Tuesday, February 28, 2012

Drug, Gun Convictions Affirmed

US v. McGehee, No. 11-3068 (10th Cir. 2/22/12) (published): Defendant convicted of drug-trafficking and firearms offenses. Conviction and sentence affirmed. Traffic stop was reasonable under the 4th Amendment where the officer initially observed the car parked illegally but car was parked legally when he walked up to. The ensuing detention was not unlawful where the officer had reasonable suspicion of other criminal activity, including the smell of PCP and the observation of a bottle of vanilla extract, which apparently is commonly used to hold PCP, and Mr. McGehee kicking a gun under his seat. Thus, the motion to suppress was properly denied.

There was sufficient evidence to support the conviction for possession of a firearm in connection with a drug-trafficking offense, based on the companion conviction for PWID cocaine, the type of gun, the fact it was loaded, and the fact that it was in close proximity to the drugs.

Defendant had waived his argument regarding the denial of the adjustment for acceptance of responsibility because his counsel affirmatively stated he had no objection to the guideline calculations in the PSR and thus his request was properly treated as a request for a variance rather than as an objection to the procedural application of USSG ยง 3E1.1.