United States v. Jason Krumwiede

• Court: Court of Appeals for the Seventh Circuit
• Decided: March 31, 2010
• Docket: 08-4081
• Status: Published

Opinion

In the

United States Court of Appeals For the Seventh Circuit

No. 08-4081

U NITED STATES OF A MERICA, Plaintiff-Appellee, v.

JASON A. K RUMWIEDE, Defendant-Appellant.

Appeal from the United States District Court for the Western District of Wisconsin. No. 3:08-cr-00090-bbc-1—Barbara B. Crabb, Chief Judge.

A RGUED O CTOBER 28, 2009—D ECIDED M ARCH 31, 2010

Before R IPPLE, W ILLIAMS and T INDER, Circuit Judges. R IPPLE, Circuit Judge. Jason A. Krumwiede pleaded guilty to charges that he had stolen thirty-four firearms from a federally licensed firearms dealer, in violation of 18 U.S.C. § 922(u), and that he had possessed a firearm after having been convicted of a felony, in violation of 18 U.S.C. § 922(g)(1). Mr. Krumwiede was sentenced to 140 months’ imprisonment. He now appeals his sen- tence on the ground that the district court improperly 2 No. 08-4081

included in its Guidelines calculation the four-level enhancement provided in § 2K2.1(b)(6). We conclude that the district court committed no error by applying this enhancement. Accordingly, we affirm the judgment of the district court.

I BACKGROUND In the early morning of March 9, 2008, Mr. Krumwiede broke into Main Street Guns & Knives, a federally licensed firearms dealer in Medford, Wisconsin. Responding to the silent alarm, the police soon arrived. Mr. Krumwiede ignored their order to stop, and he fled the scene. The police later found him hiding in a nearby dumpster and arrested him. The police recovered two guns in the dump- ster, fifteen guns in a bag by the door from which Mr. Krumwiede had exited the store and additional guns in the store that had been removed from their cases. At least one of the guns was a semiautomatic firearm capable of accepting a large capacity magazine. On June 4, 2008, a grand jury returned a two-count indictment against Mr. Krumwiede. He was charged with theft of thirty-four firearms from a federally licensed dealer, in violation of 18 U.S.C. § 922(u), and with being a felon in possession of a firearm, in violation of 18 U.S.C. § 922(g)(1). On September 15, 2008, Mr. Krumwiede entered a plea of guilty to both counts pursuant to a written plea agreement. No. 08-4081 3

On November 25, 2008, the district court conducted a sentencing hearing. Prior to the hearing, Mr. Krumwiede filed a written objection to the sentence calculation con- tained in the pre-sentence report (“PSR”); 1 speci- fically, Mr. Krumwiede objected to the inclusion of the

1 The PSR utilized the November 2008 version of the Guide- lines. The PSR made the following calculations: Base offense level: 22 pursuant to U.S.S.G. § 2K2.1(a)(3), because the offense involved a semiautomatic firearm capable of accepting a large capacity magazine and Mr. Krumwiede had already been convicted of a prior violent felony; Six level enhancement: pursuant to § 2K2.1(b)(1)(c), because the offense involved more than 25 firearms; Two level enhancement: pursuant to § 2K2.1(b)(4)(a), because the firearms involved in the offense were stolen; Reduction to 29 levels: pursuant to § 2K2.1(b)(4), because the §§ 2k2.1(b)(1)-(4) enhancements cannot produce an offense level greater than 29; Four level enhancement: pursuant to § 2K2.1(b)(6) and Application Note 14(B) because Mr. Krumwiede pos- sessed guns in connection with another felony offense; and Three level reduction: pursuant to § 3E1.1 for acceptance of responsibility and cooperation. Mr. Krumwiede’s criminal history category was VI. With a base offense level of thirty and criminal history category of VI, the Guidelines range was 168 to 210 months. 4 No. 08-4081

§ 2K2.1(b)(6) 2 four-level enhancement for possession of firearms in connection with another felony offense because, he maintained, no other felony offense had been committed. R.30. The Government replied that the en- hancement was appropriate; it relied on Application Note 14(B).3 The Sentencing Commission had promulgated

