United States v. Cannon , 589 F.3d 514 ( 2009 )

United States Court of Appeals
For the First Circuit
No. 08-1156
UNITED STATES OF AMERICA,
Appellee,
v.
RASHIEK T. CANNON,
Defendant, Appellant.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS
[Hon. Morris E. Lasker, U.S. District Judge]
Before
Torruella, Ripple,* and Boudin,
Circuit Judges.
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.
December 23, 2009
*
Of the Seventh Circuit, sitting by designation.
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
1
We draw these facts from the uncontested portions of the
presentence report (PSR). See United States v. Brewster, 127 F.3d
22, 24 (1st Cir. 1997).
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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.
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.
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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
2
The record does not disclose what charges, if any, were brought
against Allen and Báez.
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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 plea.
Later, at the sentencing hearing, the government
recommended that Cannon receive full credit for acceptance of
responsibility and a sentence at the low end of the Guidelines
range. Cannon's attorney reasserted his objection to the § 2K2.1
(b)(6) enhancement and, in his allocution, Cannon denied that he
had "anything to do with the drugs they found." The government
countered that circumstantial evidence supported the enhancement,
stating "there is a very strong argument that the defendant was in
constructive possession of the drugs."
The district court found that, while it was "not possible
to decide the question with absolute certainty or, necessarily
beyond a reasonable doubt," the evidence supporting the enhancement
was "very strong against the defendant." The court concluded that
"a fair determination of the [enhancement issue] is that it be
decided by putting a sentence at the very bottom of the
Guidelines." Accordingly, Cannon was sentenced to seventy months'
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imprisonment, at the low end of the recommended range. As the
court noted, the sentence "[took] into consideration that [Cannon]
was found with drugs and that that was related to the offense in
this case." This appeal followed.
II. Discussion
We review the district court's interpretation of the
Sentencing Guidelines de novo, factual findings for clear error,
and its application of the Guidelines to a particular set of facts
on a "sliding scale." United States v. Sicher, 576 F.3d 64, 71 &
n.6 (1st Cir. 2009). Where, as here, a defendant challenges the
factual predicate supporting the district court's application of a
sentencing enhancement, "we ask only whether the court clearly
erred in finding that the government proved the disputed fact by a
preponderance of the evidence." United States v. Luciano, 414 F.3d
174, 180 (1st Cir. 2005). "[W]here there is more than one
plausible view of the circumstances, the sentencing court's choice
among supportable alternatives cannot be clearly erroneous."
United States v. Campusano, 556 F.3d 36, 39 (1st Cir. 2009)
(internal quotation marks omitted).
Pursuant to U.S.S.G. § 2K2.1(b)(6), a defendant is
subject to a four-level increase in his base offense calculation if
he "used or possessed any firearm or ammunition in connection with
another felony offense; or possessed . . . any firearm . . . with
knowledge, intent, or reason to believe that it would be used or
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possessed in connection with another felony offense." We have held
that, as used in this provision of the Guidelines, "the phrase 'in
connection with' should be interpreted broadly." United States v.
Thompson, 32 F.3d 1, 7 (1st Cir. 1994).
Although there must be a causal or logical
relation or sequence between the possession
and the related offense, and mere coincidental
possession is insufficient, we will find that
a firearm has been used "in connection with"
an offense if the possession has the potential
to aid or facilitate the other crime.
United States v. Peterson, 233 F.3d 101, 111 (1st Cir. 2000).
"[I]n the case of a drug trafficking offense in which a firearm is
found in close proximity to drugs, . . . [the enhancement] is
warranted because the presence of the firearm has the potential of
facilitating another felony offense." U.S.S.G. § 2K2.1(b)(6),
application note 14.
In this appeal, Cannon argues that the § 2K2.1(b)(6)
enhancement should not have applied because the record is
insufficient to support the inference that he knew about the drugs
or, in the alternative, that the drugs were intended for anything
but personal consumption. While Cannon acknowledges that he was
found with the firearm in "close proximity" to drugs, he emphasizes
the absence of direct proof linking him to the drugs or drug
distribution, including evidence as to drug quantity, whether the
drugs found in the SUV were in plain view, or whether they were
otherwise readily accessible to him in the front seat. He
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maintains that his possession of the firearm was merely
coincidental.
