USA v. Keys

1
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF LOUISIANA
UNITED STATES OF AMERICA 	CRIMINAL ACTION
VERSUS 	No. 24-137
CHARLES RAY KEYS 	SECTION I
ORDER AND REASONS
Before the Court is defendant Charles Ray Keys’s (“defendant”) motion1 for
downward departure and/or variance,2 such that he is sentenced to no more than 87
months. The government filed a response3 in opposition. For the reasons that follow,
the Court DENIES the motion.
1 R. Doc. No. 114.
2 The Court notes that, in 2025, the United States Sentencing Commission amended
the Guidelines Manual to remove departures and policy statements relating to
specific 	personal 	characteristics. 	See 	U.S.S.G. 	App. 	C, 	amendment 	836. 	The
Guidelines Manual explains that:
The Commission envisioned and framed this 2025 amendment to be
outcome neutral, intending that judges who would have relied upon
facts previously identified as a basis for a departure would continue to
have the authority to rely upon such facts to impose a sentence outside
of 	the 	applicable 	guideline 	range 	as 	a 	variance 	under 	18 	U.S.C.
§ 3553(a). The removal of departures from the Guidelines Manual does
not limit the information courts may consider in imposing a sentence
nor does it reflect a view from the Commission that such facts should no
longer inform a court for purposes of determining the appropriate
sentence.
U.S.S.G. ch. 1, pt. A. Amendment 836 became effective on November 1, 2025. See id.
3 R. Doc. No. 121.
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I. 	BACKGROUND
Defendant was charged by superseding indictment on April 25, 2025.4 Count 1
charged defendant with possession with intent to distribute cocaine and fentanyl
pursuant to 21 U.S.C. §§ 841(a)(1) and 841(b)(1)(C).5 Count 2 charged defendant with
possession of a firearm in furtherance of a drug trafficking crime pursuant to 18
U.S.C. § 924(c)(1)(A)(i).6 Count 3 charged defendant with possession of a firearm and
ammunition as a convicted felon pursuant to 18 U.S.C. §§ 922(g)(1) and 924(a)(8).7
The superseding indictment also contained a sentencing allegation pursuant to the
Armed Career Criminal Act (“ACCA”) charging that defendant had previously been
convicted of three serious drug offenses committed on occasions different from one
another 	in 	violation 	of 	18 	U.S.C. 	§ 924(e)(1).8 	According 	to 	the 	superseding
indictment, these convictions were violations of Louisiana law and included a
conviction for attempted possession with intent to distribute cocaine on November 3,
2011 as well as two convictions for possession with intent to distribute cocaine on
April 13, 1999 and July 15, 1997.9
The Court bifurcated defendant’s trial into two phases. Phase one, the guilt
phase, concerned the defendant’s guilt as to Counts 1 through 3 of the superseding
4 R. Doc. No. 82.
5 Id. at 1–2.
6 Id. at 2.
7 Id. at 2–3.
8 Id. at 3.
9 Id.
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indictment. Phase two, the sentencing phase, concerned the ACCA sentencing
allegation.
Phase one of defendant’s trial commenced on May 13, 2025.10 The Court
charged the jury for phase one on May 14, 2025.11 The jury returned its verdict on
May 15, 2025, finding defendant guilty as to counts one and three and not guilty as
to count two.12 After the jury returned its verdict with respect to phase one, defendant
made an oral motion to dismiss the ACCA sentencing allegation in the superseding
indictment pursuant to Federal Rule of Criminal Procedure 12.13 The Court deferred
ruling on the motion.14
Because the jury found defendant guilty as to Count 3 for being a felon in
possession of a firearm and ammunition in violation of 18 U.S.C. § 922(g)(1), the
Court conducted phase two of the trial.15 After the parties concluded presenting their
cases, the Court ordered briefing on defendant’s Rule 12 motion, including briefing
on whether the motion was timely.16
On May 15, 2025, the jury returned its verdict as to phase two.17 The jury found
that defendant had three prior convictions for serious drug offenses and that the
offenses leading to those three prior convictions took place on occasions different from