2 Section 2K2.1(b)(6) provides: If the defendant used or possessed any firearm or ammunition in connection with another felony offense; or 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, increase by 4 levels. If the resulting offense level is less than level 18, increase to level 18. 3 Application Note 14 reads, in relevant part, 14. “In Connection With”.— (A) In General.—Subsections (b)(6) and (c)(1) apply if the firearm or ammunition facilitated, or had the potential of facilitating, another felony offense or another offense, respectively. (B) Application When Other Offense is Bur- glary or Drug Offense.—Subsections (b)(6) and (c)(1) apply [] in a case in which a defendant who, during the course of a burglary, finds and takes a firearm, even if the defendant did not engage in any other conduct with that firearm during the course of the burglary . . . . In these cases, application of subsections (b)(6) and (c)(1) is warranted because the presence of (continued...) No. 08-4081 5

this application note in 2006 to resolve a circuit split over the application of § 2K2.1(b)(6) when a defendant’s con- duct constituted another felony offense in the nature of burglary or a drug offense. See infra at 11. In an adden- dum to the PSR, the Probation Officer noted that Mr. Krumwiede’s objection was supported by United States v. Szakacs, 212 F.3d 344, 346 (7th Cir. 2000), which had determined that the state offense of conspiracy to commit burglary, committed simultaneously with the charged federal offense of conspiracy to steal firearms from a federally licensed dealer, did not qualify as “an- other felony offense” for purposes of the § 2K2.1(b)(6) enhancement. R.32 at 2. The Probation Officer never- theless concluded that Application Note 14(B), promul- gated after Szakacs, had resolved a circuit conflict with respect to the term “in connection with” in § 2K2.1(b)(6)

3 (...continued) the firearm has the potential of facilitating another felony offense or another offense, respectively. (C) Definitions.— “Another felony offense”, for purposes of subsection (b)(6), means any Federal, state, or local offense, other than the explosive or fire- arms possession or trafficking offense, punish- able by imprisonment for a term exceeding one year, regardless of whether a criminal charge was brought, or a conviction obtained. U.S.S.G. § 2K2.1 app. n. 14. 6 No. 08-4081

and that “[t]he Commission determined the enhance- ment was warranted in cases involving burglary because of the potential a firearm has to facilitate another of- fense.” R.32 at 2. The district court overruled Mr. Krumwiede’s objection and included the § 2K2.1(b)(6) enhancement in its Guide- lines calculation. The district court explained that Ap- plication Note 14(B) mandated that the four-level en- hancement be included when a defendant took fire- arms during a burglary, in addition to the other conduct underlying the charged offense. See Tr. at 6-7, Nov. 25, 2008. Accordingly, the district court accepted the PSR calculations and determined that the Guidelines range was 168 to 210 months’ imprisonment. Id. at 15. However, the district court recognized mitigating factors and de- parted from the recommended Guidelines range.4 The district court sentenced Mr. Krumwiede to a term of 140 months’ imprisonment (120 months on count one and 20 months on count 2, to run consecutively). Id. at 19. On December 2, 2008, Mr. Krumwiede filed a notice of appeal.

4 The district court considered Mr. Krumwiede’s age (27), the fact that he was under the influence of alcohol at the time of the offense, his acceptance of responsibility, his admission that he was an alcoholic and the unsophisticated nature of the offense. See Tr. at 16, Nov. 25, 2008. No. 08-4081 7

II DISCUSSION A. Mr. Krumwiede renews his contention that the district court erroneously included the § 2K2.1(b)(6) four-level enhancement in its Guidelines calculation. He main- tains that the district court erred by not following Szakacs, which held that a state offense that occurs con- temporaneously with the convicted federal offense cannot count as “another felony offense” for purposes of § 2K2.1(b)(6) unless the offense is “separated in time or by a distinction of conduct.” United States v. Szakacs, 212 F.3d 344, 351 (7th Cir. 2000) (internal quotation marks omitted). He also maintains that the 2006 amend- ment to § 2K2.1 (the inclusion of Application Note 14) did not implicate the Szakacs rule. In his view, “[w]hile the Amendment may have clarified when the other offense is a burglary, the Amendment did not change this Court’s treatment of the enhancement in those uni- que cases where the offense of conviction is the burglary of a federally licensed gun dealer.” Appellant’s Br. 12-13 (emphasis in original). In Mr. Krumwiede’s view, Ap- plication Note 14 concerns the “in connection with” phrase of § 2K2.1(b)(6), not the “another felony offense” phrase. The Government contends that Szakacs has no relevance to this case because Application Note 14 “unequivocally” directs district courts to apply the § 2K2.1(b)(6) enhance- ment whenever a defendant possessed firearms during the course of a burglary. Appellee’s Br. 11. The Govern- ment submits that Application Note 14(B) created a “per se 8 No. 08-4081

rule regarding burglary” and “altered the previous judicial construction of the enhancement’s application in those circuits that had excluded burglary from consider- ation as ‘another offense.’ ” Id. at 18-19. Additionally, the Government argues that the conduct consisting of the burglary—breaking and entering into the store at night—was an act distinct from the theft of the guns and Mr. Krumwiede’s possession of them. Id. (citing United States v. Hill, 563 F.3d 572, 582 (7th Cir. 2009)). Finally, the Government points out that, in any event, the sentence imposed was reasonable because it “fell ex- actly within the 120-150 month range that Krumwiede would have faced had the district court not applied the four-level enhancement under § 2K2.1(b)(6).” Id. at 12, 25.

