Petition for Writ of Certiorari — Brian L. Posley, Jr., Petitioner v. United States

NO.

IN THE

SUPREME COURT OF THE UNITED STATES

BRIAN L. POSLEY, JR.

Petitioner

vs.

UNITED STATES OF AMERICA,

Respondent.

ON PETITION FOR A WRIT OF CERTIORARI TO

THE UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

PETITION FOR WRIT OF CERTIORARI

BELL & HOBBS

wy. (Ds !

R. Dee Hobbs, Tennessee BPR #10482

Appointed Counsel for Brian L. Posley, Jr.

P.O. Box 11308

Chattanooga, TN 37401

Email: bell.hobbslaw@gmail.com

(423) 266-6461/ Fax 756-8521

QUESTION PRESENTED FOR REVIEW

Whether the four-level sentencing enhancement provision in USSG § 2K2.1(b)(6) should

be applied in cases where ammunition only is found, although bullets alone cannot facilitate

another felony offense as a firearm can, and despite the directions of set forth in the comments to

this Guidelines provision.

LIST OF PARTIES

All parties appear in the caption of the case on the cover page. A list of all parties to the

proceeding in the court whose judgment is the subject of this Petition is as follows:

Brian L. Posley, Jr., Petitioner

United States of America, Respondent

TABLE OF CONTENTS

QUESTION PRESENTED FOR REVIEW............:ccsseecccceeeecceeeeceeeeecseceeeseeeeeseegeesees ii

LIST OF PARTIES...0....000.cccesssesssseecesecsceeeceessenaeeessseseeessssecesevassaeeeeeccensaeenesees ti

TABLE OF CONTENTS. .........::cesscesecscsssceeecceeesseeceneeensccessseeeseeaeeeeesesesessseenseasees iii

INDEX TO APPENDICES. ............::ssessessssssssececccceseeseeeeceeeeeceeeseeseeeeessseeeeecescessts iii

TABLE OF AUTHORITIES. ........... 0... cceceeecceeeccccceeeeteeeceeseeesaeeecesaaaceceueaseccceasesess iv

PRAYER.....- ccc ecsssescccescennneeeseeeeeecessaeneeaneeneeeeseeceeeeeeeeceeeeeeeseeesaaaaueuseeeeeeessuereess 1

OPINION BELOW...........:0::eeesseccecccscnseeceeecceceseeceeessensceecessecessecseuaecsscesaesessseeses 2

JURISDICTION ..........:sccseessesseeesssssceseeseeereseneceeeaeuaneeeceseeessagaususccecesseuanseeuarese vas 3

STATUTES, ORDINANCES AND REGULATIONS INVOLVED...........:ccceeeecececccveeseeaes 4

STATEMENT OF THE CASE..............:ccseeeececceceeeceeneeeceeceeecssssaussesccsssueaseasensesesees 5

Review is necessary because the Sixth and Eleventh Circuit have issued binding

decisions that possession of ammunition alone is sufficient to trigger application of

the four-level enhancement provided under USSG § 2K2.1(b)(6), regardless of

whether the ammunition alone had the potential of facilitating an underlying crime.

This is an important question of federal law that has not been, but should be, settled

by this Court.

CONCLUSION. .........ccccceccessensneceeeseeeessseeseessneasessessecscessesssssnsgssecstenteauracenas 18

INDEX TO APPENDICES

DECISION OF SIXTH CIRCUIT COURT OF APPEALS.......0.00.0-cccccccceececeeseceesseeeesene 20

TABLE OF AUTHORITIES

Cases

James v. United States,

217 Fed. Appx. 431 (6th Cir. 2007) 0... scsssssssssssssessscsesesessssssesesssesecessesesscsesssesecsuscousssenseaceess 13

Smith v. United States,

SOS U.S. 2123 (1993). oe cecccccscccccccccescacenecseeeceecsecescceccseeeusaesseceeeescecssesuausensras 7,15

United States v. Bullock,

526 F.3d 312 (6th Cir. 2008).......eccssssssssssescecessesesescsssesssesssecesssseeesescessesseusuesassscssssesscessessvenceess 14

United States v. Burns,

498 F.3d 578 (6th Cir. 2007)........essssscsssssecssosssssescecessesscsssessssessssusssacssscsssscsesesesesessensaveveceres 13, 16

United States v. Chappell,

334 Fed. Appx. 970 (11th Cir, 2009) 0... cccssssseesesesssesssssescsessssesscecssensesscscacecscsescessarenessesesseees 11

United States v. Clay,

346 F.3d 173 (6th Cir. 2003)........cccssccsessrsssscscsccsseceesesesessssecseessessesensstscsesscssasesssevscsesasscosesneeseses 13

United States v. Coleman,

627 F.3d 205 (2010)... sssssssssescsosssscssesassesscscossesscsescsesessvssseessusessusssssssscsesasssusesesacaeavesereee passim

United States v. Davis, .

372 Fed. Appx. 628 (6th Cir. 2010)... ...secssssssssssscsessssnceessssersssssssessesnessssssesevecsucssscessaneeseeneeesece 10

United States v. Ennenga,

263 F.3d 499 (6th Cir, 2001).....cscssccssecsssssssceserssssecsscecssesssstsssssessssussesscsssaccesneceaneerevcareneceresee 14, 15

United States v. Fuentes-Torres,

529 F.3d 825 (8th Cir. 2008).......sssccsccssscsscsssscnscesesesessssessssusessssesstsssscssscavssevsesceesacseceecscereneeseases 8

United States v. Hardin,

248 F.3d 489 (6th Cir. 2001)... csssesssssssssssessensssessesssessesossessacsssssscesrcerenssesneetenereserecsacerene 10,13,14

United States v. Henry, .

