ORAL ARGUMENT NOT YET SCHEDULED

UNITED STATES COURT OF APPEALS

FOR THE DISTRICT OF COLUMBIA CIRCUIT

__________________________________________________

NO.

__________________________________________________

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

ANTHONY xxxxxxx,

Defendant-Appellant.

__________________________________________________

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF COLUMBIA

__________________________________________________

REPLY BRIEF FOR APPELLANT

__________________________________________________

A.J. KRAMER

Federal Public Defender

SANTHA SONENBERG

Assistant Federal Public Defender

Counsel for Appellant

625 Indiana Avenue, N.W. Suite 550

Washington, D.C. 20004

(202) 208-7500

Also on the Brief

Frances H. Pratt

Research and Writing Specialist

District Court

Cr. No. 94-084 (TPJ)

TABLE OF CONTENTS

TABLE OF AUTHORITIES ii

SUMMARY OF ARGUMENT 1

ARGUMENT 2

I. The Record Does Not Support A Ruling That The District Court Found By A Preponderance Of The Evidence That Mr. xxxxxxx Possessed The Weapon "In Connection With" The Offense Of Possession With The Intent To Distribute Cocaine Base As Required By U.S.S.G. § 2K2.1(c) 2

CONCLUSION 8

CERTIFICATE OF LENGTH 8

CERTIFICATE OF SERVICE 9

TABLE OF AUTHORITIES

CASES

Bailey v. United States,

(No. 94-7448) ___ S. Ct. ___, 1995 WL 712269

(December 6, 1995) 4

Robinson v. United States,

(No. 94-7492)___ S. Ct. ___, 1995 WL 712269

(December 6, 1995) 4

Smith v. United States,

___ U.S. ___, 113 S. Ct. 2050 (1993) 3, 4

United States v. Foster,

19 F.3d 1452 (D.C. Cir. 1994) 5

United States v. McDowell,

888 F.2d 285 (3d Cir. 1989) 6, 7

United States v. Pinnick,

47 F.3d 434 (D.C. Cir. 1995) 4

United States v. Sturtevant,

62 F.3d 33 (1st Cir. 1995) 5

United States v. Terry,

916 F.2d 157 (4th Cir. 1990) 7

United States v. Thompson,

32 F.3d 1 (1st Cir. 1994) 3, 5

STATUTES AND SENTENCING GUIDELINES

18 U.S.C. § 841(b)(1)(B) 5

18 U.S.C. §924(c) 3, 4

U.S.S.G. § 2K2.1 2, 3, 4, 6, 7

U.S.S.G § 2D2.1 6

UNITED STATES COURT OF APPEALS

FOR THE DISTRICT OF COLUMBIA CIRCUIT

__________________________________________________

NO.

__________________________________________________

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

ANTHONY xxxxxxx,

Defendant-Appellant.

__________________________________________________

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF COLUMBIA

__________________________________________________

REPLY BRIEF FOR APPELLANT

__________________________________________________

SUMMARY OF ARGUMENT

The district court erroneously equated the indictment with proof by a preponderance of the evidence that Mr. xxxxxxx possessed the weapon in connection with possession with the intent to distribute cocaine base. Accordingly, the record does not reflect that the district court found that relevant facts existed by the requisite standard of proof. There is a difference between finding that the necessary facts existed to demonstrate that Mr. xxxxxxx possessed the weapon in connection with a drug felony, and making any factual findings by the correct legal standard of proof. Even if the district court did the former, it did not do the latter.

Since the record does not demonstrate that the district court found by a preponderance of the evidence, both that Mr. xxxxxxx possessed the weapon "in connection with" possession with the intent to distribute cocaine base, and that the 6.5 grams of drugs at issue were for distribution as opposed to personal use, the case must be remanded for resentencing.

ARGUMENT

The government claims that the district court did not make its sentencing findings based upon less than a preponderance of the evidence. Gov. Br. 3, 9. Where, as in this case, however, the district court erroneously equated probable cause established by a grand jury indictment with a preponderance of the evidence, this Court cannot be confident that, in fact, the district court did apply the correct legal standard to Mr. xxxxxxx's sentencing. Accordingly, the record does not support the government's assertion that the district court's ruling regarding the evidence was based upon a preponderance of the evidence.