B. We review de novo questions of law involving the interpretation of the Guidelines. See United States v. Stitman, 472 F.3d 983, 986 (7th Cir. 2007). We review a sentencing court’s findings of fact and applications of the Guidelines for clear error. Id. We begin our analysis with an examination of Szakacs. There, five defendants were convicted of the federal offense of conspiracy to steal firearms from a licensed firearms dealer. The defendants’ plan was foiled before they reached the store and, therefore, no firearms were actually taken. When sentencing the defendants, the No. 08-4081 9

district court applied the four-level § 2K2.1(b)(5)5 enhance- ment because “the defendants used or possessed any firearm or ammunition in connection with another felony offense, the other felony offense being the state law crime of conspiracy to commit burglary.” Szakacs, 212 F.3d at 348 (internal quotation marks omitted). We held that the district court had erred by applying the enhancement. We found the case “difficult . . . [because] the state law offense and the federal offense were essentially the same crime.” Id. at 349. We also recognized that circuits had divided over whether the enhancement should apply in such circumstances. Id. We noted in Szakacs that, in United States v. Armstead, 114 F.3d 504, 511-13 (5th Cir. 1997), the Fifth Circuit had ruled that the enhancement was appropriately applied when the defendants were convicted of the federal offense of stealing firearms from a licensed dealer and the other offense was the state crime of burglary. In Szakacs, we contrasted Armstead with the Sixth Circuit’s approach in United States v. Sanders, 162 F.3d 396, 399-402 (6th Cir. 1998). In Sanders, the Sixth Circuit had held that, when a defendant was charged with the federal crimes of theft from a licensed gun dealer, knowingly transporting stolen firearms and being a felon in possession, the state

5 When United States v. Szakacs, 212 F.3d 344 (7th Cir. 2000), was decided, § 2K2.1(b)(6) appeared in the Guidelines as § 2K2.1(b)(5). It was moved to § 2K2.1(b)(6) in the 2006 Guide- lines, at which time Application Note 14(B) was also added. See infra at 11. The texts of § 2K2.1(b)(5), as it existed prior to 2006, and § 2K2.1(b)(6), post-2006, are identical. 10 No. 08-4081

law crime of conspiracy to commit burglary did not qualify as “another felony offense.” In the end, we agreed with Sanders that, “since almost all federal crimes can also be characterized as state crimes,” allowing a state law offense “based on the exact same offense conduct to count as ‘another felony offense’ renders ‘the word “another” . . . superfluous, and of no significance to the application of [the enhancement].’ ” Szakacs, 212 F.3d at 350 (quoting Sanders, 162 F.3d at 400). We also noted that Sanders interpreted the then-extant Application Note 18 to § 2K2.1(b)(5) as precluding a state burglary crime from qualifying as “another felony offense.” 6 Id. Finally, we agreed with Sanders that “courts should not adjust a sentence upward based on factors already reflected in the base-offense level,” i.e., “double counting” the same conduct already included in a base offense level calcula- tion. Id. at 350-51. We concluded that the Sixth Circuit’s approach was consistent with our own previous applica- tion of § 2K2.1(b)(5) in situations where “there was ‘a finding of a separation of time between the offense

6 In 2000, Application Note 18 read in pertinent part, “ ‘another felony offense’ and ‘another offense’ refer to offenses other than explosives or firearms possession or trafficking offenses.” U.S. Sentencing Guidelines Manual § 2K2.1 app. n. 18 (2000). Building on the Sanders interpretation, we interpreted that language so as to exclude burglaries from the definition of “another felony offense” because Application Note 18 used the general phraseology of “explosives or firearms possession or trafficking offenses,” rather than invoking “specific stat- utory provisions.” Szakacs, 212 F.3d at 350. No. 08-4081 11

of conviction and the other felony offense, or a distinction of conduct between that occurring in the offense of con- viction and the other felony offense.’ ” Id. at 351 (quoting Sanders, 162 F.3d at 400). We thus adopted the Sanders approach and “reject[ed] the approach represented by the Armstead court.” Id. In 2006, the Sentencing Commission promulgated Amendment 691, which modified § 2K2.1 and its Ap- plication Notes. See U.S. Sentencing Guidelines Manual, Supplement to Appendix C, 170-77 (2006) (Amendment 691). The Amendment re-designated § 2K2.1(b)(5) as § 2K2.1(b)(6), id. at 171, struck Application Note 18, id. at 172, 7 and added the new Application Note 14, id. at 174- 75. The Sentencing Commission also stated, [T]he amendment addresses a circuit conflict pertaining to the application of [§ 2K2.1(b)(6)] . . . , specifically with respect to the use of a firearm “in connection with” burglary and drug offenses. . . . [T]he amendment provides that in burglary of- fenses, [§ 2K2.1(b)(6)] appl[ies] to a defendant who takes a firearm during the course of the burglary, even if the defendant did not engage in any other conduct with that firearm during the course of the burglary. . . . The Commission determined that application of [§ 2K2.1(b)(6)] is warranted in these cases because of the potential that the pres-

