United States v. Chad Milton

• Court: Court of Appeals for the Ninth Circuit
• Decided: October 13, 2020
• Docket: 19-30139
• Status: Unpublished

Opinion

NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS OCT 13 2020 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA, No. 19-30139

Plaintiff-Appellee, D.C. No. 1:18-cr-00122-SPW-1 v.

CHAD TRAVIS MILTON, MEMORANDUM*

Defendant-Appellant.

Appeal from the United States District Court for the District of Montana Susan P. Watters, District Judge, Presiding

Argued and Submitted July 6, 2020 Portland, Oregon

Before: BENNETT and MILLER, Circuit Judges, and PEARSON,** District Judge. Dissent by Judge MILLER

Following a guilty plea, Chad Travis Milton was convicted of being a felon

in possession of a firearm, in violation of 18 U.S.C. § 922(g). He was sentenced to

37 months of imprisonment, to be followed by three years of supervised release.

* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. ** The Honorable Benita Y. Pearson, United States District Judge for the Northern District of Ohio, sitting by designation. He now appeals his sentence. We have jurisdiction under 28 U.S.C. § 1291. We

review the district court’s interpretation of the Sentencing Guidelines de novo, its

application of the Guidelines for abuse of discretion, and its factual findings for

clear error. United States v. Gadson, 763 F.3d 1189, 1219 (9th Cir. 2014). We

affirm.

In calculating the applicable sentencing range under the Sentencing

Guidelines, the district court applied a four-level enhancement under

section 2K2.1(b)(6)(B) of the Sentencing Guidelines for possession of a firearm or

ammunition “in connection with another felony offense.” The Guidelines

commentary states that the enhancement applies “if the firearm or ammunition

facilitated, or had the potential of facilitating, another felony offense.” U.S.S.G.

§ 2K2.1 cmt. 14(A). The district court concluded that Milton’s firearm was “easily

accessible” to him in his vehicle and therefore “had the potential to facilitate his

drug possession.”

Milton challenges the district court’s finding that the firearm was easily

accessible. Although the firearm was “hidden up behind the console on the driver’s

side of the vehicle,” the arresting officer testified that he saw Milton “digging

underneath the dash of a vehicle . . . clearly up underneath the dash messing with

something.” One permissible inference from that testimony is that the firearm was

easily accessible to Milton from its location underneath the console; another is that

2 Milton hid the firearm once he noticed the officer, but had the firearm close at

hand before then. Either inference supports the district court’s finding. We

conclude that the court did not clearly err.

Milton also challenges the conclusion that the firearm had the potential to

facilitate his drug possession. In United States v. Routon, 25 F.3d 815 (9th Cir.

1994), we held that, “to the extent that the government relies upon physical

possession, it must show that the firearm was possessed in a manner that permits

an inference that it facilitated or potentially facilitated—i.e., had some potential

emboldening role in—a defendant’s felonious conduct.” Id. at 819. Milton was

apprehended while driving his car on a public road. A person possessing drugs in

public is vulnerable to robbery, so one who possesses a firearm for protection may

be emboldened in possessing drugs. It was therefore reasonable for the district

court to conclude that Milton’s possession of a firearm had the potential to

facilitate his drug offense. See generally United States v. Valenzuela, 495 F.3d

1127, 1135 (9th Cir. 2007) (affirming the application of the enhancement when

“the district court could reasonably find that the shotgun emboldened [defendant’s]

possession of the stolen property”); Routon, 25 F.3d at 816 (affirming the

application of the enhancement when the firearm was found within defendant’s

“easy reach while driving”).

AFFIRMED.

3 FILED United States v. Milton, No. 19-30139 OCT 13 2020 MILLER, Circuit Judge, dissenting: MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS

To justify the application of the enhancement under section 2K2.1(b)(6)(B),

the government had to “show that the firearm was possessed in a manner that

permits an inference that it facilitated or potentially facilitated—i.e., had some

potential emboldening role in—a defendant’s felonious conduct.” United States v.

Routon, 25 F.3d 815, 819 (9th Cir. 1994). Here, the only fact supporting that

inference was the proximity of the firearm to the drugs. Had Milton committed a

drug trafficking offense, that would be enough: The Guidelines commentary states

that the enhancement applies in the case of a “drug trafficking offense in which a

firearm is found in close proximity to drugs.” U.S.S.G. § 2K2.1 cmt. 14(B).

Milton’s offense, however, was drug possession. The distinction is important

because trafficking tends to involve larger quantities of drugs than possession, and

it requires the trafficker to interact with sellers. The potential for violence—and,

accordingly, the emboldening role of a firearm—is therefore greater for drug

trafficking than in the case of a mere possessor. In addition, when drug trafficking

is carried out in public, it is more likely to require a firearm for protection, while

the same cannot necessarily be said for possession. See United States v. Shields,

664 F.3d 1040, 1045–46 (6th Cir. 2011). That is why the Guidelines commentary

reflects “a higher threshold for proving that firearms facilitated the drug offense

1 when the separate felony is a drug-possession offense rather than a drug-trafficking

offense.” United States v. Dalton, 557 F.3d 586, 588 (8th Cir. 2009).

For a possessor, something more than “merely coincidental” proximity of a

firearm to drugs is required for the enhancement. Shields, 664 F.3d at 1045; accord

Dalton, 557 F.3d at 589. Here, the quantity of drugs in Milton’s possession was

consistent with personal use. Because the government established proximity and

nothing more, I would hold that the enhancement does not apply.