United States v. Stephen Simmons

143 F.4th 200

• Court: Court of Appeals for the Fourth Circuit
• Decided: July 7, 2025
• Docket: 23-4607
• Status: Published

Opinion

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PUBLISHED

UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT

No. 23-4607

UNITED STATES OF AMERICA,

Plaintiff - Appellee,

v.

STEPHEN SIMMONS,

Defendant - Appellant.

Appeal from the United States District Court for the Southern District of West Virginia at Huntington. Robert C. Chambers, District Judge. (3:23-cr-00021-1)

Argued: September 27, 2024 Decided: July 7, 2025

Before GREGORY, QUATTLEBAUM and BERNER, Circuit Judges.

Vacated and remanded by published opinion. Judge Berner wrote the opinion, in which Judge Gregory and Judge Quattlebaum joined.

ARGUED: Lex A. Coleman, OFFICE OF THE FEDERAL PUBLIC DEFENDER, Charleston, West Virginia, for Appellant. Troy Daniel Adams, OFFICE OF THE UNITED STATES ATTORNEY, Charleston, West Virginia, for Appellee. ON BRIEF: Wesley P. Page, Federal Public Defender, Jonathan D. Byrne, Appellate Counsel, OFFICE OF THE FEDERAL PUBLIC DEFENDER, Charleston, West Virginia, for Appellant. William S. Thompson, United States Attorney, OFFICE OF THE UNITED STATES ATTORNEY, Charleston, West Virginia, for Appellee. USCA4 Appeal: 23-4607 Doc: 45 Filed: 07/07/2025 Pg: 2 of 18

BERNER, Circuit Judge:

Stephen Simmons pled guilty to violating the National Firearms Act by possessing

an unregistered “auto sear,” a device that enables semi-automatic firearms to fire at the

same rate as machineguns. On the day of his offense, Simmons tested positive for

methamphetamine and marijuana. Though Simmons was not prosecuted for any drug-

related crime, the district court applied multiple sentencing enhancements that penalized

Simmons for possessing the unregistered auto sear—as well as numerous additional auto

sears, silencers, and firearms—as an unlawful user of controlled substances. Unlawful

users of controlled substances are prohibited by statute from possessing firearms.

Simmons asserts that the application of these sentencing enhancements violated his

Second Amendment rights. He argues that unlawful users of controlled substances

maintain the constitutional right to keep and bear arms, and that the Government violated

the Second Amendment by penalizing him for exercising this right. The sentencing

enhancements Simmons challenges fall into two categories: some concern his possession

of items prohibited under the National Firearms Act (the unregistered auto sears and

silencers), whereas others concern his possession of firearms that are not covered by the

Act. In addition to his Second Amendment challenge, Simmons asserts that “unlawful user

of . . . any controlled substance” is an impermissibly vague category, in violation of the

Due Process Clause.

We reject both constitutional arguments. Because Simmons concedes that he has no

constitutional right to possess auto sears or silencers, he cannot sustain a Second

Amendment challenge. Simmons’s vagueness claim also fails. Simmons was, without

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question, an “unlawful user” of controlled substances at the time of his arrest. As a result,

he cannot challenge that phrase as unconstitutionally vague.

Though we hold that Simmons’s constitutional challenges lack merit, we agree with

his contention that he was sentenced under an improper Sentencing Guidelines range. The

district court erred in applying sentencing enhancements that penalized Simmons for

possessing ordinary firearms not covered by the National Firearms Act, as those firearms

were not relevant to the offense for which he was convicted. We thus vacate Simmons’s

sentence and remand for resentencing.

I. Background

In January 2023, agents from the Bureau of Alcohol, Tobacco, Firearms and

Explosives (ATF) executed a search warrant on Stephen Simmons’s home. There they

discovered 10 unregistered items covered by the National Firearms Act (NFA Firearms):

four auto sears and six silencers. 1 The ATF agents also found 33 firearms not covered by

the NFA (Non-NFA Firearms), as well as evidence of unlawful drug use.

