U.S. v. Condren

• Decision Date: 31 March 1994
• Docket Number: No. 92-9017,92-9017
• Citation: 18 F.3d 1190
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Gary Frank CONDREN, Defendant-Appellant.
• Court: U.S. Court of Appeals — Fifth Circuit

Page 1190

18 F.3d 1190

UNITED STATES of America, Plaintiff-Appellee, v. Gary Frank CONDREN, Defendant-Appellant.

No. 92-9017.

United States Court of Appeals, Fifth Circuit.

March 31, 1994.

Dianne K. Jones, Asst. Federal Public Defender, Ira Kirkendoll, Federal Public Defender, Dallas, TX, for defendant-appellant.

Gary Frank Condren, pro se.

Lynn Hastings, Joe Lockhart, Asst. U.S. Attys., Richard H. Stephens, U.S. Atty., Dallas, TX, for plaintiff-appellee.

Appeal from the United States District Court for the Northern District of Texas.

Before WISDOM, BARKSDALE and EMILIO M. GARZA, Circuit Judges.

BARKSDALE, Circuit Judge:

Gary Frank Condren's sentence for being a felon in possession of a firearm was enhanced under Sentencing Guidelines Sec. 2K2.1(b)(5) because illegal drugs, in addition to the firearm, were found in his home. The only issue on appeal is the construction to be given the "specific offense characteristic" (sentence enhancement) found in that section: "used or possessed any firearm or ammunition in connection with another felony offense". We AFFIRM.

I.

On January 13, 1992, Dallas undercover police officers traded two televisions and a VCR to Condren, in exchange for five pieces ("rocks") of crack cocaine. Based on this, a search warrant for his home was obtained; it was executed the next day. Drug paraphernalia, including crack pipes, mirrors, and a scale were found. And, on top of a desk in the bedroom, two rocks of crack, which weighed .1 gram, as well as 33.3 grams of marijuana seed, were found. Moreover, a loaded .22-caliber revolver was found in a drawer in the desk. ¹

Condren was indicted on, and pleaded guilty to, one count of violating 18 U.S.C. Sec. 922(g)(1), possession of a firearm by a felon. The presentence investigation report (PSR) set his base offense level at 24; ² and added four points pursuant to the Guidelines section in issue, Sec. 2K2.1(b)(5), which requires that adjustment if the firearm was possessed "in connection with another felony offense". ³

Condren filed objections to the PSR, including to the sentence enhancement. The enhancement objection, however, was to the wrong subsection of Sec. 2K2.1. ⁴ In any event, at the sentencing hearing in mid-November 1992, Condren's counsel objected (unsuccessfully) to the enhancement in relation to the subsection in issue. ⁵

The district court, however, sustained Condren's objection to not being granted a Sec. 3E1.1 acceptance of responsibility adjustment. As a result, and pursuant to a recent amendment that allowed a maximum of three, rather than two, points for the adjustment, the court reduced the offense level by three points to 25. ⁶ The ensuing guideline range was 110 to 137 months. ⁷ Condren was sentenced to 120 months imprisonment, to be followed by a three-year term of supervised release.

II.

As noted, only the sentence enhancement is in issue. It goes without saying that, in reviewing "sentences, we examine factual findings subject to the 'clearly erroneous' standard ... and ... accord great deference to the trial judge's application of the sentencing guidelines." United States v. Humphrey, 7 F.3d 1186, 1189 (5th Cir.1993) (citing United States v. Martin, 893 F.2d 73, 74 (5th Cir.1990) and United States v. Mejia-Orosco, 867 F.2d 216, 218 (5th Cir.), clarified, 868 F.2d 807, cert. denied, 492 U.S. 924, 109 S.Ct. 3257, 106 L.Ed.2d 602 (1989)). The sentence will be upheld unless, inter alia, " 'it was imposed ... as a result of an incorrect application of the ... guidelines....' " United States v. Haymer, 995 F.2d 550, 552 (5th Cir.1993) (quoting United States v. Howard, 991 F.2d 195, 199 (5th Cir.), cert. denied, --- U.S. ----, 114 S.Ct. 395, 126 L.Ed.2d 343 (1993)); accord, Humphrey, 7 F.3d at 1189 (quoting Mejia-Orosco, 867 F.2d at 218, and citing 18 U.S.C. Sec. 3742(e)(1)).

Consistent with this court's order detailing the issues to be presented, Condren challenges the Sec. 2K2.1(b)(5) enhancement. ⁸ It is mandated if, among other things, the "defendant used or possessed [the] firearm ... in connection with another felony offense". ⁹ Condren contends that the government failed to show that his firearm possession was "in connection with," i.e., in any way related to, his commission of "another felony". ¹⁰ Therefore, we must first identify the other felony employed in the district court's enhancement calculus.

A.

The PSR states that Condren possessed the firearm in connection with distribution of cocaine:

U.S.S.G. Sec. 2K2.1(b)(5) requires that if the defendant possessed a firearm in connection with another felony offense, four-levels should be added. The defendant was in possession of a firearm while involved in the distribution of crack/cocaine. Therefore, four-levels are added.

