United States v. West

PRECEDENTIAL

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

No. 09-2860

UNITED STATES OF AMERICA

v.

WILLIAM WEST,

Appellant

On Appeal from United States District Court

for the Middle District of Pennsylvania

(D.C. No. 4-08-cr-00238-001)

District Judge: Honorable John E. Jones, III

Argued February 4, 2010

Before: McKEE, Chief Judge, HARDIMAN, Circuit Judge,

and RUFE, District Judge*

(Filed: April 29, 2011)

OPINION

*The Honorable Cynthia M. Rufe, United States

District Judge for the Eastern District of Pennsylvania, sitting

by designation.

Stephen F. Becker (Argued)

Shapiro & Becker

114 Market Street

Lewisburg, PA 17837-0000

Attorney for Appellant

Theodore B. Smith, III (Argued)

Executive Office of the

United States Attorney

Evaluation & Review Staff

600 E. Street, N.W.

Suite 8500, Bicentennial Bldg.

Washington, DC 20530

Attorney for Appellee

RUFE, District Judge.

William West appeals the sentence imposed on him by

the District Court for possession of a stolen firearm in violation

of 18 U.S.C. § 922(j). Specifically, West challenges the District

Court’s application of a four-level enhancement to his sentence,

pursuant to U.S.S.G. § 2K2.1(b)(6), for possessing a firearm in

connection with another felony offense. We have jurisdiction

over this appeal pursuant to 18 U.S.C. § 1291 and 18 U.S.C. §

3742. For the reasons that follow, we vacate West’s sentence

and remand to the District Court for resentencing.

I.

Under 18 U.S.C. § 3742(a)(1)–(a)(2), this Court has

jurisdiction to review sentences imposed in violation of the law

or as a result of an incorrect application of the United States

Sentencing Guidelines (the “Guidelines”). United States v.

Harrison, 357 F.3d 314, 317 (3d Cir. 2004), sentence vacated

and remanded, 543 U.S. 1102 (2005). At sentencing, a district

court should apply a preponderance of the evidence standard to

all facts relevant to the Guidelines, including any finding that

the defendant committed the offense of conviction in connection

with another felony. United States v. Grier, 475 F.3d 556, 568

(3d Cir. 2007) (en banc); see also United States v. Berry, 553

2

F.3d 273, 280 (3d Cir. 2009). “That the District Court applied

an acceptable burden of proof does not, of course, mean that its

findings of fact should be upheld.” Grier, 475 F.3d at 568. We

review the District Court’s factual findings relevant to the

Guidelines for clear error and exercise plenary review over the

District Court’s interpretation of the Guidelines. Grier, 475

F.3d at 570; see also Harrison, 357 F.3d at 317 (“This Court

reviews a district court’s interpretation of the sentencing

guidelines de novo, and a district court’s findings of fact

supporting application of the guidelines for clear error.” (citing

United States v. Butch, 256 F.3d 171, 177 (3d Cir. 2001))). We

also review for clear error the District Court’s determination of

what constitutes “relevant conduct” for the purposes of

sentencing. See Harrison, 357 F.3d at 317 (citing United States

v. Perez, 280 F.3d 318, 352–54 (3d Cir. 2002)). “‘A finding is

clearly erroneous when, although there is evidence to support it,

the reviewing body on the entire evidence is left with the

definite and firm conviction that a mistake has been

committed.’” Grier, 475 F.3d at 570 (quoting Concrete Pipe &

Prods. of Cal., Inc. v. Constr. Laborers Pension Trust for S.

Cal., 508 U.S. 602, 622 (1993)) (internal citations and

punctuation omitted). “A sentence imposed as a result of a

clearly erroneous factual conclusion will generally be deemed

‘unreasonable’ and, subject to the doctrines of plain and

harmless error, will result in remand to the district court for

resentencing.” Id. at 570.

II.

In order to support its application of the four-level

Sentencing Guidelines enhancement for possession of a firearm

in connection with another felony, the District Court relied on

two events: (1) West’s February 28, 2007 arrest and subsequent

plea to possession of a stolen firearm; and (2) a July 27, 2007

incident which led to an arrest, but not a conviction.

A.

On February 28, 2007, West was pulled over by a

Pennsylvania State Police trooper for a traffic offense while

traveling on Interstate 80 in the vicinity of Bloomsburg,

3

Pennsylvania. The trooper issued a warning for the traffic

offense and obtained West’s consent to search the vehicle.

1

In the glove compartment, the trooper found approximately

$9,000 in cash, a small amount of marijuana,

2

and a .45 caliber Taurus handgun.

3

Police took West and his passenger into custody and obtained

a search warrant for the rest of the car, pursuant to which they

discovered a .38 caliber Taurus revolver inside a backpack in the

trunk.

4

In a post-arrest interview, after waiving his Miranda rights,

West admitted both to possession of the cash and marijuana

found in the glove compartment and to knowledge that the car

1

See Sentencing Tr. 6 (June 16, 2009) (Dkt. No.

