                  NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
                             File Name: 11a0101n.06

                                           No. 09-5068

                            UNITED STATES COURT OF APPEALS
                                 FOR THE SIXTH CIRCUIT

                                                                                    FILED
UNITED STATES OF AMERICA,                                )                      Feb 10, 2011
                                                         )                LEONARD GREEN, Clerk
          Plaintiff-Appellee,                            )
                                                         )
v.                                                       )   On Appeal from the United States
                                                         )   District Court for the Western
ALVIN MCKENZIE, JR.,                                     )   District of Tennessee
                                                         )
          Defendant-Appellant.                           )
                                                         )




Before:          BOGGS and MCKEAGUE, Circuit Judges; and QUIST, District Judge*

          BOGGS, Circuit Judge. Defendant Alvin McKenzie appeals his fifty-seven-month sentence

for being a felon in possession of a firearm, in violation of 18 U.S.C. § 922(g). McKenzie challenges

the district court’s application of a four-level sentence enhancement for possession of a firearm “in

connection with” another felony offense, marijuana possession. Under §2K2.1(b)(6) of the United

States Sentencing Guidelines Manual (“USSG”), such a connection is established if the government

proves by a preponderance of the evidence that the firearm had the potential to facilitate the

additional offense. Here, we find that the government failed to meet this burden, as the only link

between the gun and the small amount of marijuana McKenzie possessed was their simultaneous

presence in his car. We therefore vacate the district court’s sentence and remand for re-sentencing.

          *
        The Hon. Gordon J. Quist, United States District Judge for the Western District of
Michigan, sitting by designation.
No. 09-5068
United States v. McKenzie

                                                   I

       The underlying facts in this case are not disputed.           On April 9, 2007, McKenzie,

accompanied by an unknown passenger, was pulled over by a Memphis police officer for driving

without a seatbelt and with an illegible temporary license tag. The officer observed a bag of

marijuana on the arm rest of the driver-side door and saw McKenzie reach several times between

his seat and the car’s center console.

       McKenzie got out of the car at the officer’s request, while his passenger fled. McKenzie

informed the officer that he had hidden a gun between the driver’s seat and the center console. He

claimed he had the gun for protection because he had been fired upon earlier that day. A vehicle

search revealed a loaded Pietro Beretta 7.65-caliber pistol. The officer also recovered a bag

containing 1.1 grams of marijuana. McKenzie was advised of his rights and arrested. A criminal

history search uncovered a previous felony conviction. On August 27, 2008, McKenzie pled guilty

to one count of being a convicted felon in possession of a firearm, in violation of 18 U.S.C. § 922(g).

       The pre-sentence report (“PSR”) assigned McKenzie an initial base offense level of 20. It

then applied a four-level enhancement, pursuant to §2K2.1(b)(6), for possession of a firearm in

connection with another felony offense: felony possession of marijuana. The PSR explained that,

under Tennessee law, possession of a controlled substance is a felony when a defendant has “two

or more prior convictions” for similar offenses. McKenzie had two prior adult convictions for

possession of a controlled substance. After a three-level reduction for acceptance of responsibility,

the PSR assigned McKenzie a total offense level of 21. McKenzie’s criminal history category was



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No. 09-5068
United States v. McKenzie

IV.   This    yielded an advisory Guidelines range of fifty-seven to seventy-one months of

imprisonment.

        At sentencing, McKenzie objected to the four-level enhancement, arguing that there was no

connection between the marijuana possession and the firearm. He argued that the small amount of

marijuana was clearly meant for personal use and explained that he was carrying the gun for personal

protection because he had been shot at earlier that day. The prosecutor conceded that there was no

evidence McKenzie was engaged in drug trafficking, but contended that, because possessing drugs

in any amount is “a dangerous business,” the simultaneous presence of the gun and the drugs in

McKenzie’s car was sufficient to connect the firearm to the drug offense.

