from the United States District Court for the Western
District of Michigan at Grand Rapids. No.
1:16-cr-00083-1-Robert Holmes Bell, District Judge.
L. Nelson, OFFICE OF THE FEDERAL PUBLIC DEFENDER, Grand
Rapids, Michigan, for Appellant.
Zell, UNITED STATES ATTORNEY'S OFFICE, Grand Rapids,
Michigan, for Appellee.
Before: GUY, MOORE, and ROGERS, Circuit Judges.
NELSON MOORE, CIRCUIT JUDGE.
have the potential to make a bad situation worse. In light of
that reality, the United States Sentencing Guidelines
("U.S.S.G." or "Guidelines") prescribe
harsher penalties for defendants who have "used or
possessed any firearm or ammunition in connection with
another felony offense." U.S.S.G. § 2K2.1(b)(6)(B).
This case principally presents the question whether that
sentencing enhancement applies to Defendant-Appellant Darryl
Jackson, who made two pairs of separately negotiated
sales-each including one sale of a small amount of drugs, one
of a gun-to a government informant in close succession, but
without bringing both a gun and drugs to either sale or
having reason to anticipate that the first sale would beget
the second. This case also presents the question whether the
district court committed plain error by failing to consider
sentencing-factor manipulation as a ground to reduce
Jackson's sentence. Although we find no plain error with
regard to sentencing-factor manipulation, we conclude,
despite giving due deference to the district court, that
Jackson did not use or possess either gun in connection with
either sale of drugs within the meaning of §
2K2.1(b)(6)(B). We thus VACATE the
application of the four-level enhancement under §
2K2.1(b)(6)(B) and REMAND this case for
facts in this case are not materially in dispute. On October
28, 2015, a confidential informant ("CI") in Grand
Rapids, Michigan, told law enforcement that drugs were
available for purchase from someone named "Dlite."
R. 26 (PSR at ¶ 12) (Page ID #67). "Dlite"
turned out to be Jackson, and nearly a month later, on
November 23, an undercover agent drove the CI to a property
in Grand Rapids to meet Jackson and purchase approximately a
gram of heroin from him. R. 26 (PSR at ¶¶ 12-13)
(Page ID #67). Jackson sold the CI the gram of heroin for
$120. R. 35 (Plea Tr. at 13) (Page ID #127). After this
exchange was completed, the CI told Jackson that the CI was
"in a little bit of a pickle" and asked Jackson if
he knew where the CI could "pick up a pistol." R.
24 (Gov't Obj. to PSR at 2) (Page ID #59). Jackson
initially demurred, but soon indicated that he had a gun for
sale. Id. The two negotiated a price of $400, and
while the CI went to the undercover agent's car to obtain
the full amount, id., Jackson "walked down [the
street] to his own residence . . . to get the gun and then
returned" to make the second exchange, R. 39 (Sentencing
Tr. at 7) (Page ID #176); see also R. 39 (Sentencing
Tr. at 9) (Page ID #178); R. 26 (PSR at ¶¶ 13-14)
(Page ID #67).
days later, on November 27, Jackson told the CI that he had
another gun for sale. R. 26 (PSR at ¶ 15) (Page ID #67).
The undercover agent again drove the CI to meet Jackson at
the property where they had previously met, and the CI there
purchased a second gun from Jackson for $500. Id.
After the two had completed the exchange and Jackson had
finished explaining to the CI how the gun worked, the CI
asked Jackson if he wanted another customer to whom he could
sell drugs. R. 24 (Gov't Obj. to PSR at 4) (Page ID #61).
Jackson said that he did. Id. The CI indicated that
this potential customer-the undercover agent in the car-had
money to buy the drugs, and that Jackson could "come out
to the car and meet him." R. 24 (Gov't Obj. to PSR
at 5) (Page ID #62). The CI then left the property with the
pistol and returned to the undercover agent's car.
Id. "Shortly thereafter, the defendant also
exited" the property, "walked to the same vehicle,
and got inside." Id. Jackson "had a short
conversation with the CI and the undercover agent and . . .
sold the undercover agent one-half gram of heroin, for
$45." Id.; see also R. 35 (Plea Tr. at
20) (Page ID #134); R. 39 (Sentencing Tr. at 7-8) (Page ID
December 17, 2015, law enforcement executed a search warrant
on the two properties involved in these sales. At one, they
discovered $3, 050 "and a plastic spoon with heroin
residue." R. 26 (PSR at ¶ 17) (Page ID #67). At the
other, they discovered a relative of Jackson's who
"admitted to flushing a small quantity of marijuana and
cocaine base down the toilet when he heard officers entering
the residence." R. 26 (PSR at ¶ 18) (Page ID #68).
The relative identified these quantities as
"approximately $10.00 worth of marijuana and $25.00
worth of cocaine base" and said that they had been left
on the kitchen table by Jackson. Id. No guns were
recovered, and the relative stated that he had not ever seen
Jackson with a gun. See id.
