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USCA1 Opinion
UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT
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No. 94-1138
UNITED STATES,
Appellee,
v.
EVERTON THOMPSON,
Defendant - Appellant.
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APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS
[Hon. A. David Mazzone, Senior U.S. District Judge]
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Before
Torruella, Cyr and Stahl,
Circuit Judges.
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Owen S. Walker, Federal Defender Office, by Appointment of
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the Court, for appellant.
Michael J. Pelgro, Assistant United States Attorney,
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Organized Crime Drug Enforcement Task Force, with whom Donald K.
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Stern, United States Attorney, was on brief for appellee.
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August 16, 1994
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TORRUELLA, Circuit Judge. A federal grand jury
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returned an eleven-count indictment which charged seven
defendants, not including defendant/appellant Everton Thompson,
with conspiracy to distribute cocaine base from September 1991 to
June 1992, and other substantive drug distribution counts. Count
Ten of the indictment charged Thompson, and three other
defendants, with the knowing possession of a handgun with an
obliterated serial number in violation of 18 U.S.C. 922(k).
Thompson pled guilty to Count Ten. At the sentencing hearing,
the court determined that the applicable guideline was U.S.S.G.
2K2.1 (1990), and found that Thompson "used or possessed the
firearm in connection with the commission or attempted
commission" of the drug offenses. The court therefore applied
the cross-reference provision set forth in 2K2.1(c)(2) and
imputed to Thompson a series of drug offenses committed by the
alleged conspiracy. Thompson now challenges the district court's
interpretation and application of U.S.S.G. 2K2.1(c)(2). We
affirm.
I. BACKGROUND
I. BACKGROUND
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A. Facts
A. Facts
We cull the facts from unobjected to portions of the
Presentence Report ("PSR") and from the government's statement of
evidence at the plea hearing. United States v. Garc a, 954 F.2d
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12, 14 (1st Cir. 1992).
This case involves a 1991 Drug Enforcement
Administration ("DEA") investigation of drug trafficking in
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Dorchester, Massachusetts. Codefendant David Jackson was the
leader of a group of persons who were running a cocaine and
cocaine base distribution enterprise out of an apartment at 49
Theodore Street in Dorchester. During the investigation, the DEA
utilized a confidential informant ("CI") who purchased large
quantities of cocaine and cocaine base from various codefendants
at 49 Theodore Street, engaged in negotiations with various
codefendants to purchase a machine gun and other firearms, and
purchased a handgun with an obliterated serial number.
The evidence established the following facts linking
Thompson to his codefendants. On August 15 and September 9, the
CI made his first two cocaine purchases, totalling approximately
250 grams, from two men, one of whom was defendant Charles Brown.
On September 24, 1991, Brown sold the CI 68 grams of cocaine base
and 43 grams of cocaine. Brown told the CI that he might be able
to get him a Tech-9 firearm for $1000 and would contact "the man
with the guns." On September 25, 1991, the CI placed a drug
order with Brown, and Brown mentioned that he was going to check
about obtaining the gun.
On October 2, 1991, Brown took the CI to the first
floor apartment at 49 Theodore Street, where the CI observed drug
transactions and other drug activity. Brown introduced the CI to
Jackson, and told the CI that Jackson was the "boss." The CI
paid Jackson $8,500 and was thereupon given 227 grams of cocaine
base by defendant Roy Gray, who was also in the apartment.
On October 3, 1991, the CI and Brown had a telephone
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conversation in which they discussed the "crack" which the CI had
purchased the day before, and the firearm Brown had mentioned.
On October 6, 1991, the CI telephoned the Theodore Street
apartment and spoke to a man named "Henry." The CI then told
Henry to tell Brown to get a firearm for him.
