Split Noted: Who Bears the Burden of Proving (or Disproving) the Connection Between the Presence of a Firearm in Connection with a Drug Crime?

Per United States v. Peroceski, 2008 WL 819082, *5-*6 (8th Cir. Mar. 28, 2008)

Timothy Peroceski pled guilty to possession of methamphetamine with intent to distribute. He did not dispute any of the facts in the pre-sentence report, which recounted that the police found thirteen guns on the property where the drugs were found. The district court found Mr. Peroceski responsible for two of these guns, which he does not deny possessing, and applied a two-level sentencing enhancement under U.S.S.G. § 2D1.1(b)(1) for possessing a dangerous weapon in connection with a drug crime. The defendant denied that the guns had any connection with the drugs, and appeals the application of the enhancement.

The application notes for this guideline provision provides that the “adjustment should be applied if the weapon was present, unless it is clearly improbable that the weapon was connected with the offense. For example, the enhancement would not be applied if the defendant, arrested at his residence, had an unloaded hunting rifle in the closet.” This Eighth Circuit panel notes that there is an intra-circuit split over whether the government has to prove either that the weapon was ‘probably’ connected to the offense (by a preponderance standard), or that the connection was not clearly improbable. The clear weight of intra-circuit precedent favors the latter construction, and that is what the panel adopts.

Interestingly, by placing the burden on the government to prove that a connection is not clearly improbable, the Eighth Circuit is a lone outlier among all of the circuit cases construing this provision. The CAs 1,3,4,5,6,7,9,10,11 have all held that the burden is on the defendant to disprove any connection after it has been established the firearm was present. The difference between these two positions in theory, however, seems to disappear in practice – the Eighth Circuit panel in this case notes that the mere presence of a gun in the same location would suffice to meet the government’s burden, even if the gun was not operational. The application of the sentencing enhancement is affirmed.