878 F.2d.937 (6th Cir, 1989)... esscssscsssssscsesscsncecsscecsssssssscsssssssussessarsarcsecsescaeereceserseereesevsuseses 13

United States v. Moore,

239 F. Appx. 137 (6th Cir. 2007). .....ecscsssessscsssesssecssssecsessessssussssseserserstoussecesesecseseesecsessessanencess 10

United States v. Posley,

No. 16-6856, 2017 WL 3867818 (6th Cir. September 5, 2017) .....sscssecssssssssesssssecesereserees passim

United States v. Regans, 125 F.3d 685, 686 (8" Cir. 1997), cert. denied 523 U.S. 1065

(1998)... ...ccceccc cee centesanecceseececaeesseususessuaeceseeseceuesseuaussscuscaseeeecucerenseuesssusaanesenens 8

United States v. Rhind,

289 F.3d 690 (11th 2002)... eee csssesceccccueseecscecesveeeccssscuueesceceaseccanensseesesauscse sees 9

United States v. Richardson,

510 F.3d 622 (6th Cir. 2007)...... ee ecccceccscesseecccccsssecccccccsecenrecessesseceenseesenseesersress 13

United States v. Rogers,

333 Fed. Appx. 975 (6th Cir. 2009).........c.:ssscccessceussssessvececcsccueteceescecesuscesseseestece 13

United States v. Smith,

480 F.3d 1277 (11th Cir. 2007)......coossssssescsssssssssssssssssssesesssssesesssssascssasessssusesesssssssueesesseseeeeceesseces 9

United States v. White,

144 Fed, Appx. 486 (6th Cir, 2009).....secccccssssscssssssssssscssenssesecsssssssssssecssevssessssnssssesesenseccescesseescc 13

United States v. Willis,

283 Fed. Appx. 368 (6th Cir. 2008) .......seseccssssssccssssssssssssssssesesssnssesssssarssssessssssassssssnsaneesseseeecccesee

United States v. Young,

115 F.3d 844m 838 (11th Cir, 1997) ...csccccssssssssssssssssessscssesesscsssecssssesssasscssosssusecessansseseccseesecesec! 9

Statutes

18 U.S.C. § 924(C)(L) srssosseceesssssconssesccessvsssessessuesesenssssssessnassssassessensuvasuasasesuunneneessssesesceseesecc 8

18 U.S.C. § 924 (6) seccsssssssssccssnnnnceseescerssssssossssssssssssnseessseesesssssasaesssuusasssssssiutassnssenassesseesesssssee 9

28 U.S.C. § 1254(1)....

Title 18 U.S.C. § 922(g) .....ssssssescssssssseesescsesssssssssnnessessnessensesuesnsssssensapasuinssttnavssaseseeesesesececeseescs 5

Rules

USSG §2K2.1 weesscssssssssssnssssvesssssssecccssessssssssussccsesceseessssenesseseatsstsssssstavessosssuaseesessessees

USSG § 2K2.1(b)(5)

USSG § 2K2.1(b)(6)

USSG § 2K2.1(b)(6)(B)..

USSG § 4B1A(D)(B)CA) aa cecssecesvssssesssssssessecsesscccccecesssssssssssssssentncensseranansssunsssastssssssssiseaseseceececcesces

Other

USS. Sentencing Guidelines Manual, Supplement to Appendix C, 170-77 (2010)(Amendment

ODI). ceeeeeseveeceesesseeseessessesssesseesseessecssecsssssvsceseuaseassatsssasessecbtteectseteccssececeeen 7,9

IN THE

SUPREME COURT OF THE UNITED STATES

PETITION FOR WRIT OF CERTIORARI

Petitioner, Brian L. Posley, Jr., respectfully prays that a writ of certiorari issue to review

the judgment below.

OPINION BELOW

A copy of the opinion of the United States Court of Appeals for the Sixth Circuit is

attached as Appendix A to this Petition and is styled United States v. Posley, No. 16-6856, 2017

WL 3867818 (6" Cir. September 5, 2017).

JURISDICTION

On September 5, 2017, the Court of Appeals for the Sixth Circuit entered its ruling

affirming the district court. United States v. Posley, No. 16-6856, 2017 WL 3867818 (6" Cir.

September 5, 2017). The jurisdiction of this Court is invoked under 28 U.S.C. § 1254(1).

STATUTES, ORDINANCES AND REGULATIONS INVOLVED

(1) USSG § 2K2.1(b)(6):

If the defendant used or possessed any firearm or ammunition in connection with another

felony offense...increase by 4 levels.

(2) USSG §2K2.1 Cmt.N. 14:

“In Connection With”.--

(A) In General.--Subsections (b)(6)(B) and (c)(1) apply if the firearm or ammunition

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

respectively.

