United States v. King

Opinion

RECOMMENDED FOR FULL-TEXT PUBLICATION Pursuant to Sixth Circuit Rule 206 2 United States v. King No. 02-1128 ELECTRONIC CITATION: 2003 FED App. 0301P (6th Cir.) File Name: 03a0301p.06 UNITED STATES ATTORNEY, Grand Rapids, Michigan, for Appellee. ON BRIEF: Lawrence J. Phelan, HAEHNEL & PHELAN, Grand Rapids, Michigan, for Appellant. Mark UNITED STATES COURT OF APPEALS V. Courtade, UNITED STATES ATTORNEY, Grand Rapids, Michigan, for Appellee. FOR THE SIXTH CIRCUIT _________________ _________________

UNITED STATES OF AMERICA , X OPINION Plaintiff-Appellee, - _________________ - - No. 02-1128 CLELAND, District Judge. Appellant/Defendant Brent v. - King challenges the sentence imposed by the district court. > Specifically, he asserts that the court was in error when it , applied an enhancement pursuant to U.S.S.G. § 2K2.1(b)(5). BRENT W. KING, - Defendant-Appellant. - For the reasons set forth below, we AFFIRM the judgment of the district court. N Appeal from the United States District Court I. FACTS AND PROCEDURAL HISTORY for the Western District of Michigan at Grand Rapids. No. 01-00173—Gordon J. Quist, District Judge. On May 13, 2001, Battle Creek police officers responded to a complaint that a man was seen pointing a shotgun and Argued: May 1, 2003 threatening an individual at 47 South 22nd Street. When the police arrived at the above address, they witnessed Appellant Decided and Filed: August 25, 2003 pointing a pump-action shotgun at an individual named Billy Sisler. The officers noted that the shotgun was pointed at Mr. Before: CLAY and GIBBONS, Circuit Judges; Sisler’s face and chest. Upon discovering that the police had CLELAND, District Judge.* arrived, Appellant attempted to hide the gun in his sweatshirt and walk away. The police, however, ordered Appellant to _________________ drop the gun. When Appellant raised his hands in the air, the shotgun fell to the ground. The officers apprehended COUNSEL Appellant and recovered the gun--a Mossberg 12-gauge, pump-action shotgun loaded with five rounds of ammunition. ARGUED: Lawrence J. Phelan, HAEHNEL & PHELAN, Grand Rapids, Michigan, for Appellant. Timothy P. VerHey, On July 26, 2001, an indictment was filed with the United States District Court for the Western District of Michigan. The indictment charged Appellant with one count of being a Felon in Possession of a Firearm in violation of 18 U.S.C. * The Ho norable Robert H. Cleland, United States District Judge for the Eastern District of Michigan, sitting by designation.

