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[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
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No. 18-11404
Non-Argument Calendar
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D.C. Docket No. 5:17-cr-00027-RH-4
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
DECOREY WALKER,
Defendant-Appellant.
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Appeal from the United States District Court
for the Northern District of Florida
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(April 2, 2019)
Before MARCUS, WILSON, and ROSENBAUM, Circuit Judges.
PER CURIAM:
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After pleading guilty, Decorey Walker was sentenced to serve 66 months in
prison for conspiring to distribute and possess with intent to distribute heroin and
methamphetamine, in violation of
21 U.S.C. §§ 841(a)(1), (b)(1)(C), and 846. He
now appeals his sentence, arguing that, when calculating his guideline range, the
district court erred in these two ways: (1) applying a two-level increase for
possession of a firearm, see U.S.S.G. § 2D1.1(b)(1); and (2) denying his request for
a mitigating-role reduction, see U.S.S.G. § 3B1.2. The government concedes error
with regard to the firearm enhancement, but it argues that the role reduction was
properly denied. We agree with the parties that the firearm enhancement was applied
in error, but we affirm the court’s denial of a role reduction.
I.
In December 2015, law enforcement began an investigation following
multiple heroin-overdose deaths and near-deaths in the Panama City, Florida, area.
Through the investigation, which included search warrants, wiretaps, and
undercover operations, law enforcement identified a loose network of dealers who
sold heroin to users or lower-level dealers.
Walker was one of these lower-level dealers. He was arrested in January 2017
in possession of 0.2 grams of heroin and 7 grams of methamphetamine. In addition,
his cell phone contained evidence of heroin and methamphetamine transactions with
at least 25 different people in the Panama City area. In the following months,
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intercepted communications demonstrated that Walker was distributing heroin for at
least one of the higher-level dealers.
On June 19, 2017, Walker was in a car driven by a codefendant, John Elliott,
when they were pulled over for an inoperable light by a Bay County Sheriff’s Office
deputy. Before the car stopped, the deputy observed the passenger throwing objects
inside the vehicle. Then, when the car came to a stop, the deputy saw Walker exit
the car on the passenger side and take off running. During a consent search of the
car, the deputy found a firearm underneath the passenger seat. Elliot, who is
described in the record as a drug user who occasionally sold drugs to support his
own habit, was arrested for possession of drug paraphernalia.
In calculating Walker’s recommended guideline range, the presentence
investigation report (“PSR”) applied an enhancement for possession of a firearm
during the conspiracy, see U.S.S.G. § 2D1.1(b)(1), which increased his offense level
by two levels. The PSR also stated that Walker was not entitled to a reduction for a
mitigating role in the offense, see U.S.S.G. § 3B1.2.
Walker objected to these guideline issues, among others. With regard to the
firearm enhancement, Walker argued that there was no evidence showing the
firearm’s connection to the conspiracy. As for his role in the offense, Walker
maintained that a reduction was appropriate because he was a low-level dealer who
worked for those higher in the conspiracy in order to support his own drug habits.
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Walker presented his objections at sentencing. The government responded
that the firearm enhancement was appropriate because “Elliot had some drugs on
him”—specifically heroin—at the traffic stop, and that Elliott had “indicated or
stated to the arresting officer that it was Mr. Walker’s gun.” (On appeal, however,
the government concedes that there is no evidence to support these assertions.) The
government also noted that Walker ran from the scene, and the gun was found under
his seat. The government did not expressly address Walker’s role in the offense.
The district court overruled Walker’s objections. Stating that “guns and drugs
go together,” the court found that the gun, whether it was Walker’s or Elliott’s, was
reasonably foreseeable to Walker given his and Elliott’s involvement in “a
significant drug conspiracy for some period of time” and the Guidelines’ recognition
that “there’s generally a connection” “when guns and drugs are present at the same
location.” The court also cited Walker’s flight from the car, which “indicate[d] that
he understood drug activity to be afoot” and “might even support” an inference of
knowledge about the gun. As for Walker’s role in the offense, the court found that
he had been “held responsible for the amount of drugs that was part of his own
criminal undertaking,” and that his “role as to those drugs was not minor” within the
meaning of the Guidelines manual.
Based on these rulings, the district court calculated Walker’s guideline range
at 57 to 71 months of imprisonment. After hearing from the parties and considering
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the PSR and the
18 U.S.C. § 3553(a) sentencing factors, the court imposed a
sentence of 66 months. Walker now appeals.
II.
We review for clear error the determination that a defendant possessed a
firearm for purposes of U.S.S.G. § 2D1.1(b)(1). 1 United States v. George,
872 F.3d
1197, 1204 (11th Cir. 2017). “Although review for clear error is deferential, a
finding of fact must be supported by substantial evidence.” United States v.
Robertson,
493 F.3d 1322, 1330 (11th Cir. 2007). Where a district court bases a
sentencing decision on a factual finding without adequate support in the record, we
will vacate the sentence and remand, unless the error is harmless. United States v.
Barner,
572 F.3d 1239, 1251 (11th Cir. 2009); see Williams v. United States,
503
U.S. 193, 203 (1992) (“[O]nce the court of appeals has decided that the district court
misapplied the Guidelines, a remand is appropriate unless the reviewing court
concludes, on the record as a whole, that the error was harmless . . . .”).
