United States v. Coleman

RECOMMENDED FOR FULL-TEXT PUBLICATION

Pursuant to Sixth Circuit Rule 206

File Name: 10a0373p.06

UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

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Plaintiff-Appellee, -

UNITED STATES OF AMERICA,

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No. 09-5052

v.

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Defendant-Appellant. -

ANTONIUS COLEMAN,

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Appeal from the United States District Court

for the Western District of Tennessee at Memphis.

No. 08-20137-001—Samuel H. Mays, Jr., District Judge.

Argued: October 20, 2010

Decided and Filed: December 10, 2010

Before: GILMAN and GRIFFIN, Circuit Judges; ROSE, District Judge.*

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COUNSEL

ARGUED: Tyrone Jemal Paylor, OFFICE OF THE FEDERAL PUBLIC DEFENDER,

Memphis, Tennessee, for Appellant. Daniel T. French, ASSISTANT UNITED STATES

ATTORNEY, Memphis, Tennessee, for Appellee. ON BRIEF: Tyrone Jemal Paylor,

OFFICE OF THE FEDERAL PUBLIC DEFENDER, Memphis, Tennessee, for

Appellant. Daniel T. French, ASSISTANT UNITED STATES ATTORNEY, Memphis,

Tennessee, for Appellee.

ROSE, D. J., delivered the opinion of the court, in which GRIFFIN, J., joined.

GILMAN, J. (pp. 15–18), delivered a separate opinion concurring in part and dissenting

in part.

*

The Honorable Thomas M. Rose, United States District Judge for the Southern District of Ohio,

sitting by designation.

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No. 09-5052 United States v. Coleman Page 2

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OPINION

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ROSE, District Judge. On September 10, 2008, Antonius Coleman (“Coleman”)

pled guilty to two counts of being a felon in possession of ammunition. As a condition

for the plea, the United States agreed, subject to certain conditions, to recommend full

acceptance of responsibility and to dismiss a possession-of-marijuana count. At

sentencing, Coleman was given a four-level enhancement for possessing 23 live rounds

of ammunition that facilitated or had the potential to facilitate a felony distribution of

marijuana. Coleman was given a two-level reduction for acceptance of responsibility,

but the United States declined to make a motion for the third-level of reduction for

acceptance of responsibility.

Coleman appealed the four-level enhancement for possessing the 23 rounds of

live ammunition and the United States’ refusal to make a motion for a third-level of

reduction for acceptance of responsibility to this Court. For the following reasons, we

AFFIRM Coleman’s sentence.

I. BACKGROUND

The facts underlying the relevant criminal conduct in this case are not in dispute

and are reflected in the Presentence Report (the “PSR”). On January 4, 2008, at

approximately 9:50 p.m., Memphis Police Department Officers (the “Officers”)

responded to a 911 hang-up call at 4599 Scott Crossing, Apt. #4, a residence located in

Memphis, Tennessee. After arriving at the residence and knocking on the door several

times, the Officers encountered Amanda Hensley (“Hensley”) and her boyfriend

Coleman, the Defendant-Appellant.

Hensley reported to the Officers that she had attempted to call 911 because

Coleman had assaulted her and had refused to let her leave. She also said that, after a

fight the previous evening, she had ended her relationship with Coleman and left the

residence. She returned at approximately 2:00 a.m. the next morning.

No. 09-5052 United States v. Coleman Page 3

When she returned early on January 4, 2008, Hensley said she encountered

Coleman, who was waiting for her in the dark. Coleman prevented her from leaving the

residence by, among other things, barricading the doors with furniture and confiscating

her cellular phone and car keys. Hensley also said that Coleman had written derogatory

words about her on the walls of the residence and that Coleman had physically assaulted

her by pushing her and pulling her hair.

After speaking with Hensley at the door, the Officers entered the apartment and

observed that it was in disarray. The Officers also observed, in plain view, a mirror with

marijuana residue on it, several individual plastic baggies of marijuana and one live

round of .380 caliber ammunition. Based upon these observations, Coleman was taken

into custody and removed from the apartment.

After Coleman was taken into custody, Hensley signed a consent-to-search form.

