United States of America v. Lavad Ius Faison

*The Honorable Gordon J. Quist, United States District Judge for the
W estern District of Michigan, sitting by designation.
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RECOMMENDED FOR FULL-TEXT PUBLICATION
Pursuant to Sixth Circuit Rule 206
ELECTRONIC CITATION: 2003 FED App. 0280P (6th Cir.)
File Name: 03a0280p.06
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
_________________
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
LAVAD IUS FAISON,
Defendant-Appellant.
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No. 01-6344
Appeal from the United States District Court
for the Western District of Tennessee at Memphis.
No. 99-20250—Thomas A. Wiseman, Jr.,
Senior District Judge.
Argued: June 19, 2003
Decided and Filed: August 11, 2003
Before: DAUGHTREY and ROGERS, Circuit Judges;
QUIST, District Judge.*
_________________
COUNSEL
ARGUED: Michael J. Stengel, STENGEL LAW OFFICE,
Memphis, Tennessee, for Appellant. Scott F. Leary,
2 United States v. Faison No. 01-6344
UNITED STATES ATTORNEY, Memphis, Tennessee, for
Appellee. ON BRIEF: Michael J. Stengel, STENGEL LAW
OFFICE, Memphis, Tennessee, for Appellant. Thomas L.
Parker, UNITED STATES ATTORNEY, Memphis,
Tennessee, for Appellee.
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OPINION
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GORDON J. QUIST, District Judge. Defendant, Lavadius
Faison, was charged with conspiring to possess with intent to
distribute more than five kilograms of cocaine in violation of
21 U.S.C. § 846. He pled guilty and was sentenced to 151
months incarceration to be followed by five years of
supervised release. The sole issue on appeal is whether the
district court erred in enhancing Faison’s sentence by two
points for possessing a dangerous weapon in connection with
the offense. U.S.S.G. § 2D1.1(b)(1). We hold that the
district court did not err.
The indictment charged Faison with participating in the
cocaine conspiracy from about January 1, 1998, up to and
including November 1, 1999. Faison was arrested at his
home on about January 29, 2001, over a year after the charged
end date of the conspiracy. When he was arrested, Faison’s
home was searched, which resulted in the seizure of about
$70,000 in currency, jewelry with an appraised value of
$151,000, a loaded .454 caliber Taurus pistol, two boxes of
pistol ammunition, a small amount of marijuana, documents
indicating Faison’s use of false names, and digital scales. A
search of Faison’s common law wife’s Lexus vehicle, which
was parked in the garage of the house, yielded a loaded Kal-
Tec .30 caliber pistol. At the time of his plea, Faison
admitted that the $70,000 seized was “drug proceeds,” and he
conceded that the money was “either for the sale of cocaine
or to be used to purchase cocaine or both.”

