United States v. Fosque Denmark ( 2021 )

PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
No. 20-2267
UNITED STATES OF AMERICA
v.
FOSQUE KINTE DENMARK,
Appellant
Appeal from the United States District Court
for the Middle District of Pennsylvania
(D.C. Criminal Action No. 1-19-cr-00015-001)
District Judge: Honorable Sylvia H. Rambo
Argued on March 11, 2021
Before: SMITH, Chief Judge, McKEE and AMBRO, Circuit
Judges
(Opinion filed: September 10, 2021)
Quin M. Sorenson (Argued)
Frederick W. Ulrich
Office of Federal Public Defender
100 Chestnut Street, Suite 306
Harrisburg, PA 17101
Counsel for Appellant
Daryl F. Bloom (Argued)
Stephen R. Cerutti, II
Office of United States Attorney
Middle District of Pennsylvania
228 Walnut Street, P.O. Box 11754
220 Federal Building and Courthouse
Harrisburg, PA 17108
Counsel for Appellee
OPINION OF THE COURT
AMBRO, Circuit Judge
In United States v. Perez, 5 F.4th 390 (3d Cir. 2021), we
considered whether spatial proximity between firearms and
drugs is sufficient to connect the firearms to a drug offense
2
under the Sentencing Guidelines.1 This case presents the
inverse issue: whether spatial proximity of guns to drugs is
necessary to establish such a connection under another
Guideline provision, U.S.S.G. § 2D1.1(b)(1).2 We have
already concluded that it is not. United States v. Drozdowski,
313 F.3d 819, 823 (3d Cir. 2002). Although the connection in
this case is so tenuous as to place it on the outer edge of the
sentencing enhancement, defendant Fosque Kinte Denmark
has not carried his burden of proving that the connection was
clearly improbable, which is the test we apply. We thus affirm
the District Court’s application of the enhancement.
I. BACKGROUND
In July 2018, Pennsylvania police intercepted a
suspicious package that had been shipped from California to
York, Pennsylvania. The package contained five pounds of
methamphetamine. Police later determined that Denmark
shipped the package.
In December 2018, law enforcement recorded a
FaceTime call with Denmark. During the call, Denmark
confirmed his involvement with the July 2018 shipment. The
caller ordered an additional three pounds of meth from
1
The provision there was U.S.S.G. § 2K2.1(b)(6)(B), which
requires a four-level sentencing enhancement where a
defendant “used or possessed any firearm . . . in connection
with another felony offense.”
2
We use “guns,” “firearms,” and “weapons” interchangeably
here, though this Guideline applies to all “dangerous
weapon[s].” Id.
3
Denmark, who was to ship the drugs to York. When the
package arrived in York, he confirmed its delivery via phone.
The meth in the package was in a “heat-sealed bag” wrapped
in several layers of shrink wrap. App. at 60, Hr’g Tr. 27:6–19.
In January 2019, police carried out a search warrant for
Denmark’s residence. They confirmed that Denmark had
conducted the December 2018 call in that location, as the
residence matched his background during the call. Police did
not recover any drugs, but they did find stashes of firearms and
drug paraphernalia in various parts of the house: a semi-
automatic assault rifle and shotgun, both unloaded (found
under a bed in a second-story bedroom); two handguns, one
loaded and one unloaded (found in a safe in the second-story
bedroom’s closet); a heat-sealed plastic bag, an empty box that
had contained more heat-sealed bags, and shrink wrap
matching the packaging on the meth shipments (found in duffel
bags in a first-story closet and the garage); a gun scope (also
found in a duffel bag on the first floor); and a bullet-proof vest
(found in a container in the garage).
Law enforcement also found several loaded and
unloaded magazines for the handguns and the assault rifle
(including three high-capacity magazines) and over 900 rounds
of ammunition (including 835 loose rounds and 74 rounds
loaded in magazines).3 Some of these items were in the
bedroom where the guns were located.
3
At sentencing the Government asserted the stash also
included armor-piercing rounds, but it later conceded this was
incorrect. The ammunition did, however, include flammable
rounds that could ignite a target on impact.
4
The grand jury indicted Denmark on two counts of
distribution and possession with intent to distribute at least 500
grams of meth, in violation of 21 U.S.C. § 841(a)(1) and
(b)(1)(A)(viii). Count 1 concerned the July 2018 shipment and
Count 2 the December 2018 shipment. Denmark pled guilty to
Count 2 in exchange for the dismissal of Count 1 and a three-
level reduction for acceptance of responsibility.
