United States v. Tony Johnson

LARSEN, Circuit Judge. Tony Johnson pleaded guilty to one count of being a felon in possession of a firearm and three drug counts. The district court sentenced him to 70 months’ imprisonment. Johnson appeals, challenging the reasonableness of his sentence. We AFFIRM.

I.

On May 23, 2023, a police officer in Berea, Ohio, noticed a car with heavily tinted windows stopped at a red light. Upon running the license plate, the officer learned that the owner of the car, Tony Johnson, had a felony warrant for his arrest. The officer stopped the car. Johnson was driving, and the officer observed a strong odor of marijuana coming from the car.

Additional officers arrived at the scene. At the officers’ request, Johnson exited the car. When asked about the marijuana smell, Johnson said he had a marijuana blunt in the vehicle; he gave the blunt to the officers. The officers detained Johnson on the outstanding warrant and found a small bag of marijuana and a bag of suspected ecstasy pills on his person. Officers then searched Johnson’s car. They discovered drugs in a storage compartment in the front of the car. They then determined that the center console was locked. The officers pried open the center console and discovered a firearm and ammunition.

A grand jury indicted Johnson on one count of being a felon in possession of a firearm and three counts of possession with intent to distribute controlled substances. Johnson pleaded guilty as charged without a plea agreement. When calculating Johnson’s Guidelines range, the PSR applied a four-level enhancement for possessing a firearm in connection with another felony offense—drug trafficking. Johnson objected to the enhancement. At sentencing, the district court overruled Johnson’s objection, applied the enhancement, calculated the Guidelines range at 70 to 87 months, and sentenced Johnson to 70 months’ imprisonment. Johnson now appeals.

II.

Johnson raises only one argument on appeal: that the district court erred by assessing a four-level enhancement for possessing a firearm in connection with another felony pursuant to U.S.S.G. § 2K2.1(b)(6)(B).¹1. At the time of Johnson’s sentencing in 2024, the specific offense characteristic was found in § 2K2.1(b)(6)(B). In the most recent Guidelines manual, the provision was renumbered to U.S.S.G. § 2K2.1(b)(7)(B) (2025 ed.). When considering a challenge to a § 2K2.1(b)(6)(B) enhancement, we review the district court’s factual findings for clear error and give “due deference” to the court’s determination that the defendant possessed a firearm in connection with another felony. United States v. Taylor, 648 F.3d 417, 431–32 (6th Cir. 2011). We review questions of law de novo. Id. at 431.

The Guidelines provide for a four-point enhancement to a defendant’s base offense level “[i]f the defendant . . . used or possessed any firearm or ammunition in connection with another felony offense.” U.S.S.G. § 2K2.1(b)(6)(B). The required connection is shown when “the government establishes, by a preponderance of the evidence, a nexus between the firearm and an independent felony.” United States v. Angel, 576 F.3d 318, 321 (6th Cir. 2009) (citation modified). The Guidelines’ Application Notes indicate that the enhancement should apply “if the firearm or ammunition facilitated, or had the potential of facilitating, another felony offense or another offense, respectively.” U.S.S.G. § 2K2.1 cmt. n.14(A). When the other “felony offense” is a drug trafficking offense, the enhancement should apply if the “firearm is found in close proximity to drugs, drug-manufacturing materials, or drug paraphernalia.” Id. § 2K2.1 cmt. n.14(B). But possession that is “merely coincidental” to the other felony offense cannot support a § 2K2.1 enhancement. United States v. Ennenga, 263 F.3d 499, 503 (6th Cir. 2001).

The district court did not err in concluding that the enhancement should apply here. Johnson owned the car. Officers found multiple plastic bags of drugs in a storage compartment under the radio unit in the front of the car. Those bags contained varying quantities, large and small, of methamphetamine, fentanyl, cocaine, mixtures of such drugs, and other drugs. Officers also found a cutting agent with the drugs. The district court reasonably determined that these varied quantities, sizes, and the existence of a cutting agent indicated drug trafficking rather than personal use. Indeed, Johnson pleaded guilty to three counts of possession with intent to distribute controlled substances. Located near the drugs, in the car’s center console, was a loaded 9mm Glock with a laser sight attached to it and ammunition. So the drugs and a gun and ammunition were in “close proximity,” which generally suffices to establish a nexus between a gun and drug trafficking. See United States v. Moore, 580 F. App’x 452, 452–54 & n.1 (6th Cir. 2014) (upholding application of the § 2K2.1(b)(6)(B) enhancement where a bag of drugs was found on the driver’s person and a loaded firearm was found “in a floorboard compartment behind the driver’s seat”).

Johnson protests that the enhancement should not apply because the center console was locked and officers could access it only by prying it open. Johnson contends that this made the gun inaccessible to him, which in turn destroyed the nexus between the firearm and the drug trafficking. The district court considered this argument but determined that it was reasonable to infer that Johnson had access to the console. That factual determination was not clearly erroneous. See Taylor, 648 F.3d at 431–32. After all, Johnson owned the vehicle. And a laser sight box matching the sight found on the gun was found on the car’s floorboard. As the district court explained, “the only logical inference is that someone took the sight out of the box, put it on the gun, put it in the console, and there’s no other reason to think it wasn’t [Johnson.]” R. 45, Sent’g Tr., PageID 322. Having reviewed all the evidence, we are not “left with the definite and firm conviction that a mistake has been made.” United States v. Johnston, 595 F.3d 292, 295 (6th Cir. 2010) (quoting United States v. Jeross, 521 F.3d 562, 569 (6th Cir. 2008)).

Finally, Johnson suggests that we should follow the Third Circuit’s lead, and read Application Note 14(B) as creating a rebuttable presumption that the § 2K2.1(b)(6)(B) enhancement applies when drugs and guns are found in close proximity. See United States v. Perez, 5 F.4th 390, 400 (3d Cir. 2021). Johnson argues that, like that court, we should permit defendants to rebut the presumption by presenting evidence that the firearm had no relationship to drug-related activities. Id. This argument suffers from several problems. First, Johnson did not argue for a rebuttable presumption in the district court, so this argument is forfeited.²2. Johnson does not dispute that Application Note 14(B) is an interpretation of the Guidelines to which this court may defer under appropriate circumstances. See United States v. Havis, 927 F.3d 382, 386 (6th Cir. 2019) (en banc) (per curiam), superseded on other grounds by 88 Fed. Reg. 28254 (May 3, 2023), as recognized in United States v. Hilton, --- F.4th ---, 2026 WL 2583134, Second, our law already holds that possession which is “merely coincidental” in relationship to the other felony offense cannot support a § 2K2.1 enhancement. See Ennenga, 263 F.3d at 503; Angel, 576 F.3d at 321. We have also held that, while proximity is “indicative of a connection between the guns and the drugs,” it “may not be dispositive.” Angel, 576 F.3d at 321 (citation modified). So it’s not clear how much substantive daylight there is between our law and the Third Circuit’s. Most importantly, Johnson’s only claim to have rebutted his called-for presumption turns on his argument that the gun was inaccessible. But, as explained above, the district court did not clearly err in rejecting that factual conclusion.

The district court didn’t err by applying the § 2K2.1(b)(6)(B) enhancement.

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We AFFIRM.