10 R. Doc. No. 84.
11 R. Doc. No. 86, at 1.
12 R. Doc. No. 90.
13 See R. Doc. No. 88, at 1.
14 Id.
15 Id.
16 Id.
17 R. Doc. No. 91.
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one another, thereby finding that the ACCA sentencing enhancement applies to
defendant.18 On May 19, 2025, defendant moved to dismiss the ACCA sentencing
enhancement in the superseding indictment.19 In that motion, defendant argued that
his three prior Louisiana cocaine convictions should not “count” as predicate ACCA
serious drug offenses because “[a]t the time of those convictions[,] Louisiana’s
definition of cocaine was broader than the present CSA definition of cocaine.”20
This Court denied defendant’s motion to dismiss on June 2, 2025.21 In addition
to denying defendant’s motion because it was untimely, the Court further rejected
defendant’s 	argument 	on 	the 	merits 	because 	“[t]he 	relevant 	time 	period 	for
ACCA . . . is whether the state definition of the drug matched the federal definition
at the time that the offense was committed.”22 Because defendant had “not argued
that his state drug convictions involved drugs that were not on the federal schedules
at the time of those offenses” the Court found that defendant’s “argument fail[ed] on
the merits.”23 	The Court also acknowledged that the Fifth Circuit had noted in
United States v. Minor, 121 F.4th 1085, 1092–93 (5th Cir. 2024), that “key differences
between ACCA and the Guidelines required courts to apply different relevant time
periods for each: at the time of sentencing for purposes of the Guidelines and at the
time of the offense for purposes of ACCA.”24
18 Id.
19 R. Doc. No. 96.
20 R. Doc. No. 96-1, at 3.
21 R. Doc. No. 102.
22 See id. at 6.
23 See id. at 7.
24 See id. at 6 (quoting Minor, 121 F.4th at 1092–93).
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Defendant raises this same argument in his motion for downward departure
and/or variance.25 He also argues that a downward departure and/or variance that
would sentence him without the career offender enhancement is warranted because
he is not a “recidivist[] who ha[s] demonstrated that [he] will make no effort to live a
law-abiding life and who ha[s] no intention of making an honest living,” which is what
“[c]areer offender provisions are directed at.”26 Defendant also notes that the jury
acquitted him of Count 2, which charged him with use of a firearm in connection with
drug trafficking.27 Defendant submits that any sentence that does not include a
downward departure or variance is “greater than necessary to comply with 18 U.S.C.
§ 3553,”28 and that such a sentence would “amount[] to an essential life sentence for
possessing a firearm and separately possessing drugs” and is therefore “highly
inappropriate.”29
Similarly, defendant argues that the proposed guideline range of 262–327
months is “too harsh” considering the fact that his “career offender status” would be
“based upon relatively minor drug offenses.”30 He notes that the “average sentence
25 See R. Doc. No 114-1, at 3-6.
26 Id. at 7.
27 See id.
28 Id. (internal quotations omitted).
29 See id.
30 Id. at 9.
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for career offenders was 154 months.”31 Defendant contends that a range of 70–87
months is more appropriate and “would better serve the interests of justice.”32
Separately and additionally, defendant objects to the following conclusions and
related enhancements: the 2-point enhancement based on the conclusion that “he was
‘found in possession of five firearms;’”33 the 2-point enhancement based on the
conclusion that “he ‘possessed a Ta[u]rus Millenium . . .’ which was reported stolen;”
and the 4-point enhancement for possessing a firearm in connection with another
felony offense. Defendant argues that Alleyne v. United States, 570 U.S. 99 (2013),
“requires that any fact that enhances a penalty must be submitted to the jury and
proved beyond a reasonable doubt,” and that the conclusions upon which these
enhancements were based were not.34
Finally, 	defendant 	argues 	that 	his 	history 	and 	characteristics 	justify
downward variance, including his age, “difficult early life,” demonstrated willingness
to be gainfully employed, and close personal relationships with people who “believe
that he is a good person who should not be defined by his prior felonies in a vacuum.”35
He asserts that his prior convictions will be accounted for by the guidelines, and that
31 	See 	id. 	(citing 	Quick 	Facts 	on 	Career 	Offenders
https://www.ussc.gov/sites/default/files/pdf/research-andpublications/quick-
facts/Career_Offenders_FY23.pdf.).
