United States District Court, D. New Mexico
C. Anderson United States Attorney Paul Mysliwiec Assistant
United States Attorney United States Attorney's Office
Albuquerque, New Mexico Attorneys for the Plaintiff
Bruce Hotchkiss Todd B. Hotchkiss, Attorney at Law, LLC
Albuquerque, New Mexico Attorney for the Defendant
MEMORANDUM OPINION AND ORDER
MATTER comes before the Court on the Defendant's
Sealed Objections to Presentence Report at 2, filed
December 4, 2019 (Doc. 70)(“Objections”). The
Court held a sentencing hearing on December 11, 2019.
Defendant Donald Charles Gibson objects to a proposed 2-level
increase to Gibson's offense level under U.S.S.G. §
2D1.1(b)(1) for possession of a firearm. Gibson makes two
arguments regarding U.S.S.G. § 2D1.1(b)(1)'s
application. First, he argues that “[t]here is no
evidence Mr. Gibson actually possessed the firearm.”
Objections at 2. Next, he argues that “there is no
evidence that the firearm was part of the drug deal as
possessed by a person involved in the drug deal . . . as USSG
§ 2D1.1(b)(1) ordinarily requires.” Objections at
2. See Presentence Investigation Report ¶ 21,
at 7, filed November 1, 2019 (Doc. 66)(“PSR”).
The Court concludes that, because the gun was present during
the methamphetamine transaction, the 2-level enhancement
under U.S.S.G. § 2D1.1(b)(1) is appropriate.
notes that, during the drug transaction,
The CI arrived and was greeted by Kosier. Kosier introduced
the CI to co-defendant, Donald Gibson, who
was in a back bedroom with a female named Jenna LNU and they
appeared to be smoking methamphetamine. Kosier stated he
needed to retrieve the methamphetamine from the back of the
property where [Gibson's] brother lived and
Gibson took the CI back to the living room
as the CI told them he did not want to be in that room as
that was not “his thing”. Kosier returned shortly
after and handed the CI a plastic bag containing
methamphetamine. The CI asked about the firearm and Kosier
retrieved a silver revolver. The CI provided the official
funds of $610 to Gibson and left the
residence with the drugs and firearm.
PSR ¶ 11, at 5 (bold in original).
first argues that “[t]here is no evidence Mr. Gibson
actually possessed the firearm.” Objections at 2. The
Addendum to the Presentence Report, filed December 9, 2019
(Doc. 73)(“Addendum”), does not specifically
address this argument. See Addendum at 1. In the
United States Court of Appeals for the Tenth Circuit, where a
defendant is convicted of conspiracy to traffic drugs,
“the straightforward application of the Guidelines
provision authorizes the increase in offense level even if
the gun was actually possessed only by [a
co-conspirator].” United States v. Humphrey,
208 F.3d 1190, 1210 (10th Cir. 2000). See United States
v. Griego, No. CR 08-2936 JB, 2013 WL 1655917, at *13
(D.N.M. April 1, 2013)(Browning, J.). The Court concludes
that there is sufficient evidence that Gibson possessed the
firearm. In Gibson's Plea Agreement, filed September 4,
2019 (Doc. 58), Gibson states that he “knowingly
possessed a firearm . . . . On the same day, and at the same
place, I also possessed more than 5 grams of methamphetamine
with the intent that it be distributed to another
person.” Plea Agreement at 5.
second argument is that “there is no evidence that the
firearm was part of the drug deal as possessed by a person
involved in the drug deal . . . as USSG § 2D1.1(b)(1)
ordinarily requires.” Objections at 2. He argues that
“Kosier's sale of firearms on two separate
occasions shows that the sale of the firearm in this
transaction was not connected to the drug deal” and
that the firearm deal was “in addition to, not
connected with, the methamphetamine deal.” Objections
Tenth Circuit has held that, for § 2D1.1(b)(1)'s
enhancement to apply, “[t]he government must show by a
preponderance of the evidence that ‘a temporal and
spatial relation existed between the weapon, the drug
trafficking activity, and the defendant.'”
United States v. Sallis, 533 F.3d 1218, 1225 (10th
Cir. 2008)(quoting United States v. Pompey, 264 F.3d
1176, 1180 (10th Cir. 2008)). “For purposes of §
2D1.1(b)(1), the government need only show that ‘the
weapon was found in the same location where drugs or drug
paraphernalia are stored.'” United States v.
Zavalza-Rodriguez, 379 F.3d 1182, 1187 (10th Cir.
