589 F.3d 514 (1st Cir. 2009), 08-1156, United States v. Cannon

Docket Nº:08-1156.
Citation:589 F.3d 514
Opinion Judge:TORRUELLA, Circuit Judge.
Party Name:UNITED STATES of America, Appellee, v. Rashiek T. CANNON, Defendant, Appellant.
Attorney:David J. Barend, for appellant. Mark T. Quinlivan, Assistant U.S. Attorney, with whom Michael J. Sullivan, United States Attorney, and Angel Kelley Brown, Assistant U.S. Attorney, were on brief for appellee.
Judge Panel:Before TORRUELLA, RIPPLE,[*] and BOUDIN, Circuit Judges.
Case Date:December 23, 2009
Court:United States Courts of Appeals, Court of Appeals for the First Circuit
 
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Page 514

589 F.3d 514 (1st Cir. 2009)

UNITED STATES of America, Appellee,

v.

Rashiek T. CANNON, Defendant, Appellant.

No. 08-1156.

United States Court of Appeals, First Circuit.

December 23, 2009

Heard Sept. 14, 2009.

Page 515

David J. Barend, for appellant.

Mark T. Quinlivan, Assistant U.S. Attorney, with whom Michael J. Sullivan, United States Attorney, and Angel Kelley Brown, Assistant U.S. Attorney, were on brief for appellee.

Before TORRUELLA, RIPPLE,[*] and BOUDIN, Circuit Judges.

TORRUELLA, Circuit Judge.

Appellant Rashiek T. Cannon pled guilty to a single count of being a felon in possession of a firearm, after police found him carrying a loaded gun during a routine traffic stop. The district court imposed a seventy month sentence based, in part, on its determination that Cannon had possessed the firearm " in connection with" a felony drug offense for purposes of U.S.S.G. § 2K2.1(b)(6). In this appeal, Cannon challenges the district court's application of the § 2K2.1(b)(6) enhancement, contending that the government failed to prove by a preponderance of evidence that he knew about the existence of drugs found in the car in which he was arrested, or that those drugs were intended for distribution and not personal use. After careful review, we affirm.

I. Background

A. Cannon's Arrest1

On October 5, 2004, three Brockton police officers were on patrol in the area of Walnut Street when they observed a red sport utility vehicle (SUV) with three occupants exceeding the speed limit. The officers flashed their lights and pulled over the SUV. As one of the officers approached, he saw Cannon sitting in the right front passenger seat with a firearm visible in his right front jacket pocket. He alerted the other officers, secured the gun-a loaded .38 caliber Charter Arms revolver-and then removed Cannon from the vehicle and placed him on the pavement. The officers ordered the driver, Corey Allen, to get out of the SUV; they told the rear seat passenger, Carlos Báez, to remain inside. Allen tried to flee, but he was quickly caught by the officers.

The officers searched Allen and found that he was carrying a bag of marijuana. The quantity of marijuana is not reflected in the record. The officers then removed Báez from the rear seat and searched the SUV. They found two bags, which the PSR describes as containing " two large pieces and one small piece" of crack cocaine. However, there is no information in the record as to the specific drug quantity. The record also fails to indicate where in the SUV the crack cocaine was found, whether it was accessible to Cannon in the front passenger seat, or whether it was in plain view.

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All three occupants were arrested. Later, during the booking process, the police discovered that Allen had a second bag of marijuana, also of unknown quantity, hidden in his sock and $1,715 in cash. Báez had $100 on him and Cannon had $272. All of the men said that they were unemployed.

B. Guilty Plea and Sentencing

Cannon, who had some prior convictions, qualified as a felon for purpose of 18 U.S.C. § 922(g)(1), and was charged under the statute with unlawful possession of a firearm.2 In March 2007 Cannon moved to have a pre-plea PSR prepared by the Probation Department. The PSR assigned Cannon a criminal history category of V, and recommended a four-level enhancement under U.S.S.G. § 2K2.1(b)(6) because Cannon had possessed the firearm " in connection with another felony offense, to wit: distribution of narcotics." The PSR allowed for a three-level reduction for acceptance of responsibility and assigned a total offense level of twenty-one. Cannon faced a maximum term of imprisonment of ten years, and the PSR arrived at a sentencing range of seventy to eighty-seven months.

Cannon objected to the PSR's recommended § 2K2.1(b)(6) enhancement, contending that there was no evidence he knew about the drugs found in the SUV or, even if he did, that he intended to distribute them. Cannon emphasized that he did not own the car and, unlike the driver, did not attempt to flee. Thus, he argued, there was no basis to conclude that he possessed the gun " in connection with" any drug offense. The Probation Department maintained that the enhancement was proper because it applies when a gun is found in close proximity to drugs and has the potential to facilitate another felony offense. See U.S.S.G. § 2k2.1(B)(6), application note 14.

Cannon pled guilty in October 2007. At the Rule 11 hearing, Cannon admitted only to possessing the firearm; there was no discussion regarding the § 2K2.1(b)(6) enhancement or the facts supporting that enhancement. Cannon acknowledged that he could face up to ten years in prison as a result of his...

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