On October 9, 1991, the CI went to the Theodore Street
apartment, but neither Brown nor Jackson was there. Brown then
arrived at the apartment with Thompson, and Thompson told the CI
that Jackson was not there, and asked the CI for his beeper
number. Shortly thereafter, Jackson arrived. The CI asked
Jackson if he could buy a quarter kilogram of crack and Jackson
replied that it would be no problem. Jackson told the CI that he
could get the CI anything he wanted and that he could get a 9
millimeter pistol for the CI immediately. Jackson stated that he
had to have guns, and that all of his boys had guns. Jackson
further informed the CI that a Jamaican soldier sold guns to him
and was supposed to bring him a machine gun. Jackson told the CI
that he would sell a Tech-9 (firearm) to the CI for $1000.
Jackson asked the CI for his beeper number, and the CI told
Jackson that he had given the number to Thompson.
On October 11, 1991, Jackson, who presumably received
the beeper number from Thompson, paged the CI. The CI telephoned
Jackson, and Jackson said that he had to go somewhere and that
the CI would have to deal with his brother, "Dean." Jackson said
that he could get the CI any type of gun, and that he had spoken
with his gun contact the previous night. Later that day, the CI
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went to the Theodore Street apartment and bought 227 grams of
crack from Dean for $8000. Thompson and Gray were present at the
apartment, and the CI asked Gray about the firearm. Gray talked
to Thompson, and Thompson stated that he did not know anything
about it. That night, the CI spoke with Jackson, and Jackson
told the CI that he could pick up the gun from defendant Michael
Shields the following morning at Theodore Street.
On October 12, 1991, the CI went to Theodore Street,
where he met Shields. The CI told Shields that he was there to
pick up a gun. Shields told the CI that he was going to make a
call to Henry's house, so that Henry would bring the gun to the
CI at Theodore Street. The CI then observed Shields make a
telephone call. Shields handed the telephone to the CI and said
that Jackson was on the phone. Jackson told the CI to wait a
while until Shields woke up Henry who would get the gun for the
CI. Shields then asked Thompson to take a cab to Henry's home,
and to get the gun from him. Thompson left the apartment, and
later returned with Henry. Henry handed the CI a 9 millimeter
firearm with an obliterated serial number. Thompson handed Henry
a box containing 50 rounds of ammunition and Henry gave the box
of ammunition to the CI.
During the following three or four weeks, the CI had
more contact with the defendants at Theodore Street. On October
15, the CI went to Theodore Street. Thompson opened the kitchen
door for him and led him to an adjacent room where the CI met
with Jackson. The CI paid Jackson $650 for the handgun he had
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previously purchased. While in the apartment, the CI observed
Dean engage in a drug transaction involving what appeared to be
cocaine.
On October 18, the CI telephoned Theodore Street and
Thompson answered the telephone. The CI then talked to Shields
about a future crack cocaine transaction.
On October 21, Thompson was present at Theodore Street
when the CI arrived to purchase more crack. Shields and Henry
arrived later to sell the CI the crack. Acting at the
instruction of Shields, Henry left the apartment and returned
with 223 grams of cocaine base, and sold it to the CI for $8000.
The CI also had a discussion with Shields about purchasing
machine guns.
After early November 1991, there was less contact
between the CI and the defendants. On November 5, Jackson paged
the CI through his beeper. The CI then telephoned Jackson, at
which point Jackson asked him when he was going to purchase more
cocaine. Jackson informed the CI that his gun supplier was
getting weapons and that the CI could purchase them when Jackson
received them.
On December 10, the CI went with Shields to the
Theodore Street apartment and had a discussion with Jackson
concerning future narcotics transactions. While there, the CI
saw Thompson at the apartment. In early January 1992, the CI
went to a second location, 973 Blue Hill Avenue in Boston, to
purchase more cocaine base, and he spoke with Gray. After a
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while, the CI went to the Theodore Street apartment, where he met
with Thompson and Gray. The CI told Thompson that he was there
to buy something from Jackson, and Thompson responded that the CI
would have to deal directly with Jackson.
