Eleventh Circuit Court of Appeals - Published Opinions

Friday, October 11, 2019

Bishop: Mere Proximity Between Firearm and Drugs for Personal Possession Is Insufficient for 2K2.1(b)(6)(B) Enhancement

In United States v. Bishop, No. 17-15473 (Oct. 11, 2019) (Wilson, Newsom, Coogler), the Court affirmed the denial of a motion to suppress but vacated the defendant's sentence due to a guideline error.

First, the Court upheld a pat down because it found that the officers had reasonable suspicion to believe that the defendant was armed and dangerous.  The Court rejected the defendant's argument that his nervous, fidgety behavior, coupled with the officers' knowledge that he had previously been an inmate at the county jail, was insufficient.  In addition to those facts, a woman arrested earlier that day had informed one of the officers that she was going to the defendant's house, and the defendant was non-compliant with the officer's orders to exit his vehicle.  The Court noted that knowledge of an individual's criminal history alone was not sufficient and was of little weight.

Second, the Court found that the district court erroneously applied the four-level enhancement in USSG 2K2.1(b)(6)(B) for possessing a firearm in connection with another felony offense--namely, possession of a hydromorphone pill.  Because possession of that one pill was a drug possession offense, rather than a drug trafficking offense, the court was required under the Guidelines to find that the firearm facilitated or had the potential to facilitate that drug possession offense.  Mere proximity between the firearm and pill was insufficient without such a finding.  The Court remanded to give the parties and the court an opportunity to address that issue.

Finally, and relying on circuit precedent, the Court upheld the enhancement under USSG 2K2.1(a)(3) on the ground that the defendant's prior Florida conviction for drug conspiracy under 893.13 was a predicate "controlled substance offense" under the Guidelines.