United States v. Seronte Newby

• Court: Court of Appeals for the Sixth Circuit
• Decided: March 2, 2021
• Docket: 19-3731
• Status: Unpublished

Opinion

NOT RECOMMENDED FOR PUBLICATION File Name: 21a0112n.06

Nos. 19-3730/3731

UNITED STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT FILED Mar 02, 2021 UNITED STATES OF AMERICA, ) ) DEBORAH S. HUNT, Clerk Plaintiff-Appellee, ) ) ON APPEAL FROM THE UNITED v. ) STATES DISTRICT COURT FOR ) THE SOUTHERN DISTRICT OF RONQUEIZE HEAD (19-3730); SERONTE ) OHIO NEWBY (19-3731), ) ) Defendants-Appellants. )

BEFORE: MOORE, GILMAN, and GRIFFIN, Circuit Judges.

PER CURIAM.

The United States Sentencing Guidelines increase a criminal defendant’s offense level if

he possesses a firearm “in connection with another felony offense.” U.S.S.G. § 2K2.1(b)(6)(B).

The main issue in this appeal is whether Defendants Ronqueize Head and Seronte Newby

committed “another felony offense” under the framework we adopted in United States v. Sanders,

162 F.3d 396, 400–01 (6th Cir. 1998). We conclude that they did. Defendants also offer various

other arguments for relief. None of them are persuasive. Accordingly, we affirm the district

court’s judgments.

I.

Defendants Ronqueize Head and Seronte Newby are maternal half-brothers. Over the

course of two weeks in July 2017, they broke into three gun stores and stole over seventy guns. Nos. 19-3730/3731, United States v. Head, et al.

Defendants’ spree included a break-in at Mark’s Guns, which is in Kentucky; they made off with

twenty-two firearms. Law enforcement eventually caught up with the brothers and arrested them.

A federal grand jury indicted both defendants for one count of conspiring to commit theft

of a federal firearms licensee and two counts of theft from a federal firearms licensee. The grand

jury also charged Head (but not Newby) with one count of possessing a stolen firearm and one

count of possession of a firearm by a prohibited person. Head pleaded guilty to his five counts,

and Newby pleaded guilty to his three counts.

For both defendants, the Presentence Report (“PSR”) recommended that the district court

apply U.S.S.G. § 2K2.1(b)(6)(B)’s four-level enhancement. The probation officer reasoned that

§ 2K2.1(b)(6)(B) applies “if the defendant possessed any firearm or ammunition in connection

with another felony offense,” and in this case, the defendants “robbe[d] . . . three separate gun

stores” and “possessed stolen firearms while committing a robbery offense.” Newby did not object

to the enhancement, but Head did, based on two theories. First, Head argued that § 2K2.1(b)(6)(B)

did not apply at all because there were not any eligible offenses to satisfy the enhancement’s

“another felony offense” component. Second, he contended that enhancing his sentence pursuant

to § 2K2.1(b)(6)(B) would constitute double counting. The government disagreed. It argued that

defendants committed felony burglary under Kentucky state-law during their visit to Mark’s Guns,

which satisfied the “another felony offense” requirement. Additionally, the government argued

that Application Note 14(B) clarified that applying § 2K2.1(b)(6)(B)’s enhancement based on a

state-law felony burglary would not constitute double-counting. The district court agreed with the

government, overruled Head’s objection, and applied the enhancement. The district court imposed

below-Guidelines sentences on both defendants.

Head and Newby each timely appealed.

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II.

A.

Defendants challenge the procedural reasonableness of their sentences. Newby did not

preserve his procedural-reasonableness attacks on his sentence, so they are subject to plain-error

review. United States v. Davis, 751 F.3d 769, 773 (6th Cir. 2014). Head, however, did preserve

his procedural-reasonableness challenges to his sentence, so we review them under the abuse of

discretion standard. United States v. Mack, 808 F.3d 1074, 1084 (6th Cir. 2015). The party

challenging the procedural reasonableness of a sentence has the burden to demonstrate that the

district court abused its discretion when it imposed the sentence. United States v. Houston, 529

F.3d 743, 756 (6th Cir. 2008). A district court abuses its discretion when it imposes a procedurally

unreasonable sentence. United States v. Amawi, 695 F.3d 457, 486 (6th Cir. 2012). “A sentence

is procedurally unreasonable if, among other things, the district court ‘fail[s] to calculate (or

improperly calculate[s]) the Guidelines range, treat[s] the Guidelines as mandatory, fail[s] to

consider the § 3553(a) factors, select[s] a sentence based on clearly erroneous facts, or fail[s] to

adequately explain the chosen sentence.’” Davis, 751 F.3d at 773 (alterations in original) (quoting

Gall v. United States, 552 U.S. 38, 51 (2007)). And in this context, “our review of the district

court’s specific legal determinations . . . is de novo, and our review of the district court’s specific

factual findings is for clear error.” Id.