        The district court found that under Tennessee Code Annotated § 39-17-418, McKenzie’s

marijuana possession would be considered a felony, given his two prior convictions for drug

possession. Looking to the Guidelines commentary, the court noted that, for the enhancement to

apply, the firearm must have “had the potential of facilitating” the drug offense. See USSG §2K2.1,

comment. (n.14(A)). The court concluded that because “the firearm and the marijuana were in close

proximity to each other[,] . . . . the firearm in this case did have the potential of facilitating another

felony offense.” The court then sentenced McKenzie to the low end of the Guidelines range.

McKenzie filed this timely appeal.

                                                    II

        This court reviews a sentencing decision for procedural and substantive reasonableness. See

Gall v. United States, 552 U.S. 38 (2007). The former includes review for “procedural error in the

calculation of the guideline range.” United States v. Bartee, 529 F.3d 357, 358 (6th Cir. 2008).

                                                  -3-
No. 09-5068
United States v. McKenzie

Although we review factual determinations made during sentencing for clear error, United States v.

Webb, 616 F.3d 605, 609 (2010), we review legal conclusions regarding the application of the

Sentencing Guidelines de novo, United States v. Hover, 293 F.3d 930, 933 (6th Cir. 2002). Thus,

we review de novo the question of whether a four-level enhancement was appropriate under

§2K2.1(b)(6) given the facts in this case.

                                                 III

       The Sentencing Guidelines instruct a court to increase a defendant’s base offense level by

four levels “[i]f the defendant used or possessed any firearm or ammunition in connection with

another felony offense.” USSG §2K2.1(b)(6). McKenzie need not have actually been charged with

drug possession for the marijuana possession to constitute an additional felony offense. See id.

§2K2.1, comment. (n.14(C)) (“‘Another felony offense’ . . . means any federal, state, or local offense

. . . punishable by imprisonment for a term exceeding one year, regardless of whether a criminal

charge was brought, or a conviction obtained.”). But for the enhancement to apply, the government

must “establish[ ], by a preponderance of the evidence, a nexus between” the felonious drug

possession and the firearm. United States v. Bullock, 526 F.3d 312, 317 (6th Cir. 2008) (quoting

United States v. Burns, 498 F.3d 578, 580 (6th Cir. 2007) (emphasis added)).

       In 2006, the Sentencing Commission clarified that, when the additional felony offense

involves drug trafficking, the sentencing enhancement applies whenever “a firearm is found in close

proximity to drugs, drug-manufacturing materials, or drug paraphernalia,” because “the presence of

the firearm has the potential of facilitating another felony offense.” USSG §2K2.1, comment.

(n.14(B)). In other cases, however, the enhancement applies only “if the firearm or ammunition

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No. 09-5068
United States v. McKenzie

facilitated, or had the potential of facilitating, another felony offense.” Id. §2K2.1, comment.

(n.14(A)). The contrast between these two sections of the commentary indicates that, while close

proximity between a firearm and drugs will suffice to justify the enhancement when an offender is

engaged in drug trafficking, in other cases the enhancement applies only if the government can

establish that the firearm actually or potentially facilitated that offense. This circuit’s case law

confirms that, while proximity may be “indicative of a connection,” the government cannot always

rely on proximity alone to establish a nexus. United States v. Angel, 576 F.3d 318, 321 (6th Cir.

2009) (noting that “proximity may not be dispositive”). Rather, “the defendant’s firearm possession

needs to reduce, or have the potential of reducing, the difficulty of completing the other offense.”

United States v. Richardson, 510 F.3d 622, 629 (6th Cir. 2007) (McKeague, J., concurring).

       In analyzing whether firearm possession is “in connection with” a drug felony, the Sixth

Circuit has adopted the “fortress theory.” Under that theory, a nexus between the firearm and the

drug felony exists “if it appears that the firearms . . . are to used to protect the drugs or otherwise

facilitate a drug transaction,” or “if the firearm had some emboldening role” in the drug offense.

