United States v. Maurice Jarvis

Filing

OPINION FILED - THE COURT: Diana E. Murphy, Lavenski R. Smith and Duane Benton AUTHORING JUDGE:Duane Benton (PUBLISHED) [4370927] [15-1383]

United States Court of Appeals
For the Eighth Circuit
___________________________
No. 15-1383
___________________________
United States of America
lllllllllllllllllllll Plaintiff - Appellee
v.
Maurice D. Jarvis
lllllllllllllllllllll Defendant - Appellant
____________
Appeal from United States District Court
for the Eastern District of Missouri - St. Louis
____________
Submitted: January 11, 2016
Filed: February 25, 2016
____________
Before MURPHY, SMITH, and BENTON, Circuit Judges.
____________
BENTON, Circuit Judge.
Maurice Dashon Jarvis pled guilty to being a felon in possession of a firearm,
in violation of 18 U.S.C. § 922(g)(1). He appeals the district court’s1 application of
a four-level sentencing enhancement under U.S.S.G. § 2K2.1(b)(6)(B) for possessing
1

The Honorable Audrey G. Fleissig, United States District Judge for the
Eastern District of Missouri.

Appellate Case: 15-1383

Page: 1

Date Filed: 02/25/2016 Entry ID: 4370927

the firearm in connection with another felony offense. Having jurisdiction under 28
U.S.C. § 1291, this court affirms.
During a pat-down, police found a loaded gun and a bag of heroin (0.21 grams)
in Jarvis’s front pocket. The presentence investigation report recommended a fourlevel enhancement for possessing the firearm in connection with another felony. See
U.S.S.G. § 2K2.1(b)(6)(B). Jarvis argues that the district court (1) did not make the
necessary factual findings to support the enhancement, and (2) had insufficient
evidence for a finding he used the gun “in connection with” another felony.
This court reviews the district court’s factual findings for clear error and its
application of the sentencing guidelines de novo. United States v. Blankenship, 552
F.3d 703, 704 (8th Cir. 2009).
“[A] firearm is possessed ‘in connection with’ a drug possession felony if it
‘facilitated, or had the potential of facilitating’ that other felony.” United States v.
Holm, 745 F.3d 938, 940 (8th Cir. 2014), quoting § 2K2.1, cmt. n.14(A). This court
reverses if “the record on appeal indicated that the district court applied the section
2K2.1(b)(6) enhancement based on a temporal and spatial nexus between the drugs
and firearms, without applying the ‘facilitate’ standard of note 14(A).” United States
v. Sneed, 742 F.3d 341, 344 (8th Cir. 2014) (brackets and internal quotations
omitted), citing Blankenship, 552 F.3d at 705.
The facts here indicate that the district court understood and properly applied
the “facilitate” standard in finding that the firearm was used “in connection with” the
heroin possession. See United States v. Smith, 535 F.3d 883, 886 (8th Cir. 2008)
(“Whether a firearm ‘facilitated, or had the potential of facilitating’ a felony offense
of drug possession must be determined based on the facts of each individual case.”).
The district court noted that, though the felony offense is not trafficking, it is “not a
situation where . . . we have got some drugs in the house and there happens to be a
-2-

Appellate Case: 15-1383

Page: 2

Date Filed: 02/25/2016 Entry ID: 4370927

firearm somewhere in the house as well, and they are arguably coincidental.” Rather,
“Mr. Jarvis must have made the decision at some point to leave his home with heroin
in his pocket and to place a loaded firearm in that same pocket and to go out in the
public in that fashion.” The court also referenced Jarvis’s conviction for distributing
drugs, which involved a loaded gun. The district court explicitly stated, “I do find
that this firearm facilitated or had the potential to facilitate another felony” and, “the
firearm was in fact possessed by Mr. Jarvis in connection with another felony, namely
his possession of heroin on that day.”
Jarvis emphasizes that he possessed only a “user” amount of heroin. “The
inference that a firearm is for protection of drugs is allowable when the amount of
drugs is more than residue.” United States v. Swanson, 610 F.3d 1005, 1008 (8th
Cir. 2010). Compare Holm, 745 F.3d at 941 (finding the district court did not err
in applying the enhancement where defendant possessed one-half gram of
methamphetamine), with Smith, 535 F.3d at 885 (“The evidence does not prove that
Smith’s simultaneous possession of firearms, ammunition, and methamphetamine
residue was anything other than coincidence.”). In sum, “when a drug user chooses
to carry illegal drugs out into public with a firearm, an ‘in connection with’ finding
‘will rarely be clearly erroneous.’” Holm, 745 F.3d at 940.
*******
The judgment is affirmed.
______________________________

-3-

Appellate Case: 15-1383

Page: 3

Date Filed: 02/25/2016 Entry ID: 4370927