United States v. Alvin McKenzie, Jr. , 410 F. App'x 943 ( 2011 )

NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
File Name: 11a0101n.06
No. 09-5068
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
FILED
UNITED STATES OF AMERICA, ) Feb 10, 2011
) LEONARD GREEN, Clerk
Plaintiff-Appellee, )
)
v. ) On Appeal from the United States
) District Court for the Western
ALVIN MCKENZIE, JR., ) District of Tennessee
)
Defendant-Appellant. )
)
Before: BOGGS and MCKEAGUE, Circuit Judges; and QUIST, District Judge*
BOGGS, Circuit Judge. Defendant Alvin McKenzie appeals his fifty-seven-month sentence
for being a felon in possession of a firearm, in violation of 18 U.S.C. § 922(g). McKenzie challenges
the district court’s application of a four-level sentence enhancement for possession of a firearm “in
connection with” another felony offense, marijuana possession. Under §2K2.1(b)(6) of the United
States Sentencing Guidelines Manual (“USSG”), such a connection is established if the government
proves by a preponderance of the evidence that the firearm had the potential to facilitate the
additional offense. Here, we find that the government failed to meet this burden, as the only link
between the gun and the small amount of marijuana McKenzie possessed was their simultaneous
presence in his car. We therefore vacate the district court’s sentence and remand for re-sentencing.
*
The Hon. Gordon J. Quist, United States District Judge for the Western District of
Michigan, sitting by designation.
No. 09-5068
United States v. McKenzie
I
The underlying facts in this case are not disputed. On April 9, 2007, McKenzie,
accompanied by an unknown passenger, was pulled over by a Memphis police officer for driving
without a seatbelt and with an illegible temporary license tag. The officer observed a bag of
marijuana on the arm rest of the driver-side door and saw McKenzie reach several times between
his seat and the car’s center console.
McKenzie got out of the car at the officer’s request, while his passenger fled. McKenzie
informed the officer that he had hidden a gun between the driver’s seat and the center console. He
claimed he had the gun for protection because he had been fired upon earlier that day. A vehicle
search revealed a loaded Pietro Beretta 7.65-caliber pistol. The officer also recovered a bag
containing 1.1 grams of marijuana. McKenzie was advised of his rights and arrested. A criminal
history search uncovered a previous felony conviction. On August 27, 2008, McKenzie pled guilty
to one count of being a convicted felon in possession of a firearm, in violation of 18 U.S.C. § 922(g).
The pre-sentence report (“PSR”) assigned McKenzie an initial base offense level of 20. It
then applied a four-level enhancement, pursuant to §2K2.1(b)(6), for possession of a firearm in
connection with another felony offense: felony possession of marijuana. The PSR explained that,
under Tennessee law, possession of a controlled substance is a felony when a defendant has “two
or more prior convictions” for similar offenses. McKenzie had two prior adult convictions for
possession of a controlled substance. After a three-level reduction for acceptance of responsibility,
the PSR assigned McKenzie a total offense level of 21. McKenzie’s criminal history category was
-2-
No. 09-5068
United States v. McKenzie
IV. This yielded an advisory Guidelines range of fifty-seven to seventy-one months of
imprisonment.
At sentencing, McKenzie objected to the four-level enhancement, arguing that there was no
connection between the marijuana possession and the firearm. He argued that the small amount of
marijuana was clearly meant for personal use and explained that he was carrying the gun for personal
protection because he had been shot at earlier that day. The prosecutor conceded that there was no
evidence McKenzie was engaged in drug trafficking, but contended that, because possessing drugs
in any amount is “a dangerous business,” the simultaneous presence of the gun and the drugs in
McKenzie’s car was sufficient to connect the firearm to the drug offense.