Angel, 576 F.3d at 321 (quoting United States v. Henry, 878 F.2d 937, 944 (6th Cir. 1989)). The

government relies on the fortress theory in this case, arguing that the firearm allowed McKenzie to

“protect” his bag of marijuana and “emboldened” him to carry it in public. The government’s brief

argues that “one can reasonably surmise that but for the firearm, the Defendant would not have felt

safe enough to venture into public with his marijuana.”

       Determining whether possession of a firearm actually or potentially facilitated a drug offense

involves a fact-specific inquiry. Cases in which this court has applied the fortress theory have

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No. 09-5068
United States v. McKenzie

involved drug transactions, the use of firearms to protect a valuable stash of drugs, or some

indication that a firearm was used to keep the defendant safe while using or transporting drugs. See,

e.g., United States v. Rogers, 333 F. App’x 975, 976-77 (6th Cir. 2009) (unpublished) (enhancement

warranted where defendant carried gun to a drug transaction); United States v. White, 144 F. App’x

486, 487 (6th Cir. 2009) (unpublished) (defendant apprehended with gun and .3 grams of cocaine

in house “often used by others for selling drugs”); James v. United States, 217 F. App’x 431, 438

(6th Cir. 2007) (unpublished) (gun found in proximity to 33 grams of marijuana meant for resale);

United States v. Burns, 498 F.3d 578, 580 (6th Cir. 2007) (“[P]olice found the firearm in close

proximity to drugs and drug paraphernalia shortly after conducting a controlled buy at the

residence.”); Richardson, 510 F.3d at 627 (gun was found in proximity to “a large quantity of

marijuana and digital scales”); United States v. Clay, 346 F.3d 173, 175 (6th Cir. 2003) (defendant

apprehended in uninhabited apartment late at night with firearm, $575 in cash, and 1.6 grams of

crack); United States v. Hardin, 248 F.3d 489, 500 (6th Cir. 2001) (gun located near a “large stash

of cocaine” for sale); United States v. Ennenga, 263 F.3d 499, 503-04 (6th Cir. 2001) (defendant

“holed up” in basement apartment containing firearms and several dozen marijuana plants and

protected by an alarm system).

       Under the circumstances at hand, however, the government has not proven by a

preponderance of the evidence that McKenzie’s firearm had the potential to facilitate his marijuana

possession. We first note that, in this case, there was no evidence that McKenzie was engaged in

drug trafficking. There was no evidence as to where the marijuana came from, and the amount was

too small to support an inference of trafficking. Second, although the “fortress theory” cases indicate

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No. 09-5068
United States v. McKenzie

that, under some circumstances, a firearm can facilitate mere drug possession, this case involved a

very small amount of marijuana that was clearly meant for McKenzie’s personal use, not a valuable

quantity like those involved in Richardson, Hardin, and Ennenga. Indeed, possession of the 1.1

grams of marijuana found in McKenzie’s vehicle would normally constitute a misdemeanor. See

Tennessee Code Annotated §§ 39-17-401 et seq. Only McKenzie’s previous convictions led the

PSR to conclude that in his case possession of even this small amount would constitute a felony.

Even so, the street value of the marijuana was minimal.1 We also believe that the government’s

argument that McKenzie needed the Beretta to “embolden” him to carry a few dollars worth of pot

in public is somewhat implausible on its face—many people carry small amounts of pot without a

firearm. According to the PSR, McKenzie himself had been arrested before for smoking a joint in

public, and he had no firearm on his person on that occasion. Finally, although McKenzie told the

police he was carrying the gun for protection, the facts suggest that he feared for his life, not that

someone would steal a baggie of pot from his car.

