IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 97-31252
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
ARTHUR MITCHELL, III,
Defendant-Appellant.
- - - - - - - - - -
Appeal from the United States District Court
for the Eastern District of Louisiana
- - - - - - - - - -
January 29, 1999
Before JOLLY, DAVIS, and WIENER, Circuit Judges.
JACQUES L. WIENER, JR., Circuit Judge.
In this direct criminal appeal, Defendant-Appellant Arthur
Mitchell III seeks (1) reversal of his conviction for possession of
a firearm by a felon, in violation of 18 U.S.C. § 922(g)(1), and
(2) vacatur of the incarceration portion of his sentence which
condemns him to serve 120 months in prison. Regarding his
conviction, Mitchell contends that he was erroneously denied a
mistrial for impermissible comments to the jury by the district
court in response to a question submitted by the jurors during the
course of their deliberations. Regarding his sentence, Mitchell
complains that the district court erred by applying § 2K2.1(c) of
the United States Sentencing Guidelines (“U.S.S.G.” or the “the
Guidelines”) to produce an unlawfully lengthy term of imprisonment,
contending that the court’s unauthorized use of that provision
resulted from the clearly erroneous factual determination that he
possessed the firearm in question, under the seat of a car, “in
connection with the commission or attempted commission of another
offense...,”1 specifically, the possession of crack cocaine located
in a lock box inside the house where he resided.2 This is the same
house from which he had driven to take three small children to
school; and the same car which law enforcement agents stopped
several blocks from the house and in which they found the subject
firearm.
Concluding that the district court did not commit reversible
error in refusing to declare a mistrial on the basis of its
comments to the jury, we affirm Mitchell’s conviction. Concluding,
however, that the district court clearly erred in determining that
the evidence and its reasonable inferences support a finding that
Mitchell possessed the gun in the car “in connection with” his
uncharged possession of the cocaine in the house where he was
staying with his girlfriend, we vacate Mitchell’s sentence and
remand to the district court for resentencing consistent with this
opinion.
I.
FACTS and PROCEEDINGS
1
U.S.S.G. § 2K2.1(c)(1)(A).
2
Mitchell was not charged for the narcotics violation in
this case; neither had he been convicted of possessing these
drugs when he was sentenced.
2
On the morning of his arrest, Mitchell was observed by law
enforcement personnel driving a car away from a house that he did
not own or rent but in which he was residing at the time with his
girlfriend.3 When he was stopped and arrested, Mitchell was on the
way to take three small children to school. The officers who
stopped Mitchell searched the car and found a handgun under the
driver’s seat but found no drugs.4
The arresting officers took Mitchell back to the house and,
with permission of the third party tenant, searched it. The search
revealed (1) a plastic bag containing another gun and (2) a locked
box containing approximately 24 grams of crack cocaine. Both the
gun and the locked box were found in the living room of the house.
Mitchell’s girlfriend told the officers that this gun and the
locked box belonged to Mitchell. A key chain containing, inter
alia, two keys to the locked box and a key to the car were in
Mitchell’s possession at the time of his arrest.
Mitchell was tried twice in connection with the foregoing
incident. In neither trial was he charged with or tried for any
narcotics violation; rather, he was twice tried only for being a
felon in possession of firearms. In the first trial, Count 1
implicated Mitchell’s own gun, which was found in the living room
of the house, and Count 2 implicated a gun that was found under the
seat of the car he was driving when he was arrested. In that
3
The record reflects that Mitchell had a permanent
residence elsewhere at the time.
4
The record reflects that the officer had a K-9 drug dog
sniff the car but came up empty, i.e., no “alerts.”
3
trial, Mitchell was acquitted of possession of the firearm in the
house; however, the jury could not reach a verdict on his
possession of the gun in the car, so a mistrial was declared on
that count. Mitchell was tried again on that count; and in his
second trial —— the one from which the instant appeal is taken ——
the jury found him guilty of possessing the gun that was in the
car.
Mitchell’s PSR correctly cited the 1996 version of Guideline
§ 2K2.1(c) in recommending a base offense level of 28. The PSR
concluded that Mitchell had possessed the gun “in connection with
the commission or attempted commission of another offense,” i.e.,
his possession with intent to distribute crack cocaine. In
response to Mitchell’s objections to this proposal, the probation
officer who had prepared the PSR defended the § 2K2.1(c)
recommendation, also cautioning the court that if it should sustain
Mitchell’s objection, his offense level would only be 14.5 The
court adopted the recommendation in the PSR and sentenced Mitchell
accordingly.
