United States v. Jackson

741 F.3d 861, 2014 WL 351954, 2014 U.S. App. LEXIS 2064
CourtCourt of Appeals for the Seventh Circuit
DecidedFebruary 3, 2014
DocketNo. 13-1496
StatusPublished
Cited by5 cases

This text of 741 F.3d 861 (United States v. Jackson) is published on Counsel Stack Legal Research, covering Court of Appeals for the Seventh Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
United States v. Jackson, 741 F.3d 861, 2014 WL 351954, 2014 U.S. App. LEXIS 2064 (7th Cir. 2014).

Opinion

ROVNER, Circuit Judge.

Darnell Jackson unlawfully possessed a firearm for a period of two to three weeks before selling it to someone whose own possession of the gun was illegal. At sentencing, the district court enhanced Jackson’s offense level based on its finding that Jackson had transferred the gun with knowledge or reason to believe it would be possessed “in connection with another felony offense,” i.e., the transferee’s illegal possession of the gun. See U.S.S.G. § 2K2.1(b)(6)(B) (Nov.2012). Jackson contends that the enhancement was improper in that it essentially penalized him a second time for conduct that was otherwise encompassed within his conviction. We affirm.

I.

In January 2011, Jackson’s friend Carlia Wells purchased a nine-millimeter Ruger pistol. In March, Jackson took the pistol from Wells’ home. Having previously been convicted of multiple felonies, Jackson’s possession of the gun was illegal. See 18 U.S.C. § 922(g)(1). Two to three weeks after he took the pistol from Wells, Jackson sold the weapon (or facilitated its sale) to David Dircks, whom Jackson knew to be an illegal user of crack cocaine and heroin. A grand jury later charged Wells, Dircks, Jackson, and a fourth individual with various weapons offenses; the indictment charged Jackson with his unlawful possession of the pistol as a convicted felon, in violation of section 922(g)(1).

On the morning that his trial was to begin, Jackson pleaded guilty to the felon-in-possession charge without a written plea agreement. At sentencing, the court found Jackson’s final, adjusted offense level to be 17. This included a four-level enhancement under Guidelines section 2K2.1(b)(6)(B) for transferring the firearm “with knowledge, intent or reason to believe that it would be used or possessed in connection with another felony offense.” The court found that Jackson’s transfer of the gun to Dircks, a known felon and illegal drug user, facilitated the commission of a felony by Dircks, whose possession of the pistol was prohibited under both section 922(g)(1) (possession by a felon) and section 922(g)(3) (possession by an unlawful user of controlled substances). R. 132 at 2-3. Coupled with a criminal history category of VI (Jackson had a lengthy criminal record that the court described as “astonishing,” R. 132 at 6), the adjusted offense level of 17 resulted in an [863]*863advisory sentencing range of 51 to 63 months in prison. Without the section 2K2.1(b)(6)(B) enhancement, the range would have been 38 to 41 months. Judge Miller opted to impose a within-Guidelines sentence of 60 months’ imprisonment.

II.

The sole issue to be resolved on appeal is whether the section 2K2.1(b)(6)(B) enhancement was correctly imposed. We find that it was.

Section 2K2.1(b)(6)(B) provides that a defendant’s offense level shall be increased by four levels if he “possessed or transferred any firearm or ammunition with knowledge, intent, or reason to believe that it would be used or possessed in connection with another felony offense.” Pri- or to amendments that took effect in November 2006, an application note regarding this enhancement (then set forth in section 2K2.1(b)(5)) defined “another felony offense” as one “other than explosives or firearms possession or trafficking offenses.” § 2K2.1 cmt. n.15 (Nov.2005). This definition of “another felony offense” was “understood to create a categorical exclusion for firearms and explosive offenses.” See United States v. Jones, 528 Fed.Appx. 627, 631-32 (7th Cir.2013) (non-precedential decision) (collecting cases). Thus in United States v. Mahalick, 498 F.3d 475, 480 (7th Cir.2007), we had observed that for purposes of the enhancement, the other felony offense that the defendant facilitated “cannot simply be that the [person who purchased the gun from the defendant] was a felon and upon purchasing the gun became a felon in possession of a firearm.”

However, the application note was modified in 2006 and now reads:

“Another felony offense” [ ] for purposes of subsection (b)(6), means any federal, state, or local offense, other than the explosive or firearms possession or trafficking offense, punishable by imprisonment for a term exceeding one year, regardless of whether a criminal charge was brought, or a conviction obtained.

§ 2K2.1 cmt. n.14(C) (Nov.2006) (emphasis ours). The commentary now excludes from the definition of “another felony offense” only the possession or trafficking offense that serves as the basis for the defendant’s conviction. United States v. Juarez, 626 F.3d 246, 255 (5th Cir.2010). In Jones, we therefore concluded that the enhancement applies, as here, when a defendant guilty of being a felon-in-possession has transferred the firearm to another prohibited person. See Jones, 528 Fed.Appx. at 632 (following Juarez, 626 F.3d at 255). Our decision in Jones was not prece-dential, but we find its rationale on this point (and that of the Fifth Circuit in Juarez) persuasive and adopt it as binding precedent here. By selling the pistol to Dircks, whom he knew to be an unlawful user of controlled substances and thus someone who could not legally possess a firearm, Jackson transferred the pistol with knowledge or reason to believe that the gun would be used to commit another felony offense — Dircks’s illegal possession of the same gun.

Jackson nonetheless argues that his transfer of the firearm to Dircks was not “another felony offense” separate and distinct from his possession offense, and that therefore the enhancement should not apply to him. Jackson contends that his conduct “was simply the firearms possession or trafficking offense and not another felony.” Jackson Brief at 11. He appears to assume that the transfer to Dircks involved no element beyond the offense of conviction, i.e., that his offense of conviction includes the transfer as well as the possession.

[864]*864But section 922(g)(1) requires proof of possession only; the transfer of the firearm was a separate act neither necessary to nor subsumed within his conviction for possession. See United States v. Purifoy, 326 F.3d 879, 881 (7th Cir.2003) (defendant’s act of pointing gun at police officer, which constituted aggravated assault, was a felony distinct from felon-in-possession offense for purposes of other felony offense enhancement); see also, e.g., United States v. Lane, 267 F.3d 715, 718-19 (7th Cir.2001) (act of holding gun sufficient to constitute unlawful possession for purposes of section 922(g)(1)); cf. United States v. Johns, 732 F.3d 736, 740 (7th Cir.2013) (in sentencing defendant for being a felon in possession, district court erred in applying trafficking enhancement, see § 2K2.1 (b)(5), in addition to other felony offense enhancement, when both enhancements were based on same conduct — transfer of guns to confidential informant, whom defendant knew to be a convicted felon, with knowledge that informant intended to resell them).

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Bluebook (online)
741 F.3d 861, 2014 WL 351954, 2014 U.S. App. LEXIS 2064, Counsel Stack Legal Research, https://law.counselstack.com/opinion/united-states-v-jackson-ca7-2014.