B. Proceedings Below
B. Proceedings Below
On January 20, 1993, the grand jury returned an eleven-
count indictment against eight defendants. The only count in
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which Thompson was charged, Count Ten, alleged that on or about
October 12, 1991, Jackson, Shields, "Henry," and Thompson
knowingly possessed a 9-millimeter pistol with a removed,
obliterated or altered serial number, in violation of 18 U.S.C.
922(k). The other counts, alleging a cocaine base distribution
conspiracy, and substantive cocaine and cocaine base distribution
charges, concerned conduct of the other defendants over a six-
month period from late September 1991 through March 1992.
Thompson pled guilty to Count Ten on October 20, 1993.
Pursuant to a plea agreement, the government agreed to recommend
a 30-month prison sentence. The agreement provided that if the
court decided to sentence Thompson to more than 30 months,
Thompson would be permitted to withdraw his guilty plea.
The PSR was issued on December 15, 1993. The PSR
recommended that the guideline applicable to the offense was
U.S.S.G. 2K2.1, and that the 1990 guidelines applied, rather
then the guidelines in effect when the report was prepared,
because applying the latter version might create an ex post facto
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problem. Because the PSR determined that "defendant used or
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possessed the firearm in connection with the commission or
attempted commission" of the overall drug conspiracy, the PSR
applied the "cross-reference" provision set forth in
2K2.1(c)(2) and imputed to Thompson a series of drug offenses
committed by the alleged conspiracy in October 1991. Finding
that the conspiracy was responsible for 122.5 grams of cocaine
and 450.9 grams of cocaine base during that period, the PSR
calculated Thompson's base offense level as 34. By making
certain adjustments, it found Thompson's overall offense level to
be 37, and Thompson's applicable criminal history category to be
I. Since the applicable Sentencing Guideline range of 210-262
months was above the statutory maximum of 60 months, the latter
figure became the Sentencing Guideline range pursuant to U.S.S.G.
5G1.1(a).
Thompson agreed that the applicable offense-level
guideline was U.S.S.G. 2K2.1 (1990), but objected to the PSR's
conclusions that the 2K2.1(c)(2) cross-reference provision
applied to him.
The court sentenced Thompson on January 7, 1994. The
court, agreeing with the PSR, found that the 2K2.1(c)(2) cross-
reference provision applied and imputed to Thompson the drug
offense level as computed in the PSR. Specifically, the court
accepted the undisputed factual assertions contained in the PSR,
which convinced the court by a preponderance of the evidence that
there was a "sufficient basis" to find that "the weapon was used
in connection with and/or to facilitate the commission of the
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offense." The court specifically noted that all of the
narcotics-related events occurred at the Theodore Street
apartment and that Thompson's name came up in the PSR "in
connection with others who were, indeed, involved in the
substantive drug offenses and in the context in which Mr.
Thompson could reasonably be held to have knowledge that they
were so involved and he was so involved."
The court determined that the applicable sentencing
range was the statutory maximum of 60 months imprisonment. The
court then departed downward to a prison sentence of thirty
months, because it found that the cross-reference resulted in an
"extraordinary enlargement of defendant's role and culpability,"
and the plea agreement "does not undermine the guidelines" and
does not contravene the purposes of the sentences.1
II. ANALYSIS
II. ANALYSIS
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A. Standard of Review
A. Standard of Review
On appeal, Thompson challenges the district court's
application of sentencing guideline 2K2.1(c)(2) (1990). When
we review a district court's application of a sentencing
guideline, we utilize a bifurcated process. First, we review the
guideline's legal meaning and scope de novo. United States v.
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Brewster, 1 F.3d 51, 54 (1st Cir. 1993) (citing United States v.
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St. Cyr, 977 F.2d 698, 701 (1st Cir. 1992)). Next, we review the
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court's factfinding for clear error, giving due deference to the
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1 Without the 2K2.1(c)(2) (1990) cross-reference provision,
Thompson's guideline sentencing range would be 0-6 months.
