United States v. Ryan, No. 17-3919 (2d Cir. 2019)
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The Second Circuit held that a district court may apply a four-level sentencing enhancement under USSG 2K2.1(b)(6)(B) to a defendant who sells a firearm and drugs to a buyer in a single transaction, and to a buyer who the defendant has reason to believe is a drug dealer. The court considered Defendant Wood's remaining arguments and held that they were without merit. Accordingly, the court affirmed with respect to Defendant Wood in Appeal No. 18-985. The court affirmed the consolidated appeal of Defendant Ryan in a simultaneously filed summary order.
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17 3919(L) United States v. Ryan et al. 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29 30 31 32 33 34 35 36 UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT August Term, 2018 (Argued: June 25, 2019 Decided: August 16, 2019) Docket Nos. 17 3919 cr(L), 17 3969 cr(CON), 18 985 cr(CON) _____________________________________ UNITED STATES OF AMERICA, Appellee, v. JAHKEEM RYAN, AKA JAH BANKO, MAURICE WOOD, AKA PIFF, Defendants Appellants. _____________________________________ Before: JACOBS, LOHIER, and CARNEY, Circuit Judges. In this appeal, we consider whether a district court errs in applying a four level enhancement under U.S.S.G. § 2K2.1(b)(6)(B) to a defendant who sells a firearm and drugs to a buyer in a single transaction or to a buyer who the defendant has reason to believe is a drug dealer. We hold that a district court may apply the enhancement in either situation and accordingly AFFIRM the District Court’s judgment with respect to Maurice Wood. The consolidated appeal of Jahkeem Ryan is AFFIRMED in a simultaneously filed summary order. PAUL D. SILVER, Assistant United States Attorney, for Grant C. Jaquith, United 1 2 3 4 5 6 7 8 9 10 11 LOHIER, Circuit Judge: States Attorney for the Northern District of New York, Albany, NY, for Appellee United States of America. TODD GREGORY MONAHAN, Schenectady, NY, for Defendant Appellant Jahkeem Ryan. KEVIN A. LUIBRAND, Luibrand Law Firm, PLLC, Latham, NY, for Defendant Appellant Maurice Wood. Maurice Wood appeals from a judgment of the United States District Court 12 13 for the Northern District of New York (Kahn, J.) sentencing him principally to a 14 term of imprisonment of fifty seven months.1 This opinion addresses Wood’s 15 challenge to the District Court’s application of a four level enhancement under 16 § 2K2.1(b)(6)(B) of the United States Sentencing Guidelines, which, as noted, 17 provides for an enhancement if the defendant “used or possessed any firearm or 18 ammunition in connection with another felony offense” or if the defendant 19 “possessed or transferred any firearm or ammunition with knowledge, intent, or 20 reason to believe that it would be used or possessed in connection with another 21 felony offense.” U.S.S.G. § 2K2.1(b)(6)(B). We consider whether that 1 A separate summary order filed simultaneously with this opinion resolves the consolidated appeal of Wood’s codefendant appellant, Jahkeem Ryan. 2 1 enhancement can apply to a defendant who sells a firearm and drugs either to a 2 buyer in a single transaction or to a buyer who the defendant has reason to 3 believe is a drug dealer. We hold that a district court may apply the 4 enhancement in either situation and accordingly AFFIRM the District Court’s 5 judgment with respect to Wood. BACKGROUND 6 7 In 2015 Wood and codefendant Jahkeem Ryan sold heroin to an individual 8 who was a confidential government informant (referred to here as the “CI”).2 In 9 late August of that year Wood told the CI to go to an address in Kingston, New 10 York, where Ryan sold him about nine grams of heroin. In early September 11 Ryan and Wood sold the CI approximately thirty four more grams of heroin 12 packaged into bags for individual sale. A week later Wood arranged for the CI 13 to buy: ten bundles of heroin for $1,000; and a Smith and Wesson AR 15 rifle and 14 a Mossberg shotgun for $600. But Wood did not have the AR 15 with him on the 15 day of the sale. To make up for not providing the AR 15, Ryan and Wood gave 16 the CI significantly more heroin for the same total price they had originally 17 negotiated. In a final controlled buy later that month, Ryan sold the CI 2 The facts in this opinion are drawn from the presentence investigation report for Maurice Wood, which was filed under seal. 3 1 approximately nineteen grams of heroin, packaged for resale into ninety nine 2 bags. 3 4 possession with intent to distribute heroin, 21 U.S.C. §§ 841(a)(1), (b)(1)(C), 851, 5 and one count of possession of a firearm by a convicted felon, 18 U.S.C. 6 §§ 922(g)(1), 924(a)(2). At sentencing, the District Court relied on Guidelines 7 § 2K2.1(b)(6)(B) to apply a four level enhancement to Wood’s sentence. The 8 enhancement increased the top end of the Guidelines range by 25 months. See 9 U.S.S.G. ch. 5, pt. A (2016). Wood was arrested in 2016 and eventually pled guilty to two counts of DISCUSSION 10 11 On appeal, Wood argues that the enhancement under § 2K2.1(b)(6)(B) does 12 not apply to the sale of heroin and the shotgun in this case because the gun was 13 not used to help sell the heroin. We start with the language of § 2K2.1(b)(6)(B), 14 which provides for a four point enhancement if the defendant “used or 15 possessed any firearm or ammunition in connection with another felony offense” 16 (the “in connection with” clause) or if the defendant “possessed or transferred 17 any firearm or ammunition with knowledge, intent, or reason to believe that it 18 would be used or possessed in connection with another felony offense” (the 4 1 “reason to believe” clause). U.S.S.G. § 2K2.1(b)(6)(B). According to the 2 Guidelines commentary, the enhancement applies if the firearm either facilitated 3 “or had the potential of facilitating” another felony offense. U.S.S.G. § 2K2.1 cmt. 4 n.14(A); see also United States v. Legros, 529 F.3d 470, 474 (2d Cir. 2008). 