       On nearly identical facts, the Fifth Circuit recently rejected the argument that a defendant’s

possession of a gun “emboldened” him to possess or served to “protect” the small amount of drugs

found in his car. United States v. Jeffries, 587 F.3d 690, 695 (5th Cir. 2009) (firearm and single


       1
        The record does not contain evidence of the actual value of the marijuana, but previous cases
and news articles indicate that 1.1 grams of marijuana was likely worth $2 to $15, depending on its
quality. See United States v. Jiminez, 564 F.3d 1280, 1283 (11th Cir. 2009) (117 pounds of
packaged marijuana worth approximately $350,000, or $6.59 per gram); United States v. Toliver,
374 Fed. App’x 655, 656 (7th Cir. 2010) (unpublished) (fifteen pounds of marijuana worth $10,000,
or $1.47 per gram); Chris Morris, As Medical Marijuana Proliferates, Pot Prices Decline
Nationwide, CNBC.com, Dec. 7, 2010, www.cnbc.com/id/40533630 (listing prices from $161 to
$452 per ounce, or $5.68 to $15.94 per gram).

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No. 09-5068
United States v. McKenzie

“rock” of crack cocaine found in a vehicle). That court explained, “the evidence that would allow

us to draw those conclusions must be something more than the simultaneous possession of a small

quantity of drugs and a gun in the same vehicle standing alone.” Ibid. Similarly, here there simply

is no evidence apart from mere proximity to connect the presence of the firearm in McKenzie’s car

with his possession of 1.1 grams of marijuana. The Sentencing Commission has made it clear that,

in felonies that do not involve drug trafficking, proximity alone is not sufficient. See USSG §2K2.1,

comment. (n.14). To rely solely on proximity to establish the required connection in this case, as

the district court seemed to do, would render the distinction in the Guidelines commentary between

drug trafficking and other felonies meaningless. Absent at least some additional connection,

therefore, the application of the sentencing enhancement was improper.

                                                 IV

       The government has failed to prove, by a preponderance of the evidence, that McKenzie

possessed a firearm “in connection with” his possession of marijuana. The district court therefore

improperly applied a four-level enhancement to his sentence. Miscalculation of a Guidelines range

constitutes a procedural error. Bartee, 529 F.3d at 358. We therefore VACATE McKenzie’s

sentence and REMAND his case for re-sentencing.




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United States v. McKenzie

        McKEAGUE, Circuit Judge, dissenting. While the majority correctly cites the controlling

precedent as established by this court, I believe that it has improperly applied it to the facts of this

case. Accordingly, I respectfully dissent from the majority’s opinion, and I would affirm the district

court’s application of the four-level enhancement under USSG § 2K2.1(b)(6).

        Although the majority cites to cases in which application of the enhancement has been upheld

in situations involving simple possession rather than a drug trafficking offense, it concludes that the

facts here do not permit application of the enhancement to McKenzie. Yet, it is difficult to find a

principled distinction between those cited cases and the instant case. For example, the majority cites

United States v. White, 144 F. App’x 486 (6th Cir. 2005) and specifically notes that the defendant

was apprehended with a gun, a small quantity of cocaine, and in a “house ‘often used by others for

selling drugs.’” While this court noted the defendant’s location when he was apprehended in its

factual recitation, this specific factor was not controlling in the decision to affirm the district court’s

application of the enhancement. Rather, this factor was mentioned in the presentence report (“PSR”)

to explain that the defendant could not be held accountable for another handgun found in the house,

because “there was no evidence that the defendant was aware of the this gun, as the house was often

used by others for selling drugs.” Id. at 487. This court merely quoted the PSR to describe the

underlying facts of the case. In the actual analysis of the defendant’s claim, this court explained that

“[b]ecause the defendant admitted at his plea hearing that he possessed the unloaded .22 caliber

firearm and the .3 grams of cocaine found or seen near him, all facts necessary to support application

of the enhancement discussed in § 2K2.1(b)(5) of the guidelines were established in this case without



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United States v. McKenzie

need for ‘judicial determination.’” Id. at 488. The court then explained its rationale for upholding

the application of the enhancement:

       Despite admitting that he possessed both a firearm (albeit unloaded) and .3 grams of
       cocaine, White argues that the § 2K2.1(b)(5) enhancement cannot properly be applied
       to this situation because the record contains insufficient evidence that the gun was
       used “in connection with” the Michigan state law felony of possession of cocaine.
       The defendant, citing United States v. Hardin, 248 F.3d 489, 495 (6th Cir.2001), and
       United States v. Clay, 346 F.3d 173, 179 (6th Cir.2003), insists that the mere
       “presence of drugs in a home does not ipso facto support the application of a §
       2K2.1(b)(5) conviction.”

