Posted On: February 10, 2013 by Stephen Bilkis

Defendant Appeals Sentence for Conspiracy to Possess and Distribute Marijuana

A New York Criminal Lawyer said the defendant is appealing his 168 month sentence for conspiracy to possess with intent to distribute 1000 kilograms or more of marijuana. He argues that the district court made a mistake when they applied a two level enhancement for firearm possession because there was insufficient evidence that a co-conspirator possessed the firearm.

Case Background

The defendant pleaded guilty to conspiracy to possess with the intent to distribute more than 1000 kilograms of marijuana. The defendant and another individual were found to be the organizers of a marijuana distribution operation. The two men would set up residences that were known as “traps.” These locations would be the storage facilities for large amounts of marijuana. The contraband would be stored and distributed from these traps.

Police officers obtained a search warrant for one of these properties. While searching the property the officers recovered a pound of marijuana and a firearm. The defendant and several other individuals were arrested and charged with possession of marijuana and other offenses.

Sentencing Guidelines

The final adjusted offense level for the defendant was set at 35. This included a two level increase for the possession of a firearm. This level increase along with his criminal history created a sentence ranging from 168 to 210 months of imprisonment.

A Bronx Criminal Lawyer said during the sentencing hearing the defendant objected to the firearm enhancement. He argued that he should not be held accountable for the firearm because he was not arrested the day the home was searched and was not in possession of the firearm.

Case Discussion and Decision

The state held the burden of proving that the co-conspirator constructively possessed the firearm and to show that the presence of the firearm was connected to the possession of one pound of marijuana.

The government called another individual that had been convicted on the conspiracy charge. He testified that the defendant was present at the time the trap house was searched. He further stated that the gun was found inside the cushion of the couch with another individual lying on top of it.

The only evidence that the government presented in order to establish the role of the co-conspirator in relation to the gun was vague and extremely general testimony that was provided by another individual.

This lack of evidence means that an error was made by the district court when they applied the two enhancements in regard to the defendants sentencing. There is simply not enough evidence provided to show that the defendant had possession of the gun or anything to do with the gun is simply lacking. For this reason, the court is vacating the sentence of the defendant. The case will be returned to the trial court for a new sentence to be issued.

If you need to speak with an experienced New York lawyer, whether you have been charged with drug possession, theft or sex crimes, contact Stephen Bilkis & Associates. We have offices located all around the city and are happy to discuss your legal issue with you. Contact our offices today to set up an appointment for a free consultation.