United States v. Eaden, 914 F.3d 1004 (5th Cir. Feb. 5, 2019).

The question of first impression presented in this sentencing appeal concerns the effect of a defendant’s possession of ammunition alone, as opposed to a firearm, during a drug trafficking offense. Milo Eaden appealed his four-level sentencing enhancement pursuant to U.S.S.G. § 2k2.1(b)(6)(B) for using or possessing ammunition in connection with another felony offense. Eaden argued that he did not possess the ammunition “in connection with” his felony drug trafficking activities. The Fifth Circuit Court of Appeals held that the district court clearly erred in imposing the enhancement under these facts. The Court vacated Mr. Eaden’s sentence and remanded for resentencing.

The Fifth Circuit vacated and remanded the defendant’s sentence for possession of ammunition by a felon, holding that there was insufficient evidence to support the imposition of the 4-level enhancement at §2K2.1(b)(6)(B). Although there was evidence that ammunition was in close proximity to illegal drugs, the court stated, the government must show additional evidence that the nearby ammunition “facilitated, or had the potential of facilitating” the other offense. 

Police officers executed a search warrant of Eaden’s home after making a controlled purchase of crack cocaine from Eaden at his residence. During their search, the officers found 5.5 grams of crack cocaine and 19 rounds of ammunition. No firearm was found on Eaden’s person or in his home. 

The Presentence Report (PSR) assigned a base offense level of fourteen, added a four-level enhancement pursuant to U.S.S.G. § 2k2.1(b)(6)(B) for using or possessing the ammunition in connection with another felony offense, and reduced by three levels for acceptance of responsibility, bringing his total offense level to fifteen. Eaden objected to the four-level enhancement, arguing that his possession of ammunition was not connected with his drug trafficking because the ammunition did not facilitate or have the potential to facilitate the drug trafficking offense nor was the possession of the ammunition and drug trafficking part of a common scheme or plan.

If U.S.S.G. § 2k2.1(b)(6)(B)’s four-level enhancement can be applied to a defendant who possessed only ammunition. Section 2k2.1(b)(6)(B) provides for a four-level enhancement if the defendant “used or possessed any firearm or ammunition in connection with another felony offense.” Application Note 14(A) provides that the term “in connection with” mandates that “the firearm or ammunition facilitated, or had the potential of facilitating, another felony offense.”

Possession of ammunition alone, under appropriate circumstances not present in this case, certainly may be sufficient for the four-level enhancement.  By using the disjunctive “or,” the guidelines plainly read to allow for the enhancement when the defendant possesses a loaded gun, an unloaded gun, or ammunition alone. That much is clear: ammunition alone can facilitate a drug offense. The more nuanced question will be under what circumstances and, absent a presumption, this question necessarily must be decided on a case by case basis.

As noted above, Application Note 14(A) clarifies that “in connection with” means “facilitated, or had the potential of facilitating.” Therefore, for the enhancement to apply, the government must show evidence of both (1) possession of a firearm or ammunition and (2) that the firearm or ammunition facilitated or had the potential to facilitate the other offense. Application Note 14(B) instructs us, however, that “in the case of a drug trafficking offense in which a firearm is found in close proximity to drugs … application of subsection[ ] (b)(6)(B) is warranted because the presence of a firearm has the potential of facilitating another felony offense.” Application Note 14(B)—addressed specifically to the drug trafficking context—states only that “the presence of the firearm” inherently “has the potential of facilitating” and makes no reference to ammunition. We see no reason in the text of the Guideline, or its explanatory notes, to expand this presumption beyond possession of a firearm during a drug trafficking offense.