Government proves by a preponderance of the evidence that the defendant "possessed" a dangerous weapon during the commission of a drug-trafficking offense. See United States v. Vargas, 116 F.3d 195, 197 (7th Cir. 1997); see also U.S. Sentencing Guidelines Manual § 2D1.1(b)(1). "The exception occurs when it is 'clearly improbable that the weapon was connected with the offense.'" Vargas, 116 F.3d at 197.
A § 2D1.1(b)(1) enhancement is imposed to reflect the increased dangerousness involved when drug-traffickers possess a dangerous weapon. Carmack, 100 F.3d at 1280. The established standard for determining whether the defendant possessed a weapon in connection with a drug-trafficking offense is the proximity between the weapon and the drugs. Id.; see also Turnbough, 1997 WL 264475, at *4.
In this case, the court presided over the trial. During sentencing, the court considered the evidence the Government presented during the trial. See Watts, 117 S. Ct. at 636 (the sentencing court may consider the "'evidence adduced in a trial that resulted in an acquittal'"); see also Averitte, 1996 WL 331178, at *1 (sentencing court can rely on trial evidence to impose a § 2D1.1(b)(1) enhancement after a § 924(c)(1) acquittal). The court also considered the Presentence Report.
Based upon all the evidence, the court found by a preponderance of the evidence that Bardney possessed a dangerous weapon during the commission of a drug-trafficking offense. Specifically, the court found, and Bardney admits, that "the Government's trial evidence was that Petitioner Bardney was arrested at a parking lot after he threw to the ground a set of keys to an automobile found on the paring [sic] lot, and in which the [Drug Enforcement Agency ("DEA")] Agents discovered [a nine-millimeter semi-automatic pistol]." (Bardney's Pet. at P 12.)
In addition, the Government presented evidence that Bardney told a DEA agent that he brought the firearm for protection during the drug deal; the drug deal involved an exchange of $ 87,000 in cash for two kilograms of cocaine and fifty pounds of marijuana. (Presentence Report at 5-6.) As the Seventh Circuit stated in Vargas, "it is not 'clearly improbable' that [Bardney] had the firearm in his car for the purpose of protecting the large sums of cash involved in the drug conspiracy." 116 F.3d at 197. Consequently, the court affirms that the Government has met its burden to support the imposition of a § 2D1.1(b)(1) enhancement.
Since there is "[no] error of law that is jurisdictional, constitutional, or constitutes a 'fundamental defect which inherently results in a complete miscarriage of justice[,]'" the court denies Bardney's § 2255 petition. Borre, 940 F.2d at 217 (citations omitted).
For the foregoing reasons, the court denies Petitioner, Victor M. Bardney's Amended 28 U.S.C. § 2255 Petition for Discharge and/or Sentence Reduction.
IT IS SO ORDERED.
CHARLES RONALD NORGLE, SR., Judge
United States District Court