United States v. Michael John Walker , 900 F.3d 995 ( 2018 )


Menu:
  •                  United States Court of Appeals
    For the Eighth Circuit
    ___________________________
    No. 17-1680
    ___________________________
    United States of America
    lllllllllllllllllllllPlaintiff - Appellee
    v.
    Michael John Walker
    lllllllllllllllllllllDefendant - Appellant
    ____________
    Appeal from United States District Court
    for the District of Minnesota - St. Paul
    ____________
    Submitted: May 18, 2018
    Filed: August 17, 2018
    [Published]
    ____________
    Before SHEPHERD, KELLY, and GRASZ, Circuit Judges.
    ____________
    PER CURIAM.
    This case returns to us after resentencing. In the previous appeal, we vacated
    and remanded for reconsideration of whether Michael Walker, who was convicted of
    being a felon in possession of a firearm, qualified as an armed career criminal. See
    United States v. Walker, 
    840 F.3d 477
    , 490–91 (8th Cir. 2016). On remand, the
    government conceded that Walker is not an armed career criminal, but sought a 4-
    level enhancement under USSG § 2K2.1(b)(6)(B) for possessing a firearm “in
    connection with another felony offense.” The district court imposed the
    enhancement, and Walker appeals. We review the district court’s interpretation of
    the Guidelines de novo and its fact-finding for clear error. United States v. Barker,
    
    556 F.3d 682
    , 689 (8th Cir. 2009).
    Walker was arrested while driving a vehicle in Minneapolis. In the trunk of the
    vehicle was a shotgun and ammunition. On the floorboard of the passenger
    compartment was a small amount of crack cocaine. It is not clear whether the cocaine
    belonged to Walker, who was driving, or his passenger (who, during a subsequent
    search, was found to be hiding marijuana). The government concedes that it was only
    a user amount of cocaine; there is no suggestion that Walker was involved in drug
    distribution. Valuables found in the passenger compartment of the car were later
    linked to a burglary. The government introduced evidence that Walker had purchased
    ammunition for the shotgun, but no evidence of how Walker had used the firearm, if
    at all.
    The Guidelines provide for a 4-level enhancement “[i]f the defendant . . . used
    or possessed any firearm or ammunition in connection with another felony
    offense . . . .” USSG § 2K2.1(b)(6)(B) (emphasis added). Application note 14(A)
    explains that the enhancement applies “if the firearm or ammunition facilitated, or
    had the potential of facilitating, another felony offense.” 
    Id. at comment
    (n.14(A))
    (emphasis added). Note 14(B) further explains that, when the other felony offense
    is a drug trafficking offense, the enhancement applies whenever “a firearm is found
    in close proximity to drugs, drug-manufacturing materials, or drug paraphernalia.”
    
    Id. at comment
    (n.14(B)); see also United States v. Blankenship, 
    552 F.3d 703
    , 705
    (8th Cir. 2009) (noting that, if the “other felony” is a drug trafficking offense, “ Note
    14(B) mandates application of the adjustment if guns and drugs are in the same
    location”).
    -2-
    But here, the other felony offense is mere possession of drugs, and the
    Guidelines “treat drug trafficking offenses and drug possession offenses differently”
    for the purposes of the enhancement. United States v. Fuentes Torres, 
    529 F.3d 825
    ,
    827 (8th Cir. 2008). “When the other felony offense is merely a drug possession
    offense, note 14(A) applies,” not note 14(B). Id.; see also United States v. Sneed, 
    742 F.3d 341
    , 344 (8th Cir. 2014). Thus, in this case, the enhancement is appropriate only
    if the shotgun “facilitated, or had the potential of facilitating,” Walker’s drug
    possession. Fuentes 
    Torres, 529 F.3d at 827
    . We have previously held that a
    “temporal and spacial nexus between the drugs and firearms,” standing alone, is
    insufficient to establish that the firearms facilitated the felony offense of simple drug
    possession. 
    Sneed, 742 F.3d at 344
    (quoting United States v. Dalton, 
    557 F.3d 586
    ,
    589 (8th Cir. 2009)). “In other words, when the defendant subject to a 2K2.1(b)(6)
    adjustment possesses a ‘user’ amount of drugs . . . the district court must affirmatively
    make a finding that the weapon or weapons facilitated the drug offense before
    applying the adjustment.” 
    Blankenship, 552 F.3d at 705
    .
    The resentencing record does not support the enhancement. The shotgun was
    locked in the trunk of Walker’s vehicle, and there is no evidence he could access it,
    or had used it at all. The user quantity of cocaine was found in the passenger
    compartment, on the floorboard. The government offered no evidence to link the
    cocaine inside the car to the shotgun in the trunk. And there was no direct evidence
    presented that it was Walker, and not his passenger, who possessed the cocaine. On
    these facts, it was clear error to find that the firearm facilitated, or had the potential
    to facilitate, the possession of a user quantity of drugs.
    This case is unlike those where the evidence showed a simultaneous possession
    of firearms and drugs, for instance, where “the firearm was found in a backpack and
    the drugs in [the defendant’s] pocket,” 
    Sneed, 742 F.3d at 344
    , or where police found
    drugs in the passenger compartment of a vehicle and a firearm “between the driver’s
    seat and center console, with the butt of the gun in a visible position.” United States
    -3-
    v. Swanson, 
    610 F.3d 1005
    , 1006 (8th Cir. 2010); see also United States v. Holm, 
    745 F.3d 938
    , 940 (8th Cir. 2014) (finding the enhancement applied where defendant had
    a loaded revolver in his waistband and a baggie containing one-half grams of
    methamphetamine when pulled over in a traffic stop). Here, the evidence shows a
    temporal and spacial nexus between the drugs and firearm, but no more. That is not
    enough. Fuentes 
    Torres, 529 F.3d at 827
    .
    The government argues that “there is no evidence, and Walker does not suggest
    any, of a reason why he would have had that gun or purchased that ammunition, other
    than to protect the drugs or to protect himself during his activities of buying,
    carrying, and using crack cocaine.” But this argument misplaces the burden of proof.
    The government bears the burden of proving facts to support a § 2K2.1(b)(6)(B)
    enhancement; the defendant need not introduce evidence to show the enhancement
    does not apply to him. See United States v. Razo-Guerra, 
    534 F.3d 970
    , 975 (8th Cir.
    2008). The government’s argument also misunderstands its burden of proof. A
    § 2K2.1(b)(6)(B) enhancement is improper when the government’s only evidence is
    a generalized connection between a gun and a user quantity of drugs. Instead, this
    Guidelines provision requires evidence to show the firearm at issue facilitated, or had
    the potential to facilitate, the felony possession of drugs. In this regard, the
    government failed to meet its burden.
    The government also contends that the stolen valuables found in the passenger
    compartment of Walker’s car support a finding that Walker possessed the gun in
    connection with the crime of burglary. We disagree. The government proffered no
    evidence linking the stolen items to the shotgun or Walker to the burglary. We again
    find that the government failed to meet its burden of showing the firearm was
    connected with another felony offense.
    -4-
    The district court’s application of the USSG § 2K2.1(b)(6)(B) enhancement is
    reversed and the case is remanded with instructions to resentence Walker without the
    enhancement.1
    ______________________________
    1
    Walker also argues that his sentence should have been consistent with the one
    received by Samuel Johnson, whose original sentence was reversed by the Supreme
    Court. See Johnson v. United States, 
    135 S. Ct. 2551
    , 2563 (2015). Because we
    remand for resentencing, we do not reach this argument.
    -5-