Accessibility and Temporal Proximity Satisfy “During the Offense” for § 2D1.1(b)(1) Firearm Enhancement

Introduction

In United States v. Byron Metcalf-Burroughs (No. 24-1944, 6th Cir. Oct. 22, 2025) (not recommended for publication), the Sixth Circuit affirmed a two-level Sentencing Guidelines enhancement under U.S.S.G. § 2D1.1(b)(1) for possession of a dangerous weapon “during” a drug-trafficking offense. The panel (Judges Kethledge, Larsen, and Bloomekatz, with Judge Bloomekatz writing) addressed whether a handgun located inside a defendant’s residence—left behind as he briefly stepped outside with drugs and paraphernalia—can be deemed possessed “during the offense” for enhancement purposes. The court held that where the firearm was accessible and the temporal and spatial proximity between the gun and the offense was tight, the district court did not clearly err in applying the enhancement.

The case clarifies two practical points in the Sixth Circuit’s § 2D1.1(b)(1) jurisprudence: (1) when the government’s theory is possession “during the commission of the offense” (as opposed to during “relevant conduct”), the existence of such possession is a factual finding reviewed for clear error; and (2) accessibility, temporal proximity, and location can together establish possession “during” the offense—even if the gun was not physically on the defendant’s person and no drugs were found in the same room as the firearm. The decision also reiterates that a self-defense rationale does not, without more, make it “clearly improbable” that the weapon was connected to drug trafficking.

Summary of the Opinion

Police surveilling Metcalf-Burroughs’s home moved to arrest him on an unrelated matter. When he stepped outside to take out the trash, he fled; officers apprehended him nearby and recovered 13.87 grams of cocaine, a digital scale with residue, $2,600 in cash, and 3.35 grams of oxycodone. A subsequent search of his residence uncovered a loaded handgun with 16 rounds in his bedroom next to his court paperwork and cell phone. No drugs or trafficking paraphernalia were found inside the residence. He pleaded guilty to possession with intent to distribute cocaine under 21 U.S.C. § 841(a)(1), (b)(1)(C).

At sentencing, the district court applied the two-level enhancement under U.S.S.G. § 2D1.1(b)(1). The defendant conceded constructive possession of the handgun but argued it was not possessed “during” the offense because the offense occurred outside while the gun remained inside, in his bedroom. The district court disagreed, finding the gun “certainly accessible” before he stepped out with drugs and still “easily accessible” while the offense was ongoing. On appeal, the Sixth Circuit:

Applied the familiar burden-shifting framework: the government must prove possession of a dangerous weapon during the offense (or relevant conduct) by a preponderance; then the burden shifts to the defendant to show it was “clearly improbable” the weapon was connected to the offense (U.S.S.G. § 2D1.1(b)(1), cmt. n.11(A)).
Held that whether possession occurred “during the offense” is a factual question when the government’s theory is possession during the offense, and thus reviewed for clear error.
Affirmed the factual finding that the gun was possessed “during” the offense based on accessibility, spatial proximity (inside the residence he had just exited with drugs), and temporal proximity (moments before arrest).
Rejected the argument that a direct, special-purpose nexus beyond accessibility and proximity is always required; even assuming a “nexus” requirement applies outside conspiracy cases, it was satisfied here because constructive possession occurred at the same time and place as the drug offense.
Concluded the defendant failed to meet his burden to show it was “clearly improbable” the firearm was connected to drug trafficking under the Sixth Circuit’s six-factor analysis; a self-defense explanation alone did not defeat the enhancement.

Analysis

Precedents Cited

The panel’s reasoning is anchored in a line of Sixth Circuit cases articulating both the burden-shifting framework and the evidentiary standards that govern the § 2D1.1(b)(1) enhancement.

