3rd Circuit Court of Appeals: Gun Enhancement for Drug Trafficking Offenses Could Apply at Sentencing Even if Gun Nowhere Near Drugs

Criminal Defense Lawyer Zak T. Goldstein, Esquire

The Third Circuit Court of Appeals has decided the case of United States v. Denmark,  holding that the two-level enhancement for possession of a dangerous weapon during a drug trafficking offense applied even though the defendant conducted the drug deal over FaceTime and did not possess guns when he delivered the drugs. This case provides almost no rational limit on when the enhancement can apply and allows a court to consider applying it even when the gun has almost nothing to do with the drugs.

U.S. v. Denmark

Pennsylvania police intercepted a suspicious package that had been shipped from California to York, Pennsylvania. The package contained five pounds of methamphetamine. Police later determined that the defendant shipped the package. A few months later, law enforcement recorded a FaceTime call with the defendant. During the call, the defendant confirmed his involvement with the shipment. The caller ordered an additional three pounds of meth from the defendant who was to ship the drugs to York, Pennsylvania. The defendant then went to the post-office to deliver the drugs. While he was making his delivery, he was not in possession of any firearms. When the package arrived, the caller confirmed its delivery via phone. The meth was in a heat-sealed bag, which was wrapped in several layers of shrink wrap. 

Approximately a month later, police carried out a search warrant for the defendant’s residence. The police confirmed that the defendant had made the aforementioned call in that location, as the residence matched his background during the call. Police did not recovery any drugs, but they did find stashes of firearms and drug paraphernalia in various parts of the house. Specifically, the police found a semi-automatic assault rifle, a shotgun, two handguns, a heat-sealed plastic bag, shrink wrap, and a bullet-proof vest. The police also found several loaded and unloaded magazines for the handguns and the assault rifle and over 900 rounds of ammunition. 

The defendant was subsequently arrested, and a grand jury indicted him on two counts of distribution and possession with intent to distribute at least 500 grams of meth. The defendant agreed to plead guilty to one of the counts in exchange for dismissal of the other count and a three-level reduction for acceptance of responsibility. At sentencing, the Probation Department calculated the defendant’s offense level at 35, which gave the defendant a Guidelines imprisonment range of 168 to 210 months and a mandatory minimum of 10 years. The calculation included a two-level enhancement for possession of a dangerous weapon. 

During his sentencing, the defendant objected to the weapons enhancement, arguing that the firearms could not have been connected with his conviction because the meth had never been at his residence. The District Court rejected this argument and applied the two-level enhancement which resulted in the defendant’s guidelines being 168 to 210 months. The Court varied downward, based in part of his previous charitable service and family responsibilities. The Court sentenced the defendant to 135 months’ imprisonment. The defendant then filed a timely appeal. On appeal, the defendant argued that for the weapons enhancement to apply, the guns had to be “actually present at the crime.” Specifically, the defendant argued that the guns had to be physically near him while he transported the meth to the post office. 

How is U.S.S.G § 2D.1(b)(1) Applied? 

Section 2D.1(b)(1) provides that, in connection for unlawful manufacturing, importing, exporting, or trafficking of drugs “if a dangerous weapon (including a firearm) was possessed,” then a defendant’s offense level is increased by 2 levels. The sentencing commission created the enhancement because there could be an increased danger of violence when drug traffickers possess weapons. The enhancement is to be applied if there was a weapon present, unless it is clearly improbable that the weapon was connected with the offense. 

In order for this enhancement to be applied, the Government must first prove by a preponderance of the evidence that a defendant possessed a dangerous weapon. The burden then shifts to the defendant “to demonstrate that the connection between the weapon and the drug offense was clearly improbable” or, in other words, that there was a lack of connection between the firearm and the drug offense. As a practical matter, the enhancement is usually applied if a firearm was present. 

The Third Circuit’s Decision  

The Third Circuit Court of Appeals denied the defendant’s appeal, though it stated that this case “was so tenuous as to place it on the outer edge of the sentencing enhancement.” The Third Circuit held that a firearm does not have to be physically close to drugs or drug paraphernalia for the sentencing enhancement to apply. Instead, the Government only needs to show that there is “a connection” between the guns and the drug trafficking offense. 

In the instant case, law enforcement observed the defendant make a drug deal over FaceTime from his home. According to the Third Circuit, because the defendant agreed to sell meth via FaceTime in the same home where the guns were found, the guns were connected to his drug offense. The burden then shifted to the defendant to show that the connection between the drugs and the guns were “clearly improbable.” In making its decision as to whether it was “clearly improbable,” courts consider four factors: 1) the type of gun involved, 2) whether the gun was loaded, 3) whether the gun was stored near the drugs or drug paraphernalia, and 4) whether it was accessible. 

The Third Circuit found that the defendant’s guns suggested they were connected to his drug activities. Additionally, the guns were loaded and they were accessible to the defendant. As such, the Third Circuit found that the connection between the guns and the defendant’s drug offense was not “clearly improbable” and therefore his appeal is denied and he will be forced to serve his sentence.   

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