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Sentencing Enhancements Need More Than Physical Proximity

The Third Circuit vacated a sentence based on an improper sentencing enhancement concerning drugs and guns and the issue of physical proximity

Perez’s Procedural History With Sentencing Enhancements

Perez was charged with selling firearms and controlled substances to confidential informants and undercover officers.  He sold two firearms to an undercover officer in May of 2017.

The firearms were kept under a mattress in the room where the drugs were sold.  The officer also observed drugs, drug-packing materials and drug paraphernalia in the same room.

Perez was charged with crimes involving the sale of drugs or guns.  He pled guilty to the indictments.   The Presentence Investigation Report came back with a total offense level of 29 and a guideline range of 121-151 months.  This included a four level enhancement under USSG 2k2.1(b)(6)(B) for “us[ing] or possess[ing] any firearm in connections with another felony offense.”

Perez objected, indicating that he did not use the guns “In conjunction with” his felony drug trafficking offense because he was merely offering the guns in the same room as the drugs.  But the court disagreed, indicating that the guns “were in close proximity to drugs and drug material.”

The Application of USSG 2K2.1

Section 2K2.1(b)(6)(B) of the Sentencing Guidelines requires a four-level sentencing enhancement in cases where a defendant “used or possessed any firearm in connection with another felony offense.

The Sentencing Commission’s commentary to this provision, however, applies different rules based on the type of other felony involved. By default, the enhancement applies under Note 14(A) of the commentary “if the firearm facilitated, or had the potential of facilitating, another felony offense.”

When a person engages in drug trafficking, USSG 2K2.1 Note 14(B) indicates that the four-level enhancement applies as long as the firearm “is found in close proximity to drugs, drug-manufacturing materials, or drug paraphernalia.”  This special rule is justified “because the presence of the firearm has the potential of facilitating another felony offense.”

Enhancements in Sentencing Based on Accidental or Coincidental?

So the question is which one of these things should get used, the rule or the commentary?  The Third Circuit here indicated “that the plain text of the Guidelines should control unless the language is genuinely ambiguous.”  Further, in Kisor v. Wilkie, ––– U.S. ––––, 139 S. Ct. 2400, 204 L.Ed.2d 841 (2019), the Supreme Court held that the Guidelines received deference when “the Guidelines’ language is ambiguous, the Commentary itself is reasonable, and the “character and context” of the Commentary “entitle[ ] it to controlling weight.”

The court determined that the text of the guideline was ambiguous.  The court noted that Note 14 was made in order to address a growing conflict among circuits regarding the interpretation of 2K2.1(b)(6). Further, this conflict “was based, at least in part, on disagreement concerning whether the phrase “in connection with” encompassed those cases where the firearm’s presence was merely accidental or coincidental.”

The court also noted that Note 14(B) met the requirements of Kisor “because its character and context entitle it to controlling weight.”  The parties agreed that the note was the Sentencing Commission’s official position and several other things to determine this.  This meant that the court had to consider whether Note 14(B) was reasonable.

The court determined that it was reasonable because “’physical proximity alone may be insufficient in some cases’ to establish that the firearm had the potential to facilitate drug activity. This standard requires ‘some relationship’ between the firearm and the defendant’s drug offense.

Guidance for Sentencing Enhancements

Practically speaking, this means that a sentencing court cannot stop reading Note 14(B) after the ‘close proximity’ language in the first sentence. It must continue to the second sentence, which provides that the Note should apply in cases where “the presence of the firearm has the potential of facilitating” a drug-trafficking offense.

The court must further take into account Note 14(E), which directs sentencing courts to ‘consider the relationship’ between the firearm and drug-trafficking offenses.”

A Rebuttable Presumption

The court held:

“that Note 14(B) creates a rebuttable presumption that the enhancement should apply for a drug-trafficking offense when a firearm is found in close proximity to drugs or related items… In deciding whether a defendant has successfully rebutted the presumptive relationship between firearms and drug-trafficking activities based on proximity alone, a sentencing court may look to any factors it deems relevant. By analogy, we have considered a similar presumption under  U.S.S.G. § 2D1.1(b)(1)4 and identified factors that will ordinarily matter: (1) the type of gun involved, with handguns more likely to be connected with drug trafficking than hunting rifles; (2) whether the gun was loaded; (3) whether the gun was stored (or, we add, possessed) near the drugs or drug-related items; and (4) whether the gun was accessible…We think these factors provide a helpful starting point for Note 14(B) as well. But again, the primary inquiry under  § 2K2.1(b)(6)(B) must be whether there is a relationship between the firearm and the defendant’s drug-trafficking offense…That relationship may be presumed if the firearm is found in close proximity to drugs or related items, but the defendant must have the opportunity to disprove it based on the facts of each case."

Because Perez did not have an opportunity to disprove in this case the Third Circuit vacated the judgment and remanded the case back down to the district court for further proceedings.  19-1469

Photo Credit:  Beyond My Ken, CC BY-SA 4.0 <>, via Wikimedia Commons

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