The district court found that under Tennessee Code Annotated § 39-17-418, McKenzie’s
marijuana possession would be considered a felony, given his two prior convictions for drug
possession. Looking to the Guidelines commentary, the court noted that, for the enhancement to
apply, the firearm must have “had the potential of facilitating” the drug offense. See USSG §2K2.1,
comment. (n.14(A)). The court concluded that because “the firearm and the marijuana were in close
proximity to each other[,] . . . . the firearm in this case did have the potential of facilitating another
felony offense.” The court then sentenced McKenzie to the low end of the Guidelines range.
McKenzie filed this timely appeal.
II
This court reviews a sentencing decision for procedural and substantive reasonableness. See
Gall v. United States, 552 U.S. 38 (2007). The former includes review for “procedural error in the
calculation of the guideline range.” United States v. Bartee, 529 F.3d 357, 358 (6th Cir. 2008).
-3-
No. 09-5068
United States v. McKenzie
Although we review factual determinations made during sentencing for clear error, United States v.
Webb, 616 F.3d 605, 609 (2010), we review legal conclusions regarding the application of the
Sentencing Guidelines de novo, United States v. Hover, 293 F.3d 930, 933 (6th Cir. 2002). Thus,
we review de novo the question of whether a four-level enhancement was appropriate under
§2K2.1(b)(6) given the facts in this case.
III
The Sentencing Guidelines instruct a court to increase a defendant’s base offense level by
four levels “[i]f the defendant used or possessed any firearm or ammunition in connection with
another felony offense.” USSG §2K2.1(b)(6). McKenzie need not have actually been charged with
drug possession for the marijuana possession to constitute an additional felony offense. See id.
§2K2.1, comment. (n.14(C)) (“‘Another felony offense’ . . . means any federal, state, or local offense
. . . punishable by imprisonment for a term exceeding one year, regardless of whether a criminal
charge was brought, or a conviction obtained.”). But for the enhancement to apply, the government
must “establish[ ], by a preponderance of the evidence, a nexus between” the felonious drug
possession and the firearm. United States v. Bullock, 526 F.3d 312, 317 (6th Cir. 2008) (quoting
United States v. Burns, 498 F.3d 578, 580 (6th Cir. 2007) (emphasis added)).
In 2006, the Sentencing Commission clarified that, when the additional felony offense
involves drug trafficking, the sentencing enhancement applies whenever “a firearm is found in close
proximity to drugs, drug-manufacturing materials, or drug paraphernalia,” because “the presence of
the firearm has the potential of facilitating another felony offense.” USSG §2K2.1, comment.
(n.14(B)). In other cases, however, the enhancement applies only “if the firearm or ammunition
-4-
No. 09-5068
United States v. McKenzie
facilitated, or had the potential of facilitating, another felony offense.” Id. §2K2.1, comment.
(n.14(A)). The contrast between these two sections of the commentary indicates that, while close
proximity between a firearm and drugs will suffice to justify the enhancement when an offender is
engaged in drug trafficking, in other cases the enhancement applies only if the government can
establish that the firearm actually or potentially facilitated that offense. This circuit’s case law
confirms that, while proximity may be “indicative of a connection,” the government cannot always
rely on proximity alone to establish a nexus. United States v. Angel, 576 F.3d 318, 321 (6th Cir.
2009) (noting that “proximity may not be dispositive”). Rather, “the defendant’s firearm possession
needs to reduce, or have the potential of reducing, the difficulty of completing the other offense.”
United States v. Richardson, 510 F.3d 622, 629 (6th Cir. 2007) (McKeague, J., concurring).
In analyzing whether firearm possession is “in connection with” a drug felony, the Sixth
Circuit has adopted the “fortress theory.” Under that theory, a nexus between the firearm and the
drug felony exists “if it appears that the firearms . . . are to used to protect the drugs or otherwise
facilitate a drug transaction,” or “if the firearm had some emboldening role” in the drug offense.
Angel, 576 F.3d at 321 (quoting United States v. Henry, 878 F.2d 937, 944 (6th Cir. 1989)). The
government relies on the fortress theory in this case, arguing that the firearm allowed McKenzie to
“protect” his bag of marijuana and “emboldened” him to carry it in public. The government’s brief
argues that “one can reasonably surmise that but for the firearm, the Defendant would not have felt
safe enough to venture into public with his marijuana.”