Upon searching the residence, the Officers recovered a large paper bag filled with

marijuana and a box of .380 caliber ammunition with 22 live rounds from a drawer

containing Coleman’s underwear and socks. The Officers also recovered two digital

scales covered with marijuana residue from the kitchen and $1,820 in cash from

Coleman’s person. Overall, the Officers recovered 23 live rounds of .380 caliber

ammunition and 71.7 grams of marijuana from the apartment. Based on this recovery,

Coleman was formally arrested.

Following Coleman’s arrest, Hensley gave a written statement that Coleman had

threatened and assaulted her in the past and that she had seen Coleman sell drugs and

pills. Coleman also gave a written statement in which he denied possessing the

ammunition or selling the marijuana recovered.

On April 15, 2008, Coleman was indicted by a grand jury that charged him with

two counts of being a felon in possession of ammunition in violation of 18 U.S.C.

§ 922(g) and one count of possession with intent to distribute marijuana in violation of

21 U.S.C. § 841(a)(1). On September 10, 2008, a change-of-plea hearing was held

during which Coleman pled guilty to the two counts for possession of ammunition. As

a condition of the plea, the United States agreed, subject to certain conditions, to

No. 09-5052 United States v. Coleman Page 4

recommend full acceptance of responsibility and to dismiss count three for possession

of marijuana with the intent to distribute.

In Coleman’s Plea Agreement, the United States agreed to recommend full

acceptance of responsibility credit pursuant to U.S. Sentencing Guidelines Manual

(“U.S.S.G.”) § 3E1.1 (2003) with the following caveat:

The Defendant understands that if the United States receives information

between the signing of this agreement and the time of the sentencing that

the Defendant has previously engaged in, or if he engages in the future,

in conduct inconsistent with the acceptance of responsibility, including,

but not limited to, participation of any additional criminal activities

between now and the time of sentencing, this position could change.

Prior to sentencing, a PSR was prepared in which Coleman was initially assigned

a base offense level of 24 and a criminal history category of IV. Coleman’s base offense

level was then increased four levels to 28 for possession of any firearm or ammunition

in connection with another felony offense. The base offense level was then reduced by

three for acceptance of responsibility. Coleman’s offense level pursuant to the PSR,

then became 25. Based upon a total offense level of 25 and a criminal history category

of IV, the PSR recommended that Coleman was in an applicable guideline range of 84

to 105 months of imprisonment.

On November 26, 2008, the United States indicated that it had no objections

either to the facts or calculations in the PSR. On December 22, 2008, Coleman objected

to the four-level enhancement for possession of ammunition in connection with another

felony offense. On December 24, 2008, an Addendum to the PSR concluded that a four-

level enhancement was appropriate.

On December 30, 2008, a sentencing hearing was held. During this hearing,

Hensley and Kimberly Houston (“Houston”) one of the Officers, testified. When making

contact with Hensley the day prior to the sentencing hearing, the United States learned,

for the first time, that Coleman, prior to entering his guilty plea on September 10, 2008,

had contacted Hensley multiple times using phones at the federal detention facility.

Hensley told the United States that, during one of those phone conversations, Coleman

No. 09-5052 United States v. Coleman Page 5

had stated, “you got me f--ked up” and “you are not going to be happy out there and I’m

in here f--ked up.” The United States then filed an amended position paper on the PSR

requesting that Coleman’s offense level be enhanced three-levels for obstruction of

justice.

At the sentencing hearing, the court determined that under the plain language of

U.S.S.G. § 2K2.1(b)(6) (2007) and Application Note 14(a), the 23 live rounds of

ammunition facilitated or had the potential of facilitating a felony distribution of

marijuana by Coleman. A four-level enhancement was given by the court.

The court then turned to the three-level enhancement for obstruction of justice

proposed by the United States. The United States offered Hensley’s testimony that

described her relationship with Coleman and described various threats that Coleman had

made to her. Hensley also provided details about the phone calls that she received from

Coleman while he was incarcerated. She testified that she had been willingly conversing

with Coleman for several months but that, when she refused to provide him with names

and addresses of other criminals, he became angry and threatened her. Hensley also

testified that, when making the calls, Coleman would instruct her not to use his name and

would use another inmate’s cell phone code or use three-way phone calls to avoid

detection on the recordings. Hensley further testified that, after talking with Coleman,

she believed that he was threatening her, which led her to change her phone number.

