                                                                                                                           Opinions of the United
2003 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


9-30-2003

USA v. Gregory
Precedential or Non-Precedential: Precedential

Docket No. 02-3070




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                       PRECEDENTIAL

                           Filed September 30, 2003

     UNITED STATES COURT OF APPEALS
          FOR THE THIRD CIRCUIT


                 No. 02-3070


        UNITED STATES OF AMERICA
                      v.
            EDWARD E. GREGORY

On Appeal from the United States District Court
    for the Eastern District of Pennsylvania
     (Criminal Action No. 02-CR-00073-01)
      District Judge: Hon. Anita B. Brody

            Argued: July 18, 2003
Before: McKEE, BARRY and WEIS, Circuit Judges.

      (Opinion Filed: September 30, 2003)
                             2


                      ROBERT EPSTEIN, ESQ. (Argued)
                      Assistant Federal Defender
                      DINA CHAVAR, ESQ.
                      Research & Writing Specialist
                      DAVID L. McCOLGIN, ESQ.
                      Supervising Appellate Attorney
                      MAUREEN KEARNEY ROWLEY,
                       ESQ.
                      Chief Federal Defender
                      Defender Association of Philadelphia,
                       Federal Division
                      Suite 540 West — Curtis Center
                      Independence Square West
                      Philadelphia, PA 19106
                      Attorneys for Appellant
                      JOHN J. PEASE, ESQ. (Argued)
                      Assistant United States Attorney
                      ROBERT A. ZAUZMER, ESQ.
                      Assistant United States Attorney,
                       Senior Appellate Counsel
                      LAURIE MAGID, ESQ.
                      Deputy United States Attorney for
                       Policy and Appeals
                      PATRICK L. MEEHAN, ESQ.
                      United States Attorney
                      615 Chestnut Street, Suite 1250
                      Philadelphia, PA 19106
                      Attorneys for Appellee


                OPINION OF THE COURT

McKEE, Circuit Judge.
   We are asked to determine if the district court correctly
determined that the defendant possessed a gun “in
connection with” his offense of conviction as defined in
U.S.S.G. § 2B5.1(b)(4). The district court imposed the three-
level sentencing enhancement set forth in that guideline
after the defendant pled guilty to violating 18 U.S.C. § 472
(passing or attempting to pass counterfeit currency). It is
undisputed that Gregory had a gun on his person when he
                               3


committed the crime he pled guilty to. For the reasons that
follow, we will remand for further proceedings consistent
with this opinion.

                               I.
   Edward Gregory was arrested along with an associate
after Gregory passed counterfeit currency at Caesar’s
Palace in Atlantic City, New Jersey. His codefendant had
purportedly called him and suggested that they go to
Atlantic City to gamble with counterfeit money the co-
defendant had. Gregory agreed.
   Gregory wore a jacket into the casino and used the
counterfeit money to purchase chips. However, after
handing the counterfeit money to a teller, he was instructed
to step into a back room. Police were called, and a state
trooper subsequently entered the room where Gregory was
waiting. The trooper advised Gregory that he wanted to
question Gregory about counterfeit currency. He then asked
if Gregory possessed any weapons. According to statements
Gregory made at the ensuing change of plea colloquy,
Gregory then realized for the first time that he had a gun
in the pocket of his jacket. He immediately told the trooper
about the gun, and he was placed under arrest. When
asked why he was carrying a gun to the casino, Gregory
explained that he had put it in his jacket for protection on
an earlier date and simply forgot that he was carrying it
when he entered the casino that evening.
   Gregory subsequently pled guilty to violating 18 U.S.C.
§ 472. As we noted at the outset, the district court imposed
a three-level enhancement under U.S.S.G. § 2B5.1(b)(4)
after accepting Gregory’s change of plea and reviewing the
presentence report. U.S.S.G. § 2B5.1(b)(4) provides: “If a
dangerous weapon (including a firearm) was possessed in
connection with the offense, increase by 2 levels. If the
resulting offense level is less than level 13, increase to level
13.”
  Gregory’s base offense level before this enhancement was
10, so the court raised it to 13 pursuant to this weapons
enhancement. The court then granted a two-level decrease
for acceptance of responsibility under U.S.S.G. § 3E1.1(a),
                             4


making Gregory’s base level 11 and resulting in a
sentencing range of 8 to 14 months. The district court then
imposed a sentence of four months of imprisonment and
four months of house arrest.