B.

Newby also attacks the substantive reasonableness of his sentence, which we review for an

abuse of discretion. United States v. Sherrill, 972 F.3d 752, 769 (6th Cir. 2020). The party

disputing the substantive reasonableness of a sentence has the burden to show that the district court

abused its discretion when it imposed the sentence. Houston, 529 F.3d at 756. A district court

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abuses its discretion when it imposes a substantively unreasonable sentence. Amawi, 695 F.3d at

486. Generally, “a sentence is unreasonable ‘if it is selected arbitrarily, if it is based on

impermissible factors, if it fails to consider a relevant sentencing factor, or if it gives an

unreasonable amount of weight to any pertinent factor.’” United States v. Massey, 663 F.3d 852,

857 (6th Cir. 2011) (quoting United States v. Rosenbaum, 585 F.3d 259, 267 (6th Cir. 2009)).

Here, however, Newby challenges a below-Guidelines sentence caused by a downward variance.

Because of that wrinkle, “rather than asking whether considerations based upon § 3553(a) are

sufficiently compelling to justify the sentence, this court must determine whether the

considerations based upon § 3553(a) are so compelling as to necessitate a shorter sentence.”

United States v. Kirchhof, 505 F.3d 409, 414–15 (6th Cir. 2007). And, “[a]lthough it is not

impossible to succeed on a substantive-reasonableness challenge to a below-guidelines sentence,

defendants who seek to do so bear a heavy burden.” United States v. Greco, 734 F.3d 441, 450

(6th Cir. 2013).

C.

Finally, Newby also brings an ineffective-assistance-of-counsel claim. Such “claims are

mixed questions of law and fact, which [we] review de novo.” United States v. Levenderis, 806

F.3d 390, 401 (6th Cir. 2015) (citation omitted).

III.

The main issue in this appeal is whether the district court imposed a procedurally

unreasonable sentence on defendants when it allegedly miscalculated their Guidelines ranges by—

according to defendants—erroneously applying § 2K2.1(b)(6)(B)’s possession-of-a-firearm-in-

connection-with-another-felony-offense enhancement. For the reasons to follow, we conclude that

the district court correctly imposed the § 2K2.1(b)(6)(B) enhancement.

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The parties disagree on the applicable framework for evaluating the district court’s

imposition of the § 2K2.1(b)(6)(B) enhancement. On the one hand, there is the framework favored

by defendants. It comes from United States v. Sanders, 162 F.3d 396 (6th Cir. 1998). According

to Sanders, the “another felony offense” component of the Guideline “require[s], as a condition

precedent to the application of . . . [the] enhancement, a finding of a separation of time between

the offense of conviction and the other felony offense, or a distinction of conduct between that

occurring in the offense of conviction and the other felony offense.” Id. at 400. And defendants

assert that in this case, there is no other offense that was separated temporally or involved different

conduct from the offense of conviction.

On the other hand, there is the framework preferred by the government. In 2006 (after

Sanders), the Sentencing Commission added commentary—Application Note 14(B)—to the

Guideline “to resolve a circuit split over the application of § 2K2.1(b)(6) when a defendant’s

conduct constituted another felony offense in the nature of burglary or a drug offense.”1 United

States v. Krumwiede, 599 F.3d 785, 787 (7th Cir. 2010). The commentary states that

§ 2K2.1(b)(6)(B) “appl[ies] . . . 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.” U.S.S.G. § 2K2.1 cmt. n.14(B).

We take care to remember that “[i]f it is not necessary to decide more, it is necessary not

to decide more[.]” BellSouth Telecomms., Inc. v. Farris, 542 F.3d 499, 505 (6th Cir. 2008)

1 The commentary also postdates another one of our cases—United States v. McDonald— that defendants cite to support their position on whether a contemporaneous burglary can satisfy § 2K2.1(b)(6)(B)’s “another felony offense” requirement. 165 F.3d 1032, 1037 (6th Cir. 1999), abrogated by United States v. Jackson-Randolph, 282 F.3d 369 (6th Cir. 2002).

