The Court held that the government met its burden by showing that the gun was present at the site of the drug possession charge. The burden therefore shifted to the defendant to prove that the connection between the gun and drugs was clearly improbable, and the defendant could not meet his heavy burden to do so. Although he did not have the gun with him during drug transactions, the gun was present in the home with the drugs that he was convicted of possessing with intent to distribute. Although the government agreed at sentencing that the enhancement did not apply, it was up to the district court to calculate the guidelines, and nothing prohibited the government from reversing position on appeal.
In footnote 3, the Court held that the defendant failed to preserve his objection to the district court’s failure to grant him a two-level safety-valve reduction. By raising that issue in one sentence in his initial brief, and by failing to devote a discrete section of his argument to it, he failed to sufficiently raise the error on appeal. And while the defendant did make substantive arguments about it in his reply brief, the Court does not consider arguments raised for the first time in reply.
