Sentencing Guidelines/Firearms – Increased base level for offense involving a semiautomatic firearm capable of accepting a high-capacity magazine applied to a defendant whose firearm and magazine were kept separate but in “close proximity” to each other based on both being “physically proximate and readily accessible.”
Juan Fletcher Gordillo was convicted for possession of a firearm by an unlawful alien. The district court applied a base offense level of 20 under U.S.S.G. § 2K2.1(a)(4), which applies when an offense involves “a semiautomatic firearm that is capable of accepting a large capacity magazine.” Pursuant to Application Note 2, the enhanced offense level applies if the magazine is attached to the firearm or if the magazine is in “close proximity” to the firearm. The district court based the offense level on the latter provision.
The defendant appealed, arguing that the firearm and magazine were not “in close proximity” to each other since the firearm was in a locked case while the magazine was in a separate bag on the other side of the room.
The Court affirmed the defendant’s enhanced base offense level. Noting that the Court had never interpreted the meaning of “close proximity” under § 2K2.1, and citing similar Guidelines provisions involving firearms in “close proximity” to drugs, the Court held that a magazine is in “close proximity” based on “both physical distance and accessibility,” with an emphasis on finding a “close connection between the items.”
Here, the Court held that, despite the fact that the gun and magazine were in separate containers, they were in “close proximity” to each other since they were ten feet within each other and, in the absence of evidence to the contrary, readily accessible.
Appeal from the Southern District of Florida
Opinion by Marcus, joined by Black and Walker (by designation from 2d Cir.)