to keep and bear arms. This
Circuit reviews a district court’s interpretation of the Sentencing Guidelines de novo and
its “findings of fact at sentencing for clear error.” United States v. Baker, 559 F.3d 443,
448 (6th Cir. 2009).

A.

Pursuant to Section 2D1.1(b)(1), a two-level enhancement may be added to the
base offense level of a defendant convicted of a drug offense “[i]f a dangerous weapon
(including a firearm) was possessed.” U.S. Sentencing Guidelines Manual § 2D1.1(b)(1)
[hereinafter Sentencing Guidelines]. “The enhancement should be applied if the weapon
was present, unless it is clearly improbable that the weapon was connected with the
offense.” Id. § 2D1.1 cmt. n.3(A).

Under Section 2D1.1(b)(1), the government has the burden of showing “by a
preponderance of the evidence that ‘(1) the defendant actually or constructively
‘possessed’ the weapon, and (2) such possession was during the commission of the
offense.’” United States v. Catalan, 499 F.3d 604, 606 (6th Cir. 2007) (quoting United
States v. Hill, 79 F.3d 1477, 1485 (6th Cir. 1996)). This Court has previously
recognized that the 1991 amendments to the Sentencing Guidelines removed the
requirement that the weapon be possessed during the commission of the crime. United
States v. Faison, 339 F.3d 518, 520 (6th Cir. 2003). “[A]ll that the government need
show is that the dangerous weapon [was] possessed during ‘relevant conduct.’” Id.

This Court has also recognized that although the Government’s burden contains
“two separate inquiries, in most instances they collapse into a single factual
determination because the weapon was present when the arrest took place or where the
crime was committed.” United States v. Sanchez, 928 F.2d 1450, 1460 (6th Cir. 1991),
abrogated on other grounds by United States v. Jackson-Randolph, 282 F.3d 369 (6th
Cir. 2002). In such “instances, once the government proves a defendant was in
possession of a weapon, its burden is satisfied.” Id.
No. 10-6279 United States v. Greeno Page 5

Once the government meets its burden, “a [rebuttable] presumption arises that
‘the weapon was connected to the offense.’” United States v. Wheaton, 517 F.3d 350,
367 (6th Cir. 2008) (quoting United States v. Hough, 276 F.3d 884, 894 (6th Cir. 2002)).
The burden then “shifts to the defendant to show that it was ‘clearly improbable’ that the
weapon was connected to the offense.” Catalan, 499 F.3d at 606. A defendant must
present evidence, not mere argument, in order to meet his or her burden. See Hough,
276 F.3d at 894 (“[S]peculation is not evidence and does not establish that it was ‘clearly
improbable’ that [the defendant] possessed the firearms during the offense.”); see also
Wheaton, 517 F.3d at 368 (“The bare assertion of Wheaton’s counsel that the gun might
simply have been for the lawful purpose of defending the residence is insufficient to
sustain Wheaton’s burden of showing it was ‘clearly improbable’ that the gun was
related to the drug conspiracy.”).

This Court considers the following factors, none of which is alone controlling,
when determining whether the application of a Section 2D1.1(b)(1) enhancement was
appropriate:

(1) the type of firearm involved; (2) the accessibility of the weapon to the
defendant; (3) the presence of ammunition; (4) the proximity of the
weapon to illicit drugs, proceeds, or paraphernalia; (5) the defendant’s
evidence concerning the use of the weapon; and (6) whether the
defendant was actually engaged in drug-trafficking, rather than mere
manufacturing or possession.

United States v. Edmonds, 9 F. App’x 330, 332 (6th Cir. 2001) (citing United States v.
Calhoun, 49 F.3d 231, 237 (6th Cir. 1995); United States v. Chalkias, 971 F.2d 1206,
1217 (6th Cir. 1992); United States v. McGhee, 882 F.2d 1095, 1099 (6th Cir. 1989)).

