Third Circuit rules Guideline § 2K2.1(b)(6)(B) is ambiguous.

Mr. Perez, a.k.a. Toast, sold guns and drugs to various confidential informants and undercover officers.?He kept two firearms under a mattress in the room where he made the sales. During one transaction, an officer saw narcotics, drug packaging materials, and drug paraphernalia in the same room as the guns.

Toast pleaded guilty to offenses on three indictments. The Sentencing Guidelines range was 121 to 151 months. This calculation included a four-level enhancement per U.S. Sentencing Guidelines Manual § 2K2.1(b)(6)(B), which applies when the defendant “used or possessed any firearm . . . in connection with another felony offense.” While there were numerous other sales in the three indictments, the Government conceded that one transaction was the only arguable basis for the enhancement.

Toast appealed and argued the four-level enhancement did not apply because he had the firearms to sell them. Therefore, they should not have been deemed as used or possessed in connection with a drug-trafficking offense based solely on their close proximity to drugs. The Third Circuit agreed and vacated the sentence.

The Third Circuit interpreted Guideline § 2K2.1(b)(6)(B) and Commentary Note 14(B). First, the Court ruled that the text of Section 2K2.1(b)(6)(B) is ambiguous. The Court next held that Note 14(B) creates a rebuttable presumption the enhancement should apply for a drug-trafficking offense when a firearm is found near drugs or related items.

Under the Court's interpretation, "a court may presume that a firearm is used or possessed in connection with a drug-trafficking offense if the firearm is found in close proximity to drugs or related items. But because the presumption is rebuttable, a defendant may present evidence the firearm had no relationship to drug-related activities (i.e., that the presence of the firearm was mere accident or coincidence) and thus did not have the potential to facilitate a drug-trafficking offense." The primary inquiry under § 2K2.1(b)(6)(B) must be whether there is a relationship between the firearm and the defendant’s drug trafficking offense.

FINAL THOUGHTS

If your client's PSR recommends a 4-level enhancement based on § 2K2.1(b)(6)(B), object to the PSR. At sentencing, argue reasons why "the firearm had no relationship to drug-related activities."

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