5
In so doing, the probation officer appears to have
miscalculated the putative offense level: Mitchell had a prior
felony conviction for burglary of an automobile and another for
distribution of a counterfeit controlled substance, as a
consequence of which his base level would have been 20, pursuant
to § 2K2.1(a)(4)(A) if the court had sustained his objection
under § 2K2.1(c). See § 2K2.1(a)(4)(A) (offense level is
increased for felony conviction for crime of violence or
controlled substance abuse); §§ 4b1.2(1)(ii), (2) (burglary of an
automobile is not a crime of violence, but distribution of
counterfeit controlled substance is a controlled substance
offense).
4
Mitchell timely filed a notice of appeal, contesting the
district court’s refusal to grant a mistrial on the basis of its
comments to the jury, and that court’s sentencing grounded in its
finding that he possessed the firearm in connection with another
offense.
II.
ANALYSIS
A. Standard of Review
We review the trial court’s denial of a motion for a mistrial
for abuse of discretion.6 We review the sentencing court’s
application of the Guidelines de novo, but we review that court’s
factual findings under the clearly erroneous standard.7
B. Mistrial
Apparently mindful that Mitchell was not charged in the
instant case for drug trafficking and that he had not been
convicted on drug trafficking charges, the prosecutor took care not
to mention drugs in explaining to the jury the circumstances of
Mitchell’s arrest. In his opening statement, the prosecutor told
the jury that the arresting officers saw Mitchell drive away from
the house where he was staying and “lawfully stopped” him shortly
after. Although two officers testified that Mitchell’s arrest was
lawful, there was no explanation why he was stopped. Like the
prosecutor, Mitchell’s defense counsel apparently was aware of the
6
United States v. Ramirez, 963 F.2d 693, 699 (5th Cir.
1992).
7
United States v. Edwards, 65 F.3d 430, 432 (5th Cir.
1995).
5
potential prejudice of jury awareness of Mitchell’s involvement in
narcotics, as counsel neither objected to the “lawfully stopped”
conclusion nor cross-examined the officers on that point.
During the course of its deliberations, the jury sent the
following note to the trial judge:
The jury would like to know why the defendant
was stopped in the first place. Why he has
[sic] under surveillance. The jury would be
better able to reach a verdict with answers to
these questions.
When the trial court expressed consternation with the
government’s failure to adduce evidence about the circumstances of
Mitchell’s arrest, the prosecutor pointed out that he had
intentionally refrained from mentioning drugs because Mitchell had
not been convicted on drug charges at the time of the trial. The
government reminded the court that evidence of the lawfulness of
Mitchell’s arrest was uncontroverted.
Mitchell urged the court not to comment on the evidence but
instead to instruct the jurors that they would have to rely on
their memories. Following a recess during which the court, in the
presence of counsel, reviewed a transcript of the relevant
testimony, the jury was instructed as follows:
In the opening statement the United States
Assistant U.S. Attorney stated as follows:
“You will learn that [Mitchell] was watched by
Agent Chuck Hustmyre and members of his
surveillance team and they lawfully stopped
him shortly after he was driving away from the
residence he was staying at on Barrington
Court.”
They lawfully stopped him. Then in the course
of the examination of Sergeant Juselin and
Agent Hustmyre,
6
“Question: Is there anything unusual about you
having your weapon drawn?”
This is at the stop. You will recall that.
“Answer: No, sir. It’s a felony stop.”
“Question: Standard practice for you to have
your weapon drawn in any arrest?”
“Answer: I will, yes.”
And even more to the point, the testimony of
Agent Hustmyre.
“Question: And on November 15, 1996, did you
and others participate in a lawful stop and
ultimate arrest of the defendant in this case,
Arthur Mitchell?”
“Answer: Yes, sir.”
The jury was then advised by the court that it was permitted
to comment on the evidence, but that any such comment was merely an
expression of opinion which could be disregarded because the jury
is the sole judge of the facts. The court stated that it intended
to comment on the evidence and that the jury could disregard the
court’s ensuing statements if it chose.
