Sixth Circuit: Sentence Enhancement Inapplicable, Sales of Guns and Drugs Separate
by Dale Chappell
Where the negotiation of each transaction was “fully consummated” before the next, the sale of guns and drugs separately was not enough to apply a guideline enhancement, the Sixth Circuit held December 5, 2017.
Darryl Jackson sold drugs and guns to a confidential informant (“CI”), but not at the same time. First, he sold a gram of heroin. After this sale was completed, the CI persuaded Jackson to sell him a gun, so he left to get the gun. A few days later, Jackson sold another gun to the CI. When that transaction was completed, he sold some heroin to the CI’s friend, who was actually an undercover agent. When law enforcement executed a search warrant on Jackson’s properties, they found drugs and cash—but no guns.
Jackson was charged with being a felon in possession of a firearm and distribution of heroin; he pleaded guilty to all the charges. Prior to sentencing, the presentence investigation report calculated his guidelines sentencing range to be 110 to 137 months, which included a four-level enhancement under U.S.S.G. § 2K2.1(b)(6)(B) (“Enhancement”) for “using or possessing a firearm in connection with another felony offense, to wit: Distribution of heroin.” Jackson objected, arguing the drug and gun sales were “basically separate transactions,” but the court overruled his objection, holding that the sales occurred “on or about the same time.” Without this Enhancement, the recommended sentencing range would have been 77 to 96 months.
Jackson was sentenced to eight years, four months in prison. He appealed, arguing once again that the Enhancement did not apply to the facts of this case.
The Sixth Circuit began its analysis by noting application of the Enhancement is broad and covers a wide range of scenarios. Nevertheless, the government must still establish “a clear connection between the gun that served as the basis for the conviction for felon in possession of a firearm and the gun possessed during the other offense that triggers the enhancement.”
The Court then observed that Jackson did not actually use a gun in connection with the drug sale, and the other three theories that can serve as a basis for Enhancement were inapplicable to the facts in this case: (1) actual or constructive possession of a gun in connection with the drug sales; (2) close proximity between any gun and any drugs; and (3) any way in which a gun facilitated the drug sales.
In concluding that Jackson did not have constructive possession of a gun during the drug sales, the Court noted that he kept the guns and drugs at separate locations and did not bring both a gun and drugs to either of the drug sales. In addition, there was no evidence that he ever kept a gun in “close proximity” to the drugs. He had to physically go to a separate location to retrieve any guns where they “could be of zero offensive or defensive use to him.” Finally, the Court determined that there was no reason to believe that either gun facilitated or had the potential of facilitating either drug sale. Each of the sales conducted by Jackson was separate and distinct for separate consideration; i.e., there were no joint sales or joint negotiations involving both a gun and drugs. For the foregoing reasons, none of the other three bases for Enhancement were applicable.
The Sixth Circuit held that Jackson’s gun and drug sales “lacked a connection sufficient to justify” the imposition of the four-level sentencing enhancement under § 2K2.1(b)(6)(B), because each of the transactions in question was an independent and unanticipated sale. Accordingly, the Court vacated the district court’s application of the Enhancement and remanded to the district court for resentencing. See: United States v. Jackson, 877 F.3d 231 (6th Cir. 2017).
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