United States v. Greeno

• Decision Date: 21 May 2012
• Docket Number: No. 10–6279.,10–6279.
• Parties: UNITED STATES of America, Plaintiff–Appellee, v. Mark GREENO, Defendant–Appellant.
• Court: U.S. Court of Appeals — Sixth Circuit

679 F.3d 510

UNITED STATES of America, Plaintiff–Appellee,

v.Mark GREENO, Defendant–Appellant.

No. 10–6279.

United States Court of Appeals,Sixth Circuit.

May 21, 2012.

ON BRIEF:Charles P. Dupree, Chattanooga, Tennessee, for Appellant. Terra L. Bay, Assistant United States Attorney, Chattanooga, Tennessee, Luke A. McLaurin, Assistant United States Attorney, Knoxville, Tennessee, for Appellee.

Before: MOORE, GIBBONS, and ALARCÓN, Circuit Judges.^*

OPINION

ALARCÓN, Circuit Judge.

Defendant-appellant Mark Greeno appeals from the district court's judgment sentencing him to 87 months in prison for conspiracy with intent to distribute methamphetamine in violation of 21 U.S.C. § 841(a) and (b)(1)(A). Greeno contends that the district court erred when it applied a dangerous weapon enhancement to his sentence, pursuant to Section 2D1.1(b)(1) of the U.S. Sentencing Guidelines. Greeno also asserts that application of the Section 2D1.1(b)(1) dangerous weapon enhancement violated his Second Amendment right to keep and bear arms. For the reasons that follow, we affirm the district court.

I.

In May 2009, as part of an ongoing investigation of a methamphetamine trafficking conspiracy in Tennessee and Georgia, law enforcement officers conducted two controlled purchases of methamphetamine at Greeno's property. Within three days of the second controlled purchase, Officers Eric Allman, Toby Norris, and Dax McGowan executed a search warrant on Greeno's property, which contained a house, a recreational vehicle (“RV”), and a garage.¹

Officer Norris found a five-shot revolver between the bed and wall of Greeno's RV. The revolver was near drug paraphernalia, including black electrical tape that was similar to the packaging used on methamphetamine purchased by officers in other controlled purchases. Officer McGowan searched Greeno's garage and found a handgun in the laundry room. He also found an unloaded rifle and ammunition in a nearby tool room. A few yards outside the garage, officers found a canister of methamphetamine buried in the ground. Officers also found a smaller package of methamphetamine wrapped in black electrical tape outside Greeno's RV.

In January 2010, the Government charged Greeno, along with twenty-three other individuals, with, inter alia, conspiracy to distribute at least fifty grams of methamphetamine or at least five hundred grams of a mixture and substance containing methamphetamine in violation of 21 U.S.C. § 841(a) and (b)(1)(A). A few months later, Greeno pleaded guilty to the conspiracy charge pursuant to a written plea agreement. The district court dismissed the remaining count against Greeno pursuant to the plea agreement.

At Greeno's sentencing hearing, the district court adopted the presentence investigation report and applied the advisory Sentencing Guidelines in determining his sentence. The district court applied a two-level enhancement to Greeno's offense level for possession of a dangerous weapon during a drug offense, pursuant to Section 2D1.1(b)(1) of the U.S. Sentencing Guidelines. The application of this enhancement resulted in an overall offense level of 29, which increased his advisory Guidelines range from 70 to 87 months in prison to 87 to 108 months in prison.

At the sentencing hearing, Greeno objected to the application of the Section 2D1.1(b)(1) dangerous weapon enhancement. He argued that there was insufficient evidence connecting the firearms found on his property with his drug trafficking offense. He also contended that the firearms were for personal protection. In response, the Government presented testimony from Officers Allman, Norris, and McGowan regarding their search of Greeno's property and the controlled methamphetamine purchases conducted at Greeno's home. Greeno's counsel cross-examined the officers, but did not present any evidence at the sentencing hearing.

The district court concluded that the Government had met its burden of showing that Greeno possessed a dangerous weapon during his drug trafficking offense and that Greeno had failed to produce any evidence demonstrating that it was clearly improbable that the weapon was connected to his offense. Thus, the court overruled Greeno's objection to the Section 2D1.1(b)(1) dangerous weapon enhancement and sentenced him to 87 months in prison.

Greeno filed a timely notice of appeal on October 19, 2010, following entry of judgment on October 14, 2010. The district court had jurisdiction under 18 U.S.C. § 3231. We have jurisdiction under 28 U.S.C. § 1291.

II.

Greeno contends in this appeal that the district court erred by applying the Section 2D1.1(b)(1) dangerous weapon enhancement to his sentence because the Government did not present sufficient evidence to show that Greeno possessed a firearm in connection with his drug trafficking offense. He also maintains that the application of this enhancement violates his Second Amendment right to keep and bear arms. This Circuit reviews a district court's interpretation of the Sentencing Guidelines de novo and its “findings of fact at sentencing for clear error.” United States v. Baker, 559 F.3d 443, 448 (6th Cir.2009).

