                                                                                                                           Opinions of the United
2000 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


7-18-2000

United States v. Loney
Precedential or Non-Precedential:

Docket 99-5774




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Recommended Citation
"United States v. Loney" (2000). 2000 Decisions. Paper 149.
http://digitalcommons.law.villanova.edu/thirdcircuit_2000/149


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Filed July 18, 2000

UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT

99-5774

UNITED STATES OF AMERICA

v.

ALEXANDER D. LONEY,

       Appellant

On Appeal from the United States District Court
for the District of New Jersey
(D.C. Criminal No. 99-cr-00275)
District Judge: Honorable John W. Bissell

Submitted Pursuant to Third Circuit LAR 34.1(a)
May 31, 2000

Before: SCIRICA, NYGAARD and COWEN, Circuit Ju dges

(Filed July 18, 2000)

       Andrea D. Bergman, Esq.
       Office of the Federal Public Defender
       972 Broad Street
       Newark, NJ 07l02

          Counsel for Appellant

       George S. Leone, Esq.
       David A. Bocian, Esq.
       Office of the United States Attorney
       970 Broad Street, Rm. 700
       Newark, NJ 07102

          Counsel for Appellee
OPINION OF THE COURT

COWEN, Circuit Judge

When the Newark police arrived at 5:30 in the morning to
investigate the scene of a reported burglary, they discovered
Alexander Loney standing nearby on his aunt's porch.
Frisking him, the officers found hidden in his clothes 29
packets of heroin and a .380 caliber Lorcin semiautomatic
pistol loaded with one round of ammunition. The question
on appeal is whether the District Court erred when it
applied U.S.S.G. S 2K2.1(b)(5) and increased Loney's offense
level by four points for possessing a firearm"in connection
with" his drug offense. Loney emphasizes that the
government has no further evidence tying the gun to his
drug trafficking, and he claims the reason he carried the
gun was that, after witnessing a friend's murder, he did not
trust anyone and felt he needed protection. We will affirm.

I

The United States Sentencing Guidelines require the
four-level adjustment when "the defendant used or
possessed any firearm or ammunition in connection with
another felony offense. . . ." S 2K2.1(b)(5). Loney does not
contest that he possessed a firearm, nor does he question
that his possession of the drugs constitutes "another felony
offense" under the guideline provision. The dispute is over
the meaning of the phrase "in connection with." Did Loney
possess his gun "in connection with" his drug offense?

The phrase "in connection with," according to Fowler's
usage manual, is notable for its "vagueness and pliability."
Fowler's Modern English Usage 172 (R.W. Burchfield ed.,
3d ed. 1996). Bryan Garner describes the phrase as"always
a vague, loose connective, often used in reporting
wrongdoing." A Dictionary of Modern American Usage 365
(1998).

Although these usage guides suggest using a narrower
term when a more precise meaning is intended, sometimes
an expansive phrase like "in connection with" is necessary.

                               2
Garner cites the example, "The FBI was searching for Mr.
Bailey in connection with the stabbing of his friend." Id. Did
Mr. Bailey commit the crime or did he just have useful
information? The FBI probably did not know, and the words
conveyed the uncertainty.

Examples from the Oxford English Dictionary underscore
that the phrase "in connection with" is used to capture a
very wide variety of different relationships: De Quincey
writes, "The war itself, taken in connexion with the bloody
feuds that succeeded it, gave a shock to the civilisation of
Greece." 1 Oxford English Dictionary 520 (compact edition
1971). Froude's History of England explains, "Except in rare
instances, the agricultural labourer held land in connexion
with his house." Id. T. Fowler's text on logic instructs, "The
student is requested to read this Preface in connexion with
Chapter III." Id.

Because we should interpret undefined terms in the
guidelines, as in statutes, using the terms' meaning in
ordinary usage, see, e.g., Bailey v. United States, 516 U.S.
137, 144-45, 116 S.Ct. 501, 506 (1995) (interpreting
statutory language); Williams v. United States , 503 U.S.
193, 200, 112 S.Ct. 1112, 1119 (1992) (interpreting statute
and guidelines), the examples above suggest that we should
construe S 2K2.1(b)(5) as covering a wide range of
relationships between the firearm possession and the other
felony offense. "[T]he phrase `in connection with' should be
interpreted broadly. . . ." United States v. Thompson, 32
F.3d 1, 7 (1st Cir. 1994). "[T]he meaning of the phrase `in
connection with' should be construed expansively." United
States v. Wyatt, 102 F.3d 241, 247 (7th Cir. 1996).