Determining whether possession of a firearm actually or potentially facilitated a drug offense
involves a fact-specific inquiry. Cases in which this court has applied the fortress theory have
-5-
No. 09-5068
United States v. McKenzie
involved drug transactions, the use of firearms to protect a valuable stash of drugs, or some
indication that a firearm was used to keep the defendant safe while using or transporting drugs. See,
e.g., United States v. Rogers, 333 F. App’x 975, 976-77 (6th Cir. 2009) (unpublished) (enhancement
warranted where defendant carried gun to a drug transaction); United States v. White, 144 F. App’x
486, 487 (6th Cir. 2009) (unpublished) (defendant apprehended with gun and .3 grams of cocaine
in house “often used by others for selling drugs”); James v. United States, 217 F. App’x 431, 438
(6th Cir. 2007) (unpublished) (gun found in proximity to 33 grams of marijuana meant for resale);
United States v. Burns, 498 F.3d 578, 580 (6th Cir. 2007) (“[P]olice found the firearm in close
proximity to drugs and drug paraphernalia shortly after conducting a controlled buy at the
residence.”); Richardson, 510 F.3d at 627 (gun was found in proximity to “a large quantity of
marijuana and digital scales”); United States v. Clay, 346 F.3d 173, 175 (6th Cir. 2003) (defendant
apprehended in uninhabited apartment late at night with firearm, $575 in cash, and 1.6 grams of
crack); United States v. Hardin, 248 F.3d 489, 500 (6th Cir. 2001) (gun located near a “large stash
of cocaine” for sale); United States v. Ennenga, 263 F.3d 499, 503-04 (6th Cir. 2001) (defendant
“holed up” in basement apartment containing firearms and several dozen marijuana plants and
protected by an alarm system).
Under the circumstances at hand, however, the government has not proven by a
preponderance of the evidence that McKenzie’s firearm had the potential to facilitate his marijuana
possession. We first note that, in this case, there was no evidence that McKenzie was engaged in
drug trafficking. There was no evidence as to where the marijuana came from, and the amount was
too small to support an inference of trafficking. Second, although the “fortress theory” cases indicate
-6-
No. 09-5068
United States v. McKenzie
that, under some circumstances, a firearm can facilitate mere drug possession, this case involved a
very small amount of marijuana that was clearly meant for McKenzie’s personal use, not a valuable
quantity like those involved in Richardson, Hardin, and Ennenga. Indeed, possession of the 1.1
grams of marijuana found in McKenzie’s vehicle would normally constitute a misdemeanor. See
Tennessee Code Annotated §§ 39-17-401 et seq. Only McKenzie’s previous convictions led the
PSR to conclude that in his case possession of even this small amount would constitute a felony.
Even so, the street value of the marijuana was minimal.1 We also believe that the government’s
argument that McKenzie needed the Beretta to “embolden” him to carry a few dollars worth of pot
in public is somewhat implausible on its face—many people carry small amounts of pot without a
firearm. According to the PSR, McKenzie himself had been arrested before for smoking a joint in
public, and he had no firearm on his person on that occasion. Finally, although McKenzie told the
police he was carrying the gun for protection, the facts suggest that he feared for his life, not that
someone would steal a baggie of pot from his car.
On nearly identical facts, the Fifth Circuit recently rejected the argument that a defendant’s
possession of a gun “emboldened” him to possess or served to “protect” the small amount of drugs
found in his car. United States v. Jeffries, 587 F.3d 690, 695 (5th Cir. 2009) (firearm and single
1
The record does not contain evidence of the actual value of the marijuana, but previous cases
and news articles indicate that 1.1 grams of marijuana was likely worth $2 to $15, depending on its
quality. See United States v. Jiminez, 564 F.3d 1280, 1283 (11th Cir. 2009) (117 pounds of
packaged marijuana worth approximately $350,000, or $6.59 per gram); United States v. Toliver,
374 Fed. App’x 655, 656 (7th Cir. 2010) (unpublished) (fifteen pounds of marijuana worth $10,000,
or $1.47 per gram); Chris Morris, As Medical Marijuana Proliferates, Pot Prices Decline
Nationwide, CNBC.com, Dec. 7, 2010, www.cnbc.com/id/40533630 (listing prices from $161 to
$452 per ounce, or $5.68 to $15.94 per gram).