At sentencing Probation calculated Denmark’s offense
level as 35, which gave a Guidelines imprisonment range of
168 to 210 months and a mandatory minimum of ten years.
The calculation included a two-level enhancement for
possession of a dangerous weapon under U.S.S.G.
§ 2D1.1(b)(1). Defense counsel objected to the weapons
enhancement, arguing that the firearms could not have been
connected with Denmark’s offense of conviction because the
meth had never been at his residence. Counsel asserted that
Denmark was the middleman between the meth supplier and
the purchaser and that he merely took the package to the post
office. Counsel acknowledged that law enforcement had
recovered drug paraphernalia at Denmark’s home but asserted
that he had only used the paraphernalia for his marijuana-
dealing business.
The District Court rejected this argument, ruling that
“there has been sufficient evidence by the [G]overnment to
support the possession of firearms . . . .” App. at 68, Hr’g Tr.
58:18–20. The Court thus applied the two-level enhancement,
leaving Denmark’s Guidelines range at 168 to 210 months.
The Court varied downward, however, based in part on his
previous charitable service and family responsibilities. It
ultimately sentenced Denmark to 135 months’ imprisonment,
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a year and a quarter over the ten-year mandatory minimum. He
now appeals to us.
II. JURISDICTION AND STANDARD OF REVIEW
The District Court had subject-matter jurisdiction over
Denmark’s prosecution for federal crimes under 18 U.S.C.
§ 3231. We have appellate jurisdiction over the District
Court’s final judgment under 28 U.S.C. § 1291. We also have
jurisdiction in sentencing appeals under 18 U.S.C. § 3742(a).
In this context, “[w]e review a district court’s factual
determinations for clear error” and reverse only if, “when
reviewing the entire record, we are left with the definite and
firm conviction that a mistake has been committed.” United
States v. Napolitan, 762 F.3d 297, 307 (3d Cir. 2014) (internal
quotation marks omitted). But we exercise plenary review
over a district court’s interpretation of the Guidelines. Id.Here the parties do not dispute most of the facts; they
disagree primarily as to what the Guidelines standard requires.
We thus conduct a fresh review of the District Court’s legal
interpretation. However, we have said that a court’s decision
to apply the enhancement for weapons is “essentially factual,”
meriting only clear-error review. Drozdowski, 313 F.3d at 822.
This is because whether the defendant has disproven a
connection between his weapons and his offense is a “fact-
bound determination.” Napolitan, 762 F.3d at 308 (internal
quotation marks omitted). Hence we review for clear error the
District Court’s determination concerning the connection, or
lack of it, between guns and drugs.
6
III. ANALYSIS
Denmark argues that, for the weapons enhancement to
apply, the guns had to be “actually ‘present’ at the crime,”
Denmark’s Br. at 8, meaning they had to be physically near
him while he transported the meth to the post office. We are
unpersuaded.
Besides the drug paraphernalia on the first floor, the
Government does not have any evidence that Denmark ever
had meth in his home. Moreover, the paraphernalia and the
guns were found in different rooms and on different floors.
Denmark essentially argues that these facts resolve the case.
Our threshold inquiry, then, is whether a firearm must be
physically close to drugs or drug paraphernalia for the
enhancement in U.S.S.G. § 2D1.1(b)(1) to apply. The answer
is no.
Section 2D1.1(b)(1) provides that, in a conviction for
unlawful manufacturing, importing, exporting, or trafficking
of drugs, “[i]f a dangerous weapon (including a firearm) was
possessed, increase [the offense level] by 2 levels.”
Application Note 11(A) to this provision provides:
The enhancement for weapon possession in
subsection (b)(1) reflects the increased danger of
violence when drug traffickers possess weapons.
The enhancement should be applied if the
weapon was present, unless it is clearly
improbable that the weapon was connected with
the offense. For example, the enhancement
would not be applied if the defendant, arrested at
7
the defendant’s residence, had an unloaded
hunting rifle in the closet.
U.S. Sent’g Guidelines Manual § 2D1.1(b)(1) cmt. n.11(A)
(U.S. Sent’g Comm’n 2018).
We explained the mechanics of this analysis in United
States v. Napolitan, where we observed that the Government
must first prove, by a preponderance of the evidence, “only that
the defendant possessed a dangerous weapon.” 762 F.3d at 309
(internal quotation marks omitted). The burden of production
then shifts to the defendant to “demonstrate that the connection
between the weapon and the drug offense was clearly
improbable.” Id. (internal quotation marks omitted). Under
this approach, then, the Government does not have to prove
any relationship between the weapons and the drugs. Rather,
the “general rule” is that “the enhancement should be applied
if a firearm was present.” Id. It is the defendant’s burden to
show the lack of a connection. Id.