       In making the statement referenced by White, however, the court in Hardin was
       discussing the hypothetical situation “where a defendant arrested at his residence has
       an unloaded hunting rifle in the closet.” Hardin, 248 F.3d at 501. In contrast, White
       was not in his own residence and, although his gun was unloaded, he had it within
       his reach, presumably to give the impression that he was willing to use the weapon
       should anyone attempt to interfere with his possession or use of the illegal narcotics
       at the site. Thus, the appellate record indicates that the district court did not err in its
       application of § 2K2.1(b)(5) to the determination of the defendant's sentence.

Id. at 489. Thus, while this court noted that White was not in his own residence, it did not focus on

or even mention the fact that it was a house where drugs were often sold. Rather, the opinion

emphasized the fact that White had the gun in reach to give the impression that he would use it to

defend his drug stash, if necessary, from anyone else in the residence who sought to interfere with

his possession of those drugs. This, according to the court, was sufficient to find by a preponderance

of the evidence that White possessed the gun in connection with his possession of the cocaine.

       The majority also cites to United States v. Clay, 346 F.3d 173 (6th Cir. 2003), noting that the

defendant was apprehended with a firearm, 1.6 grams of crack, and “$575 in cash.” Id. at 179.

Again, while the court in Clay noted this factor and, unlike White, did so in the context of upholding

the district court’s application of the enhancement, it was only one of a number of factors cited by

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United States v. McKenzie

the court. There is no indication that this particular fact was controlling. The court specifically

stated:

          Clay was apprehended in an uninhabited apartment late at night with a bag of cocaine
          and a large amount of cash on his person. He testified that he was in the apartment
          to have his hair braided by a woman whom he had met “on the streets,” although the
          alleged hairstylist was not in the building. Finally, Clay was carrying a firearm. See
          Hardin,248 F.3d at 499 (noting that firearms “are ‘tools of the trade’ in drug
          transactions”). Based upon this set of facts, the district court did not clearly err when
          it found that the government had proven by a preponderance of the evidence that
          Sentencing Guidelines § 2K2.1(b)(5) was satisfied.

Id. In fact, despite the presence of the cash on Clay’s person, he was only charged with and

convicted of possession of cocaine base, not with any drug trafficking offense. Id. at 175–76. And,

like the defendant in the instant case, the quantity of drugs was small enough that the possession

charge only became a felony because of Clay’s prior conviction for a narcotics offense under

Michigan law. Id. at 179. Also, much like in White, the court specifically noted that Clay was in

a public place with both a gun and drugs on his person, and further had provided an explanation for

his presence that did not appear to be plausible on the basis of the facts he gave. Id.

          In a more recent case, this court has again found that simple possession is sufficient to uphold

application of the four-level enhancement. In United States v. Berkey, No. 09-5128, 2011 WL

108307 (6th Cir. Jan. 12, 2010), a panel of this court affirmed the district court’s application of the

enhancement where Berkey had 16.58 grams of marijuana and a 9mm handgun in his winter coat

pocket. Id. at *1–3. This court explained:

          Berkey’s own testimony supplied all of the facts that the district court needed to
          conclude that the firearm “emboldened the defendant during the felonious conduct.”
          Carter, 355 F.3d at 925. He acknowledged the accuracy of the facts presented in the
          presentence report, including that he “claimed ownership of the marijuana and the

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No. 09-5068
United States v. McKenzie

       firearm” and that he “smoked two pipes of marijuana” in the car. PSR ¶ 6. He
       acknowledged that he had the drugs and pipe in one pocket and the gun in another
       when he left his house. Taken together, these facts allowed the court to reach the
       conclusion it did: that “the firearm ha[d] the potential of . . . facilitating the felony
       offense,” R.48 at 25, and that Berkey thus possessed the firearm “in connection with”
       possession of marijuana, U.S.S.G. § 2K2.1(b)(6).