The court then told the jury that the government had
“addressed the fact that this was a lawful stop,” but that the
court was “unable to go into the exact circumstances of [the
stop]...because that it not material to the case. It is material
to the case that this was a lawful stop.” The court explained that
the government had addressed the legality of the stop in its
opening statement; that it had offered uncontroverted testimony
from two witnesses that the stop was lawful; and that the
government was not required to explain the circumstances of the
7
stop. The court stated that it was merely calling these facts to
the jury’s attention and that the jury should draw its own
conclusions from them. The court reiterated that the jury is the
sole judge of the defendant’s guilt or innocence.
Counsel for Mitchell did not object during these statements
but, after the jury had been excused to continue its deliberations,
moved for a mistrial on the grounds that the court’s comments were
“improper” and “flat out wrong.” Defense counsel argued that the
court erred by mentioning the prosecutor’s opening statement
because it was not evidence and that the court’s reference to the
opening statement had bolstered the actual evidence. Counsel
further argued that the court’s statement that the legality of the
stop had not been controverted, infringed on the presumption of
innocence and the defendant’s right to remain silent. Defense
counsel conceded, however, that he did not question that Mitchell
had been lawfully stopped.
In a federal trial the court need not merely act as a
moderator of the proceedings.8 The court may comment on the
evidence, clarify the facts presented, and elicit facts not yet
adduced.9 Even if the trial court makes an improper comment to the
jury, the error does not entitle a defendant to a new trial unless
the comment is substantial error and prejudicial to the defendant’s
8
Moore v. United States, 598 F.2d 439, 442 (5th Cir. 1979).
9
Id.
8
case.10 On appeal, we view the proceedings as a whole to determine
whether the trial judge “overstepped the limits imposed on [his]
conduct.”11 To rise to the level of error, the trial court’s
actions, “viewed as a whole, must amount to an intervention that
could have led the jury to a predisposition of guilt by improperly
confusing the functions of judge and prosecutor.”12
We are satisfied that, in the instant case, the court’s
comments in response to the jury’s question about the legality of
the stop do not rise to the level of reversible error. First,
Mitchell does not dispute that the stop was legal. Second, the
legality of the stop clearly was not material to Mitchell’s guilt
or innocence.13 Even though that district court’s statement that
the legality of the stop was material was wrong, the innaccuracy of
that statement was irrelevant to the propriety of the jury’s
verdict.
The court correctly instructed the jury that the arguments of
the attorneys were not to be considered as evidence and that the
jury was free to disregard the court’s comments on the evidence.
10
See United States v. Wallace, 32 F.3d 921, 928 (5th Cir.
1994).
11
United States v. Carpenter, 776 F.2d 1291, 1294 (5th Cir.
1985)(finding no reversible error in the district judge’s comment
that he “had yet to hear a defense”).
12
United States v. Flores, 63 F.3d 1342, 1360 (5th Cir.
1995)(internal quotation and citation omitted), cert. denied, 117
S. Ct. 87 (1996).
13
See 18 U.S.C. § 922(g)(1).
9
The jury is presumed to have followed these instructions.14
Mitchell did not request that the jury be specifically instructed
that the opening statements were not evidence, and he has failed to
show that the absence of such an instruction constituted plain
error.15 We conclude that Mitchell has failed to show that the
district court abused its discretion in denying the motion for a
mistrial.16
C. Sentence
As noted, the PSR employed Guideline § 2K2.1(c) to reach a
base offense level of 28. Guideline § 2K2.1(c)(1)(A) provides:
(1) If the defendant used or possessed any
firearm or ammunition in connection with the
commission or attempted commission of another
offense, or possessed or transferred a firearm
or ammunition with knowledge or intent that it
would be used or possessed in connection with
another offense, apply...
(A) § 2X1.1 (Attempt, Solicitation, or
Conspiracy) in respect to that other offense,
if the resulting offense level is greater than
that determined above.17
That Mitchell possessed the gun in question is no longer
challenged. To subject Mitchell to the provision of Guideline §
2K2.1(c), however, the court had to find by a preponderance of the
evidence that the handgun found under the seat of the car was
14
Richardson v. Marsh, 481 U.S. 200, 211 (1987).
15
See United States v. Dukes, 139 F.3d 469, 476 (5th Cir.)
(reviewing challenge to jury instruction for plain error when
defendant did not request a specific instruction), cert. denied,
119 S. Ct. 215 (1998).
16
See Ramirez, 963 F.2d at 699.
17
U.S.S.G. 2K2.1(c)(1)(A) (emphasis added).