-7-
No. 09-5068
United States v. McKenzie
“rock” of crack cocaine found in a vehicle). That court explained, “the evidence that would allow
us to draw those conclusions must be something more than the simultaneous possession of a small
quantity of drugs and a gun in the same vehicle standing alone.” Ibid. Similarly, here there simply
is no evidence apart from mere proximity to connect the presence of the firearm in McKenzie’s car
with his possession of 1.1 grams of marijuana. The Sentencing Commission has made it clear that,
in felonies that do not involve drug trafficking, proximity alone is not sufficient. See USSG §2K2.1,
comment. (n.14). To rely solely on proximity to establish the required connection in this case, as
the district court seemed to do, would render the distinction in the Guidelines commentary between
drug trafficking and other felonies meaningless. Absent at least some additional connection,
therefore, the application of the sentencing enhancement was improper.
IV
The government has failed to prove, by a preponderance of the evidence, that McKenzie
possessed a firearm “in connection with” his possession of marijuana. The district court therefore
improperly applied a four-level enhancement to his sentence. Miscalculation of a Guidelines range
constitutes a procedural error. Bartee, 529 F.3d at 358. We therefore VACATE McKenzie’s
sentence and REMAND his case for re-sentencing.
-8-
No. 09-5068
United States v. McKenzie
McKEAGUE, Circuit Judge, dissenting. While the majority correctly cites the controlling
precedent as established by this court, I believe that it has improperly applied it to the facts of this
case. Accordingly, I respectfully dissent from the majority’s opinion, and I would affirm the district
court’s application of the four-level enhancement under USSG § 2K2.1(b)(6).
Although the majority cites to cases in which application of the enhancement has been upheld
in situations involving simple possession rather than a drug trafficking offense, it concludes that the
facts here do not permit application of the enhancement to McKenzie. Yet, it is difficult to find a
principled distinction between those cited cases and the instant case. For example, the majority cites
United States v. White, 144 F. App’x 486 (6th Cir. 2005) and specifically notes that the defendant
was apprehended with a gun, a small quantity of cocaine, and in a “house ‘often used by others for
selling drugs.’” While this court noted the defendant’s location when he was apprehended in its
factual recitation, this specific factor was not controlling in the decision to affirm the district court’s
application of the enhancement. Rather, this factor was mentioned in the presentence report (“PSR”)
to explain that the defendant could not be held accountable for another handgun found in the house,
because “there was no evidence that the defendant was aware of the this gun, as the house was often
used by others for selling drugs.” Id. at 487. This court merely quoted the PSR to describe the
underlying facts of the case. In the actual analysis of the defendant’s claim, this court explained that
“[b]ecause the defendant admitted at his plea hearing that he possessed the unloaded .22 caliber
firearm and the .3 grams of cocaine found or seen near him, all facts necessary to support application
of the enhancement discussed in § 2K2.1(b)(5) of the guidelines were established in this case without
-9-
No. 09-5068
United States v. McKenzie
need for ‘judicial determination.’” Id. at 488. The court then explained its rationale for upholding
the application of the enhancement:
Despite admitting that he possessed both a firearm (albeit unloaded) and .3 grams of
cocaine, White argues that the § 2K2.1(b)(5) enhancement cannot properly be applied
to this situation because the record contains insufficient evidence that the gun was
used “in connection with” the Michigan state law felony of possession of cocaine.