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court's application of the guidelines to the facts. 18 U.S.C.
3742(e); Brewster, 1 F.3d at 54 (citing St. Cyr, 977 F.2d at
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701); see, e.g., United States v. Wheelwright, 918 F.2d 226, 227-
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28 (1st Cir. 1990) (applying clearly erroneous standard when
reviewing district court's application of U.S.S.G.
2K2.1(c)(1987) cross-reference provision).
B. Principles of Statutory Construction -
B. Principles of Statutory Construction -
What does the Guideline Say and Mean?
What does the Guideline Say and Mean?
The sentencing guideline at issue, U.S.S.G.
2K2.1(c)(2) (1990), provides:
If the defendant used or possessed the
firearm in connection with commission or
attempted commission of another offense,
apply 2X1.1 (Attempt, Solicitation, or
Conspiracy) in respect to that other
offense, if the resulting offense level
is greater than that determined above.
U.S.S.G. 2X1.1(a) (1990) in turn requires that the base offense
level is to be determined from the guideline for the object
offense, plus any adjustments from such guideline for any
intended offense conduct that can be established within
reasonable certainty.
The question in this appeal is whether Thompson's
constructive possession of the firearm was "in connection with"
one or more of the drug offenses.2 This Circuit has not
specifically identified what evidence is sufficient to sustain a
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2 Thompson pled guilty to Count Ten of the indictment which
charged him with the knowing possession of a handgun with an
obliterated serial number. Thompson does not, therefore,
challenge the court's implicit determination at sentencing that
he "used or possessed" the firearm pursuant to U.S.S.G.
2K2.1(c)(2).
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finding under 2K2.1(c)(2) that a firearm was possessed in
connection with the commission or attempted commission of another
offense. Thompson argues that the phrase "in connection with"
should be interpreted narrowly, in a way that requires a tight
facilitative nexus between a defendant's possession of a firearm
and the commission of any drug offense. Thompson contends that
such a nexus is lacking in this case. The government argues that
the phrase is to be interpreted broadly and that Thompson's
conduct easily falls within the purview of the guideline.
When interpreting a statute, it is axiomatic that a
court must first look to the plain words and structure of the
statute. United States v. O'Neil, 11 F.3d 292, 295 (1st Cir.
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1993); see also United States v. DeLuca, 17 F.3d 6, 10 (1st Cir.
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1994) (stating that principles of statutory interpretation apply
to sentencing guidelines). With respect to the sentencing
guidelines, courts should strive to apply the guidelines as
written, according words in common usage their ordinary meaning.
Brewster, 1 F.3d at 54. Because the phrase "in connection with"
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is not defined under U.S.S.G. 2K2, we assume that the
Sentencing Commission did not intend the terms to have an
exceptional or guideline-specific meaning. This reinforces our
belief that the words should be accorded their customary meaning.
See Smith v. United States, 113 S. Ct. 2050, 2054 (1993);
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Brewster, 1 F.3d at 54.3
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3 Thompson points to the language of the 2K2 cross-reference
when originally issued, which provided:
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Merriam-Webster's Collegiate Dictionary 245 (10th Ed.
1993) defines "connection" as a "causal or logical relation or
sequence." This definition suggests that there must be some
reasoned link between a defendant's possession of a firearm and
the commission or attempted commission of another offense. While
it is difficult to sketch the outer boundaries of this link,
there is no question that where a defendant's possession of a
firearm somehow aids or facilitates, or has the potential to aid
or facilitate, the commission of another offense, the defendant's
possession of the firearm is causally and logically related to
the other offense. A defendant's possession of a firearm cannot
therefore simply be coincidental.
Courts which have interpreted the phrase "in connection
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If the defendant used the firearm in
committing or attempting another offense,
apply the guideline in respect to such
other offense, or 2X1.1 (Attempt of
Conspiracy) if the resulting offense
level is higher than that determined
above. U.S.S.G. 2K2.1 (1987).