10
possessed by Mitchell either (1) “in connection with the commission
or attempted commission of another offense” or (2) “with knowledge
or intent that [the gun] would be...possessed in connection with
the commission or attempted commission of another offense....”18
The “other offense” here was his possession of a distribution
quantity of crack cocaine in the locked box. With this in mind, we
turn to the facts on which the district court relied in sentencing
Mitchell.19
First, the record shows that, when he was stopped, Mitchell
had been under surveillance for an unrelated drug offense, but that
no drugs were recovered from the car he was driving to take the
three young children to school. Although the jury in the first
trial acquitted Mitchell of possessing the gun in the plastic bag
in the same room as the locked box that contained the drugs, the
evidence shows that it was his gun and was in close proximity to
the drugs on which his “other offense” sentencing enhancement is
now predicated. In contrast, there is no evidence that the car had
been used to transport those or any drugs to or from the house;
18
Id. (emphasis added). Like the PSR, the sentencing court
relied on and applied only the first of § 2K2.1(c)(1)’s two
alternative “in connection with” standards.
19
Inasmuch as the PSR credited by the district court in
assessing Mitchell’s sentence relied entirely on the first,
present tense prong (“possessing a firearm or ammunition in
connection with the commission or attempted commission of another
offense”) and did not address the second, future tense prong
(“possessed or transferred a firearm or ammunition with knowledge
or intent that it would be used or possessed in connection with
another offense”), we need not and therefore do not address the
second prong, particularly its distinguishing “knowledge or
intent” element.
11
indeed, a police search and a drug dog sniff turned up no sign of
drugs in the car, past or present. There is no evidence that the
gun had ever been in the house or that Mitchell had any intention
of —— or reason for —— taking it into the house; neither is there
evidence of there ever having been either spatial or functional
proximity of the gun in the car and the drugs in the house. Nor is
there any evidence that Mitchell had any intention of taking the
subject drugs from the house to the car.
Moreover, if there is any reasonable inference to be drawn
from the possession of any gun “in connection with the commission”
of the “other offense,” i.e., possession of the narcotics in the
locked box inside the house, that inference must be drawn relative
to Mitchell’s own gun which was found in the plastic bag, alongside
the locked box. The presence of that gun inside the house, in
immediate proximity to the locked box, begs the question, “Why
would Mitchell use or possess, or intend to use or possess, Berry’s
gun —— located as it was outside the house, under the car seat ——
in connection with possession of the drugs in the locked box inside
the house when Mitchell’s own gun was right there?” Again, the
only scintilla of evidence purporting to link Mitchell’s
constructive possession of the gun in the car to the drugs he
constructively possessed in the box inside the house is Mitchell’s
coincidental possession of keys to the box and the car keys at the
time he was stopped while driving the car —— the proverbial reed
too slender.
12
These are the discrete facts found by the district court in
connection with Mitchell’s sentencing. A factual finding is not
clearly erroneous if it is “plausible in the light of the record as
a whole.”20 A sentencing court may consider “any information which
has sufficient indicia of reliability to support its probable
accuracy.”21 The PSR is considered reliable evidence for sentencing
purposes.22 If the defendant does not submit affidavits or other
evidence to rebut the information in the PSR, the district court
may adopt its findings without further inquiry or explanation.23
But, Mitchell is not contesting the discrete facts in the PSR
that were relied by the sentencing court, i.e., the location of the
drugs, the location of the locked box, the location of his gun in
the house (for possession of which he was acquitted in the first
trial), the ownership and location of the car he was driving when
stopped, the ownership and location of the gun in the car (for
possession of which Mitchell was convicted in the second trial),
his residing in the house of another with his girlfriend, or his
possession of a key chain on which there were two keys to the
locked box and a key to the car. What Mitchell is contesting is
the conclusion drawn by the sentencing court on the basis of these
particular facts regarding the nexus between the possession of the
20
Edwards, 65 F.3d at 432.
21
United States v. Vital, 68 F.3d 114, 120 (5th Cir.
1995)(quotation and citation omitted).
22
Id.
23
Id.
