Not a BOGO: Gun and Drug Sales Are Separate – Update for December 13, 2017

We post news and comment on federal criminal justice issues, focused primarily on trial and post-conviction matters, legislative initiatives, and sentencing issues.


bogo171211Where have we heard of this one before? Darryl Jackson found a buyer for some heroin. Unfortunately, the buyer was an informant, and he showed up to the buy with an undercover agent as his driver.

After the heroin transaction, the undercover cop-driver convinced the informant to ask Darryl about buying a gun as well as the drugs. Darryl wasn’t stocking any guns right then, but he wanted to keep the customer satisfied, so he walked home, grabbed a gun he had lying around the house, and returned to sell it to the informant.

The sale worked so well that Darryl apparently saw an opportunity to develop a side business. He sold the informant another gun a month later, and then a few minutes after the transaction, sold the undercover cop a gram of smack.

Naturally, Darryl was arrested and pled guilty. We wouldn’t have a story otherwise. Darryl’s presentence report included a 4-level enhancement to his advisory Guidelines sentencing range under USSG 2K2.1(b)(6)(B) for “possessing a firearm in connection with another felony offense, to wit: distribution of heroin.”

daddy171213Darryl’s lawyer objected that “the guns and the drugs were not connected in any way, except to the extent that Mr. Jackson sold each of them, at different times, to the CI.” At sentencing,  counsel contended, “In terms of the furtherance, there’s no close proximity. There’s no drugs and guns next to each other. They’re basically separate transactions.”

Alas, the district court did not buy it. Darryl got 100 months in prison, while with the four levels removed, his range would have been on the order of 77 to 96 months.

Last week, the 6th Circuit reversed. The appellate court said that “the § 2K2.1(b)(6)(B) enhancement applies if the defendant actually or constructively possessed the gun in connection with the felony. Because the record reveals no reason to conclude that Jackson actually possessed or used either gun in connection with the two drug sales, we focus here on constructive possession.”

Because he did not have a gun with him, the Circuit observed, Darryl had to walk a block away to retrieve the gun that he then exchanged for money. Because the gun was down the block during the initial heroin sale and because Darryl had no reason to expect there even would be a gun sale when he bought the drugs, there is no evidence that he “had either the power or the intention to exercise dominion or control over the gun in connection with this first sale of heroin.”

violence171213Actually, this is exactly how the Guidelines provision (and statutes like 18 USC 924(c)) are supposed to work. Darryl had a gun, but he did not carry it during a drug transaction. Maybe he worried about the extra time he could get for doing so. Maybe he worried about hurting someone. Maybe it was too heavy and made his pants droop. No one knows his thought processes, but the goal – short of ridding ourselves of drug trafficking altogether – is to get the violence out of the trade.  The 6th Circuit’s wise parsing of the offense into two separate transactions honors this goal.

United States v. Jackson, Case No. 1602415 (6th Cir. Dec. 5, 2017)

– Thomas L. Root


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