Federal Court: Enhancement When Firearms are Used “In Connection With” the Underlying Offense.
Drug dealing can be a volatile, dangerous business. Therefore, it’s assumed drug dealers only carry guns to protect themselves, their drugs, and drug proceeds. It was that idea—that drug dealers would only have guns to protect their business—that led the Sentencing Commission to establish an enhancement that allows the federal government to increase a defendant’s offense level by 2 points if it is found that the defendant used guns “in connection with” their underlying offense. This enhancement is outlined in U.S.S.G. § 2D1.1(b)(1). We recently had a contested federal sentencing that dealt with this issue; our client pled guilty to conspiring to distribute more than 5 kilograms of cocaine and the federal government sought to impose the 2D1.1(b)(1) enhancement because guns were found in his house. The twist: the drugs were kept in a detached garage, completely separate from the house and there was no evidence or suspicion that our client possessed guns during the transaction that led to his arrest. Despite the lack of a spatial connection, the probation office and United States Attorney’s Office sought the enhancement.
Does two points really matter? Yes. The addition of two points can add several years on a sentence. And it’s not just the two points either. Oftentimes, convictions in federal court lead to a mandatory minimum. Meaning, the court must give you at least the mandatory minimum sentence. In our case, the mandatory minimum was 10 years. However, a judge can deviate from the mandatory sentence so long as there is an exception. The federal “safety valve” is one such exception. The safety valve allows a defendant’s lawyer to ask the court to sentence below mandatory minimum so long as the defendant meets these five requirements: (1) no was harmed during the offense; (2) the defendant had little to no criminal history; (3) the defendant did not use violence or a gun during the offense; (4) the defendant was not the leader or organizer of the offense; and (5) the defendant fully cooperated with the prosecution. For our client, the enhancement would disqualify him from the safety valve and subject him to the 10-year mandatory minimum. However, if the judge rules that the guns were not used “in connection with” the offense our client would qualify for the safety valve, allowing the judge to ignore the 10-year mandatory minimum and give our client a lower sentence.
For the 2D1.1(b)(1) enhancement to apply the government must prove the guns were used “in connection with” the underlying offense. To do so, they must establish a temporal and spatial connection. The government must prove the guns were on the premises or proximately located to the drugs, drug proceeds, drug paraphernalia or drug materials and the guns were possessed around the time the drug offense took place. These connections—temporal and spatial—must be proven by a preponderance of the evidence, which simply means more likely than not. THISIS NOT THE SAME BURDEN THAT THE GOVERNMENT HAS IN A CRIMINAL CASE- BEYOND A REASONABLE DOUBT. In the easiest case a drug dealer is arrested with guns and drugs on their persons. A slam-dunk. Oftentimes, the facts aren’t so cut and dry. The one-size-fits-all assumption that any drug dealer who owns a gun must use it in furtherance of their drug dealing is egregious. Some individuals, like our client, owned guns for recreational purposes: shooting at the range, to collect them—there are thousands of reasons to own a gun. However, if an individual is found to be dealing drugs and possessing guns—regardless of whether they lawfully possess them— the government will undoubtedly seek the 2D1.1(b)(1) enhancement. That is not the purpose of the statute. Seeking the enhancement where the defendant goes out of their way to avoid mixing guns and drugs is draconian. The statute is not meant for that. The statute is designed to deter drug dealers from co-mingling guns and drugs, in the hopes of avoiding violence. Yet, when a defendant intentionally separates the drugs from the guns and the government still attempts to apply the enhancement, the government is overstepping and seeking an unjust sentence that is greater than necessary to comply with the sentencing goals. And that is what happened in our case. Our client had taken every step to eliminate the possibility that his guns would intersect the drugs. The government didn’t care. They wanted the enhancement, regardless of the circumstances.
This is why it’s crucial to hire an experienced, hard-working defense attorney. One who understands the federal sentencing guidelines, one who understands the safety valve and one that has a history of succeeding in hearings against the federal government. Ryan Pacyga Criminal Defense is that firm. We have extensive experience and success representing clients in state and federal drug cases.