The defendant, citing United States v. Hardin, 248 F.3d 489, 495 (6th Cir.2001), and
United States v. Clay, 346 F.3d 173, 179 (6th Cir.2003), insists that the mere
“presence of drugs in a home does not ipso facto support the application of a §
2K2.1(b)(5) conviction.”
In making the statement referenced by White, however, the court in Hardin was
discussing the hypothetical situation “where a defendant arrested at his residence has
an unloaded hunting rifle in the closet.” Hardin, 248 F.3d at 501. In contrast, White
was not in his own residence and, although his gun was unloaded, he had it within
his reach, presumably to give the impression that he was willing to use the weapon
should anyone attempt to interfere with his possession or use of the illegal narcotics
at the site. Thus, the appellate record indicates that the district court did not err in its
application of § 2K2.1(b)(5) to the determination of the defendant's sentence.
Id. at 489. Thus, while this court noted that White was not in his own residence, it did not focus on
or even mention the fact that it was a house where drugs were often sold. Rather, the opinion
emphasized the fact that White had the gun in reach to give the impression that he would use it to
defend his drug stash, if necessary, from anyone else in the residence who sought to interfere with
his possession of those drugs. This, according to the court, was sufficient to find by a preponderance
of the evidence that White possessed the gun in connection with his possession of the cocaine.
The majority also cites to United States v. Clay, 346 F.3d 173 (6th Cir. 2003), noting that the
defendant was apprehended with a firearm, 1.6 grams of crack, and “$575 in cash.” Id. at 179.
Again, while the court in Clay noted this factor and, unlike White, did so in the context of upholding
the district court’s application of the enhancement, it was only one of a number of factors cited by
- 10 -
No. 09-5068
United States v. McKenzie
the court. There is no indication that this particular fact was controlling. The court specifically
stated:
Clay was apprehended in an uninhabited apartment late at night with a bag of cocaine
and a large amount of cash on his person. He testified that he was in the apartment
to have his hair braided by a woman whom he had met “on the streets,” although the
alleged hairstylist was not in the building. Finally, Clay was carrying a firearm. See
Hardin,248 F.3d at 499 (noting that firearms “are ‘tools of the trade’ in drug
transactions”). Based upon this set of facts, the district court did not clearly err when
it found that the government had proven by a preponderance of the evidence that
Sentencing Guidelines § 2K2.1(b)(5) was satisfied.
Id. In fact, despite the presence of the cash on Clay’s person, he was only charged with and
convicted of possession of cocaine base, not with any drug trafficking offense. Id. at 175–76. And,
like the defendant in the instant case, the quantity of drugs was small enough that the possession
charge only became a felony because of Clay’s prior conviction for a narcotics offense under
Michigan law. Id. at 179. Also, much like in White, the court specifically noted that Clay was in
a public place with both a gun and drugs on his person, and further had provided an explanation for
his presence that did not appear to be plausible on the basis of the facts he gave. Id.
In a more recent case, this court has again found that simple possession is sufficient to uphold
application of the four-level enhancement. In United States v. Berkey, No. 09-5128, 2011 WL
108307 (6th Cir. Jan. 12, 2010), a panel of this court affirmed the district court’s application of the
enhancement where Berkey had 16.58 grams of marijuana and a 9mm handgun in his winter coat
pocket. Id. at *1–3. This court explained:
Berkey’s own testimony supplied all of the facts that the district court needed to
conclude that the firearm “emboldened the defendant during the felonious conduct.”
Carter, 355 F.3d at 925. He acknowledged the accuracy of the facts presented in the
presentence report, including that he “claimed ownership of the marijuana and the
- 11 -
No. 09-5068
United States v. McKenzie
firearm” and that he “smoked two pipes of marijuana” in the car. PSR ¶ 6. He
acknowledged that he had the drugs and pipe in one pocket and the gun in another
when he left his house. Taken together, these facts allowed the court to reach the
conclusion it did: that “the firearm ha[d] the potential of . . . facilitating the felony
offense,” R.48 at 25, and that Berkey thus possessed the firearm “in connection with”
possession of marijuana, U.S.S.G. § 2K2.1(b)(6).
