NOT RECOMMENDED FOR PUBLICATION File Name: 21a0469n.06
Case No. 20-6174
UNITED STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT
UNITED STATES OF AMERICA, ) FILED ) Oct 14, 2021 Plaintiff-Appellee, ) DEBORAH S. HUNT, Clerk ) v. ) ) ON APPEAL FROM THE UNITED JERMAINE WEBB, ) STATES DISTRICT COURT FOR ) THE MIDDLE DISTRICT OF Defendant-Appellant. ) TENNESSEE )
BEFORE: SUTTON, Chief Judge; McKEAGUE and WHITE, Circuit Judges.
SUTTON, Chief Judge. Jermaine Webb pleaded guilty to possessing a firearm as a
convicted felon. The district court enhanced his base offense level after finding he used a gun in
an altercation at his ex-girlfriend’s house the night before his arrest. Because the district court
reasonably found that this incident counts as part of the “same course of conduct” as his gun
possession the next day, we affirm.
On September 3, 2018, Webb approached his ex-girlfriend’s residence and confronted her
new boyfriend, Corey Pittman, with a gun. Witnesses saw Webb fire a handgun at Pittman. Then
Webb said, “what’s up now,” and drove away in an orange Dodge Avenger. R.76 at 5. Police
responded to the scene. They obtained a warrant for Webb’s arrest and began watching his home. Case No. 20-6174, United States v. Webb
The next day, Webb got back into his car—the same 2008 Dodge Avenger—and was
stopped by police. During the stop, officers saw a pistol, which turned out to be a different gun
from the one he had fired the night before. Officers arrested Webb and seized his pistol, which
was loaded.
Based on the second incident, the one on September 4, a federal grand jury indicted Webb
for one count of illegally possessing a firearm as a convicted felon. See 18 U.S.C. §§ 922(g)(1),
924(a). The State of Tennessee separately brought charges for aggravated assault with a deadly
weapon and reckless endangerment for his September 3 conduct but ultimately dismissed the
charges.
Webb pleaded guilty to his federal felon-in-possession charge. At sentencing, the district
court found that Webb also possessed a firearm on September 3 and adopted the presentence report
to that effect. It then determined that the September 3 incident was relevant conduct to his arrest
on September 4. As a result, the district court enhanced the base offense level by four levels under
U.S.S.G. § 2K2.1(b)(6)(B). That increased Webb’s advisory guidelines range from 33–41 months
to 51–63 months. The court nonetheless varied downward significantly and sentenced Webb to
36 months.
On appeal, Webb claims that the district court erred in applying the enhancement,
submitting that his September 3 actions do not count as relevant conduct when it comes to his
illegal gun possession on September 4. A few ground rules accompany this claim. A prior incident
counts as relevant conduct if it was “part of the same course of conduct” or a “common scheme or
plan” as the underlying conviction. U.S.S.G. § 1B1.3(a)(2). The prior incident must be
“sufficiently connected or related to” the underlying conviction such “that they are part of a single
episode, spree, or ongoing series of offenses.” Id. § 1B1.3 cmt. n.5(B)(ii). Three factors weigh in
2 Case No. 20-6174, United States v. Webb
the balance: “the degree of similarity of the offenses, the regularity (repetitions) of the offenses,
and the time interval between the offenses.” Id. The government must show by a preponderance
of the evidence that the prior incident constituted relevant conduct. United States v. Amerson, 886
F.3d 568, 573 (6th Cir. 2018). As a general matter, we review the district court’s factual findings
for clear error and its legal interpretations with fresh eyes. United States v. Hodge, 805 F.3d 675,
678 (6th Cir. 2015). While there is some disagreement within the circuit over the question whether
the application of this guideline to a given fact pattern receives deferential or fresh review,
compare Amerson, 886 F.3d at 573 (fresh review), with United States v. Kappes, 936 F.2d 227,
229 (6th Cir. 1991) (clear error review), the standard of review makes no difference here.
Two of the three factors—the time interval and the similarity of the offenses—firmly favor
the government. Incidents separated by as much as nine months have satisfied the timing
consideration. See Amerson, 886 F.3d at 574; United States v. Phillips, 516 F.3d 479, 483–84 (6th
Cir. 2008). If a nine-month gap between incidents may suffice, this small gap in time—less than
24 hours—strongly supports the enhancement.
