Four-Level Increase When a Gun Sits Near Drugs

On November 3, 2026, the Tenth Circuit affirmed an 84-month sentence for a felon-in-possession conviction after a jury trial in the Western District of Oklahoma. In United States v. Smith, No. 25-6042, the court held that a four-level increase under USSG §2K2.1(b)(6)(B) (2023 Manual) was supported when a pistol was found on a bed near crack cocaine, a scale, and cash, even though the drugs were a small amount for personal use. Read the decision (PDF).

What happened

Nicois Smith was charged with two counts of possessing a firearm as a convicted felon, under 18 U.S.C. § 922(g)(1). One count involved a CZ 9mm pistol on May 21, 2023. The other involved a Canik 9mm pistol on June 8, 2023. A jury acquitted him on the June count and convicted him on the May count.

Officers searched Smith's bedroom while investigating a shooting that did not involve him. A shooting victim had ended up at his residence. Smith answered questions but would not let officers in, so they obtained a warrant. In the bedroom they found the CZ pistol inside a beanie-style hat on the bed, along with 1.6 grams of crack cocaine, 6.5 grams of marijuana, $820, and a scale.

The probation office prepared a presentence report. For the § 922(g) count, the report started at offense level 14 under §2K2.1. It added two levels because the pistol was stolen. It also applied §2K2.1(b)(6)(B), which adds four levels when the defendant "used or possessed any firearm or ammunition in connection with another felony offense."

Smith objected. He argued that merely keeping drugs and a gun in the same room did not satisfy the "in connection with" language because the gun did not make the drug possession easier. He also pointed to the small quantity and said the drugs looked like personal use, not distribution.

The district court overruled the objection. It relied on United States v. Justice, 679 F.3d 1251, 1255 (10th Cir. 2012), and held that possession of the gun "at least had the potential to facilitate" illegal drug possession. With the enhancement, the total offense level was 20. With criminal history category V, the advisory range was 63 to 78 months.

The government asked for an upward variance to 120 months, citing Smith's record. The judge imposed 84 months, above the top of the range but below the government's request. The judge said the upward variance was warranted because of Smith's long criminal history, including prior domestic assault and battery cases, and because this was his second § 922(g) conviction. Smith appealed only the §2K2.1(b)(6)(B) increase. The Tenth Circuit affirmed.

The "in connection with" rule

In the 2023 Manual used at Smith's sentencing, §2K2.1(b)(6)(B) is part of the firearms guideline. It targets a defendant who possessed a gun while also committing another felony. Application Note 14(A) defines "in connection with" to mean the firearm "facilitated, or had the potential of facilitating, another felony offense."

The Tenth Circuit has held that a gun can facilitate an offense by emboldening the person who possesses it. In Justice, the court explained that a firearm can make illegal drug possession easier because it may reduce the person's fear of losing the drugs. The court repeated that rule in United States v. Sanchez, 22 F.4th 940, 942 (10th Cir. 2022): all §2K2.1(b)(6)(B) requires under Tenth Circuit precedent is that the defendant's possession of the firearm had the potential to facilitate the other offense.

On appeal, Smith did not dispute every fact in the presentence report. He argued that clear error review should not apply because the underlying facts were undisputed. The Tenth Circuit rejected that framing. Whether the record supports the enhancement is an application of the guidelines to the facts, and factual findings are reviewed for clear error. The court said it would reach the same result under any standard on this record.

The district court's finding rested on trial evidence. An Oklahoma City detective testified, with photographs, that officers found the gun, hat, and scale less than a foot apart in the bedroom. The district court described crack rocks on the bed right next to the gun. The appeals court held that this record supported a finding that the gun had the potential to facilitate Smith's illegal drug possession.

Smith pointed to other facts: the gun was in his personal living space, not on his person in public. The Tenth Circuit said those facts did not make the district court's finding implausible. Under clear-error review, the court does not pick between two permissible views of the evidence. See United States v. Rocha, 145 F.4th 1247, 1269 (10th Cir. 2025).

