105 Iowa L. Rev. 1799 (2020)

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Abstract

The United States Sentencing Guidelines created a novel, more uniform calculation for sentencing federal criminal offenders. The complex system, however, is not without its flaws. Section 2D1.1(b)(1) of the Sentencing Guidelines provides for a two-level increase in the specific offense level if a dangerous weapon (including a firearm) is possessed in connection with a drug trafficking offense. “Possession” in this provision includes constructive possession. Federal Circuits differ greatly on the standard they use to define “constructive possession,” leading to disproportionate and unequal sentences across the country. A universal interpretation of constructive possession that requires the weapon to be both temporally and spatially proximate to the defendant and the drug activity fits most closely with what the Sentencing Commission intended the two-level increase to punish. The Sentencing Commission intended a higher sentence to punish the increased danger an offender creates in possessing a dangerous weapon with drug activity, and increased danger only arises from a dangerous weapon if the weapon is close enough to the offender for him or her to use it during the course of drug activity. Aligning the provision’s application with what the Sentencing Commission intended would create more proportionate, uniform punishment nationwide than the wide range of different interpretations used across the federal judiciary now.