                            II.
  The parties do not agree on the district court’s basis for
imposing the U.S.S.G. § 2B5.1(b)(4) enhancement. Gregory
argues that it was imposed as a matter of law, and the
government insists that it is based on a finding of fact.
According to Gregory, the court erroneously concluded that
the enhancement automatically applied because he had a
gun in his possession when arrested. According to the
government, the court concluded from the evidence that
Gregory did actually possess the gun “in connection with”
counterfeit currency and therefore the enhancement was
proper. Inasmuch as our analysis turns on the basis for the
enhancement, we will begin by determining why the district
court applied U.S.S.G. § 2B5.1(b)(4).
  More precisely, Gregory argues that the district court
expressly stated that it was not resolving the factual
dispute about whether or not he possessed the firearm “in
connection with” the underlying offense. Instead, he argues
that the district court found that United States v. Loney,
219 F.3d 281 (3d Cir. 2000), mandates an enhancement
under § 2B5.1 for possessing a gun “in connection with” a
crime whenever a defendant possesses a gun during an “in-
person transaction” such as this counterfeit money offense.
Because the district court misunderstood Loney, the
defendant argues, we should exercise plenary review of the
district court’s legal conclusions and remand for
resentencing.
   The government argues that the district court correctly
understood that Loney merely permits an inference that the
gun was possessed in connection with a crime because the
gun was on Gregory’s person when he committed the
offense. It argues that the district court therefore made a
factual determination that Gregory had the gun in
connection with the counterfeiting offense based on the
undisputed facts conceded during the guilty plea colloquy.
                              5


   We must review the record of the sentencing proceeding
to determine whether the court’s decision was based upon
its legal analysis, or whether it was an exercise of discretion
based upon its factual conclusions regarding the offense.
Cf. United States v. Mummert, 34 F.3d 201, 205 (3d Cir.
1994).

             A.   The Sentencing Proceeding
   At sentencing, the district court heard argument from the
government and the defendant about the applicability of
U.S.S.G. § 2B5.1(b)(4). The government argued that the
court could reasonably infer that the gun potentially
facilitated the offense, i.e. that it was possessed “in
connection with” the crime, without finding a causal nexus
between the gun possession and the crime itself. It rested
its argument on its contention that our holding in Loney is
not limited to drug transactions though the underlying
crime there involved drug dealing. According to the
government, the holding as well as the analysis of Loney go
beyond the realm of drug violations and can be applied with
equal force here. The district court explained its
interpretation of the application of the enhancement and
the scope of Loney as follows:
    . . . I think that the defendant is correct that it’s fact-
    intensive. However, I think the standard has been very
    clearly set forth in the Loney case and I think that [a
    section of the case] says more generally we conclude
    that when a defendant has a loaded gun on his person
    while caught in the midst of a crime that involves in-
    person transactions, whether involving drugs or not, a
    district judge can reasonably infer that there is a
    relationship between the gun and the offense . . . .
    There is no requirement for a causal nexus and I don’t
    think that any has been established but it’s certainly
    reasonable to conclude and to infer that that gun was
    taken to protect currency and to be sure that [the
    defendant’s] person was protected. I don’t think it’s a
    strict liability case as stated by the government.
                               * * *
                               6


    I don’t think it’s terribly persuasive that . . . it was not
    actually his counterfeit money. I don’t think it’s
    relevant that he had a coat on at the time. [The court
    then names other facts that are not relevant.] I don’t
    think any of those things are relevant for me to decide
    the applicability of this section. So I think it’s a very
    close question. . . . I assume that you’re going to take
    it up on appeal because it certainly belongs up there.
                               * * *
    [The defendant ought to consider taking an appeal]
    because I think it is a close question and I think that
    it’s one that can easily be made to the Third Circuit
    because all the facts are there. I’m not making any
    factual determination, so theirs will be a de novo
    review. So I actually invite an appeal. . . . I invite an
    appeal because I think it will extend the parameters of
    the ruling in Loney.
R. 78a-80a (emphasis added). Later in the hearing, the
court invited the defendant to speak. The defendant
responded by offering the following explanation of why he
had a gun in his possession when arrested:
    [The codefendant] came to me and . . . he said he had
    a. . . way that we could get a couple of dollars. It was
    the same day that we went down there, he just told me
    that he had the money, and we went down there just
    on a whim, you know. I always carried the firearm after
    a few things happened in the past. I’ve been stuck up
    a few times . . . I’ve had a few people threaten me,
    things like that, so I just felt safer with a firearm on my
    possession. . . . So, you know, once we got down there
    I just hopped out of the car, you know, I didn’t even
    really, honestly, think about that I still had a gun.
R. 84a-85a. In response, the court said: “Well, that’s kind
of decided already on the basis of law.” R. 85a. The only
reasonable interpretation of the court’s response is that it
believed   that   the   application   of   the  sentencing
enhancement under U.S.S.G. § 2B5.1(b)(4) was “decided
already” based upon the plea and the fact a gun was in
Gregory’s possession, and that the court was therefore
obligated to apply the enhancement pursuant to Loney “on
                                    7


