This past February, Houston’s city officials allocated 44 million dollars to combat increasing violence in the state’s largest city. At a news conference announcing the allocation of the violence-fighting funds, Houston Mayor Sylvester Turner stated:
“Violent crime is a public health crisis, made worse by many factors, including the pandemic and too many guns on our streets.”
Three months later, the mayor told Houstonians that violent crime in the city was trending downward for the first time in more than a year. He pointed out that all 44 categories of violent crime had significantly decreased, including homicides, robberies, rapes, and aggravated assaults.
A portion of this decrease can probably be attributed to state and federal prosecutors announcing policy initiatives seeking the maximum enhancement penalty against individuals charged with gun violence crimes—something that is being done across the country.
Federal Sentencing Enhancement for “Use of Firearm”
Sentence enhancement, found in U.S Sentencing Guideline § 2K2.1(b)(6)(B), applies when a defendant “used or possessed any firearm … in connection with another felony offense.”
In essence, by default, this guideline means that “if the firearm … facilitated, or had the potential of facilitating, another felony offense,” then enhancement of sentence must occur.
The enhancement requirement is more severe when a firearm and drug trafficking are associated. Under the guidelines, a four-level enhancement applies if the firearm “is found in close proximity to drugs, drug manufacturing materials, or drug paraphernalia.”
The “in connection with” requirement of the enhancement guideline is where any legal analysis must begin.
Note 14(A), which applies to drug possession cases, and 14(B), drug trafficking cases, were added to the enhancement guideline by the Sentencing Commission in an attempt to clear up confusion among the federal circuits about how to apply the “in connection with” requirement of the enhancement.
Most circuits, including the Fifth Circuit, opted for an easy (although questionable) solution to the “in connection with” dilemma in the wake of the addition of Notes 14(A) and 14(B).
Nexus Between Firearm and Drugs
Specifically, in the 14(A) possession cases, the circuits held that the government had to establish a direct nexus between the firearm and the possession, while in the 14(B) drug trafficking cases created a rebuttable presumption that there is a nexus between the gun and the drug trafficking.
14(B) allows the defendant to rebut the presumption by offering evidence that the firearm’s presence was accidental, coincidental, permissible through licensed ownership, that evidence connecting the firearm to the drug trafficking is insufficient, or that there was no nexus between the gun and drugs.
Before the adoption of 14(B), the Third Circuit pointed out in United States v. Loney, that the mere presence of a “hunting rifle in [the] closet” may not have a “relationship” between a firearm and a drug offense, even if the gun was “around [a defendant’s] drug dealing.” Therefore, the “physical proximity alone may be insufficient in some cases” to establish the “in connection with” nexus. The Loney court offered these examples that did not satisfy the “in connection with” nexus:
- The presence of the gun was merely “accidental,”
- The presence of the gun had no “purpose or effect with respect to” a defendant’s drug offense, or
- The presence of the gun did not “facilitate or have the potential of facilitating” a defendant’s drug dealing.
The problem with 14(B) in the Fifth Circuit is this: the court in United States v. Eaden held that 14(B) provides “for a presumption of facilitation when a firearm is possessed in close proximity to a drug trafficking.” The “close proximity” presumption effectively superseded the “in connection with” presumption. The “close proximity” presumption requires only a showing of presence to establish nexus.
The “close proximity” is now the rule in 14(B) cases in the Fifth Circuit.
In April 2020, the Fifth Circuit in United States v. Moreno indirectly entrenched the close proximity rule in cases where a defendant has a lawfully possessed firearm found in the presence of drugs. In these lawfully possessed firearm cases, the Fifth Circuit imposed a burden on the defendant to show it was “clearly improbable” that the firearm was connected with the charged drug offense.
The Fifth Circuit’s decision in Moreno conflicts with the Eighth Circuit’s decision in United States v. Perez-Guerrero, which places the burden on the government to show that the nexus between the firearm and drugs was not “clearly improbable.”
The U.S. Supreme Court refused to grant a certiorari review in Moreno, effectively letting the decision stand in the Fifth Circuit.
This past July, the Third Circuit in United States v. Perez issued a ruling that also conflicts with the Fifth Circuit’s Eaden decision in connection with the 14(B) “in connection with” rule. The Perez court essentially held that “Under Note 14(B), a sentencing court may presume that a firearm is used or possessed “in connection with” a drug trafficking offense under § 2K2.1(b)(6)(B) if the firearm is found in close proximity to drugs or drug paraphernalia. But the defendant must have a chance to prove that the firearm’s presence was mere accident or coincidence.”
Ultimately, the U.S. Supreme Court will have to resolve these circuit conflicts necessary to have uniform gun violence prosecutions in the nation’s federal courts.
One thing is sure: the increasing levels of gun violence across the country will trigger a greater and much harsher federal prosecutorial response in these cases.