Webb’s conduct on September 3 also was similar to, if not materially identical to, his
conduct on September 4. In assessing similarity, we look “beyond the general nature of the
offense”—namely, “unlawfully possessing a gun,” Amerson, 886 F.3d at 578—to other shared
features of the conduct: “common victims, common offenders, common purpose, or similar modus
operandi,” United States v. Hill, 79 F.3d 1477, 1483 (6th Cir. 1996); see also Phillips, 516 F.3d
at 485 n.5. When two incidents “took place at the same location,” that usually shows they are
“connected.” United States v. Henry, 819 F.3d 856, 865 (6th Cir. 2016).
These two incidents shared plenty of similarities. Webb possessed the same kind of firearm
both times, a handgun. And he used the same Dodge Avenger in both incidents. That he possessed
3 Case No. 20-6174, United States v. Webb
different guns on each occasion and that he fired the gun in one instance but not the other does not
diminish the similarity. Because both incidents “bear[] considerable similarity” as gun possessions
that occurred in “the same place,” the similarity factor is met. United States v. Conway, 513 F.3d
640, 643 (6th Cir. 2008); see also United States v. Fisher, 824 F. App’x 347, 359–60 (6th Cir.
2020) (holding similarity was “strong” for possessions of different guns in the same house).
The brevity of time between the two incidents, it is true, left little time to establish the third
factor: the regularity of the conduct. Just one “other instance of conduct” usually will not suffice
to establish regularity. Amerson, 886 F.3d at 574. One day rarely will leave enough time to
establish three or more forms of relevant conduct. But this reality does not undermine the district
court’s conclusion that the September 3 incident counts as relevant conduct.
With such regularity missing, “there must be strong similarity and close temporal proximity
to make up for it,” United States v. Bowens, 938 F.3d 790, 800 (6th Cir. 2019), and that is what
we have here. See also United States v. Gales, 137 F. App’x 875, 877–78 (6th Cir. 2005) (holding
the standard met with “compelling similarity” and “a brief time interval” of two months). We have
routinely observed that the “contemporaneous, or nearly contemporaneous, possession of
uncharged firearms is . . . relevant conduct in the context of a felon-in-possession prosecution.”
Phillips, 516 F.3d at 483; Amerson, 886 F.3d at 574–75; Fisher, 824 F.
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NOT RECOMMENDED FOR PUBLICATION File Name: 21a0469n.06
Case No. 20-6174
UNITED STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT
UNITED STATES OF AMERICA, ) FILED ) Oct 14, 2021 Plaintiff-Appellee, ) DEBORAH S. HUNT, Clerk ) v. ) ) ON APPEAL FROM THE UNITED JERMAINE WEBB, ) STATES DISTRICT COURT FOR ) THE MIDDLE DISTRICT OF Defendant-Appellant. ) TENNESSEE )
BEFORE: SUTTON, Chief Judge; McKEAGUE and WHITE, Circuit Judges.
SUTTON, Chief Judge. Jermaine Webb pleaded guilty to possessing a firearm as a
convicted felon. The district court enhanced his base offense level after finding he used a gun in
an altercation at his ex-girlfriend’s house the night before his arrest. Because the district court
reasonably found that this incident counts as part of the “same course of conduct” as his gun
possession the next day, we affirm.
On September 3, 2018, Webb approached his ex-girlfriend’s residence and confronted her
new boyfriend, Corey Pittman, with a gun. Witnesses saw Webb fire a handgun at Pittman. Then
Webb said, “what’s up now,” and drove away in an orange Dodge Avenger. R.76 at 5. Police
responded to the scene. They obtained a warrant for Webb’s arrest and began watching his home. Case No. 20-6174, United States v. Webb
The next day, Webb got back into his car—the same 2008 Dodge Avenger—and was
stopped by police. During the stop, officers saw a pistol, which turned out to be a different gun
from the one he had fired the night before. Officers arrested Webb and seized his pistol, which
was loaded.
Based on the second incident, the one on September 4, a federal grand jury indicted Webb
for one count of illegally possessing a firearm as a convicted felon. See 18 U.S.C. §§ 922(g)(1),
924(a). The State of Tennessee separately brought charges for aggravated assault with a deadly
weapon and reckless endangerment for his September 3 conduct but ultimately dismissed the
charges.
Webb pleaded guilty to his federal felon-in-possession charge. At sentencing, the district
court found that Webb also possessed a firearm on September 3 and adopted the presentence report
to that effect. It then determined that the September 3 incident was relevant conduct to his arrest
on September 4. As a result, the district court enhanced the base offense level by four levels under
U.S.S.G. § 2K2.1(b)(6)(B). That increased Webb’s advisory guidelines range from 33–41 months
to 51–63 months. The court nonetheless varied downward significantly and sentenced Webb to
36 months.