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(quoting PDK Labs. Inc. v. U.S. D.E.A., 362 F.3d 786, 799 (D.C. Cir. 2004) (Roberts, J.,

concurring in part and concurring in the judgment)). And to decide this appeal, we need not resolve

which framework controls. As our subsequent analysis will show, the district court’s application

of the § 2K2.1(b)(6)(B) enhancement was correct under the Sanders framework.

In Sanders, we held that the “term ‘another felony offense’ would at least require, as a

condition precedent to the application of . . . [the § 2K2.1(b)(6)(B)] enhancement, a finding of a

separation of time between the offense of conviction and the other felony offense, or a distinction

of conduct between that occurring in the offense of conviction and the other felony offense.”

162 F.3d at 400. Head and Newby pleaded guilty to multiple felony theft offenses. One of their

felonies of conviction occurred on July 2, 2017, when they stole firearms from a gun store in Ohio.

Six days later, on July 8, 2017, Head and Newby committed another felony offense, when they

burglarized a gun store in Kentucky, again stealing firearms. Neither party disputes that the

burglary in Kentucky qualifies as a felony offense. Thus, due to the substantial separation of time

between Head’s and Newby’s offense of conviction and their other felony offense, Head’s and

Newby’s conduct was eligible for the § 2K2.1(b)(6)(B) enhancement under the Sanders

framework.

Additionally, Head’s and Newby’s conduct satisfies § 2K2.1(b)(6)(B)’s requirement that

defendants must have “used or possessed any firearm . . . in connection with another felony

offense[.]” U.S.S.G. § 2K2.1(b)(6)(B) (emphasis added). Application Note 14(E) explains when

the relationship between the offense of conviction and the other felony offense satisfies

§ 2K2.1(b)(6)’s “in connection with” requirement. U.S.S.G. § 2K2.1 cmt. n.14(E)(ii). When two

“unlawful possession offenses” are “part of the same course of conduct or common scheme or

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plan,” then § 2K2.1(b)(6)(B) applies. U.S.S.G. § 2K2.1 cmt. n.14(E)(ii) (citing U.S.S.G.

§ 1B1.3(a)(2) & cmt. n.5(B)). The district court correctly found that defendants’ conduct

constituted a “crime spree,” which establishes that the thefts and burglary were a part of the “same

course of conduct or common scheme or plan.” U.S.S.G. § 2K2.1 cmt. n.14(E)(ii).

Because defendants’ gun thefts and felony burglary were separated by time and were parts

of the same course of conduct, the district court’s application of the § 2K2.1(b)(6)(B) enhancement

was correct under Sanders.2 We leave for a later day which framework—Sanders or Application

Note 14(B)—will determine whether a felony burglary that occurs contemporaneously with a

firearm possession constitutes “another felony offense” for the purposes of the § 2K2.1(b)(6)(B)

enhancement.

IV.

Defendants also argue that applying § 2K2.1(b)(6)(B) to them constituted impermissible

double counting, which rendered their sentences procedurally unreasonable. “[D]ouble counting

occurs when precisely the same aspect of the defendant’s conduct factors into his sentence in two

separate ways.” United States v. Battaglia, 624 F.3d 348, 351 (6th Cir. 2010) (alteration in

original) (citation omitted). “But no double counting occurs if the defendant is punished for

distinct aspects of his conduct.” Id. If double counting occurred, “we must determine if the double

counting [wa]s impermissible.” Id. Moreover, impermissible double counting renders a sentence

2 Our review of Head’s preserved procedural-reasonableness challenge reveals that it was not error for the district court to apply the § 2K2.1(b)(6)(B) sentence enhancement to defendants. Accordingly, Newby’s unpreserved procedural-reasonableness challenge regarding § 2K2.1(b)(6)(B) does not survive plain-error review, which requires—among other things— Newby to prove that the district court committed an error. United States v. Vonner, 516 F.3d 382, 386 (6th Cir. 2008) (en banc).

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procedurally unreasonable because it improperly calculates a defendant’s Guidelines range. See

id.

