Jeremy Gordon

Fifth Circuit Remands Case Back to District Court for Resentencing on Gun Enhancement: Sincleair

The Fifth Circuit vacated a sentence based on a gun enhancement that was not clearly explained by the district court.

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Sinclear's Conduct and Case

Sinclear was found at a house along with Wood, Ilczyszyn, Markenzinis and Blackman.  The officers also found 51 grams of meth and a firearm in the house.  The Presentence Investigation Report indicated that Sincleair was the meth source for Wood.  Further, “The PSR also stated that Sincleair, Ilczyszyn, and Blackman met at Wood’s residence on May 18, 2017 ‘so Ilczyszyn could distribute one ounce of methamphetamine to Wood.’”

Sinclear was charged with conspiracy to possess with intent to distribute a controlled substance

“The probation office prepared a PSR, which held Sincleair accountable for conspiring with Kuhn and Wilbur to possess with intent to distribute 26,166.3 kilograms of methamphetamine and gamma hydroxybutyric acid (GHB) between September 2016 and June 2017. Sincleair was not held accountable for the 51.4 grams of methamphetamine seized on May 18, 2017 from Wood’s residence, where the weapon at issue was present, because it could have been “double counting the methamphetamine he received from Kuhn.” The PSR calculated Sincleair’s total offense level at 35, which included a two-level firearm possession enhancement under  U.S.S.G. § 2D1.1(b)(1). The PSR explained that the firearm enhancement was applied because the May 18, 2017 search occurred in a residence where a drug transaction was in progress, Sincleair was present, and a firearm was also present.” 

Sinclear's Objections

“[Sinclear] argued that the enhancement should be removed because his presence at Wood’s house on May 18, 2017 was not related to the drug conspiracy to which he pleaded guilty because he and Blackman were at Wood’s home to engage in drug use and not drug trafficking, the firearm was later confirmed to be owned by and registered to Wood, and it was “not foreseeable that a firearm would be needed in a social setting amongst two couples involved in recreational drug use.”

The probation department indicated that the addendum was appropriate because Sincleair was the source for Ilczyszyn and was present for the drug transaction between Ilczyszyn and Wood so Sincleair was “accountable for the methamphetamine that Ilczyszyn distributed.”  Further, “possessing firearms during the distribution of methamphetamine is reasonably foreseeable, and thus, is relevant conduct for [Sincleair].”

The District Court adopted the probation officer’s findings in the PSR including the changes and qualifications made in the PSR addendum.  “The district court sentenced Sincleair to 210 months of imprisonment, with 15 months deducted for the time he had already spent incarcerated. Sincleair timely filed a notice of appeal.”

Federal Gun Enhancements:

Federal Drug Enhancements are covered in USSG 2D1.1:

The Government can prove possession in one of two ways for [2D1.1] to apply. First, it can “prove that the defendant personally possessed the weapon by showing that a temporal and spatial relation existed between the weapon, the drug trafficking activity, and the defendant.” Otherwise, the Government can prove possession if a co-conspirator “involved in the commission of an offense possessed the weapon” and “the defendant could have reasonably foreseen that possession.” This method obviously presupposes proof of a conspiracy between the defendant and the person possessing the weapon.

The Lack of Clarity in the District Court

The Fifth Circuit indicated that it was not clear which of these criteria applied here:

“It is not clear whether the district court determined that Sincleair personally possessed the firearm or that one of Sincleair’s ‘unindicted co-conspirators’ possessed it during the commission of an offense.”

“In this case, the district court did not explain the basis for its decision that the two-level firearm enhancement applied to Sincleair. The PSR addendum attempts to attribute both methods of possession—personal and co-conspirator—to Sincleair, but it is not clear that either applies. The PSR and its addendum, which the district court relied on, do not provide enough facts to support a finding that Sincleair was engaged in a drug trafficking conspiracy with Ilczyszyn and Wood21 such that the firearm, which was never connected to a specific person, was knowingly possessed by a “co-conspirator” and that possession was foreseeable to Sincleair.” 

The court also noted that there was not enough in the record to support the firearm enhancement based on Sinclear’s possession of the firearm.  Ultimately the Fifth Circuit indicated that remand was appropriate:

“[W]e do not need to determine whether Sincleair personally possessed the weapon or whether a co-conspirator (if any) possessed it and the possession was reasonably foreseeable to Sincleair, because we “cannot be sure what rationale the [district] court had in mind to support the enhancement, based on its limited statement.”

The Fifth Circuit remanded the case back down to the district court.  20-10495

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