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No. 01-6344 United States v. Faison 3
Faison does not argue that the firearms and ammunition
found in the home or the vehicle were clearly not related to
drug trafficking. Indeed, in light of his own admission of
drug trafficking and the fact that the firearms were located
close to the drug proceeds or cash with which to purchase
drugs, he could not make such an argument. See, United
States v. Moses, 289 F.3d 847, 850 (6th Cir. 2002); United
States v. Hough, 276 F.3d 884, 894 (6th Cir. 2002). Rather,
Faison argues that the fourteen month delay from the end date
of the charged conspiracy, to the date that he was arrested and
the firearms and money were found, bars the dangerous
weapon enhancement from being applied because the firearms
were not shown to have been connected to the offense
conduct - the conspiracy which was alleged to have
concluded in November 1999.
Faison’s argument would have had some merit before
November 1, 1991. Prior to that date, in order for this
enhancement to apply, the dangerous weapon would have had
to have been possessed during the commission of the offense.
Effective November 1, 1991, however, the guidelines
removed the requirement of the weapon being possessed
during the commission of the offense. Since that date, all that
the government need show is that the dangerous weapon be
possessed during “relevant conduct.” As stated by the United
States Court of Appeals for the Seventh Circuit:
The Sentencing Commission, by extracting the
restriction that a dangerous weapon be possessed during
the commission of the offense of conviction for the
enhancement to apply, expanded the scope and
applicability of the weapons enhancement. This deletion
represents a conscious choice to alter the applicability of
§ 2D1.1(b)(1). Without this restriction in the Guidelines,
the criminal defendant . . . is now fair game for the
application of the rules of relevant conduct to the
weapons enhancement . . . Accordingly, district courts
must no longer limit their review to the evidence dealing
4 United States v. Faison No. 01-6344
1Some post-1991 Sixth Circuit cases—primarily in reliance on the
pre-1991-amend ment case United States v. Sanchez, 928 F.2d 145 0 (6th
Cir. 1991)— have continued to repeat the “during the commission of the
offense” language when treating other issues, like who has the burden of
showing possession. See United States v. Stewart, 306 F.3d 295, 326 (6th
Cir. 20 02); United States v. Miggins, 302 F.3d 384, 39 1 (6th Cir. 2002);
Moses, 289 F.3d at 850; Hough, 276 F.3d at 894; United States v. Bender,
265 F.3d 464, 474 (6th C ir. 200 1); United States v. Ha rdin, 248 F.3d 489,
497 (6th Cir. 20 01); United States v. Dunlap, 209 F.3d 472, 47 6 (6th Cir.
2000); United States v. Saikaly, 207 F.3d 363, 368 (6th C ir. 200 0); United
States v. Owusu, 199 F.3d 32 9, 347 (6th Cir. 200 0); United States v.
Pruitt, 156 F.3d 638 , 649 (6th C ir. 199 8); United States v. Elder, 90 F.3d
1110, 1134 (6th Cir. 199 6); United States v. Hill, 79 F.3d 1 477 , 148 5 (6th
Cir. 199 6); United States v. Barnes, 49 F.3d 1144, 1150 (6th Cir. 1995);
United States v. Calhoun, 49 F.3d 231, 236 (6th Cir. 1995). But the
“during the commission of the offense” language is dictum with respect
to the issue presented in this case, because in all of those cases the disp ute
concerned only whether the gun was possessed during the offense of
conviction, and hence in those cases we had no need to consider the
“relevant conduct” provisions. Further, the word “offense” is define d in
the guidelines as “the offense of conviction and all relevant conduct under
§1B 1.3 (Relevant Conduc t).” U.S .S.G. § 1B 1.1, cmt. n.1(k); see also
United States v. Roederer, 11 F.3d 973, 982 (10th Cir. 1993) (noting that
“[t]he amended version [o f § 2D1.1(b)(1)] now conforms to U.S.S.G.
§ 1B1.1 (comment. n.1([k])”). Consequently, our prior statements do not
supp ort Faison's argument.
with the proximity of the firearm and the drugs at the
specific time of the offense of conviction . . . .
United States v. Mumford, 25 F.3d 461, 469 (7th Cir. 1994)
(citations omitted).1 See USSG Appendix C, amend. 394.
Relevant conduct under the sentencing guidelines includes
“all acts and omissions . . . that were part of the same course
of conduct or common scheme or plan as the offense of
conviction.” U.S.S.G. § 1B1.3(a)(2). In order for the cocaine
dealing in 2001 to be part of the same course of conduct as
the offense conduct, the court must examine “the degree of
similarity of the offenses, the regularity (repetitions) of the
offenses, and the time interval between the offenses.” Hill, 79
F.3d at 1481-82. In order for the 2001 cocaine dealing to be

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No. 01-6344 United States v. Faison 5
part of a common scheme or plan relating to the offense of
conviction, the 2001 conduct must be substantially connected
by at least one common factor such as “common victims,
common accomplices, common purpose, or similar modus
operandi.” Id. Faison was guilty of a conspiracy to traffic in
cocaine through October 1999, and his possession of $70,000
in drug proceeds together with his admission at the time of his
plea shows him to be a continuing cocaine trafficker when he
was arrested in January 2001. Faison’s continuing cocaine
trafficking constitutes the same course of conduct and has a
common purpose as his offense of conviction. Therefore, the
possession of the dangerous weapons during drug trafficking
in 2001 was conduct relevant to the offense of conviction.
Because Faison possessed dangerous weapons during the
course of relevant conduct, the two point enhancement
pursuant to U.S.S.G. § 2D1.1(b)(1) was appropriate. Faison’s
sentence is, therefore, AFFIRMED.

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