United States v. Rolando Downey , 672 F. App'x 615 ( 2016 )

United States Court of Appeals
For the Eighth Circuit
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No. 16-1320
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United States of America
lllllllllllllllllllll Plaintiff - Appellee
v.
Rolando Jamal Downey
lllllllllllllllllllll Defendant - Appellant
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Appeal from United States District Court
for the Western District of Missouri - Kansas City
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Submitted: September 19, 2016
Filed: December 29, 2016
[Unpublished]
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Before COLLOTON, MELLOY, and SHEPHERD, Circuit Judges.
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PER CURIAM.
Rolando Jamal Downey pleaded guilty to possessing a firearm as a previously
convicted felon, in violation of 18 U.S.C. § 922(g). At sentencing, the district court1
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The Honorable Gary A. Fenner, United States District Judge for the Western
District of Missouri.
applied a four-level enhancement for possessing the firearm “in connection with
another felony offense,” U.S. Sentencing Guidelines Manual § 2K2.1(b)(6)(B),
namely, possessing a user quantity of methamphetamine. Downey argues on appeal
the government failed to prove that the substance he possessed was methamphetamine
or that he possessed the firearm “in connection with” the drug possession offense.
We review for clear error the determinations that the substance was
methamphetamine and that Downey possessed the firearm “in connection with” the
methamphetamine offense. U.S.S.G. § 2K2.1(b)(6)(B); see also United States v.
Smith, 535 F.3d 883, 885 (8th Cir. 2008) (clear error review of “in connection with”
determination). It was the government’s burden at sentencing to establish the facts
by a preponderance of the evidence, and we apply our clear error review in light of
this standard. See, e.g., United States v. Holm, 745 F.3d 938, 940–41 (8th Cir. 2014).
The record shows officers responded after receiving a report of a robbery.
Downey matched the description of the alleged robber and ran from officers. While
running, he discarded a loaded firearm. Officers eventually captured and arrested
Downey in public. When booking Downey into detention, officers discovered two
bags of suspected drugs in a cigarette pack. A field test confirmed the presence of
methamphetamine and indicated the substance weighed approximately 0.5 grams.
The government conducted no additional testing.
Downey does not deny a field test occurred. Rather, he argues lab testing was
required. For sentencing purposes, however, lab testing is not required, and a court
may rely on circumstantial evidence such as field tests or testimony describing the
substance. See United States v. Lugo, 702 F.3d 1086, 1090 (8th Cir. 2013) (“[T]he
identity of a controlled substance can . . . be proved by circumstantial evidence and
opinion testimony.” (alteration in original) (citation omitted)); United States v.
Walker, 688 F.3d 416, 423 (8th Cir. 2012) (“The Guidelines do not require the
government to establish the identity, quantity, or purity of methamphetamine by
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laboratory analysis.”). Downey notes district courts are not required to infer from
circumstantial evidence that a substance is a prohibited drug. He fails, however, to
cite authority holding such an inference is impermissible. We find no clear error in
the court’s identification of the substance as methamphetamine.
Regarding the nexus requirement, “a firearm is possessed ‘in connection with’
a drug possession felony if it ‘facilitated, or had the potential of facilitating’” the drug
possession felony. Holm, 745 F.3d at 940 (quoting U.S.S.G. § 2K2.1(b)(6)(B) and
cmt. n.14(A)). “[W]hen a drug user chooses to carry illegal drugs out into public with
a firearm, an ‘in connection with’ finding ‘will rarely be clearly erroneous.’” Id. at
940 (citations omitted). Here, the district court viewed the firearm as emboldening,
and therefore facilitating, Downey in his choice to go out into public with illegal
drugs. Further, there exist no mitigating factors sufficient to show clear error. See,
e.g., Smith, 535 F.3d at 885–86 (finding an “in connection with” determination
clearly erroneous where: (1) the drug quantity did not exceed mere residue; (2) the
substance and defendant were discovered in the defendant’s home; and (3) the
defendant had not ventured into public armed and with drugs).
We affirm the judgment of the district court.
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