Tuesday, August 17, 2021

Rebuttable presumption that firearm is used or possessed “in connection with” a drug-trafficking offense if the firearm is found in close proximity to drugs or related items, justifying a four-level sentencing enhancement under U.S.S.G. § 2K2.1(b)(6)(B)

In United States v. Lesandro Perez,  https://www2.ca3.uscourts.gov/opinarch/191469p.pdf, Appeal No. 19-1469, --- F.4th ---, 2021 WL 3087672 (3d Cir. July 22, 2021), the Third Circuit created a rebuttable presumption that a firearm is used or possessed “in connection with” a drug-trafficking offense if the firearm is found in close proximity to drugs or related items, justifying a four-level sentencing enhancement under U.S.S.G. § 2K2.1(b)(6)(B).

Perez sold two firearms to an undercover officer. During the transaction, the undercover officer observed drugs and drug paraphernalia. Perez pled guilty to sales of guns and drugs. At sentencing, the District Court applied the four-level enhancement in U.S.S.G. § 2K2.1(b)(6)(B), which applies when a defendant “used or possessed any firearm…in connection with another felony offense.” When the other felony offense is drug trafficking, Note 14(B) creates a special rule that the enhancement applies as long as the firearm “is found in close proximity to drugs, drug-manufacturing materials, or drug paraphernalia.” § 2K2.1 cmt. n.14(B). The enhancement raised the guideline range from 84 to 105 months to 121 to 151 months.

Perez argued the enhancement did not apply because he possessed the firearms to sell them, not in connection with a drug-trafficking offense. He further argued that 2K2.1(b)(6)(B) itself is unambiguous and therefore should be controlling rather than the Guidelines’ commentary, Note 14(B). The Third Circuit reversed because the District Court was under the false impression that the enhancement was automatic, but disagreed that the guideline was unambiguous.

First, the Third Circuit decided the commentary here deserved deference. Under Kisor v. Wilkie, 139 S. Ct. 2400 (2019), a court should afford deference to the Guidelines’ Commentary when (1) the Guidelines’ language is ambiguous, (2) the Commentary itself is reasonable, and (3) the character and context of the Commentary entitle it to controlling weight.

(1)   Here, the phrase “in connection with” is notable for its vagueness: the Sentencing Commission added Note 14B precisely to address a growing conflict among circuits about whether that language encompassed cases in which the firearm’s presence was merely accidental or coincidental.

(2)   Note 14B was reasonable based on Supreme Court and Third Circuit precedence. In Smith v. United States, 508 U.S. 223 (1993), the Supreme Court clarified that the defendant’s use of the firearm must have some purpose or effect with respect to the drug trafficking crime; its presence or involvement cannot be the result of accident or coincidence. In United States v. Loney, 219 F.3d 281 (3d Cir. 2000), the Third Circuit held that the “in connection with” requirement would exclude situations in which “the presence of the gun was merely ‘accidental,’ had no ‘purpose or effect with respect to’ [the defendant’s] drug offense, or did not ‘facilitate or have the potential of facilitating’ [the defendant’s] drug dealing.”  In United States v. West, 643 F.3d 102 (3d Cir. 2011), the Third Circuit held that “in a simple possession case, the sentencing court must make a specific finding that the firearm facilitated or had the potential of facilitating possession of the drugs.” 

      Thus, “physical proximity alone may be insufficient in some cases” to establish that the firearm had the potential to facilitate drug activity and (2) the Guideline excludes those cases in which the firearm’s presence is “the result of accident or coincidence.” The Court concluded that the Note incorporates certain “boundaries” laid out in Smith, and those boundaries require a relationship between drug-trafficking activities and firearms under Loney. Hence the enhancement does not apply merely because Perez possessed firearms and drugs together in the same room.

Then the Court created a rebuttable presumption that a firearm is used or possessed “in connection with” a drug-trafficking offense if the firearm is found in close proximity to drugs or related items. A defendant may present evidence that the firearm had no relationship to drug-related activities and thus did not have the potential to facilitate a drug-trafficking offense. This Court rejected dicta from other Circuits that the enhancement “necessarily” or “automatically” applies when drugs and guns are physically near each other, as contrary to Loney and an  impermissible “expan[sion of] the substantive law set forth in the [G]uidelines themselves.” Here, because Perez was not given a chance to prove that the firearm’s presence was mere accident or coincidence (rebutting the presumption), the Third Circuit vacated the District Court’s judgment and sentence and remanded for the Court to reconsider whether there was a relationship between Perez’s firearms and his drug-trafficking activities.

Judge Bibas issued a concurring opinion that Note14B is invalid as written because it substitutes proximity for a connection to a drug crime. He criticized the majority for “misreading the Note to create a rebuttable presumption and then defers to its own creation.” The rebuttable presumption creates problems by putting the burden of proof on the defendant, forcing him to disprove a connection between the gun and the drugs. (1) The burden is on the government to prove, by preponderance of the evidence, that possession of gun was “in connection with” drug offense, (2) the “in connection with” element may be proved by way of inference, but (3) advancing a valid inference is part of the government's burden of proof.

 

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