United States v. Chad Milton ( 2020 )

NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS OCT 13 2020
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 19-30139
Plaintiff-Appellee, D.C. No.
1:18-cr-00122-SPW-1
v.
CHAD TRAVIS MILTON, MEMORANDUM*
Defendant-Appellant.
Appeal from the United States District Court
for the District of Montana
Susan P. Watters, District Judge, Presiding
Argued and Submitted July 6, 2020
Portland, Oregon
Before: BENNETT and MILLER, Circuit Judges, and PEARSON,** District Judge.
Dissent by Judge MILLER
Following a guilty plea, Chad Travis Milton was convicted of being a felon
in possession of a firearm, in violation of 18 U.S.C. § 922(g). He was sentenced to
37 months of imprisonment, to be followed by three years of supervised release.
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
**
The Honorable Benita Y. Pearson, United States District Judge for the
Northern District of Ohio, sitting by designation.
He now appeals his sentence. We have jurisdiction under 28 U.S.C. § 1291. We
review the district court’s interpretation of the Sentencing Guidelines de novo, its
application of the Guidelines for abuse of discretion, and its factual findings for
clear error. United States v. Gadson, 763 F.3d 1189, 1219 (9th Cir. 2014). We
affirm.
In calculating the applicable sentencing range under the Sentencing
Guidelines, the district court applied a four-level enhancement under
section 2K2.1(b)(6)(B) of the Sentencing Guidelines for possession of a firearm or
ammunition “in connection with another felony offense.” The Guidelines
commentary states that the enhancement applies “if the firearm or ammunition
facilitated, or had the potential of facilitating, another felony offense.” U.S.S.G.
§ 2K2.1 cmt. 14(A). The district court concluded that Milton’s firearm was “easily
accessible” to him in his vehicle and therefore “had the potential to facilitate his
drug possession.”
Milton challenges the district court’s finding that the firearm was easily
accessible. Although the firearm was “hidden up behind the console on the driver’s
side of the vehicle,” the arresting officer testified that he saw Milton “digging
underneath the dash of a vehicle . . . clearly up underneath the dash messing with
something.” One permissible inference from that testimony is that the firearm was
easily accessible to Milton from its location underneath the console; another is that
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Milton hid the firearm once he noticed the officer, but had the firearm close at
hand before then. Either inference supports the district court’s finding. We
conclude that the court did not clearly err.
Milton also challenges the conclusion that the firearm had the potential to
facilitate his drug possession. In United States v. Routon, 25 F.3d 815 (9th Cir.
1994), we held that, “to the extent that the government relies upon physical
possession, it must show that the firearm was possessed in a manner that permits
an inference that it facilitated or potentially facilitated—i.e., had some potential
emboldening role in—a defendant’s felonious conduct.” Id. at 819. Milton was
apprehended while driving his car on a public road. A person possessing drugs in
public is vulnerable to robbery, so one who possesses a firearm for protection may
be emboldened in possessing drugs. It was therefore reasonable for the district
court to conclude that Milton’s possession of a firearm had the potential to
facilitate his drug offense. See generally United States v. Valenzuela, 495 F.3d
1127, 1135 (9th Cir. 2007) (affirming the application of the enhancement when
“the district court could reasonably find that the shotgun emboldened [defendant’s]
possession of the stolen property”); Routon, 25 F.3d at 816 (affirming the
application of the enhancement when the firearm was found within defendant’s
“easy reach while driving”).
AFFIRMED.
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FILED
United States v. Milton, No. 19-30139
OCT 13 2020
MILLER, Circuit Judge, dissenting: MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
To justify the application of the enhancement under section 2K2.1(b)(6)(B),
the government had to “show that the firearm was possessed in a manner that
permits an inference that it facilitated or potentially facilitated—i.e., had some
potential emboldening role in—a defendant’s felonious conduct.” United States v.
Routon, 25 F.3d 815, 819 (9th Cir. 1994). Here, the only fact supporting that
inference was the proximity of the firearm to the drugs. Had Milton committed a
drug trafficking offense, that would be enough: The Guidelines commentary states
that the enhancement applies in the case of a “drug trafficking offense in which a
firearm is found in close proximity to drugs.” U.S.S.G. § 2K2.1 cmt. 14(B).
Milton’s offense, however, was drug possession. The distinction is important
because trafficking tends to involve larger quantities of drugs than possession, and
it requires the trafficker to interact with sellers. The potential for violence—and,
accordingly, the emboldening role of a firearm—is therefore greater for drug
trafficking than in the case of a mere possessor. In addition, when drug trafficking
is carried out in public, it is more likely to require a firearm for protection, while
the same cannot necessarily be said for possession. See United States v. Shields,
664 F.3d 1040, 1045–46 (6th Cir. 2011). That is why the Guidelines commentary
reflects “a higher threshold for proving that firearms facilitated the drug offense
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when the separate felony is a drug-possession offense rather than a drug-trafficking
offense.” United States v. Dalton, 557 F.3d 586, 588 (8th Cir. 2009).
For a possessor, something more than “merely coincidental” proximity of a
firearm to drugs is required for the enhancement. Shields, 664 F.3d at 1045; accord
Dalton, 557 F.3d at 589. Here, the quantity of drugs in Milton’s possession was
consistent with personal use. Because the government established proximity and
nothing more, I would hold that the enhancement does not apply.
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