While direct proof of Cannon's knowledge and intent
regarding the drugs may be lacking, "[a] sentencing court is
entitled to rely on circumstantial evidence, and draw plausible
inferences therefrom" in determining whether an enhancement should
apply. United States v. Marceau, 554 F.3d 24, 32 (1st Cir. 2009)
(internal citations omitted); see Sicher, 576 F.3d at 71. Indeed,
in narcotics cases, we have often recognized that knowledge and
intent "'must be proved largely by circumstantial evidence.'"
United States v. Hernández, 218 F.3d 58, 66 (1st Cir. 2000)(quoting
United States v. Valencia, 907 F.2d 671, 678 (7th Cir. 1990)). In
this case, the record reflects that Cannon, no stranger to the drug
trade, was arrested with a loaded revolver while traveling in a
vehicle in which police found multiple packages of drugs, as well
as a substantial amount of cash among the occupants, all of whom
indicated they were unemployed. These circumstantial facts, taken
together, were sufficient to permit the district court to
reasonably infer under a preponderance standard that Cannon had
knowledge of the drugs and that the drugs were intended for sale
and not personal consumption. As we discuss, these findings are
intertwined.3
3
The district court determined that Cannon was "found with drugs"
and that the firearm was possessed "in the presence at least of
drug transactions." These determinations necessarily encompass
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First, the large quantity of cash found on the driver,
and the lesser but still substantial amounts found on Cannon and
Báez, support the inference that the car's occupants were engaged
in the sale, rather than casual use, of drugs. See, e.g., United
States v. Ayala-García, 574 F.3d 5, 13 (1st Cir. 2009) (finding
that "[t]he large amount of cash," viz., $1,068, found in bag
containing individually-packaged drugs supports inference that
drugs were intended for distribution); United States v.
Mangual-Santiago, 562 F.3d 411, 425 (1st Cir. 2009) (explaining
that "large amounts of cash," such as the $1000 found on the
defendant, "are . . . probative of the intent to distribute
narcotics" (internal quotation marks omitted)).
We have often held that firearms, too, are probative of
an intent to distribute narcotics. See, e.g., United States v.
Rivera-Calderón, 578 F.3d 78, 94 (1st Cir. 2009) (evidence that
defendant carried firearm in vicinity of armed drug conspiracy
supports inference of membership in the conspiracy; "[i]n drug
findings that Cannon knew about the drugs in the SUV and that those
drugs were intended for distribution and not personal consumption.
See Sicher, 576 F.3d at 71 (explaining that district courts need
not "specify the precise basis for the application of [an]
enhancement" because "a sentencing court's reasoning can often be
inferred by comparing what was argued by the parties or contained
in the pre-sentence report with what the judge did")(internal
quotation marks and alterations omitted); see also United States v.
Tavano, 12 F.3d 301, 307 (1st Cir. 1993). Because we find these
facts sufficient to permit application of the enhancement, we do
not address whether the district court found, or the government
proved, that Cannon was in constructive possession of the drugs, an
issue which the parties have not briefed in any detail.
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trafficking firearms have become 'tools of the trade' and thus are
probative of the existence of a drug conspiracy"). While we
acknowledge that a gun's physical proximity to drugs alone may be
insufficient to justify a court in applying the enhancement in all
circumstances, cf. United States v. Sturtevant, 62 F.3d 33, 34-35
(1st Cir. 1995)(per curiam)(citing as an example of coincidental
possession "an accountant who, while forging checks, happens to
have a gun in the desk drawer"), the district court was not
required to turn a blind eye to the logical relationship between
the presence of multiple packages of drugs, the loaded firearm, and
the large amount of cash in determining whether the drugs found in
the SUV were intended for distribution or personal use. See, e.g.,
United States v. Ford, 22 F.3d 374, 383 (1st Cir. 1994)
("[F]irearms and large amounts of cash are each probative of the
intent to distribute narcotics."); see also United States v.
Fisher, 912 F.2d 728, 731 (4th Cir. 1990)("The large amount of cash
found in [the defendant's] possession and his ownership of handguns
is . . . circumstantial evidence of his involvement in narcotics
distribution.").
We also find Cannon's history of drug distribution
relevant to the question of whether he was, as he claims, ignorant
of the drugs and their intended distribution. See United States v.