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§ 922(g)(1).1 On October 3, 2001, pursuant to a six-page plea II. STANDARD OF REVIEW agreement, Appellant pleaded guilty to the charged offense. Appellant concedes that because he objected only to the Appellant’s presentence report recommended that his presentence report’s factual findings and not the report’s legal offense level be increased by four points pursuant to U.S.S.G. conclusion regarding the sentencing enhancement, the court § 2K2.1(b)(5) because Appellant used the firearm in must review his current claim for plain error. See United connection with another felony offense, namely Assault With States v. Koeberlein, 161 F.3d 946, 949 (6th Cir. 1998) a Dangerous Weapon (Felonious Assault), when he pointed (holding that the defendant’s failure to object to sentencing the firearm at the victim’s chest and face. Although decision in the district court does not preclude appellate Appellant had been charged with Assault With a Dangerous review of the sentence for plain error under Federal Rule of Weapon (Felonious Assault) and Felony Firearm in state Civil Procedure 52(b)). To establish plain error, Appellant court, these charges were later dismissed on an order of nolle must show “(1) that an error occurred in the district court; prosequi because Appellant was being prosecuted in federal (2) that the error was plain, i.e., obvious or clear; (3) that the court. On January 2, 2002, Appellant objected to the error affected [Appellant’s] substantial rights; and (4) that this proposed enhancement. The court overruled Appellant’s adverse impact seriously affected the fairness, integrity or objection and held that the § 2K2.1(b)(5) applied.2 On public reputation of the judicial proceedings.” Koeberlein, January 14, 2002, Appellant was sentenced to serve 77 161 F.3d at 949. Finally, the court reviews de novo the months imprisonment. Appellant now argues that the district district court’s legal conclusions regarding the application of court erred when applying § 2K21.(b)(5), asserting that the the Sentencing Guidelines. United States v. Humphrey, 279 conduct upon which he was convicted (Felon in Possession) F.3d 372, 379 (6th Cir. 2002).3 was the same conduct the court used to enhance his sentence (Felonious Assault). III. DISCUSSION United States Sentencing Guideline § 2K2.1(b)(5) provides that “if the defendant used or possessed any firearm or ammunition in connection with another felony offense . . . 1 increase [the sentence] by four levels.” U.S.S.G. At the time of the offense, Appellant had two prior felony convictions: (1) a M arch 3 0, 1995 conviction for A ttempting to Carry a § 2K2.1(b)(5). Appellant argues that the four-level Concealed Wea pon, and (2) a June 20, 1996 conviction for Attempted Hom e Invasion. 3 2 In certain circumstance s, the court reviews guideline decisions under An evidentiary hearing was conducted to address Appe llant’s a more deferential standard . See United States v. Ennenga, 263 F.3d 499, objection, which asserted that Appellant had never pointed the shotgun at 502 (6th Cir. 2001). Such review has been held appropriate when the anyone when the incident occurred. The governm ent presented the legal decisio n is closely intertwined with the factual conclusions reached testimony of the officer who observed Ap pellant on the night of the arrest. by the district court. In this case, the dispute is purely a legal issue: Appellant presented three witnesses on his behalf. The trial court Assuming App ellant co mmitted a felo nious assault when he p ointed his “[found] by a preponderance of the evidence that [the officer] was telling firearm at the victim, does the sentencing enhancement for “us[ing] or the truth when he testified that the defendant po inted the gun at B illy possess[ing] any firearm or ammunition in connection with another felony Sisler.” (Sentencing Hr’g Tr. at 52.) Thus, the trial court applied the offense,” U.S.S.G. § 2K 2.1(b)(5), apply where Appellant is convicted for § 2K2.1(b)(5) enhancement. The trial court’s factual findings are not at being a Felon in Possession of a Firearm? Thus, the district court’s legal issue on app eal. determination will be reviewed de novo. No. 02-1128 United States v. King 5 6 United States v. King No. 02-1128