The district court did not err in concluding that the Government presented
sufficient evidence to meet its burden. The search was conducted only a few days after
the controlled purchase of methamphetamine at Greeno’s property. The firearms were
found throughout the property in relatively close proximity to drugs and drug
paraphernalia. Thus, regardless of where Greeno was on the property, he had ready
No. 10-6279 United States v. Greeno Page 6

access to the firearms. Greeno does not dispute that he possessed the firearms, nor that
the firearms were found on his property during the existence of the drug conspiracy.

Greeno nonetheless contends that the district court erred by applying the
Section 2D1.1(b)(1) enhancement because there was no direct evidence showing he
possessed a firearm when he sold drugs or that the firearms were found with drugs or
drug paraphernalia. Greeno relies on United States v. Jock, 239 F. App’x 126 (6th Cir.
2007), Baker, 559 F.3d 443, United States v. Woods, 604 F.3d 286 (6th Cir. 2010), and
United States v. Wright, 426 F. App’x 412 (6th Cir. 2011), to support this contention.

Greeno’s reliance on Jock is misplaced. Greeno referred to docket number 06-
5595 in citing Jock. That docket number is associated with a Sixth Circuit decision
affirming the defendant’s resentencing after an earlier remand in 2005. Jock, 239 F.
App’x at 127. To the extent Greeno intended to cite the 2005 decision in United States
v. Jock, 148 F. App’x 519 (6th Cir. 2005), that decision reversed the district court’s
sentence because the district court treated the Guidelines as mandatory in violation of
United States v. Booker, 543 U.S. 220 (2005). Jock, 148 F. App’x at 523-24. Greeno
does not contend there was a Booker error in this case.

Greeno’s reliance on Baker and Wright is also misplaced. Neither case involves
a challenge to the sufficiency of the evidence supporting the application of a
Section 2D1.1(b)(1) enhancement. The Baker case involves a challenge to a career
offender enhancement. Baker, 559 F.3d at 450, 453. The Wright case involves a
challenge to the district court’s consideration of uncharged crimes when determining a
defendant’s sentence. Wright, 426 F. App’x at 415-16. While both decisions reversed
and remanded for resentencing, Greeno has not pointed to any portion of either of these
decisions that supports his argument in this appeal.

Greeno’s reliance on Woods is also misplaced. While the court in Woods
reversed the district court’s application of a Section 2D1.1(b)(1) enhancement, the
enhancement was based on possession of a firearm by a co-conspirator. Woods, 604
F.3d at 290-92. The district court’s application of the Section 2D1.1(b)(1) enhancement
in this case was not based on possession of a firearm by a co-conspirator.
No. 10-6279 United States v. Greeno Page 7

Greeno did not offer any evidence demonstrating that it was clearly improbable
that the firearms were connected to his drug offense and, thus, did not meet his burden.
If a defendant fails to meet his or her burden of showing that it was clearly improbable
that a firearm was connected to a drug offense, “the district court should apply the
enhancement.” Catalan, 499 F.3d at 606-07. Because Greeno did not meet his burden,
the district court did not err when it applied the Section 2D1.1(b)(1) dangerous weapon
enhancement to Greeno’s sentence.

B.

1.

Although Greeno’s articulation of his Second Amendment challenge in his brief
is somewhat conclusory and unclear, contrary to the Government’s contentions, he did
not waive it. This Circuit has recognized that even a “bare bones” argument may survive
a waiver challenge. See United States v. Erpenbeck, 532 F.3d 423, 434 (6th Cir. 2008)
(concluding that a “bare bones” argument raised in a footnote “is not so undeveloped as
to constitute a waiver”). Greeno identified the Second Amendment issue in his brief
under the header “Issues Presented for Appeal.” Greeno also addressed his Second
Amendment challenge on pages 12 and 13 of his brief. Moreover, Greeno cited and
relied on Supreme Court decisions in District of Columbia v. Heller, 554 U.S. 570
(2008), and McDonald v. City of Chicago, 130 S. Ct. 3020 (2010), in support of his
challenge.