61). All court documents cited herein, except the appellate

briefs and the Presentence Investigation Report, are entered on

the docket for United States v. William West, No. 4:08-cr-00238

(M.D. Pa.) (filed June 11, 2008).

2

The record does not provide the specific amount

of marijuana found in the glove compartment. The parties

concede that “small amount[s]” of marijuana were seized during

both the February and July incidents, but the precise measures

are not identified in either party’s appellate brief, the

Presentence Investigation Report, either party’s sentencing

memorandum (Dkt. Nos. 41 & 42), the District Court’s

sentencing Opinion and Order (Dkt. No. 49), or the transcript of

the sentencing proceeding (Dkt. No. 61). The only document

suggesting the amount of drugs seized in either incident is a

motion filed by the Government post-sentencing, which states

that “[i]n the course of the investigation and prosecution of the

above-captioned case, police seized and retained . . .

contraband,” including “2 small baggies of marijuana.” Mot. to

Confiscate & Destroy Firearm (Sept. 9, 2009) (Dkt. No. 62).

The Motion provides no further detail, however, as to the total

quantity of marijuana the baggies contained or what portion of

that total was seized in each incident.

3

Sentencing Tr. 7, 11.

4

Id.

4

contained at least one firearm, but did not admit to possession or

ownership of either of the guns found in the car.

5

The gun in the glove compartment, he asserted, belonged to

Tyana Martin, the sister of West’s girlfriend, Taniea Martin.

6

West had observed Tyana Martin place the .45 in the glove

compartment the preceding Saturday, February 24th, while the

two of them were attending a party, but did not notice that the

gun was still there when he placed his own items in the glove

compartment on the morning of February 28th.

7

West also told police that he and Tyana Martin had not driven

the car home from the party, but had left it parked on the street

overnight. When he returned to retrieve the car the Monday

morning after the party, he noticed a .38 revolver lying on the

rear seat; he picked up the revolver, handled it, and replaced it

on the rear seat.

8

Post-arrest, West also admitted that he had placed cash and

marijuana in the glove compartment on the day of his arrest,

9

but did not explain how the .38 found its way onto the rear seat

of the car, or later, into a backpack in the trunk.

10

West was charged locally for this incident and released on

bail.

5

Id. at 11–15

6

Id. at 12.

7

Id. at 12–13, 15.

8

Id. at 12, 15–16

9

Id. at 12–13, 15.

10

At the time of his guilty plea, West acknowledged

that he knew the .38 was stolen. Mem. Op. & Order 2 (May 21,

2009) (Dkt. No. 49).

11

Id.

5

11

He later pleaded guilty to possession of the stolen .38

revolver found in the trunk, but not to possession of the .45 in

the glove compartment.

12

B.

Five months later, on July 27, 2007, during a fire-code

inspection of West’s girlfriend’s rented apartment at 319 Louisa

Street, in Williamsport, Pennsylvania, a local fire marshal

observed a handgun resting on top of a bureau in a bedroom in

which West was sleeping.

12

The Presentence Investigation Report (“PSR”)

lists four arrests for West between February and November of

2007: (1) February 28th, for possession of a firearm and

possession of marijuana; (2) July 27th, for possession,

conspiracy to manufacture, and possession with intent to deliver

a controlled substance; (3) November 7th, for possession of drug

paraphernalia, and possession of and possession with intent to

deliver a controlled substance; and (4) November 11th, for

possession of marijuana. See PSR ¶ 36–39 (Feb. 23, 2009). No

federal charges were filed regarding the November 2007 arrests,

and no evidence was presented on those allegations at

sentencing. After the instant federal indictment was filed, all

local charges were dismissed in lieu of federal prosecution. See

id.

13

Sentencing Tr. 21–22. The Presentence Report

notes that a fire department employee “observed suspected

narcotics in the home” and contacted police. PSR ¶ 9. This

account was later contradicted by testimony presented at

sentencing, in which Patrol Supervisor John McKenna stated

that fire marshals contacted police because they observed a

handgun on top of a dresser. Sentencing Tr. 21. Both parties

cited McKenna’s version of the facts in their respective briefs.

See Appellant’s Br. 6; Appellee’s Br. 9. No further clarification

of this discrepancy is found in the record.

6

13

Police, summoned by fire marshals, arrived at the scene just

as West was leaving the apartment.

14

Police detained West and questioned him about the presence

of firearms on his person or in the apartment.

15

He led the officers upstairs to the bedroom, but the gun was

no longer on the bureau.

16

West summoned his girlfriend, Taniea Martin, who admitted

to police that she had moved the gun, and consented to have the

apartment searched.

17

The gun, a 9mm Kel-Tec pistol, was recovered from a

clothing-filled trash bag located outside the bedroom door.

18

A search of the entire apartment led to the discovery of an

unspecified amount of cash, a small amount of marijuana,

19

unspecified drug paraphernalia, and an empty box for a

handgun with the same serial number as that seized five months

earlier from the glove compartment of the vehicle operated by

West.

14

Sentencing Tr. 22.

15

Id.

16

Id. at 23.

17

Id. at 23, 26.

18

Id. at 27.

