United States v. Brandon Smith ( 2018 )


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  •                          NOT RECOMMENDED FOR PUBLICATION
    File Name: 18a0129n.06
    No. 17-1817
    UNITED STATES COURT OF APPEALS
    FOR THE SIXTH CIRCUIT
    FILED
    UNITED STATES OF AMERICA,                                )                       Mar 14, 2018
    )                   DEBORAH S. HUNT, Clerk
    Plaintiff-Appellee,                               )
    )
    ON APPEAL FROM THE
    v.                                                       )
    UNITED STATES DISTRICT
    )
    COURT FOR THE WESTERN
    BRANDON LE SMITH,                                        )
    DISTRICT OF MICHIGAN
    )
    Defendant-Appellant.                              )
    )
    BEFORE:        GILMAN, ROGERS, and STRANCH, Circuit Judges.
    ROGERS, Circuit Judge. Convicted on a guilty plea of possessing and intending to
    distribute 28 grams or more of cocaine base, Brandon Smith argues on appeal that the district
    court erred in applying the two-point possession-of-firearm sentencing enhancement, which
    applies “[i]f a dangerous weapon (including a firearm) was possessed.” U.S.S.G. § 2D1.1(b)(1).
    Smith argues that the firearm in question was not sufficiently connected to his offense because
    he possessed and sold drugs in his apartment while the firearm sat in a locked box in the trunk of
    his car. However, the district court did not clearly err in finding a sufficient connection, where,
    among other things, officers observed Smith driving the car to a known drug-trafficking house
    and found the box for the gun inside Smith’s apartment along with cocaine base, and where
    Smith admitted to cooking up cocaine base at his apartment while the car containing the gun was
    parked outside.
    No. 17-1817, United States v. Smith
    Smith sold cocaine base to a confidential informant on November 23, 2016, and again on
    December 13, 2016. Between those two sales, law enforcement observed Smith driving his car
    on November 26.        On December 14, 2016, police executed a search warrant of Smith’s
    residence. Inside Smith’s apartment they found cocaine base, .22-caliber ammunition, and the
    box and receipt for a Taurus .45-caliber handgun. The police subsequently searched Smith’s car
    and found the matching Taurus handgun. The serial number on the gun, which was found loaded
    and next to twenty rounds of .45-caliber ammunition, had been obliterated. After waiving his
    Miranda rights, Smith admitted that these items belonged to him and stated that the gun “was
    just there for protection.”
    On January 10, 2017, a grand jury indicted Smith on one count of possessing with intent
    to distribute 28 grams or more of cocaine base, in violation of 
    21 U.S.C. §§ 841
    (a)(1)
    & (b)(1)(B)(iii), one count of being a felon in possession of a firearm and ammunition, in
    violation of 
    18 U.S.C. § 922
    (g)(1), and one count of possessing a firearm with an obliterated
    serial number, in violation of 
    18 U.S.C. § 922
    (k).
    Smith pleaded guilty to the drug charge. At sentencing, the district court applied the two-
    level possession-of-firearm enhancement. Recognizing that Smith did not dispute that he had
    possessed the firearm, the court found that Smith had not shown a clear improbability that the
    gun was connected to the crime because of the gun’s “close proximity” to Smith’s drug
    trafficking. In making that determination, the court relied on evidence that: Smith had sold
    cocaine base to a confidential informant both before and after he was observed driving the car in
    which the gun was found; Smith was the primary driver of the car; Smith was aware of the gun
    safe in the car containing the gun; the gun’s serial number was obliterated; and the ammunition
    for a different firearm was found in Smith’s apartment inside a safe containing cocaine base.
    -2-
    No. 17-1817, United States v. Smith
    On appeal, Smith now argues that the two-point enhancement should not apply because
    the gun was not present during the drug trafficking and was not connected to his crime, but these
    arguments do not warrant reversal. Smith waived appellate review of the district court’s finding
    that the gun was present, and the court did not clearly err by determining that Smith had failed to
    demonstrate that it was “clearly improbable” that the gun was connected to his crime.
    First, Smith waived his right to appeal the issue of whether the gun was present. Under
    the terms of Smith’s plea agreement, he waived his right to appeal except under certain
    circumstances, including where “the district court incorrectly determined the Sentencing
    Guidelines range, if the defendant objected at sentencing on that basis.”1 Not only did Smith fail
    to object on this basis, he affirmatively conceded the point at his sentencing hearing:
    THE COURT: [L]et me hear you on your objection to the gun
    enhancement.
    MS. NIEUWENHUIS [SMITH’S COUNSEL]: . . . [T]he defense is
    asking the Court to look at this and perhaps not score the two points. I don’t think
    there’s an issue as to whether or not the firearm was possessed. We are really
    arguing whether or not it was in conjunction with drug trafficking, and I tried to
    make it clear in our sentencing memorandum. [Emphasis added.]
    What is more, Smith failed to object to—or protest in any way—the district court’s shifting of
    the burden to him,2 which further supports our conclusion that he has waived review of this
    issue. Because Smith affirmatively conceded possession and failed to object to the application of
    1
    Smith does not argue that that the plea agreement was invalid, nor does he claim to have entered into the
    agreement unknowingly or involuntarily.
    2
    At Smith’s sentencing hearing, the following exchange occurred without any objection by Smith:
    [THE GOVERNMENT]: It’s probably worth starting out by pointing out that the
    standard here is slightly different than the normal preponderance standard.
    THE COURT: Yeah. The burden really is on [Smith] now.