7 By then, Application Note 18 had been moved to Application Note 15. See U.S. Sentencing Guidelines Manual, Supplement to Appendix C, 94 (2005) (Amendment 669). 12 No. 08-4081

ence of the firearm has for facilitating another felony offense or another offense. Id. at 177. Later, in United States v. Hill, 563 F.3d 572, 581 (7th Cir. 2009), we considered whether Application Note 14 was inconsistent with the language of § 2K2.1(b)(6).8 The defendant in Hill disputed the application of § 2K2.1(b)(6) and the district court’s conclusion that a burglary qualified as another felony offense when he had taken guns during the burglary and had pleaded guilty to a felon in possession count. We concluded that Applica- tion Note 14(B) was consistent with § 2K2.1(b)(6), and that the guideline indeed applied in the defendant’s case because “the relevant question is not whether the two offenses occur simultaneously or have some causal rela- tionship with one another, but whether they are based on the same conduct.” Hill, 563 F.3d at 581 (citing United States v. Purifoy, 326 F.3d 879, 880-81 (7th Cir. 2003)). We rea- soned that, unlike the defendants in Szakacs, the applica- tion of the § 2K2.1(b)(6) enhancement in Hill “was based on conduct that was distinct from [the defendant’s] simple possession of the firearms, namely the burglary.” Id. Mr. Krumwiede contends that Hill “reaffirms [our] basic holding in Szakacs that, where the offense of conviction

8 See also Stinson v. United States, 508 U.S. 36, 38 (1993) (“[C]ommentary 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.”). No. 08-4081 13

and the ‘other’ offense for the enhancement’s purposes are essentially the same crime because they involved nearly identical offense conduct, the four level enhancement does not apply.” Appellant’s Br. 14 (internal quotation marks omitted). The Government contends just the oppo- site. It points out that, in Hill, we cited Armstead and said, The guideline [§ 2K2.1(b)(6)] by its terms requires only that the defendant have possessed a weapon ‘in connection with’ another offense. That language is sufficiently broad to include possessing a weapon as a result of the burglary . . . and thus to accommodate the interpretation reflected in the commentary. Hill, 563 F.3d at 582. The Government believes that, in Hill, we abandoned Szakacs and adopted the Armstead ap- proach. See Appellee’s Br. 19-20. We believe that the resolution of these conflicting positions is straightforward. Application Note 14(B), not Szakacs, governs the application of § 2K2.1(b)(6) in Mr. Krumwiede’s case; Application Note 14(B) is unequivocal about when the § 2K2.1(b)(6) enhancement should apply: when a defendant “during the course of a burglary, finds and takes a firearm, even if the defen- dant did not engage in any other conduct with that fire- arm.” U.S.S.G. § 2K2.1 app. n. 14(B). As we already have held, the Application Note is consistent with the guide- line itself and thus is authoritative. See Hill, 563 F.3d at 581 (citing Stinson v. United States, 508 U.S. 36, 38 (1993)). Application Note 14 was meant to “remedy the disagree- ment among the courts regarding the application of the 14 No. 08-4081

four-level enhancement to cases in which the other offense is a burglary.” See United States v. Morris, 562 F.3d 1131, 1136 (10th Cir. 2009) (also concluding that Applica- tion Note 14(B) is consistent with § 2K2.1(b)(6) and that the enhancement applied in a felon in possession case where the defendant took firearms during the course of a burglary). This straightforward reliance on the plain language of Application Note 14 renders nugatory Mr. Krumwiede’s contention that Application Note 14 concerned the “in connection with” phrase of § 2K2.1(b)(6), not the “another felony offense” phrase. Application Note 14(B) is specifi- cally titled “Application When Other Offense is Burglary or Drug Offense” and discusses the application of the enhancement when either burglary or a drug offense constitutes the purported “other” felony offense. Notably, Application Note 14(C) provides a definition of “another felony offense,” when the purported other felony offense is not burglary or a drug offense. In short, Application Note 14 is squarely on point in this case, and the district court correctly applied the enhancement.

Conclusion The district court correctly applied the enhancement provided by § 2K2.1(b)(6) in the calculation of Mr. Krumwiede’s Guidelines calculation. Accordingly, the judgment of the district court is affirmed. A FFIRMED

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