Tuesday, June 22, 2021

US v. Parlor, No. 30269 (6-21-21)(Bress w/Miller; Berzon dissents). This opinion concerns three firearm enhancements in sentencing a prohibited possessor. It illustrates the Rube Goldberg nature of connections, especially when it comes to “relevant conduct.” The enhancements were for the number of firearms; stolen firearms; and connection with drug trafficking. The majority finds no error in applying the enhancements.

In so ruling, the majority finds that nearly three month interval between the charged firearms (in a controlled buy) and firearms found upon arrest were a tight enough connection. Listing a firearm as stolen is sufficient evidence for an enhancement. And, drug trafficking is found because the firearms were near drug paraphernalia (baggies, scales). The small amount of drugs does not discount the connection. Last, the 9th found no plain error in the standard of review (preponderance rather than “clear and convincing”) because substantial rights were not affected, the sentence not doubled and was capped at the stat max, and counsel stated the standard was correct.

Berzon, dissenting, argues that the commentary of the Guidelines “strongly suggests” that illegal possession of additional firearms, by themselves, does not trigger relevant conduct. There was no evidence of a common scheme, or connection. Many months lapsed between the two firearms. The court abused its discretion by relying on one line of hearsay in the PSR without assessing its reliability. The line was from a CI. He traded guns for drugs and bought drugs in the past. The CI told this to the agents and the agents relayed it to the PO. Defense counsel objected when the court indicted it formed a basis for relevant conduct. The court should have held a hearing.

The decision is here:



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Wednesday, June 23, 2021 4:36:00 AM  

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