The government erroneously contends that the issue in this case is whether the district court made proper findings to support the application of U.S.S.G. § 2K2.1(c), given the undisputed facts in the presentence report. Gov. Br. iv. That erroneous characterization of the issue ignores the more fundamental question of whether, by applying an incorrect standard of proof, the district court failed to make a finding that the facts contained in the presentence report were sufficient to meet the proper standard of proof. As argued below, see A. 19-20, 25-28,⁽¹⁾ and in the opening brief, see Def. Br. 7-12, Mr. xxxxxxx's position is that the government did not establish by a preponderance of the evidence that the weapon Mr. xxxxxxx possessed was in connection with the commission or attempted commission of another offense, as required under § 2K2.1(c)(1).

The government's assertion that because the district court relied upon surrounding circumstances and may have recognized its duty to make findings based upon a preponderance of the evidence, the district court necessarily applied the proper legal standard to those surrounding circumstances, is illogical. Even if, arguendo, the district court had considered the surrounding circumstances, the record is not clear that the court below applied the correct legal standard to those circumstances. The sentencing court could have relied upon the surrounding circumstances, but nonetheless applied the wrong legal standard to those circumstances.

Moreover, as argued before the district court, see A. 19-20, and in the opening brief, see Def. Br. 8, because "in connection with" for purposes of U.S.S.G. § 2K2.1, is construed as "analogous" to possession of a firearm "in relation to" under 18 U.S.C. § 924(c), see United States v. Thompson, 32 F.3d 1, 6 (1st Cir. 1994), citing Smith v. United States, U.S. , 113 S. Ct. 2050 (1993), the Supreme Court's recent decision in Bailey v. United States, No. 94-7448, and Robinson v. United States, No. 94-7492, S.Ct. , 1995 WL 712269 (December 6, 1995), that there must be "active employment of the firearm" to support a conviction under 18 U.S.C. § 924(c), 1995 WL 712269, *6, makes clear that the surrounding circumstances in Mr. xxxxxxx's case did not support application of the cross-reference provision of U.S.S.G. § 2K2.1(c)(1). Because the Supreme Court in Bailey and Robinson held that "the inert presence of a firearm, without more, is not enough to trigger § 924(c)," 1995 WL 712269, *8, likewise, the inert presence of a weapon under the car seat in Mr. xxxxxxx's case, was insufficient to trigger application of U.S.S.G. §2K2.1(c)(1). See Bailey and Robinson, 1995 WL 712269, *8 ("A defendant cannot be charged under § 924(c)(1) merely for storing a weapon near drugs or drug proceeds. Storage of a firearm, without its more active employment, is not readily distinguishable for possession."), citing Smith v. United States, U.S. , 113 S. Ct. 2050 (1993).

The government's reliance on United States v. Pinnick, 47 F.3d 434, 437 (D.C. Cir. 1995), to argue that Mr. xxxxxxx cannot challenge his sentence because he did not dispute any of the facts contained in the presentence report, is inapposite. Gov. Br. 9 n.3, 10. Under the government's interpretation of Pinnick, an accused would be foreclosed from challenging the sufficiency of the evidence under a particular guideline provision unless s/he challenged the underlying facts. The government's argument confuses challenges to factual findings with challenges to legal conclusions regarding the sufficiency of the evidence to meet the requisite standard of proof.

While the government is correct that Mr. xxxxxxx did not contest the underlying facts contained in the presentence report, Gov. Br. 9-10 & n. 3, by challenging the district court's application of the wrong standard of proof, Mr. xxxxxxx did contest the sufficiency of the evidence that allegedly established that he possessed cocaine base with the intent to distribute it, rather than possessing it for personal use.

The government repeatedly refers to the amount of cocaine base found on Mr. xxxxxxx at the time of his arrest, 6.5 grams, as "large." Gov. Br. 9, 15 n. 6. Viewed objectively, however, 6.5 grams simply is not a large amount. It is equivalent to less than 7 packages of artificial sweetener. This amount is barely sufficient to trigger a mandatory minimum under 18 U.S.C. § 841(b)(1)(B). Further, 6.5 grams is a tiny amount when compared to the cases cited by the government as involving "large" amounts of drugs. For example, United States v. Thompson, 32 F.3d 1, 2-3 (1st Cir. 1994), involved more than a kilo of cocaine, cocaine base, and crack cocaine. Similarly, United States v. Foster, 19 F.3d 1452, 1456 (D.C. Cir. 1994), involved 38 grams of crack, more than five times the amount of cocaine base involved in this case. Finally, United States v. Sturtevant, 62 F.3d 33 (1st Cir. 1995), is not to the contrary. Although the police only found one "hit" of crack cocaine on the defendant there, the underlying offense on which the weapon enhancement in that case was based was assault, not drug possession.