19

As with the marijuana found in West’s vehicle on

February 28th, supra note 2, no document in the record specifies

the amount of drugs recovered or cash seized at 319 Louisa

Street, nor does the record offer any further information or

evidence regarding the location of the drugs, drug paraphernalia,

or cash within the apartment. West ultimately agreed to forfeit

$16,110, see Corrected Plea Agreement ¶ 13 (Sept. 12, 2008)

(Dkt. No. 22); thus, we may infer that the cash seized at 319

Louisa Street was approximately $7,110 ($16,110 minus the

$9,000 seized in February).

20

Sentencing Tr. 27.

7

20

The gun recovered at 319 Louisa Street was later reported by

its owner as stolen.

21

III.

On June 11, 2008, a grand jury sitting in Harrisburg,

Pennsylvania returned an indictment charging West with

possession with intent to distribute marijuana in violation of 21

U.S.C. § 841(a)(1) and possession of firearms and ammunition

by a convicted felon in violation of 18 U.S.C §§ 922(g)(1) and

924(e).

22

The indictment also included, as a third count, notice of

criminal forfeiture pursuant to 21 U.S.C. § 853.

23

The charges were intended to encompass West’s alleged

criminal activities from February through November of 2007.

24

On July 1, 2008, West entered a plea of not guilty to the

charges in the indictment.

Approximately two months later, the United States

Attorney filed a one-count Information, charging West with

receipt and possession of a stolen firearm “[o]n or about July

2007” in violation of 18 U.S.C. §§ 922(j) and 2.

25

The Information was accompanied by a written plea

agreement

26

which provided that West would plead guilty to the single

count charged, and the Government would accept his plea in

satisfaction of the charges set forth in the original indictment.

21

PSR ¶ 9.

22

Indictment 1–2 (June 11, 2008) (Dkt. No. 1).

23

Id. at 3.

24

Id. at 1.

25

Information (Aug. 25, 2008) (Dkt. No. 14).

26

Plea Agreement (Aug. 25, 2008) (Dkt. No. 15).

27

See Corrected Plea Agreement ¶ 1 (Sept. 12, 2008)

(Dkt. No. 22).

8

27

West waived indictment and pleaded guilty to the

Information; however, instead of admitting to the charged

conduct of possession of a stolen 9mm handgun in July, West

admitted only to possession of the stolen .38 revolver found in

the trunk of his car on February 28th.

28

The Government attempted to reconcile this conflict by

moving to amend the Information to read, “Beginning on or

about February 2007 and continuing through on or about July

2007 . . . [,]” so that “the charge embrace[d] the totality of the

alleged relevant conduct.”

29

West concurred in the Motion, which was granted by the

District Court, but reserved his right to contest his culpability for

the July events.

30

At the direction of the District Court, the United States

Probation Office prepared a Presentence Investigation Report.

The probation officer determined that West’s base offense level

for possession of the stolen .38 revolver was 24, pursuant to

U.S.S.G. § 2K2.1(a)(2), and recommended three enhancements

to the base offense level: a two-level increase for possessing

three firearms under U.S.S.G. § 2K2.1(b)(1)(A); a two-level

increase for possession of a stolen firearm under U.S.S.G. §

2K2.1(b)(4); and the four-level enhancement relevant to the

instant appeal, for using or possessing a firearm in connection

with another felony offense

31

under U.S.S.G. § 2K2.1(b)(6).

28

See Mem. Op. & Order 3.

29

Motion to Amend Information ¶¶ 1–2 (May 17,

2009) (Dkt. No. 45).

30

Id. ¶ 3.

31

Namely, felony possession of marijuana by an

individual previously convicted of one or more drug offenses.

See 21 U.S.C. § 844(a).

32

Appellee’s Br. 10–11.

9

32

The probation officer subtracted two levels for acceptance of

responsibility under § 3E1.1(a) and one level for entering a

timely guilty plea, resulting in a total offense level of 29.

33

At that offense level, West’s Criminal History Category of IV

34

yielded a Guideline Range of 121 to 151 months

imprisonment, adjusted downward to the statutory maximum of

120 months for a § 922(j) violation.

35

See 18 U.S.C. § 924(a)(2) and U.S.S.G. § 5G1.1(a). West

timely objected to two of the enhancements recommended in the

Presentence Report: the two-level increase for possessing three

firearms and the four-level increase for possessing one or more

guns “in connection with” another felony offense.

36

Both parties filed sentencing memoranda addressing West’s

objections and the District Court issued a Memorandum Opinion

and Order preliminarily resolving several of those objections.

In that Opinion, the District Court determined that the July 2007

incident qualified as conduct relevant to the offense of

conviction under U.S.S.G. § 1B1.3; therefore, evidence

recovered in both February and July would be considered at

sentencing. Taking the events of July into account and

explaining that it was interpreting the phrase “in connection

with” “broadly” and “expansively,” pursuant to this Court’s

decision in United States v. Loney, 219 F.3d 281, 284 (3d Cir.

2000), the District Court overruled West’s objection to the

application of § 2K2.1(b)(6) and found that West had possessed

at least one firearm in connection with another felony offense.