(B) Application When Other Offense is Burglary or Drug Offense.--Subsections

(b)(6)(B) and (c)(1) apply (i) in a case in which a defendant who, during the course of a

burglary; finds and takes a firearm, even if the defendant did not engage in any other

conduct with that firearm during the course of the burglary; and (ii) in the case of a drug

trafficking offense in which a firearm is found in close proximity to drugs, drugmanufacturing materials, or drug paraphernalia. In these cases, application of subsections

(b)(6)(B) and (c)(1) is warranted because the presence of the firearm has the potential of

facilitating another felony offense or another offense, respectively.

(C) Definitions.--

“Another felony offense”, for purposes of subsection (b)(6)(B), means any federal, state,

or local offense, other than the explosive or firearms possession or trafficking offense,

punishable by imprisonment for a term exceeding one year, regardless of whether a

criminal charge was brought, or a conviction obtained.

STATEMENT OF THE CASE

On February 25, 2016, fugitive officers of the Chattanooga Police Department arrived at

4622 Paw Trail in Chattanooga, Tennessee in search of Brian L. Posley, Jr., who had active state

warrants for a probation violation and failure to appear. After confirming that Mr. Posley was

present, the officers demanded that he come outside the residence. He followed their commands

without incident.

A search incident to the arrest on the outstanding warrants took place, during which a

bag containing 9 millimeter bullets and 2.6 grams of powder cocaine was found in the left front

pocket of Mr. Posley’s jeans. The sum of $700 in cash was also found on Mr. Posley. A

subsequent search of the residence resulted in the discovery in the bathroom of 40.5 grams of

marijuana and 2.3 grams of crack cocaine. Further, the arrest report created after the arrest

references Mr. Posley’s involvement in gang activity. No firearm was identified or recovered,

however.

On April 26, 2016, a federal grand jury in the Eastern District of Tennessee returned an

indictment charging Mr. Posley with one count of being a felon in possession of ammunition in

violation of Title 18 U.S.C. § 922(g). Mr. Posley entered a guilty plea to the one count pursuant

to a written plea agreement. The plea agreement contains no reference to any other crime being

coupled with or facilitated by Mr. Posley’s unlawful possession of ammunition

A Presentence Investigative Report (“PSR”) was prepared by the United States Probation

office utilizing the 2015 edition of the Federal Sentencing Guidelines Manual. According to the

PSR, Mr. Posley’s base offense level was established at 20 under United States Sentencing

Guideline (USSG) § 2K2.1.

This base offense level, however, was enhanced by four levels under USSG §

2K2.1(b)(6)(B) because it was determined that Mr. Posley committed the offense in connection

to a felony drug trafficking offense, possession of drugs for resale. This conclusion was made

after the plea agreement was offered and after Mr. Posley’s change of plea hearing. This

determination was the first reference in the record to the ammunition being held in order to

facilitate another felony. Mr. 'Posley’s adjusted offense level under the PSR thus became 24.

Mr. Posley filed objections to the PSR on November 16, 2016, taking issue with the four

level enhancement applied under USSG § 2K2.1(b)(6)(B). Soon afterward, the PSR was

amended to reference United States v. Coleman, 627 F.3d 205 (2010). The Addendum concluded

that Coleman: “...[P]rovides a basis for a plain language reading of the Special Offense

Characteristic. The facts of Coleman are similar to Posley in that the defendant possessed

ammunition in relation to a drug trafficking offense and the appellate court upheld the

application of the four-level upward adjustment.”

The sentencing hearing followed on December 16, 2016. Mr. Posley again stated the

basis for his objection to the four level enhancement. After taking a recess, the trial court asked

how Mr. Posley, despite a sporadic work history, was in possession of $700 in cash unless he

was engaged in drug trafficking as was now being claimed by the government. Despite

reservations about the nature of the felony that purportedly was facilitated by Mr. Posley’s

possession of ammunition, the lower court determined that Coleman governs this case, stating in

pertinent part as follows:

The defendant had the ammunition and drugs on his person, and I don’t think there’s a

teason ... to distinguish between cases where all the drugs are in the house versus some of the

drugs are in the house, as defense counsel suggested I should....1 am going to overrule the

objection. I don’t think this is an overwhelmingly strong case that’s been put on by the

government, but I do think the government has met its burden. Given the defendant’s work

‘

history, the existence the cash, the existence of the various types of drugs, and the amounts, I do

believe the enhancement should be applied.

REASONS FOR GRANTING THE PETITION

This Petition addresses the issue of whether ammunition alone facilitates, or has the

potential to facilitate, another felony offense in the total absence of a firearm. Well before this

case arose, the Sentencing Commission amended USSG § 2K2.1(b)(6) to address a split in the

circuits with respect to the interpretation of the phrase “in connection with” when applying an

enhancement in cases where a firearm was used “in connection with” burglary and drug offenses.

In light of the reasoning of this Court in Smith v. United States, 508 U.S. 2123 (1993), the

Commission renumbered USSG § 2K2.1(b)(5) to USSG § 2K2.1(b)(6) and added Application

Note 14, stating that its provisions applied where a firearm facilitated or had the potential to

facilitate another felony offense or another offense, respectively. See U.S. Sentencing

Guidelines Manual, Supplement to Appendix C, 170-77 (2010) (Amendment 691). Application

Note 14(B), a part of the Amendment, clearly indicates that the four level enhancement applies |

only in cases in which a firearm is found in close proximity to drugs or drug paraphernalia or

materials. In light of the fact that the 2006 amendments to Section 2K2.1 (b)(6) serve to clarify

that the enhancement should only be applied where a firearm facilitates or has the potential of

facilitating a drug crime, the enhancement should not be applied in a case where only

ammunition is present that has no potential of facilitating any crime. The decision of the lower

courts in this case only perpetuates the type of confusion and misapplication that led the

Commission to amend USSG § 2K2.1(b)(6) to begin with.