the basis of law.” Thus, although the court correctly noted
that the U.S.S.G. § 2B5.1(b)(4) enhancement is not
tantamount to “strict liability,” it nevertheless appears to
have applied that enhancement based upon nothing other
than the fact that Gregory had a gun in his possession
when arrested, with no finding whatsoever of a nexus
between that possession and his substantive offense. It
therefore appears that the court assumed that Loney
required an enhancement under U.S.S.G. § 2B5.1(b)(4)
whether or not the gun was in any way related to Gregory’s
criminal conduct. This reading is reinforced by the district
court’s statement that we would have de novo review in the
event the defendant took the appeal that the court was
encouraging. Accordingly, we will take this opportunity to
clarify any ambiguity about the scope of our analysis in
Loney.1

                   B.   United States v. Loney
   Loney was discovered standing on a porch at 5:30 a.m.
when police responded to a report of a burglary. Upon
frisking him, police found approximately 30 packets of
heroin and a loaded semiautomatic hand gun. 219 F.3d at
283. He was thereafter arrested and convicted of charges
related to his heroin possession. At sentencing, the court
applied a sentencing enhancement under U.S.S.G.
§ 2K2.1(b)(5). That provision provides for a four-point
enhancement “for possessing a firearm ‘in connection with’
[a] drug offense.”2

1. In any event, since our analysis of the record leads us to remand for
resentencing, the district court will be in a position to clarify its
statement if this is not what it intended.
2. Although Loney involved an enhancement “in connection with” a drug
offense under U.S.S.G. § 2K2.1(b)(5), and we are concerned with an
enhancement “in connection with” a non-drug offense under U.S.S.G.
§ 2B5.1(b)(4), nothing in the guidelines suggests a reason to distinguish
between the operation of those two enhancements other than the
offenses they apply to. Therefore, although identical language in different
parts of a statute will sometimes have different meanings, we agree with
the district court and parties that this is not such a situation, and there
is no reason to distinguish the application of U.S.S.G. § 2B5.1(b)(4) from
the analysis in Loney. Cf. In re Cybergenics, 330 F.3d 548, 559 (3d Cir.
2003) (en banc) (stating that there is a natural presumption that
identical words used in different parts of the same act are intended to
have the same meaning).
                                   8


   On appeal, Loney argued that the sentencing court erred
in applying a weapons enhancement because he was
carrying the weapon solely for his own protection after
witnessing a friend’s murder. According to Loney, there was
no evidence “tying the gun to his drug trafficking.” Id. We
rejected that argument. In doing so, however, we did not
hold that the weapons enhancement automatically attached
to possession of a weapon during the predicate criminal
offense. Rather, “in connection with” required some
relationship between the possession and the substantive
criminal offense the enhancement applied to. After
discussing several connotations of the phrase “in
connection with,” we concluded that, “these definitions
suggest that the phrase ‘in connection with,’ expresses
some relationship or association, one that can be satisfied
in a number of ways such as a causal or logical relation or
other type of relationship.” Id. at 284.
  This does not, however, mean that the government must
show a causal relationship between the weapon and the
criminal offense. As we noted in Loney, the enhancement
applies to possession as well as use, and a concealed
weapon can further a criminal objective even if a defendant
never lets anyone know that he/she is in possession of it.
Id. at 285. In fact, common sense would suggest that the
possibility that a drug trafficker has a concealed weapon
may well keep those he/she deals with “in line” without the
need of ever using the weapon or even revealing it.
Therefore, the all-too-familiar potential for violence that
infests nearly every aspect of drug trafficking provides the
“relationship or association” necessary for the application of
a weapons enhancement. However, even in the drug
context, this does not mean that the enhancement will
automatically apply even though a sentencing court may
believe that a given defendant’s possession did not
facilitate, and was not intended to facilitate, criminal
activity. It simply means that the social costs attending
possession of firearms, and the dangers endemic in drug
trafficking, allow an inference that a given defendant
possessed a weapon “in connection with” his/her drug
trafficking. But Loney does not compel that inference, and
our analysis there is not to the contrary.3 Rather, we simply