32 Id.
33 Id. at 8.
34 See id. at 8-9.
35 See id. at 10.
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“it is worth nothing that these convictions are old and from a time when [he] was a
different man than he is now.”36
In response, the government argues that defendant’s argument that his prior
convictions cannot serve as ACCA predicates were addressed and rejected as being
without merit by this Court in its order and reasons denying his motion to dismiss.37
Relatedly, as it pertains to defendant’s objections to other enhancements, the
government argues that defendant already raised these arguments to the draft PSR
but that U.S. Probation “maintained the enhancements in the final PSR.”38
The 	government 	further 	argues 	that 	sentencing 	defendant 	without 	the
enhancement would not “capture the totality of the defendant’s criminal history
conduct.”39 It points out that defendant’s seven other convictions “were not assessed
any criminal history points due to the time elapsed since such convictions,” but that
“[t]wo of the seven convictions not assessed . . . 	form the basis for the ACCA
enhancement.”40 According to the government, defendant’s prior convictions “are
illustrative of the defendant’s recidivist history” and demonstrate that “defendant is
a habitual offender.”41
Moreover, the government opposes defendant’s argument that his age makes
recidivism no longer a concern or that his drug dealing and gun possession do not
36 Id. at 13.
37 See R. Doc. No. 121, at 1.
38 Id.
39 Id. at 2.
40 Id.
41 Id.
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pose a danger to the community.42 It is the government’s position that the guideline
range, including the career offender enhancement, is presumptively reasonable and,
it requests that the Court impose a guideline sentence, subject to the statutory
maximums with respect to each count.43
II. 	LAW & ANALYSIS
a. 	Application of the armed career criminal enhancement
The 	U.S. 	Probation 	Officer 	(“USPO”) 	applied 	a 	Chapter 	4 	guideline
enhancement pursuant to § 4B1.4(a),44 which states: “[a] defendant who is subject to
an enhanced sentence under the provisions of 18 U.S.C. § 924(e) is an armed career
criminal.” See U.S.S.G. § 4B1.4(a). Title 18, United States Code, section 924(e)
provides, in relevant part, that:
In the case of a person who violates section 922(g) of this title and has
three previous convictions by any court referred to in section 922(g)(1)
of this title for a violent felony or a serious drug offense, or both,
committed on occasions different from one another, such person shall be
fined under this title and imprisoned not less than fifteen years, and,
notwithstanding any other provision of law, the court shall not suspend
the sentence of, or grant a probationary sentence to, such person with
respect to the conviction under section 922(g).
§ 924(e)(1). The term “serious drug offense” includes “an offense under State law,
involving manufacturing, distributing, or possessing with intent to manufacture or
distribute, a controlled substance (as defined in section 102 of the Controlled
42 Id.
43 Id. at 3.
44 See R. Doc. No. 116, at 9.
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Substances Act (21 U.S.C. 802)), for which a maximum term of imprisonment of ten
years or more is prescribed by law.”
The USPO based defendant’s § 4B1.4 adjustment on three of defendant’s prior
convictions: attempted possession with intent to distribute cocaine on October 26,
2010 (dkt. # 501529);45 possession with intent to distribute cocaine on July 29, 1998
(dkt. # 401464);46 and possession with intent to distribute cocaine on October 30, 1996
(dkt. # 387118).47 The USPO then calculated defendant’s offense level as 34 based on
§ 4B1.4(b)(3)(A), having found that “defendant used or possessed the firearm or
ammunition in connection with a controlled substance offense (possession with intent
to distribute cocaine and fentanyl), as defined in § 4B1.2(b).”48 See § 4B1.4(b) (“The
offense level for an armed career criminal is the greatest of . . .”).
Defendant argues that this enhancement should not be applied because his
three state drug offenses should not constitute predicate ACCA offenses.49 Although
he acknowledges that the jury found that he was convicted of three prior serious drug
offenses on different occasions, he states that Brown v. United States holds that “a
state drug offense counts as an ACCA predicate only if the State’s definition of the
drug in question ‘matche[s]’ the definition under federal law.”50 Defendant then
invokes the Fifth Circuit’s opinion in Minor to state that the “proper comparison” is