13
gun in the car and the “commission or attempted commission” of
another offense —— again, an offense not charged in this case and
not an offense for which Mitchell had been convicted —— involving
the narcotics in the locked box back at the house.24
The facts we considered in United States v. Condren well
illustrate the points that distinguish it from the instant case.25
There, Condren’s home was searched pursuant to a warrant obtained
after he had sold crack cocaine to an undercover officer. The
search revealed a loaded firearm in a desk drawer and a small
amount of cocaine base and marijuana seed lying on the top of the
same desk.26 Also, at issue in Condren was Guideline § 2K2.1(b)(5),
not § 2K2.1(c)(1), with which we deal today. Still, Condren’s
discussion of the provision of the former subsection presents a
“useful, if imperfect, standard for comparison,”27 as both of those
24
Although the conclusion that the district court drew on
the basis of these discrete facts would appear to be a legal one,
or at least a mixed question of fact and law, we are bound by the
precedent of our decisions, see, e.g., United States v. Condren,
18 F.3d 1190 (5th Cir. 1994), to treat the district court’s
determination of the relationship between the firearm and another
offense as a factual finding and review that determination for
clear error rather than de novo. See id. at 1199-2000. Even so,
when we apply that standard we are left with the distinct
impression that the district court’s nexus determination in this
case is not plausible in light of the record and is thus clearly
erroneous.
25
118 F.3d 1190 (5th Cir. 1994).
26
Id. at 1191-94.
27
Id. at 1197; see also United States v. Nale, 101 F.3d
1000, 1003 (4th Cir. 1996)(relying on cases interpreting §
2K2.1(b)(5) to aid in interpreting § 2K2.1(c)’s “in connection
with” language).
14
subsections require an in-context construction of the phrase “in
connection with.”28
In Condren, the government urged us to apply the phrase “in
connection with” in a straightforward and literal fashion,
referring to the connection required between the firearm and the
other offense as “nexus.”29 The government argued that we should
find the existence of such link or connection there “because both
the gun and the drugs were in Condren’s possession at the same time
and in close proximity to one another.”30 Our panel in Condren then
elucidated the findings of fact that bore on the required
connection: (1) The firearm was found in precisely the same
location “where drugs or drug paraphernalia [w]ere stored or where
part of the drug transaction occurred”;31 (2) the gun was “in close
28
“Hence, we turn to the issue before us: the relationship
that must exist between firearm possession and the other
[offense]; specifically, the construction to be given ‘in
connection with’.” Condren, 18 F.3d at 1195.
29
Id. at 1196 n.18.
30
Id. at 1196 (emphasis added); but see United States v.
Thompson, 32 F.3d 1, 8 (4th Cir. 1994)(suggesting that physical
proximity is not required). Although we agree that such
proximity is not an indispensable element of “connection” it is
certainly an important consideration; the greater the physical
separation, the greater the attenuation, and thus the greater the
government’s hurdle to reach nexus. In fact, a thorough review
of our cases in which the needed “connection” has been found to
exist reveals that close physical proximity was found and relied
on. See, e.g., United States v. Hernandez (unpublished by
precedential), No. 91-8249 (5th Cir. Feb. 26, 1992)(finding
presence of gun and marijuana in same room); United States v.
Richardson, 87 F.3d 706, 709 n.4 (5th Cir. 1996)(gun seized by
agents while investigating drug trafficking in residence); United
States v. Gonzales, 996 F.2d 88, 92 n.6 (5th Cir. 1993)(illegally
acquired guns present in car during kidnapping).
31
Condren, 18 F.3d at 1199.
15
physical proximity to the narcotics...in a drawer of the very desk
where the drugs were found”;32 the gun was fully loaded;33 and “it
was readily available to [Condren] to protect his drug-related
activities.”34
The facts that in Condren we considered significant to the
“connection” element for purposes of Guideline § 2K2.1(b)(5) are
palpably different from those we consider today in reviewing the
sentencing court’s determination of nexus between the gun possessed
in the car and the “other offense” of drug possession in the house
for purposes of Guideline § 2K2.1(c)(1): The handgun of conviction
in Condren was in a drawer of the very same desk where the
narcotics were located, whereas geographically, spatially, and
functionally, the gun of conviction in the instant case was remote
from the crack cocaine in the locked box inside the house; and,
significantly, another gun —— one concededly belonging to Mitchell
—— was in immediate proximity of the drugs and thus available to
protect the crack, the trafficker, and the trafficking operations
—— in essence, an intervening firearm that further attenuates the
functional nexus between the gun under the seat of the car and the
contraband in the house. Unlike the firearm in Condren, the gun in
the car driven by Mitchell was never “readily available” to
Mitchell to protect his drugs or his drug-related activities.
32
Id. at 1200 (quotation and citation omitted).
33
Id.
34
Id.
16
Indeed, the only factual similarity of these two cases is that both
guns of conviction were loaded!