On appeal, Webb claims that the district court erred in applying the enhancement,
submitting that his September 3 actions do not count as relevant conduct when it comes to his
illegal gun possession on September 4. A few ground rules accompany this claim. A prior incident
counts as relevant conduct if it was “part of the same course of conduct” or a “common scheme or
plan” as the underlying conviction. U.S.S.G. § 1B1.3(a)(2). The prior incident must be
“sufficiently connected or related to” the underlying conviction such “that they are part of a single
episode, spree, or ongoing series of offenses.” Id. § 1B1.3 cmt. n.5(B)(ii). Three factors weigh in
2 Case No. 20-6174, United States v. Webb
the balance: “the degree of similarity of the offenses, the regularity (repetitions) of the offenses,
and the time interval between the offenses.” Id. The government must show by a preponderance
of the evidence that the prior incident constituted relevant conduct. United States v. Amerson, 886
F.3d 568, 573 (6th Cir. 2018). As a general matter, we review the district court’s factual findings
for clear error and its legal interpretations with fresh eyes. United States v. Hodge, 805 F.3d 675,
678 (6th Cir. 2015). While there is some disagreement within the circuit over the question whether
the application of this guideline to a given fact pattern receives deferential or fresh review,
compare Amerson, 886 F.3d at 573 (fresh review), with United States v. Kappes, 936 F.2d 227,
229 (6th Cir. 1991) (clear error review), the standard of review makes no difference here.
Two of the three factors—the time interval and the similarity of the offenses—firmly favor
the government. Incidents separated by as much as nine months have satisfied the timing
consideration. See Amerson, 886 F.3d at 574; United States v. Phillips, 516 F.3d 479, 483–84 (6th
Cir. 2008). If a nine-month gap between incidents may suffice, this small gap in time—less than
24 hours—strongly supports the enhancement.
Webb’s conduct on September 3 also was similar to, if not materially identical to, his
conduct on September 4. In assessing similarity, we look “beyond the general nature of the
offense”—namely, “unlawfully possessing a gun,” Amerson, 886 F.3d at 578—to other shared
features of the conduct: “common victims, common offenders, common purpose, or similar modus
operandi,” United States v. Hill, 79 F.3d 1477, 1483 (6th Cir. 1996); see also Phillips, 516 F.3d
at 485 n.5. When two incidents “took place at the same location,” that usually shows they are
“connected.” United States v. Henry, 819 F.3d 856, 865 (6th Cir. 2016).
These two incidents shared plenty of similarities. Webb possessed the same kind of firearm
both times, a handgun. And he used the same Dodge Avenger in both incidents. That he possessed
3 Case No. 20-6174, United States v. Webb
different guns on each occasion and that he fired the gun in one instance but not the other does not
diminish the similarity. Because both incidents “bear[] considerable similarity” as gun possessions
that occurred in “the same place,” the similarity factor is met. United States v. Conway, 513 F.3d
640, 643 (6th Cir. 2008); see also United States v. Fisher, 824 F. App’x 347, 359–60 (6th Cir.
2020) (holding similarity was “strong” for possessions of different guns in the same house).
The brevity of time between the two incidents, it is true, left little time to establish the third
factor: the regularity of the conduct. Just one “other instance of conduct” usually will not suffice
to establish regularity. Amerson, 886 F.3d at 574. One day rarely will leave enough time to
establish three or more forms of relevant conduct. But this reality does not undermine the district
court’s conclusion that the September 3 incident counts as relevant conduct.
With such regularity missing, “there must be strong similarity and close temporal proximity
to make up for it,” United States v. Bowens, 938 F.3d 790, 800 (6th Cir. 2019), and that is what
we have here. See also United States v. Gales, 137 F. App’x 875, 877–78 (6th Cir. 2005) (holding
the standard met with “compelling similarity” and “a brief time interval” of two months). We have
routinely observed that the “contemporaneous, or nearly contemporaneous, possession of
uncharged firearms is . . . relevant conduct in the context of a felon-in-possession prosecution.”
Phillips, 516 F.3d at 483; Amerson, 886 F.3d at 574–75; Fisher, 824 F. App’x at 360 (all quoting
United States v. Powell, 50 F.3d 94, 104 (1st Cir. 1995)). Webb’s case fits comfortably within
these precedents, as his uncharged firearm possession occurred in the same car and within 24 hours
of the charged conduct.