She also said that she did not want to testify at the sentencing hearing because Coleman

“might talk to somebody that would want to do something” to her and her daughter.

The United States then called Officer Houston who testified that she had

responded to several domestic violence calls at Hensley’s residence before the 911 call

and that, after Coleman was taken into custody on January 4, 2008, Coleman instructed

Hensley not to talk and threatened to kill her. Houston also testified that, when she

spoke to Hensley immediately prior to the sentencing hearing, Hensley had said that “she

was scared about testifying because the [D]efendant, Mr. Coleman, had called her

making threats and was threatening her life.” Houston described Hensley as “nervous

and scared.”

No. 09-5052 United States v. Coleman Page 6

The United States then argued that Coleman’s threats were an attempt to scare

her into not testifying at any future hearing or trial. The United States further argued

that Coleman’s attempts to avoid detection on the detention-facility phones should also

be considered. The court, however, rejected these arguments and determined that

Coleman’s conduct did not rise to the level of obstruction of justice.

The United States declined to make a motion for the third-level of acceptance of

responsibility based upon the testimony of Hensley and Houston and a reading of the

portion of the plea agreement addressing acceptance of responsibility. The court then

awarded Coleman a two-level reduction for acceptance of responsibility, which resulted

in a total offense level of 26 and a criminal history category of IV. Accordingly,

Coleman was assigned a new applicable guideline range of 92 to 115 months.

Coleman was sentenced to 92 months of imprisonment and three years of

supervised release on the two counts of possession of ammunition. As a condition of the

plea, the United States dismissed count three of the indictment for possession of

marijuana.

II. JURISDICTION

This is an appeal of a sentence in a criminal case. A Notice of Appeal was timely

filed and this appeal is taken pursuant to 18 U.S.C. § 3742.

III. STANDARD OF REVIEW

This Court reviews a district court’s sentence for both procedural and substantive

unreasonableness. United States v. Bowers, 615 F.3d 715, 725 (6th Cir. 2010).

Procedural unreasonableness includes “selecting a sentence based on clearly erroneous

facts ….” Id. (quoting Gall v. United States, 552 U.S. 38, 51 (2007). Substantive

unreasonableness exists where taking into account the totality of the circumstances, the

factors found in § 3553(a), on a whole, do not justify the sentence imposed. Id. (citing

Gall, 552 U.S. at 51).

No. 09-5052 United States v. Coleman Page 7

When reviewing a sentence, this Court reviews the district court’s factual

findings for clear error. United States v. Richardson, 510 F.3d 622, 625 (6th Cir. 2007).

Whether the facts found warrant the application of a particular guideline provision is a

legal question reviewed de novo. Id.

When a defendant objects or raises an issue before the district court, the issue is

reviewed on appeal for an abuse of discretion. United States v. Simmons, 587 F.3d 348,

353 (6th Cir. 2009). When reviewing for an abuse of discretion, the appeals court gives

deference to the district court’s decision. Hardyman v. Norfolk & Western Railway Co.,

243 F.3d 255, (6th Cir. 2001). Only if the appeals court is firmly convinced that the

district court erred is there a abuse of discretion. Id.

When a defendant fails to object or raise an issue before the district court, the

issue is reviewed on appeal for plain error keeping in mind “that the plain error

exception to the contemporaneous-objection rule is to be used only in those

circumstances in which a miscarriage of justice would otherwise result.” United States

v. Morrow, 977 F.2d 222, 226 (6th Cir. 1992) (citation and internal quotation marks

omitted). To reverse for plain error, a reviewing court must conduct four distinct

analyses: (1) determine whether an error occurred in the district court; (2) if an error

occurred, determine whether it was plain; (3) determine whether the plain error affected

a substantial right; and (4) if all three exist, decide whether the plain error affected the

fairness, integrity or public reputation of the judicial proceeding. United States v.