Greeno’s Second Amendment challenge, however, is subject to plain error
review because he did not raise it in the district court. A defendant who fails to present
an issue to the district court forfeits the benefit of full review, such that appellate review
is limited to determining whether the district court committed plain error. See United
States v. Skipper, 552 F.3d 489, 491 (6th Cir. 2009) (“Skipper did not present this
argument to the district court, so our review is limited to determining whether the district
court committed plain error.”).
No. 10-6279 United States v. Greeno Page 8

Greeno has not cited any portion of the record showing that he raised his Second
Amendment challenge in the district court. Based on our review of the transcript from
the sentencing hearing, Greeno’s counsel referred to the Second Amendment only once:
during cross-examination of Officer McGowan. Defense counsel asked Officer
McGowan if Greeno “had a good Second Amendment right to own weapons?” to which
the officer responded “[y]eah.” R. 628 at 49-50. This single question is not enough to
raise his Second Amendment challenge because it does not establish a detailed record
for review on appeal. Thus, we review for plain error.

2.

On plain error review, we must first determine “whether an error occurred in the
district court.” United States v. Thomas, 11 F.3d 620, 630 (6th Cir. 1993). If we
conclude that no error occurred, the “inquiry is at an end.” Id. In order to determine if
an error occurred in the district court in this case, we must determine whether Greeno’s
Second Amendment right to keep and bear arms, as recognized in Heller, was
impermissibly restricted by application of the Section 2D1.1(b)(1) enhancement.

a.

The Second Amendment provides: “A well-regulated Militia, being necessary
to the security of a free State, the right of the people to keep and bear Arms, shall not be
infringed.” U.S. Const. amend. II. The Supreme Court held in Heller that the Second
Amendment protects an individual’s right to keep and bear arms without regard to
Militia service. Heller, 554 U.S. at 595, 598-99. The Court held that the Second
Amendment codified the pre-existing right to keep and bear arms. See id. at 592
(explaining that “it has always been widely understood that the Second Amendment, like
the First and Fourth Amendments, codified a pre-existing right”). The core right
recognized in Heller is “the right of law-abiding, responsible citizens to use arms in
defense of hearth and home.” Id. at 635.

The Court, however, recognized that the Second Amendment right to keep and
bear arms “is not unlimited.” Id. at 626. For example, the Court recognized the
No. 10-6279 United States v. Greeno Page 9

“historical tradition of prohibiting the carrying of dangerous and unusual weapons.” Id.
at 627 (internal quotation marks omitted). The Court read its prior decision in United
States v. Miller, 307 U.S. 174 (1939) “to say only that the Second Amendment does not
protect those weapons not typically possessed by law-abiding citizens for lawful
purposes, such as short-barreled shotguns.” Heller, 554 U.S. at 625.

The Court also recognized that “[f]rom Blackstone through the 19th-century
cases, commentators and courts routinely explained that the right was not a right to keep
and carry any weapon whatsoever in any manner whatsoever and for whatever purpose.”
Id. at 626. The Court declined to define the full scope of the Second Amendment right,
but did articulate a non-exhaustive list of presumptively lawful regulations:

[N]othing in [the] opinion should be taken to cast doubt on longstanding
prohibitions on the possession of firearms by felons and the mentally ill,
or laws forbidding the carrying of firearms in sensitive places such as
schools and government buildings, or laws imposing conditions and
qualifications on the commercial sale of arms.

Id. at 626-27, 627 n.26.

Because the list contains the prohibition on the possession of firearms by felons,
this Circuit has relied on it to reject Second Amendment challenges to federal felon-in-
possession of a firearm convictions and related expungement exceptions. See, e.g.,
United States v. Carey, 602 F.3d 738, 741 (6th Cir. 2010) (“In short, Heller states that
the Second Amendment right is not unlimited, and in fact, it is specifically limited in the
case of felon prohibitions. Because Congress’s prohibition on felon possession of
firearms is constitutional, it follows that the burdens associated with the congressionally-
created expungement exception in 18 U.S.C. § 921(a)(20) do not violate the Second
Amendment.” (citation omitted)); United States v. Whisnant, 391 F. App’x 426, 430 (6th
Cir. 2010) (relying on Carey and rejecting Second Amendment challenge to felon in
possession of firearm conviction).

