U.S.A. v. Hardin

• Citation: 248 F.3d 489
• Decision Date: 13 March 2001
• Docket Number: No. 99-6662,99-6662
• Parties: (6th Cir. 2001) United States of America, Plaintiff-Appellee, v. Gregory Lamont Hardin, Defendant-Appellant. Argued:
• Court: U.S. Court of Appeals — Sixth Circuit

Page 489

248 F.3d 489 (6th Cir. 2001)

United States of America, Plaintiff-Appellee, v. Gregory Lamont Hardin, Defendant-Appellant.

No. 99-6662

UNITED STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT

Argued: March 13, 2001

Decided and Filed: April 23, 2001

Appeal from the United States District Court for the Eastern District of Tennessee at Greeneville. No. 99-00036, Thomas G. Hull, District Judge.

Dan R. Smith, ASSISTANT UNITED STATES ATTORNEY, Johnson City, Tennessee, for Appellee.

Edward L. Kershaw, LEONARD & KERSHAW, Greeneville, Tennessee, for Appellant.

Before: COLE and GILMAN, Circuit Judges; BORMAN, District Judge. ^*

OPINION

BORMAN, District Judge.

Defendant-Appellant Gregory Lamont Hardin, convicted of narcotics and firearms charges, appeals the district court's sentencing decision to increase his offense level by four levels pursuant to United States Sentencing Guideline (U.S.S.G.) § 2K2.1(b)(5),¹ after concluding that Defendant possessed a firearm "in connection with" another felony offense.

This Court affirms the district court's determination that the United States had proved by a preponderance of the evidence that Hardin possessed a firearm in connection with another felony offense, to wit, possession with intent to distribute narcotics.

BACKGROUND

On June 16, 1999, Defendant Hardin was charged in a seven count indictment with four counts of distributing cocaine hydrochloride in violation of 21 U.S.C. § 841(a)(1), one count of possession with intent to distribute cocaine hydrochloride in violation of 21 U.S.C. § 841(a)(1), and two counts of being a felon in possession of a firearm/ammunition in violation of 18 U.S.C. § 922(g). On September 20, 1999, Defendant pleaded guilty to six of the seven counts: all four counts charging distribution of cocaine, the single count charging possession with intent to distribute cocaine, and a single count charging felon in possession of a firearm. The second felon in possession count, involving ammunition, was dismissed at the sentencing.

According to the agreed-upon factual basis for the plea to the four distribution counts (Counts 1-4), on the dates of October 22, October 30, November 4, and November 17, 1998, the defendant distributed cocaine hydrochloride to a confidential informant.

The factual basis for the other counts arose out of the simultaneous arrest of the defendant and search of his home on May 28, 1999. When law enforcement agents arrested Defendant, he and his wife were located in the bedroom. Defendant's wife consented to a search of the house, during which the agents found the following items in the bedroom: cocaine hydrochloride (Count 5: possession with intent to distribute cocaine), a Smith and Wesson .9mm pistol (Count 6: felon in possession of a firearm), and two ammunition magazines each containing seven rounds (Count 7: felon in possession of ammunition). According to the Presentence Investigation Report (PSR), the gun was found on a nightstand; a bag of marijuana was next to the gun; and the 54 grams of cocaine were also located in the bedroom. The gun was registered to Defendant's wife, Aimee Hardin.

Because Defendant's instant conviction involved pleas to multiple counts, and different criminal statutes, the U.S.S.G. requires grouping of the counts, using the most serious offense as a starting point. U.S.S.G. § 3D1.1. In the instant case, the PSR listed Count Six, Possession of a Firearm as a Convicted Felon under 18 U.S.C. § 922(g), as the most serious offense. The guideline applicable to 18 U.S.C. §922(g) is § 2K2.1(a)(4)(A), Unlawful Possession of Firearms or Ammunition, which states: "Base Offense Level . . . 20, if - (A) the defendant had one prior felony conviction of either a crime of violence or a controlled substance offense." Defendant's prior conviction was for attempted second degree murder; he had served eight years in prison.

The PSR recommended that Defendant receive a four level increase under U.S.S.G. § 2K2.1(b)(5) for possessing the gun in connection with another felony offense, to wit, narcotics. Defendant filed a timely objection to the proposed four level enhancement, asserting that there was no evidence that he had possessed or used the gun in connection with his drug distribution. Defendant further contended that it was significant that the gun was not owned by him and was merely coincidentally present.