In keeping with this breadth, we have previously held
that when a defendant accidently fired a gun and killed
someone, he used the gun in connection with another
felony offense. United States v. Brannan, 74 F.3d 448 (3d
Cir. 1996). We added in dictum that the term "connection"
can encompass any "causal or logical relation or sequence."
Id. at 453 (quoting Webster's Ninth New Collegiate
Dictionary 278 (1990)). Although the phrase "in connection
with" can carry a different meaning than the term
"connection," in part because the former typically functions
as a compound preposition and the latter a noun, the

                               3
definition of the single term does help us understand the
larger phrase.

Like the definition cited in Brannan, other dictionary
definitions of the term "connection" are similarly broad:
One defines the term simply as "an association or a
relationship." American Heritage Dictionary of the English
Language 400 (3d ed. 1992). Another explains that the term
expresses a "relationship or association in thought (as of
cause and effect, logical sequence, mutual dependence or
involvement)." Webster's Third New International Dictionary
481 (1961). Another defines it as "association; relationship"
and gives as illustrations "the connection between crime
and poverty; no connection with any other firm of the same
name." Random House Dictionary of the English Language
432 (2d ed. 1987). The OED lists as one sense the
"condition of being related to something else by a bond of
interdependence, causality, logical sequence, coherence, or
the like; relation between things one of which is bound up
with, or involved in, another." 1 Oxford English Dictionary
520 (compact edition 1971).

Together 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. We do not attempt to provide an exhaustive
list of relationships that will resolve every case. As other
courts have observed, "no simple judicial formula can
adequately capture the precise contours of the `in
connection with' requirement, particularly in light of the
myriad factual contexts in which the phrase might come
into play. . . ." Wyatt, 102 F.3d at 247. See also Thompson,
32 F.3d at 6 ("[I]t is difficult to sketch the outer boundary"
of the relationship expressed by the phrase.).

Despite the wide variety of relationships covered by the
usage of the phrase "in connection with," Loney urges that
we narrow its meaning and adopt a test requiring the
government to prove "some causal nexus" between the gun
and the felony, a standard he says was not satisfied in his
case. We decline to adopt Loney's proposed test. As an
initial matter, we think it is unclear what exactly is
supposed to be the source of the causality--the gun, the

                               4
defendant, the other felony, or something else? And
whatever the agent, what qualifies as having the right sort
of causal effect? Suppose a defendant carries a concealed
gun to a drug deal intending to shoot anyone who steps out
of line. If the buyers are docile and the defendant never has
reason to reveal his gun, his gun possession might not
exert any "causal" effect on anything; but it would grossly
distort our usage of "in connection with" to say that the
defendant in this example did not possess his gun in
connection with his drug offense. Consider that if someone
vaccinated herself to avoid disease at her job in a hospital,
it would be perfectly natural to say that she received the
medical care "in connection with" her job, even though after
receiving the inoculation she never encountered the disease
at work.

There is a limit, of course, to how much can be proved by
invoking dictionary definitions and usage. As the Supreme
Court has said: "We consider not only the bare meaning of
the word but also its placement and purpose in the
statutory scheme. `[T]he meaning of statutory language,
plain or not, depends on context.' " Bailey, 516 at 145, 116
S.Ct. at 506 (quoting Brown v. Gardner, 513 U.S. 115, 118,
115 S.Ct. 552, 555 (1994)). See also King v. St. Vincent's
Hospital, 502 U.S. 215, 221, 112 S.Ct. 570, 574 (1991).

When we turn to the broader context of S 2K2.1(b)(5),
several features conflict with Loney's suggested test. First,
our interpretation of S 2K2.1(b)(5) must take into account
that the sentence adjustment is not limited to "use" of a
firearm but also applies to "possession," so we should not
give "in connection with" a meaning so strict that it reads
the possession standard out of S 2K2.1(b)(5)."In connection
with" is not a synonym for "use." And the Supreme Court
has emphasized that we should not interpret one word in a
statute in a way that renders other parts of the statute
functionless. See, e.g., Bailey, 516 U.S. at 145, 116 S.Ct. at
506.

A second reason for believing that the possession need
not have any actual effect on the other felony offense is that
the guideline applies to a defendant who merely possesses
ammunition. If the guideline's drafters wanted to introduce
some requirement of a causal effect through the phrase "in

                               5
connection with," it is strange that they expressly provided
that the guideline applies to someone who had ammunition
but not a firearm.