This important question of federal law has not been addressed by this Court. This issue

has arisen at least twice in reported opinions of the Sixth Circuit, including the present matter,

and each such case has drawn a dissent over the question of how ammunition “facilitates” an

underlying offense. This issue has broad implications for any defendant who may be subject to

the enhancement of §2K2.1 (b)(6) based only on the sole possession of ammunition, regardless

of whether that ammunition facilitates or has the potential to facilitate another offense.

Meanwhile, the decision of the Sixth Circuit in this case to apply the enhancement to these facts

conflicts with relevant decisions of this Court.

A. Background: The split between the circuits which necessitated the

Amendment to Section 2k2.1 (b)(6) in 2006.

Prior to adoption of Application Note 14 (A) in 2006, the Guidelines had not provided

guidance on the term “in connection with,” which at the time was found in USSG § 2K2.1(b)(5).

United States v. Fuentes-Torres, 529 F.3d 825, 827 (gt Cir. 2008). In that case, the Eighth

Circuit applied this Court’s construction of a comparable statutory term, “in relation to,” as

provided in Smith, supra. See United States v. Regans, 125F.3d 685, 686 (8" Cir. 1997), cert.

denied, 523 U.S. 1065 (1998).

In Smith, this Court interpreted. the phrase “in relation to,” as contained in 18 U.S.C. §

924(c)(1), to require that at a minimum a firearm must have some purpose or effect with respect

to a drug trafficking crime, and its presence could not be the result of accident or coincidence.

Smith, 508 U.S. at 238. This Court said, “[TJhe gun at least must ‘facilitate, or have the potential

of facilitating,’ the drug trafficking offense.” Jd. In Regans, where the defendant had only a

small, personal-use amount of drugs and a firearm, the Eighth Circuit nonetheless applied the

provisions of then-Section 2K2.1(b)(5), reasoning that “when a firearm is carried during a drug

offense, including a possession-for-use offense, the drug felon has the ability to use the weapon

in connection with his drug offense:” Regans, 125 F.3d at 686.

Meanwhile, at least one other circuit chose not to interpret Section 2K2.1(b)(5) this way.

The Eleventh Circuit held that the term “in connection with” in USSG § 2K2.1(b)(5) “should be

given its ordinary and natural meaning, and ...expressly rejected a more restrictive

interpretation.” United States v. Smith, 480 F.3d 1277, 1280 (11™ Cir. 2007), cert. denied, 522

U.S. 872 (2007) (citing United States v. Rhind, 289 F.3d 690, 695 (11 2002); United States v.

Young, 115 F.3d 844, 838 (11" Cir. 1997). In Young, the Eleventh Circuit considered the

phrase “in connection with” as it appears in USSG § 4B1.4(b)(3)(A), a guideline applicable to

“armed career criminals” under 18 U.S.C. § 924(e). The Young court interpreted “in connection

with” according to its “ordinary and natural meaning” and found that the term should be read

“quite expansively.” Young, 115 F.3d at 837. The court rejected the “facilitated or potentially

facilitated” interpretation adopted by other appellate courts which interpreted the phrase as it

appeared in § 2K2.1(b)(5). Jd. at 838. Although the Young holding was limited to the armed

-career criminal guideline, in the later Rhind decision the Eleventh Circuit relied on Young to

reject the majority interpretation of § 2K2.1(b)(5). Rhind, 289 F.3d at 695.

In response, in 2006 the Sentencing Commission promulgated Amendment 691, which

modified USSG § 2K2.1 and its Application Notes. See U.S. Sentencing Guidelines Manual,

Supplement to Appendix C, 170-77 (2010) (Amendment 691). The Amendment redesignated §

2K2.1(b)(5) as § 2K2.1(b)(6), id., at 171, Application Note 18, id. at 172, and added the new

Application Note 14, id. at 174-75. Application Note 14 provided in relevant part as follows:

(A) 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.

(B) Application When Other Offense if Burglary or Dmg Offense. —

Subsections (b)(6) and (c)(1) apply (i) in a case in which a defendant,

who, during the course of a burglary, finds and takes a firearm, even if the

defendant did not engage in any other conduct with that firearm during

the course of the burglary; and (ii) in the case of a drug trafficking offense

in which a firearm is found in close proximity to drugs, drugmanufacturing materials, or drug paraphernalia. In these cases,

application’ of subsections (b)(6) and (c)(1) is warranted because the

presence of the firearm has the potential of facilitating another felony

offense or another offense, respectively.

USSG 2K2.1(b)(6) cmt. n. 14(A), (B).

The Sentencing Commission stated the reason for this amendment as follows:

[T]he amendment addresses a circuit conflict pertaining to the application of [§

2K2.1(b)(6)]..., specifically with respect to the use of a firearm “in connection

with” burglary and drug offenses. The amendment, adopting the language from

Smith v. United States, 508 U.S. 223 (1993), provides at Application Note 14 that

the provisions apply if the firearm facilitated, or had the potential of facilitating,

another felony offense or another offense, respectively...In addition, the

provisions apply 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. The Commission determined that application of [§ 2K2.1(b)(6)] is

warranted in these cases because of the potential that the presence of the firearm

has for facilitating another felony offense or another offense.