Because the list does not contain the Section 2D1.1(b)(1) dangerous weapon
enhancement at issue in this case, we cannot rely on the list, alone, to reject Greeno’s
No. 10-6279 United States v. Greeno Page 10

Second Amendment challenge. See United States v. Chester, 628 F.3d 673, 679 (4th Cir.
2010) (“Some courts have treated Heller’s listing of ‘presumptively lawful regulatory
measures,’ for all practical purposes, as a kind of ‘safe harbor’ for unlisted regulatory
measures, such as 18 U.S.C. § 922(g)(9), which they deem to be analogous to those
measures specifically listed in Heller. . . This approach, however, approximates rational-
basis review, which has been rejected by Heller.” (citation omitted)).

This Circuit has not yet reached the merits of a post-Heller Second Amendment
challenge to a Section 2D1.1(b)(1) dangerous weapon enhancement in a published
decision. See United States v. Walker, 351 F. App’x 16, 18 (6th Cir. 2009) (declining
to reach the merits of the defendant’s post-Heller Second Amendment challenge to a
Section 2D1.1(b)(1) enhancement because the defendant waived the challenge by
accepting the enhancement in his plea agreement); United States v. Hurley, 278 F. App’x
574, 576 (6th Cir. 2008) (declining to reach the merits of the defendant’s post-Heller
Second Amendment challenge to a Section 2D1.1(b)(1) enhancement because the
defendant waived the challenge by failing to develop the argument in his brief).

b.

Since the Supreme Court’s decision in Heller, courts have wrestled with its text
to develop a sound approach to resolving Second Amendment challenges. Several
circuits have adopted a two-pronged approach. See United States v. Marzzarella, 614
F.3d 85, 89 (3d Cir. 2010) (“As we read Heller, it suggests a two-pronged approach to
Second Amendment challenges.”); Chester, 628 F.3d at 680 (applying two-pronged
approach); Ezell v. City of Chicago, 651 F.3d 684, 701-03 (7th Cir. 2011) (same); United
States v. Reese, 627 F.3d 792, 800-01 (10th Cir. 2010) (same).

Under the first prong, the court asks whether the challenged law burdens conduct
that falls within the scope of the Second Amendment right, as historically understood.
Chester, 628 F.3d at 680. As the Seventh Circuit recognized, “Heller suggests that some
federal gun laws will survive Second Amendment challenge because they regulate
activity falling outside the terms of the right as publicly understood when the Bill of
Rights was ratified.” Ezell, 651 F.3d at 702. If the Government demonstrates that the
No. 10-6279 United States v. Greeno Page 11

challenged statute “regulates activity falling outside the scope of the Second Amendment
right as it was understood at the relevant historical moment--1791 [Bill of Rights
ratification] or 1868 [Fourteenth Amendment ratification]--then the analysis can stop
there; the regulated activity is categorically unprotected, and the law is not subject to
further Second Amendment review.” Id. at 702-03.

“If the government cannot establish this--if the historical evidence is inconclusive
or suggests that the regulated activity is not categorically unprotected-- then there must
be a second inquiry into the strength of the government’s justification for restricting or
regulating the exercise of Second Amendment rights.” Id. at 703. Under this prong, the
court applies the appropriate level of scrutiny. Marzzarella, 614 F.3d at 89. If the law
satisfies the applicable standard, it is constitutional. Id. If it does not, “it is invalid.”
Id.

We find this two-pronged approach appropriate and, thus, adopt it in this Circuit.
Under the first prong, we must determine whether the Section 2D1.1(b)(1) enhancement
burdens conduct that falls within the scope of the Second Amendment right as
historically understood. If the enhancement falls outside the scope of the Second
Amendment right as historically understood, the possession of a weapon during a drug
offense is unprotected and our inquiry ends.

According to Heller, the Second Amendment right as historically understood
protects the right of individuals to keep and bear arms for self-defense. Heller, 554 U.S.
at 628. As stated above, the core right recognized in Heller is “the right of law-abiding,
responsible citizens to use arms in defense of hearth and home.” Id. at 635. Since the
Second Amendment recognized the pre-existing right to keep and bear arms, we look to
early restrictions on the possession and use of weapons.