Newby argues that double counting occurred when the district court used the same

conduct—the thefts of the firearms—to trigger an enhancement under § 2K2.1(b)(4)(A) and an

enhancement under § 2K2.1(b)(6)(B). Head contends that double counting happened because the

district court used the same conduct—stealing the guns—to set his original base offense level and

as a basis for applying § 2K2.1(b)(6)(B)’s enhancement. Both defendants are wrong. The conduct

that the district court relied on to apply § 2K2.1(b)(6)(B) was defendants’ state-law felony burglary

of Mark’s Guns. Defendants were not charged with or convicted for burglarizing Mark’s Guns.

And the burglary conduct was not the same as the gun-theft conduct. Therefore, when the district

court applied § 2K2.1(b)(6)(B)’s enhancement, it did not engage in double counting (let alone

impermissible double counting).

V.

The penultimate issue in this appeal is whether Newby’s sentence was substantively

unreasonable. It was not.

The heart of Newby’s argument is that his sentence was substantively unreasonable

because he received the same sentence as his co-defendant despite supposedly material differences

between them. Newby identifies two groups of differences. First, Head was allegedly more

culpable than Newby. Head pleaded guilty to each count that Newby pleaded guilty to, but Head

also pleaded guilty to two additional counts. Moreover, Head “made overt acts to sell the stolen

firearms to third parties,” but Newby did not. Second, Head “greatly influenced and manipulated”

Newby during the crimes and Newby was “more susceptible to this offense than” Head.

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Although Newby identifies some differences between himself and his co-defendant, he

does not explain why those differences show that his sentence was arbitrary or based on at least

one impermissible factor. He also does not articulate how the district court failed to consider at

least one relevant factor or gave an unreasonable amount of weight to at least one relevant factor.

“[A]ppellate courts are rarely the time or the place to re-weigh the § 3553(a) factors.” United

States v. Patterson, 535 F. App’x 509, 510 (6th Cir. 2013). Contrary to Newby’s assertions, the

district court considered and accounted for Newby’s vulnerabilities: “I do appreciate the fact that

you probably, all else being equal, were more susceptible to this offense than your brother may

have been, based upon the facts and circumstances of your upbringing, the situation that you found

yourself in.” And the district court gave Newby a larger downward variance than the one it gave

Head.3 Regarding the culpability point, the district court imposed an enhancement on Head for

making overt acts to sell guns; Newby, however, did not receive that enhancement. “The district

court listened to . . . [Newby’s] arguments for a lower sentence” and it “found them convincing

but only to a point.” Patterson, 535 F. App’x at 510. Ultimately, Newby’s substantive-

unreasonableness argument fails because nothing he has identified was “so compelling as to

necessitate a shorter sentence.” Kirchhof, 505 F.3d at 415 (emphasis added).

VI.

The last issue is Newby’s ineffective-assistance-of-counsel claim. He asserts that his trial

attorney rendered ineffective assistance by failing to object to § 2K2.1(b)(6)(B)’s enhancement.

“As a general rule, a defendant may not raise ineffective assistance of counsel claims for the first

time on direct appeal, since there has not been an opportunity to develop and include in the record

Newby’s Guidelines range (121 months to 151 months) was slightly higher than Head’s 3

(120 months to 150 months).

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evidence bearing on the merits of the allegations.”4 Levenderis, 806 F.3d at 401 (citation omitted).

We have the option, however, to “grant an exception to this general rule where the parties have

adequately developed the record so as to enable us to reach the merits of the claim.” Id. To justify

a departure from the default rule, Newby asserts (1) that it “is clear from the lower court

record . . . that Mr. Newby’s co-defendant’s counsel felt strongly about the merits of raising this

objection prior to sentencing and spent most of his time at the sentencing hearing arguing this

objection,” and (2) “[i]t would have been very easy for Mr. Newby’s trial counsel to have joined

in with Mr. Head’s counsel in raising this objection, but he did not do so.” Newby, however,

points to nothing in the record that “provide[s] any information about why [his] lawyer[ ] chose to

take the action[ ] [he] took.” United States v. Williams, 753 F.3d 626, 637 (6th Cir. 2014). We

have, therefore, “no way of knowing whether a seemingly unusual or misguided action by counsel

had a sound strategic motive or was taken because the counsel’s alternatives were even worse.”

Id. (quoting Massaro v. United States, 538 U.S. 500, 505 (2003)). Accordingly, we decline to

address this claim.

VII.

For the foregoing reasons, we affirm the district court’s judgments.

