United States v. Shields, No. 10-5004 (6th Cir. Dec. 30, 2011) (published). Panel of Judges Cole, Rogers, Sargus (S.D. Ohio).
Just out! Four-level enhancement for possessing gun in connection with another felony under 2K2.1(b)(6). . . .
Defendant received 108-month sentence for being a felon in possession. Was the 2K2.1(b)(6) enhancement appropriate?
* Defendant possessed gun and small, consumption-level quantity of marijuana (and a little cocaine residue).
* Drug possession would have been a misdemeanor but for the defendant's prior convictions.
Government did not sufficiently demonstrate that possession of the gun facilitated/had the potential to facilitate the felony drug possession. Insufficient nexus between the firearm and the drugs.
Sentence was procedurally unreasonable.
Noteworthy conclusions of the Court:
* While the fortress theory could be applied to support the enhancement in a case involving only drug possession (no trafficking), the gun in this case did not "embolden" the defendant to possess the drugs.
* United States v. McKenzie, 410 F. App`x 943 (6th Cir. 2011), is "materially indistinguishable" from the facts at hand. Gun and marijuana in car. Enhancement did not apply.
* No evidence of drug trafficking. Very small amount of marijuana. Not a valuable "stash." Only worth about $10.
* Gun was allegedly for personal protection; it was not being used to protect "a baggie of pot."
* Commentary to 2K2.1 (note 14(B)) considers drug trafficking. So while close proximity to drugs may be enough to apply the enhancement when there's trafficking, it is not enough when there is only drug possession.
* Court rejects reasoning in United States v. Berkey, 406 F. App`x 938 (6th Cir. 2011). Finds McKenzie more persuasive. In Berkey, the court found more than mere proximity: defendant used drugs in public with the gun. Court here, however, rejects the "in public" consideration as important.
* Quantity of drugs possessed is a more relevant consideration. A gun may embolden a person to carry a larger, more valuable quantity of drugs.
* "A repeat possessor of a small amount of drugs would not feel the need to have a gun to protect that amount of drugs any more than a first-time misdemeanor possessor of such a small amount, and the firearm thus was not useful in [this] case."
Remanded for resentencing.
