United States v. Scott

251 F. App'x 976
CourtCourt of Appeals for the Sixth Circuit
DecidedOctober 24, 2007
Docket06-1929
StatusUnpublished

This text of 251 F. App'x 976 (United States v. Scott) is published on Counsel Stack Legal Research, covering Court of Appeals for the Sixth Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
United States v. Scott, 251 F. App'x 976 (6th Cir. 2007).

Opinion

SUTTON, Circuit Judge.

Lamaun Scott pleaded guilty to being a felon in possession of a firearm, and the district court, after applying a four-level enhancement for possession of a firearm in connection with another felony offense, imposed a within-guidelines sentence of 100 months. Because the district court did not err in calculating the guidelines range, we affirm.

I.

On September 25, 2004, Michigan State Police officers stopped a car driven by Lamaun Scott for speeding and for Scott’s failure to wear a seatbelt. As the troopers pulled Scott over, they learned that he had an outstanding arrest warrant for failure to pay child support. When the officers approached Scott’s car, they observed, in plain view on the floor of the passenger side of his car, a small amount of marijuana. The officers arrested Scott for possession of marijuana, searched him and discovered that he was carrying a loaded, Glock 45 millimeter handgun in the waistband of his pants.

When the officers searched Scott’s car, they also found a small “baggie” in the *977 center console, holding .55 grams of marijuana. The officers impounded the car, and an inventory search revealed, inside the locked trunk, a red duffel bag containing 25 grams of marijuana and a digital scale next to the bag.

A federal grand jury indicted Scott for violating the felon-in-possession-of-a-firearm statute, see 18 U.S.C. § 922(g)(1), and Scott pleaded guilty to the charge. (Scott previously had been convicted of felony robbery, firearm and drug offenses.)

The base offense level for violating the felon-in-possession statute is 24. The presentence investigation report, based on the 2005 version of the guidelines, recommended a four-level enhancement under U. S.S.G. § 2K2.1(b)(5) for possession of a firearm in connection with another felony offense — here possession of marijuana with intent to distribute. The presentence report also recommended a three-level downward adjustment for acceptance of responsibility. After incorporating the enhancement and downward adjustment, the presentence report calculated an offense level of 25 and a criminal history category V, which intersect at an advisory guidelines range of 100-125 months.

Scott objected to the § 2K2.1(b)(5) enhancement. The district court overruled his objection, approved the guidelines calculation and sentenced Scott to 100 months.

II.

A sentencing court may impose a four-level sentencing enhancement “[i] f the defendant used or possessed any firearm or ammunition in connection with another felony offense.” U.S.S.G. § 2K2.1(b)(5) (2005). To apply the enhancement, the sentencing court must determine by a preponderance of the evidence, United States v. Gates, 461 F.3d 703, 708 (6th Cir.2006), that: (1) the defendant committed “another felony offense,” defined as “any offense (federal, state, or local) punishable by imprisonment for a term exceeding one year, whether or not a criminal charge was brought, or conviction obtained,” U.S.S.G. § 2K2.1 cmt. n. 4; and (2) the defendant “used or possessed [a] firearm in connection with” that other offense, U.S.S.G. § 2K2.1(b)(5). “We review for clear error the district court’s factual findings, and accord due deference to the district court’s determination that the U.S.S.G. § 2K2.1(b)(5) enhancement applies.” United States v. Burke, 345 F.3d 416, 426-27 (6th Cir.2003) (internal quotation marks omitted).

A.

Ample evidence supports the district court’s first determination — that Scott committed “another felony offense.” The police found marijuana in three different places in the car — small amounts on the floorboard and in the console and a much larger amount (more than 25 grams) in a red duffel bag in the trunk — and he had a digital scale in the trunk next to the drugs. Scott also carried a .45 caliber Glock firearm in his waistband. A factfinder could fairly infer that drug dealing and guns go hand in hand. See United States v. Hardin, 248 F.3d 489, 499 (6th Cir.2001) (“This Court has held many times that guns are tools of the trade in drug transactions.”) (internal quotation marks omitted); United States v. Stafford, 232 Fed.Appx. 522, 525 (6th Cir.2007) (noting the “general observation that drug dealers generally carry guns for protection”). And a factfinder could fairly infer that the purpose of a digital scale found next to a quantity of drugs larger than that used solely for personal consumption, United States v. Vincent, 20 F.3d 229, 233 (6th Cir.1994), was to weigh the drugs for distribution, United States v. Stewart, 306 F.3d 295, 327 (6th *978 Cir.2002) (observing that scales are “often used in the illegal drug trade”); see also United States v. Fudge, 175 Fed.Appx. 694, 698 (6th Cir.2006) (describing digital scales as one of the “classic trappings of drug dealing”). Making the district court’s (and our) job easier, Scott never presented any alternative explanations for his possession of the three items — either during sentencing or on appeal.

That Scott was never convicted of the marijuana offense does not change matters. “[I]t is clear that the defendant need not be charged with or convicted of the other felony offense” for a § 2K2.1(b)(5) enhancement to apply. United States v. Rutledge, 33 F.3d 671, 674 (6th Cir.1994); see U.S.S.G. § 2K2.1 emt. n. 4 (defining “felony offense” as “any offense (federal, state, or local) punishable by imprisonment for a term exceeding one year, whether or not a criminal charge was brought, or conviction obtained ”) (emphasis added).

B.

Also supported by the evidence is the court’s second determination — that Scott possessed his firearm in connection with the felony marijuana offense. To establish that a firearm was “used or possessed in connection with” another felony offense under § 2K2.1(b)(5), the government must show a nexus between the firearm and the other felony offense that rises above the coincidental. United States v. Huffman, 461 F.3d 777, 788 (6th Cir.2006).

The “fortress theory” supports the district court’s finding, namely the theory that Scott “used a firearm to protect the drugs, facilitate a drug transaction, or embolden himself while participating in felonious conduct.” Id. A sentencing court, we have recognized on several occasions, may apply the fortress theory in the context of § 2K2.1(b)(5). See, e.g., United States v. Burns,

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Related

United States v. Mark Henry Vincent
20 F.3d 229 (Sixth Circuit, 1994)
United States v. Jimmy Lee Rutledge
33 F.3d 671 (Sixth Circuit, 1994)
United States v. Vance S. Patterson
97 F.3d 192 (Seventh Circuit, 1996)
United States v. Gregory Lamont Hardin
248 F.3d 489 (Sixth Circuit, 2001)
United States v. Gary P. Jones
327 F.3d 654 (Eighth Circuit, 2003)
United States v. Leon Burke
345 F.3d 416 (Sixth Circuit, 2003)
United States v. Che Borgess Huffman
461 F.3d 777 (Sixth Circuit, 2006)
United States v. Burns
498 F.3d 578 (Sixth Circuit, 2007)
United States v. Fudge
175 F. App'x 694 (Sixth Circuit, 2006)
United States v. Cheney
183 F. App'x 516 (Sixth Circuit, 2006)
United States v. Stafford
232 F. App'x 522 (Sixth Circuit, 2007)
Cannon v. Lafler
247 F. App'x 796 (Sixth Circuit, 2007)
United States v. Stewart
306 F.3d 295 (Sixth Circuit, 2002)
United States v. Conley
93 F. App'x 55 (Sixth Circuit, 2004)

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Bluebook (online)
251 F. App'x 976, Counsel Stack Legal Research, https://law.counselstack.com/opinion/united-states-v-scott-ca6-2007.