Id. at *2. The court added that it “need not probe Berkey’s psyche to determine whether and how

possession of the firearm affected his decision to possess the marijuana,” because it was “enough

that it had the ‘potential’ to promote or facilitate the drug offense,” which was “a reasonable

inference” in that case. Id.

       Thus, this court has upheld application on the enhancement for simple possession of user

quantities of drugs, where the gun and drugs are in close proximity, and the defendant is in a public

place. Our sister circuits have also come to the same conclusion in factually similar cases. In United

States v. Jenkins, 566 F.3d 160 (4th Cir. 2009), the Fourth Circuit affirmed application of the four-

level enhancement where Jenkins was found by officers, who were responding to a call of shots

fired, on a public street with a firearm containing one spent round and one live round of ammunition,

and 0.29 grams of cocaine base. Id. at 162. The court explained that it was “clear that the

possession of a firearm can facilitate a simple drug possession offense,” because the “firearm can

embolden the actor to possess the drugs or provide the actor protection for himself and his drugs,

which are likely to be personally valuable even in small amounts.” Id. at 163; see also id. (stating

that “when a drug user chooses to carry his illegal drugs out into public with a firearm, there are

many ways in which the weapon can facilitate the drug offense and dangerously embolden the

offender”) (quoting United States v. Regans, 125 F.3d 685, 687 (8th Cir. 1997)). The court then


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United States v. McKenzie

determined that sufficient evidence supported the district court’s finding that the firearm facilitated

Jenkins’s possession. Id. at 164. The court pointed out that Jenkins “took the revolver and cocaine

onto a public street, near where a gun had recently been fired, close to midnight,” which suggested

“that there was a heightened need for protection and that the firearm emboldened Jenkins.” Id.

Additionally, Jenkins had the revolver “on his person,” it was loaded, and was “accessible and ready

for use,” further suggesting it was there for protection or to embolden Jenkins. Id. According to the

court, this was sufficient evidence to find that the simultaneous possession went beyond

coincidence.2 Id.; see also United States v. Simmons, 291 F. App’x 992, 993–96 (11th Cir. 2008)

(affirming application of the enhancement where Simmons was found on a public street by officers

carrying a firearm and a small plastic bag of marijuana, noting that the arresting officer had testified

that sometimes individuals would pull a gun on someone trying to rob them of a small amount of

marijuana, and that the marijuana was found in the same pocket as the firearm, which established

a link between the two and “which might indicate that the gun was possessed for the purpose of

protecting the drugs from theft”); Regans, 125 F.3d at 685–87 (holding that application of the four-

level enhancement was appropriate where Regans, a passenger in a car stopped for a traffic violation,

was found with a pistol in his waistband and 0.29 grams of heroin that he admitted possessing for

personal use, explaining that “the drug felon has the ability to use the weapon in connection with his

drug offense”).




       2
           Unlike this circuit, the Fourth Circuit used the clear error standard of review.

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United States v. McKenzie

        The majority correctly notes that one circuit has held differently. In United States v. Jeffries,

587 F.3d 690 (5th Cir. 2009), Jeffries was stopped while driving in his car, and officers found a

firearm on the driver’s seat and a rock of crack cocaine on the floor behind the driver’s seat, which

he denied belonged to him. Id. at 691. Nonetheless, the Fifth Circuit acknowledged that the

potential for facilitation could be present in simple possession cases, but found in that case that the

application of the enhancement was inappropriate because the district court had made no finding of

facilitation and the facts were “too sparse” to find that the gun emboldened Jeffries. Id. at 695.

