United States v. Jordan Strickland ( 2010 )

United States Court of Appeals
FOR THE EIGHTH CIRCUIT
___________
No. 09-1527
___________
United States of America, *
*
Appellee, *
* On Appeal from the United
v. * States District Court for the
* Southern District of Iowa.
Jordan Robert Lee Strickland, *
*
Appellant. *
___________
Submitted: December 14, 2009
Filed: February 17, 2010
___________
Before BYE, BEAM, and COLLOTON, Circuit Judges.
___________
BEAM, Circuit Judge.
Jordan Robert Lee Strickland appeals from the sentence imposed following a
guilty plea to a firearm charge. He specifically challenges the district court's1
application of a four-level enhancement under United States Sentencing Guidelines
(U.S.S.G.) § 2K2.1(b)(6), for being a felon in possession of a firearm in connection
with another felony. We affirm.
1
The Honorable James E. Gritzner, United States District Judge for the Southern
District of Iowa.
I. BACKGROUND
Officer Hiller of the Marshalltown, Iowa, Police Department arrested Strickland
on an active warrant. At the time of the arrest, Hiller requested that Strickland exit the
vehicle in which he was a passenger and questioned Strickland about items Strickland
held in his hand. Strickland attempted to conceal a baggie by dropping it on the
ground. Strickland admitted the baggie contained methamphetamine. When tested,
a lab confirmed it contained less than a gram of methamphetamine, which is a user
quantity.
While Strickland was being fingerprinted at the jail, a loaded Ruger .22 caliber
revolver fell from Strickland's pants. Strickland was charged with numerous state
crimes including possession of a controlled substance (the "other felony" for purposes
of the enhancement), but all state charges were ultimately dismissed. Only the federal
firearm charge remained. Strickland told the officer that he carried the gun because
he was afraid of being robbed. At the sentencing hearing, Strickland's defense counsel
questioned the officer as to whether Strickland had mentioned a recent in-home
invasion as a reason for carrying the gun. But the officer did not recall such an
explanation by Strickland. The district court applied the sentencing enhancement
based upon this evidence.
II. DISCUSSION
The district court's determination that the defendant possessed a firearm in
connection with another felony is a factual finding that we review for clear error.
United States v. Bates, 561 F.3d 754, 758 (8th Cir. 2009). Here, Strickland claims
that the district court failed to make the requisite finding that Strickland's firearm
possession "facilitated" his minor drug possession offense. We disagree.
-2-
If, when charged with a firearm offense, the district court finds that the firearm
is possessed "in connection with another felony offense," the guidelines advise a four-
level enhancement under § 2K2.1(b)(6). More specifically, when the "other felony
offense" in question is simple drug possession rather than drug trafficking, as in this
case, "the district court may still apply the [§ 2K2.1(b)(6)] adjustment, but only after
making a finding that the firearm facilitated the drug offense." United States v.
Blankenship, 552 F.3d 703, 705 (8th Cir. 2009) (emphasis added). Because guns are
common in drug trafficking ("tools of the trade . . . present to protect large quantities
of drugs and money"), mere proximity of the two supports an enhancement under §
2K2.1(b)(6) when the underlying felony is drug trafficking. United States v. Dalton,
557 F.3d 586, 589 (8th Cir. 2009); U.S.S.G. § 2K2.1(b)(6) cmt. n.14(B). But when
the felony offense is simple possession, the purpose for the firearm is not always
clear–its presence could be accident or coincidence. Dalton, 557 F.3d at 589. Given
the facts before us as they relate to Strickland, our inquiry is whether the district court
affirmatively made a finding that the gun found on Strickland's person facilitated or
had the potential to facilitate his drug-possession offense. Id.
At sentencing, after acknowledging that this was a "user amount" possession
case, which is critical for the instant analysis, the district court stated:
The Eighth Circuit does recognize that frequently it can be characterized
that the presence of a firearm in the presence of drugs is to protect the
drugs. It's difficult on this record to know whether or not your statement,
Mr. Strickland, that you were afraid of being robbed related to some
prior home invasion or whether it was related to protection of what you
had with you, and the record seems to suggest that the only thing that
you had with you that was of any value would have been the
methamphetamine itself. But the presence of the methamphetamine on
your person, the presence of the firearm on your person and the fact that
the presence of a firearm can be to protect against someone taking the
drugs away from you, I think based upon the fact that I only have to
-3-
make these conclusions based upon a preponderance of the evidence, I
think it supports the enhancement.
Sent. Tr. 20.
Thus, based upon our review of the sentencing transcript, we find that the
district court accurately discerned the distinction this court has made regarding the
mere presence of firearms and drugs in trafficking and possession cases. The district
court generally stated a truism that often firearms are used to protect drugs, generally
acknowledging that firearms and drugs are often related, notwithstanding the context
in which they are found. Then, to connect the two in this case and arrive at the
requisite finding that this particular firearm facilitated, or had the potential to
facilitate, Strickland's possession offense, the district court referenced Strickland's
statement that he was afraid of being robbed, and concluded that the context in which
Strickland's fear arose was unclear based upon the evidence presented. The district
court went on, however, to expressly note that the only thing of value on Strickland
at the time of his arrest was drugs, supporting the proposition that Strickland carried
the gun to protect the drugs. Given the court's purposeful choice in making this
finding, it is clear the district court knew it had to articulate a finding in order to apply
the enhancement, and that the court did not apply the enhancement in this possession
case based upon mere proximity and spacial nexus as Strickland argues, but rather
because Strickland possessed this gun to protect the drugs. Accordingly, there was
no clear error.
III. CONCLUSION
Because the district court affirmatively found that Strickland's firearm
facilitated his drug offense before applying the § 2K2.1(b)(6) enhancement, we affirm
its imposition.
______________________________
-4-