45 Id. at 12.
46 Id.
47 Id.
48 Id. at 30.
49 See R. Doc. No. 114-1, at 3.
50 Id. (quoting Brown, 602 U.S. at 106).
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whether the federal “definition of ‘controlled substance’ in place at the time of
sentencing for the instant offense” matches the state’s definition of the drug at the
time of his prior convictions.51 According to defendant, if the state’s definition at the
time of the prior convictions is “categorically broader” than the “current version of
the federal CSA,” then those offenses should not serve as the basis for the sentence
enhancement.52 Defendant argues that because “at the time” of his three prior cocaine
convictions “Louisiana’s definition of cocaine was broader than the present CSA
definition of cocaine,” USPO improperly assessed the armed career criminal sentence
enhancement.53
Defendant’s analysis of the Sentencing Guidelines and reliance on Minor is
mistaken. Minor addressed a similar question of how to determine whether the career
offender 	enhancement 	applies 	when 	federal 	amendments 	to 	the 	Controlled
Substances Act (“CSA”) narrow the definition of controlled substances, leaving a
mismatch between federal and state definitions of that controlled substance at the
time of sentencing. See generally United States v. Minor, 121 F.4th 1085 (5th Cir.
2024).
Based 	on 	Guideline 	interpretation 	principles 	and 	the 	“reference 	canon”
interpretive tool, the Minor court held that the defendant’s state predicate convictions
must be compared against the CSA’s definition of controlled substance in effect at the
time of sentencing for the instant offense. Minor, 121 F.4th at 1089 (“The Sentencing
51 See id. at 4–5.
52 Id. at 5.
53 Id.
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Reform Act states that, when imposing a sentence, courts should consider the
Guidelines and any pertinent policy statements that are ‘in effect on the date the
defendant is sentenced.’” (quoting 18 U.S.C. §§ 3553(a)(4)(A)(ii) and (a)(5)(B)); see also
id. at 1090 (“The reference canon also supports our conclusion. ‘According to the
“reference” canon, when a statute refers to a general subject, the statute adopts the
law on that subject as it exists whenever a question under the statute arises.’ . . .
Here, the Guidelines’ general reference to ‘controlled substance’ weighs in favor of
applying the definition of that term ‘as it exists whenever a question under the
statute arises’—i.e., sentencing for the instant offense.” (quoting Jam v. Int’l Fin.
Corp., 586 U.S. 199, 209 (2019))). Therefore, the Fifth Circuit held that where the
defendant’s state convictions “criminalize a broader swath of conduct than” the CSA’s
definition of the same “in effect at the time of his sentencing for the instant offense,”
see id. at 1090, the career offender enhancement is improper, see id. at 1093. See also
id. (“[W]e conclude that the CSA’s definition of ‘controlled substance’ in place at the
time of sentencing for the instant offense is the proper comparison for determining
whether Minor’s predicate convictions constitute ‘controlled substance offenses’
under the career-offender enhancement.”).
But, importantly, Minor analyzed whether a defendant’s prior state offenses
could constitute the “at least two felony convictions . . . of a controlled substance
offense” that render that defendant a “career offender” pursuant to § 4B1.1(a)(3), not
§ 4B1.4. The former, unlike the latter, specifically turns on how the Guidelines define
“a controlled substance offense.” Compare U.S.S.G. § 4B1.1 (“A defendant is a career
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offender if . . . the defendant has at least two prior felony convictions of either a crime
of violence or a controlled substance offense.”), with U.S.S.G. § 4B1.4(a) (“A defendant
who is subject to an enhanced sentence under the provisions of 18 U.S.C. § 924(e) is
an armed career criminal.”).
Section 4B1.4 does not include reference to “a controlled substance offense;”
rather, applicability of the enhancement depends solely on whether the defendant is
an armed career criminal, as defined by whether that defendant is subject to 18
U.S.C. § 924(e). Brown v. United States controls that question. 602 U.S. 101, 106
(2024)).
In Brown, the Supreme Court held that “a state drug conviction counts as an
ACCA predicate if it involved a drug on the federal schedules at the time of that
offense.” See Minor, 121 F.4th at 1092 (emphasis in original) (quoting Brown, 602 U.S.
at 123). The Brown court specifically dealt with the question of how to determine
whether a defendant is subject to § 924 (e) where his predicate state offenses were a
categorical match at the time of the predicate offenses, but, by the time of sentencing,
the federal and state definitions did not match. See Brown, 602 U.S. at 106–07.