Thompson argues that this earlier language required a tight nexus
between the firearm and the cross-referenced offense. Although
the wording of the cross-reference provision was changed between
1987 and 1990, Thompson argues that this modification was not
intended to change the meaning of the cross-reference. (The
phrase "[i]f the defendant used the firearm in committing or
attempting another offense" was replaced by "[i]f the defendant
used or possessed the firearm in connection with commission or
attempted commission of another offense." U.S.S.G., App. C,
Amendment 189 (1989)). To support this argument, Thompson
contends that the lack of expository comment in relation to the
amendment means that it is unlikely that the change in wording
signalled a change in meaning or how it was to be applied. We do
not agree. We do not believe we should use the absence of
legislative history to interpret a statute or guideline in a
manner inconsistent with its plain language. United States v.
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Zackular, 945 F.2d 423, 424 (1st Cir. 1991).
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with" in the context of 2K2 of the guidelines have adopted and
applied this plain meaning. In Brewster, the First Circuit
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reviewed the district court's application of the phrase "in
connection with" in the context of U.S.S.G. 2K2.1(b)(5) (1992),
a similar cross-reference provision.4 Id. at 54-55. In
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Brewster, over the course of a month, an undercover federal agent
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met with Brewster several times to discuss the possibility of
buying drugs and guns. Their discussions came to fruition when
Brewster sold the agent a small amount of crack cocaine, and
within an hour of that transaction, also sold him an automatic
weapon. Brewster eventually pled guilty to charges of
distribution of cocaine and being a felon in possession of a
firearm. At the sentencing hearing, the agent testified that he
had told Brewster from the outset that he aspired to be a drug
dealer, and that he needed a weapon to facilitate his plan.
Brewster denied that he knew of any link between the weapon and
the agent's planned drug trafficking. The court then found that
Brewster sold the firearm with knowledge of the buyer's intended
narcotics-related use of the weapon, and enhanced his sentence
pursuant to U.S.S.G. 2K2.1 (b)(5). Brewster then appealed the
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4 U.S.S.G. 2K2.1(b)(5) (1992) provides:
If the defendant used or possessed any
firearm or ammunition in connection with
another felony offense; or possessed or
transferred any firearm or ammunition
with knowledge, intent or reason to
believe that it would be used or
possessed in connection with another
felony offense, increase by four levels.
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court's application of this cross-reference. We determined that
the phrase "in connection with" should be accorded its ordinary
meaning. The court then noted that the case turned on
credibility, and found that the district court's decision to
credit the agent's recitation of events, which indicated that
Brewster sold the gun with reason to believe that his customer
planned to use the gun in connection with drug trafficking, was
supported by the record, and that this constituted a sufficient
nexus between the weapon and the drug trafficking, for purposes
of the sentence enhancement. Id. at 54-55. See also United
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States v. Condren, 18 F.3d 1190, 1200 (5th Cir. 1994); United
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States v. Sanders, 990 F.2d 582, 585 (10th Cir.), cert. denied,
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114 S. Ct. 216 (1993).
Our construction of the phrase "in connection with"
comports with the Supreme Court's recent interpretation of an
analogous phrase, "in relation to" in the context of 18 U.S.C.
924(c)(1). See Smith v. United States, 113 S. Ct. 2050, 2059
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(1993); United States v. Routon, No. 93-10103, slip. op. (9th
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Cir. June 1, 1994). In Smith, the Supreme Court looked to the
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ordinary meaning of the phrase "in relation to" and found that it
meant "with reference to" or "as regards." Smith, 113 S. Ct. at
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2058-59 (citing Webster's New International Dictionary of the
English Language, at 2102). The Court emphasized that the phrase
had an expansive meaning. Id. at 2058. The Court stated:
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The phrase "in relation to" thus, at a
minimum, clarifies that the firearm must
have some purpose or effect with respect
to the drug trafficking crime; its
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presence or involvement cannot be the
result of accident or coincidence. As
one court has observed, the "in relation
to" language "allays explicitly the
concern that a person could be" punished
under 924(c)(1) for committing a drug
trafficking offense "while in possession
of a firearm" even though the firearm's
presence is coincidental or entirely
"unrelated" to the crime. United States
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v. Stewart, 779 F.2d 538, 539 (9th Cir.