1 Under the National Firearms Act, the term “firearm” includes, among other items, “a machinegun” and “any silencer.” 26 U.S.C. § 5845(a)(6), (7). The Act further defines “machinegun” to include “any part designed and intended solely and exclusively, or combination of parts designed and intended, for use in converting a weapon into a machinegun, and any combination of parts from which a machinegun can be assembled if such parts are in the possession or under the control of a person.” Id. § 5845(b). Simmons does not challenge the Government’s classification of auto sears as “machineguns.” Two of the four discovered auto sears were designed to be affixed to rifles. The other two, commonly referred to as “Glock Switches,” were designed to be affixed to Glock handguns.

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The ATF agents arrested Simmons. That same day, Simmons admitted that he had

been using methamphetamine and Adderall during the prior two to three months. He also

tested positive for methamphetamine and marijuana. Methamphetamine, marijuana, and

Adderall are all controlled substances.

Simmons pled guilty to a single count of possessing an unregistered machinegun, in

violation of the National Firearms Act, 26 U.S.C. §§ 5861(d) and 5871. The charged item

was one of the four auto sears. Simmons was not charged with any drug-related offenses,

nor was he charged with possessing a firearm as a “prohibited person,” namely, an unlawful

user of controlled substances. See 18 U.S.C. § 922(g)(3).

A. Simmons’s Sentence

Simmons was subject to a higher advisory sentencing range under the United States

Sentencing Guidelines because of his status as an unlawful user of controlled substances.

The district court calculated Simmons’s total offense level as 25 and his criminal history

score as I, resulting in an advisory Sentencing Guidelines range of 57 to 71 months’

imprisonment. After applying a downward variance, the district court sentenced Simmons

to 36 months in prison. Simmons contests the district court’s application of three separate

Guidelines provisions that factored into his advisory Sentencing Guidelines range: (1) an

enhancement that penalizes the possession of NFA Firearms by “prohibited persons”; (2)

an enhancement that penalizes the unlawful possession of multiple firearms; and (3) an

enhancement that penalizes the possession of stolen firearms.

In calculating Simmons’s base offense level, the district court first applied an

enhancement that penalized Simmons for being a “prohibited person” at the time of the

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offense, U.S.S.G. § 2K2.1(a)(4)(B)(ii)(I) (“the (a)(4)(B) Guideline”). Possession of an

unregistered NFA Firearm yields a base offense level of 18. See id. § 2K2.1(a)(5). If the

defendant was a “prohibited person” at the time of the offense, however, the offense level

increases to 20. Because the district court determined that Simmons’s unlawful use of

controlled substances made him a “prohibited person” under the (a)(4)(B) Guideline, the

district court set Simmons’s base offense level at 20.

The district court next imposed on Simmons a sentencing enhancement that

penalized him for unlawfully possessing multiple firearms at the time of his arrest. 2 Under

that enhancement, U.S.S.G. § 2K2.1(b)(1) (“the (b)(1) Enhancement”), a defendant’s

offense level is increased “[i]f the offense involved three or more firearms.” Id. §

2K2.1(b)(1) (emphasis added). The (b)(1) Enhancement sets a schedule of incremental

increases that correspond to the total number of firearms involved in the offense. Id. §

2K2.1(b)(1)(A)-(E). If the offense involved three to seven firearms, for example, the

offense level increases by two. Id. § 2K2.1(b)(1)(A). If eight to twenty-four firearms were

involved, the offense level increases by four. Id. § 2K2.1(b)(1)(B). In calculating the total

number of firearms for purposes of the (b)(1) Enhancement, courts are instructed to count

2 Under the relevant Sentencing Guideline, U.S.S.G. § 2K2.1(b)(1), “firearm” is defined in accordance with 18 U.S.C. § 921(a)(3) as: “(A) any weapon (including a starter gun) which will or is designed to or may readily be converted to expel a projectile by the action of an explosive; (B) the frame or receiver of any such weapon; (C) any firearm muffler or firearm silencer; or (D) any destructive device.” Simmons does not contest whether auto sears are properly considered firearms within the meaning of 18 U.S.C. § 921(a)(3).

