Tuesday, October 08, 2013

Disassembled Firearm Found Near Drugs Sufficient for § 2K2.1(b)(6)(B) Enhancement & § 922(g)(1) Still Constitutional

The panel found that the U.S.S.G. § 2K2.1(b)(6)(B) 4-level enhancement“[i]f the defendant used or possessed any firearm . . . in connection with another felony offense”applies to a drug trafficking offense if a disassembled firearm is found in close proximity to drugs, as per the application note.  The PSR described the firearm being found in the bedroom with the drug-manufacturing materials and paraphernalia, and Alcantar didn’t present any evidence rebutting the proximity of the firearm.  Instead, Alcantar provided evidence that the firearm was disassembled, that he didn’t know how to assemble it, and that he didn’t have any ammunition for it.  The panel was unconvinced, basically saying that the Guideline explanation of “in connection with” doesn’t require that the firearm actually be used in furtherance of the offense.  Close proximity is sufficient, and the district court didn’t err in applying the enhancement.

Alcantar also argued that 18 U.S.C. § 922(g)(1), convicted felon in possession of a firearm, is unconstitutional facially and as-applied because it exceeds Congress’s Commerce Clause authority.  He recognized that this argument is foreclosed by Fifth Circuit precedent but argued that the Supreme Court’s decision in National Federation of Independent Business v. Sebelius, 132 S. Ct. 2566, 2587 (2012), overrules that precedent.  The panel disagreed since National Federation involved Obamacare and not § 922(g)(1).  Still, food for thought.

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