United States v. Briggs, No. 18-1415 (7th Cir. 2019)
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In December 2016, Indiana state parole officers conducted a parole visit at Briggs’s home. After consenting to a search, he admitted to having marijuana (299 grams), cocaine (.45 grams), and three loaded handguns in the master bedroom. On a shelf next to the marijuana, the officers found a digital scale. The officers arrested Briggs and seized his cell phone, which contained pictures and texts confirming that the guns were his. Briggs was charged with being a felon in possession of a firearm. Although the parties did not come to a plea agreement, Briggs petitioned to enter a plea of guilty and requested a presentence investigation report. The initial report concluded that Briggs had committed a felony drug offense in connection with the firearm possession, which warranted a four-level enhancement under U.S.S.G. 2K2.1(b)(6)(B). Briggs argued that his firearm possession was unrelated to the drugs found in his home. Applying the enhancement, the court sentenced Briggs to 84 months. The Seventh Circuit reversed and remanded for resentencing because the trial court made essentially no factual findings connecting Briggs’s firearms to his felony drug possession.
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In the United States Court of Appeals For the Seventh Circuit ____________________ No. 18-1415 UNITED STATES OF AMERICA, Plaintiff-Appellee, v. ALANDOUS BRIGGS, Defendant-Appellant. ____________________ Appeal from the United States District Court for the Southern District of Indiana, Indianapolis Division. No. 1:17-cr-00139-TWP-TAB-1 — Tanya Walton Pratt, Judge. ____________________ ARGUED NOVEMBER 27, 2018 — DECIDED MARCH 27, 2019 ____________________ Before BAUER, HAMILTON, and BARRETT, Circuit Judges. BARRETT, Circuit Judge. Alandous Briggs pleaded guilty to being a felon in possession of a rearm after o cers found drugs and rearms at his home during a parole visit. At sentencing, the district court applied a four-level enhancement for possessing a rearm in connection with felony possession of drugs. But because the district court made essentially no factual ndings connecting Briggs’s 2 No. 18-1415 rearms to his felony drug possession, we reverse and remand for resentencing. I. In December 2016, Indiana state parole o cers conducted a parole visit at Alandous Briggs’s home. After consenting to a search, he admitted that there was marijuana (299 grams), cocaine (.45 grams), and rearms (3 loaded handguns) in the master bedroom. On a shelf next to the marijuana, the o cers also found a digital scale. The o cers arrested Briggs and seized his cell phone—which turned out to contain pictures and texts con rming that the guns were his. Briggs was charged with one count of being a felon in possession of a rearm. Although the parties did not come to a plea agreement, Briggs petitioned to enter a plea of guilty and requested a presentence investigation report. The probation o ce’s initial report concluded that Briggs had committed a felony drug o ense in connection with the rearm possession, which warranted a four-level enhancement under U.S.S.G. § 2K2.1(b)(6)(B) (specifying an enhancement for those who “used or possessed any rearm … in connection with another felony o ense”). Briggs led an objection to this enhancement, arguing that his rearm possession was unrelated to the drugs found in his home. The district court conducted a combined plea and sentencing hearing. After accepting his plea, the district court turned to Briggs’s sentencing objection. The government claimed that the enhancement applied based on two separate felonies: felony drug possession and felony drug tra cking. Briggs again maintained that his rearms were unrelated to No. 18-1415 3 the drugs. But the district court held that the enhancement applied and sentenced Briggs to 84 months. Briggs appeals that sentencing decision. His sole argument on appeal is that the district court erred by nding that his possession of rearms was connected to another felony. II. As an initial matter, the government claims that the district court found that the enhancement applied based on both felony drug possession and felony drug tra cking. We disagree. The district court discussed both felonies at sentencing, but it ultimately concluded that only felony drug possession triggered the enhancement. It explained that although “there’s an inference that the defendant may have been involved in some drug distribution, … at minim[um], he was possessing drugs.” (emphasis added). We take this to mean that the district court wasn’t deciding whether the enhancement applied because of the suspected drug tra cking, resting its decision instead only on felony possession, which Briggs admitted. Thus, the question that we face on appeal is whether the district court erred in concluding that the enhancement applied in connection with Briggs’s felony possession of cocaine. 