Experienced federal practitioners are conditioned to wince upon the mention of a gun in proximity to a drug deal or even just near a stash of drugs intended for sale. Those combinations can produce a two-level enhancement under USSG §2D1.1(b)(1), the drug Guideline, for possession of a firearm in connection with a drug offense; a four-level enhancement under USSG §2K2.1(b)(6), the firearm Guideline for use of a firearm in connection with another felony; a cross reference from the firearm Guideline to the drug Guideline under USSG §2K2.1(c)(1); or, worse, a 5-year mandatory minimum under 18 U.S.C. §924(c). Sometimes, it’s tempting not to fight the Guideline enhancements,1 even when the evidence seems to show nothing more than the mere presence of guns and drugs. The courts have hammered into us that firearms are “tools of the trade”2 when it comes to drug dealing, and the Application Notes to both USSG §2D1.1(b)(1)3 and USSG §2K2.1(b)(6)4 rather strongly encourage their application when guns and drugs are together. But, a recent Fifth Circuit opinion reminds us not to concede the issue too readily.
In United States v. Sincleair, __ F.4th __, No. 20-10495, 2021 WL 5001783 (5th Cir. Oct. 28, 2021), a drug defendant suffered arrest at the home of a downstream customer, that is, a man who bought drugs from the defendant’s own buyer. In fact, these two customers of the defendant were transacting two ounces of methamphetamine when police arrived. The police also found a gun in close proximity to all concerned. Although police ultimately found that the gun was registered to one of the customers (the resident), the district court nonetheless imposed a two-level enhancement for possessing a firearm in connection with the drug offense.
A divided panel of the Fifth Circuit vacated the sentence and remanded. The panel majority did not think the district court was sufficiently clear about the reason for the adjustment. That is, the district court did not clearly say whether the defendant had personally possessed the firearm, or whether, instead, he was vicariously responsible for another’s possession through principles of relevant conduct. The panel said:
It is not clear whether the district court determined that Sincleair personally possessed the firearm or that one of Sincleair’s “unindicted co-conspirators” possessed it during the commission of an offense. The PSR addendum presents both of these options as possibilities, and the district court did not explain which form of possession it attributed to Sincleair. In such a situation, our circuit precedent supports vacating the sentence and remand for the district court to make the appropriate findings.
Id. at *3. Sincleair thus confirms Fifth Circuit precedent. See United States v. Zapata-Lara, 615 F.3d 388 (5th Cir. 2010) (requiring district courts to make explicit findings in support of their Guideline calculations, including those underlying the gun enhancement to USSG §2D1.1).
Perhaps more significantly, the panel found insufficient evidence to support either a theory of personal possession or of vicarious sentencing liability through relevant conduct. It said:
Moreover, there is not enough in the record to support the firearm enhancement based on Sincleair’s personal possession of the firearm because the PSR did not include sufficient facts establishing a temporal and spatial relationship between the gun, the drug trafficking activity, and Sincleair. The Government (and the probation officer) did not provide any evidence establishing that Sincleair owned the weapon, brought the weapon with him to [downstream buyer]’s house, or had any other connection to it. Neither the PSR nor any other evidence supports a finding of temporal proximity between Sincleair’s drug trafficking activity and the weapon found in [downstream buyer]’s house. The only relevant facts in the PSR are that Sincleair was [direct customer]’s source for methamphetamine, and Sincleair and [direct customer] and their girlfriends were present at [downstream buyer]’s home for a social gathering around the time that [direct customer] sold an ounce of methamphetamine to [downstream buyer]. Thus, the only drug transaction that is documented in the PSR occurred in [downstream buyer]’s home between [direct customer] and [downstream buyer]. Even if it may be inferred that Sincleair sold the methamphetamine to [direct customer], there is no evidence of any temporal proximity between Sincleair’s sale and the presence of the weapon; there is no evidence that the sale occurred on the same day, same week, or even same month as [direct customer]’s sale to [downstream buyer]. There is also no evidence that Sincleair promoted or assisted in the sale in any way. The temporal connection between the firearm and any drug trafficking by Sincleair was thus tenuous at best.
Sincleair, __ F.4th at *4.
Though the opinion doesn’t say as much explicitly, it does seem to bolster a defendant’s argument against personal possession of a firearm – notwithstanding its proximity to both the defendant and the drugs – whether it might just as plausibly have been possessed by another person. It also supplies a good argument against the application of the gun enhancement based on possession by co-defendants. Specifically, it seems to hold that a co-defendant’s possession of a gun in connection with drugs will not justify the adjustment unless the defendant is involved in the particular transaction where the gun is present. Remarkably, this may be so even if he or she previously delivered the very quantity at issue.