Submitted: December 14, 2018
from United States District Court for the Western District of
Missouri - Kansas City
SMITH, Chief Judge, WOLLMAN and GRASZ, Circuit Judges.
Brockman pleaded guilty to being a felon in possession of a
firearm, in violation of 18 U.S.C. §§ 922(g)(1) and
924(a)(2). Before sentencing, the United States Probation
Office filed a presentence investigation report (PSR)
recommending a four-level sentencing enhancement under
U.S.S.G. § 2K2.1(b)(6)(B) for possessing the firearm in
connection with the felony offense of drug trafficking.
Brockman made several objections to the PSR findings. He also
filed multiple pro se motions with the district court,
including a request to withdraw his guilty plea. At
sentencing, the district court denied his motions and upheld
the four-level enhancement. Over the government's
objection, the court granted a two-level sentencing reduction
under U.S.S.G. § 3E1.1(a) for acceptance of
responsibility. The government declined to move for, and the
court refused to grant, a third level of reduction for
acceptance of responsibility pursuant to § 3E1.1(b). On
appeal, Brockman challenges the court's imposition of the
§ 2K2.1(b)(6)(B) enhancement and its refusal to grant
the § 3E1.1(b) reduction. We affirm the judgment of the
September 25, 2016, detectives with the Kansas City, Missouri
Police Department were attempting to locate a suspect in a
homicide investigation when they observed a man matching the
suspect's description enter the passenger side of a
vehicle. Police stopped the vehicle and ordered the man,
later identified as Brockman, to get out and lie face down in
the street. As Brockman complied, an officer heard a noise
that sounded like metal hitting the ground and believed it
might be a firearm.
told the officer he had a gun. The officer, without incident,
removed a handgun from Brockman's front pocket. After a
computer check revealed that Brockman had a prior felony, he
was placed under arrest for being a felon in possession of a
firearm. The handgun was identified as a stolen .40-caliber
Smith & Wesson semiautomatic.
had a strapped duffel bag hanging around his neck. The
officer smelled an odor of marijuana coming from it. Police
inventoried the duffel bag and found an extended .40-caliber
magazine, compatible with the handgun and loaded with four
rounds of live ammunition, and 40 clear plastic bags
containing approximately 241 grams of marijuana. Police found
an additional two bags of marijuana, weighing 2.5 grams, in
Brockman's pants pocket.
23, 2017, Brockman appeared before the district court and
pleaded guilty to being a felon in possession of a firearm.
The court found the guilty plea had been knowingly and
voluntarily entered and directed the probation office to
prepare a PSR. The PSR included a recommendation for a
four-level enhancement of Brockman's base offense level
under U.S.S.G. § 2K2.1(b)(6)(B), for "possess[ing]
the firearm in connection with the felony offense of
possession and/or possession with intent to distribute a
controlled substance." PSR at 5, ¶ 14, United
States v. Brockman, No. 4:17-CR-00074 (W.D. Mo. Aug. 21,
2017), ECF No. 18.
submitted four objections to the PSR. First, he denied that
he possessed the firearm "in connection with"
another felony, in order to negate the four-level
enhancement. Second, he denied possessing 40 clear plastic
bags containing marijuana. Third, he denied four separate
municipal offense convictions listed in the PSR. Lastly, he
disputed the PSR's finding that he was serving a criminal
justice sentence at the time he committed the instant
offense. In response to his objections, the government
directed a case agent to photograph and document in a report
the number of bags of marijuana police had recovered. The
government also obtained certified records of the disputed
convictions and prepared two witnesses to give testimony at
the sentencing hearing in support of its evidence.
also filed several pro se motions with the court. He filed a
motion to withdraw his guilty plea, claiming that he had
pleaded guilty under duress and without full knowledge of the
consequences of his plea. He moved to withdraw his appointed
defense counsel for inadequate representation. In another
motion, he requested a copy of all discovery materials so
that he could review his case. Just prior to the sentencing
hearing, Brockman filed yet another pro se motion requesting
additional time to file pretrial motions and to appear pro se
before the court. He claimed his attorney had ignored his
requests to file a motion to suppress evidence and to hold an
court denied Brockman's pro se motions as meritless.
Brockman ultimately decided to rely on his counsel's
representation. When the court began to address his PSR
objections at the sentencing hearing, Brockman withdrew his
objection that he had not possessed the 40 bags of marijuana.
He said he decided to concede the point after receiving
photographs from the government that confirmed the PSR's
claim. He maintained his objection, however, to the
allegation that the firearm related to drug trafficking. He
claimed he possessed the marijuana for his personal use only
and occasionally shared marijuana with others without
receiving any money.
response, the government offered Brockman's interview
statements made to detectives on the day of his arrest. In
those statements, he admitted possessing both the firearm and
the marijuana found on his person and in his duffel bag.
Although he had stated the marijuana he possessed was for his
personal use, he also described his usual practice as
purchasing five ounces of marijuana, selling about half of
it, and smoking the rest. The court upheld the four-level
enhancement after finding ...