5 Although the Government argued for the enhancement based on the in 6 connection with clause, App’x 147, the District Court never specified which 7 clause it was relying upon. We conclude that the court could have justified the 8 enhancement under either the “in connection with” or the “reason to believe” 9 clause based on a preponderance of the evidence. See United States v. Pica, 692 10 F.3d 79, 88 (2d Cir. 2012) (applying a “preponderance of the evidence” standard 11 in the context of sentencing). 12 We address each clause in turn. 1. In Connection With Clause 13 14 This Court has held that § 2K2.1(b)(6)(B)’s “in connection with” 15 requirement is satisfied so long as a firearm has the potential to “serve[] some 16 purpose with respect” to a defendant’s “felonious conduct.” United States v. 17 Spurgeon, 117 F.3d 641, 644 (2d Cir. 1997) (quoting United States v. Wyatt, 102 18 F.3d 241, 247 (7th Cir. 1996)). But “where the firearm’s presence is merely 5 1 coincidental to that conduct,” we have stated that “the requirement is not met.” 2 Id. (quoting Wyatt, 102 F.3d at 247). The question presented in this appeal is 3 whether selling the shotgun could serve some purpose with respect to the 4 simultaneous sale of heroin. We hold that it could, because selling firearms and 5 drugs in the same transaction will normally facilitate both the drug sale and 6 future drug sales, and that is enough to trigger the enhancement under 7 § 2K2.1(b)(6)(B). See United States v. Henry, 819 F.3d 856, 869 (6th Cir. 2016); see 8 also United States v. Reyes, 668 F. App’x 858, 858–59 (11th Cir. 2016); United 9 States v. Bullard, 301 F. App x 224, 227–28 (4th Cir. 2008); cf. United States v. 10 Lipford, 203 F.3d 259, 266–68 (4th Cir. 2000). Specifically, the firearm sale can 11 facilitate the drug sale by “sweetening the pot” for either the drug seller or 12 buyer. Henry, 819 F.3d at 866. By “offering to purchase not only drugs, but 13 other illegal goods as well,” a drug buyer may persuade “the drug seller to take 14 the risks inherent in selling contraband.” Lipford, 203 F.3d at 267. And 15 conversely, the drug dealer may “attempt to shore up the [buyer’s] drug 16 purchase” by offering to sell her something else. Henry, 819 F.3d at 866. The 17 bottom line is that the simultaneous sales can spur the buyer to keep buying 18 drugs from the same seller by lowering overall costs. See id. at 869. A district 6 1 court therefore may apply § 2K2.1(b)(6)(B)’s enhancement to a defendant who 2 sells a firearm and drugs in the same transaction. 3 4 Recall that when Wood and Ryan failed to provide the AR 15, they offered to 5 make it up to the CI by giving him more heroin for the same initial overall price. 6 At that point, the District Court was entitled to conclude, they treated the 7 shotgun and heroin as a package deal. And under those circumstances, the 8 District Court could and did justifiably apply the enhancement under the “in 9 connection with” clause. With these general principles in mind, we turn to Wood’s challenge. 2. Reason to Believe Clause 10 11 The same four level enhancement would also have been justified under the 12 “reason to believe” clause of § 2K2.1(b)(6)(B). In United States v. Young, the 13 district court found that “Young unlawfully sold a large number of unusually 14 dangerous weapons—AK–47s and TEC–9s—to people he knew to be drug 15 dealers.” 811 F.3d 592, 600 (2d Cir. 2016). That finding, we said, “is sufficient to 16 support an inference that he had reason to believe the guns would be used in 17 connection with other felonies.” Id. Our conclusion in Young simply recognized 18 the well known connection between firearms and drug trafficking. See United 7 1 States v. Mitchell, 328 F.3d 77, 83 (2d Cir. 2003) (noting that drug dealers 2 commonly keep firearms as “tools of the trade” (quotation marks omitted)). So 3 when a defendant sells a firearm to a known drug dealer, in most if not all cases 4 it is reasonable to infer that the defendant understood, or had “reason to 5 believe,” that the firearm would be used in connection with another felony. It was easy for the District Court to infer that here. A week before they 6 7 sold the CI the shotgun, Wood and Ryan sold him a large quantity (thirty four 8 grams) of heroin packed into bags for individual sale. Wood then sold another 9 large quantity of heroin (over twenty seven grams) to the CI along with the 10 shotgun. Based on these facts, there was a solid basis to find that Wood had 11 “reason to believe” that the CI was a drug dealer buying the heroin for resale and 12 the shotgun as a tool of his trade. CONCLUSION 13 14 We have considered Wood’s remaining arguments and conclude that they 15 are without merit. For the foregoing reasons, the judgment of the District Court 16 with respect to Maurice Wood, No. 18 985, is AFFIRMED. 8
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