United States v. Carter, CRIMINAL ACTION NO. 2:20cr12-MHT

506 F.Supp.3d 1204

UNITED STATES of America

v.Jeffrey Scott CARTER

CRIMINAL ACTION NO. 2:20cr12-MHT

United States District Court, M.D. Alabama, Northern Division.

Signed December 11, 2020

Robert Randolph Neeley, Thomas R. Govan, Jr., United States Attorney's Office, Montgomery, AL, for United States of America.

OPINION

Myron H. Thompson, UNITED STATES DISTRICT JUDGE

Defendant Jeffrey Scott Carter pleaded guilty to a one-count indictment of being a felon in possession of a firearm in violation of 18 U.S.C. § 922(g)(1). At sentencing, after resolving issues related to the application of Guidelines 2K2.1(b)(6)(B) and 3C1.1, U.S. Sent'g Guidelines Manual §§ 2K2.1(b)(6)(B) and 3C1.1 ("U.S.S.G."), the court granted a downward variance of one and a half years, which resulted in a sentence of 33 months of imprisonment. The court also imposed three years of supervised release that is expected to include substantial mental-health and substance-abuse treatment, the specifics of which the court will determine upon Carter's release. The court writes to explain further its decisions regarding the variance and the application of Guideline 2K2.1.

I.

The court rejected the government's argument that Guideline 2K2.1(b)(6)(B) applied in this case. As relevant here, that guideline provides a four-level enhancement of a defendant's offense level when the defendant "used or possessed any firearm or ammunition in connection with another felony offense." U.S.S.G. § 2K2.1(b)(6)(B). An application note explaining this guideline indicates that it applies when the firearm with which the defendant is charged "facilitated, or had the potential of facilitating, another felony offense." U.S.S.G. § 2K2.1 cmt. n.14.

In this case, the firearm that Carter pleaded guilty to possessing was found in a backpack in the mobile home where he was arrested. The government argued that he should receive the four-level enhancement under Guideline 2K2.1(b)(6)(B) because it was undisputed that he arrived to the mobile home in a stolen truck and had the firearm with him at that time. The government's position was that the firearm "provid[ed] a potential means of protecting the stolen property" and thus could have facilitated a felony offense of receipt of stolen property because "Carter's possession of a firearm, while he was also in possession of a stolen vehicle, emboldened his felonious conduct." Govt's Supplemental Sentencing Memorandum (doc. no. 69) at 1. In other words, in the government's view, Carter's bare possession of the pistol while he was driving the stolen truck was sufficient for the enhancement to apply.

The court rejected this argument. Based on the evidence presented during the hearing, including Carter's testimony about why he had the handgun at issue, the court found that Carter had the gun simply as an item of barter to get money for drugs. As will be discussed below, Carter is severely addicted to synthetic marijuana and methamphetamine, and his days consist of buying and selling property--often stolen--for small amounts of money to keep himself intoxicated. He admitted at sentencing that he traded some stolen items in exchange for the gun and intended to sell it onward, just like any other piece of property he came into possession of, for enough cash to stay high.

It was undisputed that Carter had the pistol for a week at most before he was arrested. When asked why he had the pistol, he credibly testified that, "I had got it on a cheap deal. I had it to sell it." Tr. of Nov. 12 Hr'g (doc. no. 66) at 16. In other words, this was not a weapon Carter used to steal property or kept on-hand to protect his stolen property. Indeed, despite Carter's long criminal history, it does not appear that he has ever used a firearm or any other weapon in a crime. With the exception of a single charge of misdemeanor assault nearly 14 years ago, apparently stemming from a fistfight that broke out while he was buying drugs, he has no violent convictions in his record. For all of these reasons, the court found that the gun did not embolden Carter's receipt of the truck he was driving on the day he was arrested and that there was no realistic potential that he would use the gun to protect the truck in any circumstances.

To support its argument to the contrary, the government cited five cases: one in which this court noted that determining "whether possession of the gun may have ‘emboldened’ the defendant's felonious conduct" is relevant to deciding whether Guideline 2K2.1(b)(6) applies, United States v. Osborne , 590 F. Supp. 2d 1330, 1335 (M.D. Ala. 2008) (Thompson, J.), and four cases in which various federal Courts of Appeals have found it reasonable for a sentencing court to apply this guideline when the facts showed that a firearm had the potential of emboldening additional felonies or protecting the defendant's stolen property.