33

Id. at 11.

34

Id. See also PSR ¶ 29–35 (calculating West’s

criminal history points and criminal history category). West’s

previous offenses, convictions and sentences add up to seven

criminal history points pursuant to U.S.S.G. § 4A1.1–A1.2, and

place West in criminal history category IV (7–9 criminal history

points). See Sentencing Table, U.S.S.G. § 5A.

35

Appellee’s Br. 11.

36

Mem. Op. & Order 4.

37

Id. at 11-13.

10

37

In relevant part, the District Court noted:

In this case, during the February 2007 incident, a

firearm was found in the same glove compartment

as West’s marijuana and a large amount of cash.

A second firearm was found in the trunk of the

same car. During the July 2007 incident, another

firearm was found in the same residence as more

marijuana possessed by West. These

circumstances indicate that the confluence of

drugs and guns found here is not accidental. The

firearms were in close proximity to the drugs and

38

easily accessed by West.

However, recognizing that the underlying facts were disputed,

the District Court reserved its final rulings on West’s objections

for the sentencing hearing.

39

At sentencing, the Government presented two law

enforcement witnesses to the February traffic stop and post-

arrest interview with West, and two to the July arrest and search

of 319 Louisa Street. In turn, West presented several witnesses

in support of his objections to the sentencing enhancements:

Tyana Martin, who testified that she was the owner of the .45

caliber handgun recovered from the glove compartment on

February 28th;

40

Taniea Martin, who testified that she was the owner of the

9mm pistol found in her apartment in July;

41

and West’s mother, Earlirene Chapman, who testified that

West’s primary residence was her home at 623 Second Avenue,

not his girlfriend’s apartment at 319 Louisa Street, and that she

38

Id. at 12.

39

Id. at 14.

40

Sentencing Tr. 29–43.

41

Id. at 43–56.

11

had given West $5,000 of the $9,000 found in his glove

compartment in February, to buy a new car.

42

The District Court did not find the testimony of West’s

witnesses convincing, taking particular note of Taniea Martin’s

lack of credibility.

43

However, neither the Court nor the prosecutor questioned Ms.

Chapman at any length, and the Government offered no

evidence to counter her assertions regarding West’s primary

residence or the source of the cash seized in February.

Ultimately, the District Court found that West either possessed

or constructively possessed the 9mm recovered at 319 Louisa

Street in July, but ruled in favor of West with respect to

possession of the .45 recovered in February, finding that it did

indeed belong to Tyana Martin.

44

The Court stated:

I’m going to err on the side of caution, however,

as to the first incident. It is a very, very close call

for the Court. I’m particularly concerned again

about potentially—about manufactured testimony

and potential perjury in this case, but there is just

not enough. I’m going to drop the knife on Mr.

West’s side as it attends the first incident, which

takes away the two level enhancement under

2K2.1(b)(1)(A).

42

Id. at 59–62.

43

See id. at 69 (“I am able to easily reach a

determination by a preponderance of the evidence that Mr. West

did possess the . . . nine millimeter firearm, on that occasion. I

find the testimony of Taniea Martin incredible. Likely, it’s the

Court’s view that she perjured herself this morning . . . .”); see

also id. at 80 (“I’m quite sure that you suborned perjury this

morning. . . . You ought to be separately charged for that.”)

44

See id. at 70.

45

Id.

12

45

After determining that counsel had no additional outstanding

objections,

46

the District Court made no further factual findings and did not

revisit its earlier decision approving the four-level § 2K2.1(b)(6)

enhancement, leaving West with a base offense level of 27 and

a Guideline Range of 100 to 125 months. West received a

custodial sentence of 120 months imprisonment, three years of

supervised release, and a special assessment of $100.

47

On appeal, West challenges the sentence imposed,

contending that the District Court erred in finding that the July

incident was relevant conduct for the purpose of sentencing him

for the February offense of conviction, and erred in finding that

he possessed a gun or guns in connection with another felony

offense pursuant to § 2K2.1(b)(6). Absent the four-level

enhancement under § 2K2.1(b)(6), the Guidelines calculation for

West’s sentence would have resulted in a sentencing range of 70

to 87 months, rather than 100 to 125 months.

48

IV.

To ensure that a sentence reflects a defendant’s total

culpability, the Guidelines provide for an increase in the base

offense level—and consequently, the base sentencing

range—whenever a firearm is used or possessed “in connection

with” another felony offense. See United States v. Navarro, 476

F.3d 188, 192 (3d Cir. 2007) (citing Loney, 219 F.3d at 287–88).

Proper application of the four-level enhancement under §

2K2.1(b)(6) requires finding, by a preponderance of the

evidence, that the defendant used or possessed a firearm; that the

46

See id.

47

Id. at 81.

48

A base offense level reduction to 23, combined

with a Criminal History Category of IV, yields a Guideline

Range of 70–87 months. See Sentencing Table, U.S.S.G. § 5A.

13

defendant committed another felony offense, regardless of

whether a criminal charge was brought or a conviction obtained;

and that the firearm facilitated, or had the potential of

facilitating, the felony offense. See U.S.S.G. § 2K2.1, comment.

