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Federal Sentencing Enhancement Not Barred by Acquittal

A defendant convicted of possession with intent to distribute marijuana and cocaine could be given a sentencing enhancement based on the presence of a firearm that a jury acquitted him of knowingly possessing, the 1st U.S. Circuit Court of Appeals has ruled.

The defendant argued that a two-level enhancement for possession of a dangerous weapon during the course of a drug-trafficking offense should not have been imposed by the sentencing judge.

The 1st Circuit disagreed. "[T]here is no necessary inconsistency between acquittal on charges of 'knowing' possession of a firearm and the court's finding that the presence of the gun was 'reasonably foreseeable' to [the defendant]," Judge Norman H. Stahl wrote for the unanimous 1st Circuit panel. Boston lawyer Charles W. Rankin argued the appeal on behalf of the defendant. He was opposed by Assistant U.S. Attorney Donald C. Lockhart in Providence.


On Jan. 6, 2012, members of the High Intensity Drug Trafficking Area task force, a unit of the Rhode Island State Police, were conducting surveillance near the Providence College campus. Defendant Charles Fermin was observed walking down Liege Street empty-handed, wearing a garbage bag underneath a red sweatshirt, before disappearing out of sight between two houses at 40 and 48-50 Liege St. He emerged three to four minutes later rolling a large black suitcase.

Police stopped the defendant on the street shortly thereafter and asked to speak with him about the suitcase. He immediately dropped his cargo and said that it was not his. A detective who discerned a "strong odor" of marijuana unzipped the suitcase and saw that it did, in fact, contain a large quantity of marijuana.

The defendant was arrested and transported to the police barracks. Police recovered from the suitcase 33 pounds of marijuana that was stored in 38 gallon-sized clear plastic bags, 31 grams of cocaine, a bottle of powdered caffeine, three digital scales and a box of plastic bags like the ones that were filled with marijuana. In addition, the suitcase contained a .357 revolver loaded with six rounds of ammunition inside a rolled-up pair of sweatpants.

A three-count indictment issued charging the defendant with possession of marijuana with intent to distribute, possession of cocaine with intent to distribute, and possession of a firearm in furtherance of those crimes. After a three-day trial, the defendant was convicted of the two drug charges but acquitted of the firearm charge.

Applying sentence enhancements for obstruction of justice and possession of a firearm during the commission of the crimes, U.S. District Court Judge William H. Smith sentenced the defendant to 41 months in prison.

Two Scenarios

Under U.S.S.G. §2D1.1(b)(1), a two-level enhancement may be imposed if a dangerous weapon was possessed during the course of a drug-trafficking offense, provided that the presence of the weapon was known to, or reasonably foreseeable to, the defendant.

The defendant argued that there was insufficient evidence that he knew or could have reasonably foreseen the presence of the gun in the suitcase, particularly in light of the fact that the jury acquitted him of the firearm charge.

"Although we are mindful that the jury acquitted Fermin of the firearm charge, it remains the law in this Circuit that acquitted conduct can form the basis of a sentence enhancement," Stahl wrote. "While the jury must, of course, find facts beyond a reasonable doubt, a preponderance-of-the-evidence standard applies to the sentencing court's factual findings."

In sentencing the defendant, Smith had determined that the defendant either was moving his own suitcase or that he was moving it at the behest of another person. If the former was true, Smith found that "it was absolutely clear that it was more likely than not he knew that the firearm was present in the suitcase."

If, on the other hand, the latter was true, Smith found that the defendant had been entrusted with $50,000 worth of drugs. Someone in that position, relied upon to transport drugs of such value, could be expected to be familiar with the trade and foresee the coincidence of guns and drugs, the judge said.

Smith thus concluded that, regardless of which scenario prevailed, it was more likely than not that the defendant "knew of and/or could reasonably foresee the presence of [the] firearm."

That finding "was warranted and not clearly erroneous, in light of evidence of Fermin's knowledge of the drugs in the suitcase, and case law recognizing that such knowledge makes the presence of guns reasonably foreseeable," Stahl wrote.


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