Despite these broader contextual arguments against
requiring proof of some causal effect as a necessary
condition, as well as what dictionary definitions and
ordinary usage show about the meaning of "in connection
with," Loney argues on policy grounds that a four-level
adjustment is a lot if "in connection with" is not read
narrowly. We are unpersuaded. If the case were decided on
bare policy grounds, it is far from clear that a narrow
interpretation makes sense. Gun violence is a very serious
problem in this country. Ordinary experience as well as
empirical research show that when a criminal is armed, the
risk of violence and serious harm is greater.

One study cited in a 1996 report by the Department of
Justice's Bureau of Justice Statistics states that"of the
almost 328,000 State prison inmates serving time for a
violent crime in 1991, 30% were armed with a firearm when
they committed the crime. Of those armed, 56% said that
they fired the gun and most of those who fired said their
victims were shot and either wounded or killed." Firearm
Injury from Crime 5 http://www.ojp.usdoj.gov/bjs/guns.
Another report by the Bureau of Justice Statistics released
in 1994 explained:

       Violent offenders are increasingly likely to be armed.
       . . . While the overall violent crime rate decreased
       during the last decade, the rate of offenses committed
       with pistols and revolvers rose from 9.2 percent in
       1979 to 12.7 percent in 1992. From 1987 through
       1992 there was an annual average of 858,000 rapes,
       robberies and assaults with firearms of all types,
       according to the BJS's National Crime Victimization
       Survey. . . . In a nationally representative sample of
       state prison inmates, 16 percent said they were
       carrying a firearm during the commission of the offense
       for which they were serving time, and one-half of those
       said they fired the weapon during the crime.

http://www.ojp.usdoj.gov/bjs/pub/press.

                                6
The Bureau of Justice Statistics also cited a report
estimating the costs of injuries caused by assaults with
firearms:

       The estimate for medical costs, mental health care,
       emergency transport, police services, and insurance
       administration were--$21,700 per fatal gunshot
       wound[,] $28,000 per gunshot wound requiring
       hospitalization[, and] $6,500 per gunshot wound
       treated in the emergency department and released
       without hospitalization. [The authors] estimated that
       the total cost per survivor of gunshot wounds caused
       by assault was $260,000. This figure included direct
       costs such as medical costs as well as those costs
       because of lost productivity and pain, suffering, and
       reduced quality of life. Overall, they estimated that
       firearm assault injury and death cost $63.4 billion in
       1992.

Firearm Injury from Crime 4 http://www.ojp.usdoj.gov/
bjs/guns.

The government does not have to wait until a defendant
pulls the trigger, uses the gun, or has the gun exert some
causal effect before it can increase a defendant's sentence.
And as is demonstrated by our earlier discussion of the
meaning and context of the phrase "in connection with," we
do not think S 2K2.1(b)(5) was drafted to require any of
those greater showings by the government. Still, we
recognize that the phrase "in connection with" requires that
there be some relationship between the gun and the felony.
The guideline says more than just that the person
committed a felony offense and at some point in time and
in some place possessed a gun.

Other courts have recognized this point in comparing the
"in connection with" language with the "in relation to"
language used in 18 U.S.C. S 924(c)(1). See, e.g., United
States v. Spurgeon, 117 F.3d 641, 643-44 (2d Cir. 1997)
(per curiam) ("The First, Fourth, Seventh, Ninth, and Tenth
Circuits have held that the `in connection with' language of
S 2K2.1(b)(5) should be construed as equivalent to the `in
relation to' language of 18 U.S.C. S 924(c)(1).") (citations
omitted). In explaining the limitation imposed by the phrase

                               7
"in relation to" in S 924(c)(1), the Supreme Court has stated
that the language ensures that the "presence or
involvement [of the firearm] cannot be the result of accident
or coincidence." Smith v. United States, 508 U.S. 240, 238,
113 S.Ct. 2050, 2059 (1993). More recently the Supreme
Court said that the phrase "during and in relation to" in
S 924(c)(1) was added

       in part to prevent prosecutions where guns "played" no
       part in the crime . . . cf. United States v. Stewart, 779
       F.2d 538, 539 (C.A.9 1985) (Kennedy, J.) (observing
       that " `in relation to' " was "added to allay explicitly the
       concern that a person could be prosecuted . . . for
       committing an entirely unrelated crime while in
       possession of a firearm"), overruled in part on other
       grounds, United States v. Hernandez, 80 F.3d 1253,
       1257 (C.A.9 1996).

