Sixth Circuit Reverses Relevant Conduct Firearm Enhancement Because No Connection Between Possession Charges Based on Two Separate Shootouts
by Christopher Zoukis
The United States Court of Appeals for the Sixth Circuit reversed a lower court’s ruling that two unrelated instances of gun possession were part of the same course of conduct. The March 27, 2018, opinion ruled that for two, non-contemporaneous illegal firearm possessions to be part of the same course of conduct, “they must, among other factors, be connected by strong evidence of similarity.”
Defendant Karl Amerson was allegedly involved in two different shootouts in Battle Creek, Michigan. On May 6, 2016, police recovered a .40 caliber handgun that tested positive for Amerson’s DNA from the scene of one incident. Following another shootout in August 2016, police recovered a loaded .22 caliber semi-automatic rifle, a loaded .380 semi-automatic pistol, and several boxes of ammunition from the apartment of Amerson’s girlfriend. After Amerson admitted owning the pistol and rifle, he was arrested.
Amerson was not charged with any crime related to the shootouts, but he was charged with being a felon in possession of a firearm. He agreed to plead guilty to possession of the weapons found in the apartment, and the Government agreed not to prosecute him for the .40 caliber recovered during the May 2016 incident.
But the plea agreement only prevented the Government from charging Amerson with the other gun; it did not prevent the Government from pursuing a United States Sentencing Guidelines (“USSG”) “related conduct enhancement.”
The Government opted to pursue a USSG related conduct enhancement. Amerson’s Presentence Report included a four-level enhancement for possession of a firearm in connection with another felony offense, pursuant to USSG § 2k2.1(b)(6)(B). This enhancement increased Amerson’s Guidelines range from 30-37 months to 57-71 months. The district court overruled Amerson’s objection to the enhancement and sentenced him to 76 months.
Amerson appealed, arguing that the May 2016 handgun possession was not “part of the same course of conduct or common scheme or plan” as the August 2016 firearm possession. The Government countered by arguing that it was relevant conduct because “both incidents involved Amerson’s illegal possession of a firearm, both incidents involved gunfights between vehicles, and the illegal behavior occurred twice in a three-month span.”
The Sixth Circuit began its analysis by noting that pursuant to USSG § 1B1.3(a)(2), offenses are only part of the same course of conduct “if they are sufficiently connected or related to each other as to warrant the conclusion that they are part of a single episode, spree, or ongoing series of offenses.” The three factors used to make this determination are “the degree of similarity of the offenses, the regularity (repetitions) of the offenses, and the time interval between the offenses.”
In the present case, the Government provided no evidence of regularity. A relevant conduct case always involves at least one other instance of conduct. Where the Government shows only one other offense, “regularity is ‘completely absent.’” As such, the Government needed to provide stronger evidence to support the other factors of similarity and temporal proximity.
While the temporal proximity—three and a half months—tended to favor a course of conduct finding, in the absence of proof of regularity, more was needed, according to the Court. It determined that in a case such as this, evidence of contemporaneous or near-contemporaneous possession would be needed, but the Government provided no such evidence. Thus, the Court concluded temporal proximity was not established.
The Court explained that due to deficiencies in the other two factors, strong evidence of similarity would be necessary to make the case for a course of conduct enhancement. The Government argued that it established such strong evidence because it showed that Amerson possessed both sets of firearms during both gunfights. The Court disagreed though, because while there was evidence that Amerson was present at the August 2016 shootout, there was no evidence that his firearms were there. When the district court inferred that because Amerson was present so were his guns, it engaged in “pure speculation.”
Based on the facts in this case, the Court concluded that there was not enough evidence to support a course of conduct enhancement. The Government “failed to show that Amerson’s May and August possessions were connected in any significant way.” There “were no common victims, common accomplices, common purpose, or similar modus operandi,” wrote the Court. “And the possessions took place at different locations . . . . Thus, the district court erred in finding that Amerson’s illegal handgun possession in May 2016 was relevant conduct under USSG § 1B1.3(a)(2).”
Accordingly, the Sixth Circuit reversed his related conduct enhanced sentence and remanded for resentencing consistent with this opinion. See: United States v. Amerson, 886 F.3d 568 (6th Cir. 2018).
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Related legal case
United States v. Amerson, 886 F.3d 568 (6th Cir. 2018)
|Cite||United States v. Amerson, 886 F.3d 568 (6th Cir. 2018)|
|Level||Court of Appeals|