Thomas, 11 F.3d 620, 629-30 (6th Cir. 1993). Finally, a plain error is one that is clear

or obvious under current law, and an error that affects a substantial right is an error that

affected the outcome of the district court proceedings. Id.

IV. DISCUSSION

Coleman raises two challenges to his sentence. We address each in turn.

No. 09-5052 United States v. Coleman Page 8

A. Sentence Enhancement

Coleman first argues that his possession of ammunition alone did not have the

potential for facilitating his concomitant drug possession felony because simply

possessing a bullet without a gun does not aid in the commission of drug possession.

Thus, according to Coleman, his sentence should not have been enhanced pursuant to

U.S.S.G. § 2K2.1(b)(6).

The government has the burden of proof to show a factual predicate for this

sentencing enhancement by a preponderance of the evidence. United States v. Ennenga,

263 F.3d 499, 503 (6th Cir. 2001). The relevant facts on this issue have been shown by

the United States and are not in dispute. Coleman was in possession of 23 live rounds

of .380 caliber ammunition and was in possession of illegal drugs for the purpose of

distribution. Further, the ammunition was found in close proximity to the drugs. The

issue to be decided is whether or not ammunition standing alone can have the potential

to facilitate the felony distribution of drugs.

The relevant Sentencing Guideline relates to increases to the base offense level

for unlawful receipt, possession or transportation of firearms or ammunition and

provides that, “[i]f the defendant used or possessed any firearm or ammunition in

connection with another felony offense…, increase by 4 levels.” U.S.S.G. § 2k2.1(b)(6).

(Emphasis added.) Application Note 14(A) to this Sentencing Guideline clarifies the

meaning of “in connection with” by providing that subsection (b)(6) applies in general

“if the firearm or ammunition facilitated or had the potential of facilitating another

felony offense or another offense, respectively.” (Emphasis added.)

Thus, applying U.S.S.G. § 2K2.1(b)(6) and Note 14(A) thereto, Coleman should

receive a four-level enhancement if he possessed any firearm or ammunition in

connection with the drug trafficking.1 Coleman does not dispute the drug-trafficking

1

U.S.S.G. § 2K2.1(b)(6) applies based upon its plain language. The dissent’s interpretation of

U.S.S.G. § 2K2.1(b)(6) appears to ignore the plain language. The dissent also relies upon an “implication”

that it finds in Note 14(B). However, the majority finds no such implication in Note 14(B) which applies

when a firearm is found, which is not the case here.

No. 09-5052 United States v. Coleman Page 9

charge or that the ammunition was found in proximity to illegal drugs and drug

paraphernalia. He does, however, dispute that the ammunition, alone, could have been

used to facilitate a drug transaction.

A Judge of this Court has, referring to Webster’s Third New International

Dictionary, defined “facilitate” for purposes of U.S.S.G. § 2K2.1(b)(6) as to make easier

or less difficult. Richardson, 510 F.3d at 629 (McKeague concurring). Thus, for

U.S.S.G. § 2K2.1(b)(6) to apply, Coleman’s possession of the ammunition in close

proximity to the drugs must make drug trafficking easier or less difficult or have the

potential to make drug trafficking easier or less difficult.

There is no binding caselaw directly on point. However the Eleventh Circuit has

upheld a district court that applied U.S.S.G. § 2K2.1(b)(6) where only ammunition was

found. See United States v. Chappell, 334 F. App’x 970, 973 (11th Cir. 2009)

(unpublished) (holding that a district court is entitled to find that ammunition alone had

the potential to facilitate felony possession of methamphetamine).

U.S.S.G. § 2K2.1(b)(6) is most often at issue in cases in which a defendant is

found to possess a firearm and ammunition. When determining whether a defendant’s

possession of a firearm is “in connection with” drug trafficking, this Court has adopted

the “fortress theory.” Richardson, 510 F.3d at 626. The “fortress theory” provides “that

a connection is established if it reasonably appears that the firearms found on the

premises controlled or owned by a defendant and in [the defendant’s] actual or

constructive possession, are to be used to protect the drugs or otherwise facilitate a drug

transaction.” Id. (quoting Ennenga, 263 F.3d at 503 (6th Cir. 2001)). Further, U.S.S.G.