enhancement he received pursuant to this section was in the offense of conviction and the other felony offense.” Id. improper because the state law crime, felonious assault, Appellant admitted to the probation officer that, on the night occurred simultaneously with the offense of conviction and of the incident, he had an argument with individuals at the thus cannot constitute “another felony.” Appellant relies on residence next to his girlfriend’s home. He reported that he United States v. Sanders, 162 F.3d 396, 400 (6th Cir. 1998), returned to his girlfriend’s residence and retrieved his shotgun wherein this Court held that the district court erred in from the bedroom closet. He loaded the shotgun and applying § 2K2.1(b)(5) where the conduct that led to concealed it beneath his shirt before returning to the defendant’s conviction for being a felon in possession of a neighbor’s driveway. It reportedly took two minutes to firearm--the burglary of a pawnshop where guns were among retrieve the gun, load it with ammunition, and return to the the items taken--was the same conduct utilized to apply the driveway. According to the officers that arrived at the scene four-level enhancement. The reasoning underpinning the shortly thereafter, Appellant was pointing the gun at Sisler’s Sanders decision, however, does not apply to the facts of this face and chest. It is quite clear that Appellant possessed the case. Further, more recent, albeit unpublished, case law from gun well before he used it to assault Sisler. Upon storage of this circuit supports the district court’s application of and then retrieval of the gun from his girlfriend’s apartment, § 2K2.1(b)(5). he was committing the crime of being a felon in possession of a firearm. Beyond mere possession, he took the further step In Sanders, the defendants burglarized a pawn shop, taking of committing a felonious assault with the firearm. Because firearms, electronics, and other items. They were eventually of this distinction in conduct, it cannot be said that Appellant convicted for being felons in possession of firearms in was convicted and had his sentence enhanced based upon the violation of 18 U.S.C. §§ 922(g)(1) and 924(a)(2). See same conduct. Appellant first possessed the gun (offense of Sanders, 162 F.3d at 397-98. The defendants did not use conviction) and then used the gun (enhancement conduct).5 firearms during the course of the burglary. “Beyond the contemporaneous burglary . . ., there was not ‘another felony The key distinction between this case and Sanders is that offense,’ and that burglary was the basis for the federal the conduct giving rise to the enhancement here was not firearms offenses charged.” Id. at 401. This Court found that inevitable upon completion of the underlying offense. After the enhancement under § 2K2.1(b)(5) was improperly applied by the district court because there was no separation of time or distinction in conduct between the offense that led to the 5 In Sanders, the court was concerned that allowing the enhancement conviction and the conduct considered for the enhancement.4 to stand in that case wo uld lead to “the autom atic application of this Id. at 400. significant 4 level Guid eline enhancement in almo st every fed eral gun theft case.” Sanders, 162 F.3d at 400. There is no risk o f autom atic In this case, unlike Sanders, there is “a separation of time application of the enhancement in this case . If Appellant had not pointed between the offense of conviction and the other felony the gun towards Sisler, the enhancement would not apply. “Rather, the firearm was used to commit the assault, which is precisely the type of offense, [and] a distinction of conduct between that occurring conduct that the Sentencing Comm ission intended to reach with the enhancem ent.” United States v. Parker, 234 F.3d 1270, 2000 WL 1647922, *2 (6th Cir. O ct. 23, 200 0); see also U nited States v. McDona ld, 4 165 F.3d 1032, 1037 (6th Cir. 1999) (Section 2K2.1(b)(5) “is a sentencing The court also based its decision on the language of Application enhancement provision that was created in response to a concern about No te 18, which states, “‘another felony offense’ . . . refer[s] to offenses the increased risk of violence when firearms are used or possessed during other than . . . firearm s possession or trafficking offenses.” the commission of another felony.”). No. 02-1128 United States v. King 7

Appellant retrieved the firearm, he could have refrained from using the weapon to commit assault. In other words, the enhancement conduct was not unavoidable once the underlying offense took place; Appellant chose to point the weapon at Sisler. Conversely, the defendants in Sanders inevitably possessed firearms upon completion of the burglary because the firearms were among the items taken during the burglary. United States v. Parker, an unpublished decision from this circuit, directly addresses the issue presented in this case. In that case, the defendant made the same argument as Appellant is asserting in this case. This Court stated: The incredulity of this argument renders it wholly unpersuasive. As a matter of logic, in order for Parker to shoot at his wife with the firearm, the firearm must have first come into his possession. The possession of the firearm and the ensuing assault are two independent acts, therefore, the felonious assault can be used to enhance the firearms conviction under U.S.S.G. § 2K2.1(b)(5). Parker, 234 F.3d 1270, 2000 WL 1647922, *2 (6th Cir. Oct. 23, 2000). This Court found the Sanders holding inapplicable and held that the district court did not err in using the felonious assault to enhance the defendant’s offense level pursuant to U.S.S.G. § 2K2.1(b)(5). This case is no different. Accordingly, Appellant’s position is without merit. IV. CONCLUSION We find that the district court did not err in enhancing Appellant’s sentence pursuant to U.S.S.G. § 2K2.1(b)(5). Accordingly, the judgment of the district court is AFFIRMED.