Richardson, 510 F.3d 622, 628 (6th Cir. 2007) (where defendant "had
two prior convictions for possession with intent to distribute
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controlled substances and less than four months after the instant
offense, he was convicted again for possession and distribution of
marijuana . . . he had an established knowledge and participation
in drug trafficking activity" which supports inference that
defendant possessed gun "in connection with" drugs found in close
proximity); United States v. LePage, 477 F.3d 485, 489 (7th Cir.
2007) (defendant's prior sale of drugs "consistent with an
inference that he is a trafficker"). The PSR indicates that in
March 2002 Cannon was and charged with possession of, with intent
to distribute, crack cocaine, after he was found with a bag of
crack, three bags of marijuana, and $2,485 in cash -– circumstances
strikingly similar to those of the instant offense. The charge was
later reduced to simple possession, and Cannon was convicted. The
PSR also reveals that, just three months after his arrest in this
case, Cannon was again arrested and subsequently convicted for
possession of, with intent to distribute, crack cocaine. This
history further supports the inference that Cannon was no idle
passenger at the time of this offense, and that his possession of
the loaded gun was not mere happenstance. The district court was
permitted to use its common sense to conclude that Cannon's loaded
gun and the drugs found in the SUV were the tools of a single,
shared criminal endeavor. Cf. United States v. Batista-Polanco,
927 F.2d 14, 18 (1st Cir. 1991)("[I]t runs counter to human
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experience to suppose that criminal conspirators would welcome
innocent nonparticipants as witnesses to their crimes.").
In opposing the enhancement, Cannon's principal theme is
that the record in this case fails to reflect direct evidence of
knowledge, or an intent to distribute, of the sort present in other
cases where § 2K2.1(b)(6) enhancements have been upheld. Thus,
Cannon emphasizes that he has never admitted to knowledge of the
drugs, compare United States v. Gonzáles, 506 F.3d 940, 947 (9th
Cir. 2007); that no witness ever saw him involved in drug activity
related to the instant offense, compare Thompson, 32 F.3d at 7;
that there is no evidence that the drugs were visible or readily
accessible to him, or found alongside certain paraphernalia
associated with drug distribution, such as scales or ledgers,
compare Peterson, 233 F.3d at 104; and, finally, that there is no
evidence as to the nature of his relationship with Allen and Báez
sufficient to permit an inference of a close association, compare
Richardson, 510 F.3d at 627-28 (attributing knowledge to defendant
of drugs found in his girlfriend's purse). However, the cases on
which Cannon relies do not purport to lay a minimum evidentiary
threshold for application of an enhancement under § 2K2.1(b)(6).
Rather, as we have explained, the issue presented for review is
whether the district court clearly erred in finding, by a
preponderance of the evidence, that Cannon knew about the drugs and
that the drugs were intended for distribution. Based on the
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considerations discussed above, we conclude that the totality of
evidence before the district court plausibly supports such
conclusions.
Accordingly, because we find that the record supports the
inference Cannon possessed the loaded gun knowing that there were
drugs in the SUV which were intended for sale, we hold that
Cannon's possession of the firearm had the potential to facilitate
the offense of distribution -– by emboldening the enterprise,
aiding the collection of a drug debt, or in any number of
foreseeable ways –- and was therefore "connect[ed] with" that
felony for purposes of the enhancement. See, e.g., Thompson, 32
F.3d at 8 (noting that "the usual case in which the § 2K2.1
[enhancement] is used to apply drug guidelines to a firearms
offender is where the defendant used a firearm for protection
during a drug transaction or had the firearm available to protect
his supply of drugs"); see also United States v. Loney, 219 F.3d
281, 288 (3d Cir. 2000) ("[W]hen a defendant has a loaded gun on
his person while caught in the midst of a crime that involves
in-person transactions, . . . a district judge can reasonably infer
that there is a relationship between the gun and the offense
. . . ." (citing Sturtevant, 62 F.3d at 33)).4
4
Because we find that the district court plausibly determined
that the drugs were intended for distribution, we decline to
address the alternative argument raised by the government that
Cannon's possession of the gun in connection with the felony of
simple possession of drugs for personal use would support
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Affirmed.
enhancement under § 2K2.1(b)(6). See LePage, 477 F.3d at 489(noting that "possessing a gun while engaged in the casual use of
drugs might not give rise to the inference that the gun was
possessed in connection with the drugs").
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