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only those firearms whose possession was both (1) unlawful and (2) relevant to the offense

of conviction. U.S.S.G §§ 2K2.1 cmt. n.5, 1B1.1, cmt. n.1(I).

In applying the (b)(1) Enhancement, the district court counted all 43 firearms found

in Simmons’s home at the time of his arrest. This resulted in a six-point offense level

increase. Because Simmons was an unlawful user of controlled substances, it was unlawful

for him to possess any firearm. See 18 U.S.C. § 922(g)(3) (Section 922(g)(3)). Thus, all 43

firearms satisfied the first prong of the (b)(1) Enhancement test. The district court did not,

however, separately analyze the second prong—whether Simmons’s possession of each of

the 43 firearms was relevant to his NFA conviction.

Third, the district court applied a sentencing enhancement that increases a

defendant’s offense level by two points if he is found to be in possession of a stolen firearm,

U.S.S.G. § 2K2.1(b)(4)(A) (“the (b)(4)(A) Enhancement”). Like the (b)(1) Enhancement,

the (b)(4)(A) Enhancement applies only to firearms found in a defendant’s possession that

are relevant to the offense of conviction. See United States v. Cole, 525 F.3d 656, 660 (8th

Cir. 2008); United States v. Roxborough, 99 F.3d 212, 214–16 (6th Cir. 1996); United

States v. Gonzales, 996 F.2d 88, 92 n.6 (5th Cir. 1993).

II. Analysis

Simmons argues that unlawful users of controlled substances maintain the

constitutional right to keep and bear arms. He asserts that under the test articulated by the

Supreme Court in New York State Rifle & Pistol Ass’n, Inc. v. Bruen, the Second

Amendment prohibits the imposition of any sentencing enhancement that penalizes him

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for exercising that right. See 597 U.S. 1, 17 (2022). Simmons also contends that the phrase

“unlawful user of . . . any controlled substance” in Section 922(g)(3) is unconstitutionally

vague, in violation of the Due Process Clause of the Fifth Amendment. We take each

argument in turn.

A. The (a)(4)(B) Guideline

1. Second Amendment Challenge

Simmons mounts a Second Amendment challenge to the district court’s application

of the (a)(4)(B) Guideline, which penalizes “prohibited persons” for offenses involving

NFA Firearms. Because Simmons misapprehends the relationship between the (a)(4)(B)

Guideline and Section 922(g)(3), however, his challenge takes a circuitous route. Simmons

contests the imposition of the (a)(4)(B) Guideline by arguing that Section 922(g)(3), which

the (a)(4)(B) Guideline incorporates by reference, violates the Second Amendment under

the test articulated in Bruen. The (a)(4)(B) Guideline defines “prohibited person” as “any

person described in 18 U.S.C. § 922(g).” U.S.S.G. § 2K2.1 cmt. n.3. Under Section

922(g)(3), “prohibited person” includes any person “who is an unlawful user of . . . any

controlled substance.” Simmons challenges this Section 922(g)(3) restriction as

inconsistent with the Second Amendment, and he argues that if we find Section 922(g)(3)

unconstitutional, he would no longer be considered a “prohibited person” under the

(a)(4)(B) Guideline. This argument confuses the relationship between the two provisions.

As this court has explained, Simmons would continue to be a “prohibited person”

within the meaning of the (a)(4)(B) Guideline regardless of whether Section 922(g)(3) is

found to violate the Second Amendment. See United States v. Myers, 553 F.3d 328, 330-

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31 (4th Cir. 2009). That is because the definition of “prohibited person” for purposes of

the (a)(4)(B) Guideline is determined on the basis of the referenced statutory definition at

the time the relevant provision of the Sentencing Guidelines was enacted. See id.