§ 2K2.1(b)(6) “applies if the firearm had some emboldening role in [a] defendant’s

felonious conduct.” United States v. Angel, 576 F.3d 318, 321 (6th Cir. 2009)(quoting

Ennenga, 263 F.3d at 503)) (internal quotation marks omitted; alteration in original).

Applying the “fortress theory” reasoning, Coleman’s possession of ammunition

alone facilitated or had the potential to facilitate felony drug trafficking. Coleman’s

possession of the ammunition reduced or had the potential to reduce the difficulty of

completing the felony drug trafficking. Not only was the ammunition easily accessible

No. 09-5052 United States v. Coleman Page 10

and stored in close proximity to the illegal drugs, but the ammunition emboldened

Coleman in the knowledge that he was one step closer to having a fully-loaded firearm

to protect himself and his illegal drugs, and the ammunition potentially served notice to

potential buyers that Coleman was a step closer to having a fully-loaded firearm.

In addition to applying this Court’s “fortress theory,” a plain reading of U.S.S.G.

§ 2K2.1(b)(6) and Application Note 14(A) supports a four-level enhancement for

Coleman. Both U.S.S.G. § 2k2.1(b)(6) and Application Note 14(A) refer to firearms and

ammunition using the disjunctive “or.” If U.S.S.G. § 2K2.1 required that a firearm

always be present in order for ammunition to facilitate, this section would use “and”

between the terms firearm and ammunition or would only require that a firearm be

present.

Coleman offers several arguments on this issue. First, he argues that there is no

clear definition within the Guidelines of the meaning of “facilitated, or had the potential

of facilitating.” This is accurate. However, the Court has referred to Webster’s

dictionary here as it has in many other cases for a definition of “facilitate.”

Coleman next argues that the underlying justification for the “fortress theory” is

less compelling when confronted with a defendant who was only in possession of

ammunition because it is unclear how ammunition alone can create a heightened

possibility of danger during drug transactions. However, without the ammunition, an

alleged drug dealer would have to take a step that otherwise would not have to be taken -

obtaining ammunition for a gun. Thus, having the ammunition facilitates or makes

easier the use of a firearm in a felony drug transaction.

Coleman next argues that the Guideline provision at issue here is a sentencing

enhancement that was created in response to a concern about the increased risk of

violence when firearms are used or possessed during the commission of a felony. See

e.g. United States v. Hurst, 228 F.3d 751, 753 (6th Cir. 2000). The presence of

ammunition increases the risk of violence because it puts the owner of the ammunition

one step closer to having a loaded firearm. Thus, the Guideline is clear that an

No. 09-5052 United States v. Coleman Page 11

enhancement is in order for the presence of a weapon or ammunition. The Guideline

does not require the presence of a weapon and ammunition.

Coleman next argues that violence was not more likely to occur in the present

situation because ammunition without a firearm is merely a static object that can do little

or no harm to anyone. First, the Guideline does not talk about whether or not violence

is more likely to occur, and its purpose is to address a concern about the increased risk

of violence. The Sentencing Guideline addresses the presence of a weapon or

ammunition. Also, applying Coleman’s reasoning, an unloaded weapon would be a

static object so only a loaded weapon could result in a four-level enhancement which is

an absurd result and not the result intended by the Sentencing Guidelines.

Coleman’s next argument is that the district court’s application of the

“emboldening” test is unpersuasive and an inappropriate “theoretical leap” because the

district court’s conclusion of exactly how the possession of ammunition alone would

facilitate or embolden him was based upon pure speculation as to what might have

happened in the future. However, the district court’s reasoning was based upon present

and unchallenged facts as required by the applicable Guideline. The speculation, if there

was any, was but a mere example of why the applicable Guideline says weapon or

ammunition instead of weapon and ammunition.

Coleman’s final argument is that ammunition alone has no potential for making

any other felony easier or less difficult to complete because, without a firearm,

ammunition can do nothing. Without accepting Coleman’s premise that ammunition

can do nothing without a firearm, this Court has already determined above that

ammunition can facilitate the commission of a felony.