In response to Condren's written (apparent) objection to this, the Probation Officer stated only that "section [2K2.1(b)(5) ] ha[d] been appropriately applied."

As stated, at sentencing, except for its finding acceptance of responsibility, the district court adopted the findings in the PSR. Thus, it adopted the finding that Condren possessed the firearm "while involved in" drug distribution. ¹¹ See United States v. Sherbak, 950 F.2d 1095, 1099 (5th Cir.1992) (court need not explicitly adopt individual findings, but may adopt PSR as a whole).

But also, at sentencing, see note 5, supra, the district court found that Condren possessed the firearm "at the same time that ... he was possessing controlled substances. It would appear to the Court that that [firearm] possession was then during the commission of another felony". Accordingly, it found that Condren possessed the firearm while in possession of small quantities of crack and marijuana seed, ¹² and determined that this possession was a felony, because he had been convicted previously of a narcotics offense. ¹³ 21 U.S.C. Sec. 844(a); 28 C.F.R. Secs. 76.1, 1316.91(c). As Condren conceded at oral argument in our court, the district court did not err in ruling that, for enhancement purposes, Condren's drug possession was a felony. ¹⁴

Therefore, the district court found that Condren was engaged in both drug felonies--possession and distribution; the enhancement is triggered if Condren possessed the firearm "in connection with" either. Hence, we turn to the issue before us: the relationship that must exist between firearm possession and the other felony; specifically, the construction to be given "in connection with".

B.

We first examine Condren's firearm and drug possession. ¹⁵ Neither the district court nor the PSR defines the phrase "in connection with", or otherwise discusses the construction to be given it. But, the PSR, which the district court adopted, does use the phrase in explaining the enhancement. In ruling against the enhancement objection, the district court found that Condren possessed the firearm "at the same time that" he was possessing drugs; that the firearm possession "was then during the commission of another felony." Similarly, the adopted PSR finding was that Condren possessed the firearm "while involved in" the distribution of cocaine. (The district court's findings of fact--i.e., that Condren possessed the firearm while engaged in both drug possession and distribution--are, as stated, reviewed only for clear error.) Therefore, in imposing the enhancement, the district court implicitly concluded that the firearm possession was in connection with the drug possession.

1.

"Connection" is defined as a "causal or logical relation or sequence". Webster's Ninth New Collegiate Dictionary 278 (1990). Condren contends that "in connection with" requires the government to establish a "nexus" between his firearm and drug possessions, and that it is lacking because the drug quantity--.1 gram of cocaine and 33.3 grams of marijuana seed--is consistent with personal use and too small to support a conclusion that he possessed the firearm in order "to protect" the drugs. In addition, giving Condren's contention a very liberal reading, he seems to assert that the absence of the nexus is demonstrated further by the facts that the firearm was in a drawer (allegedly locked) and was kept only as collateral for a loan, rather than for any purpose related to drug possession. ¹⁶

The phrase "in connection with" for Sec. 2K2.1(b)(5) purposes is not defined in the Guidelines; and, as noted, our circuit has not squarely addressed the issue. The nexus requirement that Condren urges is borrowed from 18 U.S.C. Sec. 924(c) (proscribing the use or carrying of a firearm "during and in relation to any crime of violence or drug trafficking crime" (emphasis added)). See, e.g., United States v. Pace, 10 F.3d 1106, 1117-18 (5th Cir.1993) (applying Sec. 924(c)); United States v. Capote-Capote, 946 F.2d 1100, 1104 (5th Cir.1991), cert. denied, --- U.S. ----, 112 S.Ct. 2278, 119 L.Ed.2d 204 (1992) (same). Although, as the Tenth Circuit has noted, the standard of proof required under Sec. 924(c) "provides some guidance" in construing Sec. 2K2.1(b)(5), United States v. Gomez-Arrellano, 5 F.3d 464, 466 (10th Cir.1993), we decline to adopt it as the controlling standard.

First, Sec. 924(c) expressly proscribes the use or carrying of a firearm during or in relation to a drug trafficking crime or crime of violence; in contrast, Sec. 2K2.1(b)(5) mandates an enhancement even if the defendant only possesses a firearm in connection with any other felony. U.S.S.G. Sec. 2K2.1(b)(5); see United States v. Sanders, 990 F.2d 582, 585 (10th Cir.) (rejecting defendant's contention that Sec. 924(c) standard should control Sec. 2K2.1(b)(5) determination), cert. denied, --- U.S. ----, 114 S.Ct. 216, 126 L.Ed.2d 172 (1993). ¹⁷

Second, Sec. 924(c) is a criminal statute, requiring that the government prove, beyond a reasonable doubt, the relationship of the firearm to the drug trafficking crime or the crime of violence. Pace, 10 F.3d at 1117. In contrast, because the subsection in issue is under the Sentencing...