This court's decision in Osborne supported its decision here not to apply Guideline 2K2.1(b)(6) in this case. In Osborne , the court found the guideline inapplicable to a defendant who possessed a gun at the same time that he possessed a small amount of the drug ecstasy. See id. at 1335-36. On the evidence presented in that case, the court found that the gun had not emboldened Osborne's possession of the ecstasy; the facts showed that Osborne's gun and his personal-use quantity of ecstasy were essentially unconnected.

Just as the court in Osborne found that Osborne's gun had not emboldened his drug possession, so the court found here that the pistol Carter had when he arrived at the mobile home did not embolden his possession of the truck. As the court explained in Osborne , "[e]ach decision must turn on the particular facts of each case." Id. Whether a gun has emboldened a defendant's criminal conduct is a "very fact-intensive question." Id. at 1336. As discussed above, the facts led the court to conclude that the gun did not embolden Carter's offense. The court therefore found that Guideline 2K2.1(b)(6) did not apply.

Each of the other cases cited by the government presented facts strikingly different from those in Carter's case, and none persuaded the court that the four-level enhancement of Guideline 2K2.1(b)(6)(B) was appropriate here. A short recital of the circumstances of the government's cases shows why.

In United States v. Gattis , 877 F.3d 150 (4th Cir. 2017), the Fourth Circuit Court of Appeals affirmed an application of the enhancement where the defendant was "engaged in an ongoing felony conspiracy" involving "thousands of dollars worth of items that had been stolen during at least six different burglaries." Id. at 161. Among the items the defendant stole were a handgun, a semiautomatic rifle, and two assault rifles, "as well as several fully loaded large capacity magazines," and he had been reported firing an automatic weapon at a residential street sign. Id. at 152. The appellate court held that it was reasonable for the sentencing court to conclude that the loaded weapon the defendant had with him when he was arrested may have served "as a potential means of protecting the stolen goods." Id. at 161.

In United States v. Basnett , 735 F.3d 1255 (10th Cir. 2013), the defendant was involved in a theft ring of hundreds of thousands of dollars of property, much of which he kept in his home along with "an extensive supply of guns and ammunition." Id. at 1262. Fourteen different guns were found in the home, including several "out in the open." Id. The Tenth Circuit Court of Appeals held it reasonable for the sentencing court to infer "[f]rom the volume of stolen property, guns, and ammunition at the home" that the defendant "kept the guns in connection with his transportation of stolen property." Id.

The other cases come no closer to the facts here. In United States v. Valenzuela , 495 F.3d 1127 (9th Cir. 2007), the Ninth Circuit Court of Appeals held it reasonable for the sentencing court to apply the enhancement when the district court found that the defendant's possession of a loaded pistol-grip shotgun--a shotgun he reached for when stopped by the police--had in fact emboldened his receipt and sale of stolen property. Id. at 1129-30, 1135-36. And in United States v. Bjerke , 744 F. App'x 319 (8th Cir. 2018) (per curiam), the Eighth Circuit Court of Appeals found it reasonable for the sentencing court to conclude that the enhancement applied to a defendant who testified that he carried guns with him during his burglaries "because doing so ‘ma[kes] [him] feel more powerful.’ " Id. at 323 (alterations in original).

All of these cases involved significant indicia that the defendants actually kept firearms for the purpose of protecting their stolen property or facilitating thefts. No such indicia appear in this case as to the truck at issue. Instead, the facts here pointed the court to the contrary conclusion: Carter did not have the gun to protect the truck and would not have used it to do so. In the context of all the facts presented, the fact that Carter had the gun while he was driving the stolen truck did not convince the court that the gun "facilitated, or had the potential of facilitating," his receipt of the truck. U.S.S.G. § 2K2.1 cmt. n.14.¹

II.

With the issue of Guideline 2K2.1(b)(6)(B) resolved, the court turned to considering Carter's motion for a variance. The court's decision to grant a variance was based largely on evidence of pervasive trauma during his childhood and the testimony of Dr. Adriana Flores about the effects of this trauma on his culpability for the present offense.² The court was persuaded by Dr. Flores's testimony that Carter's severe childhood trauma affected his culpability in two significant ways. First, it led directly to his multiple drug addictions, which began as efforts to self-medicate his post-traumatic symptoms, and which led in turn to his criminal conduct. And, second, the neurological effects of the trauma he experienced while his brain was still developing likely impacted his...