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Mere Presence of Firearm Not Sufficient to Warrant Four-level Enhancement under U.S.S.G § 2K2.1(b)(6)

In United States v. West, No. 09-2860 (3d Cir., April 29, 2011), the defendant challenged the four-level enhancement applied to his sentence for possession of a stolen firearm pursuant to U.S.S.G. § 2K2.1(b)(6). He also challenged the sentencing court’s finding that a recent subsequent arrest for gun and drug possession was relevant conduct to the stolen firearm offense.

In West, the defendant was arrested on two separate occasions in 2007. During a traffic stop on February 28, 2007, police found cash, a small undetermined amount of marijuana and a gun in the glove compartment. Another firearm was discovered later in a backpack in the trunk of the car. The defendant admitted possession of the cash and marijuana but denied possession of the firearms. Police later determined that the gun found in the trunk had been stolen. On July 27, 2007, a firearm was discovered in the rented apartment of the defendant’s girlfriend during a routine fire-code inspection. An undetermined amount of cash and marijuana also were discovered during a search of the apartment. Police later determined that this gun also had been stolen. The defendant subsequently pled guilty to possession of the gun discovered in the trunk of his car in February, but refused to plead guilty to possessing any other firearms.

The District Court ruled that the defendant possessed, either actually or constructively, both the firearm discovered on the trunk of the car in February and the gun found in the apartment in July. However, the court ruled that the defendant did not possess the gun found in the glove compartment of his car. The court concluded that the close proximity of the firearms emboldened the defendant’s possession of the marijuana on both occasions. The court determined that the defendant’s possession of marijuana was a felony offense and that his possession of the firearms facilitated his commission of the felony drug offense. Consequently, the court applied the four-level enhancement provided under U.S.S.G. § 2K2.1(b)(6) for possession of a firearm in connection with another felony offense. The court also determined that the July gun possession was relevant conduct of the February gun possession, pursuant to U.S.S.G. § 1B1.3.

The Third Circuit disagreed. Initially, the Third Circuit recognized that the relevant conduct standard requires a showing that the offenses at issue are sufficiently similar, regular and temporally proximate. The court determined that while the February and July incidents were close temporally, the “underdeveloped factual record” precluded it from concluding that the offenses were sufficiently similar and regular. Specifically, the court found that the presence of cash and a small undetermined amount of marijuana near the firearms in both incidents, alone, merely showed that the offenses were similar but isolated and unrelated events. The District Court’s finding otherwise was clearly erroneous.

The Third Circuit also determined that the phrase “in connection with,” as used in § 2K2.1(b)(6), means that the firearm facilitates or has the potential to facilitate the felony offense. In recognizing the distinction between drug trafficking and simple drug possession offenses, the court interpreted Application Note 14 of § 2K2.1 to provide that, while the firearm necessarily facilitates a drug trafficking offense, the sentencing court specifically must find that the firearm facilitated a simple drug possession offense. The Third Circuit concluded that, where the predicate offense is simple drug possession, the mere proximity of the guns to the drugs is insufficient to establish the facilitation requirement under § 2K2.1(b)(6). The Third Circuit ultimately ruled that the sparsity of facts in the record did not support the sentencing court’s conclusion that the firearm found in the trunk of the car facilitated the defendant’s possession of the marijuana found in the glove compartment. The court reasoned that simultaneous possession of the gun and drugs is not enough. The Third Circuit remanded the case to allow the District Court to make additional findings regarding the facilitation requirement under § 2K2.1(b)(6).

Comments

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