Friday, October 01, 2021

Spatial proximity of firearm to drugs is not necessary for enhancement under U.S.S.G. § 2D1.1(b)(1)

            Section 2D1.1(b)(1) provides for a Guidelines enhancement when “a dangerous weapon (including a firearm) was possessed.” Application note 11 further provides: “The enhancement should be applied if the weapon was present, unless it is clearly improbable that the weapon was connected with the offense.”

            In U.S. v. Denmark, 20-2267, 2021 WL 4127257 (3d Cir. Sept. 10, 2021), the Court held that physical proximity between drugs (or paraphernalia) and guns is only one of the four factors to consider in making the “clearly improbable” determination. 

              Here, the defendant acted as a middle man in arranging meth deals by video calls (from home), and by delivering meth packages to the post office.  Law enforcement recovered firearms and paraphernalia, but no drugs from his home.  The guns and paraphernalia were in different rooms on different floors.  At sentencing, the defense objected to the firearm enhancement, arguing that the firearms could not have been connected with the offense because the meth had never been at the residence.  He argued that for the enhancement to apply, the guns needed to be present at the crime of transporting the meth to the post office.

           The Court reviewed the “mechanics” of applying the enhancement as set forth in United States v. Napolitan, 762 F.3d 297 (3d Cir. 2014).  The government must first prove, by a preponderance of the evidence, only that the defendant possessed the weapon. The burden then shifts to the defendant to “demonstrate that the connection between the weapon and the drug offense was clearly improbable,” with no burden on the Government to prove a relationship between the weapons and the drugs.  Rather, the “general rule” is that the enhancement should be applied if a firearm was present.  

          In determining whether it is clearly improbable that a weapon was connected with a drug offense, the Court looks to four factors, only one of which is proximity: “(1) the type of gun involved, with clear improbability less likely with handguns than with hunting rifles, (2) whether the gun was loaded, (3) whether [it] was stored near the drugs or drug paraphernalia, and (4) [ ] whether [it] was accessible.”

          Although the district court failed to make express findings on whether defendant met the clear improbability standard, the Court found nothing in the record to dispel the presumption of a connection.  In the house were two handguns, a semi-automatic assault rifle, and a shotgun.  One handgun and several magazines were loaded.  Although there were no drugs in the house, law enforcement observed Denmark make a drug deal over FaceTime from his home.  Finally, the firearms were sufficiently accessible.  Because none of the four factors weighed in favor of the defense, application of the enhancement was affirmed.

(Case reviewed and post written by Christy Martin)

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