Amerson, Hill, and Bowens do not require a different conclusion.
Amerson held that a defendant’s involvement in a shooting three and a half months before
his arrest for illegal gun possession was not relevant conduct. 886 F.3d at 570, 578. But Webb’s
4 Case No. 20-6174, United States v. Webb
conduct involved far more temporal proximity, which is decisive here. Amerson contemplated as
much, noting that “contemporaneous, or nearly contemporaneous, possession” would be strong
enough to overcome a lack of regularity and the “minimal similarity” of two incidents involving
gun possession. Id. at 574–75, 577–78. And Webb’s two incidents were more similar in nature,
as they occurred in the same car instead of “different locations.” Id. at 577.
Hill held that an earlier drug transaction was not relevant to a later drug transaction arrest.
79 F.3d at 1485. But Hill limited its holding to cases in which “two isolated drug transactions are
separated by more than one year . . . [and] the sole similarity [is] that both transactions involved
the same type of drug.” Id. at 1484. Webb fits within the exceptions, not the Hill holding.
Bowens held that an uncharged gun possession was not relevant conduct to an arrest for
illegal gun possession four months later. 938 F.3d at 798–99. In addition to “weak” temporal
proximity and “no regularity,” the court found weak similarity because “[t]here was nothing
similar about Bowens’ separate acts of possession other than the general nature of the offense,” as
one possession was in a car and the other was in his home. Id. at 800. Webb’s conduct was closer
in time and bore more similarity.
Webb’s suggestion that the September 3 incident was a shooting and thus cannot be
classified as a mere gun possession overlooks precedent. In Amerson, our court also had before it
one incident that was a shooting and another that was an arrest for gun possession. And we did
not hesitate to characterize the two incidents as “two illegal possessions.” Amerson, 886 F.3d at
571, 574. Shooting a gun necessarily entails possessing it.
Webb insists that it is not clear from the record that both incidents occurred in the same
car. But that argument overlooks his own testimony. The presentence report and sentencing
transcript show that Webb drove his orange Dodge Avenger during the September 3 incident.
5 Case No. 20-6174, United States v. Webb
Although the presentence report says generically that on September 4, the police observed Webb
get into a “vehicle . . . parked in front of his residence,” R.76 at 6, Webb testified that he was
arrested in “[his] car . . . the car in [his] name,” R.81 at 58. Webb owned one vehicle: a 2008
Dodge Avenger. The government argued to the district court, notably, that both incidents occurred
in “the same vehicle,” id. at 18, and Webb never argued that the two incidents occurred in different
cars.
That Webb had different guns on September 3 and 4 does not upend this analysis either.
In Conway, possession of a sawed-off shotgun was still relevant conduct when it came to a
conviction for being a felon in possession of nine-millimeter and assault rifle ammunition.
513 F.3d at 643. And in Gales, the illegal sales of a Mossberg, a Glock, and a Browning two
months apart were all “part of the same course of conduct—namely, the illegal possession of
firearms.” 137 F. App’x at 876–77.
United States v. Howse, 478 F.3d 729 (6th Cir. 2007), and United States v. Settle, 414 F.3d
629 (6th Cir. 2005), do not alter this conclusion either. Both cases held that for a sentencing
enhancement to apply without reliance on U.S.S.G. § 1B1.3(a)(2), the government must show a
“clear connection” between the involved firearms (when they are different in the two incidents).
Howse, 478 F.3d at 731–33; Settle, 414 F.3d at 632 n.2, 634. But Webb only claimed that the
district court erred by ruling that the September 3 incident “constituted relevant conduct under
the . . . three-factor weighing test” required by § 1B1.3(a)(2). Appellant’s Br. at 7. And a later
amendment to the Sentencing Guidelines commentary clarified that whether the relevant sentence
enhancement in § 2K2.1 could apply for an earlier offense that involved a different firearm turned
on the “relevant conduct” standard of § 1B1.3(a)(2). U.S.S.G. § 2K2.1 cmt. n.14(E)(ii).
6 Case No. 20-6174, United States v. Webb
That the State dropped Webb’s state-law charges for the incident on September 3 does not
prohibit the United States from treating the incident as relevant conduct for federal sentencing
purposes. “[I]n determining relevant conduct, a court may consider a broad range of information,
including uncharged crimes, crimes where charges have been dismissed, and crimes for which the
defendant has been acquitted.” United States v. Rios, 830 F.3d 403, 440 (6th Cir. 2016) (quotation
omitted).
We affirm.