USA v. Darryl Franklin, 06-3462.  Darryl Franklin pleaded guilty to two counts of using a telephone in the commission of a drug crime, in violation of 21 U.S.C. § 843(b). The district court sentenced Franklin to 84 months of imprisonment applying the dangerous weapon enhancement under Sentencing Guideline § 2D1.1(b)(1). Franklin appeals the district court’s decision to enhance his sentence. For the following reasons, we reverse the district court’s decision and remand for re-sentencing.

On August 24, 2006, the district court held a sentencing hearing at which Franklin reiterated his objection to the dangerous weapon enhancement. Franklin testified that he "bought [the knife] from a flea market, because I was using it as a tool because I am an electrician. It was just something that I had in the car. And it was in a little case, and it was the kind you put on the side of your belt. The main purpose was I strip wires with it." He described the knife as "a little pocket knife" in a little leather case and stated that the knife was on the console "right between the seats of the van." The government did not contest Frank-lin’s assertion that he was an electrician or that electricians use such a knife in their trade. After hearing Frank-lin’s testimony, the district court stated, "I believe that the enhancement should not apply."

The district court then reviewed an FBI report regarding the stop and noted two discrepancies between Frank-lin’s testimony and the report. First, although Franklin testified that the knife was on the console, the report indicated that the officers saw it by Franklin’s foot. Second, the district court noted that the report described the knife as being in a leather sheath while Franklin testified that the knife was in a case. The court then changed its position and ruled that the dangerous weapon enhancement applied.

Franklin argues that the district court erred by applying the § 2D1.1(b)(1) enhancement for possession of a dangerous weapon. This Court reviews the district court’s factual determination to enhance a sentence under § 2D1.1(b)(1) for clear error. United States v. Bothun, 424 F.3d 582, 586 (7th Cir. 2005).

Section 2D1.1(b)(1) provides for a two-level increase in the base offense level "if a dangerous weapon (including a firearm) was possessed." The Guidelines define "dangerous weapon" as "an instrument capable of inflicting death or serious bodily injury." U.S.S.G. § 2D1.1(b)(1). Application Note 3 to the commentary states that "[t]he enhancement for weapon possession reflects the increased danger of violence when drug traffickers possess weapons. The adjustment should be applied if the weapon was present, unless it is clearly improbable that the weapon was connected with the offense." Id. Franklin concedes that he had possession of the knife during the commission of his crime and bears the burden of showing that it was clearly improbable that the knife was connected to his offense. Bothun, 424 F.3d at 586.

Because the government agreed that Franklin did not attempt to hide the knife, the district court’s conclusion is particularly problematic.

In additionn, the district court seems to have inferred that the knife was larger than Franklin alleged because it believed that a sheath was different from a case and only covered the knife’s blade. The district court’s interpretation is of concern because Franklin tried to clear up the confusion by stating that this was not "the kind of knife that stays out."

Further, A fact that heavily counsels in favor of reversal is that the police officers who stopped Franklin in his van saw the knife, made note of it, and did not confiscate it.   Finally, the government executed a plea agreement with Franklin and did not seek a § 2D1.1(b)(1) enhancement as part of the calculations.

For the above reasons, we REVERSE the district court’s application of the § 2D1.1(b)(1) enhancement and REMAND for re-sentencing.

For the full opinions visit the 7th Circuit Court of Appeals Web Site.

For more about attorney Michael J. Petro, visit www.mjpetro.com .

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