[PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT FILED
________________________ U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
No. 03-11905 SEPTEMBER 7, 2006
________________________ THOMAS K. KAHN
CLERK
D. C. Docket No. 02-00045-CR-19-1
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
NEYAUNTEU STALLINGS,
a.k.a. "Coolio",
MILTON LUCAS,
RICHARD ALLEN HEPBURN,
a.k.a. "Al",
WALTER DEAN JOHNSON,
a.k.a. "Walt",
Defendants-Appellants.
________________________
No. 03-12620
________________________
D. C. Docket No. 02-00045-CR-11-1
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
EUSEBIO PHELPS, a.k.a. "Ebbie",
Defendant-Appellant.
________________________
No. 04-10882
________________________
D. C. Docket No. 02-00045-CR-8-1
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
ALEX SESSION,
Defendant-Appellant.
________________________
Appeals from the United States District Court
for the Northern District of Georgia
_________________________
(September 7, 2006)
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Before ANDERSON, BARKETT and CUDAHY,* Circuit Judges.
CUDAHY, Circuit Judge:
This appeal stems from a complicated criminal drug conspiracy centered in
Atlanta, Georgia. In January 2002, a grand jury returned an indictment charging
more than twenty defendants in a conspiracy involving possession with intent to
distribute cocaine hydrochloride and heroin. Six defendants are before us on
appeal, including Walter Dean Johnson. These six defendants initially entered
pleas of not guilty; one later changed his plea. The district court sentenced all the
defendants to various prison sentences, which they timely appealed. We resolved
most of the claims raised in this appeal by way of a separate unpublished opinion.
United States v. Stallings et al., F.3d (11th Cir. 2006). H ere w e
consider only defendant Johnson’s argument that the district court erred in
enhancing his sentence for possession of a firearm under U.S.S.G. § 2D1.1(b)(1).
I. BACKGROUND
A jury convicted Johnson of distributing cocaine in violation of
21 U.S.C. §
841(a)(1) and (b)(1)(C) (Count 1). The district court sentenced him to 168 months,
*
The Honorable Richard D. Cudahy, Circuit Court Judge for the United States Court of
Appeals for the Seventh Circuit, sitting by designation.
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which included an enhancement for firearms possession and for obstruction of
justice. The district imposed the firearms enhancement based upon the fact that the
police found three pistols in Johnson’s home, which they searched when they
arrested him for his role in the narcotics conspiracy. Johnson shared that home
with at least three other adults; the government introduced no evidence that
possession of the pistols was somehow unlawful. Additionally, the police found
no evidence of drug paraphernalia in Johnson’s home.
II. FIREARMS ENHANCEMENT
For sentencing purposes, possession of a firearm involves a factual finding,
which we review for clear error. United States v. Alred,
144 F.3d 1405, 1420 (11th
Cir. 1998); United States v. Geffrard,
87 F.3d 448, 452 (11th Cir. 1996). The
federal Sentencing Guidelines provide that, if a dangerous weapon (including a
firearm) was possessed during a drug-trafficking offense, then a defendant’s
offense level should be increased by two levels, unless it is clearly improbable that
the weapon was connected to the offense. United States v. Audain,
254 F.3d 1286,
1289 (11th Cir. 2001). To justify a firearms enhancement, the government must
either establish by a preponderance of the evidence that the firearm was present at
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the site of the charged conduct or prove that the defendant possessed a firearm
during conduct associated with the offense of conviction.
Id. If the government is
successful in meeting this initial burden, then the evidentiary burden shifts to the
defendant, who must demonstrate that a connection between the weapon and the
offense was “clearly improbable.”
Id. (citing United States v. Hall,
46 F.3d 62, 63
(11th Cir. 1995).
In deciding whether the government satisfied its initial burden, relevant
conduct includes “acts ‘that were part of the same course of conduct or common
scheme or plan as the offense of conviction.’” United States v. Smith,
127 F.3d
1388, 1390 (11th Cir. 1997) (quoting U.S.S.G. § 1B1.3(a)(2)). More specifically,
the government must show that the firearm had “some purpose or effect with
respect to the drug trafficking crime; its presence or involvement cannot be the
result of accident or coincidence.” United States v. Timmons,
283 F.3d 1246, 1251
(11th Cir. 2002) (citing United States v. Smith,
508 U.S. 223, 238 (1993)).
Here, not one witness said anything about Johnson’s using or carrying a
firearm during any of the drug transactions for which he was convicted. Nor did
the government produce any evidence that Johnson possessed the firearms in
question here during conduct associated with drug-trafficking activities. The only
evidence that the government introduced was that the police found three handguns
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in Johnson’s home—where no one suggested that any activities related to the
conspiracy ever took place.
Although “‘[e]xperience on the trial and appellate benches has taught that
substantial dealers in narcotics keep firearms on their premises as tools of the
trade,’” United States v. Alvarez,
755 F.2d 830, 849 (11th Cir. 1985) (citing
United States v. Perez,
648 F.2d 219, 224 (5th Cir. Unit B 1981)), the mere fact
that a drug offender possesses a firearm does not necessarily give rise to the
firearms enhancement. The government must show some nexus beyond mere
possession between the firearms and the drug crime. See, e.g., Timmons,
283 F.3d
at 1251 (noting that the “‘in relation to’ language ‘allay[s] explicitly the concern
that a person could be’ punished under § 924(c)(1) for committing a drug
trafficking offense ‘while in possession of a firearm’ even though the firearm’s
presence is coincidental or entirely ‘unrelated’ to the crime” (citing Smith v. United
States,
508 U.S. 223, 238 (1993))); United States v. Siebe,
58 F.3d 161, 162–63
(5th Cir. 1995) (concluding that a firearms enhancement was not justified because,
although police found ninety firearms in the defendant’s home, they found no
evidence there of drug paraphernalia or drug trafficking activities); United States v.
Salery,
119 F. Supp. 2d 1268, 1275 (M.D. Ala. 2000) (synthesizing cases and
concluding that the government must prove that the weapon was found in the same
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location as the drugs or that the weapon was part of conduct involved in a drug
transaction).
Here, because the government provided no evidence connecting the pistols
found in Johnson’s home to his alleged drug activity and because the government
never addressed the possibility that the weapons belonged to any of the other adults
residing in his home, the government has failed to meet its burden. Applying the
firearms enhancement on these facts is therefore clearly erroneous.
III. CONCLUSION
Accordingly, the judgment of the district court is A FFIRMED in all respects but in
the application of the firearms enhancer in computing Johnson’s sentence, which is
vacated. Johnson’s case is remanded to the district court for resentencing
consistent with both this opinion and our related unpublished disposition.
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