(“Applying this principle requires us to read the [ ] enhancement as if it had reproduced in

the text of the enhancement itself the list of qualifying weapons set out in [the statute].”)

Thus, unless and until a new Sentencing Guidelines Manual takes effect, the definition of

“prohibited person” for purpose of the (a)(4)(B) Guideline includes “unlawful user[s] . . .

of controlled substance[s]” such as Simmons regardless of the constitutional viability of

Section 922(g)(3).

Simmons’s challenge cannot succeed, then, unless the imposition of the (a)(4)(B)

Guideline itself—which applies solely to prohibited persons in possession of NFA

Firearms—violated the Second Amendment as applied to Simmons. Yet Simmons

concedes that the Second Amendment does not protect anyone’s right to possess an NFA

Firearm. As a result, he has foreclosed any Second Amendment challenge to the (a)(4)(B)

Guideline. The (a)(4)(B) Guideline penalized Simmons’s possession of auto sears and

silencers—NFA Firearms that, by Simmons’s own admission, fall outside the ambit of the

Second Amendment’s protection. The Second Amendment cannot shield Simmons from

penalties for firearms that he concededly had no constitutional right to possess.

Even if Simmons had not made this concession, any Second Amendment challenge

to the (a)(4)(B) Guideline (and by extension, the National Firearms Act) would need to

confront the Supreme Court’s recognition that “the Second Amendment right, whatever its

nature, extends only to certain types of weapons.” District of Columbia v. Heller, 554 U.S.

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570, 623 (2008) (discussing United States v. Miller, 307 U.S. 174 (1939)). The Court in

Heller reiterated that arms in common use for a lawful purpose enjoy Second Amendment

protection, but “dangerous and unusual weapons” do not. Heller, 554 U.S. at 627. Relevant

here, “[w]e know from Supreme Court precedent that . . . machineguns are not in common

use for a lawful purpose.” United States v. Price, 111 F.4th 392, 403 (4th Cir. 2024). As

mentioned, an auto sear—the NFA Firearm Simmons was charged with possessing—is a

part that converts a semiautomatic weapon into a machinegun. Simmons does not challenge

the Government’s classification of auto sears as machineguns, and unless auto sears are

entitled to Second Amendment protection that machineguns lack, Miller and Heller would

foreclose any constitutional challenge to his possession of auto sears. Further, this court in

an unpublished opinion recently held that silencers—the other NFA Firearms whose

possession rendered the (a)(4)(B) Guideline applicable to Simmons—are not “arms”

protected by the Second Amendment. United States v. Saleem, No. 23-4693, 2024 WL

5084523, at *2 (4th Cir. Dec. 12, 2024) (“While a silencer may be a firearm accessory, it

is not a ‘bearable arm’ that is capable of casting a bullet. Moreover, . . . it fails to serve a

core purpose in the arm’s function.”). Two of our sister circuits have reached the same

conclusion. See United States v. Peterson, 127 F.4th 941, 947 (5th Cir. 2025); United States

v. Cox, 906 F.3d 1170, 1186 (10th Cir. 2018). However, since no party presented this issue

to us in their briefs, oral arguments, or in Rule 28 letters, we do not reach it.

In sum, Simmons has failed to sustain a Second Amendment challenge to the

(a)(4)(B) Guideline. The constitutionality of Section 922(g)(3), which Simmons contests,

has no bearing on whether the (a)(4)(B) Guideline is constitutional or applicable to

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Simmons. The (a)(4)(B) Guideline solely penalized Simmons’s possession of NFA

Firearms—specifically, auto sears and silencers. Because Simmons concedes that he has

no Second Amendment right to possess NFA Firearms, we reject his Second Amendment

challenge to the imposition of the (a)(4)(B) Guideline.

