PRECEDENTIAL

       UNITED STATES COURT OF APPEALS
            FOR THE THIRD CIRCUIT


                      No. 19-1469


           UNITED STATES OF AMERICA

                           v.

      LESANDRO PEREZ, also known as TOAST,

                                              Appellant



       Appeal from the United States District Court
         for the Eastern District of Pennsylvania
 (D.C. Criminal Action Nos. 2-17-cr-00596-001; 2-17-cr-
           00597-001 and 2-17-cr-00599-001)
        District Judge: Honorable Robert F. Kelly


              Argued on January 26, 2021

Before: AMBRO, SHWARTZ, AND BIBAS, Circuit Judges

             (Opinion filed: July 22, 2021)
Christy Martin, Esq. (Argued)
Federal Community Defender Office for the Eastern District
of Pennsylvania
601 Walnut Street
The Curtis Center, Suite 540 West
Philadelphia, PA 19106

             Counsel for Appellant

Sarah Damiani, Esq.
Bernadette A. McKeon, Esq.
Robert A. Zauzmer, Esq. (Argued)
Office of United States Attorney
615 Chestnut Street
Suite 1250
Philadelphia, PA 19106

             Counsel for Appellee

                       ____________

                OPINION OF THE COURT
                     ____________
AMBRO, Circuit Judge

       Lesandro Perez pled guilty to federal firearm and drug
offenses arising from, among other things, selling guns to an
undercover law enforcement officer.          The Sentencing
Guidelines recommended between 84 and 105 months’
imprisonment for Perez’s crimes. But at the Government’s
urging, the District Court applied a sentencing enhancement
that brought Perez’s recommended prison time up to 121 to




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151 months. The reason? The undercover officer observed
that Perez had guns and drugs together in the same room.

        We now decide whether the mere physical proximity
between guns and drugs is enough to justify the significant
increase in Perez’s Guidelines range. We hold that it is not.
While the Commentary to the Guidelines, on which the District
Court relied, deserves deference, we are persuaded that the
Court misapplied it in this instance. We believe the
Commentary creates a rebuttable presumption, rather than a
bright-line rule, that the enhancement should apply when a
defendant possesses guns and drugs together. We therefore
vacate the District Court’s judgment and sentence and remand
for further proceedings.

                     I. BACKGROUND

        Over a six-month period in 2017, Perez sold firearms
and controlled substances to various confidential informants
and undercover officers. On March 9, 2017, he sold two
firearms to an undercover officer. 1 Perez kept those guns
under a mattress in the room where he conducted the
transaction. During it the officer observed drugs, drug-
packaging materials, and drug paraphernalia in the same room
as the two guns.

       Perez was later charged in three separate indictments in
the Eastern District of Pennsylvania, all involving sales of guns
or drugs. One of the indictments concerned the March 9th

1
  Perez also sold a third firearm that day to the undercover
officer at another location, but that transaction is not at issue
here.




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transaction.      Perez ultimately pled guilty to all three
indictments. The Sentencing Guidelines range was 121 to 151
months, based on a total offense level of 29 and a criminal
history of IV.        This calculation included a four-level
enhancement per U.S. Sentencing Guidelines Manual
§ 2K2.1(b)(6)(B) (U.S. Sentencing Comm’n 2016), which
applies when the defendant “used or possessed any
firearm . . . in connection with another felony offense.” While
there were numerous other sales in the three indictments, the
Government conceded that the March 9th transaction was the
only arguable basis for the enhancement.

        Perez objected to the enhancement at sentencing,
arguing that he did not use the guns “in connect