Id. at 177. The reference by the Sentencing Commission to only a firearm is obvious, as is the

omission on any mention of ammunition alone.

B. A plain reading of § 2K2.1(b)(6) and its Application Note 14 (A) reveals that

more than mere proximity to drugs is required to show that ammunition is

possessed “in connection with” another felony offense.

The Sixth Circuit has determined that “in connection with” under § 2K2.1 has the same

meaning as “in relation to” under 18 U.S.C. § 924 (c)(1). See e.g., United States v. Davis, 372

Fed. Appx. 628, 629-30 (6" Cir. 2010); United States v. Moore, 239 F. Appx. 137, 140 (6 Cir.

2007); United States v. Hardin, 248 F.3d 489, 497 (6 Cir. 2001). This Circuit recognizes the

minimum requirement that a firearm have some purpose or effect with respect to the drug

trafficking crime such that it at least facilitates, or has the potential to facilitate, the drug

trafficking offense before the sanction of § 2K2.1(b)(6) is applied. Hardin, 248 F.3d at 497-98

(quoting. Smith, 508 U.S. at 238) (quotations omitted).

10

The instant case represents the second time that the Sixth Circuit has made an overbroad

application of USSG § 2K2.1(b)(6) and of the term “in connection with” the facilitation or the

potential of facilitation of drug activity. In United States v. Coleman, 627 F.3d 205 (6" Cir.

2010), the majority concluded that for § 2K2.1(b)(6) to apply, possession of ammunition in close

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

make drug trafficking easier or less difficult. Jd In so ruling, the majority simply restated that

the ammunition must have facilitated or had the potential to facilitate an alleged drug trafficking

crime. With all due respect, restating the provisions of USSG § 2K2.1(b)(6) and Application

Note 14(A) does not include a determination of any nexus between the possession of ammunition

alone and unlawful drug activity.

In support of its analysis, the majority in Coleman cited the unpublished decision of the

Eleventh Circuit in United States v. Chappell, 334 Fed.Appx. 970 (11" Cir. 2009) which upheld

the application of § 2K2.1(b)(6) where only ammunition was found. Coleman, 627 F.3d at 212

(citing Chappell, 334 Fed. Appx. at 973). This analysis drew a dissent from Judge Gilman,

however, who took issue with any reliance on Chappell due to the fact that Chappell contained

no reasoning at all on the issue in question. Jd. (quoting Chappell, 334 Fed. Appx. at 973

(alterations omitted)). In total, the reasoning of the Eleventh Circuit on the determinative issue

was, “The district court was entitled to find that the ammunition had the potential to facilitate

Chappell’s felony possession of methamphetamine.” 334 Fed. Appx. at 973. The remainder of

the opinion contained no explanation as to why the district court was so empowered.

The Coleman dissent stopped short of proclaiming that possession of ammunition only

can never facilitate another felony offense; however, the dissent did note the difficulty of

ascertaining a plain:reading of USSG § 2K2.1(b)(6) that results in applying the enhancement

where only ammunition is found. Coleman, 627 F.3d at 216. In its ruling, the majority in

Coleman failed to explain how its “plain reading” of USSG § 2K2.1(b)(6) did anything more

than blindly enforce the four-level enhancement because drugs were found in close proximity to

ammunition. The present case, then, provided the Sixth Circuit an opportunity to either roll

back a blind application of the enhancement or elaborate on the factors that must exist for the

“fortress theory” to apply to possession of ammunition only. Again, with all due respect, it did

neither.

Instead, the Sixth Circuit in the present case simply concluded that the trial judge had

correctly determined that the mere presence of ammunition in close proximity to drugs

facilitated, or had the potential to facilitate, that offense. In so holding, the Sixth Circuit went on

to conclude that Coleman had been properly followed in determining that a sufficient nexus

existed between the drugs and the ammunition for the enhancement to apply. No explanation for

the conclusion, however, was set forth.

As was true in Coleman, the majority opinion in the present case drew a response, this

time in the form of a conditional concurrence from Judge Merritt, who concurred in the opinion

only because Coleman is “binding precedent.” Judge Merritt went on to state that he is in accord

with the dissent of Judge Gilman in Coleman. Therefore, at least two judges hearing these cases

(which appear to be three in number) have stated that they cannot see how the presence of

ammunition, without more, “facilitated” the underlying drug offense.

To this point in time, neither the Sixth Circuit in Coleman or in this case, nor the

Eleventh Circuit in Chappell, has offered a understandable rationale under a plain reading

analysis. It is necessary for this Court to now provide guidance on the important factors that

12

support a finding that ammunition alone facilitates or has the potential to facilitate a felony

offense.

Cc. Mere possession of ammunition does not satisfy the fortress theory.

The so-called “fortress theory” has long been applied by the Sixth Circuit in determining

whether a defendant’s possession of a firearm is “in connection with” drug trafficking. United

States v. Richardson, 510 F.3d 622, 625 (6" Cir. 2007). Under the fortress theory, “if it appears

that the firearms found on the premises controlled or owned by a defendant and in his actual

constructive possessive are used to protect drugs or otherwise facilitate a drug transaction, then

such firearms are used ‘during and in relation to’ a drug trafficking crime.” Hardin, 248 F.3d at

500 (quoting United States v. Henry, 878 F.2d 937, 944 (6" Cir. 1989)).