A.

Pursuant to Section 2D1.1(b)(1), a two-level enhancement may be added to the base offense level of a defendant convicted of a drug offense “[i]f a dangerous weapon (including a firearm) was possessed.” U.S. Sentencing Guidelines Manual § 2D1.1(b)(1) [hereinafter Sentencing Guidelines]. “The enhancement should be applied if the weapon was present, unless it is clearly improbable that the weapon was connected with the offense.” Id.§ 2D1.1 cmt. n.3(A).

Under Section 2D1.1(b)(1), the government has the burden of showing “by a preponderance of the evidence that ‘(1) the defendant actually or constructively “possessed” the weapon, and (2) such possession was during the commission of the offense.’ ” United States v. Catalan, 499 F.3d 604, 606 (6th Cir.2007) (quoting United States v. Hill, 79 F.3d 1477, 1485 (6th Cir.1996)). This Court has previously recognized that the 1991 amendments to the Sentencing Guidelines removed the requirement that the weapon be possessed during the commission of the crime. United States v. Faison, 339 F.3d 518, 520 (6th Cir.2003). “[A]ll that the government need show is that the dangerous weapon [was] possessed during ‘relevant conduct.’ ” Id.

This Court has also recognized that although the Government's burden contains “two separate inquiries, in most instances they collapse into a single factual determination because the weapon was present when the arrest took place or where the crime was committed.” United States v. Sanchez, 928 F.2d 1450, 1460 (6th Cir.1991), abrogated on other grounds by United States v. Jackson–Randolph, 282 F.3d 369 (6th Cir.2002). In such “instances, once the government proves a defendant was in possession of a weapon, its burden is satisfied.” Id.

Once the government meets its burden, “a [rebuttable] presumption arises that ‘the weapon was connected to the offense.’ ” United States v. Wheaton, 517 F.3d 350, 367 (6th Cir.2008) (quoting United States v. Hough, 276 F.3d 884, 894 (6th Cir.2002)). The burden then “shifts to the defendant to show that it was ‘clearly improbable’ that the weapon was connected to the offense.” Catalan, 499 F.3d at 606. A defendant must present evidence, not mere argument, in order to meet his or her burden. See Hough, 276 F.3d at 894 (“[S]peculation is not evidence and does not establish that it was ‘clearly improbable’ that [the defendant] possessed the firearms during the offense.”); see also Wheaton, 517 F.3d at 368 (“The bare assertion of Wheaton's counsel that the gun might simply have been for the lawful purpose of defending the residence is insufficient to sustain Wheaton's burden of showing it was ‘clearly improbable’ that the gun was related to the drug conspiracy.”).

This Court considers the following factors, none of which is alone controlling, when determining whether the application of a Section 2D1.1(b)(1) enhancement was appropriate:

(1) the type of firearm involved; (2) the accessibility of the weapon to the defendant; (3) the presence of ammunition; (4) the proximity of the weapon to illicit drugs, proceeds, or paraphernalia; (5) the defendant's evidence concerning the use of the weapon; and (6) whether the defendant was actually engaged in drug-trafficking, rather than mere manufacturing or possession.

United States v. Edmonds, 9 Fed.Appx. 330, 332 (6th Cir.2001) (citing United States v. Calhoun, 49 F.3d 231, 237 (6th Cir.1995); United States v. Chalkias, 971 F.2d 1206, 1217 (6th Cir.1992); United States v. McGhee, 882 F.2d 1095, 1099 (6th Cir.1989)).

The district court did not err in concluding that the Government presented sufficient evidence to meet its burden. The search was conducted only a few days after the controlled purchase of methamphetamine at Greeno's property. The firearms were found throughout the property in relatively close proximity to drugs and drug paraphernalia. Thus, regardless of where Greeno was on the property, he had ready access to the firearms. Greeno does not dispute that he possessed the firearms, nor that the firearms were found on his property during the existence of the drug conspiracy.

Greeno nonetheless contends that the district court erred by applying the Section 2D1.1(b)(1) enhancement because there was no direct evidence showing he possessed a firearm when he sold drugs or that the firearms were found with drugs or drug paraphernalia. Greeno relies on United States v. Jock, 239 Fed.Appx. 126 (6th Cir.2007), Baker, 559 F.3d 443,United States v. Woods, 604 F.3d 286 (6th Cir.2010), and United States v. Wright, 426 Fed.Appx. 412 (6th Cir.2011), to support this contention.

Greeno's reliance on Jock is misplaced. Greeno referred to docket number 06–5595 in citing Jock. That docket number is associated with a Sixth Circuit decision affirming the defendant's resentencing after an earlier remand in 2005. Jock, 239 Fed.Appx. at 127...