United States Court of Appeals

FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued January 26, 2009 Decided July 10, 2009

No. 08-3020

UNITED STATES OF AMERICA,

APPELLEE

v.

ANTOINE H. BLALOCK,

APPELLANT

Appeal from the United States District Court

for the District of Columbia

(No. 1:07-cr-00157-HHK-1)

Edward C. Sussman, appointed by the court, argued the

cause and filed the brief for appellant.

Michael T. Ambrosino, Assistant U.S. Attorney, argued the

cause for appellee. With him on the brief were Jeffrey A.

Taylor, U.S. Attorney, and Roy W. McLeese III, Assistant U.S.

Attorney.

Before: GINSBURG, GARLAND, and KAVANAUGH, Circuit

Judges.

Opinion for the Court filed by Circuit Judge GARLAND.
2

1

Our recitation of the facts draws on information from a “Proffer

of Evidence” that Blalock signed as part of his plea agreement, and

from a factual statement in his Presentence Investigation Report that

he did not contest.

GARLAND, Circuit Judge: Appellant Antoine Blalock pled

guilty to unlawful possession of a firearm by a convicted felon,

in exchange for the government’s agreement to drop other gun

and drug charges. At sentencing, the parties disagreed over

whether Blalock was subject to an upward adjustment under the

United States Sentencing Guidelines for possessing the firearm

in connection with another felony offense. The district court

concluded that Blalock possessed the gun in connection with his

possession with intent to distribute marijuana, and it therefore

applied the enhancement. Blalock now appeals, contending that

the district court erred in enhancing his sentence. Finding no

error, we affirm the judgment of the district court.

I

On the morning of May 21, 2007, Blalock drove up to the

Metropolitan Police Department’s (MPD) Seventh District

station in southeast Washington, D.C.1

 He stopped his car in the

middle of the street, got out, walked around to the back, and

pulled a black bag from the trunk. Moments later, he began

shooting a gun into the air. As he fired, a witness heard him

yell: “[T]he police should leave us alone and let us sell our

weed.” Proffer of Evidence 1 (Nov. 9, 2007). MPD officers

heard the shots and ran outside. An officer drew his weapon and

approached Blalock, ordering him to put the gun down. Blalock

removed the magazine from the gun and threw both magazine

and gun to the ground. He then took off all his clothes and stood

naked in the street. 
3

The police arrested Blalock without further incident. From

the area at his feet, they recovered a semi-automatic handgun

and five shell casings. Amidst Blalock’s belongings scattered

near his car’s trunk, officers found twenty-four individually

packaged bags of marijuana. According to the “Proffer of

Evidence” that Blalock signed as part of his plea agreement, the

bags contained an aggregate of 44.1 grams of marijuana, which

was “packaged in a manner and found in an amount that was

consistent with the way marijuana is distributed in the District

of Columbia.” Id. at 2. 

Upon his arrest, Blalock told the officers that he had driven

to the police station to win recognition for his record label. The

officers then drove Blalock to a hospital, where he was found to

have phencylidine (PCP) in his bloodstream. He was released

to police custody later that day.

On June 9, 2007, a grand jury indicted Blalock on one count

of possession of a firearm and ammunition by a convicted felon,

in violation of 18 U.S.C. § 922(g)(1); one count of possession

with intent to distribute marijuana, in violation of 21 U.S.C.

§ 841(a)(1) & (b)(1)(D); and one count of using, carrying, and

possessing a firearm during a drug trafficking offense, in

violation of 18 U.S.C. § 924(c)(1). On November 9, 2007,

Blalock entered into a plea agreement with the government. He

agreed to plead guilty to unlawful possession of a firearm by a

convicted felon; in return, the government agreed to dismiss the

remaining charges. The agreement specifically stated that

neither party was “precluded from arguing for or against the

applicability of . . . §2K2.1(b)(6) of the Sentencing Guidelines,”

Plea Agreement 3 (Nov. 9, 2007), which provides for a fourlevel increase in a defendant’s base offense level “[i]f the

defendant used or possessed any firearm or ammunition in

connection with another felony offense,” U.S. SENTENCING
4

GUIDELINES MANUAL § 2K2.1(b)(6) (2007) [hereinafter

U.S.S.G.].

Prior to sentencing, the U.S. Probation Office prepared a

Presentence Investigation Report (PSR) that calculated

Blalock’s criminal history and offense level under the

Guidelines. It noted that Blalock’s multiple previous

convictions generated a criminal history category of IV, and that

his base offense level started at 20 because he committed the

weapons offense after sustaining at least one felony conviction

for a crime of violence. See U.S.S.G. § 2K2.1(a)(4)(A).