2004)(quoting United States v. Roederer, 11 F.3d
973, 982-83 (10th Cir. 1993)). See United States v.
Williams, 431 F.3d 1234, 1237 (10th Cir. 2005).
“The plain language of section 2D1.1(b)(1) and its
commentary permit a trial judge to enhance a drug
defendant's sentence for mere possession of a dangerous
weapon even if there is no evidence other than proximity to
suggest the gun was connected to the offense.”
United States v. Roberts, 980 F.2d 645, 647 (10th
Cir. 1992). See United States v. Castillo-Nava, 347
F.Supp.3d 743, 747 (D.N.M. 2018)(Browning, J.)(“The
enhancement applies if the weapon was present at any point in
the offense or during relevant conduct for which the
defendant is responsible.”). Section
2D1.1(b)(1)‘s proximity requirement is satisfied, for
example, when firearms are exchanged for drugs. See
United States v. Guzman-Aviles, 663 Fed.Appx. 674, 677
(10th Cir. 2016)(unpublished); United States v.
Robertson, 45 F.3d 1423, 1450 (10th Cir. 1995).
Tenth Circuit has addressed similar facts on a few occasions.
Based on the Tenth Circuit's reasoning, U.S.S.G. §
2D1.1(b)(1)'s enhancement will apply if the facts
establish that a firearm was sold in close, physical
proximity to the drugs. See United States v.
Henderson, 604 Fed.Appx. 655 (10th Cir.
2015)(unpublished); United States v. Castro-Perez,
749 F.3d 1209 (10th Cir. 2014); United States v.
McFarlin, 202 F.3d 283, 1999 WL 1127649 (10th Cir.
1999)(unpublished). In United States v.
Castro-Perez, the district court applied U.S.S.G. §
2D1.1(b)(1)'s enhancement where the defendant sold a gun
to an undercover agent on the same day he also sold cocaine
to the same agent. See 749 F.3d at 1210. The Tenth
Circuit noted that “there was no physical relation
between the weapon and the drug trafficking activity, ”
because the gun was delivered after the drug transaction, and
there was no evidence that the gun was carried during the
drug sale. 749 F.3d at 1211. The Tenth Circuit remanded the
case for the district court to vacate the sentence and to
resentence the defendant, observing that “[a]s much as
the government would like to avoid it, physical proximity is
a touchstone of the § 2D1.1(b)(1) firearm enhancement,
even if established through relevant conduct or that of a
coconspirator.” United States v. Castro-Perez,
749 F.3d at 1211.
Tenth Circuit similarly reversed a district court's
2-level enhancement in United States v. Henderson,
604 Fed.Appx. 655. In that case, an informant, who had
already made three controlled methamphetamine purchases from
the defendant, purchased a handgun from the defendant.
See 604 Fed.Appx. at 656. The facts showed that,
during the handgun purchase, “the informant inquired
about purchasing methamphetamine. Henderson explained that he
would not have any methamphetamine until later that day. At
that time, Henderson made arrangements on his cell phone to
receive methamphetamine from his supplier.” 604
Fed.Appx. at 656-57. The Tenth Circuit agreed with all
parties that the district court erroneously applied the
2-level enhancement, because “the physical link between
the firearm and drugs in Henderson's case is even more
attenuated than in Castro-Perez.” United
States v. Henderson, 604 Fed.Appx. at 657.
Tenth Circuit affirmed a 2-level enhancement under U.S.S.G.
§ 2D1.1(b)(1) where the defendant sold methamphetamine
and a gun simultaneously. In United States v.
McFarlin, 202 F.3d 283, 1999 WL 1127649, the defendant
sold methamphetamine to an undercover agent, who then asked
whether the defendant had any guns for sale. See
1999 WL 1127649 at *1. The defendant sent an informant to
retrieve a gun, which he then sold to the undercover agent.
See 1999 WL 1127649 at *1. The Tenth Circuit
affirmed the 2-level enhancement, and rejected the
defendant's arguments that, because the sale of the gun
and the methamphetamine were separate transactions, the
defendant's possession of the gun was not related to the
drug sale. See 1999 WL 1127649 at *2. The Tenth
Circuit concluded that the case's facts
do not meet Defendant's burden of showing that the
district court clearly erred in finding that Defendant's
possession of the gun was related to the drug sale. The
proximity of the gun and the drugs is sufficient evidence of
relatedness, even if the transactions were separate.
Defendant's contentions that the gun was intended for
sale, was unloaded, and ...