Submitted: January 9, 2017
from United States District Court for the Eastern District of
Missouri - St. Louis
RILEY, Chief Judge, LOKEN and BENTON, Circuit Judges.
BENTON, Circuit Judge.
K. Johnson pled guilty to being a felon in possession of a
firearm in violation of 18 U.S.C. §§ 922(g)(1) and
924(a)(2). He appeals the district court'sapplication of a
four-level sentencing enhancement under U.S.S.G. §
2K2.1(b)(6)(B) for possessing the firearm in connection with
another felony. Having jurisdiction under 28 U.S.C. §
1291, this court affirms.
a house for drug activity, officers saw Johnson exit with a
firearm protruding from his waistband. He entered a vehicle;
officers followed, eventually stopping it for a traffic
violation. Approaching, they saw Johnson repeatedly reaching
under his seat. During a search, they found 72 heroin
capsules on Johnson and a firearm in the vehicle.
district court assessed a four-level enhancement for
possessing a firearm in connection with another felony.
See U.S.S.G. § 2K2.1(b)(6)(B). It
sentenced Johnson to 72 months' imprisonment. He argues
the court erroneously found: (1) the heroin was a
distribution, not a "user, " amount; and (2) he
used the gun "in connection with" another felony.
This court reviews factual findings for clear error, and
application of the sentencing guidelines de novo. United
States v. Blankenship, 552 F.3d 703, 704 (8th Cir.
States Sentencing Guideline § 2K2.1(b)(6)(B) increases a
defendant's base offense level if the defendant
"[u]sed or possessed any firearm or ammunition in
connection with another felony offense." U.S.S.G. §
2K2.1(b)(6)(B). Applying the enhancement, there is "a
distinction between the factual circumstances of when the
other felony was a drug trafficking offense, or
alternatively, a simple drug possession offense."
Blankenship, 552 F.3d at 705. "If the felony is
for drug trafficking, Application Note 14(B) mandates
application of the adjustment if guns and drugs are in the
same location." Id., citing U.S.S.G.
§ 2K2.1(b)(6) cmt. n. 14(B).
the underlying drug offense is for simple possession, the
district court may still apply the adjustment, but only after
making a finding that the firearm facilitated the drug
offense." Id., citing United States v.
Fuentes Torres, 529 F.3d 825, 827-28 n. 2 (8th Cir.
2008). See United States v. Holm, 745 F.3d 938, 940
(8th Cir. 2014) ("For purposes of the §
2K2.1(b)(6)(B) enhancement, a firearm is possessed 'in
connection with' a drug possession felony if it
'facilitated, or had the potential of facilitating'
that other felony."), quoting U.S.S.G. §
2K2.1, cmt. n. 14(A). This court reverses if "the record
on appeal indicat[ed] that the district court applied the
section 2K2.1(b)(6) enhancement based on a temporal and
spatial nexus between the drugs and firearms, without
applying the 'facilitate' standard of note
14(A)." United States v. Sneed, 742 F.3d 341,
344 (8th Cir. 2014) (internal quotations omitted),
quoting United States v. Dalton, 557 F.3d 586, 589
(8th Cir. 2009). "[W]hen a drug user chooses to carry
illegal drugs out into public with a firearm, an 'in
connection with' finding 'will rarely be clearly
erroneous.'" Holm, 745 F.3d at 940,
quoting Sneed, 742 F.3d at 344.
all the evidence, the district court found:
Now the gun can't be just in-it's not just proximity.
However, I believe that in this case the evidence shows given
where the gun was, being seen on his person, later being
under the seat of the car in close proximity to him as he is
in the car, that this gun had the potential to facilitate the
distribution of the drugs. . . . I believe that having the
drugs and the gun together and this quantity of drugs in
a car going somewhere is a sufficient basis for me to
find that this gun either facilitated or had-but certainly it
had the potential to facilitate the possession with intent to
added). The court did not apply the enhancement based solely
"on a temporal and spatial nexus between the drugs and
firearms." Sneed, 742 F.3d at 344. See
United States v. Jarvis, 814 F.3d 936, 936-38 (8th Cir.
2016) (holding that the district court did not err in finding
a firearm was used "in connection with" heroin
possession where the defendant left the house with a bag of
0.21 grams of heroin and a firearm in his pocket); United
States v. Swanson, 610 F.3d 1005, 1008 (8th Cir. 2010)
("The inference that a firearm is for protection of
drugs is allowable when the amount of drugs is more than
district court did not clearly err in finding that the gun
facilitated possession with intent to distribute, and,
therefore, Johnson possessed the firearm "in connection
with" the heroin possession. This ...