Because Blalock accepted responsibility for the gun crime, the

PSR reduced his offense level to 17, see id. § 3E1.1, which,

coupled with his criminal history category, would have yielded

a sentencing range of 37 to 46 months’ imprisonment. See id.

ch. 5, pt. A (sentencing table). But the PSR then added a fouroffense-level enhancement under Guideline § 2K2.1(b)(6) based

on the conclusion that Blalock had used or possessed the firearm

in connection with another felony offense, namely, possession

with intent to distribute marijuana. The resulting offense level

of 21 generated a sentencing range of 57 to 71 months. See id.

ch. 5, pt. A.

At the sentencing hearing that followed, Blalock’s counsel

objected to the four-level enhancement under § 2K2.1(b)(6).

Counsel argued that, because Blalock was suffering from PCP

intoxication at the time of his arrest, he did not possess the

marijuana with the specific intent to distribute it. The

government responded that Blalock’s PCP intoxication did not

prevent him from forming the intent necessary to commit the

drug offense. Although the court told Blalock that his counsel

“ma[d]e a very good argument on [his] behalf,” Sentencing Hr’g

Tr. 31-32 (March 7, 2008), it nonetheless found by a

preponderance of the evidence that Blalock possessed the

marijuana with the intent to distribute it. The court imposed a
5

2

Although Booker “held § 3742(e) unconstitutional insofar as it

required courts to reverse sentences falling outside the applicable

Sentencing Guidelines range, we have since held that this section

continues to provide the standard by which we review a district court’s

sentence of 57 months’ incarceration, which is the subject of this

appeal.

II

In the wake of the Supreme Court’s decision in United

States v. Booker, 543 U.S. 220 (2005), the Sentencing

Guidelines “are now advisory, and appellate review of

sentencing decisions is limited to determining whether they are

‘reasonable.’” Gall v. United States, 128 S. Ct. 586, 594 (2007).

We review the reasonableness of a sentence in two steps. First,

we must “ensure that the district court committed no significant

procedural error, such as . . . improperly calculating . . . the

Guidelines range.” Id. at 597. Second, we “consider the

substantive reasonableness of the sentence imposed under an

abuse-of-discretion standard.” Id. This appeal involves only the

accuracy of the district court’s Guidelines calculation. 

Blalock’s sole contention is that the court erred by

increasing his offense level under Guideline § 2K2.1(b)(6). To

determine whether the increase was warranted, the district court

properly applied a preponderance of the evidence standard. See

United States v. Watts, 519 U.S. 148, 156-57 (1997) (citing

U.S.S.G. § 6A1.3 cmt.); In re Sealed Case, 246 F.3d 696, 698

(D.C. Cir. 2001). In reviewing a sentencing determination, we

“‘shall accept the findings of fact of the district court unless they

are clearly erroneous’ and ‘shall give due deference to the

district court’s application of the guidelines to the facts.’”

United States v. McCants, 554 F.3d 155, 160 (D.C. Cir. 2009)

(quoting 18 U.S.C. § 3742(e)).2

 “[D]ue deference presumably
6

application of the Sentencing Guidelines.” McCants, 554 F.3d at 160

n.3; see United States v. Tann, 532 F.3d 868, 874 (D.C. Cir. 2008).

. . . fall[s] somewhere between de novo and clearly erroneous.”

Id. (internal quotation marks omitted). 

Section 2K2.1(b)(6) provides for a four-level increase in a

defendant’s offense level if he “used or possessed any firearm

or ammunition in connection with another felony offense.”

U.S.S.G. § 2K2.1(b)(6). The “[]other felony offense” the court

found here was possession with intent to distribute marijuana in

violation of 21 U.S.C. § 841(a)(1) & (b)(1)(D), as charged in

Blalock’s indictment. Blalock objects to two determinations the

district court made in applying § 2K2.1: (1) that he possessed

marijuana with the intent to distribute it; and (2) that he

possessed his weapon “in connection with” that drug crime. 

We review the first of these determinations for clear error,

as it is plainly a finding of fact. McCants, 554 F.3d at 160.

What standard applies to the district court’s “in connection

with” determination is a closer question. On the one hand, the

Eighth Circuit has treated the issue as a factual finding subject

to clear error review. See United States v. Regans, 125 F.3d

685, 686 (8th Cir. 1997). On the other hand, when this circuit

“has focused on whether particular conduct was sufficient to

warrant [an] enhancement, it has largely accorded due

deference.” United States v. Henry, 557 F.3d 642, 645 (D.C.