As a preliminary matter, we acknowledge that the Section 2D1.1(b)(1)
enhancement, as well as laws prohibiting the possession, use, and distribution of
narcotics are of relatively recent vintage. The Section 2D1.1(b)(1) enhancement was
first introduced in 1987. Sentencing Guidelines § 2D1.1(b)(1) (1987). State laws
prohibiting the sale of certain narcotics were first introduced in the late Nineteenth
No. 10-6279 United States v. Greeno Page 12

Century. See Margarita Mercado Echegaray, Drug Prohibition in America: Federal
Drug Policy and its Consequences, 75 Rev. Jur. U.P.R. 1215, 1219 (2006) (“In light of
widespread use during the nineteenth century, states enacted legislation to curb drug use
in America.”); see, e.g., In re Ah Lung, 45 F. 684, 685 (N.D. Cal. 1891) (discussing San
Francisco city ordinance prohibiting sale, gift, or delivery of opium or morphine); Luck
v. Sears, 29 Or. 421, 423 (Or. 1896) (discussing 1887 state statute prohibiting the sale
and gift of opium, morphine, and other substances). While earlier federal drug-related
laws involved labeling and taxation, the first comprehensive federal drug law targeting
drug trafficking was enacted in 1970 in the Comprehensive Drug Abuse Prevention and
Control Act of 1970, Pub. L. No. 91-513, 84 Stat. 1236. See Gonzales v. Raich, 545 U.S.
1, 10 (2005) (discussing federal drug regulations).

The mere fact that drug laws and the Section 2D1.1(b)(1) enhancement were not
enacted until recently does not automatically render the possession of weapons by drug
traffickers within the scope of the Second Amendment right as historically understood.
Nothing in Heller suggests such a static reading of the Second Amendment. Thus, we
look to the broader question of whether the Second Amendment right, as historically
understood, protected the possession of weapons by individuals engaged in criminal
activity.

At common law, the right to keep and bear arms was not unlimited. For example,
there was a historical tradition prohibiting the possession of dangerous or unusual
weapons. Heller, 554 U.S. at 627; see State v. Hirsch, 338 Or. 622, 676 (Or. 2005)
(discussing common law right to keep and bear arms and that “[n]othing in the history
of the English right suggests that the drafters of the English Bill of Rights intended the
arms provision to preclude the disarmament of serious lawbreakers”); see, e.g., State v.
Huntly, 3 Ired. 418, 418 (N.C. 1843) (discussing the common law history of the offense
of riding or going armed with dangerous or unusual weapons, to the terror of the people).

In the Eighteenth and Nineteenth Centuries, numerous states separately
penalized, or increased the severity of punishment for, crimes committed by individuals
who used a weapon during the commission of a crime. See Saul Cornell & Nathan
No. 10-6279 United States v. Greeno Page 13

DeDino, A Well Regulated Right: The Early American Origins of Gun Control, 73
Fordham L. Rev. 487, 501 (2004) (discussing history of right to keep and bear arms and
explaining that, in the Founding Era, “justices of the peace, sheriffs, and constables were
empowered to disarm individuals who ride about armed in terror of the peace”); see, e.g.,
State v. O’Neil, 71 Minn. 399, 401 (Minn. 1898) (discussing Minnesota statute that
classified a robbery committed by a person armed with a dangerous weapon as first
degree robbery); People v. Rockhill, 26 N.Y.S. 222, 223-24 (N.Y. 1893) (discussing
New York statute defining first degree assault as including assaults with intent to kill by
a person with a loaded firearm or other deadly weapon); State v. Cash, 16 P. 144, 145
(Kan. 1887) (discussing Kansas statute characterizing first degree burglary as committed
by a person who, inter alia, is armed with a dangerous weapon); State v. Tutt, 63 Mo.
595, 599 (Mo. 1876) (discussing Missouri statute defining first degree burglary as the
breaking into a dwelling house with the intent to commit a felony with, inter alia, a
dangerous weapon); Commonwealth v. Hope, 39 Mass. 1, 9-10, 22 Pick. 1 (Mass. 1839)
(discussing 1805 Massachusetts statute dividing the offense of burglary and explaining
that the use of a dangerous weapon during a nighttime burglary was punishable by
death); United States v. Bernard, 24 F. Cas. 1131, 1131, 2 Wheeler C.C. XLIV (N.J.
1819) (stating that New Jersey’s prohibition on the use of a dangerous weapon to rob a
postal carrier was a capital offense).