The guideline for drug-trafficking offenses, § 2D1.1, provides for a two-level
increase to the offense level when “a dangerous weapon (including a firearm) was
possessed.” U.S.S.G. § 2D1.1(b)(1). To justify this sentencing enhancement, “the
government bears the initial burden of showing, by a preponderance of the evidence,
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The government’s concession of error on this issue is “entitled to and given great weight,
but [it] do[es] not relieve [us] of the performance of the judicial function.” United States v. Esprit,
841 F.3d 1235, 1237 n.1 (11th Cir. 2016) (quotation marks omitted).
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that a firearm was ‘present’ at the site of the charged conduct or that the defendant
possessed it during conduct associated with the offense of conviction.” George, 872
F.3d at 1204. This burden requires a showing “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.” Id. (quotation marks omitted). After the
government meets its initial burden, the burden shifts to the defendant to “establish
that a connection between the weapon and the offense was clearly improbable.” Id.
(quotation marks omitted); see U.S.S.G. § 2D1.1, cmt. n.11(A).
The firearm enhancement “may be applied when the firearm is possessed by
a co-conspirator.” United States v. Pham,
463 F.3d 1239, 1245 (11th Cir. 2006). If
possession is by someone other than the defendant, the government must prove four
elements: “(1) the possessor of the firearm was a co-conspirator, (2) the possession
was in furtherance of the conspiracy, (3) the defendant was a member of the
conspiracy at the time of possession, and (4) the co-conspirator possession was
reasonably foreseeable by the defendant.”
Id. (quotation marks omitted).
Although we have recognized that “drugs and guns go together,” United
States v. Lopez,
649 F.3d 1222, 1242 (11th Cir. 2011), “the mere fact that a drug
dealer possesses a firearm does not necessarily give rise to the firearms
enhancement,” United States v. Stallings,
463 F.3d 1218, 1221 (11th Cir. 2006). The
burden is on the government to show that there is “some nexus beyond mere
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possession” between the crime and the firearm.
Id. In Stallings, for example, this
Court held that the government failed to meet its burden “because the government
provided no evidence connecting the pistols found in [the defendant’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.”
Id.
Here, we agree with Walker and the government that the district court clearly
erred in applying the § 2D1.1(b)(1) enhancement. The government failed to show
that there is “some nexus beyond mere possession” between the drug conspiracy and
the firearm. See id. The district court appears to have based its decision on the
government’s assertion that drugs were found in the car during the coincidental
traffic stop, which may have been enough to establish the required nexus. But the
government now concedes, and we agree, that there is no evidence in the record to
support the presence of drugs in the car, nor does the record reveal any other
connection between the conspiracy and the firearm. Accordingly, the government
failed to meet its initial burden of showing “that the firearm had some purpose or
effect with respect to the drug trafficking crime.” George, 872 F.3d at 1204. We
therefore vacate and remand for resentencing without the § 2D1.1(b)(1)
enhancement.
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III.
We review for clear error a district court’s determination of the defendant’s
role in the offense. United States v. De Varon,
175 F.3d 930, 946 (11th Cir. 1999)
(en banc). “Clear error review is deferential, and we will not disturb a district court’s
findings unless we are left with a definite and firm conviction that a mistake has
been committed.” United States v. Monzo,
852 F.3d 1343, 1345 (11th Cir. 2017)
(quotation marks omitted). The defendant bears the burden of proving that he is
entitled to a proposed mitigating-role reduction.
Id.
A defendant who has a mitigating role in an offense may receive a decrease
in his offense level. See U.S.S.G. § 3B1.2. Under § 3B1.2, courts should apply a
two-level decrease for a “minor participant,” a four-level decrease for a “minimal
participant,” and a three-level decrease for someone in between a minor and minimal
participant. Id. Walker claims that he was a “minor participant,” which means a
participant “who is less culpable than most other participants, but whose role could
not be described as minimal.” Id., cmt. n.5.
Under our en banc decision in DeVaron, “[t]wo principles guide the
determination of whether a defendant played a minor role in the criminal scheme:
(1) ‘the defendant’s role in the relevant conduct for which [he] has been held
accountable at sentencing,’ and (2) ‘[his] role as compared to that of other
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participants in [his] relevant conduct.’” United States v. Presendieu,
880 F.3d 1228,
1249 (11th Cir. 2018) (quoting DeVaron,
175 F.3d at 940).
When evaluating a defendant’s role in the offense, the district court must
consider the totality of the circumstances. U.S.S.G. § 3B1.2, cmt. n.3(C). According
to § 3B1.2’s commentary, the factors courts should consider include “the degree to
which the defendant understood the scope and structure of the criminal activity”;
“the degree to which the defendant participated in planning or organizing the
criminal activity”; “the degree to which the defendant exercised decision-making
authority”; “the nature and extent of the defendant’s participation in the commission
of the criminal activity”; and “the degree to which the defendant stood to benefit
from the criminal activity.” Id.
Here, Walker has not shown that the district court clearly erred in declining to
apply a minor-role reduction. Although Walker asserts that the court failed to
consider his role in the larger conspiracy, the court correctly looked only to whether
he “played a relatively minor role in the conduct for which [he] has already been
held accountable—not a minor role in any larger criminal conspiracy.” See De
Varon,
175 F.3d at 944. Furthermore, while Walker may have been somewhat less
culpable in the relevant conduct than others, like the higher-level dealer he
distributed heroin for, we cannot say that the court clearly erred in finding that he
was not entitled to a reduction. The PSR described the conspiracy as a loose
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“network” with no real hierarchy or supervisory roles, and Walker bought drugs
from and sold drugs to numerous people. On the whole, we are not left with a
definite and firm conviction that the district court made a mistake. See Monzo, 852
F.3d at 1345. Accordingly, we affirm the court’s denial of a minor-role reduction.
AFFIRMED IN PART, VACATED IN PART AND REMANDED.
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