Prior to its holding in Coleman, the Sixth Circuit had relied upon the fortress theory only

in cases involving drug transactions, using firearms to protect a valuable stash of drugs, or

having some indication that a firearm was used to keep the defendant safe while using or

transporting drugs. See, e.g. United States v. Rogers, 333 Fed. Appx. 975, 976-77 (6" Cir. 2009)

(unpublished) (enhancement warranted where defendant carried gun to a drug transaction);

United States v. White, 144 Fed. Appx. 486, 487 (6" Cir. 2009) (unpublished) (defendant

apprehended with gun and .3 grams of cocaine in house “often used by others for selling drugs”);

James v. United States, 217 Fed. Appx. 431, 438 (6° Cir. 2007) (unpublished) (gun found in

proximity to 33 grams of marijuana meant for resale); United States v. Burns, 498 F.3d 578, 580

(6" Cir. 2007) (“[P]olice found the firearm in close proximity to drugs and drug paraphernalia

shortly after conducting a controlled buy at the residence.”); United States v. Clay, 346 F.3d 173,

175 (6" Cir. 2003) (defendant apprehended in uninhabited apartment late at night with firearm,

$575 in cash, and 1.6 grams of crack); Hardin, 248 F.3d 489, 500 (6"" Cir. 2001) (gun located

13

near a “large stash of cocaine” for sale); United States v. Ennenga, 263 F.3d 499, 503-04 (en Cir.

2001) (defendant “holed up” in basement apartment containing firearms and several dozen

marijuana plants and protected by an alarm system). “Put differently, § 2K2.1 applies if the

firearm has some emboldening role in [a] defendant’s felonious conduct.” Ennenga, 263 F.3d at

503 (internal quotation marks and citation omitted).

Contrary to the stated belief of the Sixth Circuit (as reflected in these cases) that §

2K2.1(b)(6) is designed to increase punishment for those defendants whose unlawful possession

of ammunition may be assumed to create in the future a heightened risk of violence,

§ 2K2.1(b)(6) was intended to enhance the recommended punishment only for those particular

defendants whose unlawful firearm possession has actually created a heightened risk of violence.

United States v. Bullock, 526 F.3d 312, 316-17 (6" Cir. 2008) (citation omitted). “Thus, [this

Circuit] ha[s] never found that the [Section] 2K2.1(b)(6) enhancement can be applied simply

because there is a theoretical possibility that the firearm may be used to commit a felony at some

unspecified future time.” Jd. at 317. After all, as a general matter there is no presumption created

by §2K2.1 that a defendant’s possession was “in connection with” the other felony offense.

United States v. Hardin, 248 F.3d 489,497 (6" Cir. 2001).

As stated by the dissent in Coleman, “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.” Coleman, 627 F.3d at 216. In

correctly noting that application of the fortress theory requires the actual or constructive

possession of a firearm, the dissent further recognized that: “[OJ]nly actual possession of a

firearm would potentially ‘facilitate’ drug dealing under this [C]ourt’s ‘fortress theory’ because

displaying bullets alone can cause no harm. Jd. (emphasis in original). It was not shown that

14

neither Mr. Coleman nor the Petitioner in this case actually, or even constructively, possessed a

firearm. . ~

Possession of bullets alone, without more, cannot create a heightened risk of violence

such that the enhancement under § 2K2.1(b)(6) would apply. The holdings in both Coleman and

the present case, however, are necessarily dependent on the assumption that at some unspecified

point in the future, the defendant will come to possess a firearm to go with his ammunition. The

record in the present case contains no evidence to support this conclusion, however.

Although possession of an unloaded firearm could certainly embolden a defendant in his

drug activity, since brandishing an unloaded weapon might actually prevent potential buyers

from stealing drugs or harming a defendant, the same is simply not true of the possession of

ammunition. The Sixth Circuit has stated that, “In the narcotics business, firearms are as much

tools of the trade as are most commonly recognized article of narcotics paraphernalia.” Ybarra

v. Illinois, 444 U.S. 85, 106 (1979) (internal quotations and citations omitted). The same has

never been stated as to ammunition, however. In the present case, Mr. Posley’s possession of

ammunition only had no potential to protect drugs, facilitate sales or embolden him in illegal

activity.

“In sum, when a court determines whether to apply the fortress theory pursuant to

Application Note 14(A), it must be decided whether the illegal instrumentality, in this case

ammunition alone, actually facilitated or had the potential to facilitate another offense. As this

Court determined in Smith, followed by the Sixth Circuit in regard to applying Section

2K2.1(b)(6), “[P]ossession of firearms that is merely coincidental to the underlying felony

offense is insufficient to support the application of § 2K2.1.” Ennenga, 263 F.3d at 503; see also

Smith, 508 U.S. at 238 (“[T]he firearm must have some purpose or effect with respect to the drug

15

trafficking crime; its presence or involvement cannot be the result of accident or coincidence.”)

In this case, there was nothing to evidence that possession of ammunition alone had no

emboldening role in an underlying drug crime. Review by this Court is needed to avoid blurring

the distinctions that the amended Guidelines provision was.intended to address.