(n.14).

A.

We first address the District Court’s determination that

the July incident was relevant conduct for the purpose of

sentencing West for the February offense of conviction. Section

1B1.3 of the Sentencing Guidelines provides that, unless

otherwise specified, base offense levels, specific offense

characteristics, and various adjustments shall be determined on

the basis of “all acts and omissions committed, aided, abetted,

counseled, commanded, induced, procured, or willfully caused

by the defendant . . . that occurred during the commission of the

offense of conviction, in preparation for that offense, or in the

course of attempting to avoid detection or responsibility for that

offense.” U.S.S.G. § 1B1.3(a)(1)(A). With respect to offenses

of a character for which § 3D1.2(d) would require grouping of

multiple counts—such as an offense involving multiple firearms

under § 2K2.1(b)(1), or where a firearm was used or possessed

in connection with another felony offense under §

2K2.1(b)(6)—sentencing shall be determined on the basis of all

acts and omissions committed by the defendant “that were part

of the same course of conduct or common scheme or plan as the

offense of conviction.” U.S.S.G. § 1B1.3(a)(2); see also United

States v. Blackmon, 557 F.3d 113, 123 (3d Cir. 2009) (citing

United States v. Wilson, 106 F.3d 1140, 1144 (3d Cir. 1997)).

Solely for the purpose of objecting to the relevant conduct

analysis, West admitted to possession of all three guns, leaving

in question only the final element of the analysis—whether the

offenses were part of the same course of conduct. “For two or

more offenses to constitute part of a common scheme or plan,

they must be substantially connected to each other by at least

one common factor, such as common victims, common

accomplices, common purpose, or similar modus operandi.”

U.S.S.G. § 1B1.3, comment. (n.9(A)). Offenses that do not fall

within the definition of a common scheme or plan—as these

plainly do not—may nonetheless qualify as part of the same

14

course of conduct “if they are sufficiently connected or related

to each other as to warrant the conclusion that they are part of a

single episode, spree, or ongoing series of offenses.” U.S.S.G.

§ 1B1.3, comment. (n.9(B)). As we noted in Wilson, although

there is substantial overlap between the terms “common

scheme” and “course of conduct,” the latter envelops a greater

sphere of activity than the former. See Wilson, 106 F.3d at

1143.

In determining whether offenses are sufficiently related

to form a single course of conduct, three factors must be

considered: (1) the degree of similarity of the offenses; (2) the

regularity (repetitions) of the offenses; and (3) the time interval

between the offenses. See id.; see also Wilson, 106 F.3d at

1143–44 (adopting this three-prong test). No one of these

factors is dispositive; however, it is generally held that where

one factor is weak or absent, a stronger showing of at least one

of the other factors is required. See id. “For example, where the

conduct alleged to be relevant is relatively remote to the offense

of conviction, a stronger showing of similarity or regularity is

necessary to compensate for the absence of temporal proximity.”

U.S.S.G. § 1B1.3, comment. (n.9(B)).

The District Court found that, in light of the fact that

West was on bail for the February offenses when he was

arrested in July, the five-month interval between the two

incidents met the requirement of temporal proximity.

49

We are inclined to agree. Caselaw is not specific as to how

much time must elapse between offenses for conduct to be

irrelevant for the purpose of sentencing; but as we noted in

Wilson, courts have considered as relevant conduct offenses that

preceded the offense of conviction by as much as seventeen

months. See Wilson, 106 F.3d at 1144 (citing cases). We agree

with the District Court’s holding that the five-month interval

here is not of such duration as to render the events of July

indisputably remote from the events of February. Nevertheless,

where the time between offenses is not strongly supportive of

finding relevant conduct, the offenses must show significant

49

Mem. Op. & Order 8.

15

similarity and regularity. See United States v. Hahn, 960 F.2d

903, 910–11 (9th Cir. 1992).

As this Court recently stated in United States v. Nunez,

“‘[a] crime merely suggested by or arising out of the

commission of a previous crime is not . . . related to the earlier

crime in the special sense of being part of a common plan or

scheme,’ as required by § 1B1.3.” 322 Fed. Appx. 114, 116 (3d

Cir. 2009) (unpublished) (quoting United States v. Hallman, 23

F.3d 821, 826 (3d Cir. 1994) (“In determining whether there was

a common scheme or plan, intent of the defendant is a crucial

part of the analysis.”)). While offenses forming a course of

conduct need not demonstrate the same degree of similarity as

offenses forming a common scheme, the result—a finding of

relevant conduct—is the same, and the inquiry demands a

similarly careful analysis. Although we do not find that the

District Court’s finding that West “possessed” the 9mm

handgun recovered in July was clearly erroneous, based on the

underdeveloped factual record currently before us, we are

unable to agree that the July and February offenses were

sufficiently similar or regular to satisfy the relevant conduct

standard.

