Two guys are sitting on a porch in Memphis on a July night. They share some conversation and a little bit of marijuana.
Three and a half years later, the Sixth Circuit wrote about that night in United States v. Shields.
Kevin Shields stopped by to visit Eugene Moore on his mother’s porch. Earlier that night, Mr. Shields had been seen with a handgun in his waistband by a Memphis police officer.
When the police saw him on the porch, they made eye contact. Mr. Shields then threw the gun into the bushes off the porch.
This is a nice move by Mr. Shields – not only does it confirm that he has the gun, it makes any Fourth Amendment argument harder later, since he likely abandoned it.
But I digress.
As Mr. Shields was being taken to the police car, he said to the officers that he forgot his wallet on the porch. The officers, obligingly, walked him back to the porch where they found the wallet. It was next to a bag that contained marijuana and cocaine residue.
Mr. Shields pled guilty to being a felon in possession of a firearm.
The sentencing guidelines for being a felon in possession of a firearm are in section 2K2.1.
Section 2K2.1(b)(6) says that a person’s offense level should increase by four levels if they had the gun in order to further some other felony activity. Four levels, of course, is a pretty big bump on the sentencing table.
The government argued that Mr. Shields’ offense level should be increased by four levels under 2K2.1(b)(6) because of the marijuana.
Under Tennessee law, apparently, for someone with Mr. Shields’s criminal history, simple possession of marijuana is a felony.
Mr. Shields didn’t agree with this. The issue went to a contested sentencing hearing.
At the hearing, the former porch buddies gave different versions of what happened that night.
Mr. Moore was a government witness. He said that he was sitting on the porch when Mr. Shields walked up with liquor, a large bottle of beer, and marijuana. Mr. Shields offered some marijuana to Mr. Moore, who testified that he preferred to abstain.
Mr. Shields, on the other hand, said that he walked up to the porch where Mr. Moore offered him some marijuana. Mr. Moore, however, was out of rolling papers, and Mr. Shields offered to share his.
Mr. Shields, unfortunately, also admitted that he had smoked marijuana in the past and that he had a problem with it.
The district court, applying a preponderance of the evidence standard, found that the marijuana was Mr. Shields’. The sentencing court said,
This is not one of those cases where [the Government] presented overwhelming evidence on it, they just presented a lot of evidence, and it seems to accumulate in such a way as to lead to the conclusion that because of the proximity, because of the timing, because of the other evidence which indicates that you did have a marijuana problem that you would have carried some marijuana with you.
It’s always something to see a preponderance of the evidence standard in action.
The sentencing court assessed Mr. Shields the four-level enhancement and sentenced him to two months below the bottom of the sentencing guidelines range.
On appeal, the Sixth Circuit noticed that 2K2.1(b)(6) – the “have a gun in furtherance of another felony” provision is different than a “have a gun while committing another felony” enhancement.
The court of appeals held that there wasn’t any evidence that Mr. Shields possessed the gun to help him with the marijuana smoking – he didn’t use the gun to roll a joint, for example.
Because there was no connection, other than bad timing, between Mr. Shields’ gun possession and the marijuana possession that the district court found, the Sixth Circuit determined that the enhancement did not apply. It sent the case back for a new sentencing hearing.