United States v. Kennedy, 65 F.4th 314 (6th Cir. 2023). Kennedy reaffirms the burden-shifting structure: the government must show possession of a dangerous weapon during the offense or relevant conduct by a preponderance; if so, the defendant must show it is “clearly improbable” the weapon was connected to the offense. Kennedy also discusses the “nexus” concept in the context of a long-running conspiracy, requiring some connection between the firearms and conspiratorial activities (there satisfied by firearms possession on the same day as discussions about selling methamphetamine). Kennedy collects and applies the six-factor “connection” analysis derived from Greeno.
United States v. West, 962 F.3d 183 (6th Cir. 2020). West distinguishes between possession “during the offense” versus during “relevant conduct.” When the government’s theory is “relevant conduct,” whether conduct qualifies under U.S.S.G. § 1B1.3 is a legal question. In contrast, Metcalf-Burroughs frames both the first prong (possession) and the “during the offense” second prong as factual when the theory is contemporaneous possession during the crime.
United States v. Faison, 339 F.3d 518 (6th Cir. 2003). Cited for the baseline articulation of the government’s initial burden to show possession of a dangerous weapon during the offense or relevant conduct.
United States v. McCloud, 935 F.3d 527 (6th Cir. 2019). Confirms that whether the defendant possessed a firearm is a factual finding reviewed for clear error. Metcalf-Burroughs extends that approach to the “during the offense” determination when the government proceeds on that theory.
United States v. Wilson, No. 22-5068, 2022 WL 17456351 (6th Cir. Dec. 6, 2022) (unpublished). Cited to reinforce that when the government asserts contemporaneous possession during the offense, the question is factual, not legal.
United States v. Greeno, 679 F.3d 510 (6th Cir. 2012). Provides the six non-exhaustive factors used to assess whether a weapon is connected to a drug offense: type of firearm, accessibility, presence of ammunition, proximity to drugs or trafficking items, defendant’s alternative-use explanation, and whether the defendant was trafficking versus mere use/manufacture. Kennedy applies these; Metcalf-Burroughs relies on them in the “clearly improbable” analysis.
United States v. Johnson, 344 F.3d 562 (6th Cir. 2003). Emphasizes that “clearly improbable” is a demanding standard, made harder on appeal by clear-error review.
United States v. Hill, 79 F.3d 1477 (6th Cir. 1996); United States v. Wheaton, 517 F.3d 350 (6th Cir. 2008); United States v. Howard, 570 F. App’x 478 (6th Cir. 2014); United States v. Cobbs, 233 F. App’x 524 (6th Cir. 2007). These cases show that alternative explanations (including self-defense) do not automatically satisfy the “clearly improbable” standard; courts regularly uphold enhancements where defendants fail to disassociate firearms from drug-trafficking realities.

The opinion also tracks the Sentencing Commission’s commentary to § 2D1.1(b)(1), Application Note 11(A), which instructs that the enhancement should apply if a weapon was present during the offense unless it is clearly improbable that the weapon was connected with the offense.

Legal Reasoning

The court proceeds in three steps: (1) identifying the applicable burdens and standards of review; (2) assessing whether the government carried its initial burden to show possession during the offense; and (3) determining whether the defendant rebutted with a “clearly improbable” showing that the firearm was unconnected to the drug crime.

First, the panel clarifies the decisional framework. Possession and contemporaneity are factual findings reviewed for clear error when the government’s theory is possession during the offense. This matters because it cabins appellate review: the question is not whether the panel would have reached the same finding in the first instance, but whether the district court’s view is plausibly supported by the record.

Second, the panel affirms the district court’s conclusion that Metcalf-Burroughs possessed the handgun “during” the offense. The record supports that the defendant:

Had narcotics and trafficking indicators (cocaine, oxycodone in a pill bottle, digital scale with residue, and $2,600 cash) on his person;
Had just exited his residence when he fled, permitting the inference that he possessed the drugs with intent to distribute moments earlier while still inside;
Kept a loaded, unlocked handgun in the bedroom, next to items of active daily use (his cell phone and court paperwork), rendering the firearm “certainly” and “easily” accessible before and during the offense.

This analysis emphasizes accessibility and the tight temporal-spatial nexus between the location of the firearm (inside the home) and the locus of the offense (just outside the same home, immediately after he left with drugs). The court distinguishes the defendant’s hypothetical of a gun stored hundreds of miles away—there, the weapon would not be accessible and the inference of contemporaneous possession would be attenuated. In short, the panel holds that a defendant can constructively possess a firearm “during” a drug offense even if the gun remains inside the residence while the defendant steps outside with drugs, provided the temporal and spatial proximity, along with accessibility, reasonably support that inference.

The court also rejects the contention that a heightened “direct connection” showing is always required. Kennedy’s “some nexus” requirement arose in the context of a sustained conspiracy; the panel notes that even assuming such a nexus applies to a non-conspiracy case like this, the nexus is satisfied here by simultaneity and co-location. Kennedy found same-day constructive possession alongside drug-dealing conversations sufficient; here, the facts are stronger—possession occurred at the same time and place as the drug offense.

Third, the panel turns to the defendant’s rebuttal obligation: proving it is “clearly improbable” the weapon was connected to the offense. Applying the Greeno/Kennedy factors, the district court found, and the panel agreed, that most factors weigh against the defendant:

Type of firearm: a handgun—common in trafficking contexts, not a specialized sporting or hunting firearm.
Accessibility: stored loaded and unlocked in the bedroom, not locked away, and proximate to a cell phone—suggesting ready use.
Ammunition: loaded with 16 rounds.
Proximity to drugs: no drugs found in the bedroom, but this factor is outweighed by accessibility and the temporal-spatial circumstances.
Alternative explanation: self-defense claims do not foreclose a trafficking connection; in drug-dealing settings, self-protection and drug-related risk often overlap. The record lacked evidence separating his self-defense need from his trafficking activities.
Nature of the offense: evidence supported trafficking rather than mere possession.

