     Case: 18-50379    Document: 00514823508       Page: 1   Date Filed: 02/05/2019




        IN THE UNITED STATES COURT OF APPEALS
                 FOR THE FIFTH CIRCUIT
                                                                  United States Court of Appeals
                                                                           Fifth Circuit

                                    No. 18-50379                         FILED
                                                                   February 5, 2019
                                                                    Lyle W. Cayce
UNITED STATES OF AMERICA,                                                Clerk

             Plaintiff - Appellee

v.

MILO EADEN,

             Defendant - Appellant




                 Appeal from the United States District Court
                      for the Western District of Texas


Before JOLLY, JONES, and DENNIS, Circuit Judges.
E. GRADY JOLLY, Circuit Judge:
      The question of first impression presented in this sentencing appeal
concerns the effect of a defendant’s possession of ammunition alone, as opposed
to a firearm, during a drug trafficking offense. Milo Eaden appeals his four-
level sentencing enhancement pursuant to U.S.S.G. § 2k2.1(b)(6)(B) for using
or possessing ammunition in connection with another felony offense. Eaden
argues that he did not possess the ammunition “in connection with” his felony
drug trafficking activities. For the reasons that follow, we hold that the district
court clearly erred in imposing the enhancement under these facts.                       We
therefore vacate Mr. Eaden’s sentence and remand for resentencing.
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                                      No. 18-50379
                                             I.
       Police officers executed a search warrant of Eaden’s home after making
a controlled purchase of crack cocaine from Eaden at his residence. During
their search, the officers found 5.5 grams of crack cocaine and 19 rounds of
ammunition. No firearm was found on Eaden’s person or in his home. The
ammunition was “easily accessible and stored in close proximity to” the
cocaine. These words are the only description of how the ammunition was
connected to the drug transaction. The record certainly does not indicate that
the ammunition was in plain sight during the controlled purchase. Eaden
actually claimed that he found the ammunition in the dumpster behind his
house months earlier and brought it home.                 Eaden had previously been
convicted, in 2003, of delivering cocaine in violation of Texas law and had been
sentenced to ten years in Texas prison for this felony offense. As to the present
offense, Eaden was charged in federal court with possession of ammunition as
a felon and he pleaded guilty to this charge. We are now only concerned with
his sentence as enhanced by his possession of the ammunition.
       The Presentence Report (PSR) assigned a base offense level of fourteen,
added a four-level enhancement pursuant to U.S.S.G. § 2k2.1(b)(6)(B) 1 for
using or possessing the ammunition in connection with another felony offense,
and reduced by three levels for acceptance of responsibility, bringing his total
offense level to fifteen. Eaden objected to the four-level enhancement, arguing
that his possession of ammunition was not connected with his drug trafficking
because the ammunition did not facilitate or have the potential to facilitate the




       1 U.S.S.G. § 2k2.1(b)(6)(B) reads in relevant part: “If the defendant . . . used or
possessed any firearm or ammunition in connection with another felony offense; . . . increase
by 4 levels.”

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                                 No. 18-50379
drug trafficking offense nor was the possession of the ammunition and drug
trafficking part of a common scheme or plan.
      Noting the lack of Fifth Circuit precedent on this point, the PSR rejected
Eaden’s objections by relying on the text of § 2k2.1(b)(6)(B), the provision’s
application note, and the Sixth Circuit’s opinion in United States v. Coleman,
627 F.3d 205 (6th Cir. 2010). Following Coleman, the PSR extended the Sixth
Circuit’s “fortress theory”—which traditionally applies only to firearms—to
situations where only ammunition is present. Thus, the PSR found that,
because the ammunition “potentially emboldened Eaden 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 as notice to potential
buyers that he was one step closer to having a fully-loaded firearm,” the
possession alone was connected with the drug trafficking offense.
      The PSR maintained its recommended final offense level of fifteen which,
coupled with Eaden’s criminal history category of II, resulted in an advisory
guidelines range of twenty-one to twenty-seven months of imprisonment. Had
the PSR sustained Eaden’s objection to the four-level enhancement, his total
offense level would have been eleven, carrying a guidelines range of ten to
sixteen months.
      At his sentencing hearing, Eaden objected to the PSR’s imposition of the
four-level enhancement for substantially the same reasons—possessing
ammunition alone does not facilitate drug trafficking absent possession of a
firearm. The government responded by resting on the PSR’s reasoning and
had “no additional information it can provide.” The district court overruled
Eaden’s objection because it found that his possession of the ammunition was
“part of the same course of conduct or common scheme or plan as the
defendant’s possession of the ammunition facilitated or had the potential to