As we have noted, supra notes 2 and 19, the Government

did not present evidence regarding the quantity of drugs or

money found in West’s girlfriend’s apartment in July or the

proximity of the drugs to West or to the gun on the bureau. The

record is silent as to whether West knew that money, marijuana

and drug paraphernalia were present in his girlfriend’s

apartment, and there is no evidence that all the items belonged

to him or were found in locations under his control. While it is

correct that “[i]n evaluating offenses under the similarity prong,

a court must not do so at such a level of generality that would

render worthless the relevant conduct analysis,” Wilson, 106

F.3d at 1144 (internal punctuation and citation omitted), the

Government is not relieved of its responsibility to prove

sentencing factors by a preponderance of the evidence.

Although both incidents involved a stolen firearm in relatively

close proximity to cash and some small but unspecified quantity

16

of marijuana, these facts alone are not sufficient to show more

than a pair of similar but isolated and unrelated events.

50

We therefore hold that the District Court’s finding that the

events of July were relevant conduct for the purpose of

sentencing West for his offense of conviction was clearly

erroneous, and we will not factor the 9mm handgun, drugs, or

money recovered in July into our analysis of the § 2K2.1(b)(6)

sentencing enhancement.

B.

Section 2K2.1(b)(6) of the Sentencing Guidelines

provides that:

If the defendant used or possessed

any firearm or ammunition in

connection with another felony

offense; or possessed or transferred

any firearm or ammunition with

knowledge, intent, or reason to

believe that it would be used or

possessed in connection with

another felony offense, increase by

4 levels. If the resulting offense

level is less than level 18, increase

to level 18.

Until November 2006, the Guidelines did not define the phrase

“in connection with,” and many circuits, including this Circuit,

gave it a plain meaning interpretation, construing it broadly.

See, e.g., Loney, 219 F.3d at 284. In 2006, the United States

Sentencing Commission issued a number of Amendments to the

50

See, e.g., United States v. Hill, 79 F.3d 1477, 1482

(6th Cir. 1996) (“[Section 1B1.3] only applies if ‘there are

distinctive similarities between the offense of conviction and the

remote conduct’ and cannot be used to sentence a defendant

based on ‘isolated, unrelated events that happen only to be

similar in kind.’”) (quoting United States v. Sykes, 7 F.3d 1331,

1336 (7th Cir. 1993)).

17

Guidelines, and added Application Note 14 to § 2K2.1 to

address a growing conflict among the circuits regarding the

interpretation of § 2K2.1(b)(6).

51

Application Note 14(A) provides general guidance to the

sentencing courts, stating that “in general . . . subsections (b)(6)

and (c)(1) apply if the firearm or ammunition facilitated, or had

the potential of facilitating, another felony offense or another

offense, respectively.”

Application Note 14(B), however, provides more specific

guidance when the “other offense” is a drug trafficking offense,

stating in pertinent part, that:

Subsection[] (b)(6) . . . appl[ies] . . . in the case of

a drug 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 . . . .

U.S.S.G. § 2K2.1, comment. (n.14). With this commentary, the

Sentencing Commission sought to address the concern

expressed by the Supreme Court in United States v. Smith, 508

U.S. 223 (1993), that a defendant might be punished for

committing a drug trafficking offense while in possession of a

firearm, even when the presence of the firearm is purely

coincidental or unrelated. See id., 508 U.S. at 238.

Because § 2K2.1(b)(6) requires that a firearm be

possessed in connection with another felony offense, courts in

this Circuit have generally analyzed the application of the

51

See Final Amendments of the United States

Sentencing Guidelines, at 22–23 (2006) (available at

www.ussc.gov/2006guid/Finalamend2006.pdf). The 2006

Amendments also re-designated § 2K2.1(b)(5) as § 2K2.1(b)(6)

and (c)(1), due to unrelated additions and deletions elsewhere in

the Guidelines.

18

sentencing enhancement in connection with drug trafficking,

rather than drug possession, offenses.

52

See, e.g., Navarro, 476 F.3d at 197–98 (upholding the

enhancement where defendant had received a firearm in

exchange for crack cocaine, because the exchange itself

constituted felony drug distribution); Loney, 219 F.3d at 283

(upholding the enhancement where a firearm was found on

defendant’s person along with 29 packets of heroin). This case

is atypical in that respect. It is uncontested that West’s

possession of even a small quantity of marijuana in February

was a felony due to his previous drug convictions, see, e.g.,

Navarro, 476 F.3d at 190 n.3,

53

and, for this reason, the District Court never reached the issue

of whether West was engaged in drug trafficking. The initial

indictment charged West with possession with intent to

distribute in violation of 21 U.S.C. § 841(a)(1), but those

charges were dismissed by West’s later plea to possession of a

stolen firearm. The parties disagreed as to whether the

quantities of marijuana and cash seized were indicative of drug

distribution, but the District Court found the question immaterial

to the enhancement analysis because West’s mere possession of

drugs was an appropriate predicate felony. The District Court

therefore made no finding that West possessed marijuana for the

purpose of drug trafficking. Consequently, we will look to our

sister courts in the Fourth, Fifth, and Eighth, which have

52

That is, of course, in cases where the predicate offense

is drug related. “Trafficking” is usually defined as sale,

distribution, or manufacture of a controlled substance—or

possession with intent to sell, distribute or manufacture—but not

simple possession. See, e.g., U.S.S.G. § 2L1.2, comment.