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1985) (Kennedy, J.). Instead, the gun at
least must "facilitate, or have the
potential of facilitating," the drug
trafficking offense.
Smith, 113 S. Ct. at 2059 (other citations omitted.); United
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States v. Hadfield, 918 F.2d 987, 998 (1st Cir. 1990) (stating
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that under 18 U.S.C. 924(c), the critical concern is the
presence or absence of a facilitative nexus between the firearm
and drug activity, and finding that even if a firearm is not
instantly available or exclusively dedicated to the narcotics
trade, a sufficient nexus may exist to find a firearm was used
during and in relation to a drug trafficking crime), cert.
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denied, 500 U.S. 936 (1991). We therefore believe that the
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phrase "in connection with" should be interpreted broadly and
that where a defendant's possession of a firearm aids or
facilitates the commission of another offense, the requisite link
is present.5
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5 Thompson points to the Tenth Circuit's opinion in United
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States v. G mez-Arrellano, 5 F.3d 464 (10th Cir. 1993), which
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expressly looked to 18 U.S.C. 924(c) for interpretative
guidance, as controlling precedent. In United States v. Sanders,
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990 F.2d 582 (10th Cir.), cert. denied, 114 S. Ct. 216 (1993), an
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earlier Tenth Circuit case, the court refused to look to 18
U.S.C. 924(c) which creates criminal liability for one who uses
or carries a firearm "during and in relation to any crime of
violence or drug trafficking crime" as a guide for interpreting
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We do not believe that the district court's factual
finding that Thompson's constructive possession of the handgun
facilitated the commission of the cocaine and cocaine base
offenses, and therefore fell within the ambit of the
2K2.1(c)(2) cross-reference provision, was clearly erroneous.
The record supports the conclusion that a drug distribution
operation was run out of the Theodore Street apartment, and that
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2K2.1(b)(5) because the standard under 924(c) was "much higher
than that necessary for enhancement under the Guidelines."
Sanders, 990 F.2d at 585. After Sanders was decided, the United
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States Supreme Court issued its decision in Smith v. United
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States, 113 S. Ct. 2050, 2059-60 (1993), which interpreted 18
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U.S.C. 924(c) to require evidence showing only that a weapon
facilitated or had the potential to facilitate a crime -- a lower
standard than that previously used by the Tenth Circuit.
In G mez-Arrellano, the Tenth Circuit expressly looked to 18
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U.S.C. 924(c) for guidance as to how to interpret the phrase
"in connection with" and ultimately held that the district
court's decision to apply the sentence enhancement for use of a
firearm in connection with another felony was unsupported by the
record. The facts had shown that when INS officers went to
arrest Mr. G mez-Arrellano at an Albuquerque residence, the
officers observed a green leafy substance in plain view and Mr.
G mez-Arrellano attempting to hide a plastic bag under a bed. A
subsequent search of the residence led to the discovery of
marijuana, cocaine, a pistol and ammunition. Because there was
no evidence in the record regarding the physical proximity
between the weapon and the drugs, nor any evidence regarding the
size or layout of the house, nor any indication that drug
transactions occurred inside the house, the Tenth Circuit found
there was insufficient evidence to support the inference of a
nexus between the weapon and narcotics activity.