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                                  No. 18-50379
facilitate his drug trafficking crime offense.” Eaden now appeals the district
court’s application of § 2k2.1(b)(6)(B)’s four-level enhancement.
                                        II.
      On appeal, Eaden argues that the district court erred in holding that his
possession of ammunition was “in connection with” his drug trafficking
activities. Although the application notes to the Guidelines provide for a
presumption of facilitation when a firearm is possessed in close proximity to a
drug trafficking offense, Eaden contends that the presumption should not
apply here because his possession of ammunition alone does not have the
potential to facilitate trafficking activities. The government argues that we
should adopt the Sixth Circuit’s conclusion in Coleman and effectively hold
that the possession of ammunition alone creates a presumption that it
facilitates or potentially facilitates felony drug trafficking. The government
argues that the ammunition brought Eaden “one step closer to possessing a
fully-loaded firearm.”    The government also argues that the ammunition
facilitated the drug trafficking by serving to intimidate potential threats to his
trafficking operation. Both parties acknowledge that we are presented with a
question of first impression in this circuit.
                                        III.
      This court reviews a district court’s interpretation or application of the
guidelines de novo and its factual findings for clear error. See United States v.
Cisneros-Gutierrez, 517 F.3d 751, 764 (5th Cir. 2008). The district court’s
determination of the relationship between ammunition and another offense is
most usually a factual finding. See United States v. Coleman, 609 F.3d 699,
708 (5th Cir. 2010). “A factual finding is clearly erroneous when the reviewing
court on the entire evidence is left with the definite and firm conviction that a
mistake has been committed.” Id.


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                                   No. 18-50379
      This appeal presents three questions that we must address.             First,
whether possession of ammunition alone can facilitate drug trafficking for
purposes of U.S.S.G. § 2k2.1(b)(6)(B), a question of first impression in this
circuit.   Second, whether there is a presumption that the possession of
ammunition alone facilitates a drug trafficking offense for purposes of U.S.S.G.
§ 2k2.1(b)(6)(B), again, a question of first impression in this circuit. Third, in
the light of our answer to the first two questions, whether the four-level
enhancement was properly applied to Eaden.
                                         A.
      We first determine if U.S.S.G. § 2k2.1(b)(6)(B)’s four-level enhancement
can be applied to a defendant who possessed only ammunition.               Section
2k2.1(b)(6)(B) provides for a four-level enhancement if the defendant “used or
possessed any firearm or ammunition in connection with another felony
offense.” Application Note 14(A) provides that the term “in connection with”
mandates that “the firearm or ammunition facilitated, or had the potential of
facilitating, another felony offense.”
      We hold that possession of ammunition alone, under appropriate
circumstances not present in this case, certainly may be sufficient for the four-
level enhancement. By using the disjunctive “or,” the guidelines plainly read
to allow for the enhancement when the defendant possesses a loaded gun, an
unloaded gun, or ammunition alone. That much is clear: ammunition alone
can facilitate a drug offense. The more nuanced question will be under what
circumstances and, absent a presumption, this question necessarily must be
decided on a case by case basis.
                                         B.
      We now turn to the second question of first impression for this court:
whether, as is true with a firearm, there is a presumption of facilitation when
ammunition alone is present at the time of the drug trafficking offense; or
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                                       No. 18-50379
whether the district court must make an affirmative finding that Eaden’s
ammunition facilitated his drug trafficking offense. 2
       In the context of drug offenses, facilitation can be presumed when (1) a
firearm was possessed (2) in close proximity to contraband during a drug
trafficking offense. See, e.g., United States v. Anderson, 559 F.3d 348, 358 (5th
Cir. 2009) (“When a loaded firearm is found in close physical proximity to
narcotics, readily available to the defendant, a connection will usually be
found.”). However, this presumption is only available when both conditions
are present—a firearm and a trafficking offense. This common sense rule is
supported by the text of § 2k2.1(b)(6)(B), its Application Note, and our holding
in United States v. Jeffries, 587 F.3d 690 (5th Cir. 2009).
       The text of § 2k2.1(b)(6)(B) states that the enhancement applies when
the defendant (1) “used or possessed any firearm or ammunition” (2) “in
connection with another felony offense.” As noted above, Application Note
14(A) clarifies that “in connection with” means “facilitated, or had the potential
of facilitating.” Therefore, for the enhancement to apply, the government must
show evidence of both (1) possession of a firearm or ammunition and (2) that
the firearm or ammunition facilitated or had the potential to facilitate the
other offense. Application Note 14(B) instructs us, however, that “in the case
of a drug trafficking offense in which a firearm is found in close proximity to
drugs . . . application of subsection[] (b)(6)(B) is warranted because the
presence of a firearm has the potential of facilitating another felony offense.”
Application Note 14(B)—addressed specifically to the drug trafficking


       2  In this circuit, there is a presumption of facilitation when the defendant possesses a
firearm during a drug trafficking offense and no presumption of facilitation when the
defendant possesses a firearm along with only user amounts of narcotics. See United States
v. Jeffries, 587 F.3d 690, 692–93 (5th Cir. 2009). Here we address a third situation—when
the defendant possesses ammunition and no gun during a drug trafficking offense—and hold
that there is no presumption.

