United States v. Blankenship , 552 F.3d 703 ( 2009 )

BEAM, Circuit Judge.

Warren Blankenship appeals his forty-six month sentence for possessing an unregistered firearm while being a methamphetamine user. Because the district court failed to make a required finding concerning an upward adjustment, we reverse and remand to the district court for further proceedings.

I. BACKGROUND

Blankenship was pulled over in Aurora, Nebraska, for a traffic violation. During the traffic stop, the officer asked to search the vehicle. Blankenship granted permission, and the search uncovered a loaded automatic rifle, baggies with methamphetamine residue inside the grip of the gun and elsewhere in the car, a methamphetamine pipe, and several other weapon parts. The officer discovered that the gun was not registered, contrary to law. Blankenship was arrested and pleaded guilty, without the benefit of a plea agreement, to possessing an unregistered firearm while being a methamphetamine user.

Blankenship’s base offense level was twenty, and the Presentence Investigation Report (PSR) suggested two upward adjustments. The first was for possessing three or more firearms (based on the theory that two of the firearm parts found in the car constituted separately countable firearms). The second was for possessing a firearm in connection with another felony-possession of methamphetamine. Blankenship’s resulting guidelines’ range was 46-57 months after an adjustment for acceptance of responsibility. Blankenship contested the two adjustments, and at a sentencing hearing, both the government and Blankenship presented evidence. Ultimately, the district court agreed with the government that the gun parts constituted separate firearms for guidelines’ purposes, and that the “in connection with” adjustment was necessitated by the fact that the firearms and methamphetamine were both possessed by Blankenship. The district court rejected defense counsel’s plea for a below-guidelines’ variance, sentencing Blankenship to forty-six months’ imprisonment.

II. DISCUSSION

We review the district court’s sentencing decision for an abuse of discretion, and our review is limited to determining whether the sentence is unreasonable. United States v. Charles, 531 F.3d 637, 640 (8th Cir.2008). We consider both the procedural and substantive reasonableness of the sentence. United States v. Abdullahi, 520 F.3d 890, 893 (8th Cir.), cert. denied, - U.S. -, 129 S.Ct. 307, 172 L.Ed.2d 224 (2008). We review the district court’s factual findings for clear error, and its application of the guidelines de novo. United States v. Green, 225 F.3d 955, 958 (8th Cir.2000).

Blankenship challenges the procedural reasonableness of the sentence, arguing that the district court erred in applying the recommended upward adjustments. We agree that Blankenship’s sentence is procedurally unreasonable with regard to the “in connection with” adjustment of United States Sentencing Guideline § 2K2.1(b)(6), which increases a defendant’s base offense level “[i]f the defendant used or possessed any firearm or ammunition in connection with another felony offense.” Blankenship’s other felony offense was, as indicated, possession of methamphetamine.¹

Application Note 14(A) to § 2K2. 1(b)(6) provides that the “in connection with” adjustment will apply “if the firearm ... facilitated, or had the potential of facilitating, another felony offense.” U.S.S.G. § 2K2.1(b)(6) cmt. n. 14(A). This application note was added in 2006. Prior to that time, the guidelines were silent on the definition of “in connection with,” and our case law routinely upheld the adjustment when weapons and drugs were in the same vicinity, regardless of whether the underlying drug offense was for possession or trafficking. E.g., United States v. Linson, 276 F.3d 1017, 1018-19 (8th Cir.2002). However, with the addition of Application Note 14, the Sentencing Commission decided to make a distinction between the factual circumstances of when the other felony was a drug trafficking offense, or alternatively, a simple drug possession offense. If the felony is for drug trafficking, Application Note 14(B) mandates application of the adjustment if guns and drugs are in the same location. U.S.S.G. § 2K2.1(b)(6) cmt. n. 14(B). See United States v. Fuentes Torres, 529 F.Bd 825, 827 (8th Cir.2008) (discussing the new application notes to U.S.S.G. § 2K2.1(b)(6) and noting that the Commission treated drug possession and trafficking offenses differently).

If the underlying drug offense is for simple possession, the district court may still apply the adjustment, but only after making a finding that the firearm facilitated the drug offense. Id. at 827-28 n. 2 (holding that when the “in connection with” offense is a drug possession offense, the district court “must make the ‘in connection with’ finding, applying the ‘facilitate’ standard” from application note 14(A) to guideline § 2K2.1(b)(6)) (emphasis added). In other words, when the defendant subject to a 2K2.1(b)(6) adjustment possesses a “user” amount of drugs and is not a trafficker, instead of automatically applying the adjustment when both drugs and weapons are involved in the offense, the district court must affirmatively make a finding that the weapon or weapons facilitated the drug offense before applying the adjustment.

At sentencing, the district court stated that simply possessing drugs and guns in the same proximity subjected Blankenship to the adjustment, saying: “the drugs and the guns don’t have to be connected under the guidelines. You just have to possess the drugs.... ” Because Blankenship’s other felony was for drug possession, and not trafficking, this statement was contrary to Application Note 14(A).

We have on recent occasion construed Application Note 14(A) in the context of a drug possession, as opposed to trafficking, case. In United States v. Smith, 535 F.3d 883, 885 (8th Cir.2008), we reversed the district court’s application of the 2K2.1(b)(6) adjustment, holding that there was no evidence the firearm and the methamphetamine possessed were connected. The Smith defendant, who pleaded guilty to being a possessor of methamphetamine residue while also having firearms, was not a drug trafficker, but simply a user of methamphetamine. In fact, the police only found methamphetamine residue in Smith’s house when Smith was arrested. The district court had concluded that since the risk of violence was increased by the use of drugs and possession of firearms, the adjustment should apply. Citing Application Note 14(A), we reversed, holding that in this unusual case, the evidence was insufficient to show that the firearms facilitated Smith’s possession of methamphetamine. Id. One important factor was that Smith possessed the guns and drug residue in his own home, making it more likely that it was just coincidence that he possessed both simultaneously in the relative expanse of a residence. Id. at 885-86; see also United States v. Almeida-Perez, Nos. 07-2602, 07-2635, 2008 WL 5214949 (8th Cir. Dec.16, 2008) (remanding for required 2K2.1(b)(6) finding).

Blankenship possessed a “user” amount of methamphetamine in his automobile, and there is no evidence or allegation that he is a drug trafficker. Therefore Fuentes Torres and Application Note 14(A) indicate that the adjustment only be applied if the district court makes a finding that the firearms facilitated the drug possession offense. Fuentes Torres, 529 F.3d at 827-28 n. 2. Blankenship’s sentencing court did not make this finding.²

III. CONCLUSION

Accordingly, we reverse and remand for the district court to make this finding. We have considered Blankenship’s remaining arguments and find them to be without merit.

1 . Blankenship was not actually charged with possession of methamphetamine, but under the guidelines, the adjustment can apply whether or not charges were brought, or a conviction obtained. U.S.S.G. § 2K2.1(b)(6) cmt. n. 14(C).

2 . We recognize that the district court did not have the benefit of our Fuentes Torres or Smith decisions at the time of sentencing.