We do not believe that the Tenth Circuit's decision in G mez-
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Arrellano to use 924(c) as a model for interpreting
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2K2.1(b)(5) is inconsistent with Sanders, in light of the
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intervening United States Supreme Court case. Moreover, our
interpretation of 2K2.1 (c)(2) is consistent with the Supreme
Court's interpretation of similar language in 924(c). We also
believe that the facts of the present case show a stronger
connection between the firearm possession and drug offenses than
did the facts in G mez-Arrellano.
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Jackson was the "Boss," who was supported in his business by his
"boys," one of whom was Thompson. As the district court found,
it was imminently reasonable to believe that Thompson knew about
this drug dealing operation -- he was present on numerous
occasions when the CI went to Theodore Street to purchase cocaine
and cocaine base, and while there, saw drug related activities
openly occurring in the apartment.
While purchasing drugs, the CI repeatedly sought to
purchase firearms as well. Specifically, the CI was looking to
purchase a handgun on October 11, 1991, when he bought a quarter-
kilogram of cocaine base at Theodore Street. The handgun was not
available and the CI was told to come back the next day. On
October 12, the CI returned to Theodore Street to purchase the
gun, and Thompson, along with Henry, personally delivered the 9
millimeter pistol and ammunition to the CI. Essentially, this
completed the sale from the previous day. It does not in any way
strain credulity to believe that the Theodore Street group's sale
of the firearm to the CI facilitated the cocaine and cocaine base
sales. The evidence reasonably suggested that the cast of
characters at Theodore Street was in the business of supplying
both drugs and firearms, and that they were willing to obtain
whatever contraband the CI requested, in order to accommodate a
good customer and to maintain his confidence and business.
Thompson argues that the requisite nexus should only be
found to exist when there is some type of physical proximity
between the firearm and the drugs. The guideline does not
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require that the defendant actually use the firearm himself, or
use the firearm in any particular way. Rather, as we have
already determined, the language of the guideline is broad. The
combination of firearms and drugs is common, and the guideline
encompasses the many logical links which exist between the use of
firearms and drugs.
Thompson also points out that the usual case in which
the 2K2.1 cross-reference is used to apply drug guidelines to
a firearms offender is where the defendant used a firearm for
protection during a drug transaction or had the firearm available
to protect his supply of drugs. While this may be the most
common scenario, it is certainly not the only type of situation.
Rather, the cross-reference has been applied in a variety of
factual scenarios where a firearm has somehow aided or
facilitated the cross-referenced offense. See, e.g., United
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States v. Patterson, 947 F.2d 635, 636 (2d Cir. 1991) (finding
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that the district court properly applied 2K2.1(c)(2)
enhancement when evidence showed that defendant had a gun under
the front seat of his car while he was driving to purchase drugs,
even though no drugs were physically present in the car.) Here,
the requisite nexus existed by virtue of the fact that the
enterprise, which Thompson was associated with, sold the guns and
drugs together, in an attempt to accommodate a customer and
maintain his business. The application of the 2K2.1(c)(2)
cross-reference to Thompson reflects the seriousness of firearm
possession in connection with other felonies, and the reality
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that when firearms are possessed or used in connection with drug
offenses, there is a greater threat to public safety. See, e.g.,
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United States v. McFadden, 13 F.3d 463, 464 (1st Cir. 1994)
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(noting that Congress viewed the connection between firearm
possession in relation to drug trafficking provided by 18 U.S.C.
924(c) very seriously by requiring a mandatory five year
sentence, thus denying parole to an offender at a time when
parole was ordinarily available as a matter of course); U.S.S.G.
2D1.1(b)(1) comment (n.3) (1990) (enhancement of drug
trafficking offense for weapons possession reflects the increased
danger of violence when drug traffickers possess weapons).
For the foregoing reasons, the district court correctly
applied U.S.S.G. 2K2.1(c)(2), and the sentence is affirmed.
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Document Info
Docket Number： 94-1138
Filed Date： 8/16/1994
Precedential Status： Precedential
Modified Date： 9/21/2015