        Here, it is difficult to conclude that the application should not apply, as the facts cannot be

described as “sparse,” as in Jeffries. Though the majority makes much of the fact that the quantity

of drugs was small, this fact alone does not make McKenzie’s possession of the gun in connection

with his possession of the drugs “implausible on its face,” as the majority concludes. See White, 144

F. App’x at 489 (upholding application of the enhancement for possession of 0.3 grams of cocaine).

The facts of this case contradict the majority’s conclusion that there “simply is no evidence apart

from mere proximity to connect the presence of the firearm in McKenzie’s car with his possession

of 1.1 grams of marijuana.” According to the PSR, McKenzie was driving on a public road with a

firearm in the console to his right and a small bag of marijuana on the arm rest of the door to his left.

Thus, the firearm was in close proximity to the drugs and to McKenzie, and both were in plain view.

Also significant is that, unlike the unloaded firearm in White (which was sufficient for the court to

find that White intended to protect his 0.3 grams of cocaine), McKenzie’s firearm was both loaded

and easily accessible for protection. Cf. United States v. Coleman, 627 F.3d 205, 212, 214 (6th Cir.

2010) (holding that the four-level enhancement was applicable to Coleman where he possessed drugs

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No. 09-5068
United States v. McKenzie

and only ammunition without a gun, because “the ammunition emboldened Coleman in the

knowledge that he was one step closer to having a fully-loaded firearm to protect himself and his

illegal drugs, and the ammunition potentially served notice to potential buyers that Coleman was a

step closer to having a fully-loaded firearm”). McKenzie even admitted that he had the gun for

protection; he reported to the probation officer that he feared for his life and had been shot at earlier

in the day, and that is why he had the gun. Although the majority attempts to dismiss this fact as

irrelevant, because McKenzie “feared for his life, not that someone would steal a baggie of pot from

his car,” it seems unreasonable that McKenzie would use the firearm to protect himself, but not the

drugs he possessed. Additionally, as other courts have held, it is reasonable to find that carrying a

firearm would embolden an individual’s possession of even a small quantity of drugs, because the

drugs are personally valuable to a user of such substances. Moreover, McKenzie was driving with

another individual when he was stopped by police, further supporting the conclusion that the firearm

emboldened his possession and potentially facilitated that possession by preventing theft of the

marijuana. The majority points out that, according to the PSR, McKenzie had been arrested

previously for smoking a joint in public (in actuality, McKenzie was in the driver’s seat of a vehicle

located at a park), but had no firearm on him at the time. However, McKenzie had been arrested

prior to that occasion with seven rocks of crack cocaine and a loaded Smith & Wesson .38 caliber

revolver. Additionally, the PSR also states that, when McKenzie was pulled over in this case,

officers noted “an odor of marijuana emanating from the vehicle.” Although the PSR does not state

whether any additional evidence of marijuana use specifically by McKenzie was found, it is worthy



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United States v. McKenzie

of note, in light of the majority’s argument and the relatively small quantity found in the plastic bag

when the vehicle was pulled over.

       Ultimately, there is not an overabundance of evidence here, but that is not what is required.

The firearm need not actually be used in the commission of the felony; it must only have “the

potential to promote another felony offense.” United States v. Angel, 576 F.3d 318, 320 (6th Cir.

2009) (quoting United States v. Heighton, 272 F. App’x 469, 472 (6th Cir. 2008)). And,

“demonstrating this nexus [under § 2K2.1(b)(6) between the gun and the drugs] is not a particularly

onerous burden.” United States v. Davis, 372 F. App’x 628, 629 (6th Cir. 2010). Although the

government must satisfy the preponderance standard, “this simply requires that the possession of the

firearm cannot be the result of accident or coincidence.” James v. United States, 217 F. App’x 431,

438 (6th Cir. 2007). All that the government must show is that a preponderance of the evidence

demonstrates the firearm’s potential for facilitation of the marijuana possession, and on the basis of

the facts in this case, the government has met its burden. Contrary to the majority’s conclusion, I

believe that it is evident that “the facts here go beyond mere proximity.” Berkey, 2011 WL 108307,

at *2. As a result, I would find that the district court did not err in applying the four-level

enhancement to McKenzie’s base offense level, and I would affirm McKenzie’s sentence.




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