4 A motion filed pursuant to 28 U.S.C. § 2255—rather than a direct appeal—“is generally the preferred mode for raising a claim of ineffective assistance of counsel.” United States v. Ferguson, 669 F.3d 756, 762 (6th Cir. 2012). Section 2255 is typically the favored method of bringing an ineffective-assistance-of-counsel claim because it “allows the claim to be litigated in the first instance in the district court, which is ‘the forum best suited to developing the facts necessary to determining the adequacy of representation’ because it may take testimony from witnesses including the defendant, prosecution, and counsel.” Id.

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GRIFFIN, Circuit Judge, concurring.

I join the per curiam opinion. I write separately to explain my views regarding the interplay

between our court’s decision in United States v. Sanders, 162 F.3d 396 (6th Cir. 1998), and the

Sentencing Commission’s commentary regarding § 2K2.1(b)(6)(B)’s “another felony offense”

enhancement. U.S.S.G. § 2K2.1 cmt. n. 14(B).

As the per curiam opinion notes, the parties disagree on the legal standard for analyzing

whether the district court abused its discretion when it imposed the § 2K2.1(b)(6)(B) enhancement.

We saw this conflict between Sanders and Application Note 14(B) coming at least as far back as

2014 in United States v. Kilgore, 749 F.3d 463 (6th Cir. 2014). In Kilgore, the defendant “was

performing community service at a police station . . . when he stole two unloaded firearms from

an evidence room.” Id. He was convicted “for being a felon in possession of a firearm” and the

district court applied § 2K2.1(b)(6)(B)’s enhancement. Id. The defendant argued that the district

court incorrectly applied the enhancement to him because the facts of his case did not satisfy the

requirement—articulated in Sanders—that the “another felony offense” “be separate and distinct

conduct from the underlying offense.” Id. at 464. We agreed and reasoned that because “[t]he

‘another felony offense’ language that triggered application of the four-level enhancement was the

theft of the pistols that converted [the defendant] into a felon-in-possession with a two-level

enhancement for theft,” “[t]here [wa]s no ‘another felony offense’ on which to base another

enhancement on top of the two-level enhancement.” Id. However, we also acknowledged the

existence of Application Note 14(B) and remarked, “[b]ecause [the defendant] did not commit a

burglary, the Sanders interpretation of the enhancement still applies.” Id. at 464 n.4. We therefore

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signaled our awareness that the commentary’s interpretation—not Sanders’s—would apply when

the “another felony offense” was burglary.

Aside from the foreshadowing in Kilgore, the Supreme Court has determined that

“commentary 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.” Stinson v. United States, 508 U.S. 36, 38 (1993). Moreover, “prior

judicial constructions of a particular guideline cannot prevent the Commission from adopting a

conflicting interpretation [such as through commentary] that satisfies the standard” articulated in

Stinson. Id. at 46. This court has followed suit: “Commentary [to the Sentencing Guidelines]

binds courts only ‘if the guideline which the commentary interprets will bear the construction.’”

United States v. Havis, 927 F.3d 382, 386 (6th Cir. 2019) (en banc) (quoting Stinson, 508 U.S. at

46).

The Government argues that Application Note 14(B) should control because the Guideline

it interprets can bear its construction. Defendants disagree. The United States has the better of

the dispute.

First, nothing in the Guideline’s text precludes the “another offense” from being a

contemporaneous offense. The ordinary meaning of “another” is “different or distinct from the

one first considered.” Another, Merriam-Webster.com, https://www.merriam-

webster.com/dictionary/another (last visited Dec. 29, 2020). A person can commit burglary

without finding and taking a firearm.1 Likewise, a person can find and take a firearm without

1 Take, for example, the Supreme Court’s articulation of generic burglary: “an unlawful or unprivileged entry into, or remaining in, a building or other structure, with intent to commit a crime.” Greer v. United States, 938 F.3d 766, 771 (6th Cir. 2019) (quoting Taylor v. United States, 495 U.S. 575, 598 (1990)). Also consider the most severe form of Kentucky state-law burglary:

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committing burglary.2 Therefore, burglary on the one hand, and finding and taking a gun on the

other hand, are “different” and “distinct” acts.