The Government argued that the fact that Mr. Hardin had pled guilty to both possession with intent to distribute cocaine, and to being a felon in possession of a handgun - occurring on the same date, in the same room, at the same time - was sufficient to establish that he had used the gun in connection with a felony.

After conducting a sentencing hearing on November 29, 1999, the district court, citing United States v. Covert, 117 F.3d 940 (6th Cir. 1997), held that the Government had carried its burden of proof:

The undisputed facts are that, at the time of Mr. Hardin's arrest, the gun was found on the night stand beside Mr. Hardin's bed and the cocaine was stored in the same room.

The district court also found that Defendant had presented no evidence to show that the connection between the firearm and the narcotics was clearly improbable. The district court applied the four-level enhancement to Defendant's offense level under § 2K2.1(b)(5) to create a guideline sentencing range of 46-57 months, and sentenced him to forty-six months of incarceration. Defendant timely appealed from the final judgment.

Defendant's "Summary of the Argument" on appeal states that:

No evidence was ever offered by the government that the firearm was used in connection with the drug offenses. The Government relied solely upon the fact that the gun and drugs were in the same room. Nevertheless, the defendant was enhanced four-levels for using or possessing a firearm in connection with another felony offense apparently simply because the gun was present near the cocaine.

(Emphasis in original). Essentially, Defendant contends that the government must prove that the firearm served some purpose with respect to the felonious conduct - that its presence in the room with the drugs was not merely coincidental.

The Government contends that since the defendant pled guilty to simultaneously possessing a firearm and distributing cocaine, at the same time and place, and on the same date, it has satisfied its burden of proving that Defendant used the gun in connection with a felony. The Government cites to this Court's prior decision in United States v. Covert, 117 F.3d 940 (6th Cir. 1997), in which a gun containing the defendant's fingerprints was discovered in a container of marijuana².

STANDARD OF REVIEW

This Court has established the following standard for reviewing a district court's sentencing decision:

[T]his court will disturb the underlying factual findings only if they are clearly erroneous. 18 U.S.C. § 3742(e). Furthermore, the court of appeals must "give due deference to the district court's application of the guidelines to the facts." 18 U.S.C. § 3742(e). However, "[w]hether the facts found by the district court warrant the application of a particular guideline provision is a legal question and is to be reviewed de novo by the appellate court." Thus, in analyzing whether the 1991 drug conviction should count as relevant conduct, we review the district court's determination de novo.

United States v. Hill, 79 F.3d 1477, 1481 (6th Cir.), cert. denied, 519 U.S. 858 (1996) (citations omitted); accord United States v. Mise, 240 F.3d 527, 530-31(6th Cir. 2001). In United States v. Sanders, 162 F.3d 396 (6th Cir. 1998), we applied the standard of de novo review in interpreting different wording contained in § 2K2.1(b)(5): "another felony offense."

The instant appeal involves a legal interpretation of the guideline term "in connection with," insofar as the district court was required to apply the facts to that term, which is not defined in the guidelines. Under Sixth Circuit precedent, we would review de novo the district court's decision to apply the enhancement under § 2K2.1(b)(5).

However, the recent unanimous Supreme Court decision, Buford v. United States, __ U.S. __, 101 S. Ct. 1276 (2001), while self-described as raising a "narrow question of sentencing law," may well apply to the instant situation. The Bufordopinion opened with the following language:

This case raises a narrow question of sentencing law. What standard of review applies when a court of appeals reviews a trial court's Sentencing Guideline determination as to whether an offender's prior convictions were consolidated, hence "related," for purposes of sentencing? In particular, should the appeals court review the trial court's decision deferentially or de novo? We conclude, as did the Court of Appeals, that deferential review is appropriate, and we affirm.

Id. at 1278. In the instant case, we are reviewing a trial court's guidelines determination of whether the defendant's possession of narcotics was "in connection with" his firearm conviction. There is a significant similarity between the two case scenarios - application of uncontested facts to guideline language, "related" (Buford) and "in connection with" (Hardin, the instant case). Indeed, the word "related" is a synonym for "connection," and vice versa. Roget's Thesaurus II, Expanded Ed. at 203 (connection), 815 (related) (1988).

In Buford, the district court decided, with regard to the prior convictions, "that the drug case and the robbery cases had not been consolidated for sentencing, either formally or functionally." Id. at 1279. The Court of Appeals reviewed the District Court's decision deferentially, rather than de novo, and affirmed. The Supreme Court affirmed the Court of Appeals:

In light of the fact-bound nature of the legal decision, the comparatively greater expertise of the District Court, and the limited value of uniform court of appeals precedent, we conclude that the...