Muscarello v. United States, 524 U.S. 125, 137, 118 S.Ct.
1911, 1918-19 (1998).

As a matter of ordinary language, one would be hard
pressed to find a meaningful difference between"in relation
to" and "in connection with." Nevertheless, while the phrase
"in relation to" is essentially a synonym for"in connection
with," it may not follow that every case applyingS 924(c)(1)
is necessarily applicable to S 2K2.1(b)(5), for the Supreme
Court recently emphasized that S 924(c)(1) requires that a
defendant's use or carrying of a gun must be both"during"
and "in relation to" a drug trafficking offense. "[T]he statute
[is] applicable only where a defendant `carries' a gun both
`during and in relation to' a drug crime." Muscarello, 524
U.S. at 137, 118 S.Ct. at 1918. This caveat about
S 924(c)(1) aside, we agree that where the Supreme Court
construes just "in relation to," the reasoning can be applied
to S 2K2.1(b)(5).

Even once we focus attention on "in relation to," one
remaining problem with relying heavily on the Supreme
Court's interpretation of the phrase is that the Court has
not had occasion to elaborate in any detail on the standard.
"We need not determine the precise contours of the `in
relation to' requirement here, however, as petitioner's use of
his MAC-10 meets any reasonable construction of it."

                               8
Smith, 508 U.S. at 238, 113 S.Ct. at 2059. Moreover, in
response to the Court's narrowing interpretations of
S 924(c)(1), Congress recently amended the statute in
November of 1998 to include a new clause that makes
S 924(c)(1) applicable not only to "use" or "carrying" a
firearm but also to "possession." See Gray-Bey v. United
States, 209 F.3d 986, 989 (7th Cir. 2000) (noting the
amendment). But the new possession standard is not
simply added to the list of "use" and "carry," which must be
done "during and in relation to" the drug offense; rather the
possession must be "in furtherance of " the drug offense. By
making this distinction, Congress may well have intended
"in furtherance" to impose a more stringent standard than
"in relation to." The ordinary meanings of the terms
certainly suggest a difference, and it is hard to see why
Congress would have bothered to use separate language in
a separate clause if a difference was not intended. If this is
correct, then the Supreme Court may very well in the
future interpret "in relation to" in a way that takes into
account the differences between "in furtherance" and "in
relation to" in S 924(c)(1). And any distinction drawn
between the two phrases seems likely to underscore our
point that "in connection with" does not require that a
defendant's gun possession cause any particular effect.

Even apart from the foregoing considerations, we think
that nothing the Supreme Court has already said about "in
relation to" is in any way inconsistent with what we have
said here about "in connection with." Indeed, the Court has
said, "The phrase `in relation to' is expansive." Smith, 508
U.S. at 237, 113 S.Ct. at 2058. Much as in Muscarello,
which gives the Court's most recent statement about"in
relation to," the earlier case, Smith, said that the point of
"in relation to" was to ensure that the "presence or
involvement [of the firearm] cannot be the result of accident
or coincidence." Smith, 508 U.S. at 238, 113 S.Ct. at 2059.
"[T]he firearm must have some purpose or effect with
respect to the drug trafficking crime," or"the gun at least
must `facilitat[e], or ha[ve] the potential of facilitating,' the
drug trafficking offense." Id. (citations omitted).

In light of these standards Loney's argument can be
expressed as saying that there was no relationship between

                                9
his gun possession and his possession of distribution
quantities of drugs. As Muscarello put it, the gun
possession was "entirely unrelated" to the felony offense. Or
as Smith puts it, the presence of the gun was merely
"accidental," had no "purpose or effect with respect to" his
drug offense, or did not "facilitate or have the potential of
facilitating" his drug dealing.

At sentencing the government only has to prove guideline
enhancements by a preponderance of the evidence, United
States v. Dorsey, 174 F.3d 331, 332 (1999), and on appeal,
we review a district court's factual findings at sentencing
for clear error. United States v. Pitt, 193 F.3d 751, 764 (3d
Cir. 1999).

