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United States v. Swanson

July 6, 2010

UNITED STATES OF AMERICA, APPELLEE,
v.
LLOYD T. SWANSON, APPELLANT.



Appeal from the United States District Court for the Western District of Missouri.

The opinion of the court was delivered by: Melloy, Circuit Judge

Submitted: June 15, 2010

Before MELLOY, HANSEN, and SMITH, Circuit Judges.

Lloyd T. Swanson pleaded guilty to being a felon in possession of a firearm in violation of 18 U.S.C. §§ 922(g)(1) and 924(a)(2). The district court*fn1 sentenced Swanson to twenty-seven months' imprisonment. Swanson appeals the district court's application of a four-level sentencing enhancement after finding Swanson possessed the firearm in connection with another felony. See United States Sentencing Guidelines § 2K2.1(b)(6). We affirm.

I.

During a search incident to a lawful traffic stop, police discovered a Glock .40 caliber firearm in Swanson's car between the driver's seat and center console, with the butt of the gun in a visible position. The gun was loaded, had a live round in the chamber and was later found to be stolen. Before towing the car, police searched Swanson's vehicle further and discovered numerous packs of More Brand cigarettes (a brand commonly used for smoking PCP), an empty sandwich baggie box, a black super-mini scale, a silver proscale, and a black paper bag containing two baggies, each containing a dropper. Police then searched Swanson incident to arrest and discovered a vial in his coat pocket. Swanson admitted to police that the vial contained PCP, but stated the drugs were for personal use only. A police officer at the scene also smelled the vial and recognized the odor of PCP. No testing was performed, and no lab reports exist confirming the vial contained PCP.

Swanson was charged with being a felon in possession of a firearm, a violation of 18 U.S.C. §§ 922(g)(1) and 924(a)(2). He pleaded guilty to the charge, but at the time no plea agreement was in place. The Presentence Investigation Report (PSR) recommended a four-level enhancement under U.S.S.G. § 2K2.1(b)(6), because the possession of the firearm was "in connection with" the PCP possession, a felony under Missouri law. Swanson objected to the PSR's recommendation to apply the enhancement, arguing that "in connection with" requires the Government prove the firearm "facilitated or had the potential of facilitating, another felony offense" and that the government failed to do so.

Swanson again objected to the enhancement at the sentencing hearing. He claimed proximity and closeness were the only bases for any facilitation finding and those alone were not sufficient for the four-level enhancement. Swanson also claimed that he had begun carrying the firearm for self-protection after being shot on a separate occasion. The district court rejected these claims, stating:

Now, it's pretty obvious to me that he had that gun there to facilitate possession and/or distribution of PCP. Why else would he have a gun? Was he going target shooting?

****

I understand your position, but I'm going to find that [] the four-point [sic] enhancement that he had possession of that gun to facilitate the possession of and the potential to facilitate and protect himself because he had drugs. Now, the argument might be different if he just had the gun, period, but he had guns and drugs in a car, and I think the four points [sic] holds.

The district court then applied the four-level sentencing enhancement and sentenced Swanson to twenty-seven months' imprisonment, a sentence within the adjusted Guidelines range.

On appeal, Swanson makes two arguments. First, Swanson argues the district court failed to apply the proper standard when determining whether he possessed the firearm "in connection with" another felony offense. Alternatively, he argues that the ...


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