Analyzing ACCA’s precedent, statutory context, and statutory purpose, the Supreme
Court found that “a state drug conviction counts as an ACCA predicate if it involved
a drug on the federal schedules at the time of that offense.” See id. at 123; see also id.
at 108 (adopting the government’s interpretation that “a prior state drug conviction
qualifies if the federal and state definitions of the relevant drug matched when the
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defendant committed the state crime”); see also Minor, 121 F.4th at 1092 (recognizing
Brown’s holding).
Although the Fifth Circuit recognized in Minor that “ACCA and the Guidelines
differ in key ways” when distinguishing its holding from Brown, that does not lead to
the conclusion that whether a defendant is subject to an enhanced sentence under
§ 924 (e) changes when determining whether defendant is subject to the armed career
criminal 	enhancement 	under 	§ 	4B1.4.54 	Put 	differently, 	the 	Fifth 	Circuit’s
interpretation of a “controlled substance offense” to determine whether § 4B1.1
applies does not impact whether a defendant is subject to § 924 (e), which determines
whether § 4B1.4 applies. Cf. Alexander v. United States, No. 17-437, 2023 WL
5919305, at *4 n. 5 (N.D. Tex. May 22, 2023), report and recommendation adopted,
No. 17-0437, 2023 WL 5298689 (N.D. Tex. Aug. 17, 2023), appeal dismissed, No. 23-
10980, 2023 WL 10448808 (5th Cir. Nov. 1, 2023) (finding that because the defendant
was enhanced under § 4B1.4 and not § 4B1.1 certain holdings pertaining to § 4B1.1
were inapplicable).
This Court has already rejected defendant’s contention that his prior state
drug convictions do not constitute predicate ACCA offenses.55 Further, defendant
does not argue that the definition of cocaine did not match the CSA’s definition of the
54 The Court’s position is also based on the Fifth Circuit’s understanding of the
reference canon in Minor; § 4B1.4 references § 924(e) specifically. See Minor, 121
F.4th at 1092 (“Brown explained that ‘a reference “to another statute by specific title
or section number”—such as ACCA’s reference to 21 U.S.C. § 802—“in effect cuts and
pastes the referenced statute as it existed when the referring statute was enacted,
without any subsequent amendments.”’ (emphasis in original)).
55 See R. Doc. No. 102.
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same at the time of his prior offenses, and the only case defendant points to in support
of his argument that the enhancement should not apply, United States v. Steele,
serves only to show that Louisiana’s definition of cocaine matched the federal
definition prior to 2015, which supports, rather than undermines, application of the
enhancement. See No. 22-195, 2024 WL 1877072, at *1 (E.D. La. Apr. 23, 2024)
(Morgan, J.).56 For these reasons, the Court denies defendant’s motion for downward
variance based on this objection.
b. 	Defendant’s Remaining Enhancement Objections
As previously stated, defendant objects to the following conclusions and related
enhancements: the 2-point enhancement based on the conclusion that “he was ‘found
in possession of five firearms’ as beyond the specific findings of the Jury on the Jury
Verdict Form;”57 the 2-point enhancement based on the conclusion that “he ‘possessed
a Ta[u]rus Millenium . . .’ which was reported stolen as beyond the specific findings
of the Jury on the Jury Verdict Form;”58 and the 4-point enhancement for possessing
a firearm in connection with another felony offense.59 Defendant argues that because
he was acquitted as to Count 2, and the enhancement was therefore unwarranted.60
56 The other cases relied on by defendant, United States v. Williams, 48 F.4th 1125
(10th Cir. 2022), and United States v. Perez, 46 F.4th 691, 700 (8th Cir. 2022), are not
binding on this Court and are otherwise not persuasive because they predate Brown.
In fact, the Eighth Circuit has since recognized that its decision in Perez was
abrogated by Brown. See United States v. Gordon, 111 F.4th 899, 901 n. 4 (8th Cir.
2024).
57 R. Doc. No. 116, at 9.
58 Id.
59 Id.
60 Id.
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With respect to all three objections, defendant argues that these findings
violate Alleyne, 570 U.S. 99 (2013), which defendant claims “requires that any fact
that enhances a penalty must be submitted to the jury and proved beyond a
reasonable doubt.”61
The Supreme Court held in Alleyne that “any fact that increases the mandatory
minimum is an ‘element’ that must be submitted to the jury.” Id. at 103. The Fifth
Circuit has rejected defendant’s interpretation of Alleyne that would extend its
holding to require that sentencing guideline enhancements be submitted to the jury
for determination. See United States v. Hinojosa, 749 F.3d 407, 411–12 (5th Cir.