2. Vagueness challenge

Simmons also argues that the application of the (a)(4)(B) Guideline violated his

rights under the Due Process Clause of the Fifth Amendment. He contends that the phrase

“unlawful user of . . . controlled substance[s]” in Section 922(g)(3)—which, as we

explained above, is incorporated by reference in the (a)(4)(B) Guideline—is

unconstitutionally vague.

This is not the first time this court has been asked to rule on the question of whether

Section 922(g)(3) is void for vagueness. In United States v. Claybrooks, a case involving a

similar challenge, this court explained that “when a defendant’s conduct falls squarely

within the confines of the disputed statute, he abandons the right to challenge that statute

for vagueness.” 90 F.4th 248, 255 (4th Cir. 2024) (citing Holder v. Humanitarian L.

Project, 561 U.S. 1, 18–19 (2010) (stating that a defendant who “engages in some conduct

that is clearly proscribed cannot complain of the vagueness of the law as applied to the

conduct of others”)).

Like the defendant in Claybrooks, Simmons falls “squarely within” the definition

of “unlawful user of . . . controlled substance[s].” Id. at 255. Simmons admitted that he had

been using Adderall and methamphetamine for several months prior to his arrest. On the

day of his arrest, he tested positive for methamphetamine and marijuana. On the basis of

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these facts, there can be no doubt that Simmons was an “unlawful user of . . . controlled

substance[s]” at the time of his offense. Accordingly, his vagueness challenge to Section

922(g)(3) is foreclosed.

B. Sentencing Enhancements

Simmons also argues that the application of the (b)(1) and (b)(4)(A) Enhancements

violated his rights under the Second Amendment. The (b)(1) Enhancement penalizes the

unlawful possession of multiple firearms; and the (b)(4)(A) Enhancement penalizes the

possession of stolen firearms. Because we conclude that neither enhancement is applicable

to Simmons, we need not reach the question of their constitutionality. Constitutional

avoidance principles restrain us from resolving constitutional challenges when a case can

be resolved on other grounds. See Ashwander v. Tenn. Valley Auth., 297 U.S. 288, 347

(1936) (Brandeis, J., concurring). This is such a case.

In applying the (b)(1) and (b)(4)(A) Enhancements, the district court penalized

Simmons for unlawfully possessing firearms that played no role in the offense for which

he was convicted. Simmons was convicted of a single count of possessing an unregistered

NFA Firearm. In sentencing Simmons, however, the district court counted all firearms

found in Simmons’s home at the time of his arrest toward the total number of firearms for

the purpose of the (b)(1) Enhancement: the 33 Non-NFA Firearms and the 10 NFA

firearms. [J.A. 222]. The stolen firearm that formed the basis of the (b)(4)(A) Enhancement

was also a Non-NFA Firearm unrelated to the offense of conviction. The district court erred

in applying these enhancements.

1. The (b)(1) Enhancement

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The government bears the burden of establishing by a preponderance of the

evidence that a sentencing enhancement is applicable. United States v. Henderson, 88 F.4th

534, 536 (4th Cir. 2023). In evaluating a district court’s application of a sentencing

enhancement, our standard of review “depends on whether a given dispute is mostly legal

or factual.” United States v. Pettus, 90 F.4th 282, 285 (4th Cir. 2024). “If the issue on

appeal turns primarily on a factual determination, we apply the ‘clearly erroneous’

standard. In contrast, if the issue turns primarily on the legal interpretation of a [G]uideline

term, the standard moves closer to de novo review.” Id. (internal quotation marks and

citations omitted).