The government also argued that the record could support a distribution theory. Because the court affirmed on possession, it did not reach that alternative ground.

Small amounts and prior drug convictions

Smith also argued that the enhancement should not apply because the drugs were misdemeanor quantities. The Tenth Circuit disagreed.

Under 21 U.S.C. § 844(a), simple possession of a controlled substance is usually a misdemeanor. The statute adds an exception. A person who has a prior conviction for drug possession under federal or state law may be charged with felony possession. The presentence report noted four prior state drug possession convictions. On that record, the probation office and the district court treated Smith's possession of crack cocaine as a felony offense, even though the amount seized was 1.6 grams.

That conclusion mattered for §2K2.1(b)(6)(B). The enhancement requires connection to "another felony offense." If the drug possession were only a misdemeanor, the four-level increase would not apply on that theory. Smith's priors moved the same conduct into felony territory for sentencing purposes.

Objections to a presentence report belong in a written response within 14 days after the report is disclosed, under Federal Rule of Criminal Procedure 32. The report must be disclosed at least 35 days before sentencing. A person disputing a drug-quantity finding or a prior-conviction count should raise it in that process, with supporting records, before the hearing.

Procedural reasonableness and the upward variance

Smith challenged only the guideline calculation, not the 84-month term as substantively unreasonable. The Tenth Circuit treated that as a procedural reasonableness claim. Procedural error includes failing to calculate, or improperly calculating, the guidelines range. See Rocha, 145 F.4th at 1260.

The government bears the burden of proving §2K2.1(b)(6) by a preponderance of the evidence. See United States v. Leib, 57 F.4th 1122, 1126 (10th Cir. 2023). The district court adopted the probation office's math after overruling Smith's objection. Once the four-level increase stood, the range was 63 to 78 months.

The sentence above that range was an upward variance under 18 U.S.C. § 3553(a). A variance is not a departure. Our page on the § 3553(a) factors lists what a judge must consider. The district court focused on recidivism and violent priors. Smith did not appeal the variance on this record.

The opinion cites the 2023 Guidelines Manual because that was the edition in effect when Smith was sentenced. A court generally uses the manual in effect on the date of sentencing, unless applying the current manual would violate the Ex Post Facto Clause. See USSG §1B1.11(a). The 2026 Manual is in effect for sentencings on or after November 1, 2026. In the current 2026 Manual, the same four-level increase is at §2K2.1(b)(7)(B), and the "potential of facilitating" rule is in Application Note 13(A). The numbers moved when Amendment 834 (effective November 1, 2025) added a new subsection (b)(5) and renumbered the paragraphs after it. Today's §2K2.1(b)(6)(B) is a different rule about firearms trafficking, so check the edition before you rely on a subsection number.

Who it affects

• A person facing § 922(g) sentencing in Colorado, Kansas, New Mexico, Oklahoma, Utah, or Wyoming. This order and judgment is not binding Tenth Circuit precedent, but it applies existing published cases such as Justice and Sanchez. District courts in the circuit may find it persuasive on the same facts.
• A person whose gun and drugs were found in the same room. Proximity evidence can support the drug-connection increase (now §2K2.1(b)(7)(B), formerly (b)(6)(B)) when a gun had the potential to embolden possession of drugs that count as a felony. A scale and cash near the gun and drugs were part of the record here, even though Smith argued personal use.
• A person with prior drug possession convictions. A small amount of crack or another controlled substance may still be treated as a felony under § 844(a) when the record shows qualifying priors. That status can trigger the "another felony offense" branch of the enhancement.
• A person disputing the enhancement before sentencing. The objection must be preserved. Smith objected in writing and at the hearing. Facts that were litigated at trial can still support the finding if the district court's conclusion is plausible on the whole record.
• A person sentenced outside the Tenth Circuit. Other circuits also read "in connection with" to include potential facilitation. This opinion does not bind them, but the guideline text and commentary are national.