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Enhancer — § 939.63, Dangerous Weapon Enhancer — Nexus to Predicate Offense

State v. John W. Page, 2000 WI App 267, 240 Wis.2d 276, 622 N.W.2d 285
For Page: William E. Schmaal, SPD, Madison Appellate

Issue: Whether possession of dangerous weapon enhancer, § 939.63, requires actual use or threat to use the weapon while committing the enhanced offense.


Under the correct reading of [State v.Peete [,185 Wis. 2d 4, 517 N.W.2d 149 (1994)], if the evidence is such that a reasonable jury may find beyond a reasonable doubt that the defendant possessed a dangerous weapon in order to use it or threaten to use it should that become necessary, the evidence is sufficient under § 939.63 even if the defendant did not actually use or threaten to use the weapon in the commission of the crime.

See U.S. v. Stallings, 11th Cir. No. 03-11905, 9/7/06:

Although “‘[e]xperience on the trial and appellate benches has taught that substantial dealers in narcotics keep firearms on their premises as tools of the trade,’” United States v. Alvarez, 755 F.2d 830, 849 (11th Cir. 1985) (citing United States v. Perez, 648 F.2d 219, 224 (5th Cir. Unit B 1981)), the mere fact that a drug offender possesses a firearm does not necessarily give rise to the firearms enhancement. The government must show some nexus beyond mere possession between the firearms and the drug crime. See, e.g., Timmons, 283 F.3d at 1251 (noting that the “‘in relation to’ language ‘allay[s] explicitly the concern that a person could be’ punished under § 924(c)(1) for committing a drug trafficking offense ‘while in possession of a firearm’ even though the firearm’s presence is coincidental or entirely ‘unrelated’ to the crime” (citing Smith v. United States, 508 U.S. 223, 238 (1993))); United States v. Siebe, 58 F.3d 161, 162–63 (5th Cir. 1995) (concluding that a firearms enhancement was not justified because, although police found ninety firearms in the defendant’s home, they found no evidence there of drug paraphernalia or drug trafficking activities); United States v. Salery, 119 F. Supp. 2d 1268, 1275 (M.D. Ala. 2000) (synthesizing cases and concluding that the government must prove that the weapon was found in the same location as the drugs or that the weapon was part of conduct involved in a drug transaction).


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