Second Circuit Affirms Firearms Enhancement
In United States v. Ryan, 17-3919-cr (Jacobs, Lohier, Carney), the Second Circuit affirmed a four-level enhancement under U.S.S.G. § 2K2.1(b)(6)(B) for using a firearm in connection with another felony offense. Appellant Maurice Wood, along with co-defendant Jahkeem Ryan, sold heroin to a confidential informant on four occasions. In connection with the third sale only, Wood agreed to sell the CI a Smith and Wesson AR-15 rifle and a Mossberg shotgun, along with heroin. Wood did not, however, have the firearms with him at the time of the sale, and instead gave the CI additional heroin.
Wood was arrested and later pleaded guilty to two counts of possession with intent to distribute heroin, and one count of possession of a firearm by a convicted felon. At sentencing, the district court (Kahn, J.) applied a four-level enhancement pursuant to U.S.S.G. § 2K2.1(b)(6)(B), and sentenced Wood principally to 57 months’ imprisonment. On appeal, Wood argued that the enhancement was erroneously applied. The Second Circuit rejected this argument.
2K2.1(b)(6)(B) provides for a four-level enhancement when the defendant: (1) “used or possessed any firearm or ammunition in connection with another felony offense”; or (2) “possessed or transferred any firearm or ammunition with knowledge, intent, or reason to believe that it would be used or possessed in connection with another felony offense.” Since the district court did not specify under which clause it applied the enhancement, the Second Circuit analyzed both.
Under existing Circuit precedent, the “in connection with” clause is satisfied as long as the firearm “serve[d] some purpose with respect” to the underlying “felonious conduct.” Citing this standard, the Court held that Wood’s use of firearms to “sweeten the pot,” i.e., make the transaction more appealing to the buyer, was sufficient. The “reason to believe” clause was also satisfied, as prior case-law established that selling dangerous weapons to known drug dealers is sufficient “reason to believe that [they] would be used or possessed in connection with another felony offense.” Wood had sold the CI distribution quantities of heroin on two prior occasions, and accordingly knew that the CI was a drug dealer.
Ryan reaffirms that the “in connection” requirement of Section 2K2.1b(6)(B) is not a high bar, and establishes that selling a firearm along with drugs to a known drug dealer will almost always trigger an enhancement under the “reason to believe” clause. As a matter of policy, the case required the Court to balance two competing concerns. On the one hand, firearms in the hands of drug dealers are a menace. The agents acted prudently to try to take two firearms off the streets, including an AR-15. At the same time, there is a potential for abuse: federal prosecutors and agents know that there are stiff penalties associated with the use of firearms in connection with drug dealing. The factual recitation in the opinion does not explain how this transaction was negotiated—whose idea was it to include a firearm in the deal—and the failure of the defendant to produce the firearm makes one wonder if the firearm was ever going to be given to the agents. In any event, the Court’s decision makes clear that even a “dry” agreement to sell a firearm will usually lead to a sentencing enhancement.