In conclusion, based upon an application of the “fortress theory” and a plain

reading of U.S.S.G. § 2K2.1(b)(6) and Application Note 14(A), the four-level

enhancement given to Coleman was legally correct. Further, the Eleventh Circuit has

already upheld a district court’s application of the four-level enhancement where only

No. 09-5052 United States v. Coleman Page 12

ammunition was found. Finally, the district judge’s fact-finding in this matter has not

been shown to be clearly erroneous.

B. Sentence Reduction

Coleman’s second issue presented for review is that the district court erred in

denying him the third level of a three-level reduction for acceptance of responsibility

under U.S.S.G. § 3E1.1(b) because the government’s justification for refusing to make

the motion was arbitrary and unrelated to the timing of his Plea. Coleman did not raise

this issue below. Thus, the district court’s decision on this issue is reviewed for plain

error. Morrow, 977 F.2d at 226.

U.S.S.G. § 3E1.1(b) provides that, upon motion by the government stating that

the defendant has assisted authorities in the investigation or prosecution of his own

misconduct by timely notifying authorities of his intention to enter a guilty plea, thereby

permitting the government to avoid preparing for trial, and if the defendant qualifies for

a decrease due to acceptance of responsibility and the offense level is 16 or greater, the

offense level will be decreased by 1. Further, Application Note 6 to § 3E1.1 provides,

in relevant part, that the one-level reduction may be granted only upon a formal motion

by the government at the time of sentencing.

The Sixth Circuit has interpreted § 3E1.1, along with Application Note 6, to

mean that the government’s discretion to file the motion is limited only by an

unconstitutionally impermissible motive or if it is arbitrary. United States v. Lapsins,

570 F.3d 758, 770 (6th Cir. 2009). In Lapsins, the defendant sought a three-level

reduction for acceptance of responsibility pursuant to § 3E1.1 The district court granted

a two-level reduction, the government did not move for an additional one-level

reduction, and Lapsins appealed. On appeal, Lapsins argued that he was entitled to the

third-level reduction because he had accepted responsibility and his decision to plead

guilty permitted the government to avoid preparing for a trial. Id. at 768. This Court

found that “the government may decline to move for a reduction under § 3E1.1(b) so

long as the decision does not rest on a constitutionally impermissible factor and is not

arbitrary.” Id. at 770. This Court then went on to conclude that the government believed

No. 09-5052 United States v. Coleman Page 13

in good faith that Lapsins had not accepted responsibility. Id. at 771. As a result, the

government’s decision not to move for the reduction was not arbitrary and was thus

permissible. Id.

In Lapsins, the government objected to any reduction for acceptance of

responsibility, but the district court granted a two-level reduction based upon the

defendant’s statement of facts and guilty plea. However, the district court did not award

the third level because the government did not move for the third level. The district

court’s decision was upheld by this Court.

In this case, Coleman’s offense level was 16 or more and the Court found that

he was entitled to a two-level reduction. The United States argued for no reduction

because Coleman had obstructed justice. The district granted the two-level reduction

because it determined that Coleman had not obstructed justice and had pled guilty prior

to trial.

The United States then declined to move for the third-level reduction based upon

the information that it had first received the day prior to the sentencing hearing from

Hensley that Coleman had threatened her on the telephone in July of 2008. The decision

not to move for a third-level reduction, according to the United States, was based upon

its “genuine and good faith belief” that Coleman’s threatening telephone call to Hensley

in July of 2008 was inconsistent with acceptance of responsibility.

Coleman first argues that, because the conduct cited by the United States did not

amount to obstruction of justice, its justification for refusing to move for the third level

reduction was arbitrary. However, the reason given by the United States was not that

Coleman’s conduct was an obstruction of justice, although the United States argued

unsuccessfully that it was. The reason given by the United States was that Coleman’s

actions indicated that he had not accepted responsibility. This justification was based

upon a reasonable belief and was thus not arbitrary.

Coleman next argues, based upon this Court’s ruling in United States v.

Robertson, 260 F.3d 500 (6th Cir. 2001), that the government is required to move for the

No. 09-5052 United States v. Coleman Page 14

third-level reduction so long as he can demonstrate that the offense level determined

prior to consideration of acceptance of responsibility was 16 or greater and he timely

notified the government of his intent to plead guilty. However, as this Court has later

explained, the government may refuse to move for the third-level reduction so long as

the government’s reason for refusal is not based upon a constitutionally impermissible

factor and is not arbitrary.