(n.1(B)(iv)).

53

As here, Navarro’s possession of cocaine and

marijuana was a felony because he had at least one prior drug

conviction. However, because the Government incorrectly

conceded that Navarro’s simple possession was not a felony, we

did not address his possession of a firearm in connection with

that offense, but rather with a separate and uncharged felony

offense of drug distribution.

19

analyzed the application of § 2K2.1(b)(6) in drug possession

(i.e., non-trafficking) cases, for guidance.

The Fourth, Fifth and Eighth Circuits have distinguished

possession offenses from trafficking offenses when applying the

enhancement under § 2K2.1(b)(6). Those Circuits have 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. With a drug trafficking

offense, on the other hand, a court is permitted to presume that

a firearm in relatively close proximity to drugs is used “in

connection” with the offense. For example, in United States v.

Jenkins, 566 F.3d 160 (4th Cir. 2009), the Fourth Circuit

observed:

[D]rug trafficking offenses and drug possession offenses

are [not] treated the same for purposes of Section 2K2.1(b)(6).

In the case of a drug trafficking offense, Application Note 14(B)

provides that when ‘a firearm is found in close proximity to

drugs, drug-manufacturing materials, or drug paraphernalia’ the

firearm necessarily ‘has the potential of facilitating another

felony offense’ and thus Section 2K2.1(b)(6) applies. But, in

the case of a drug possession offense, the general rule of

Application Note 14(A) governs, and therefore the district court

must evaluate whether the firearm ‘facilitated, or had the

potential of facilitating’ the other offense to determine whether

Section 2K2.1(b)(6) applies.

See id., 566 F.3d at 163 (internal citation omitted); see

also United States v. Jeffries, 587 F.3d 690, 692–93 (5th Cir.

2009) (under Application Note 14, a four-level enhancement is

permitted for non-trafficking drug offenses only if a firearm

facilitates or has the potential to facilitate the offense); United

States v. Mansfield, 560 F.3d 885, 887–88 (8th Cir. 2009) (an

underlying drug trafficking offense requires automatic

application of the four-level enhancement, but an underlying

simple drug possession offense requires an initial determination

that the firearm facilitated, or had the potential to facilitate, the

offense); United States v. Blankenship, 552 F.3d 703, 705 (8th

Cir. 2009) (when a defendant subject to a § 2K2.1(b)(6)

adjustment possesses a “user” amount of drugs and is not a

20

trafficker, the district court must affirmatively find that the

weapon facilitated the drug offense before applying the

adjustment); United States v. Smith, 535 F.3d 883, 885 (8th Cir.

2008) (evidence did not prove that a defendant’s simultaneous

possession of firearms, ammunition, and drug residue in his

home was anything other than coincidence). We believe this

distinction is appropriate.

The District Court correctly found that West possessed

the marijuana in the glove compartment of his car in February,

based on West’s own admissions during his post-arrest

interview.

54

The amount was unspecified but described as “small.”

55

The Government suggested that West acquired the cash found

in his glove compartment from the sale of illegal narcotics, and

pointed to the small amount of marijuana also located there to

support this contention. The District Court heard testimony

from West’s mother that $5,000 of the $9,000 was her gift to

West for the purchase of a new car, and she produced a check

stub for $5,000 to support that claim.

56

She also testified that she believed the remaining $4,000 was

earned by West, but no further evidence was offered to

corroborate that testimony.

57

The Government did not refute Ms. Chapman’s explanation

for the source and purpose of the cash, and the District Court

made no finding that the money was suggestive of drug

trafficking. Because the District Court did not make a factual

finding that West was engaged in drug trafficking, the District

Court was required to make a specific finding that the gun at

issue facilitated or had the potential to facilitate the possession

offense.

54

See Sentencing Tr. 11.

55

Appellant’s Br. 5; Sentencing Tr. 7.

56

Sentencing Tr. 59–60.

57

Id. at 62.

21

In its written Opinion issued before sentencing, the

District Court made a preliminary finding that West possessed

three guns in connection with his felony possession of

marijuana—the guns found in the glove compartment and trunk

of West’s car in February, and the gun recovered from his

girlfriend’s apartment in July—but reserved its final ruling for

the sentencing hearing.

58

As we discussed at length supra Part IV.A., the firearm

recovered in July no longer bears on the analysis of the §

2K2.1(b)(6) enhancement. At sentencing, the District Court

concluded that West did not possess the .45 caliber gun found in

the glove compartment, and sustained West’s objection to the

two-level enhancement for possession of three guns under §

2K2.1(b)(1)(A). We agree with this conclusion. In overruling

West’s objection to the four-level enhancement under §

2K2.1(b)(6), however, the District Court did not re-visit its

earlier determination that firearms “in close proximity to the

drugs and easily accessed by West . . . . undoubtedly

emboldened him in his possession of the drugs.”

