In United States v. Alaniz, --- F.3d ---, No. 22-30141 (9th Cir. 2023), the Court considered whether U.S.S.G. § 2D1.1(b)(1), which provides for an enhancement of the Guidelines calculation if a defendant possessed a dangerous weapon at the time of a felony drug offense, is constitutional under the Second Amendment following New York State Rifle & Pistol Association, Inc. v. Bruen, 142 S. Ct. 2111 (2022).
The Court held it was. First, the Court "assume[d], without deciding, that step one of the Bruen test is met." Second, it found "§ 2D1.1(b)(1) constitutional under step two because it clearly comports with a history and tradition of regulating the possession of firearms during the commission of felonies involving a risk of violence."
"The analogues show a longstanding tradition of enhancing a defendant’s sentence for the increased risk of violence created by mere possession of a firearm during the commission of certain crimes. Drug trafficking fits squarely within that category of crimes. Like burglary or robbery, drug trafficking plainly poses substantial risks of confrontation that can lead to immediate violence." "Section 2D1.1(b)(1), therefore, imposes a 'comparable burden' to the historical analogues and is 'comparably justified.'”
The "historical record assures us that the two-level enhancement here is of a kind that the Founders would have tolerated. We thus conclude that application of § 2D1.1(b)(1) to Alaniz’s sentence is constitutional."