Cir. 2009); cf. McCants, 554 F.3d at 161 (noting that the due

deference standard applies to a district court’s determination that

a defendant’s acts “fall within the Sentencing Guidelines’

definition of relevant conduct”). Because whether a defendant’s

conduct meets the “in connection with” requirement seems best

described as an application of the Guidelines to the facts, we

review that determination under the due deference standard.
7

A

Blalock’s first contention is that he did not possess his

firearm in connection with “another felony offense,” U.S.S.G.

§ 2K2.1(b)(6), because he did not commit another felony

offense. He notes that the only such offense alleged --

possession with intent to distribute marijuana -- requires the

specific intent to distribute a controlled substance. And he

maintains that, as a result of PCP intoxication, he lacked the

capacity to form the necessary mens rea. We find no clear error

in the district court’s determination that Blalock had the

requisite intent. See Sentencing Hr’g Tr. 25-26. 

It is true both that voluntary intoxication can prevent a

defendant from being able to form the requisite state of mind for

a specific intent crime, see Parker v. United States, 359 F.2d

1009, 1012 n.5 (D.C. Cir. 1996); Heideman v. United States, 259

F.2d 943, 946 (D.C. Cir. 1958), and that possession with intent

to distribute a controlled substance is such a crime, see United

States v. Douglas, 482 F.3d 591, 596 (D.C. Cir. 2007). But

intoxication does not always have that effect, and whether it

does in any given case depends upon the evidence. See

Heideman, 259 F.2d at 946. The leading precedent is Heideman

v. United States, in which the defendant -- a sailor attached to a

navy ship docked in Washington, D.C. -- was charged with

assaulting a taxi driver with the intent to rob him. The

defendant did not dispute that he had “sandbagged” the driver,

hitting him from behind with a sock filled with gravel. But he

did dispute that he had the requisite intent, employing --

literally -- a “drunken sailor” defense: the defendant maintained

that he was too intoxicated to have had the required intent to

rob. The court disagreed, observing that the defendant had not

been too drunk to fill the sock with gravel before entering the

taxi or to rifle the driver’s pockets after hitting him. Id. at 947.

Holding that “[d]runkenness, while efficient to reduce or remove
8

3

See United States v. Trabue, No. 99-6406, 2000 WL 1828671,

at *2 (6th Cir. Dec. 5, 2000) (holding that the district court reasonably

found the defendant’s alcohol consumption did not negate his intent

to commit aggravated assault because, “even though [the defendant]

had been drinking, [he] had the presence of mind to take hostages,

refuse to speak with a . . . negotiator, exit the back door in an attempt

to evade the SWAT team, and then circle around the house when he

was confronted by officers”); United States v. Briseno-Mendez, 1998

WL 440279, at *12 (10th Cir. July 17, 1998) (holding that, even if the

defendant “was drunk at the time he was arrested,” there was “no

evidence his intoxication created a mental impairment sufficient to

negate the existence of specific intent” to commit conspiracy).

inhibitions, does not readily negate intent,” the court concluded

that “the evidence in this case could not create a reasonable

doubt in the mind of any reasonable man as to whether appellant

possessed the requisite intent” for the crime of robbery. Id. at

946-47 (footnote omitted).

We need not go that far to resolve this appeal. There is no

dispute that Blalock was high on PCP when he arrived at the

police station. Nor is there any doubt that Blalock’s intoxication

reduced his inhibitions, as evidenced by his decision to strip

naked on the street. At the same time, however, he was

sufficiently in control of his faculties to operate a motor vehicle,

deliberately drive to the police station, retrieve his gun from the

trunk, fire the weapon into the air several times, and then

remove the magazine and throw down both the gun and

magazine when ordered to do so. This evidence is adequate to

support the court’s conclusion, by a preponderance of the

evidence, that the PCP had not “negate[d]” Blalock’s ability to

form the necessary intent. Id. at 946.3
9

4

See also United States v. Glenn, 64 F.3d 706, 711 (D.C. Cir.

1995) (“[T]he segregation of the cocaine found on [the defendant] into

nine individual ziplock bags could reasonably have supported the

jury’s inference that [the defendant] intended to distribute it.”); United

States v. Herron, 567 F.2d 510, 513 (D.C. Cir. 1977) (noting that

intent to distribute narcotics could be inferred from the fact that “the

heroin . . . was packaged in a convenient manner as if for sale”).

