United States v. Smith

535 F.3d 883, 2008 U.S. App. LEXIS 16163, 2008 WL 2906537
CourtCourt of Appeals for the Eighth Circuit
DecidedJuly 30, 2008
Docket07-3592
StatusPublished
Cited by54 cases

This text of 535 F.3d 883 (United States v. Smith) is published on Counsel Stack Legal Research, covering Court of Appeals for the Eighth 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. Smith, 535 F.3d 883, 2008 U.S. App. LEXIS 16163, 2008 WL 2906537 (8th Cir. 2008).

Opinion

MELLOY, Circuit Judge.

Daniel Ray Smith pled guilty to being a felon and an unlawful user of methamphetamine in possession of firearms and ammunition, in violation of 18 U.S.C. § 922(g)(1) and (3), and to knowingly and intentionally possessing methamphetamine in violation of 21 U.S.C. § 844(a). Over Smith’s objection, the district court imposed a four-level enhancement under U.S.S.G. § 2K2.1(b)(6) for possessing firearms in connection with the felony offense of possessing methamphetamine. The district court sentenced Smith to 30 months of imprisonment. Smith appeals, arguing the district court erred in imposing the enhancement because it was based on methamphetamine residue found inside his home. We reverse.

I.

On February 23, 2007, a state probation officer and a deputy sheriff searched Smith’s home with his consent. Smith admitted he possessed firearms and methamphetamine and directed the deputy sheriff to their locations. The officers discovered a rifle, a shotgun, a spare shotgun barrel, ammunition, a methamphetamine pipe, a baggie containing methamphetamine residue, and marijuana. Smith admitted using the rifle to kill coyotes and owning the pipe and baggie. He also admitted using methamphetamine a few days earlier. Smith’s wife admitted owning the marijuana. The methamphetamine found in the baggie was never weighed.

A grand jury indicted Smith, charging him with being a felon and an unlawful user of methamphetamine in possession of firearms and ammunition, in violation of 18 U.S.C. § 922(g)(1) and (3), and with knowingly and intentionally possessing methamphetamine in violation of 21 U.S.C. § 844(a). Smith, who had three prior felonies for possession of methamphetamine, pled guilty to the two-count indictment. The presentence investigation report recommended a four-level enhancement under U.S.S.G. § 2K2.1(b)(6) for possessing firearms “in connection with another felony offense,” the possession of methamphetamine. Smith objected to this enhancement.

At sentencing, Smith again objected to the enhancement under U.S.S.G. § 2K2. 1(b)(6). He argued that Eighth Circuit case law does not have a per se rule that any time drugs and firearms are present, § 2K2.1(b)(6) automatically applies. Rather, he stressed that his individual facts should be considered to determine whether the firearms “facilitated, or had the potential of facilitating,” his possession of methamphetamine residue. U.S.S.G. § 2K2.1(b)(6) cmt. n. 14(A). Smith also argued that although he admitted to law enforcement that he had used methamphetamine earlier, there was no evidence that the firearms were present at that earlier time. He emphasized that he pled guilty to possession, not use, of methamphetamine so that his earlier use was not relevant.

In response, the government argued that case law strongly supports application of § 2K2.1(b)(6) because Smith possessed firearms while committing a drug felony. Additionally, the government argued that Smith should not benefit from using the methamphetamine days earlier such that *885 only residue remained when the search of the home occurred.

The district court imposed the enhancement, stating: “[I]t’s pretty clear that Mr. Smith has been using marijuana [sic] and that he had the guns present. And the case law in their discussion of the risk of violence when you have use of the drugs and the presence of firearms is increased .... ” The district court then sentenced Smith to 30 months of imprisonment. Smith appeals.

II.

The district court’s determination that the defendant possessed the firearms in connection with another felony is a factual finding that we review for clear error. United States v. Washington, 528 F.3d 573, 574 (8th Cir.2008).

The Guidelines provide for a four-level enhancement if a defendant “used or possessed any firearm or ammunition in connection with another felony offense....” U.S.S.G. § 2K2.1(b)(6). “ ‘In connection with’ means that, at a minimum, the firearm had a ‘purpose or effect with respect to’ the other felony offense because its presence facilitated or had the potential to facilitate the offense, as opposed to being the result of mere accident or coincidence.” United States v. Harper, 466 F.3d 634, 650 (8th Cir.2006) (citations omitted); see U.S.S.G. § 2K2.1(b)(6) cmt. n. 14(A) (stating that the “in connection with” language means that “the firearm or ammunition facilitated, or had the potential of facilitating, another felony offense”). When the felony offense is drug possession, § 2K2.1 note 14A applies, and “the district court may make the requisite ‘in connection with’ finding, but is not required to do so.” United States v. Fuentes Torres, 529 F.3d 825, 827 (8th Cir.2008) (discussing why the “facilitate” standard applies to drug possession felonies, and not the “clearly improbable” standard, which applies to drug trafficking felonies).

The district court clearly erred in imposing the § 2K2.1(b)(6) enhancement because the evidence is insufficient to show that Smith’s firearms and ammunition “facilitated, or had the potential of facilitating” his possession of methamphetamine. The evidence does not prove that Smith’s simultaneous possession of firearms, ammunition, and methamphetamine residue was anything other than coincidence. The nexus between the firearms, ammunition, and methamphetamine is lacking.

We recognize the role of firearms in protecting drugs, drug proceeds, and drug transactions. United States v. Bordeaux, 436 F.3d 900, 904 (8th Cir.2006). But, the district court’s inference that Smith would seek to protect this amount of methamphetamine and facilitate this possession with firearms is unsupported. The government did not attempt to weigh the residue. Baggies with drug residue generally are not valuable or useful to drug users and do not need protection. See, e.g., United States v. Allebach, 526 F.3d 385, 386 (8th Cir.2008) (stating that two plastic bags with cocaine residue were found in trash bags outside of the defendant’s home).

The individual facts of this case present a rare case regarding the § 2K2.1(b)(6) enhancement. Although a firearm is a “tool of the trade” for drug dealers, it is not contended that Smith is a drug dealer, and Smith possessed only an unmeasured quantity of methamphetamine residue, making the inference of a connection when a defendant possesses a firearm and a distribution quantity of illegal drugs completely inapplicable here. See United States v. Regans, 125 F.3d 685

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Bluebook (online)
535 F.3d 883, 2008 U.S. App. LEXIS 16163, 2008 WL 2906537, Counsel Stack Legal Research, https://law.counselstack.com/opinion/united-states-v-smith-ca8-2008.