3. If, for example, a security guard or law enforcement officer purchased
cocaine from a street level dealer as the guard/officer was on his/her
                                   9


held that the circumstances attendant to drug sales justify
a rebuttable inference that weapons are possessed “in
connection with” that trafficking and, therefore, a person
possessing weapons under such circumstances is subject
to the prescribed weapons enhancement.
  Here, however, the record is unclear as to whether the
district court believed that the circumstances of Gregory’s
possession were sufficient to support a conclusion that he
possessed the gun “in connection with” the counterfeiting,
or whether the court merely concluded that the
enhancement for doing so automatically attached to the
possession. The former situation would allow for an
enhancement under U.S.S.G. § 2B5.1(b)(4) which we would
review to determine if that factual conclusion was clearly
supported by the record. The latter situation, however,
would be an erroneous application of U.S.S.G. § 2B5.1(b)(4)
which we would afford de novo review. United States v.
Bennett, 161 F.3d 171, 190 (3d Cir. 1998), cert. denied, 528
U.S. 819 (1999) (“When reviewing the imposition of a
sentence under the federal sentencing guidelines, the
District Court’s findings of fact are measured by the clearly
erroneous test, but our review of the legal component of its
conclusion is plenary.” (internal citations omitted)).
  The district court never clearly stated that it found that
the gun was possessed in connection with the offense based
on the undisputed facts. However, the court did suggest
that to be the basis for the enhancement. It stated: “it is
certainly reasonable to conclude and to infer that that gun
was taken to protect currency and to be sure that his
person was protected.” As noted above, this is consistent
with the court’s pronouncement that the facts here did not
involve “strict liability.” However, as also noted above, the

way home from work, and was thereafter arrested for possession of a
controlled substance, he/she might be able to convince a sentencing
court that the gun in his/her possession at the time of arrest was purely
incidental to having just gotten off from work and had nothing to do with
the drug transaction. If the court believed that testimony, or if other
circumstances were sufficient to rebut or negate the inference that
normally arises in the context of possessing weapons while involved with
controlled substances, a weapons enhancement would not apply.
                                    10


court also clearly stated that it was not making any factual
finding and that our review would be de novo, thus
suggesting a purely legal question. This suggests a
misreading of Loney, for all the reasons we have explained,4
and a “strict liability” application of the enhancement
despite the court’s statement to the contrary. The most
appropriate way to resolve this ambiguity is simply to allow
the district court to clarify its application of the
enhancement and, if appropriate, to reconsider that
application pursuant to our explanation of Loney.

                                   III.
  Accordingly, for all the reasons set forth above, we will
remand to the district court for further proceedings
consistent with this opinion.




4. The district court used the term “in-person” crime to describe the
circumstances when a gun would be possessed “in connection with” the
underlying offense. Although there is some appeal to this limitation, it is
too narrow. Loney involved a suspected burglary, although the defendant
was arrested when drugs were found in his possession. However, had
Loney been apprehended in possession of a firearm while burglarizing an
abandoned property that he knew to have been vacant, we can not rule
out the possibility that a sentencing court could still conclude that such
possession was “in connection with” the burglary even though one could
not fairly describe that crime as an “in-person” crime. For example, if the
circumstances allowed an inference that he possessed the weapon to
assist in flight if apprehended, the necessary relationship between the
criminal activity and the firearm would still exist even if the crime were
truly not an “in-person” crime. However, we note that the relationship
must rest on something other than pure speculation. As we note above,
the circumstances endemic to drug trafficking can establish the
relationship without engaging in speculation. However, when a court is
faced with crimes that do not suggest the same potential for violence as
drug trafficking, the relationship becomes far more tenuous, and the
danger of unwarranted speculation increases. This may, in fact, have
been what the district court was suggesting by referring to “in-person”
crimes.
                            11




A True Copy:
        Teste:

                 Clerk of the United States Court of Appeals
                             for the Third Circuit