Moreover, as the district court also concluded, what

Blalock’s intent was is indicated by the words he uttered while

firing his gun: “[T]he police should leave us alone and let us

sell our weed.” Proffer of Evidence 1. Indeed, those words

confirm the reasonable inference that can be drawn from the fact

that the twenty-four bags of marijuana scattered on the ground

around his trunk were “packaged in a manner and found in an

amount that was consistent with the way marijuana is distributed

in the District of Columbia.” Id. at 2; see, e.g., United States v.

Williams, 233 F.3d 592, 595 (D.C. Cir. 2000) (noting that intent

to distribute narcotics may readily be inferred when drugs are

packaged in a large number of individual bags).4

 In combination

with the evidence that Blalock retained significant control of his

faculties, these facts require us to conclude that the district court

did not clearly err in finding that Blalock was capable of

forming -- and did form -- the specific intent to distribute

marijuana. See, e.g., United States v. Richardson, 459 F.2d

1133, 1134 (D.C. Cir. 1972) (holding that, despite some

evidence that the defendant might have been under the influence

of narcotics, “there [wa]s clear evidence supporting an inference

that appellant had the requisite specific intent [to commit

robbery], e.g., appellant’s statement to the teller, ‘Now you can

help me, you can give me those fives, tens, and twenties, and put

them neatly in a bag’”).

Blalock contends that “it would be ludicrous to conclude

that [he] . . . arrived [at the police station] with the distribution
10

or sale of marijuana in mind.” Appellant’s Br. 7. But an intent

to distribute at any particular place or time is not an element of

21 U.S.C. § 841(a)(1). As the Seventh Circuit held in United

States v. Hairston, “[t]he question is not whether [the defendant]

intended to distribute the drugs at the moment of his arrest[,] . . .

but whether [he] intended to distribute them at any time (within

the period of limitations).” 23 Fed. Appx. 555, 556 (7th Cir.

2001). See generally United States v. Mancillas, 172 F.3d 341,

343 (5th Cir. 1999); United States v. Bruce, 939 F.2d 1053, 1056

(D.C. Cir. 1991). It was not clearly erroneous for the district

court to conclude that a man who said he wanted the police to

“let us sell our weed” intended to do just that.

B

Blalock’s second contention is that he did not use or possess

his weapon “in connection with” the marijuana offense.

Application Note 14 to § 2K2.1 provides that, in general, the “in

connection with” requirement is satisfied if “the firearm . . .

facilitated, or had the potential of facilitating, another felony

offense.” U.S.S.G. § 2K2.1 cmt. n.14(A). When the other

felony offense is a drug trafficking crime, the Application Note

states that the enhancement applies if the “firearm is found in

close proximity to drugs, drug-manufacturing materials, or drug

paraphernalia.” Id. § 2K2.1 cmt. n.14(B). In such a case,

“application of [the enhancement] is warranted because the

presence of the firearm has the potential of facilitating another

felony offense.” Id.; see also United States v. Hardin, 248 F.3d

489, 498-99 (6th Cir. 2001) (“The fact that the firearm was

found in the same room where the cocaine was stored can lead

to the justifiable conclusion that the gun was used in connection

with the felony.”); Regans, 125 F.3d at 686 (explaining that,

because “a firearm is a ‘tool of the trade’ for drug dealers[,] . . .

a factfinder may infer a connection when defendant carried a

firearm and a distribution quantity of illegal drugs”). 
11

In this case, there is no dispute that Blalock’s handgun was

found “in close proximity to drugs”; when the police confronted

him, the gun was in his hand and the marijuana was scattered

nearby. Accordingly, his counsel had to concede that the only

way to reverse the district court’s “in connection with” finding

would be to disregard Application Note 14. Oral Arg.

Recording at 6:53-58. But “commentary in the Guidelines

Manual that interprets or explains a guideline is authoritative

unless it violates the Constitution or a federal statute, or is

inconsistent with, or a plainly erroneous reading of, that

guideline,” Stinson v. United States, 508 U.S. 36, 38 (1993),

and there is no such violation or inconsistency here. Indeed,

even without the Application Note, we would have to agree with

this observation of the district court: “[I]t’s hard to get around

the proposition that the firing [of] the gun in the air is . . .

connected with letting us sell our weed when, in fact, weed was

in the car from which Mr. Blalock emerged and was scattered

around on the ground[].” Sentencing Hr’g Tr. 25; see id. at 32.

III

For the foregoing reasons, the judgment of the district court

is

Affirmed.