Coleman next argues that, where the government’s justification for refusal to

move for the third-level reduction is wholly unrelated to the timing of his plea as

compared to preparation for trial, a court should show no deference to the government’s

contention that he did not fully accept responsibility unless the government objected to

him receiving a reduction under § 3E1.1(a). This argument, too, is without merit. The

court may show deference to the government’s reasons for not seeking a third-level

reduction even if the reasons have nothing to do with the timing between the plea and

trial, so long as the refusal is not based upon a constitutionally impermissible factor and

is not arbitrary.

Given that there was evidence presented that Coleman threatened Hensley and

that Hensley was scared to testify at the sentencing hearing because of what Coleman

might do to her, the United States had reason to believe in good faith that Coleman had

not accepted responsibility. Applying this Court’s reasoning in Lapsins to the present

matter, the United States was not required to move for the third level reduction because

its reason for not doing so was not arbitrary. The United States, in good faith, had

reason to believe that Coleman had not accepted responsibility. Thus, there was no error

by the district court, let alone a “plain error.”

V. CONCLUSION

The trial court did not err in applying a four-level enhancement for possession

of ammunition. The trial court also did not err in failing to grant the third-level

reduction for acceptance of responsibility. For these reasons, we AFFIRM the judgment

of the district court.

No. 09-5052 United States v. Coleman Page 15

___________________________________________________

CONCURRING IN PART AND DISSENTING IN PART

___________________________________________________

GILMAN, Circuit Judge, concurring in part and dissenting in part. I agree that

the district court did not err in failing to grant Coleman the third-level reduction for

acceptance of responsibility under U.S.S.G § 3E1.1(b). The reasoning in Judge Rose’s

opinion on this issue strikes me as sound, and I therefore concur. On the other hand, I

disagree with the majority’s justification for applying the four-level enhancement under

U.S.S.G. § 2K2.1(b)(6) for Coleman’s possession of ammunition. I therefore

respectfully dissent on this latter issue.

How the possession of nothing but bullets, absent a gun, facilitates or has the

potential to facilitate the offense of possessing marijuana is beyond me. The sentencing

transcript indicates that the district court also had difficulty concluding that ammunition

alone had the potential to facilitate the marijuana offense. Although it ultimately applied

the four-level enhancement, the district court acknowledged that having ammunition

without a gun is “like having . . . kindling without the match. You can have the kindling

all day long; but if you don’t have the match, you can’t start the fire.”

The majority opinion sets forth two justifications for affirming the district court’s

determination. First, the majority asserts without explanation that the language of

U.S.S.G. § 2K2.1(b)(6) is “plain.” Maj. Op. at 9 n.1. The language of that section,

however, is anything but plain in my opinion. Section 2K2.1(b)(6) specifies that the

four-level enhancement should apply “[i]f the defendant used or possessed any firearm

or ammunition in connection with another felony offense.” Application Note 14(A) then

defines the phrase “in connection with” to mean that “the firearm or ammunition

facilitated, or had the potential of facilitating, another felony offense.” Section

2K2.1(b)(6) thus requires that a court do more than blindly apply the four-level

enhancement whenever ammunition is found in close proximity to illegal drugs. Instead,

the district court must analyze, on a case-by-case basis, whether the proximity of

No. 09-5052 United States v. Coleman Page 16

ammunition alone facilitated or had the potential to facilitate the drug offense. I

therefore find that the language of U.S.S.G. § 2K2.1(b)(6) is far from plain.

The majority opinion’s second justification for affirming the judgment of the

district court boils down to saying that “the ammunition emboldened Coleman in the

knowledge that he was one step closer to having a fully-loaded firearm to protect himself

and his illegal drugs, and the ammunition potentially served notice to potential buyers

that Coleman was a step closer to having a fully-loaded firearm.” Maj. Op. at 10. But

this “one step closer” argument does not withstand scrutiny. The record contains no

evidence that Coleman had a gun anywhere around, and bullets alone could hardly

embolden him or scare potential buyers who might be inclined to steal his marijuana.

