United States v. Brian Posley, Jr. , 706 F. App'x 313 ( 2017 )

NOT RECOMMENDED FOR PUBLICATION
File Name: 17a0515n.06
No. 16-6856
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT FILED
Sep 05, 2017
UNITED STATES OF AMERICA, ) DEBORAH S. HUNT, Clerk
)
Plaintiff-Appellee, )
)
ON APPEAL FROM THE
v. )
UNITED STATES DISTRICT
)
COURT FOR THE EASTERN
BRIAN L. POSLEY, JR., )
DISTRICT OF TENNESSEE
)
Defendant-Appellant. )
)
BEFORE: MERRITT, MOORE, and ROGERS, Circuit Judges.
ROGERS, Circuit Judge. Brian Posley pled guilty to being a felon in possession of
ammunition and was sentenced to 70 months’ imprisonment. Posley now appeals the district
court’s application of a four-level enhancement to his base offense level for possessing the
relevant ammunition “in connection with another felony offense” under USSG §2K2.1(b)(6)(B).
Because neither the district court’s finding that Posley was engaged in a felony drug-trafficking
offense nor its decision that Posley possessed ammunition in connection with that offense was in
error, Posley’s sentence stands.
On February 25, 2016, officers with the Chattanooga Police Department visited a house
to execute an arrest warrant that had been issued for Posley due to his failure to appear in court
and his violation of probation. Once there, the officers asked the resident who opened the front
door and another occupant to step outside, leaving Posley alone in the house. The officers saw
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Posley walk in front of a window and instructed him to exit the house. Upon arresting Posley
pursuant to the warrant and searching him, the officers found a bag containing four 9mm bullets
and cocaine in his front left pocket, as well as $700 in cash. The officers then searched the
house, where they found marijuana and cocaine in the toilet. The toilet was located in a
bathroom that corresponded to the location where the officers saw Posley walk across a window
just before he exited the house. In total, the officers found 2.3 grams of crack cocaine, 2.6 grams
of cocaine, and 40.5 grams of marijuana, and Posley confessed to the officers that the drugs were
his.
A grand jury charged Posley with being a felon in possession of ammunition in violation
of 18 U.S.C. § 922(g)(1), and Posley pled guilty to the offense. A probation officer prepared a
presentence investigation report (PSR), which revealed that Posley had charges pending against
him in state court for possessing drugs for resale during the February 25, 2016 incident. The
PSR also stated that Posley was employed during only four of the thirty months preceding his
arrest. The PSR placed Posley’s base offense level at 20 and added a four-level enhancement
under USSG §2K2.1(b)(6)(B) for Posley’s possessing ammunition in connection with a felony
drug-trafficking offense. After a three-point reduction for acceptance of responsibility, Posley’s
total offense level was 21. Combined with a criminal history category of V, the PSR calculated
Posley’s sentencing range at 70 to 87 months’ imprisonment.
Posley’s sole objection to the PSR involved the four-level enhancement for possessing
ammunition in connection with a felony offense. After hearing arguments at the sentencing
hearing, the district court overruled Posley’s objection. The court held that “[g]iven the
defendant’s work history, the existence of the cash, the existence of the various types of drugs,
and the amounts,” the Government had met its burden of proving that Posley was involved in
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drug trafficking. Furthermore, the court relied on our decision in United States v. Coleman,
627 F.3d 205 (6th Cir. 2010), to conclude that the close proximity between the ammunition and
the drugs rendered Posley’s possession of the ammunition “in connection with” the drug
trafficking. The district court then sentenced Posley to 70 months’ imprisonment. Posley now
appeals.
The district court did not err by applying §2K2.1(b)(6)(B)’s four-point enhancement to
Posley’s base offense level. The enhancement is appropriate when “the defendant used or
possessed any firearm or ammunition in connection with another felony offense.” USSG
§2K2.1(b)(6)(B) (2015). Application note 14(A) further describes that the enhancement applies
“if the firearm or ammunition facilitated, or had the potential of facilitating, another felony
offense.” Id. comment. (n.14(A)). The district court did not clearly err when it determined that
Posley possessed the drugs in his house and on his person for resale—a felony drug-trafficking
offense—and correctly determined that the mere presence of ammunition in close proximity to
the drugs facilitated, or had the potential to facilitate, that offense.
The Government presented sufficient, reliable facts to prove by a preponderance of the
evidence that Posley possessed the drugs found during his arrest for resale. Contrary to Posley’s
assertion, more than “mere possession of the drugs . . . , coupled with abject speculation that his
having $700 in cash ‘must have’ come from drug dealing,” supports the district court’s
conclusion. First, the fact that Posley had three types of drugs supports an inference that the
drugs were not for personal use. Furthermore, as the district court noted, the sentencing
guidelines indicate that 40.5 grams of marijuana would create around 81 cigarettes. USSG
§2D1.1, comment. (n.9). Posley objected to this weight calculation, noting that, because the
marijuana was found in the toilet, it was weighed down with water Regardless of whether the
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40.5-gram figure was slightly inflated from water weight, however, the district court reasonably
concluded that the amount of marijuana in Posley’s possession “seem[ed] like quite a bit for
[him] to not be distributing.” The district court’s conclusion that the $700 in cash in Posley’s
front pocket likely came from drug sales is also reasonable, given that Posley had barely been
employed for the thirty months preceding his arrest. Finally, it was at least probative that, at the
time of his sentencing, Posley had been charged in state court for possessing the very drugs at
issue for resale. Considering all of these incriminating facts, it was not clear error for the district
court to find that Posley held the drugs for resale, which constitutes a felony offense in
Tennessee, see Tenn. Code Ann. § 39-17-417(a)(4), (g)(1)(2010).