59

That conclusion was based on the District Court’s initial

finding that West possessed all three firearms, including the .45

in the glove compartment with the marijuana, but only one

58

See Mem. Op. & Order 11–14.

59

Id. at 12 (paraphrasing United States v. Regans,

125 F.3d 685, 686–87 (8th Cir. 1997) (applying the

enhancement where the predicate offense was simple possession

because, “when a drug user chooses to carry his illegal drugs out

into public with a firearm, there are many ways in which the

weapon can facilitate the drug offense and dangerously

embolden the offender”)). Regans was issued more than nine

years before the implementation of Application Note 14 and the

Eighth Circuit decisions discussed herein, and we do not find its

reasoning persuasive here. Furthermore, Regans possessed a

gun on his person at the same time he possessed heroin on his

person, while West had neither guns nor drugs on his person at

the time of either arrest.

22

gun—the .38 revolver in the trunk of the car—remains relevant

to our analysis here.

60

In finding that West’s possession of firearms emboldened

his possession of drugs, the District Court relied on this Court’s

decision in Loney.

61

There, we instructed that the term “in connection with”

should be construed “broadly” and “expansively” to express

“some relationship or association . . . such as a causal or logical

relation or other type of relationship.” 219 F.3d at 284.

However, Loney should not be read to imply that simply

possessing a firearm during the commission of another felony

offense is sufficient to invoke the enhancement of §

2K2.1(b)(6). See Loney, 219 F.3d at 284–85; see also United

States v. Gregory, 345 F.3d 225, 229 (3d Cir. 2003). As the

Supreme Court cautioned in Smith, and as this Court has

reiterated, “‘the presence or involvement [of the firearm] cannot

be the result of accident or coincidence.’” Loney, 219 F.3d at

286 (quoting Smith, 508 U.S. at 238). While a weapon’s

physical proximity to narcotics may be sufficient to show a

connection between the weapon and the drug charges in some

cases, see Loney, 219 F.3d at 289, quoting United States v.

Gomez-Arrellano, 5 F.3d 464, 466–67 (10th Cir. 1993), we hold

60

As we state above, the District Court must make

a specific finding that the .38 revolver in the trunk facilitated or

had the potential to facilitate West’s possession of the marijuana

located in the glove compartment.

61

Like Regans, Loney was decided several years

before the implementation of Application Note 14, on a similar

set of facts. Loney was arrested with both a loaded gun and 29

packets of heroin beneath his clothing, and this Court had no

difficulty in concluding that “when a defendant has a loaded gun

on his person while caught in the midst of a crime that involves

in-person transactions . . . a district judge can reasonably infer

that there is a relationship between the gun and the offense . . .

.” Loney, 219 F.3d at 288. In those circumstances, the

“immediate availability of the gun” has the potential to facilitate

such an in-person offense, and is sufficient to establish the

necessary connection under § 2K2.1(b)(6). See id.

23

that, where the predicate drug offense is possession, mere

proximity is insufficient to establish the required nexus.

The sparse facts of record do not support the conclusion

that West’s possession of the .38 revolver located in a backpack

in the trunk of his car emboldened him to engage in the crime of

marijuana possession, or served to protect the marijuana in his

glove compartment. The evidence that would permit a

sentencing court to draw such a conclusion must be something

more than simultaneous possession of a small quantity of drugs

and a firearm in the same vehicle, otherwise, the limitation of

Application Note 14 to drug trafficking has little effect. See

Jeffries, 587 F.3d at 695. West stated that he found the .38

revolver on the back seat of the car several days before he

placed marijuana in the glove compartment. West did not

explain how the gun came to be in a backpack in the trunk of the

car, where it was not very easily accessible to West from the

passenger area of the car. West has not claimed that he

possessed the .38 for self defense, as did the defendant in Loney.

In fact, although West ultimately pleaded guilty to possession of

the .38, nothing in the record suggests that West had ever used

or intended to use the gun. West’s lackadaisical attitude toward

firearms,

62

while admittedly troubling, may support his argument that the

presence of firearms and drugs in his vehicle was purely

coincidental. The Government offered no evidence to support

its contention that the mere presence of the .38 in the vehicle

facilitated West’s drug possession, and nothing in the record

suggests that West was more or less likely to possess marijuana

and cash based on the presence or absence of that firearm.

Because the District Court did not make a finding that West was

62

By way of example, according to State Trooper

Michael Reffeor, West told Reffeor that, on the morning he

found the .38 in his car, he simply “laid it back on the back seat

of the car and proceeded to just drive around Williamsport doing

errands.” Sentencing Tr. 12. The record does not reflect that

West ever attempted to conceal his firearms from police; he was

remarkably forthcoming when asked about the presence of

firearms in Ms. Martin’s apartment in July, and freely consented

to the police search of his vehicle in February.

24

engaged in drug trafficking, nor did it make a finding that the

.38 revolver facilitated or had the potential to facilitate West’s

drug possession, the District Court’s application of the four-

level enhancement under § 2K2.1(b)(6) will be reversed.

V.

For the foregoing reasons, we vacate the sentence

imposed by the District Court and remand for resentencing

consistent with this Opinion.

25