Monday, April 03, 2006

Enhancement for Firearm Possessed "In Connection with" Another Offense

United States v. Markovitch, No. 05-3296 (April 3, 2006): Mr. Markovitch pleaded guilty to possession of a firearm by a felon. At sentencing he received a 4-level enhancement under 2K2.1(b)(5) for possessing the firearm in connection with another felony offense, that is, possession of controlled substances with intent to distribute. At the time of his arrest for a DUI offense, he was found in possession of 4 grams of cocaine, 5.5 grams of marijuana, and a small scale, in addition to the firearm. His argued that he was a user, not a dealer, and that he carried the scale to make sure that when he purchased for his personal consumption, he was not cheated. Employing the clearly erroneous standard, the Court affirmed the finding that he was a dealer and that his possession of the gun "facilitated or potentially facilitated" the offense of possession with intent to distribute. Since there was no evidence that he was actually distributing drugs or attempting to distribute drugs at or near the time of his arrest, the Court's holding was based more on the expanded definition of facilitation it found in cases from other Circuits: the possession of the gun "had some potentially emboldening role" in drug distribution. In finding that he was a dealer, the Court relied on the presence of the cocaine and did not consider the marijuana. It also relied on the presence of the scale and on a previous conviction for distribution.