Argued April 25, 2014
Appeal from the United States District Court for the Southern District of Illinois. No. 3:12-cr-30300-GPM-1 -- G. Patrick Murphy, Judge.
For United States of America, Plaintiff - Appellee: Neal C. Hong, Attorney, Office of The United States Attorney, Criminal Division, Fairview Heights, IL.
For Justin J. Harper, also known as: JUSTIN G, Defendant - Appellant: Latoya M. Berry, Attorney, Law Offices of Latoya M. Berry, Belleville, IL.
Before KANNE AND ROVNER, Circuit Judges, and DOW, District Judge.[*]
Rovner, Circuit Judge.
On October 5, 2011, Justin J. Harper was arrested, pursuant to a warrant for a violation of his parole, in the back house of a two-house property which was referred to as a trap house--or drug house. Harper and his girlfriend were located in the rear bedroom of that house, where the agents also recovered a loaded 9mm semi-automatic pistol on the floor under the nightstand and a large piece of suspected cocaine base on top of that nightstand. Fingerprint analysis subsequently revealed Harper's fingerprints on the magazine of that weapon. In the closet of the bedroom, the agents discovered another large amount of suspected cocaine base. The search of other areas of the house, including clothes and secret compartments yielded a Glock .40 caliber semiautomatic pistol loaded with a large capacity magazine, numerous rounds of ammunition, many clear plastic bags of controlled substances, a digital scale, and $368 in U.S. currency. Laboratory analysis identified the controlled substances seized from the residence as including 148.6 grams of heroin, 105.4 grams of cocaine base, 1 gram of marijuana, and 10 capsules of an unknown substance.
Harper maintained that he resided at the front house with his aunt and used the back house only when he had women visiting. He claimed that two other individuals lived in the rear house and were responsible for the drugs, and that they were staying elsewhere when the agents arrived with the warrant that morning.
Ultimately, Harper pled guilty to one count of felon in possession of a weapon in violation of 18 U.S.C. § 922(g)(1). The Presentence Report (PSR) initially determined a base offense level of 14 for the firearms offense but, applying the enhancement in U.S.S.G. § 2K2.1(c), the district court also considered evidence of a drug offense and calculated the proper offense level as 26. The district court sentenced Harper to a term of imprisonment of 100 months and three years of supervised release. Harper now appeals his sentence.
In sentencing Harper, the district court adopted the guideline calculation in the PSR and applied § 2K2.1, which applies to offenses involving unlawful receipt, possession or transportation of firearms or ammunition and to prohibited transactions involving firearms or ammunition. That section includes a cross reference, which provides that " [i]f the defendant used or possessed any firearm ... in connection with the commission or attempted commission of another offense, ... apply [U.S.S.G.] § 2X1.1 (Attempt, Solicitation, or Conspiracy) in respect to that other offense, if the resulting offense level is greater than that determined above... ." U.S.S.G. § 2K2.1(c)(1)(A). The district court held that Harper possessed the firearm in connection with the commission of the offense of distribution of a controlled substance, based on the drugs found in the residence in proximity to Harper and the
firearm and on the testimony presented at the sentencing hearing regarding Harper's sales of such controlled substances. Because the Sentencing Guidelines calculations under § 2X1.1 resulted in a higher offense level, pursuant to § 2K2.1(c)(1)(A) the district court utilized that higher level. See United States v. Howard, 729 F.3d 655, 664 (7th Cir. 2013) ( " [t]he guideline for unlawful possession of a firearm instructs the court to use the offense level for another offense in the guideline calculation ... if ...