Denmark argues that “the record must show ‘that a
temporal and spatial relation existed between the weapon, the
drug[-]trafficking activity, and the defendant.’” Denmark’s
Br. at 6 (quoting Napolitan, 762 F.3d at 309). Napolitan, as
noted, instructs otherwise; the Government “must show only
that the defendant possessed a dangerous weapon,” 762 F.3d at
309 (internal quotation marks omitted), and it “can” make that
showing “by establishing ‘that a temporal and spatial relation
existed between the weapon, the drug trafficking activity, and
the defendant,’” id. (quoting United States v. Ruiz, 621 F.3d
390, 396 (5th Cir. 2010) (per curiam)). The use of “can”
provides a path to proving possession, but it is not the only one.
Thus the Government is not required to prove a “temporal and
8
spatial relation”—or any relation at all—between the firearms
and the drugs to carry its initial burden. See id.We are mindful that Napolitan seems to require
physical proximity to drugs or paraphernalia, as we stated there
that the enhancement applies “even where there were no drugs
in the house, provided the gun was found near other indicia of
drug activity.” 762 F.3d at 310 (emphasis added) (internal
quotation marks omitted). But the “indicia of drug activity”
language, we think, is a mere proxy for what the Commentary
to the Guideline requires: a connection (which we understand
to exist once the Government proves the defendant possessed
a firearm) between the guns and the drug-trafficking offense.
See U.S. Sent’g Guidelines Manual § 2D1.1(b)(1) cmt.
n.11(A). Here, law enforcement observed Denmark make a
drug deal over FaceTime from his home. Thus we do not need
to rely on “indicia” of drug activity found at the home because
officers observed actual drug activity there.
Moreover, as we discuss next, physical proximity
between drugs (or paraphernalia) and guns is only one of four
factors we must consider in making the “clearly improbable”
determination. We have never considered the physical-
proximity factor to be dispositive as a matter of law, and we
decline to do so here. We note, however, that the absence of
physical proximity between guns and drugs or paraphernalia
might be dispositive in some cases. For example, if a
defendant kept guns in a storage unit and conducted drug deals
at a house in a different city, the defendant might be able to
demonstrate that the connection was clearly improbable based
on the guns’ location alone. In that circumstance, the guns
might be “truly inaccessible” to the defendant during the drug-
trafficking offense. See Drozdowski, 313 F.3d at 823 n.2. We
9
reject only the narrow position that § 2D1.1(b)(1) can never
apply unless the guns are physically near drugs or
paraphernalia. And this case illustrates why: Although
Denmark may never have possessed meth at his residence,
police watched him agree to sell the meth via FaceTime in the
same home where the guns were found a month later. That
alone makes it difficult for him to show that the guns were not
connected with his drug offense.
Denmark also contends that the enhancement in
§ 2D1.1(b)(1) applies only when the weapons were “present at
the crime.” Denmark’s Br. at 7 (internal quotation marks
omitted). According to him, the guns could not have been
present at the crime because the drug delivery occurred through
the mail, away from his home. Note 11(A), however, does not
require that the weapons be “present at the crime”; it requires
only that the weapons be “present.” U.S. Sent’g Guidelines
Manual § 2D1.1(b)(1) cmt. n.11(A); see also Napolitan, 762
F.3d at 309. And Napolitan instructs that, to make a prima
facie showing, “the [G]overnment must show only that the
defendant possessed a dangerous weapon” without regard to
where that weapon was located at the time of the crime. 762
F.3d at 309 (emphasis added) (internal quotation marks
omitted).
Denmark concedes, consistent with the Government’s
evidence, that he possessed the guns found at his residence. So
his argument—that the enhancement cannot apply because his
guns were not close to drugs or paraphernalia—fails. The
burden now falls on him to demonstrate that the connection
between his weapons and the drug offense is clearly
improbable. Id.; see also Drozdowski, 313 F.2d at 822 (noting
10
that “defendants have rarely been able to overcome the ‘clearly
improbable’ hurdle”).
In this case, a clearly improbable finding between
firearms and drug activity is not a hurdle for Denmark but a
wall. Though the District Court held an evidentiary hearing on
whether the enhancement in § 2D1.1(b)(1) applied, it made
almost no express findings on the issue and did not address
directly whether Denmark met the clearly improbable
standard. It stated only that it “believe[d] that there has been
sufficient evidence by the [G]overnment to support the
possession of firearms,” App. at 68, Hr’g Tr. 58:18–20, and
adopted the presentence report “without change,” id. at 69,
Hr’g Tr. 61:25–62:1. Denmark now objects that this was error.
