CRIMINAL COURT NEWS
Guns and Drugs: Help from the Fifth Circuit? BY DAN DWORIN
D an Dworin is a criminal defense attorney licensed in the Western District of Texas since 1997. He is board certified in criminal law by the Texas Board of Legal Specialization. dworinlaw.com.
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t is not uncommon for defendants facing drug charges in federal court to see the enhancements added to their sentencing guideline range based on possession of a firearm. The use or possession of a firearm in connection with a drug crime can lead to a longer sentence based on various provisions of the U.S. Sentencing Guidelines and the federal criminal statutes. Federal judges tasked with sentencing defendants are required to consider the application of the federal sentencing guidelines. These guidelines, though not
binding on the judge, are, however, generally fairly persuasive. Thus, there is often litigation at sentencing hearings over various facts that are determined by the U.S. Probation Department in preparation of a “pre-sentence report,” which contains the department’s calculation of the applicable guidelines. One area which is often litigated regarding sentencing is whether a firearm found on or near a drug defendant can be considered to have been possessed by the defendant in connection with the drug crime. Under U.S. Sentencing Guideline 2D1.1(b)(1),1 two points are added to the base offense level for the drug crime if a firearm was possessed in connection with the offense. Recently, the Fifth Circuit considered a case in which a sentencing judge had applied the firearm enhancement over the defendant’s objection.2 In Sincleair, the defendant had sold methamphetamine to another individual who later sold some of it to another customer. It so happened that when the police executed a search warrant on the home of the man to whom Sincleair had sold the drugs, Sincleair himself was present using drugs with some other people.3 A
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firearm was also found on a table near where the defendant and others were sitting.4 The Court vacated and remanded the sentence for the district court to make specific findings about whether it believed that Sincleair personally possessed the firearm, or whether a co-defendant’s possession of the firearm could be reasonably attributed to him.5 Nevertheless, the Court made it fairly clear that it did not think there was a valid legal rationale to find Sincleair possessed the gun under either theory. The Court noted that the gathering at which Sincleair was arrested was not part of his drug transactions, nor was there anything to connect him specifically to the firearm. A “temporal and spatial connection” between the
firearm and the drug offense is required for the enhancement to be correctly applied.6 Defense attorneys dealing with federal drug cases with firearms somewhere in the factual mix should carefully consider whether to file an objection to any attempt to enhance the sentence and not just assume that presence of a gun alone willAUSTIN satisfy the requireLAWYER AL AL ments of the Fifth Circuit. Footnotes 1. See U.S. Sentencing Commission, 2021 Guidelines Manual Annotated, https://www.ussc.gov/guidelines (last accessed Feb. 7, 2022). 2. United States v. Sincleair, 16 F.4th 471 (5th Cir. 2021). 3. Id. 4. Id. 5. Id. 6. Id. (citing United States v. Zapata-Lara, 615 F.3d 388 (5th Cir. 2010)).
Jeff Rose Mediation Arbitration Litigation Consulting Special Judge Proceedings Board Certified, Civil Trial Law Former: Chief Justice, 3rd Court of Appeals; District Judge; Deputy Attorney General
ROSERESOLUTIONGROUP.COM jeff@roseresolutiongroup.com 512.637.0931
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AUSTINLAWYER | MARCH 2022
Certified Mediator: Harvard Negotiation Program; Mediators and Arbitrators of America TEXAS SUPER LAWYER 2004, 2005, 2008, 2009