Many things could in theory put a person “one step closer” to having a firearm,

such as applying for a firearms permit, having a holster, possessing a laser scope, or

earning money to be able to purchase a weapon. But only actual possession of a firearm

would potentially “facilitate” drug dealing under this court’s “fortress theory,” because

displaying bullets alone can cause no harm. On the other hand, displaying a gun would

definitely intimidate someone intending to steal the seller’s drugs. And this is true even

if the gun is unloaded, because the person staring down the barrel of a gun has no way

of knowing whether it is loaded or unloaded. The district court clearly recognized this

point: “If I have a gun that is not loaded and I point my gun at you, you don’t know

whether my gun is loaded or not. If I have a bullet and I point my bullet at you, you

know that I don’t have a gun.” This refutes the majority’s contention that Coleman’s

reasoning leads to the “absurd result” that only a loaded gun could result in a four-level

enhancement. Maj. Op. at 11. Coleman in fact does not make such an argument.

Section 2K2.1(b)(6) and Application Note 14(A) do, as the majority repeatedly

emphasizes, refer to firearm and ammunition in the disjunctive. But Application Note

14(B), whose relevance the majority fails to acknowledge, links the fortress theory solely

to the possession of a firearm. It reads as follows:

Application When Other Offense is Burglary or Drug

Offense.–Subsection[](b)(6) . . . appl[ies] . . . in the case of a drug

No. 09-5052 United States v. Coleman Page 17

trafficking offense in which a firearm is found in close proximity to

drugs, drug manufacturing materials, or drug paraphernalia. In these

cases, application of subsection[] (b)(6) . . . is warranted because the

presence of the firearm has the potential of facilitating another felony

offense . . . .

Application Note 14(B)’s limitation to a firearm implies that the fortress theory does not

apply to the possession of ammunition. Unlike drug-trafficking cases where a firearm

is found in close proximity to the drugs, there is no presumption of facilitation where

ammunition alone is found. Rather, under Application Note 14(A), a district court must

determine if the ammunition actually facilitated the commission of another felony

offense.

This is not to say that the possession of ammunition alone could never facilitate

another felony offense. The four-level enhancement under U.S.S.G. § 2K2.1(b)(6) could

apply to the possession of ammunition alone, for example, where two conspirators plan

to rob, say, a bank, with one to bring a gun and the other to bring the ammunition for the

gun. In this hypothetical, the one possessing the ammunition could clearly be found to

have facilitated the crime of bank robbery, and thus be subject to the four-level

enhancement. But that is not the situation in the case before us.

As the majority notes, “[t]here is no binding caselaw directly on point.” Maj. Op.

at 9. The only case it can find that supports the enhancement under circumstances

similar to those at hand is the unreported Eleventh Circuit case of United States v.

Chappell, 334 F. App’x 970 (11th Cir. 2009). Maj. Op. at 9,12. But Chappell is a three-

page per curiam opinion that contains no reasoning at all on the issue in question. The

total analysis in Chappell on the application of U.S.S.G. § 2K1.1(b)(6) is the following:

The record also supports the enhancement of Chappell’s sentence for

possessing ammunition in connection with another felony offense. A

defendant is subject to a four-level enhancement if he “used or possessed

any firearm or ammunition in connection with another felony offense.”

U.S.S.G. § 2K2.1(b)(6). The enhancement applies “if the firearm or

ammunition facilitated, or had the potential of facilitating, another felony

offense.” Id. cmt. n. 14(A). The district court was entitled to find that

the ammunition had the potential to facilitate Chappell’s felony

No. 09-5052 United States v. Coleman Page 18

possession of methamphetamine. In the absence of a contrary

interpretation from this Court or the Supreme Court, the district court did

not plainly err by applying the enhancement.

Id. at 973 (alterations omitted).

The present case, therefore, is the first and only published decision in the entire

country applying the four-level enhancement under U.S.S.G. § 2K2.1(b)(6) where the

possession of ammunition alone is deemed to facilitate the crime of drug dealing.

Because there appears to me no logical support for such a conclusion in this case, I

respectfully dissent.