    [THE GOVERNMENT]: It is. Once it’s been demonstrated by a preponderance that the
    defendant possessed a firearm, and I think that the defendant concedes that, then it falls to the
    defendant to show that it was clearly improbable that the weapon was connected to the crime in
    order to avoid the enhancement.
    -3-
    No. 17-1817, United States v. Smith
    the enhancement on the basis that the gun was not present, he cannot now make that argument on
    appeal.
    Second, the district court did not err by applying the enhancement because Smith failed
    to demonstrate that it was clearly improbable that the weapon was connected with his drug
    offense. Because the government demonstrated—and Smith conceded—that Smith possessed
    the gun, “the burden then shift[ed] to [Smith] to show that it was clearly improbable that the
    weapon was connected with [his] crime.” United States v. Darwich, 
    337 F.3d 645
    , 665 (6th Cir.
    2003) (internal quotation marks omitted) (quoting United States v. Hough, 
    276 F.3d 884
    , 894
    (6th Cir. 2002)); see also United States v. Miggins, 
    302 F.3d 384
    , 390–91 (6th Cir. 2016); United
    States v. Penaloza, 648 F. App’x 508, 518 (6th Cir. 2016).
    It was not clear error for the district court to conclude that Smith had not met his burden.
    The record shows several ways that the gun was connected to Smith’s drug trafficking. Law
    enforcement observed Smith driving to and entering a house known for drug trafficking. The
    gun was in the trunk of Smith’s car parked outside of his apartment, in which Smith admitted to
    having cooked up cocaine base just before police executed the search warrant. Smith was the
    regular driver of the car and was aware of the loaded gun’s presence in the car. Smith admitted
    that he owned the gun, and provided no explanation for the gun’s obliterated serial number.
    Smith had been in possession of the gun since the summer of 2016, a timeframe that
    encompasses the controlled drug purchases. Smith has never claimed that the gun was not in the
    car during any relevant period. The box for the gun was found inside Smith’s apartment in close
    proximity to the seized cocaine base and currency. Taking these facts together, the district court
    found that Smith had not shown that it was clearly improbable the gun was related to his drug
    offense. That finding was not clearly erroneous.
    -4-
    No. 17-1817, United States v. Smith
    For Smith’s argument to succeed, he must show that the district court was clearly
    erroneous to conclude that it was not clearly improbable that the gun was connected to his
    offense. That is a high burden and, in light of the facts mentioned above, Smith has not met it.
    In examining the probability of a connection, we weigh several factors, including:
    (1) the type of firearm involved; (2) the accessibility of the weapon to the
    defendant; (3) the presence of ammunition; (4) the proximity of the weapon to
    illicit drugs, proceeds, or paraphernalia; (5) the defendant’s evidence concerning
    the use of the weapon; and (6) whether the defendant was actually engaged in
    drug-trafficking, rather than mere manufacturing or possession.
    United States v. Pryor, 
    842 F.3d 441
    , 453 (6th Cir. 2016) (quoting United States v. Greeno,
    
    679 F.3d 510
    , 515 (6th Cir. 2012)). Here, the weapon was a Taurus .45-caliber handgun, and
    “not an antique musket or hunting rifle that might be impractical in connection with drug
    trafficking,” as was the case in Pryor, 842 F.3d at 453. The gun was loaded, and additional
    ammunition for that gun was present in the trunk of the car. Although the gun sat in a car parked
    outside of Smith’s apartment, Smith could access the gun. In United States v. Snyder, 
    913 F.2d 300
     (6th Cir. 1990), we held that, because the defendant’s two handguns—which were found in
    the defendant’s nightstand, while evidence of the drug offense was found in his basement—could
    have facilitated drug transactions, it was not clearly improbable that the firearms were connected
    to the drug offense at issue. 
    Id. at 304
    . We also noted in United States v. Faison, 
    339 F.3d 518
    (6th Cir. 2003), that, because the Sentencing Commission removed the restriction that a
    dangerous weapon be possessed during the commission of the offense of conviction, the weapon
    need only “be possessed during ‘relevant conduct,’” as defined by U.S.S.G. § 1B1.3(a)(2). Id. at
    520. The guidelines broadly define “[r]elevant conduct” as “all acts and omissions . . . that were
    part of the same course of conduct or common scheme or plan as the offense of conviction.”
    U.S.S.G. § 1B1.3(a)(2). Because the gun was a handgun, kept loaded and in the immediate
    vicinity while Smith was cooking cocaine base, he has not shown a clear improbability that it
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    No. 17-1817, United States v. Smith
    was connected to his drug trafficking. The district court’s conclusion was therefore not clearly
    erroneous.
    Smith’s arguments to the contrary are unavailing. He argues that, although his gun was
    in the car, he did not use the car for drug trafficking. But the mere fact that Smith was not
    observed making drug transactions out of his vehicle does not mean that the district court clearly
    erred in determining that the gun’s presence in the car sufficiently connected the weapon to the
    drug-trafficking offense. Smith drove that car to a known drug-trafficking house, and he bore
    the burden to show that his primary mode of transportation was not involved in his drug-
    trafficking activities, which he has not done. Similarly, the fact that Smith cited personal
    protection, rather than drug trafficking, as his reason for having the gun in his car, does little to
    help his case. Just because Smith might have used the gun for protection does not mean that the
    gun was not also connected to drug trafficking. As the district court noted, “one of the reasons
    [Smith] has to protect himself is because he’s engaged in drug dealing, which is also very
    violent.” All told, Smith’s arguments do not undermine the district court’s conclusion that he
    failed to show that it was clearly improbable that his gun was connected to his drug-trafficking
    offense.
    For these reasons, the district court did not err in applying the two-point possession-of-
    firearm enhancement. We affirm.
    -6-