U.S. v. Gomez-Arrellano

• Decision Date: 16 September 1993
• Docket Number: No. 92-2187,D,GOMEZ-ARRELLAN,92-2187
• Citation: 5 F.3d 464
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Heribertoefendant-Appellant.
• Court: U.S. Court of Appeals — Tenth Circuit

Page 464

5 F.3d 464

UNITED STATES of America, Plaintiff-Appellee, v. Heriberto GOMEZ-ARRELLANO, Defendant-Appellant.

No. 92-2187.

United States Court of Appeals Tenth Circuit.

Sept. 16, 1993.

Jerry A. Walz, Walz, Wallin & Associates, P.C., Albuquerque, NM, for defendant-appellant.

James Martin, Asst. U.S. Atty. (Don Svet, U.S. Atty. and Stephen R. Kotz, Asst. U.S. Atty., with him on the brief), Albuquerque, NM, for plaintiff-appellee.

Before LOGAN, TACHA and KELLY, Circuit Judges.

PAUL KELLY, Jr., Circuit Judge.

Mr. Gomez-Arrellano pled guilty to reentry into the United States after deportation, 8 U.S.C. Sec. 1326, possession with intent to distribute cocaine, 21 U.S.C. Secs. 841(a)(1) & (b)(1)(C), possession of marijuana, 21 U.S.C. Sec. 844(a), and being an illegal alien in possession of a firearm, 18 U.S.C. Secs. 922(g)(5) & 924(a)(2). The district court sentenced Mr. Gomez-Arrellano to a total of twenty-seven months. Mr. Gomez-Arrellano appeals the district court's imposition of a four-level increase under U.S.S.G. Sec. 2K2.1(b)(5). Our jurisdiction arises under 28 U.S.C. Sec. 1291 and 18 U.S.C. Sec. 3742(a) and we remand for the district court to vacate the sentence on the offense of being an illegal alien in possession of a firearm and resentence.

Background

Investigation by the Immigration and Naturalization Service (INS) led to the issuance of an arrest for Mr. Gomez-Arrellano for reentering the country after deportation. While arresting Mr. Gomez-Arrellano at an Albuquerque residence, INS officers observed a green leafy substance in plain view and Mr. Gomez-Arrellano attempting to hide a plastic bag under a bed. A later search of the residence pursuant to a valid warrant led to the discovery of marijuana, cocaine, a .22 pistol, ammunition, and drug paraphernalia.

Mr. Gomez-Arrellano was charged with reentry after deportation, possession with intent to distribute cocaine, misdemeanor possession of marijuana, and possession or use of a firearm in connection with a narcotics offense. Mr. Gomez-Arrellano pled guilty to reentering the country after deportation, the cocaine and marijuana offenses, and a charge of being an illegal alien in possession of a firearm. In exchange for these guilty pleas, the government dismissed the charge of use of a firearm in connection with a narcotics offense. Mr. Gomez-Arrellano submitted a written denial that the handgun was possessed in connection with the drug offenses. The presentence report noted Mr. Gomez-Arrellano's denial, but concluded that the weapon was used in connection with the drug offenses. At sentencing, the district court adopted the findings of the presentence report and imposed a four level enhancement for being an illegal alien in possession of a firearm under U.S.S.G. Sec. 2K2.1(b)(5) for use of a firearm in connection with another felony, the other felony being possession with intent to distribute cocaine. Mr. Gomez-Arrellano contends that the government failed to meet its burden of proof for the enhancement, that the enhancement does not apply to drug trafficking offenses, and that the imposition of the enhancement violated his due process rights. We review factual findings of the district court under the clearly erroneous standard, United States v. Sullivan, 967 F.2d 370, 376 (10th Cir.1992), and review de novo questions of law in applying the Guidelines. United States v. Sanders, 990 F.2d 582, 583 (10th Cir.1993).

Discussion

An enhancement under U.S.S.G. Sec. 2K2.1(b)(5) is appropriate when:

[T]he defendant used or possessed any firearm or ammunition in connection with another felony offense; or possessed or transferred any firearm or ammunition with knowledge, intent, or reason to believe that it would be used or possessed in connection with another felony offense,....

U.S.S.G. Sec. 2K2.1(b)(5). We reject Mr. Gomez-Arrellano's claim that drug trafficking offenses cannot be the "other offenses" within the meaning of Sec. 2K2.1(b)(5). Application Note 18 to Sec. 2K2.1(b)(5) states: "As used in subsections (b)(5) and (c)(1), 'another felony offense' and 'another offense' refer to offenses other than explosives or firearms possession or trafficking offenses." We have previously held the enhancement applicable when the other offense is a drug trafficking crime, see Sanders, 990 F.2d at 585, and believe that "trafficking offenses" as used in Application Note 18 refers only to weapons trafficking offenses, and not to drug trafficking offenses.

Mr. Gomez-Arrellano next claims that the government failed to prove a factual basis for the enhancement. Sentencing determinations of relevant conduct and offense characteristics must be supported by a preponderance of the evidence. See United States v. Goddard, 929 F.2d 546, 549 (10th Cir.1991). The facts contained in the presentence report, and the record before us on appeal, are insufficient to support the enhancement.

The government argues that Sec. 2D1.1(b)(1) is analogous to Sec. 2K2.1(b)(5), and that once the government showed that the gun was possessed in some physical proximity to the offense, Defendant could avoid the enhancement only by meeting the burden of demonstrating that it was clearly improbable that the weapon was connected with the offense. Examination of the language of the two guidelines provisions demonstrates that Sec. 2K2.1(b)(5) requires different proof than Sec. 2D1.1(b)(1).

We recently clarified the burden of proof for the Sec. 2D1.1(b)(1) enhancement in United States v. Roberts, 980 F.2d 645 (10th Cir.1992). Section 2D1.1(b)(1) provides: "If a dangerous weapon (including a firearm) was possessed, increase by 2 levels." Under Sec. 2D1.1(b)(1), the government has the burden of proving merely that a weapon was present in some physical proximity to the offense. Id. at 647. Once this burden is met, the commentary to the Guidelines allows the defendant to demonstrate that it was "clearly improbable" that the gun was connected to the offense. Id.

The structure and plain language of Sec. 2K2.1(b)(5) indicate that this enhancement requires proof of different elements than does the Sec. 2D1.1(b)(1) enhancement. While Sec. 2K2.1(b)(5) calls for an enhancement when a firearm or ammunition is possessed "in connection with" another felony offense, Sec. 2D1.1(b)(1) calls for an enhancement merely when a dangerous weapon was "possessed" during commission of the offense. The government must support the "in connection with" element of the enhancement offense with a preponderance of the evidence. In contrast, the elements of the Sec. 2D1.1(b)(1) enhancement do not require that the weapon be possessed in connection with the offense. The exception is included in the commentary to Sec. 2D1.1(b)(1), and its wording indicates that the defendant has the burden of proving that the weapon was clearly unconnected to the offense.

18 U.S.C. Sec. 924(c)(1) is more closely analogous to Sec. 2K2.1(b)(5) than is Sec. 2D1.1(b)(1). Although there are differences between Sec. 2K2.1(b)(5) and 18 U.S.C. Sec. 924(c)(1), Sec. 924 still provides some guidance on the nexus between firearms possession and narcotics offenses. Sec. 924(c)(1) creates a statutory offense...