2014). “[T]he Alleyne opinion did not imply that the traditional fact-finding on
relevant conduct, to the extent it increases the discretionary sentencing range for a
district judge under the Guidelines, must now be made by jurors.” Id. (citing United
States v. Booker, 543 U.S. 220, 257 (2005) (rejecting a requirement that a jury find
facts 	as 	to 	all 	relevant 	drug 	quantities 	for 	sentencing 	purposes 	under 	the
Guidelines)). Based on this binding precedent, the Court finds that defendant’s
objections on this ground are without merit, and it denies the motion for downward
variance based on this ground.
With respect to his third objection only, defendant further suggests that
because he was acquitted of Count 2, there is not sufficient evidence to apply an
61 R. Doc. No. 114-1, at 8.
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enhancement under § 2K2.1(b)(6)(B).62 He also suggests that U.S.S.G. § 1B1.3 “makes
clear that relevant conduct does not include conduct for which the defendant was
acquitted.”63 Finally, defendant contends that the Fifth Circuit has noted that the
“guideline 	commentary 	only 	establishes 	a 	presumption 	of 	facilitation 	of 	drug
trafficking offenses when firearms are in close proximity to drugs,” but that the
enhancement “does not apply to ammunition.”64
Section 2K2.1(b)(7)(B)65 states, in relevant part: “If the defendant . . . used or
possessed 	any 	firearm 	or 	ammunition 	in 	connection 	with 	another 	felony
offense . . . increase by 4 levels.” Application note 13(B) explains that this guideline
enhancement applies “in the case of a drug trafficking offense in which a firearm is
found 	in 	close 	proximity 	to 	drugs, 	drug-manufacturing 	materials, 	or 	drug
paraphernalia.” The Fifth Circuit has interpreted this language to mean that the
enhancement “automatically applies” to drug trafficking offenses in which a firearm
is 	found 	in 	close 	proximity 	to 	drugs, 	drug-manufacturing 	materials, 	or 	drug
paraphernalia, because there is a presumption that “‘the presence of the firearm has
the potential of facilitating’ these types of offenses.” United States v. Jeffries, 587 F.3d
690, 692 (5th Cir. 2009) (quoting U.S.S.G. § 2K2.1 cmt. n. 14(B)(ii)) (noting that the
62 See id. at 8–9 (citing United States v. Henry, 119 F.4th 429 (5th Cir. 2024)
(reversing enhancement due to the “lack of evidence to suggest a relationship between
the gun and the stolen car aside from proximity.”)).
63 See id.
64 See id. at 9 (emphasis in original) (citing United States v. Cisneros, 130 F.4th 472
(5th Cir. 2025)).
65 The Court notes that § 2K2.1(b)(6)(B) was renumbered to § 2K2.1(b)(7)(B) in the
2025 Sentencing Guidelines.
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application note provides definition to the phrase “in connection with” for drug
trafficking offenses); see also United States v. Henry, 119 F.4th 429, 435 (5th Cir.
2024) (recognizing that Jeffries noted that the enhancement automatically applies in
the case of a drug trafficking offense but not drug possession).
Additionally, application note 13(D) states that, in determining whether
§2K2.1(b)(7)(B) applies, “the court must consider the relationship between the instant
offense and the other offense, consistent with relevant conduct principles” of U.S.S.G.
§ 1B1.3. Pursuant to § 1B1.3, relevant conduct includes “any other information
specified in the applicable guideline.” See U.S.S.G. § 1B1.3(a)(4). But “[r]elevant
conduct does not include conduct for which the defendant was criminally charged and
acquitted in federal court, unless such conduct also establishes, in whole or in part,
the instant offense of conviction.” See § 1B1.3(c).
The USPO assessed defendant four additional points pursuant to U.S.S.G.
