United States v. Willie Phillips ( 2023 )

United States Court of Appeals
For the Eighth Circuit
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No. 22-2140
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United States of America
Plaintiff - Appellee
v.
Willie Traymone Phillips
Defendant - Appellant
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Appeal from United States District Court
for the Northern District of Iowa
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Submitted: March 16, 2023
Filed: July 14, 2023
[Unpublished]
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Before SHEPHERD, ERICKSON, and GRASZ, Circuit Judges.
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PER CURIAM.
In September 2021, Willie T. Phillips pled guilty to unlawfully possessing a
firearm as a felon and to possessing a controlled substance after two or more prior
drug convictions. The district court1 imposed a 137-month prison sentence. Phillips
1
The Honorable C.J. Williams, United States District Judge for the Northern
District of Iowa.
appeals, arguing the district court procedurally erred by imposing a four-level
enhancement under § 2K2.1(b)(6)(B) of the United States Sentencing Guidelines
Manual (“Guidelines” or “U.S.S.G.”) for possessing a firearm in connection with
another felony offense. We affirm.
I. Background
In August 2020, an Iowa State Trooper conducted a traffic stop of a vehicle
driven by Phillips. As the trooper approached the vehicle and requested Phillips’s
identification, he observed Phillips reaching back and rummaging through a black
bag in the back seat of the vehicle. After baggies fell out of the bag, Phillips denied
having any knowledge about the baggies, then sped off as the trooper was moving
around to the driver’s side of the vehicle. Law enforcement pursued Phillips.
Eventually, Phillips’s vehicle crossed a median and struck a tree. Phillips attempted
to flee on foot, but a trooper apprehended him. Law enforcement then searched the
vehicle and found a sawed-off 12-gauge firearm on the dashboard. They also found
ammunition for the firearm, drug paraphernalia, two digital scales, baggies
containing a detectable amount of methamphetamine, a baggie containing K2, a
baggie containing cocaine, and four electronic cigarette cartridges containing THC.
Phillips pled guilty to unlawfully possessing a firearm as a felon in violation
of 18 U.S.C. §§ 922(g)(1), 924(a)(2), and 922(g)(3) and to possessing a controlled
substance after two or more prior drug convictions in violation of 21 U.S.C. §§ 844and 851. With a calculated total offense level of 25 and a criminal history category
of VI, the Guidelines recommended sentencing range for Phillips was 110 to 137
months of imprisonment. The total offense level was higher than it otherwise would
have been because the district court applied the U.S.S.G. § 2K2.1(b)(6)(B) four-level
enhancement based on the connection between the firearm found on the dashboard
and the drug possession. The district court imposed a 137-month sentence. Phillips
now appeals this sentence.
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II. Analysis
“We apply de novo review to any legal conclusions the district court reached
in applying an enhancement, and review for clear error any factual findings
supporting an enhancement.” United States v. Gibson, 840 F.3d 512, 514 (8th Cir.
2016). The clear error standard applies to the “district court’s finding that a
defendant possessed a firearm in connection with another felony offense.” United
States v. Mitchell, 963 F.3d 729, 731 (8th Cir. 2020).
Phillips challenges the application of the four-level enhancement under
U.S.S.G. § 2K2.1(b)(6)(B), arguing the district court used the wrong standard.
Phillips contends the district court should have used the “facilitate” standard
articulated in Application Note 14(A) to § 2K2.1, but instead used a “clearly
improbable” standard that applies to enhancements under U.S.S.G. § 2D1.1(b)(1).
Although we agree the district court articulated the wrong standard, the error was
harmless.
In determining the offense level for unlawful possession of a firearm,
U.S.S.G. § 2K2.1(b)(6)(B) directs that an increase of four levels should be instituted
“[i]f the defendant . . . used or possessed any firearm or ammunition in connection
with another felony offense. . . .” Application Note 14(A) explains that a defendant
uses or possesses a firearm in connection with another felony offense when “the
firearm or ammunition facilitated, or had the potential of facilitating, another felony
offense or another offense, respectively.” This is different than the standard used to
apply the two-level increase to the offense level under U.S.S.G. § 2D1.1(b)(1),
which is warranted if a firearm is present in a drug trafficking offense “unless it is
clearly improbable that the weapon was connected with the offense.” U.S.S.G.
§ 2D1.1, cmt. n.11(A). When the underlying felony offense is a simple drug
possession, as opposed to one for drug trafficking, a district court must find a
connection under the Application Note 14(A) standard in order to apply the
§ 2K2.1(b)(6)(B) four-level increase. See United States v. Dalton, 557 F.3d 586,
588 (8th Cir. 2009); United States v. Blankenship, 552 F.3d 703, 706 (8th Cir. 2009).
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Here, Phillips’s offense was a drug possession offense, not a trafficking
offense. Despite this, the district court used the language of § 2D1.1, not the
“facilitate” language of § 2K2.1, when it stated “that it is not clearly unlikely the
defendant possessed the firearms in furtherance of his felony possession of
controlled substances.” This was an error.
Our review of the record, however, convinces us this error was harmless. A
district court’s failure to affirmatively apply the Application Note 14(A) standard is
harmless when the district court finds a connection between the firearm and the
illegal drug possession and the finding is supported by the record. See United States
v. Fuentes Torres, 529 F.3d 825, 828 (8th Cir. 2008).
Here, as in Fuentes Torres, the district court overruled Phillips’s objection to
the relevant paragraph of the PSR, “thereby adopting the ‘in connection with’
finding recommended in that paragraph.” 529 F.3d at 828. And there exists enough
evidence in the record to support the connection between the firearm and the
possession of the illegal drugs so as to apply the § 2K2.1(b)(6)(B) enhancement.
The firearm and the illegal drugs were both found within the passenger compartment
of Phillips’s vehicle. While spatial proximity alone is not sufficient to satisfy the
connection requirement, see Dalton, 557 F.3d at 588; United States v. Sneed, 742
F.3d 341, 344 (8th Cir. 2014), the district court explained the sawed-off shotgun was
in the vehicle “to protect something . . . in [its] view, the felony quantities of
controlled substances that he possessed.” The district court also found that the scales
in the vehicle revealed the firearm was possessed “in connection with the possible
distribution of controlled substances.” Considering these findings relating to the
connection between the firearm and the illegal drugs found together in Phillips’s
vehicle, we conclude the “facilitate” standard was satisfied.
III. Conclusion
As we have previously stated, we “strongly encourage district courts to make
clear they are applying the proper § 2K2.1(b)(6)(B) standard with an explicit
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‘facilitate’ finding.” Sneed, 742 F.3d at 344. However, based on the district court’s
other findings, we conclude the district court’s error was harmless. Thus, we affirm
the judgment of the district court.
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