United States District Court, E.D. Tennessee, Greeneville
MEMORANDUM OPINION AND ORDER
RONNIE GREER, UNITED STATES DISTRICT JUDGE.
defendant has filed several objections to the Presentence
Investigation Report (“PSR”). This Court orally
ruled upon all but two of the objections at the September 26,
2016 sentencing hearing. This Court reserved ruling on the
remaining two objections and continued the sentencing hearing
until November 9, 2016. Those objections are as follows: (1)
The defendant objects to the enhancement in paragraph 29 of
the PSR for possessing a firearm pursuant to section
2D.1.1(b)(1); and (2) the defendant objects to the
enhancement in paragraph 31 of the PSR that the defendant
made a credible threat of violence or directed the use of
violence pursuant to section 2B1.1(b)(2). The Court will
discuss each objection in turn.
section 2D1.1(b)(1) provides that “[i]f a dangerous
weapon (including a firearm) was possessed, increase by 2
levels.” Application Note 11 to section 2D1.1 states
that “[t]he enhancement should be applied if the weapon
was present, unless it is clearly improbable that the weapon
was connected with the offense.” To make this
determination, the Court uses a burden-shifting framework.
“The government bears the burden of showing by a
preponderance of the evidence that the defendant either
‘actually or constructively possessed the
weapon.'” United States v. Darwich, 337
F.3d 645, 665 (6th Cir. 2003) (quoting United States v.
Hough, 276 F.3d 884, 894 (6th Cir. 2002)). Upon such
proof, “a presumption arises that ‘the weapon was
connected to the offense, '” and “[t]he
burden then shifts to the defendant to ‘show that it
was clearly improbable that the weapon was connected with the
crime.'” Id. (quoting Hough, 276 F.3d at
the defendant stated at the sentencing hearing that
possession is the issue. The defendant concedes that if he
possessed the firearm, then it was connected to the offense.
Section 2D1.1 contains no explanation of when the firearm
must have been “possessed” or by whom. There has
been confusion over when or where the defendant must have
“possessed the weapon.” This confusion is the
product of a 1991 amendment to the Sentencing Guidelines,
which removed a prior requirement that the weapon was
“possessed during the commission of the offense.”
United States v. Faison, 339 F.3d 518, 520 (6th Cir.
2003). After that amendment, the Sixth Circuit has
interpreted section 2D1.1(b) to require that a firearm
“was possessed” during anything that constitutes
“relevant conduct” under section 1B1.3.
Id.; see also United States v. Clisby, 636
Fed.App'x 243, 246-47 (6th Cir. 2016). Under the 2013
version of the Sentencing Guidelines . . . relevant conduct
includes “all acts and omissions committed, aided,
abetted, counseled, commanded, induced, procured, or
willfully caused by the defendant, ” as well as
“all reasonably foreseeable acts and omissions of
others in furtherance of the jointly undertaken criminal
activity, ” either of which must have “occurred
during the commission of the offense of conviction, in
preparation for that offense, or in the course of attempting
to avoid detection or responsibility for that offense.”
Id. § 1B1.3(a) (2013). Once it is established
that a firearm was possessed during relevant conduct, the
presumption arises, subject to the defendant's ability to
show that a connection to a drug offense was clearly
improbable. See Clisby, 636 Fed.App'x at 247.
enhancement will apply whether the defendant actually or
constructively possessed the weapon. The issue here is
constructive possession. Constructive possession
“exists when a person does not have actual possession
but instead knowingly has the power and the intention at a
given time to exercise dominion and control over an object,
either directly or through others.” United States
v. Kincaide, 145 F.3d 771, 782 (6th Cir.1998).
Constructive possession may be proven by circumstantial
evidence. And, although presence where a firearm is found is
insufficient, without more, to establish the requisite
knowledge, power or intention to exercise control over the
firearm, United States v. Birmley, 529 F.2d 103,
107-08 (6th Cir.1976), dominion over the premises where the
firearm is located is sufficient to establish constructive
possession. Kincaide, 145 F.3d at 782. Where a
defendant is in non-exclusive possession of premises where a
firearm is located, it cannot be inferred that he knew the
firearm was present and had control of it unless there are
other incriminating statements or circumstances to buttress
such an inference. See United States v. Bailey, 553
F.3d 940, 945 n. 3 (6th Cir. 2009).
defendant argues that his mere presence in proximity to the
firearm is not enough to establish the requisite knowledge,
power or intention to exercise control over the firearm. But
this is not a “mere proximity” case. There is
more here. See United States v. Shull, 349
Fed.App'x 18 (6th Cir. 2009) (citing United States v.
Richardson, 161 F.3d 728, 732 (D.C. Cir. 1998) (holding
that mere proximity to contraband is not enough to constitute
constructive possession, but “proximity coupled with
‘evidence of some other factor . . .'” is
enough) (quoting United States v. Morris, 977 F.2d
617, 620 (D.C. Cir. 1992)). The factor which distinguishes
this case from the “mere proximity” cases is that
the defendant knew the firearm was in the hotel room. As the
Sixth Circuit said in United States v. Morrison, 594
F.3d 543 (6th Cir. 2010):
The critical difference between this case and, say,
United States v. Bailey, 553 F.3d 940 (6th
Cir.2009), is that here the government presented evidence
that Morrison knew the gun was within his immediate control.
Indeed what the mere-proximity cases seem concerned about,
above all, is the conviction of a defendant who did not even
know the gun was there. In Bailey, for example, the
court recounted a long hypothetical about the teenage driver
who, through no fault of his own, is completely unaware that
a gun lies beneath his seat; and the court said the record
before it made Bailey no different from that
hypothetical. Id. at 948-49.
Id. at 545.
background, the circumstantial evidence presented at the
sentencing hearing establishes by a preponderance of the
evidence that the defendant knew his co-conspirators
possessed weapons while involved in drug trafficking. There
was evidence that other co-conspirators saw the defendant
with firearms. Several co-conspirators were in possession of
firearms when they were arrested for this drug conspiracy.
Specific to the revolver found in the black bag of the
defendant's hotel room, Agent Commons testified that
during the defendant's debriefing with law enforcement
the defendant stated that Mr. Ferguson, who was present in
the hotel room with the defendant during the search and
incident arrests and who was in closer proximity to the
revolver in the black bag, told the defendant that he traded
methamphetamine for the revolver that was in the hotel room.
The defendant indicated he clearly knew about this gun. Thus,
this is more than a mere proximity case, and the firearm
enhancement was properly applied.
the defendant objects to the enhancement in paragraph 31 of
the PSR that the defendant made a credible threat of violence
or directed the use of violence pursuant to section
2D1.1(b)(2). This section states, “If the defendant
used violence, made a credible threat to use violence, or
directed the use of violence, increase by 2 levels.”
U.S.S.G. § 2D1.1(b)(2). The testimony shows that the
defendant was co-conspirator Bell's source of supply. She
stated that after her arrest an un-indicted coconspirator
sold her AR-15 rifle to the defendant. Bell stated that she
later spoke to the ...