Consistent with the historical understanding of the right to keep and bear arms,
several courts, including the Supreme Court in Heller, have recognized that the right to
keep and bear arms is for lawful purposes. See Heller, 554 U.S. at 625 (reading the
Miller decision as providing that the “the Second Amendment does not protect those
weapons not typically possessed by law-abiding citizens for lawful purposes”); Huntly,
3 Ired. at 423 (discussing common law offense of “riding or going about armed with
unusual and dangerous weapons” and stating that “[f]or any lawful purpose--either of
business or amusement-- the citizen is at perfect liberty to carry his gun. It is the wicked
purpose-- and the mischievous result--which essentially constitute the crime”); see
generally Andrews v. State, 50 Tenn. 165, 196 (Tenn. 1871) (Nelson, J., concurring)
No. 10-6279 United States v. Greeno Page 14

(“Neither the old nor the new Constitution confers the right to keep, or to bear, or to
wear arms, for the purpose of aggression.”).

By penalizing weapon possession during a drug offense, the Section 2D1.1(b)(1)
enhancement is consistent with the historical understanding of the right to keep and bear
arms, which did not extend to possession of weapons for unlawful purposes. To hold the
contrary would suggest that the Second Amendment protects an individual’s right to
possess a weapon for criminal purposes. Nothing in Heller, the common law, or early
case law suggests such a reading.

The Section 2D1.1(b)(1) enhancement, like other historical restrictions on the
possession and use of weapons, punishes an individual who possesses a dangerous
weapon for an unlawful purpose and, thus, it falls outside the scope of the Second
Amendment right. The enhancement “reflects the increased danger of violence when
drug traffickers possess weapons.” Sentencing Guidelines § 2D1.1(b)(1) cmt. n.3(A).
Greeno did not rebut the presumption that the firearms were connected to his drug
trafficking offense; he did not establish he possessed the firearms for a lawful purpose.

Because the conduct regulated by the Section 2D1.1(b)(1) enhancement falls
outside the scope of the Second Amendment right as historically understood, Greeno’s
Second Amendment challenge fails.2

c.

At least one circuit court has suggested that even if the regulated activity
presumably falls outside the scope of the Second Amendment right, a regulation may
still be subject to an as-applied challenge. See United States v. Barton, 633 F.3d 168,
172-73 (3d Cir. 2011) (explaining that “Heller’s statement regarding the presumptive
validity of felon gun dispossession statutes does not foreclose Barton’s as-applied

2
Since Greeno’s challenge does not survive the first prong of the two-pronged approach, we need
not decide the appropriate level of scrutiny to apply to post-Heller Second Amendment challenges under
the second prong.
No. 10-6279 United States v. Greeno Page 15

challenge” because by describing the statute as “presumptively” lawful, “the Supreme
Court implied that the presumption may be rebutted”).

To the extent Greeno raises such a challenge, it fails. Greeno has not cited any
authority suggesting that the enhancement as applied to him is an unacceptable
restriction on his Second Amendment right or that he falls outside the intended scope of
the enhancement. As we previously discussed in Section II.A., the Government
presented evidence showing that officers found three firearms in Greeno’s home in
relatively close proximity to drugs and drug paraphernalia and within days of a
controlled purchase of methamphetamine at Greeno’s home. The district court relied on
this evidence to conclude that the Government met its burden of showing that Greeno
possessed a firearm in connection with his drug offense. Greeno did not present any
evidence to the district court showing that he used the firearms for a lawful purpose or
that the connection between the firearms and the drug offense was clearly improbable.

III.

For the foregoing reasons, we affirm.