Monday, March 12, 2018

Carrying a gun near (somebody's) drugs not enough for sentencing enhancement

If we know anything by now, it's that guns + drugs = a higher sentence, right?

Not always. Case in point: United States v. Ferrell.

Defendant Ferrell pleaded guilty to being a felon in possession of a firearm. State parole officers had been looking to serve a warrant on Mr. Ferrell when they saw him go into a garage while carrying a gun, near an area of the garage where drugs were later found. On not much more than this evidence, the district court gave Mr. Ferrell a four-level sentencing enhancement under USSG § 2K2.1(b)(6)(B) (possessing a firearm in connection with another felony offense, in this case drug possession).

In a very fact-intensive opinion, the Tenth Circuit reversed. The Court held that carrying a gun in proximity to drugs absent sufficient evidence that the defendant possessed the drugs was not enough to support the enhancement.

Know what elements are necessary for every enhancement. Challenge those elements. You just might win.

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