In United States v. Flennory, we interpreted the term "underlying offense" to mean "crime of violence" or "drug trafficking offense," the two explicit bases for a § 924(c) conviction. 145 F.3d 1264, 1268-69 (11th Cir. 1998). In Flennory, the defendant was convicted under § 922(g) and § 924(c) and received an enhancement derived from cross-referencing under § 2K2.1(c)(1), which was applied because it would result in a greater sentence than the § 2K2.1(b)(5) enhancement.
Goines' case falls within a gap between these restrictions. He was convicted of a firearms possession offense, not the drug trafficking offense "underlying" his § 924(c) conviction, but his sentence for that conviction was computed pursuant to the drug trafficking guideline (§ 2D1.1), rather than the firearms possession guideline (§ 2K2.1). Nevertheless, Amendment 599 applies. It appears that the Commission adopted the relevant portion of Amendment 599 in response to the decision of the Eleventh Circuit in United States v. Flennory, 145 F.3d 1264 (11th Cir. 1998). In Flennory, as in this case, the defendant pled guilty to violations of § 922(g) and § 924(c), and the district court computed the § 922(g) sentence by cross-referencing § 2D1.1. See id. at 1266-67.
In United States v. Flennory, for example, we determined that a firearm was possessed "in connection with" a drug transaction where the firearm was found in a vehicle across the street from a vacant lot where the defendant was seen distributing drugs. 145 F.3d 1264, 1269 (11th Cir. 1998), superseded on other grounds as recognized in United States v. Brown, 332 F.3d 1341 (11th Cir. 2003). We determined that the firearm was sufficiently connected to the drug offense because "the facts support[ed] an inference that [the defendant] could have easily and quickly retrieved the weapon from the vehicle if it became necessary to avoid an arrest, or to defend himself from a theft of the cocaine or the money he received from his sales."
In United States v. Flennory, we determined that a firearm was possessed "in connection with" a drug transaction for purposes of calculating a sentence enhancement based on the drug amount where the firearm was found in a vehicle across the street from a vacant lot where the defendant was seen distributing drugs. United States v. Flennory, 145 F.3d 1264, 1269 (11th Cir. 1998). We determined that the firearm was sufficiently connected to the drug offense "because the facts support[ed] an inference that [the defendant] could have easily and quickly retrieved the weapons "if it became necessary to avoid an arrest, or to defend himself from a theft of the cocaine or the money he received from his sales.
Additionally, we have held that a firearm that was not on a defendant's person can still be possessed in connection with another felony offense if the gun could have been easily retrieved. United States v. Flennory, 145 F.3d 1264, 1270 (11th Cir. 1998) (holding that a defendant possessed a firearm in connection with a crime when the firearm was kept in a car across the street from where the defendant was selling drugs), superceded by regulations on other grounds, as stated in United States v. Brown, 332 F.3d 1341 (11th Cir. 2003). Typically, we focus on whether the firearm could have been used in the commission of other crimes, not whether it actually was used.
A gun need not be kept within arm's reach of the drugs or drug paraphernalia to qualify as being possessed "in connection with" a drug crime. In United States v. Flennory, 145 F.3d 1264, 1270 (11th Cir. 1998), superseded on other grounds, United States v. Brown, 332 F.3d 1341 (11th Cir. 2003), we held that a gun kept in the defendant's car across the street from a vacant lot where he was selling drugs was possessed "in connection with" a felony drug offense because the gun could easily have been retrieved. In this case, the gun was kept in a closet in the same house with half a pound of marijuana, cocaine, scales, baggies, and $1,368 in cash.
He further maintains the BOP's categorical treatment of § 922(g) as a "crime of violence" is inconsistent with judicial treatment of that offense, and more particularly, is inconsistent with the law of this Circuit. See United States v. Flennory, 145 F.3d 1264, 1268 (11th Cir. 1998) (stating that possession of a firearm by a felon is not a "crime of violence" as defined in § 924(c)(3) for purposes of the mandatory minimum sentences in § 924(c)(1)) (citing United States v. Canon, 993 F.2d 1439, 1441 (9th Cir. 1993)); cf. United States v. Oliver, 20 F.3d 415, 418 (11th Cir. 1994) (holding that possession of a firearm by a felon is not a "violent felony" as defined in § 924(e) and cannot be used to enhance the sentence of a defendant as an armed career criminal under U.S.S.G. § 4B1.4). We begin our discussion of these contentions with an explanation of why our prior case law interpreting "crime of violence" under § 924(c)(3) is not dispositive of the present issue.
At least one court has disagreed with Vincent, finding instead that the commentary in § 2K2.1 referring to the "underlying conviction" applies only to the crime of violence or drug trafficking crime which formed the basis for the defendant's § 924(c) conviction. See, e.g., United States v. Flennory, 145 F.3d 1264, 1268-69 (11th Cir. 1998) (rejecting Vincent); United States v. Paredes, 139 F.3d 840, 846 (11th Cir. 1998) (same). Although Vincent did not flesh out its reasoning in detail, we are bound by its holding to conclude that the district court erred in applying specific offense characteristics relating to defendant's possession and/or use of a weapon under § 2K2.1(b)(5) to enhance Smith's sentence for his § 924(c) offense.
A firearm has the "potential to facilitate an offense" in "circumstances showing the firearm's ability for use as a weapon or the attempt to use the firearm in a manner that would facilitate the offense." Id. at 96; see also United States v. Flennory, 145 F.3d 1264, 1270 (11th Cir. 1998) (finding possession of a firearm in connection with a crime when the defendant kept the firearm in a car across the street from where he sold drugs), superseded by regulation on other grounds, as stated in United States v. Brown, 332 F.3d 1341, 1345 n.6 (11th Cir. 2003). "[T]here is a strong presumption that a defendant aware of the weapon's presence will think of using it if his illegal activities are threatened," so "[t]he firearm's potential use is critical."
Rather, in each of those cases we have applied the phrase's plain meaning and looked to both the physical distance between the firearm and the drugs or drug-related items and the accessibility of the firearm. See, e.g., United States v. Lopez-Garcia, 565 F.3d 1306, 1322 (11th Cir. 2009) (analyzing whether a prior conviction would have constituted a violation of § 924(c), noting that "when he was apprehended for the drug offense, [the defendant] was found under the covers of a bed, along with the gun, a quantity of methamphetamine, and several hundred dollars in cash" and explaining that "[t]he nexus between the gun and the drug trafficking here is plainly established by, for example, the accessibility of the firearm to [the defendant], and the proximity of the gun to the drugs and the drug profits") (emphasis added); United States v. Trujillo, 146 F.3d 838, 847 (11th Cir. 1998) (firearm found in front office of warehouse in which 300 kilograms of cocaine was stored); United States v. Flennory, 145 F.3d 1264, 1270 (11th Cir. 1998) (gun located in a car across the street from a vacant lot where the defendant was selling drugs was possessed "in connection with" the offense because the defendant "could have easily and quickly retrieved the weapon from the vehicle if it became necessary to avoid an arrest, or to defend himself from a theft of the cocaine or the money he received from his sales"), superseded on other grounds as recognized by United States v. Brown, 332 F.3d 1341 (11th Cir. 2003) ; United States v. Hall, 46 F.3d 62, 63–64 (11th Cir. 1995) (per curiam) (handgun found in dresser drawer in same bedroom with scales, a ziplock bag containing cocaine residue, and a purse containing $12,000 in cash). Because "[o]ur interpretation of the sentencing guidelines and accompanying commentary is governed by traditional rules of statutory construction[,] ... [w]here the same language appears in two guidelines, it is generally presumed that the language bears the same meaning in both."