Id. at *2. The court added that it “need not probe Berkey’s psyche to determine whether and how
possession of the firearm affected his decision to possess the marijuana,” because it was “enough
that it had the ‘potential’ to promote or facilitate the drug offense,” which was “a reasonable
inference” in that case. Id.
Thus, this court has upheld application on the enhancement for simple possession of user
quantities of drugs, where the gun and drugs are in close proximity, and the defendant is in a public
place. Our sister circuits have also come to the same conclusion in factually similar cases. In United
States v. Jenkins, 566 F.3d 160 (4th Cir. 2009), the Fourth Circuit affirmed application of the four-
level enhancement where Jenkins was found by officers, who were responding to a call of shots
fired, on a public street with a firearm containing one spent round and one live round of ammunition,
and 0.29 grams of cocaine base. Id. at 162. The court explained that it was “clear that the
possession of a firearm can facilitate a simple drug possession offense,” because the “firearm can
embolden the actor to possess the drugs or provide the actor protection for himself and his drugs,
which are likely to be personally valuable even in small amounts.” Id. at 163; see also id. (stating
that “when a drug user chooses to carry his illegal drugs out into public with a firearm, there are
many ways in which the weapon can facilitate the drug offense and dangerously embolden the
offender”) (quoting United States v. Regans, 125 F.3d 685, 687 (8th Cir. 1997)). The court then
- 12 -
No. 09-5068
United States v. McKenzie
determined that sufficient evidence supported the district court’s finding that the firearm facilitated
Jenkins’s possession. Id. at 164. The court pointed out that Jenkins “took the revolver and cocaine
onto a public street, near where a gun had recently been fired, close to midnight,” which suggested
“that there was a heightened need for protection and that the firearm emboldened Jenkins.” Id.
Additionally, Jenkins had the revolver “on his person,” it was loaded, and was “accessible and ready
for use,” further suggesting it was there for protection or to embolden Jenkins. Id. According to the
court, this was sufficient evidence to find that the simultaneous possession went beyond
coincidence.2 Id.; see also United States v. Simmons, 291 F. App’x 992, 993–96 (11th Cir. 2008)
(affirming application of the enhancement where Simmons was found on a public street by officers
carrying a firearm and a small plastic bag of marijuana, noting that the arresting officer had testified
that sometimes individuals would pull a gun on someone trying to rob them of a small amount of
marijuana, and that the marijuana was found in the same pocket as the firearm, which established
a link between the two and “which might indicate that the gun was possessed for the purpose of
protecting the drugs from theft”); Regans, 125 F.3d at 685–87 (holding that application of the four-
level enhancement was appropriate where Regans, a passenger in a car stopped for a traffic violation,
was found with a pistol in his waistband and 0.29 grams of heroin that he admitted possessing for
personal use, explaining that “the drug felon has the ability to use the weapon in connection with his
drug offense”).
2
Unlike this circuit, the Fourth Circuit used the clear error standard of review.
- 13 -
No. 09-5068
United States v. McKenzie
The majority correctly notes that one circuit has held differently. In United States v. Jeffries,
587 F.3d 690 (5th Cir. 2009), Jeffries was stopped while driving in his car, and officers found a
firearm on the driver’s seat and a rock of crack cocaine on the floor behind the driver’s seat, which
he denied belonged to him. Id. at 691. Nonetheless, the Fifth Circuit acknowledged that the
potential for facilitation could be present in simple possession cases, but found in that case that the
application of the enhancement was inappropriate because the district court had made no finding of
facilitation and the facts were “too sparse” to find that the gun emboldened Jeffries. Id. at 695.
