Skip to main content

Guidelines enhancement for bartering drugs for gun

In US v. Charles Navarro, No. 05-4102 (3d Cir. 2/14/06) (click to link) the 3rd Circuit upheld a 4-level enhancement under USSG section 2K2.1(b)(5) for possession of a gun "in connection with another felony offense."

Navarro, who was charged with being a felon in possession of a gun, had told police he had bartered three rocks of crack cocaine for the gun. At sentencing, the defense objected to a 4-level enhancement under USSG 2K2.1(b)(5) for possession of the gun in connection with a felony -- drug trafficking -- because in the context of the bartering arrangement here, the drug delivery was not sufficiently distinct from the offense of possession of the gun. The district court applied the enhancement.

On appeal, the Circuit interpreted two prior cases, Fenton, 309 F.3d 825 (3d Cir. 2002), and Lloyd, 361 F.3d 197 (3d Cir. 2004), in an effort to "distill" a rule applicable to a bartering situation such as this one. The Circuit concluded that these cases taken together establish a two-part test: 1) "Whether the predicate offense and the firearms offense each have an element not shared by the other." (The Blockburger test.) 2) "Whether more than mere possession of the firearm (such as brandishment or other use) was an integral aspect of the predicate offense." If the answer to both is yes, the enhancement applies.

Applying this test here, the Circuit found first that drug delivery and firearms possession each have an element not shared by the other. Second, the Circuit found that since drug dispensation does not require an exchange of something of value, Navarro's possession of the firearm was not an integral aspect of the offense. The Court thus concluded that the enhancement applied; under this test, the drug dispensation was sufficiently distinct to count as "another felony offense."

Judge Bright (from the Eighth Circuit, sitting by designation) wrote a persuasive dissent. As Judge Bright points out, "In this case, firearm possession was integral to Navarro's drugs for guns exchange" since this exchange was the means through which he came into possession of the gun. The gun was not brandished or used in any other way beyond mere possession, and thus the facts do not meet the second part of the test. Thus, Judge Bright would hold that the enhancement should not have applied.


Popular posts from this blog

Double Jeopardy Claim Falls Short on Deferential Habeas Review

In the habeas matter of Wilkerson v. Superintendent Fayette SCI, Nos. 15-1598 & 15-2673, the Third Circuit defers to a state court determination that the defendant’s conviction of both an attempted murder count and an aggravated assault count based on the same altercation did not violate the Double Jeopardy Clause.
The evidence was that during the altercation, the defendant both struck the victim in the head with a gun and shot him in the chest. The Pennsylvania Superior Court upheld consecutive sentences on the theory that the evidence was sufficient to permit a jury to find the striking to support one count and the shooting the other. Despite the jury instructions’ and verdict form’s failure to require each of these discrete findings, the Third Circuit holds that the state court’s reasoning was sound enough to withstand deferential review the AEDPA’s “clearly established Federal law” limitation. “[W]here the jury instructions were merely ambiguous and did not foreclose the jury…

Jurisdiction for revocation of supervised release where revocation also imposed in other District on concurrent case and local Probation Office was not supervising releasee

In United States v. Johnson, 2017 WL 2819210 (June 30, 2017),, the Third Circuit rejected two jurisdictional challenges to a revocation proceeding in one District where the defendant was also concurrently supervised and revoked in another District. For separate federal offenses in the Middle District of Florida and Virgin Islands, Johnson was serving two concurrent terms of supervised release. He was living in and supervised by the Middle District of Florida and had no contact with the Probation Office in the Virgin Islands. He committed a new offense in Florida and the Middle District revoked his supervised release. Johnson challenged revocation proceedings in the Virgin Islands. The Third Circuit found that the Virgin Islands maintained jurisdiction. It joined the Second and Fifth Circuits in finding that concurrent terms of supervised release do not merge: the term of supervised release in the Virgin Islands was not constructively d…

Mailing Threatening Communications is a Crime of Violence and a Judicial Proposal for Reform of the Categorical Approach

In United States v. Chapman, __F.3d__, No. 16-1810, 2017 WL 3319287 (3d Cir. Aug. 4, 2017), the Third Circuit held that mailing a letter containing any threat to injure the recipient or another person in violation of 18 U.S.C. § 876(c) qualifies as a crime of violence for the purposes of the career offender enhancements of the Sentencing Guidelines Manual § 4B1.1(a).The Court acknowledged in a footnote that the analysis is the same for a violation of 18 U.S.C. § 871, threats against the president.

The Court began its analysis by reviewing the definition of “crime of violence” and specifically the meaning of the words “use” and “physical force.”Quoting United States v. Castleman, 134 S. Ct. 1405 (2014), and Tran v. Gonzales, 414 F.3d 464 (3d Cir. 2005), it defined “use” as “the intentional employment of force, generally to obtain some end,” which conveys the notion that the thing used “has become the user’s instrument.” The Court confirmed the definition of “physical force” as “force ca…