In this case the District Court expressly found that Loney
"acknowledged the drugs he had on him were for purposes
of sale and not just for personal use. That hasn't been a
subject of dispute here." App. at 20. Turning to Loney's
statement that he had the gun for personal protection, the
District Court concluded that one reason, "if not the only
[one]," that Loney felt he needed a gun for protection was
his drug dealing. App. at 19. The District Court reasoned
that Loney's need for the gun was increased because he
possessed valuable and illegal drugs and, if a sale was
successful, would later hold significant quantities of cash.
It is true that the District Court was drawing inferences
from the circumstances, but we think the inferences are
reasonable ones. Factfinders routinely, and permissibly,
draw inferences when they are evaluating a witness's
credibility.

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
and hence S 2K2.1(b)(5) is satisfied. Cf. United States v.
Sturtevant, 62 F.3d 33 (1st Cir. 1995) (per curiam)
(guideline applies to defendant who possessed a shotgun
during an assault). The immediate availability of the gun
while the defendant commits such a crime--that is, to use
the Supreme Court's words in Smith, the gun's "potential of
facilitating" such an in-person felony offense--is sufficient

                               10
to establish a relationship between the gun possession and
the other offense. In keeping with this reasoning the First
Circuit held in Sturtevant that a district court did not abuse
its discretion in failing to hold an evidentiary hearing before
imposing an enhancement under S 2K2.1(b)(5) on a
defendant who possessed a firearm during an assault but
who never threatened the victim with the gun. The district
court had explained to the defendant that "you were out
there on the street with a deadly weapon; it might have
been in your pocket, but it was there in reserve." 62 F.3d
at 34. The First Circuit affirmed.

       Given the broad reach of the "in connection with"
       requirement, we think that the carriage of the gun
       during the assault satisfied the requirement of section
       2K2.1(b)(5) that a firearm be "used or possessed . . . in
       connection with another felony offense. . . ." The courts
       have held repeatedly that the presence of a readily
       available weapon in a location containing drugs is
       enough. . . . Sturtevant carried the shotgun on his
       person during his assault. The connection between
       that crime (the assault) and the gun seems to us no
       less close than the connection between a drug hideout
       and gun. In each instance, the weapon provides an
       added sense of security and has a substantial potential
       for use in the course of the particular crime in
       question.

Sturtevant, 62 F.3d at 34 (citations omitted). When a
defendant has a loaded gun on his person while confronting
a victim or buyer in person during an assault, drug deal, or
robbery, it is easy to see that the gun has the potential for
facilitating these types of crime. As we made clear above,
there is no need to show that the defendant's gun
possession actually "caused" any particular effect. Cf.
United States v. Nale, 101 F.3d 1000, 1003 (4th Cir. 1996)
("In Smith the Supreme Court determined that the `in
relation to' language of S 924(c) could be satisfied by
proving that a weapon facilitated or potentially facilitated
the offense.") (citation omitted); United States v. Routon, 25
F.3d 815, 819 (9th Cir. 1994) ( The guideline is satisfied
when "the firearm was possessed in a manner that permits
an inference that it facilitated or potentially facilitated--i.e.,

                               11
had some potential emboldening role in--a defendant's
felonious conduct."); United States v. Gomez-Arrellano, 5
F.3d 464, 466-67 (10th Cir. 1993) ("The `in relation to'
element is interpreted very expansively. Under S 924(c)(1),
this element is satisfied if the government shows that the
weapon facilitates or has the potential to facilitate the drug
offense, but is not satisfied if the weapon's possession is
coincidental or entirely unrelated to the offense. A weapon's
physical proximity to narcotics may be sufficient to provide
the nexus required between the weapon and the drug
charges.") (citations omitted).

The Supreme Court has said that the gun's relationship
to a crime should not be "accidental," and Loney no doubt
maintains that even if he obviously was intentionally
carrying the gun, any relationship between the gun and his
drugs was "accidental." A drug dealer who had a hunting
rifle buried in his closet might well be able to maintain that
the gun's presence around his drug dealing was accidental.
Likewise, a judge conceivably might have believed, for
instance, that Loney would have dropped his gun off at
home and not carried it with him for protection when he
actually engaged in drug dealing. But the District Court did
not believe that here. While physical proximity alone may
be insufficient in some cases, this is not a case, as the First
Circuit has said, "of an accountant who, while forging
checks, happens to have a gun in the desk drawer."
Sturtevant, 62 F.3d at 34-35.

For the foregoing reasons, the August 25, 1999 judgment
of the District Court will be affirmed.

A True Copy:
Teste:

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

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