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                                    No. 18-50379
context—states only that “the presence of the firearm” inherently “has the
potential of facilitating” and makes no reference to ammunition. 3 We see no
reason in the text of the Guideline, or its explanatory notes, to expand this
presumption beyond possession of a firearm during a drug trafficking offense.
      The correctness of this holding is illustrated by our reasoning in Jeffries.
There we considered whether the enhancement presumptively applied to a
defendant who possessed a firearm during a drug possession offense. We noted
that Application Note 14(B) instructs courts to apply the enhancement
“automatically” when a “firearm is found in close proximity to drugs” during a
trafficking offense but when drug trafficking is not present, “no presumption
is made.” 587 F.3d at 692–93. Therefore, the Jeffries court declined to extend
Application Note 14(B)’s presumption of facilitation to a nontrafficking offense.
See id. at 694 (“[T]he nexus cannot simply be presumed, as appears to have
been the case here.”). Here, similarly, we see no rationale to extend the
presumption of facilitation to situations in which there is a drug transaction
but no firearm—only ammunition.            The text of Application Note 14(B) is
limited—it only applies when both trafficking and a firearm are present.
Eaden did not possess a firearm during his drug trafficking offense and, as in
Jeffries, we see no reason to judicially expand the scope of Application Note
14(B)’s presumption of facilitation.
                                          C.
      Thus far we have held, first, that the possession of ammunition alone
may be connected with a drug trafficking offense, qualifying a defendant for
the four-level sentencing enhancement; and second, that there is no


      3 The omission of the term “ammunition” is particularly important considering that
Application Note 14(A)—directly preceding Note 14(B) and containing no presumption—uses
the term “firearm or ammunition,” indicating that the drafters purposefully excluded
ammunition from Note 14(B)’s presumption of facilitation.

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                                         No. 18-50379
presumption of facilitation regarding the possession of only ammunition. Now
we apply these principles to this case.
       Stripped of a presumption of facilitation, the government must present
facts or circumstances demonstrating that the possession of ammunition
facilitated or had the potential to facilitate the other offense. 4 See Jeffries, 587
F.3d at 692, 694–95 & n.9 (the “specific facts of th[e] case” must demonstrate
that the firearm or ammunition in question “emboldened” the offense or served
to “protect” contraband to satisfy the “critical step” of establishing a “nexus
between the firearm possession and the drug possession”). 5 Ammunition has
the potential to facilitate a trafficking operation when it is displayed or
brandished in a manner that has the potential to embolden the trafficker and
protect his operation by implying that he has a gun, thereby deterring buyers,
co-conspirators, or competitors from taking adverse action.
       For ammunition to have such a deterrent effect to potential threats, it
would, inter alia, be necessary that it be in plain sight to purchasers or others


       4   Indeed, in its brief, the government purports to agree in principle, saying:
                When the defendant possesses a firearm in close proximity to drugs,
                there is a presumption that the firearm has the potential to facilitate
                his drug trafficking offense. USSG § 2K2.1 (n.14(B)). This presumption
                likely does not apply when the defendant possesses only ammunition,
                in which case the district court must make an affirmative finding that
                the ammunition facilitated the drug trafficking offense. See United
                States v. Jeffries, 587 F.3d 690, 694 (5th Cir. 2009).
       5 Despite conceding that there is no presumption of facilitation for ammunition alone,
the government spends much of its brief arguing that this court should adopt the Sixth
Circuit’s rationale in United States v. Coleman, 627 F.3d 205 (6th Cir. 2010). There, the court
held that possession of ammunition alone facilitated a drug trafficking offense because the
ammunition “emboldened” the defendant “in the knowledge that he was one step closer to
having a fully-loaded firearm to protect himself and his illegal drugs.” Id. at 212. This
rationale establishes the functional equivalent of the presumption we have rejected above
and we respectfully decline to import it into this circuit’s jurisprudence. See id. at 216
(Gillman, J. concurring in part and dissenting in part) (“Many things could in theory put a
person ‘one step closer’ to having a firearm, such as applying for a firearms permit, having a
holster, possessing a laser scope, or earning money to be able to purchase a weapon.”).

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                                  No. 18-50379
involved in the trafficking. Turning to the facts of the present case, the PSR
indicates that its only item of evidence to show facilitation is that the
ammunition was “easily accessible and stored in close proximity to the illegal
drugs.” The record does not demonstrate that the ammunition was kept in
plain sight, either during the controlled purchase or at any other time. In
short, the government has pointed to no facts or circumstances that indicate
that Eaden possessed the ammunition “in connection with” his drug trafficking
offense.
                                       IV.
      To sum up: we have held that possession of ammunition alone may,
under appropriate circumstances, be sufficient to show facilitation for purposes
of § 2k2.1(b)(6)(B)’s four-level enhancement. But we have further held that
possession of ammunition alone does not enjoy a presumption that it was
connected with a drug trafficking offense. In this context, to demonstrate
facilitation, the government must adduce facts tending to show that the
ammunition facilitated or had the potential to facilitate the drug trafficking
offense. We have respectfully declined to adopt the Sixth Circuit’s path to
showing facilitation set out in Coleman for the reasons stated above. Because
we find that the record here shows that the government produced no facts
tending to show that Eaden’s mere possession of ammunition alone was
connected   with     his   drug   trafficking   activities,   the   application    of
§ 2k2.1(b)(6)(B)’s four-level enhancement was clear error. Accordingly, we
VACATE the district court’s sentence and REMAND for resentencing not
inconsistent with this opinion.
                                                  VACATED AND REMANDED.




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