Consider the following interaction between three people: Darryl Jackson (the defendant); Cecil (the confidential informant), and Peter (the undercover police officer):
[Darryl emerges from a nearby house]
Cecil: Hey, Darryl, I’d like to buy a gram of heroin.
Darryl: Sure thing. That will be $120.
[After Darryl hands Cecil the heroin]
Cecil: Hey, I’m in a bit of a pickle. Do you know where I can pick up a pistol?
Darryl: Not really… Well, I might have one I can sell you.
Cecil: I’ll buy it from you for $300.
Darryl: How about $400?
[Darryl walks to a different house down the street and returns a few minutes later. Darryl and Cecil exchange the pistol for cash and depart.]
[A few days later]
Darryl: Hey, Cecil, I have another gun for sale for $500.
Cecil: Sure, let’s meet where we met up last time.
[The two meet and make the transaction.]
Cecil: Hey, I know someone else who wants to buy some heroin. Are you interested?
Cecil: Great, let’s meet at that car over there.
[Darryl walks to get heroin. Cecil leaves the area and gets into the police car with Peter. A few minutes later, Darryl gets in the car.]
Darryl: Here’s your half-gram of heroin. That’ll be $45.
Peter: Here you go. Thanks.
What do you think? Did Darryl use or possess those guns in connection with the drug transactions? That was the question the Sixth Circuit had to answer in United States v. Jackson.
U.S.S.G. § 2K2.1(b)(6)(B) requires increasing the offense level “[i]f the defendant . . . used or possessed any firearm or ammunition in connection with another felony offense.” To answer that question, the Sixth Circuit helpfully outlined the typical circumstances where the enhancement applies:
- Fortress: When guns are in close proximity to the drugs, and so the judge can infer that the defendant kept the guns nearby to protect the drugs or to intimidate buyers.
- Pot Sweetener: When guns and drugs are part of a package deal. For example, if the sale is for 60 pills and a shotgun in exchange for $600, instead of $400 for the pills alone.
- Currency: Using firearms as currency in exchange for drugs. For example, 1 gram of heroin in exchange for one rifle.
The majority of the panel concluded that the events described above did not fit within any of these three theories. First, the majority asked, How is the gun offering any offensive or defensive protection down the street? Not much. There was also no evidence Darryl brought a gun and drugs to the second meeting either. As far as anybody knew, the guns and drugs were always separated or even in different houses.
Second, even though the gun and drugs were technically present during the second meeting, Darryl had already sold the gun to Cecil, and so there was no risk he would use the gun to facilitate the drug sale.
Third, the guns never sweetened any of the deals. Each sale was isolated: two sales where Darryl received cash in consideration for heroin; and two sales where guns were exchanged for cash. The separate sales for separate consideration could hardly be part of the same sweet pot. Nor did Darryl and Cecil ever use the guns as currency.
Because Darryl did not come armed during the sales, store guns and drugs together, trade guns for drugs, or negotiate the gun and drug sales together, § 2K2.1(b)(6)(B) did not apply to him. That finding of fact has tremendous consequences for Darryl; his guidelines range dropped from 110-137 months to 77-99 months. If he receives a 10-month downward variance as he did before, he could serve 33 fewer months in prison. That's nearly three years. In sentencing, findings of fact matter.