Here, it is difficult to conclude that the application should not apply, as the facts cannot be
described as “sparse,” as in Jeffries. Though the majority makes much of the fact that the quantity
of drugs was small, this fact alone does not make McKenzie’s possession of the gun in connection
with his possession of the drugs “implausible on its face,” as the majority concludes. See White, 144
F. App’x at 489 (upholding application of the enhancement for possession of 0.3 grams of cocaine).
The facts of this case contradict the majority’s conclusion that there “simply is no evidence apart
from mere proximity to connect the presence of the firearm in McKenzie’s car with his possession
of 1.1 grams of marijuana.” According to the PSR, McKenzie was driving on a public road with a
firearm in the console to his right and a small bag of marijuana on the arm rest of the door to his left.
Thus, the firearm was in close proximity to the drugs and to McKenzie, and both were in plain view.
Also significant is that, unlike the unloaded firearm in White (which was sufficient for the court to
find that White intended to protect his 0.3 grams of cocaine), McKenzie’s firearm was both loaded
and easily accessible for protection. Cf. United States v. Coleman, 627 F.3d 205, 212, 214 (6th Cir.
2010) (holding that the four-level enhancement was applicable to Coleman where he possessed drugs
- 14 -
No. 09-5068
United States v. McKenzie
and only ammunition without a gun, because “the ammunition emboldened Coleman in the
knowledge that he was one step closer to having a fully-loaded firearm to protect himself and his
illegal drugs, and the ammunition potentially served notice to potential buyers that Coleman was a
step closer to having a fully-loaded firearm”). McKenzie even admitted that he had the gun for
protection; he reported to the probation officer that he feared for his life and had been shot at earlier
in the day, and that is why he had the gun. Although the majority attempts to dismiss this fact as
irrelevant, because McKenzie “feared for his life, not that someone would steal a baggie of pot from
his car,” it seems unreasonable that McKenzie would use the firearm to protect himself, but not the
drugs he possessed. Additionally, as other courts have held, it is reasonable to find that carrying a
firearm would embolden an individual’s possession of even a small quantity of drugs, because the
drugs are personally valuable to a user of such substances. Moreover, McKenzie was driving with
another individual when he was stopped by police, further supporting the conclusion that the firearm
emboldened his possession and potentially facilitated that possession by preventing theft of the
marijuana. The majority points out that, according to the PSR, McKenzie had been arrested
previously for smoking a joint in public (in actuality, McKenzie was in the driver’s seat of a vehicle
located at a park), but had no firearm on him at the time. However, McKenzie had been arrested
prior to that occasion with seven rocks of crack cocaine and a loaded Smith & Wesson .38 caliber
revolver. Additionally, the PSR also states that, when McKenzie was pulled over in this case,
officers noted “an odor of marijuana emanating from the vehicle.” Although the PSR does not state
whether any additional evidence of marijuana use specifically by McKenzie was found, it is worthy
- 15 -
No. 09-5068
United States v. McKenzie
of note, in light of the majority’s argument and the relatively small quantity found in the plastic bag
when the vehicle was pulled over.
Ultimately, there is not an overabundance of evidence here, but that is not what is required.
The firearm need not actually be used in the commission of the felony; it must only have “the
potential to promote another felony offense.” United States v. Angel, 576 F.3d 318, 320 (6th Cir.
2009) (quoting United States v. Heighton, 272 F. App’x 469, 472 (6th Cir. 2008)). And,
“demonstrating this nexus [under § 2K2.1(b)(6) between the gun and the drugs] is not a particularly
onerous burden.” United States v. Davis, 372 F. App’x 628, 629 (6th Cir. 2010). Although the
government must satisfy the preponderance standard, “this simply requires that the possession of the
firearm cannot be the result of accident or coincidence.” James v. United States, 217 F. App’x 431,
438 (6th Cir. 2007). All that the government must show is that a preponderance of the evidence
demonstrates the firearm’s potential for facilitation of the marijuana possession, and on the basis of
the facts in this case, the government has met its burden. Contrary to the majority’s conclusion, I
believe that it is evident that “the facts here go beyond mere proximity.” Berkey, 2011 WL 108307,
at *2. As a result, I would find that the district court did not err in applying the four-level
enhancement to McKenzie’s base offense level, and I would affirm McKenzie’s sentence.
- 16 -