April 2016, Jackson was indicted on two counts of being a
felon in possession of a firearm and two counts of
distribution of heroin. R. 12 (Indictment) (Page ID #22-25).
He pleaded guilty without a plea agreement. R. 35 (Plea Tr.
at 2) (Page ID #116). On October 3, 2016, he was sentenced in
the district court. R. 39 (Sentencing Tr. at 1) (Page ID
#170). The Presentence Investigation Report ("PSR")
that was prepared in advance of the hearing calculated
Jackson's total offense level to be 25 and his criminal
history category to be VI, recommendations that correspond to
a suggested imprisonment range of 110 to 137 months. R. 26
(PSR at 22) (Page ID #85). The PSR included in this
calculation a four-level enhancement pursuant to U.S.S.G.
§ 2K2.1(b)(6)(B) for "us[ing] or possess[ing] a
firearm in connection with another felony offense, to wit:
Distribution of Heroin." R. 26 (PSR at ¶ 30) (Page
ID #69). Jackson objected to this enhancement, arguing that
"[t]he guns and the drugs were not connected in any way,
except to the extent that Mr. Jackson sold each of them, at
different times, to the CI." R. 23 (Def. Obj. to PSR at
2) (Page ID #57). At the sentencing hearing, Jackson's
counsel reemphasized this objection, arguing: "In terms
of the furtherance, there's no close proximity.
There's no drugs and guns next to each other. They're
basically separate transactions." R. 39 (Sentencing Tr.
at 14) (Page ID #183).
district court was not persuaded, stating that counsel was
"talking about a production of a drug and a production
of a gun from the same person on or about the same time,
" R. 39 (Sentencing Tr. at 15) (Page ID #184), and
concluding that "the basic framework of a felon in
possession of a firearm and a distribution of heroin and the
drug in connection with the sale of hard drugs is clearly met
here, " R. 39 (Sentencing Tr. at 16) (Page ID #185).
Nevertheless, the district court departed downward by ten
months from the lower bound of the Guidelines'
recommendation, imposing a sentence of 100 months. R. 39
(Sentencing Tr. at 25) (Page ID #194). Had the court ruled
that the four-level enhancement under U.S.S.G. §
2K2.1(b)(6)(B) was not applicable to Jackson, the recommended
sentencing range, in light of Jackson's criminal history
category of VI, would have been 77 to 96 months. See
U.S.S.G. § 5A (sentencing table). Jackson appealed.
argues that the district court (1) improperly applied the
four-level enhancement under §2K2.1(b)(6)(B) to his
sentence, and (2) committed plain error by not detecting-and
accordingly reducing his sentence on the basis
of-sentencing-factor manipulation. For the reasons that
follow, we agree with Jackson's first argument and deny
Standard of Review
review a district court's sentence for procedural and
substantive reasonableness, applying the abuse of discretion
standard." United States v. Seymour, 739 F.3d
923, 929 (6th Cir. 2014). "Our review of
procedural reasonableness includes determining whether the
district court properly calculated a defendant's
Guidelines range." Id.
the specific context of the § 2K2.1(b)(6)(B) firearm
enhancement, 'we review the district court's factual
findings for clear error and accord due deference to the
district court's determination that the firearm was used
or possessed in connection with the other felony, thus
warranting the application of the . . .
enhancement.'" Id. (internal quotation
marks omitted) (quoting United States v. Taylor, 648
F.3d 417, 432 (6th Cir. 2011)). "The government bears
the burden of establishing the factors supporting this
enhancement by a preponderance of the evidence."
Id.; see also United States v. Shields, 664
F.3d 1040, 1043 (6th Cir. 2011).
defendant has "failed to preserve [a] procedural
objection by first giving the district court the opportunity
to address and remedy it, we review only for plain
error." United States v. Coppenger, 775 F.3d
799, 803 (6th Cir. 2015). "To demonstrate plain error,
an appellant must prove: (1) that an error occurred in the
district court; (2) that the error was plain, i.e., obvious
or clear; (3) that the error affected defendant's
substantial rights; and (4) that this adverse impact
seriously affected the fairness, integrity, or public
reputation of the judicial proceedings." Id.
The Four-Level Enhancement Under U.S.S.G. §
case turns on whether the four-level enhancement prescribed
by U.S.S.G. § 2K2.1(b)(6)(B) applies to Jackson's
conduct. The subsection provides for the enhancement to apply
"[i]f the defendant . . . used or possessed any firearm
or ammunition in connection with another felony
offense." Id. § 2K2.1(b)(6)(B). The
accompanying notes clarify that this subsection applies
"if the firearm or ammunition facilitated, or had the
potential of facilitating, another felony offense or another
offense, respectively." Id. § 2K2.1 cmt.
n. 14(A). Further, the enhancement applies "in the case
of a drug trafficking offense in ...