D. Exercise of this Court’s certiorari jurisdiction is warranted in this case.

The amendments made by the Sentencing Commission to clarify the application of

§ 2K2.1(b)(6) were intended to make distinctions between cases requiring enhancement based on

actual use and cases involving incidental possession of a firearm or ammunition. The Sixth

Circuit has now upheld application of enhancements in cases where possession of ammunition

alone did not facilitate, or potentially facilitate, a drug offense. The net effect of these decisions

is to cross lines of distinction that the amendments were intended to address. The result now

raises an important question of federal sentencing law that has not been, but should be decided

by this Court. There is now the danger of misapplication of the guideline to punish defendants

based solely on the proximity of ammunition to drugs.

In Coleman, the Sixth Circuit majority determined that the fact finding of the district

court was not clearly erroneous. 627 F.3d at 214. The court also found, however, that a plain

reading of USSG § 2K2.1(b)(6) and Application Note 14(A), coupled with application of the

fortress theory, was legally correct. Jd. Further, the court relied at least in part in the Elventh

Circuit ruling in Chappell in affirming the decision of to enforce the Guidelines enhancement

where only ammunition was found. Id.

Should the Court grant this Petition, the plain reading analysis of Section 2K2.1(b)(6)

made in Coleman and in this case is subject to de novo review. See Burns, 498 £3d at 580 (legal

conclusions concerning the interpretation and application of the guidelines are reviewed de

‘

novo). The same holds true on the application of the fortress theory to the facts of this case,

which is also a question of law subject to de novo review. See, e.g., United States v. Willis, 283

Fed. Appx. 368, 369 (6" Cir. 2008) (unpublished). Accordingly, Mr. Posley respectfully

requests this Court to consider the question of whether a plain reading analysis of Section

2K2.1(b)(6) supports its application in this case were only ammunition was found and/or whether

the fortress theory was applied correctly to possession of ammunition only.

17

CONCLUSION

For the foregoing reasons, Petitioner Brian L. Posley, Jr. respectfully prays that this Court

grant certiorari to review the judgment of the Sixth Circuit in this case.

This first day of December, 2017.

BELL & HOBBS

Let)

18

“KR. Dee Hobbs, Tennessee BPR #10482

Appointed Counsel for Brian L. Posley, Jr.

P.O. Box 11308

Chattariooga, TN 37401

Email: bell.hobbslaw@gmail.com

(423) 266-646 1/ Fax 756-8521

NO.

IN THE

SUPREME COURT OF THE UNITED STATES

BRIAN L. POSLEY, JR.

Petitioner

vs.

UNITED STATES OF AMERICA,

Respondent.

CERTIFICATE OF SERVICE

I, R. Dee Hobbs, do swear or declare under penalty of perjury that on this date, December

1, 2017, as required by Supreme Court Rule 29, I have served the enclosed MOTION FOR

LEAVE TO PROCEED IN FORMA PAUPERIS and PETITION FOR A WRIT OF

CERTIORARI on each party to the above proceeding or that party’s counsel, by depositing an

envelope containing the above documents in the United States mail properly addressed to each of

them and with first-class postage prepaid. The names and addresses of those served are as

follows:

Noel Francisco

Solicitor General of the United States

Room 5614, Department of Justice

950 Pennsylvania Ave., NW

Washington, DC 20530-0001

Christopher D. Poole

United States Attorney’s Office

900 Georgia Ave, Chattanooga, TN 37402

With a courtesy copy also e-mailed this same date to the Solicitor,

SUPREMECTBRIEFS@USDOJ.GOV des

CY,

19

APPENDEX

Opinion of the Court of Appeals for the Sixth Circuit in United States v. Posley, 16-6856

(6" Cir. 2017).

20

Case: 16-6856 Document: 20-2 Filed: 09/05/2017 Page: 1

NOT RECOMMENDED FOR PUBLICATION

File Name: 17a0515n.06

No. 16-6856

UNITED STATES COURT OF APPEALS |

FOR THE SIXTH CIRCUIT FILED

Sep 05, 2017

UNITED STATES OF AMERICA, ) DEBORAH 8. HUNT, Clerk

‘ :

Plaintiff-Appellee, )

J } ON APPEAL FROM THE

. ) ” UNITED STATES DISTRICT

COURT FOR THE EASTERN

BRIAN L. POSLEY, JR., } DISTRICT OF TENNESSEE

Defendant-Appellant. )

)

BEFORE: MERRITT, MOORE, and ROGERS, Circuit Judges.

ROGERS, Circuit Judge. Brian Posley pled guilty to being a felon in possession of

ammunition and was sentenced to 70 months’ imprisonment. Posley now appeals the district

court’s application of a four-level enhancement to his base offense level for possessing the

relevant ammunition “in connection with another felony offense” under USSG §2K2.1(b)(6)(B).

Because neither the district court’s finding that Posley was engaged in a felony drug-trafficking

offense nor its decision that Posley possessed ammunition in connection with that offense was in

error, Posley’s sentence stands.

On February 25, 2016, officers with the Chattancoga Police Department visited a house

to execute an arrest warrant that had been issued for Posley due to his failure to appear in court

and his violation of probation. Once there, the officers asked the resident who opened the front

door and another occupant to step outside, leaving Posley alone in the house. The officers saw

‘\

APPENDIX

Opinion of the Court of Appeals for the Sixth Circuit in United States v. Posley, 16-6856

(6" Cir. 2017).