§ 2K2.1(b)(6)(B) because a “firearm was possessed in connection with another felony
offense.”66 Specifically, the USPO found that “defendant was in possession of a
firearm 	while 	in 	possession 	with 	intent 	to 	distribute 	quantities 	of 	cocaine
hydrochloride, cocaine base, and fentanyl.”67
Defendant was convicted of Count 1, which charged him with possession with
intent to distribute cocaine and fentanyl, in violation of 18 U.S.C. §§ 841(a)(1) and
841(b)(1)(C).68 Count 1 is a drug trafficking offense. See United States v. Alcantar,
66 R. Doc. No. 116, at 9.
67 Id.
68 See R. Doc. No. 90, at 1.
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733 F.3d 143, 147 (5th Cir. 2013) (“[B]ecause the other felony—possession of cocaine
with intent to deliver—is a drug trafficking offense [for purposes of § 2K2.1(b)(6)(B)],
application note 14(B)(ii) applies.”).
Although defendant was acquitted of Count 2, which charged him with
possession of a firearm in furtherance of a drug trafficking crime, 18 U.S.C.
§ 924(c)(1),69 the enhancement is based on Count 1, which is relevant conduct because
it is a factor specified in § 2K2.1(b)(7)(B). See U.S.S.G. § 1B1.3(a)(4); see also § 2K2.1
app. n. 13(D) (“The use of the shotgun ‘in connection with’ the robbery is relevant
conduct because it is a factor specified in subsections (b)(7)(B) and (c)(1).”).
Of course, the Court must still find by a preponderance of the evidence that
the 	firearms 	were 	found in 	close 	proximity 	to the 	drugs, drug-manufacturing
materials, or drug paraphernalia for the enhancement to apply. See Henry, 119 F.4th
at 433 (“The proponent of an adjustment to the defendant’s base offense level bears
the burden of establishing the factual predicate ‘by a preponderance of the relevant
and sufficiently reliable evidence.”). The PSR states that the five firearms “were
located inside the [Tulip Street] residence.”70 As was established at trial and
reiterated during the sentencing hearing, the firearms were found in the same room
as the satchel from which the defendant was distributing drugs. See United States v.
Alcantar, 733 F.3d 143, 147 (5th Cir. 2013) (“[T]he district court could assess the
enhancement after finding that the firearm was discovered in close proximity to [the
69 See id.
70 Id. at 30; see also id. at 9 (“. . . a firearm was possessed in connection with another
felony offense . . .”).
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defendant’s] drug-manufacturing.”) (upholding district court’s factual finding that
firearm 	was 	located 	in 	“close 	proximity” 	to 	drug 	paraphernalia 	and 	drug-
manufacturing materials when located in the same room); United States v. Shanklin,
924 F.3d 905, 921 (6th Cir. 2019) (finding sufficiently “close proximity” when firearm
and drugs and drug paraphernalia were located in the same residence).
The only additional consideration with respect to the fact that defendant was
acquitted of Count 2 is application note 10 to § 1B1.3(c), which states that: “[t]here
may be cases in which certain conduct underlies both an acquitted charge and the
instant offense of conviction. In those cases, the court is in the best position to
determine whether such overlapping conduct establishes, in whole or in part, the
instant offense of conviction and therefore qualifies as relevant conduct.”
The government argues that “[t]hough the defendant was acquitted of Count
Two, the same conduct – possession of cocaine and fentanyl with the intent to
distribute and possession of the firearms – underlie all three charges in the
Superseding Indictment. This includes the instant offense of conviction in Count
Three.”71 Elsewhere in his motion, defendant articulates his belief that “the evidence
presented at trial did not reflect a strong connection between himself and the Tulip
Street address where the narcotics and weapons were found.”72 But Count 3, of which
defendant 	was 	found 	guilty, 	charged 	defendant 	with 	possession 	of 	those 	five
firearms.73 Considering only that conduct that establishes, in whole or in part, the
71 Id.
72 R. Doc. No. 114-1, at 7.
73 See R. Doc. No. 64, at 3; see also R. Doc. No. 90, at 2.
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offenses with which defendant was convicted, the Court finds by preponderance of
the evidence that § 2K2.1(b)(7)(B) applies.
Lastly, the Fifth Circuit’s distinction between firearms and ammunition in
Cisneros is irrelevant here, because the enhancement is based on the presence of
firearms, not ammunition, in close proximity to the drug trafficking.
III. 	CONCLUSION
Accordingly,
IT IS ORDERED that defendant’s motion74 for downward departure and/or
variance is DENIED.
New Orleans, Louisiana, November 5, 2025.
_______________________________________
LANCE M. AFRICK
UNITED STATES DISTRICT JUDGE
74 R. Doc. No. 114.
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