Opinion
No. 03-40109-SAC
March 11, 2004
RULING ON OBJECTION TO PRESENTENCE REPORT
The defendant is one of two defendants named in a single count drug trafficking indictment. The defendant has been detained since October 16, 2003, when he was arrested on the charges in this indictment. The defendant in December of last year pleaded guilty to possession with the intent to distribute five grams or more of cocaine base. As set out in the plea agreement, the government agreed to recommend the maximum adjustment for acceptance of responsibility, to not oppose a sentence at the low end of the applicable guideline range, and to not request an upward departure if the defendant agrees not to pursue a downward departure. The Presentence Report ("PSR") recommends a base offense level of 28, a two-level firearm enhancement, and a three-level reduction for acceptance of responsibility. A total offense level of 27 and a criminal history category of two results in a guideline range of 78 to 97 months. The defendant is subject to a mandatory minimum of 60 months.
DEFENDANT'S OBJECTION NO. 1: The defendant objects to the firearm enhancement arguing that the firearm found in the incident on May 20, 2003, is nearly three years after the drug trafficking offense to which the defendant pleaded guilty. The defendant denies that this firearm is temporally or spatially related to the offense of conviction.
Ruling: Section 2D1.1(b)(1) provides: "If a dangerous weapon was possessed (including a firearm), increase by 2 levels." The application notes explain that "[t]he adjustment should be applied if the weapon was present, unless it is clearly improbable that the weapon was connected with the offense." U.S.S.G. § 2D1.1, cmt. n. 3. The term, "offense," is defined under the guidelines as the "conviction and all relevant conduct under § 1B1.3 (Relevant Conduct)." U.S.S.G. § 1B1.1 note 1(H). Thus, in determining whether to apply a sentence enhancement, the district court must consider all relevant conduct. See United States v. Washington, 11 F.3d 1510, 1516 (10th Cir. 1993) (citing U.S.S.G. § 1B1.3), cert. denied, 511 U.S. 1020 (1994).
The government bears the initial burden of proving possession by a preponderance of the evidence. United States v. Smith, 131 F.3d 1392, 1400 (10th Cir. 1997), cert. denied, 522 U.S. 1141 (1998). This burden may be satisfied by showing that there is a temporal and spatial relationship between the weapon, the drug trafficking activity, and the defendant. United States v. Pompey, 264 F.3d 1176, 1180 (10th Cir. 2001), cert. denied, 534 U.S. 1117 (2002). The necessary nexus between the weapon, drug trafficking and defendant may be established by showing that "the weapon was located nearby the general location where drugs or drug paraphernalia are stored or where part of the transaction occurred." United States v. Flores, 149 F.3d 1272, 1280 (10th Cir. 1998) (internal quotation omitted), cert. denied, 525 U.S. 1092 (1999). In addition, the sentencing court may "attribute to a defendant weapons possessed by his codefendants if the possession of weapons was known to the defendant or reasonably foreseeable by him." United States v. McFarlane, 933 F.2d 898, 899 (10th Cir. 1991). "Once the government establishes that the gun was possessed in proximity to the drugs or transaction, the burden shifts to the defendant to show it is clearly improbable that the weapon was related to the offense." Flores, 149 F.3d at 1280 (internal quotation omitted).
The defendant lodges no objection to the relevant conduct determination in §§ 23 and 24 which necessarily includes a finding and conclusion that the events occurring on May 20, 2003 are relevant conduct. By not objecting, the defendant has conceded that the factual and legal basis for the events of May 20, 2003, is relevant conduct in this sentencing. Thus, the defendant's objection is concerned only with whether this relevant conduct is a factually sufficient basis for a firearm enhancement.
The court finds that the uncontested facts in the PSR are sufficient to sustain the government's burden of showing not only the defendant's possession of the firearm on May 20, 2003, but also the firearm's proximity to relevant drug trafficking activity. As probable cause for the search warrant, officers stated that a CI had told them that three males were selling crack cocaine from the residence at 1219 S.W. Buchanan. When the officers executed the warrant, they found the defendant sitting on the couch with a loaded firearm at his feet and with a baggie of crack cocaine next to him. The government met its burden by showing that a gun was present at the same location where drugs were found and where officers had learned that drug transactions were occurring. These facts provide a sufficient basis for finding that the defendant possessed the gun and that a nexus exists between the possession of the gun and the drug trafficking activity for purposes of the enhancement.
Because the government has established possession and proximity, the burden shifts to the defendant to show that it is clearly improbable that the firearm in his possession is connected with his offense which includes his relevant conduct as determined in the PSR. The court will hear from the defendant in that regard.
IT IS THEREFORE ORDERED that through the uncontested facts appearing in the PSR the government has carried its burden of proving by a preponderance of evidence the defendant's possession of a firearm for purposes of U.S.S.G. § 2D1.1(b)(1), and the burden now shifts to the defendant to show that it is clearly improbable that the firearm was related to the offense.