The district court also properly relied on United States v. Coleman, 627 F.3d 205 (6th
Cir. 2010), to hold that there was a sufficient nexus between the ammunition and the drugs to
render §2K2.1(b)(6)(B)’s enhancement applicable. In Coleman, officers discovered ammunition
and marijuana together in a defendant’s residence. 627 F.3d at 208. After the defendant pled
guilty to being a felon in possession of ammunition and was sentenced pursuant to
§2K2.1(b)(6)(B)’s enhancement, he argued that his possession of ammunition, alone, could not
have facilitated his felony drug-trafficking offense. In rejecting the defendant’s challenge, we
relied on the “fortress theory,” under which “a connection is established if it reasonably appears
that the firearms found on the premises controlled or owned by a defendant and in [the
defendant’s] actual or constructive possession, are to be used to protect the drugs or otherwise
facilitate a drug transaction.” 627 F.3d at 212 (alteration in original) (quoting United States v.
Richardson, 510 F.3d 622, 626 (6th Cir. 2007)). We applied the fortress theory to ammunition
and held that ammunition has the capacity to facilitate a drug-trafficking offense, as required
under §2K2.1(b)(6)(B), whenever it is in close proximity to the drugs involved in the offense.
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See id. at 212–13. Posley argues that our holding in Coleman is wrong, because it contradicts
application note 14(B), which provides that the enhancement should apply “in the case of a drug
trafficking offense in which a firearm is found in close proximity to drugs,” USSG §2K2.1,
comment. (n.14(B)) (emphasis added), but does not mention ammunition in close proximity to
drugs. However, the dissenting opinion in Coleman raised this same point, see 627 F.3d at 217
(Gilman, J., dissenting), and the majority declined to follow it. Thus, Coleman’s holding that
ammunition, alone, in close proximity to drugs can facilitate a drug-trafficking offense is binding
precedent.
Posley’s attempts to distinguish his case from Coleman are unavailing. In Coleman, the
circumstances leading up to the officers finding ammunition and drugs in the defendant’s house
were irrelevant to our holding that the defendant possessed the ammunition “in connection with”
a felony drug-trafficking offense. Thus, the different circumstances leading up to Posley’s arrest
are not relevant. Furthermore, despite Posley’s argument that the drugs in the toilet were not “in
close proximity” to the ammunition in his front pocket, the record supports a reasonable
inference that Posley possessed the drugs found in the toilet together with the ammunition
immediately before he exited the house. The officers saw Posley pass a window in the bathroom
where the majority of the drugs were found before he stepped outside; Posley was likely trying to
dispose of the drugs, while he possessed the ammunition, in the officers’ presence. Thus, the
district court did not clearly err in finding that all of the drugs—including the cocaine in Posley’s
pocket and the marijuana and crack cocaine in the toilet—were in close proximity to the
ammunition.
Posley’s reliance on United States v. Shields, 664 F.3d 1040 (6th Cir. 2011), is also
misplaced. In Shields, we held that a district court erred by applying the §2K2.1(b)(6)(B)
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enhancement when there was insufficient evidence to prove that the criminal defendant
possessed a firearm “in connection with” a felony drug-possession offense. See 664 F.3d at
1042. We reasoned that, although the fortress theory can apply to drug possession—as opposed
to drug trafficking—it would be easier to prove that a firearm in close proximity to drugs
facilitated a drug-trafficking offense than it is to prove that a firearm in close proximity to drugs
facilitated drug possession. See id. at 1044–45. We went on to hold that, because the defendant
possessed a relatively small amount of drugs and asserted that the firearm was for self-
protection, there was insufficient evidence to prove that his firearm possession was anything
more than coincidental to his drug possession. See id. at 1045. Posley argues that those same
mitigating factors are present in his case. However, even assuming that Posley’s assertion is
true, Shields is distinguishable, because the felony underlying Posley’s sentence enhancement is
drug trafficking, contrasted with the mere possession in Shields. As we recognized in Shields, “it
is easier to see how a firearm,” and in this case, ammunition, “facilitates drug trafficking
transactions, than it is to see how a firearm facilitates the mere possession of controlled
substances.” Id. at 1046.
Finally, because the district court had sufficient, reliable evidence before it to impose the
§2K2.1(b)(6)(B) enhancement, Posley’s sentence did not violate his due process rights.
The judgment of the district court is affirmed.
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MERRITT, Circuit Judge, concurring, in which MOORE, J., joins. I concur in this
opinion only because the published opinion in United States v. Coleman, 627 F.3d 205 (6th Cir.
2010), is binding precedent. I actually agree with Judge Gilman’s dissent in that case. Like
Judge Gilman, I do not see how the ammunition in this case “facilitated” the underlying offense.
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