United States of America v. Elijah Jackson

United States Court of Appeals
For the Seventh Circuit
Chicago, Illinois 60604
Submitted October 1, 2024
Decided October 21, 2024
Before
MICHAEL B. BRENNAN, Circuit Judge
MICHAEL Y. SCUDDER, Circuit Judge
NANCY L. MALDONADO, Circuit Judge
No. 23-3072
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
ELIJAH JACKSON,
Defendant-Appellant.
Appeal from the United States District
Court for the Northern District of
Indiana, South Bend Division.
No. 3:23CR09-001
Damon R. Leichty,
Judge.
O R D E R
Elijah Jackson pleaded guilty to possessing a firearm as a felon. See 18 U.S.C.
§ 922(g)(1). At sentencing, the district court applied an enhancement under U.S.S.G.
§ 2K2.1(b)(6)(B) for possessing firearms in connection with an Indiana felony, “Dealing
in Marijuana.” See Ind. Code § 35-48-4-10(c). Jackson appeals his sentence, arguing that
the district court clearly erred in finding that the enhancement applied. Because the
NONPRECEDENTIAL DISPOSITION
To be cited only in accordance with FED. R. A PP. P. 32.1

-- 1 of 5 --

No. 23-3072 Page 2
court reasonably found that Jackson committed the felony and that he possessed the
firearms in connection with this offense, we affirm.
Jackson’s conviction stems from an incident in June 2022. Around 5:45 a.m.,
police in South Bend, Indiana, received a call from a woman reporting that Jackson had
recently left her home after an altercation and she believed she heard a gunshot. An
officer responded, saw Jackson, and started trailing him. Jackson then took off. While
fleeing, he dropped a backpack, and a long gun magazine broke open, spilling
ammunition on the road. Another officer caught Jackson and searched him, finding two
loaded guns. Police later recovered the backpack that he had dropped and found two
phones, a digital scale, pills that field-tested positive for fentanyl or methamphetamine,
and two packages of marijuana that totaled to 31.16 grams. He later pleaded guilty to
possessing a firearm as a felon. 18 U.S.C. § 922(g)(1).
Before sentencing, the probation office prepared a presentence investigation
report (PSR). The PSR recommended a guidelines range of 57 to 71 months’
imprisonment, based on a criminal history category of IV (which included a prior drug
offense) and an offense level of 21. The base level for the offense was 20, with three
points deducted because Jackson accepted responsibility, and four points added back
because he possessed a firearm and ammunition “in connection with another felony
offense”—“Dealing in Marijuana” under Indiana law. See U.S.S.G. § 2K2.1(b)(6)(B). The
PSR explained that under Indiana Code § 35-48-4-10(c)(2)(A), a person with a prior drug
conviction who possesses at least 30 grams of marijuana and evidence of drug dealing,
as was true of Jackson, commits the felony of dealing in marijuana. And, the PSR
continued, because Jackson had possessed a firearm and ammunition “in connection
with” that felony, U.S.S.G. § 2K2.1(b)(6)(B) applied. (The PSR states that the
enhancement also applies because Jackson possessed methamphetamine or fentanyl.
But the district court mentioned this other drug felony only when discussing the
sentencing factors under 18 U.S.C. § 3553(a), and the parties do not address it on appeal
as a basis for the enhancement.)
The parties debated the enhancement. Jackson argued that the government could
not prove by a preponderance of the evidence that he had (1) been dealing marijuana or
(2) used the firearms in connection with dealing. He contended that the typical
attributes of dealing were missing: He possessed no cutting agents, empty plastic bags,
or drug transaction ledgers; he was not traveling to or from a deal; and the “small
amount” of marijuana he had (31.16 grams, just over an ounce) and the scale alone did
not imply dealing. The government replied that the felony-level weight of the

-- 2 of 5 --

No. 23-3072 Page 3
marijuana implied that Jackson was dealing and, further, the materials inside his
backpack—two separated packages of marijuana, a digital scale, and two phones—were
typical tools of dealing. Finally, the government argued, the proximity of these items to
Jackson’s firearms suggested that he used the firearms in connection with drug dealing.
The district court agreed with the government. It observed that “possessing over
30 grams of marijuana” is a felony; Jackson possessed more “than user amounts of
marijuana”; the “implements”—two phones, two separated packages, and a scale—
implied an intent to sell; and the proximity of the implements to the guns implied that
the guns facilitated drug dealing. The court elaborated that, although the proximity of
guns to drugs intended for personal use need not imply that the guns facilitated the
possession, the proximity of guns to drugs intended for sale, as occurred here,
permitted an inference that the guns facilitated drug sales.
The court then sentenced Jackson to a within-guidelines term of 64 months’
imprisonment and two years of supervised release.
On appeal, Jackson maintains that the district court wrongly applied the
enhancement. The court’s application of the sentencing enhancement, U.S.S.G.
§ 2K2.1(b)(6)(B), presents a mixed question of fact and law, which this court reviews for
clear error. United States v. Ingram, 40 F.4th 791, 794 (7th Cir. 2022).
Jackson first argues that the district court clearly erred by finding that he had
intended to sell the marijuana. He insists that the government had to prove that Jackson
could not have personally consumed the 31.16 grams of marijuana found in his
backpack. In support, he points to Montego v. State, where the Indiana Supreme Court
held that a quantity of drugs alone suggests an intent to distribute only if the quantity
“could not be personally consumed or utilized and therefore of necessity [is] available
for delivery.” 517 N.E.2d 74, 76 (Ind. 1987) (citation omitted). The government counters
that, although the amount of marijuana Jackson had was “not overwhelming,” the
district court’s finding was nonetheless correct. It cites the Drug Enforcement
Administration’s statement that a typical marijuana cigarette uses only 0.5 grams, less
than 1/60 of Jackson’s quantity, to assert that the quantity in Jackson’s backpack—a
felony-level amount—implied that Jackson was selling. But it also relies on other
evidence (the two phones, two separately packaged bags, and digital scale) to argue
that, from Jackson’s simultaneous possession of these other items, the court could
reasonably infer his intent to sell marijuana.

