United States v. Darrell Regans ( 1997 )

United States Court of Appeals
FOR THE EIGHTH CIRCUIT
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No. 96-3712
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United States of America, *
*
Plaintiff - Appellee, *
*
v. * Appeal from the United States
* District Court for the
Darrell Regans, also known as * Eastern District of Missouri.
Kevin Price, *
*
Defendant - Appellant. *
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Submitted: May 20, 1997
Filed: October 17, 1997
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Before BEAM, FRIEDMAN,* and LOKEN, Circuit Judges.
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LOKEN, Circuit Judge.
Darrell Regans appeals the 110-month sentence imposed after he pleaded guilty
to being a felon in possession of a firearm. Regans argues that the district court1 erred
in applying the four-level enhancement prescribed in U.S.S.G. § 2K2.1(b)(5) for
*
The HONORABLE DANIEL M. FRIEDMAN, United States Circuit Judge for
the Federal Circuit, sitting by designation.
1
The HONORABLE E. RICHARD WEBBER, United States District Judge for
the Eastern District of Missouri.
possessing a firearm "in connection with another felony offense" solely because Regans
was in possession of a small quantity of heroin at the time of his arrest. We affirm.
The following facts are undisputed. Regans was a passenger in a car stopped for
a traffic violation. When Regans appeared to be concealing a weapon, the officers
conducted a pat-down search and discovered a .22 caliber pistol in his waistband.
They arrested Regans and brought him to the police station, where a further search
uncovered .29 grams of heroin. Regans said he possessed the heroin for personal use.
Regans pleaded guilty in state court to possession of heroin, a felony charge, and
was sentenced to two years probation. He then pleaded guilty to this federal charge of
being a felon in possession of a firearm. See 18 U.S.C. § 922(g)(1). His Presentence
Investigation Report recommended a four-level enhancement under § 2K2.1(b)(5)
because carrying the firearm along with the heroin warranted a finding that the firearm
was possessed "in connection with" the drug felony. Regans objected to that
recommendation, arguing that he possessed only a small amount of heroin consistent
with personal use, and there was no evidence "that the possession of the weapon and
the possession of heroin are in connection with each other." The district court
disagreed, finding that Regans "did possess a firearm in connection with another felony
offense," and applied the four-level § 2K2.1(b)(5) enhancement.
Regans's state court conviction was "another felony offense" for purposes of
§ 2K2.1(b)(5). See U.S.S.G. § 2K2.1, comment. (n.7). Thus, the only question is
whether he possessed the firearm "in connection with" that felony. The district court’s
finding regarding Regans’s purpose in possessing the firearm is reviewed for clear
error. See United States v. Kissinger, 986 F.2d 1244, 1246 (8th Cir. 1993).
The Guidelines do not attempt to define the term "in connection with." Adopting
an ordinary meaning approach, most circuits have concluded that the phrase "should be
construed as equivalent to the 'in relation to' language of 18 U.S.C. § 924(c)(1)."
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United States v. Spurgeon, 117 F.3d 641, 643-44 (2d Cir. 1997), and cases cited.
Equating the two is convenient because the Supreme Court has clarified the meaning of
"in relation to" in § 924(c)(1):
The phrase "in relation to" thus, at a minimum, clarifies that the firearm
must have some purpose or effect with respect to the drug trafficking
crime; its presence or involvement cannot be the result of accident or
coincidence. . . . Instead, the gun at least must "facilitat[e], or ha[ve] the
potential of facilitating," the drug trafficking offense.
Smith v. United States, 508 U.S. 223, 238 (1993).2
Regans argues the district court erred in finding the requisite connection between
the firearm and his drug felony because the firearm was merely "coincidental" to his
possession of heroin. We have frequently observed that a firearm is a "tool of the trade"
for drug dealers; therefore, a factfinder may infer a connection when defendant carried
a firearm and a distribution quantity of illegal drugs. For example, in United States v.
White, 81 F.3d 80, 82-83 (8th Cir. 1996), we affirmed an 18 U.S.C. § 924(c) conviction
because defendant carried a firearm while distributing crack cocaine. Similarly, we
affirmed a § 2K2.1(b)(5) enhancement in United States v. Johnson, 60 F.3d 422 (8th
Cir. 1995), a case in which a drug dealer was arrested with a firearm, crack cocaine, and
drug paraphernalia in his home. We commented that a "weapon's physical proximity
to narcotics may be sufficient to provide the nexus required between the weapon and
the drug charges." Id. at 423, quoting United States v. Gomez-
2
Smith also construed the term "use" in § 924(c)(1), and its construction was
overruled in Bailey v. United States, 116 S. Ct. 501 (1995). The "use" issue decided
in Bailey is not present here because U.S.S.G. § 2K2.1(b)(5), like § 2D1.1(b)(1),
applies if the weapon was possessed with the requisite connection to another offense,
without regard to use. See United States v. Imes, 80 F.3d 1309, 1313-14 (9th Cir.),
vacated on other grounds, 91 F.3d 1210 (9th Cir. 1996).
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Arrellano, 5 F.3d 464, 466-67 (10th Cir. 1993). Accord United States v. Burke, 91 F.3d
1052 (8th Cir. 1996), applying U.S.S.G. § 5C1.2.
Regans notes that the defendants in Johnson and these other cases were drug
dealers and argues it is wrong to infer a connection between the firearm and the drug
felony when defendant carried a firearm along with only a small amount of drugs for
personal use. We disagree. This enhancement and other Guidelines provisions such as
§ 2D1.1(b)(1) are based in part on the increased risk of violence whenever guns are in
the possession of persons engaged in committing drug felonies. See United States v.
Condren, 18 F.3d 1190, 1195-98 (5th Cir. 1994), cert. denied, 513 U.S. 856 (1994).
When a firearm is carried during a drug offense, including a possession-for-use offense,
the drug felon has the ability to use the weapon in connection with his drug offense. Or,
as the Fifth Circuit put it in explaining Condren, “Theft is a close and ever present
partner of illegal drugs.” United States v. Fadipe, 43 F.3d 993, 994 (5th Cir. 1995).
The firearm may not be a "tool of the trade," because possession for use is not a "trade"
like drug trafficking. But 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. Thus, a finding of the requisite
connection in this situation is consistent with the purpose of § 2K2.1(b)(5) and cannot
be clearly erroneous except, perhaps, in the exceptional circumstance recognized in
Application Note 3 to § 2D1.1 -- if "it is clearly improbable that the weapon was
connected with the offense." No such improbability is apparent from this record.
Accordingly, the judgment of the district court must be affirmed.
A true copy.
Attest:
CLERK, U. S. COURT OF APPEALS, EIGHTH CIRCUIT.
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