In addition to the foregoing factual distinctions between
Mitchell’s case and Condren’s, and the legal distinction that in
Condren we were reviewing the application of Guideline §
2K2.1(b)(5) but Mitchell’s turns on §2K2.1(c)(1), there is yet
another significant difference —— noted in dicta in Condren —— that
further calls into question the propriety of applying the latter
Guideline subsection in this case. Unlike the Guideline provision
applied in Condren, the “connection” required for applicability of
Guideline § 2K2.1(c)(1) is with the commission of another offense.
We agree with the dicta in the Condren opinion —— and adopt it by
reference as part of our holding today —— that § 2K2.1(c)’s
requirement that the firearm be possessed in connection with the
commission of another offense “mandate[s] a closer relationship
between the firearm and the other offense than that required for §
2K2.1(b)(5) purposes.”35 This is what we refer to as the functional
nexus required by § 2K2.1(c).36 Here, the gun under the car seat
was at least as attenuated functionally as it was physically from
the drugs in the locked box and Mitchell’s constructive possession
of those drugs.
35
Id. at 1197 (emphasis added).
36
See, e.g., Richardson, 87 F.3d at 709 (noting in dicta
that “[i]f the gun was present to facilitate the drug trafficking
activities that were occurring at the resident [sic], that
conduct could have been sanctioned by applying...§ 2K2.1(c).”).
17
Even though we remain mindful of the concerns in all
responsible quarters —— Congress, the Sentencing Commission, law
enforcement, and the courts —— about drug trafficking and firearms,
and fully agree with those who repeat the truism that guns are the
tools of the trade in the illicit drug industry, we do not discern
that (1) Congress, in enacting firearms legislation, (2) the
Sentencing Commission, in drafting firearms guidelines, or (3) the
courts, in interpreting both, have gone so far as to create or
recognize an ipso facto nexus rule between firearms and illicit
drugs every time a defendant who is convicted of the abuse of one
has some relationship with the other, no matter how attenuated. In
other words, there is no conclusive presumption, either statutory
or jurisprudential, that a “connection” exists automatically
between drugs and guns —— certainly not in Guideline § 2K2.1(c)(1),
given its express requirement of a connection between possession of
the firearm and commission or attempted commission of another
offense.37 We are left, therefore, with the distinct impression
that the constructive possession of the gun under the car seat by
virtue of Mitchell’s driving the car while he was taking the three
children to school, was too geographically, spatially,
functionally, and logically remote from his possession of crack
cocaine (which, for purposes of relevant conduct —— not conviction
—— Mitchell constructively possessed by virtue of those drugs being
located in the locked box inside the house where he and his
girlfriend were residing) to satisfy the requirement of a
37
See supra n.19.
18
cognizable linkage between possession of the gun and “commission or
attempted commission of another offense.” Cumulatively, the two
are simply too attenuated to permit nexus! Specifically, the mere
coincidence of keys to the locked box and to the car on Mitchell’s
key ring is too minimal to bridge the attenuated nexus gap,
particularly when viewed in light of the presence of an intervening
firearm, owned by Mitchell, in much closer proximity to the drugs
than was the gun of conviction. In essence, under the particular
facts of this case, the chasm of nexus between the gun and the
drugs requires a leap of legal logic too great to make the required
connection. We are constrained to conclude that the sentencing
court’s finding of the required connection was clearly erroneous.
III.
CONCLUSION
For the reasons set forth in section II B. of this opinion, we
affirm Mitchell’s conviction, notwithstanding the remarks made to
the jury by the district court in response to the question
propounded to the court during the course of jury deliberations.
But, for the reasons set forth in section II C. above, regarding
Mitchell’s sentence —— specifically, the application of Guideline
§ 2K2.1(c) —— we discern a clear error in the finding of the
required connection between Mitchell’s possession of the firearm in
the car and his possession of the drugs in the locked box back in
the house. As the offense level produced was such that a
significant difference in Mitchell’s sentencing range resulted, the
error cannot be considered harmless. These conclusions, in turn,
leave us no choice but to vacate Mitchell’s sentence and remand the
19
case to the district court for resentencing in a manner consistent
with this opinion.
Conviction AFFIRMED; Sentence VACATED; and Case REMANDED for
resentencing.
20
United States v. Mitchell
Court: Court of Appeals for the Fifth Circuit
Date filed: 1999-01-29
Citations: 166 F.3d 748
Copy CitationsCombined Opinion