USA v. Shammah Israel
Per Curiam OPINION filed : We AFFIRM the application of the four-level enhancement under USSG 2K2.1(b)(6)(B), decision not for publication. Danny J. Boggs and Bernice Bouie Donald, Circuit Judges; and Denise Page Hood, District Judge.
NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
File Name: 14a0666n.06
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
UNITED STATES OF AMERICA,
SHAMMAH JAMEL ISRAEL, aka Shammah
Aug 26, 2014
DEBORAH S. HUNT, Clerk
ON APPEAL FROM THE UNITED
STATES DISTRICT COURT FOR
THE EASTERN DISTRICT OF
BEFORE: BOGGS and DONALD, Circuit Judges; HOOD, District Judge.
PER CURIAM. Shammah Jamel Israel pleaded guilty without a plea agreement to
possession of firearms by a felon, in violation of 18 U.S.C. § 922(g)(1). At sentencing, Israel
objected to a four-level enhancement of his base offense level under USSG § 2K2.1(b)(6)(B) for
possessing the firearms in connection with another felony offense—drug trafficking. The district
court overruled Israel’s objection and sentenced him to 40 months of imprisonment, varying
downward from a guidelines range of 46 to 57 months of imprisonment.
On appeal, Israel contends that there was an insufficient evidentiary basis for the district
court’s application of USSG § 2K2.1(b)(6)(B), which provides for a four-level enhancement if
the defendant “[u]sed or possessed any firearm . . . in connection with another felony offense.”
USSG § 2K2.1(b)(6)(B). “[W]e review the district court’s factual findings for clear error, and
The Honorable Denise Page Hood, United States District Judge for the Eastern District
of Michigan, sitting by designation.
United States v. Israel
accord ‘due deference’ to the district court’s determination that the firearm was used or
possessed ‘in connection with’ the other felony, thus warranting the application of the U.S.S.G.
§ 2K2.1(b)(6) enhancement.”
United States v. Taylor, 648 F.3d 417, 432 (6th Cir. 2011).
Whether there is a sufficient “nexus between the firearm and the felony . . . is a fact-specific
inquiry.” Id. at 431 (internal quotation marks omitted).
The four-level enhancement under USSG § 2K2.1(b)(6)(B) applies “if the firearm . . .
facilitated, or had the potential of facilitating, another felony offense.”
comment. (n.14(A)) (emphasis added).
USSG § 2K2.1,
With respect to a drug trafficking offense, the
enhancement should apply if the “firearm is found in close proximity to drugs, drugmanufacturing materials, or drug paraphernalia.” Id. comment. (n.14(B)). “Under the so-called
‘fortress theory,’ which this circuit has adopted, a sufficient connection is established if it
reasonably appears that the firearms found on the premises controlled or owned by a defendant
and in his actual or constructive possession are to be used to protect the drugs or otherwise
facilitate a drug transaction.” United States v. Angel, 576 F.3d 318, 321 (6th Cir. 2009) (internal
quotation marks omitted). “Put differently, § 2K2.1 applies if the firearm had some emboldening
role in a defendant’s felonious conduct.” Id. (internal quotation marks and brackets omitted).
According to the presentence report, a confidential informant made controlled buys of
cocaine from Israel on four dates: August 17, September 7, and October 19, 2011, and March
13, 2012. Two of those controlled buys took place at Israel’s residence. On November 7, 2012,
law enforcement executed a search warrant at Israel’s residence, where he was located sleeping
in a bedroom. The officers found a plastic baggie containing cocaine inside the pocket of
Israel’s pants lying on the bedroom floor. Multiple sets of scales with residue were found in the
residence. The officers also discovered two loaded firearms: (1) a Velocity LLC, Model
United States v. Israel
VMAC9, 9x19-caliber semi-automatic pistol with an attached large-capacity magazine under a
couch cushion in the living room and (2) a Hi Point, Model JHP, .45-caliber semi-automatic
pistol with an attached magazine under a mattress in another bedroom. Numerous rounds of
ammunition were found: approximately 50 rounds of .45-caliber ammunition and 225 rounds of
9-mm ammunition. In response to Israel’s objections to the presentence report, the probation
officer noted that the search also resulted in the seizure of video-surveillance equipment and
$1,047 in cash.
The district court found that Israel possessed the firearms in connection with drug
trafficking, noting that there had been a number of controlled buys from Israel, that he was in
possession of cocaine when the search warrant was executed, that the firearms were hidden, that
there was “a lot” of ammunition, and that scales and other indicia of drug trafficking were found.
The district court expressed concern about Israel’s possession of a firearm with a large capacity
magazine: “I really don’t know why anybody would have one of those for any reason.” See
Taylor, 648 F.3d at 433 (holding that “the type of firearm and whether it is loaded are also
Israel argues that the temporal remoteness of his prior drug trafficking minimizes the
connection between the firearms and drug trafficking. Although there was an eight-month gap
between the last controlled buy and the execution of the search warrant, Israel’s possession of
cocaine, multiple sets of scales with residue, video-surveillance equipment, and a large amount
of cash provided evidence of current drug trafficking. Israel also contends that the recovery of
the firearms from rooms other than where he was sleeping undermines the connection between
the firearms and drug trafficking. As the probation officer pointed out, Israel’s presence in a
room without a firearm could be attributed to the early hour at which the search warrant was
United States v. Israel
executed. One of the loaded firearms—a semi-automatic pistol with an attached large-capacity
magazine—was hidden under a couch cushion in the living room, making it easily accessible and
supporting the “fortress theory.” According to Israel, this case is most factually analogous to
United States v. Hymon, 333 F. App’x 40 (6th Cir. 2009), in which this court held that the district
court erred in applying the four-level enhancement under USSG § 2K2.1(b)(6)(B). In that case,
however, the presentence report “set forth no facts about the location of the weapon in [the
defendant’s] residence, its proximity to the drugs or drug paraphernalia, or whether it appeared
that [the defendant] was using the weapon to protect the drugs. The district court also did not
address this element of § 2K2.1(b)(6) at the hearing, other than to note that [the defendant]
admitted owning the gun.” Id. at 42. In contrast, the district court in this case addressed the
location of the loaded firearms—hidden under a couch cushion and under a mattress—as well as
the presence of numerous rounds of ammunition, multiple scales with residue, and other indicia
of drug trafficking.
Our review is not de novo. As noted, we give due deference to the district court’s
determination that Israel possessed the firearms in connection with drug trafficking. We affirm
the application of the four-level enhancement under USSG § 2K2.1(b)(6)(B).
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