US v. Lashaun Bolton (4th Cir, 6/7/17): Important federal sentencing case re: Firearm Enhancement and Acceptance of Responsibility

Not good news for criminal defendants, but an important case to be aware of if you’re representing defendants ensnared in a “guns and drugs” conspiracy indictment. The details are not really important, but two facts are: (1) the firearm used to enhance Bolton’s sentence was discovered outside the timeframe of illegal activity alleged in Bolton’s first indictment, and (2) while Bolton was awaiting sentencing on his first indictment (the marijuana indictment), he was arrested and charged with crimes that constituted his second, “cocaine indictment.”

Federal Sentencing Guideline 2D1.1(b)(1) allows for an enhancement if a firearm “was possessed” in connection with a drug trafficking offense unless the connection between the firearm and offense was “clearly improbable.” For the enhancement to apply, the Government has the initial burden of “proving possession of a weapon in connection with drug activities” by a preponderance of the evidence.  United States v. Manigan, 592 F.3d 621, 632 n. 8 (4th Cir 2010).  To meet its burden, the government must prove the defendant possessed a weapon “in connection with drug activity that was part of the same course of conduct or common scheme as the offense of conviction.”  Manigan at 628-29.  Although the government does not need to prove “precisely concurrent” drug trafficking and weapons possession, it must at least prove “a temporal and spatial relation” linking “the weapon, the drug trafficking activity, and the defendant.”  United States v. Clark, 415 F.3d 1234, 121 (10th Cir. 2005).  Once the government makes that showing, then the defendant can show that the link is “clearly improbable”, by presenting circumstantial evidence such as the type of weapon involved and its location or accessibility.  See Manigan, 592 F.3d at 629.  Here, the government located the firearms almost 2 years after the end of the marijuana conspiracy.  The Court found it was still acceptable to use it as an enhancement because the conduct relevant to the enhancement is not confined to the crime of conviction, but can include drug amounts, money from drug sales, and guns possessed while engaging in drug sale, “related to, though not distinct from, the crime of conviction.”  United States v. Falesbork, 5 F.3d 715, 720 (4th Cir. 1993).  In other words, since these guns were found while Bolton was doing kind of the same thing he had been doing before when he was engaged in the marijuana conspiracy, that was close enough for the district court to find the enhancement proper. Also, in this case, the court rejected Bolton’s claim that the gun was possessed for purposes of hunting.

Another important take-away from the case is the district court’s rejection of Bolton’s sentence reduction for acceptance of responsibility even though Bolton surrendered himself in a timely manner, cooperated with law enforcement, and pleaded guilty.  Despite all of these things, the court denied the reduction because Bolton was out on bond for his first indictment when he picked up his second charge.  I think, as a policy issue, this is a very bad idea.  Essentially the Court is creating a situation where there is absolutely no reason for a defendant to cooperate with a federal prosecution if he or she is picked up on subsequent charges while out on bond. Not only will the holding in this case impact investigations into these other potential conspiracies, but it also means more defendants are going to head to trial instead of resolving their cases by way of guilty pleas. Frankly, that’s probably not a bad thing for criminal defendants, but it will constitute a drag on judicial and law enforcement resources.  Anyway, the district court judge here imposed an upward departure of 40 months on this first time offender.  There’s some severe justice coming out of the Middle District of North Carolina and at least at this point, the Fourth Circuit is not inclined to help out this defendant.