1 To enhance a defendant’s sentence for possessing a rearm in connection with another felony, the rearm must 1 Although the district court was not clear on this point, only Briggs’s cocaine possession constitutes a felony. See IND. CODE § 35-48-4-6. His marijuana possession did not constitute a felony because he did not have a prior drug conviction. See id. § 35-48-4-11. So only the cocaine possession could have triggered the enhancement. 4 No. 18-1415 have been connected to the second crime. See U.S.S.G. § 2K2.1 & cmt. n. 14(A) (stating that “in connection with” means that the rearm “facilitated, or had the potential of facilitating, another felony o ense”). We have noted before that “[m]ere contemporaneous possession while another felony is being committed is not necessarily su cient, and possessing a gun while engaged in the casual use of drugs might not give rise to the inference that the gun was possessed in connection with the drugs.” United States v. LePage, 477 F.3d 485, 489 (7th Cir. 2007). The problem here is that the district never made any ndings about how Briggs’s felony cocaine possession was connected to his rearms. It simply assumed that because the rearms were probably connected to drug tra cking (because of the combination of the cocaine, marijuana, and digital scale), they were probably connected to his mere possession of the cocaine. But that logic doesn’t hold up. Analyzing whether rearms are connected to drug tra cking is di erent from analyzing whether they are connected to possessing a small quantity of drugs. See id. (explaining that the existence of a dilution agent, for example, was “consistent with being a dealer and not simply a casual user of the drug”); United States v. Smith, 535 F.3d 883, 885–86 (8th Cir. 2008) (noting the di erences between drug tra cking and drug possession as it relates to the § 2K2.1(b)(6) enhancement). In fact, the guidelines themselves distinguish between drug tra cking and other o enses like drug possession. See § 2K2.1 cmt. n. 14(B) (specifying that the enhancement applies to a “drug tra cking o ense” when drug-manufacturing materials are found in proximity to rearms). No. 18-1415 5 Perhaps the district court here thought that the guns emboldened Briggs’s possession of cocaine. See, e.g., United States v. Jenkins, 566 F.3d 160, 163 (4th Cir. 2009) (applying the enhancement to a defendant who brought cocaine and a gun onto a public street because the “environment suggest[ed] that there was a heightened need for protection and that the rearm emboldened [him]”). Or maybe it thought that because Briggs had both cocaine and marijuana in the house, he simply wanted to protect all of the drugs that he had there. But the problem is that we don’t know what the district court thought. Put di erently, “[w]e have essentially no fact ndings at all by the district court relevant to this issue.” United States v. Clinton, 825 F.3d 809, 813 (7th Cir. 2016) (emphasis added). The district court mostly discussed the drug scale and the amount of marijuana found in Briggs’s home—but neither of those facts bears directly on Briggs’s cocaine possession. Instead, they go to whether he might have been dealing drugs. And the court’s vague suggestion that the guns might have been there “to protect something”—apparently made in the context of drug tra cking—wouldn’t be enough to connect the guns to felony possession of cocaine even if that had been what the court was referring to. In short, the mere fact that guns and drugs are found near each other doesn’t establish a nexus between them. See LePage, 477 F.3d at 489. A court must say more to connect the two. Thus, the district court clearly erred in applying the § 2K2.1(b)(6) enhancement because its ndings do not support a conclusion that Briggs’s rearms were connected to his possession of less than half a gram of cocaine. See Clinton, 825 F.3d at 814 (“We do not hold that the enhancement is inapplicable as a matter of law, but the fact ndings in this record do not support the enhancement.”). 6 No. 18-1415 The sentence is VACATED and the case REMANDED for resentencing consistent with this opinion.
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