United States v. Rolando Downey ( 2016 )

  •                   United States Court of Appeals
                                 For the Eighth Circuit
                                     No. 16-1320
                                  United States of America
                             lllllllllllllllllllll Plaintiff - Appellee
                                   Rolando Jamal Downey
                           lllllllllllllllllllll Defendant - Appellant
                          Appeal from United States District Court
                     for the Western District of Missouri - Kansas City
                               Submitted: September 19, 2016
                                 Filed: December 29, 2016
    Before COLLOTON, MELLOY, and SHEPHERD, Circuit Judges.
          Rolando Jamal Downey pleaded guilty to possessing a firearm as a previously
    convicted felon, in violation of 18 U.S.C. § 922(g). At sentencing, the district court1
           The Honorable Gary A. Fenner, United States District Judge for the Western
    District of Missouri.
    applied a four-level enhancement for possessing the firearm “in connection with
    another felony offense,” U.S. Sentencing Guidelines Manual § 2K2.1(b)(6)(B),
    namely, possessing a user quantity of methamphetamine. Downey argues on appeal
    the government failed to prove that the substance he possessed was methamphetamine
    or that he possessed the firearm “in connection with” the drug possession offense.
             We review for clear error the determinations that the substance was
    methamphetamine and that Downey possessed the firearm “in connection with” the
    methamphetamine offense. U.S.S.G. § 2K2.1(b)(6)(B); see also United States v.
    535 F.3d 883
    , 885 (8th Cir. 2008) (clear error review of “in connection with”
    determination). It was the government’s burden at sentencing to establish the facts
    by a preponderance of the evidence, and we apply our clear error review in light of
    this standard. See, e.g., United States v. Holm, 
    745 F.3d 938
    , 940–41 (8th Cir. 2014).
          The record shows officers responded after receiving a report of a robbery.
    Downey matched the description of the alleged robber and ran from officers. While
    running, he discarded a loaded firearm. Officers eventually captured and arrested
    Downey in public. When booking Downey into detention, officers discovered two
    bags of suspected drugs in a cigarette pack. A field test confirmed the presence of
    methamphetamine and indicated the substance weighed approximately 0.5 grams.
    The government conducted no additional testing.
           Downey does not deny a field test occurred. Rather, he argues lab testing was
    required. For sentencing purposes, however, lab testing is not required, and a court
    may rely on circumstantial evidence such as field tests or testimony describing the
    substance. See United States v. Lugo, 
    702 F.3d 1086
    , 1090 (8th Cir. 2013) (“[T]he
    identity of a controlled substance can . . . be proved by circumstantial evidence and
    opinion testimony.” (alteration in original) (citation omitted)); United States v.
    688 F.3d 416
    , 423 (8th Cir. 2012) (“The Guidelines do not require the
    government to establish the identity, quantity, or purity of methamphetamine by
    laboratory analysis.”). Downey notes district courts are not required to infer from
    circumstantial evidence that a substance is a prohibited drug. He fails, however, to
    cite authority holding such an inference is impermissible. We find no clear error in
    the court’s identification of the substance as methamphetamine.
           Regarding the nexus requirement, “a firearm is possessed ‘in connection with’
    a drug possession felony if it ‘facilitated, or had the potential of facilitating’” the drug
    possession felony. Holm, 745 F.3d at 940 (quoting U.S.S.G. § 2K2.1(b)(6)(B) and
    cmt. n.14(A)). “[W]hen a drug user chooses to carry illegal drugs out into public with
    a firearm, an ‘in connection with’ finding ‘will rarely be clearly erroneous.’” Id. at
    940 (citations omitted). Here, the district court viewed the firearm as emboldening,
    and therefore facilitating, Downey in his choice to go out into public with illegal
    drugs. Further, there exist no mitigating factors sufficient to show clear error. See,
    e.g., Smith, 535 F.3d at 885–86 (finding an “in connection with” determination
    clearly erroneous where: (1) the drug quantity did not exceed mere residue; (2) the
    substance and defendant were discovered in the defendant’s home; and (3) the
    defendant had not ventured into public armed and with drugs).
           We affirm the judgment of the district court.

Document Info

DocketNumber: 16-1320

Filed Date: 12/29/2016

Modified Date: 12/29/2016