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Criminal Practice – Sentence Enhancement OK’d for ‘Hunting’ Guns

U.S. v. Bolton (Lawyers Weekly No. 001-128-17, 19 pp.) (Thacker, J.) No. 16-4077, June 7, 2017; USDC at Greensboro, N.C. (Osteen, J.) 4th Cir.

Holding: A district court did not err in enhancing defendant’s sentence on marijuana and cocaine distribution convictions for firearm possession, even though the firearms were discovered after defendant pled guilty to the original marijuana charge and defendant claimed the guns were used for hunting; the 4th Circuit says any alleged error in analyzing the two relevant sentencing guidelines was harmless.

Sentencing Claims

We first review two facets of the district court’s sentencing procedure: 1) its offense level enhancement under USSG § 2D1.2(b)(1), for possession of a firearm in connection with a drug trafficking offense; and 2) its refusal to decrease defendant’s offense level under USSG § 2D1.1(b)(17), to allow a safety valve decrease if the firearm is not possessed in connection with the offense.

Law enforcement discovered the firearms underlying defendant’s sentence enhancement in December 2014, almost two years after the end of the marijuana conspiracy to which defendant pleaded guilty, which, as stated in the marijuana indictment, continued until February 2013. Because officers located the two firearms in defendant’s bedroom along with 400 grams of marijuana and $912 in cash, however, this temporal stretch is insufficient to sever the discovery of the firearms from the same course of conduct or common scheme as the offense of conviction.

We have held that conduct relevant to such enhancement may include drug amounts, money from drug sales and guns possessed while engaging in drug sales, related to, though not distinct from, the crime of conviction.

As to defendant’s attempt to show that the firearms were connect to hunting – through his cousin’s testimony that they grew up hunting and evidence that defendant had a hunting license – the district court discredited the cousin’s testimony because he was unaware that defendant was involved in the drug trade.

Although the discovery of the long guns in defendant’s residence nearly two years after the marijuana conspiracy alone might not suffice to trigger the enhancement, viewed alongside the cash and marijuana at the scene of discovery, the link between the firearms and defendant’s offense was not clearly improbable under § 2D1.1(b)(1).

Safety Valve Claim

At least five of our sister circuits have held that a weapon enhancement pursuant to § 2D1.1(b)(1) does not foreclose a safety valve reduction despite § 5V1.2(a)(2)’s requirement that a defendant seeking the reduction did not possess a firearm in connection with the offense. These holdings are based on the different standards of proof applicable to overcome a § 2D1.1(b)(1) firearm enhancement, versus a § 5C1.2(a)(2) safety valve reduction.

At defendant’s sentencing hearing, the district court did not clearly apply separate analyses to determine whether the firearm enhancement applied as opposed to the safety valve reduction. Given the district court’s factual findings on the cousin’s testimony and the expired hunting license, defendant failed to show by a preponderance of the evidence that the firearms were not connected to his drug distribution. Even assuming the district court erred in its safety valve analysis, any such error was harmless.

The district court also did not err in refusing to reduce defendant’s offense level for acceptance of responsibility under USSG § 3E1.1(a). Defendant says he voluntarily surrendered to authorities after revocation of his pretrial release, admitted to his offense conduct while debriefing with law enforcement and promptly pled guilty. He fails to mention that after his first arrest, he resumed distributing drugs. While under indictment and on bond, he upped the ante and distributed cocaine in addition to marijuana.

Finally, although the district court varied upward from defendant’s guidelines range by 40 months, the sentence was not substantively unreasonable.

Judgment affirmed.


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