Ordinarily we would remand, but here it is not necessary, for
we can see nothing in the record to hint at dispelling the
firearms-drug activity connection. See United States v. Fishoff,
949 F.3d 157, 164 (3d Cir. 2020) (“[I]t is evident from the
[C]ourt’s . . . ruling that any further explanation on the part of
the [C]ourt would not have changed the sentence it imposed.
Thus[] any error is harmless.”).
In determining whether it is clearly improbable that a
weapon was connected with a drug offense, we look to four
factors: “(1) the type of gun involved, with clear improbability
less likely with handguns than with hunting rifles, (2) whether
the gun was loaded, (3) whether [it] was stored near the drugs
or drug paraphernalia, and (4) [] whether [it] was accessible.”
Napolitan, 762 F.3d at 308 (quoting Drozdowski, 313 F.3d at
822–23).
Here, at least three of the four factors weigh against
Denmark. First, he had two handguns, a semi-automatic
11
assault rifle, and a shotgun at his residence. While the shotgun
could have been a hunting rifle, the other two types of
firearms—particularly the handguns—suggest that they were
connected with Denmark’s drug activities rather than sporting
or any other innocent use. See Drozdowski, 313 F.3d at 822(agreeing with the Seventh Circuit that handguns are “tool[s]
of the [drug] trade” because they are “easy to conceal yet
deadly” (quoting United States v. Cantero, 995 F.2d 1407,
1411 (7th Cir. 1993))).
Second, law enforcement found one handgun with a
loaded magazine in it (although no rounds were chambered).
They also found several loaded magazines in the residence; at
least some of the loaded magazines were recovered in the same
bedroom as the guns. This factor also weighs against
Denmark.
As for the third factor—whether the firearms were
found near drugs or drug paraphernalia—the guns were all
found in a second-story bedroom, whereas the drug
paraphernalia were found in the garage and on the first floor.
They were further away than the guns and drug paraphernalia
in Drozdowski, which were all found in the same room. 313
F.3d at 823. But all the items here were in the same house
where law enforcement observed Denmark making drug deals,
and he has not argued that their precise location in the house
demonstrates a lack of connection (for example, he does not
argue that another resident had exclusive control over the parts
of the house where the paraphernalia were stored).4 This
factor, then, does not help Denmark.
4
At sentencing, Denmark argued that he only used the
paraphernalia for his marijuana-selling business, and thus they
12
Fourth and finally, the guns were sufficiently accessible
to someone who already knew where they were located and
had access to those locations. See id. In Drozdowski we agreed
with the Sixth Circuit that a defendant’s guns were accessible
when several were stored under furniture or in secret
compartments and a handgun was stored in a safe in a bedroom.
Id. at 824 (citing United States v. McGhee, 882 F.2d 1095,
1099 (6th Cir. 1989)). We adopted the Court’s reasoning that,
although the guns were inaccessible to strangers, “they would
be readily accessible to anyone who knew their location.” Id.(quoting McGhee, 882 F.2d at 1099). Here anyone who knew
the guns were located in the safe and could open it would have
been able to access them quickly. And we note yet again that
law enforcement observed Denmark make a drug deal over
FaceTime in the same house where the guns were found just a
month later. This is strong evidence that Denmark had access
to weapons during his drug-trafficking activities, and he has
not produced any evidence to the contrary. As we cannot say
that they were “truly inaccessible,” see Drozdowski, 313 F.3d
at 823 n.2, this is yet another factor that weighs against
Denmark.
did not link his meth trafficking to the firearms. But he offers
no evidence of this. The only evidence in the record is the
Government’s, which indicates that the paraphernalia in
Denmark’s house matched the packing materials in the meth
he mailed. Moreover, even if we eliminated this factor
entirely, our conclusion would be the same. The other three
factors weigh heavily against Denmark, and the location at his
home—even assuming there were no paraphernalia nearby—
does not itself establish clear improbability because of the
FaceTime call discussed earlier.
13
* * * * *
While the broad reach of the enhancement in
§ 2D1.1(b)(1) may at times be concerning, it is not so here.
Denmark had a small arsenal of weapons and ammunition in
the same house where law enforcement observed him agreeing
to provide several pounds of meth. As he has neither credibly
rebutted any of the Government’s evidence nor offered any
plausible alternative explanation for why he possessed the
weapons, we cannot say that the connection between the guns
and the drugs was clearly improbable. Thus we affirm the
District Court’s application of the enhancement.
14