Importantly, the court underscores that alternative motives for firearm possession are not mutually exclusive with drug-trafficking connections. Given the challenging “clearly improbable” standard and deferential appellate review, the district court’s inference—that the gun was more likely connected to trafficking—was not clearly erroneous.

Impact

Although unpublished and therefore nonprecedential within the Sixth Circuit, this opinion carries practical significance for sentencing in drug cases:

Accessibility and proximity matter. Prosecutors and probation officers can rely on accessibility, temporal proximity, and common-sense inferences about where the offense began (e.g., inside a residence moments before a defendant steps outside with drugs) to establish possession “during” the offense, even without finding drugs in the same room as the firearm.
“Nexus” outside conspiracies. The panel signals that, even if courts import Kennedy’s “some nexus” requirement into non-conspiracy cases, simultaneous constructive possession in the same general location as the offense readily satisfies that standard.
Evidentiary posture and standard of review are outcome-determinative. Framing the “during the offense” determination as a factual issue cements deferential clear-error review. District courts’ reasonable inferences—especially about accessibility and timing—will be difficult to overturn on appeal.
Self-defense is not a silver bullet. Defendants seeking to avoid the enhancement should present concrete evidence showing their firearm possession is unrelated to drug trafficking in the particular case; generalized claims of self-protection will rarely meet the “clearly improbable” threshold.
Spatial extremes still matter. The panel distinguishes scenarios where a gun is “hundreds of miles away.” The opinion thus preserves a limiting principle: the enhancement is inappropriate where accessibility and temporal-spatial proximity are lacking.

In the broader sentencing landscape, the decision aligns with the Guidelines’ presumption that firearms present during drug trafficking are connected to that offense unless clearly improbable. It encourages district courts to make explicit findings about accessibility, timing, loading status, and proximity to counter undue emphasis on whether drugs were found in the precise location as the firearm.

Complex Concepts Simplified

Constructive possession: You “possess” an item not only when it is physically on you, but also when you have the power and intent to control it (for example, a loaded gun kept in your bedroom to which you have ready access).
Possession “during the offense”: For § 2D1.1(b)(1), the government can prove the firearm was possessed while the crime was ongoing, which can include moments immediately before arrest if the offense plainly encompassed that time period and the firearm was accessible.
Relevant conduct: Conduct that is part of the same course of behavior or common scheme as the offense of conviction (U.S.S.G. § 1B1.3). When the government’s theory relies on relevant conduct rather than contemporaneous possession, different legal questions can arise.
Preponderance of the evidence: The government’s burden at sentencing—more likely than not (i.e., >50% likelihood).
“Clearly improbable”: The defendant’s rebuttal burden. It is a demanding standard; the defendant must show that the connection between the weapon and the offense is not just unlikely, but clearly unlikely.
Clear-error review: An appellate standard that defers to the district court’s factual findings. A finding is reversed only if the appellate court is “left with the definite and firm conviction that a mistake has been committed,” not merely because it might have weighed the facts differently.
Nexus: A connection between the firearm and drug activity. In conspiracy cases, the Sixth Circuit has required “some nexus” between the firearm and the conspiratorial conduct; simultaneous constructive possession at the same place and time is typically enough.
Accessibility: Practical ability to reach and use the firearm. Courts look at whether the gun was loaded, unlocked, nearby, and situated among items of immediate use, as opposed to being stored far away or under restrictive lock-and-key.

Conclusion

United States v. Metcalf-Burroughs fortifies a pragmatic approach to the § 2D1.1(b)(1) enhancement: a firearm kept loaded and accessible inside a residence can be deemed possessed “during” a drug offense when the defendant steps outside moments later with drugs and trafficking indicators. The panel confirms that this contemporaneity and accessibility are factual questions reviewed for clear error, and that a self-defense rationale does not, without a stronger evidentiary showing, satisfy the “clearly improbable” standard needed to defeat the enhancement.

While unpublished, the opinion offers a clear template for district courts: articulate findings on accessibility, loading status, temporal and spatial proximity, and the nature of the defendant’s drug activity. For practitioners, the message is equally clear—where the record supports accessible, loaded firearms alongside active trafficking, the enhancement will likely be sustained; defeating it requires more than generalized alternative motives for gun ownership.