“Second, the fact that [Application Note 14(B)] resolved a circuit split evidences sufficient

difference of opinion to belie the claims of plain error and inconsistency. The breadth of opinion

among appellate judges suggests that the guideline is subject to different interpretations.” United

States v. Keller, 666 F.3d 103, 109 (3d Cir. 2011) (footnote omitted). Third, multiple circuit courts

have concluded that the Guideline will bear the commentary’s construction.3 When the

appropriate case is presented, we should join them.

Defendants offer another reason for why Sanders’s interpretation—rather than Application

Note 14(B)’s—should apply: the rule of lenity. Under that rule, “the Court will not interpret a

A person is guilty of burglary in the first degree when, with the intent to commit a crime, he knowingly enters or remains unlawfully in a building, and when in effecting entry or while in the building or in the immediate flight therefrom, he or another participant in the crime:

(a) Is armed with explosives or a deadly weapon; or

(b) Causes physical injury to any person who is not a participant in the crime; or

(c) Uses or threatens the use of a dangerous instrument against any person who is not a participant in the crime.

Ky. Rev. Stat. Ann. § 511.020(1)(a). Neither definition of burglary requires a person to find and take a firearm. 2 For instance, in Kilgore, the defendant stole two firearms without also committing burglary. 749 F.3d at 463–64 & n.4. 3 See, e.g., Keller, 666 F.3d at 109 (“[W]e are satisfied that [Application Note 14(B)], which clarified that a burglary of firearms counts as ‘another felony offense,’ is not plainly erroneous or inconsistent with [U.S.S.G.] § 2K2.1(b)(6).”); United States v. Hill, 563 F.3d 572, 581 (7th Cir. 2009) (“Application Note 14(B)(i) is consistent with the language of Guideline 2K2.1(b)(6).”); United States v. Morris, 562 F.3d 1131, 1136 (10th Cir. 2009) (“[W]e hold that Application Note 14(B) and § 2K2.1(b)(6) are not inconsistent.”).

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federal statute so as to increase the penalty it places on an individual when such an interpretation

can be no more than a guess as to what Congress intended.” United States v. Galaviz, 645 F.3d

347, 361–62 (6th Cir. 2011) (citation omitted). Although the rule of lenity normally arises in the

context of interpreting statutes, we have the option to apply it in the context of interpreting the

Guidelines. United States v. Boucha, 236 F.3d 768, 775 (6th Cir. 2001). The rule of lenity,

however, “is generally inapplicable unless, ‘after a court has “seize[d][on] every thing from which

aid can be derived,” it is still left with an ambigu[ity].’” Id. at 776 (alterations in original) (quoting

Chapman v. United States, 500 U.S. 453, 463 (1991)). Sanders itself agreed and acknowledged

that “the rule of lenity should clearly be utilized to prevent the application of the enhancement

where . . . there is no clear language in the Guideline or the Commentary to support that increased

sentence.” 162 F.3d at 402. But unlike the Sanders court, we have the benefit of unambiguous

commentary language—Application Note 14(B)—that supports applying the enhancement.

“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 defendant

did not engage in any other conduct with that firearm.’” United States v. Krumwiede, 599 F.3d

785, 790 (7th Cir. 2010) (italicization omitted) (quoting U.S.S.G. § 2K2.1 cmt. n. 14(B)).

I, therefore, would reject defendants’ rule-of-lenity argument.

For the reasons given above, Application Note 14(B)’s construction of § 2K2.1(b)(6)(B)

should abrogate Sanders. That Guideline applies if a defendant “possessed any firearm or

ammunition in connection with another felony offense.” U.S.S.G. § 2K2.1(b)(6)(B). Moreover,

§ 2K2.1(b)(6)(B) applies “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

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firearm during the course of the burglary.” U.S.S.G. § 2K2.1 cmt. n. 14(B). That is the situation

in this case. Defendants’ visit to Mark’s Guns was a felony burglary; no one disputes that. And

during that burglary, defendants found and took firearms; that is also uncontested. Accordingly,

the district court properly applied the § 2K2.1(b)(6)(B) enhancement and this procedural

unreasonableness challenge fails. See Keller, 666 F.3d at 109; Krumwiede, 599 F.3d at 790–91;

Hill, 563 F.3d at 581–82; Morris, 562 F.3d at 1136–37.

In a future case, where a defendant’s “another felony offense” is a contemporaneous felony

burglary, and the legal framework issue is material (outcome determinative), we should hold that

Application Note 14(B) abrogates Sanders and controls whether § 2K2.1(b)(6)(B)’s sentence

enhancement applies.

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