-- 3 of 5 --

No. 23-3072 Page 4
The district court did not clearly err in finding that Jackson intended to sell the
marijuana. We may assume that, for a district court to rule that the amount of drugs by
itself is a “distribution amount,” the prosecution should present evidence undercutting
the likelihood that a defendant planned to consume the drugs personally. See Montego,
517 N.E.2d at 76. But the district court did not rely solely on the quantity of marijuana
to find that Jackson possessed it with intent to distribute it. The district court also relied
on Jackson’s possession of “implements of the drug trade.” And possession of a
“relatively large” quantity—in this case, a felony-level quantity—of drugs plus drug-
trafficking implements will support a conviction in Indiana for possessing the drugs
with the intent to sell them, even against a contention that the quantity could be
personally consumed. Hazzard v. State, 642 N.E.2d 1368, 1369–70 (Ind. 1994). Thus
Jackson’s possession of a felony-level amount of marijuana plus the tools of drug
dealing permitted the district court to find he intended to sell the drugs.
Jackson’s responses are unconvincing. He contends that without classic
indicators of an intent to sell marijuana—like large amounts of cash or a ledger—the
presence of an ounce of marijuana and a scale was insufficient to raise an inference of
dealing. But Jackson ignores the circumstantial evidence that, as a whole, overcame the
absence of these classic indicators. Beyond the marijuana quantity and scale, the court
also observed that Jackson stored the modest amount of marijuana in two packages,
used two phones, and transported everything (including the scale) in an easily
discarded backpack. These factors reasonably support an inference of dealing.
See, e.g., Montego, 517 N.E.2d at 76 (scale was circumstantial evidence of intent to sell
cocaine); Elvers v. State, 22 N.E.3d 824, 835 (Ind. Ct. App. 2014) (larger quantity of drugs
divided into smaller portions supported inference of packaging for sale); Wilson v. State,
754 N.E.2d 950, 958 (Ind. Ct. App. 2001) (two pagers suggested intent to deal drugs).
Jackson next argues that, even if he had intended to distribute the marijuana, the
district court clearly erred by finding that his firearms were used “in connection with”
the marijuana distribution. See United States v. Briggs, 919 F.3d 1030, 1033 (7th Cir. 2019).
He asserts that the enhancement under U.S.S.G. § 2K2.1(b)(6)(B) is proper when the
evidence shows that the firearms at issue “protect[ed] or embolden[ed] the criminal
enterprise,” see United States v. Slone, 990 F.3d 568, 573 (7th Cir. 2021) (quoting United
States v. LePage, 477 F.3d 485, 489 (7th Cir. 2007)), but the government did not establish
that Jackson’s firearms did so here.
This argument too is unpersuasive. The enhancement applies when the firearm
facilitates a felony, such as by protecting or supporting the felony. See LePage, 477 F.3d

-- 4 of 5 --

No. 23-3072 Page 5
at 489. As LePage states, and Jackson himself acknowledges, a court can draw that
inference when, as here, guns are possessed “along with the materials of a drug
trafficker.” LePage, 477 F.3d at 489; see also Slone, 990 F.3d at 572–73. Moreover,
Application Note 14(B) of U.S.S.G. § 2K2.1(b)(6)(B) creates a presumption of the
enhancement whenever guns are found “in close proximity” to drugs or drug
paraphernalia in drug-trafficking cases. Slone, 990 F.3d at 572–73. The district court
properly used this presumption when applying the enhancement: It stated that “the law
says that the enhancement applies” in drug-trafficking cases such as Jackson’s, and it
then tied the two firearms found on him to his two packages of marijuana, scale, and
phones found close by in his discarded backpack. And its finding that the guns
discovered on his body were in “close proximity” to the trafficking implements in his
backpack also falls squarely within circuit precedent. See, e.g., LePage, 477 F.3d at 489
(guns found in defendant’s bag along with chemical used to cut methamphetamine and
near girlfriend’s car containing prepackaged methamphetamine supported
enhancement); Slone, 990 F.3d at 572 (guns found in basement where defendant
conducted drug sales supported enhancement). The court’s conclusion that the
enhancement applied was therefore not clearly erroneous.
AFFIRMED

-- 5 of 5 --