20

Case: 16-6856 Document: 20-2 Filed: 09/05/2017 Page: 2

No. 16-6856, United States v. Posley

Posley walk in front of a window and instructed him to exit the house. Upon arresting Posley

pursuant to the warrant and searching him, the officers found a bag containing four 9mm bullets

and cocaine in his front left pocket, as well as $700 in cash. The officers then searched the

house, where they found marijuana and cocaine in the toilet. The toilet was located in a

bathroom that corresponded to the location where the officers saw Posley walk across a window

just before he exited the house. In total, the officers found 2.3 grams of crack cocaine, 2.6 grams

of cocaine, and 40.5 grams of marijuana, and Posley confessed to the officers that the drugs were

his.

A grand jury charged Posley with being a felon in possession of ammunition in violation

of 18 U.S.C. § 922(g)(1), and Posley pled guilty to the offense. A probation officer prepared a

presentence investigation report (PSR), which revealed that Posley had charges pending against

him in state court for possessing drugs for resale during the February 25, 2016 incident. The

PSR also stated that Posley was employed during only four of the thirty months preceding his

arrest. The PSR placed Posley’s base offense level at 20 and added a four-level enhancement

under USSG §2K2.1(b)(6)(B) for Posley’s possessing ammunition in connection with a felony

drug-trafficking offense. After a three-point reduction for acceptance of responsibility, Posley’s

total offense level was 21. Combined with a criminal history category of V, the PSR calculated

Posley’s sentencing range at 70 to 87 months’ imprisonment.

Posley’s sole objection to the PSR involved the four-level enhancement for possessing

ammunition in connection with a felony offense. After hearing arguments at the sentencing

hearing, the district court overruled Posley’s objection. The court held that “{g]iven the

defendant’s work history, the existence of the cash, the existence of the various types of drugs,

and the amounts,” the Government had met its burden of proving that Posley was involved in

Case: 16-6856 Document: 20-2 Filed: 09/05/2017 Page: 3

No. 16-6856, United States v. Posley

drug trafficking. Furthermore, the court relied on our decision in United States v. Coleman,

627 F.3d 205 (6th Cir. 2010), to conclude that the close proximity between the ammunition and

the drugs rendered Posley’s possession of the ammunition “in connection with” the drug

trafficking. The district court then sentenced Posley to 70 months’ imprisonment. Posley now

appeals.

The district court did not err by applying §2K2.1(b)(6)(B)’s four-point enhancement to

Posley’s base offense level. The enhancement is appropriate when “the defendant used or

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

§2K2.1(b)(6)(B) (2015). Application note 14(A) further describes that the enhancement applies

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

offense.” Jd. comment. (n.14(A)). The district court did not clearly err when it determined that

Posley possessed the drugs in his house and on his person for resale—a felony drug-trafficking

offense—and correctly determiried that the mere presence of ammunition in close proximity to

the drugs facilitated, or had the potential to facilitate, that offense.

The Government presented sufficient, reliable facts to prove by a preponderance of the

evidence that Posley possessed the drugs found during his arrest for resale, Contrary to Posley’s

assertion, more than “mere possession of the drugs ..., coupled with abject speculation that his

having $700 in cash ‘must have’ come from drug dealing,” supports the district court’s

conclusion. First, the fact that Posley had three types of drugs supports an inference that the

drugs were not for personal use. Furthermore, as the district court noted, the sentencing

guidelines indicate that 40.5 grams of marijuana would create around 81 cigarettes. USSG

§2D1.1, comment. (n.9). Posley objected to this weight calculation, noting that, because the

marijuana was found in the toilet, it was weighed down with water Regardless of whether the

Case: 16-6856 Document: 20-2 Filed: 09/05/2017 Page: 4

No. 16-6856, United States v. Posley

40.5-gram figure was slightly inflated from water weight, however, the district court reasonably

concluded that the amount of marijuana in Posley’s possession “seem[ed] like quite a bit for

[him] to not be distributing.” The district court’s conclusion that the $700 in cash in Posley’s

front pocket likely came from drug sales is also reasonable, given that Posley had barely been

employed for the thirty months preceding his arrest. Finally, it was at least probative that, at the

time of his sentencing, Posley had been charged in state court for possessing the very drugs at

issue for resale. Considering all of these incriminating facts, it was not clear error for the district

court to find that Posley held the drugs for resale, which constitutes a felony offense in

Tennessee, see Tenn. Code Ann. § 39-17-417(a)(4), (g)(1)(2010).

The district court also properly relied on United States v. Coleman, 627 F.3d 205 (6th

Cir. 2010), to hold that there was a sufficient nexus between the ammunition and the drugs to

render §2K2.1(b)(6)(B)’s enhancement applicable. In Coleman, officers discovered ammunition

and marijuana together in a defendant’s residence. 627 F.3d at 208. After the defendant pled

guilty to being a felon in possession of ammunition and was sentenced pursuant to

§2K2.1(b)(6)(B)’s enhancement, he argued that his possession of ammunition, alone, could not

have facilitated his felony drug-trafficking offense. In rejecting the defendant’s challenge, we

relied on the “fortress theory,” under which “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.” 627 F.3d at 212 (alteration in original) (quoting United States v.

Richardson, 510 F.3d 622, 626 (6th Cir. 2007)). We applied the fortress theory to ammunition

and held that ammunition has the capacity to facilitate a drug-trafficking offense, as required

under §2K2.1(b)(6)(B), whenever it is in close proximity to the drugs involved in the offense.

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