The government's argument that it makes no difference in Mr. xxxxxxx's sentence whether his underlying offense was simple possession or possession with intent to distribute, Gov. Br. 16 n. 6., is simply wrong since the plain language of U.S.S.G § 2D2.1(b)(1) applies only if the accused was convicted of simple possession of more than 5 grams of a mixture or substance containing cocaine base. Mr. xxxxxxx pled guilty to possession of a firearm, not possession of cocaine base. Accordingly, by its terms, § 2D2.1(b)(1) cannot, apply to Mr. xxxxxxx.

This point is critical because of the way in which the cross-reference provision in U.S.S.G. § 2K2.1(C) operates. It applies only when the offense level for the underlying offense is higher than the offense level determined under § 2K2.1(a) and (b). If Mr. xxxxxxx's underlying offense is simple possession, under § 2D2.1(a)(1) his offense level would be 8. In contrast, his offense level under § 2K2.1(a) and (b) would be 18, and under § 2D1.1, it would be 26. See Def. Br. 16. Consequently, § 2K2.1(c) applies only if the district court finds that Mr. xxxxxxx possessed the cocaine base with the intent to distribute it.

Furthermore, the cases cited by the government for the proposition that a court may rely on an unchallenged presentence report are each distinguishable from the situation presented here. In United States v. McDowell, 888 F.2d 285 (3d Cir. 1989), the issue was the standard of proof on Chapter Three adjustments. The court stated specifically that its ruling did not apply to adjustments relating to new and separate offenses as opposed to mere enhancements. Id. at 291. The application of the cross-reference in Mr. xxxxxxx's case was for a new and separate offense insofar as it required the government to establish the elements of another offense; therefore, McDowell does not apply to this case. Likewise, the Fourth Circuit's decision in United States v. Terry, 916 F.2d 157 (4th Cir. 1990), is distinguishable from Mr. xxxxxxx's case because it involved an upward departure on criminal history. As well, the district court in Terry stated its findings and proposed findings on the record, and made a finding that the presentence report was reliable, id. at 160, 161 n.3 -- precisely what the district court failed to do in Mr. xxxxxxx's case.

The district court's error in not making the required findings substantially prejudiced Mr. xxxxxxx. A finding that a preponderance of the evidence did not demonstrate that Mr. xxxxxxx had possessed the weapon in connection with possession with intent to distribute cocaine base would have precluded the court from applying the cross-reference provision of U.S.S.G. § 2K2.1(c) and would have resulted in a lower offense level yielding a guideline range roughly half the length of the sentence Mr. xxxxxxx actually received. See Def. Br. 16.

CONCLUSION

For the foregoing reasons and those presented in Mr. xxxxxxx's opening brief, this Court should vacate Mr. xxxxxxx's sentence as imposed in violation of law and remand this case for resentencing.

Respectfully submitted,

A.J. KRAMER

Federal Public Defender

SANTHA SONENBERG

Assistant Federal Public Defender

Counsel for Appellant

625 Indiana Avenue, N.W.

Suite 550

Washington, D.C. 20004

(202) 208-7500

Also on the Brief

Frances H. Pratt

Research and Writing Specialist

CERTIFICATE OF LENGTH

I hereby certify that the foregoing Reply Brief for Appellant

Anthony xxxxxxx does not exceed the number of words permitted pursuant to D.C. Circuit Rule 28(d).

Santha Sonenberg

Assistant Federal Public Defender

CERTIFICATE OF SERVICE

I hereby certify that two copies of the foregoing Reply Brief for Appellant Anthony xxxxxxx have been delivered by first class postage pre-paid mail upon the Office of the United States Attorney, 555 Fourth Street, N.W., Washington, D.C. 20001 this 7th day of December, 1995 for Assistant United States Attorney LeAnne Shaltis.

Santha Sonenberg

Assistant Federal Public Defender

1. "A" refers to the 42-page appendix filed with Mr. xxxxxxx's Opening Brief.