US v. Mondragon (4th Cir., 6/21/17) Second Federal Gun Enhancement Case this Month; 4th Circuit Clarifying Law Surrounding Gun Enhancements.
The Fourth Circuit appears interested these days in clarifying the rules surrounding gun enhancements in the context of federal drug trafficking conspiracies. See US v. Bolton, ___ F.3d__, No. 16-4077, 2017 WL 2468720, (4th Cir. June 7, 2017). Here, Mondragon was convicted of conspiracy to distribute methamphetamine, and he received a 2 level enhancement provided for by USSG §2D1.1(b)(1). The court relied on statements by two coconspirators who reported that one of them “saw Mondragon take apart or “break down” a revolver” while at that coconspirators residence, and the other reported he had seen “Mondragon with at least two handguns” in the past. That’s it. Those are the statements. Mondragon objected to the enhancement because the record did not show that his possession of the guns bore any relation to his drug-trafficking activities.
Mondragon argued the enhancement didn’t apply because the government failed to present evidence showing that his “possession of a firearm had any relation to drug trafficking activity.” In making this argument, he relied on United States v. McAllister, 272 F.3d 228 (4th Cir. 2001) which reversed the application of the weapon enhancement under the statute because “without a description by the witness of the circumstances under which she saw the defendant possess handguns, the District Court [could] only speculate regarding whether the witness ever observed the defendant in possession of a handgun during a drug transaction.” Id. at 234.
The law on this issue is clear:
The government bears the initial burden of proving, by a preponderance of the evidence, that the weapon was possessed in connection with the relevant illegal drug activity. United States v. Manigan, 592 F.3d 621, 638 (4th Cir. 2010). The government need only prove that the weapon was present, which it may do by establishing a temporal and spatial relations linking the weapon, the drug trafficking activity, and the defendant.” United States v. Bolton, ___ F.3d__, No. 16-4077, 2017 WL 2468720, at *4 (4th Cir. June 7, 2017). If the government carries its burden, the sentencing court presumes that the weapon was possessed in connection with the relevant drug activity and applies the enhancement, unless the defendant rebuts the presumption by a showing that such a connection was “clearly improbable.” USSG §2D1.1(b)(1) cmt. n.11(A).
In this case, the Court found that the Government met its burden. The Court pointed to the fact that the co-conspirator who gave one of the statements, only knew the defendant during the course of the conspiracy. Therefore, this incident took place during the drug-trafficking conspiracy, and it satisfied the temporal requirement. Also, the Court found that there was additional sufficient circumstantial evidence to support this finding. This co-conspirator was acknowledged to be the defendant’s closest associate in the drug trafficking organization. Therefore, the Court found it was reasonable for the District Court to infer that the defendant’s visit to the co-conspirators’ house (when he saw the gun) was related to these ongoing drug trafficking activities.
At oral argument, Mondragon argued that the government failed to show that he possessed a weapon at all because it relied solely on the presentence report’s summary of the coconspirators’ statements to law enforcement officers, instead of presenting live testimony in court. The Court found (after raising the issue of a procedural bar but then addressing the claim on its merits anyway) that for purposes of sentencing, a court may consider any relevant information, including uncorroborated hearsay, provided that the information has sufficient indicia of reliability to support its accuracy.” United States v. Wilkinson, 590 F.3d 259, 269 (4th Cir. 2010). The burden is on the defendant to show that the information in the presentence report is unreliable, and articulate the reasons why the facts contained herein are untrue or inaccurate. United States v. Terry, 916 F.2d 157, 162 (4th Cir. 1990). So, Mondragon loses on that score, too.
The Court looks to be clarifying its jurisprudence on this very common legal issue. Best to keep an eye out if you’re representing clients alleged to have possessed guns during the course of their drug conspiracies.