In calculating the total number of firearms under the (b)(1) Enhancement, courts are

instructed to count only those firearms whose possession was both (1) unlawful and (2)

relevant to the offense of conviction, U.S.S.G. §§ 2K2.1 cmt. n.5; 1B1.1, cmt. n.1(I). 3 The

(b)(1) Enhancement provides that “[i]f the offense involved three or more firearms, increase

as follows: 25-99 [firearms] add 6 [points].” Id. § 2K2.1(b)(1)(C) (emphasis added). Courts

are instructed to “count only those firearms that were . . . unlawfully possessed.” Id. §

2K2.1 cmt. n.5. The firearms must also have been part of “the offense of conviction” or

“relevant conduct.” Id. § 1B1.1, cmt. n.1(I) (emphasis added). Accordingly, a firearm

should not be counted toward the (b)(1) Enhancement unless its possession was relevant

to the offense of conviction, regardless of whether its possession was lawful.

3 We defer to Guidelines commentary only where a Guideline is ambiguous. See United States v. Mitchell, 120 F.4th 1233, 1239 (4th Cir. 2024).

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We review de novo a district court’s interpretation of “the meaning and legal

components of the term ‘relevant conduct.’” United States v. McVey, 752 F.3d 606, 610

(4th Cir. 2014). A firearm is not “relevant to the offense of conviction” for the purpose of

the (b)(1) Enhancement unless it was part of “the same course of conduct or common

scheme or plan as the offense of conviction.” U.S.S.G. § 1B1.3(a)(2) (emphasis added).

“[O]ffenses may qualify as the ‘same course of conduct’ ‘if they are sufficiently connected

or related to each other as to warrant the conclusion that they are part of a single episode,

spree, or ongoing series of offenses.’” United States v. McDonald, 28 F.4th 553, 563–64

(4th Cir. 2022) (quoting U.S.S.G. § 1B1.3 cmt. n.5(B)(ii)). In determining whether a

sufficient connection exists, a court should evaluate “the degree of similarity of the

offenses, the regularity (repetitions) of the offenses, and the time interval between the

offenses.” U.S.S.G. § 1B1.3 cmt. n.5(B)(ii). “When one of the above factors is absent, a

stronger presence of at least one of the other factors is required.” McDonald, 28 F.4th at

564 (quoting U.S.S.G. § 1B1.3 cmt. n.5(B)(ii)).

In this case, “[b]ecause the facts . . . are undisputed, the only question before us is

one of Guidelines application, a question on which our standard of review approaches de

novo.” United States v. Fullilove, 388 F.3d 104, 106 (4th Cir. 2004). District courts often

conduct factually-intensive analysis in rendering a “relevant conduct” determination. See

McVey, 752 F.3d at 610 (“[T]he application of the relevant conduct standard typically

involves consideration of factual circumstances,” including “whether acts or omissions are

sufficiently similar; whether they are sufficiently regular; whether they are sufficiently

close in time; and whether, when one factor is particularly weak or even lacking, another

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factor compensates . . . . Such analysis constitutes factfinding that we review for clear

error.”) In concluding that Simmons’s possession of Non-NFA Firearms was “relevant

conduct” in relation to his National Firearms Act offense, however, the district court did

not undertake this analysis. Instead, it explained only that “I don’t think it’s a stretch at all

to conclude that with respect to people who violate gun laws, there is increased culpability

and greater risk to the public if that person is also engaged in illegal drug activity.” J.A. 79.

Because this cursory explanation falls short of the analysis required by the Guidelines, our

standard of review is de novo rather than clear error. See Fullilove, 388 F.3d at 106.

Simmons’s possession of Non-NFA Firearms was not “relevant” to his conviction

for possessing an unregistered NFA Firearm. Regardless of whether Simmons’s possession

of the Non-NFA Firearms was lawful, those firearms were not part of “the same course of

conduct or common scheme or plan as the offense of conviction.” U.S.S.G. § 1B1.3(a)(2).

The Government presented no evidence that Simmons’s drug use, which made it unlawful

for him to possess the Non-NFA Firearms under Section 922(g)(3), bore any “relationship

in time, purpose, or mode” to his violation of the National Firearms Act. See United States

v. Vargem, 747 F.3d 724, 732 (9th Cir. 2014).

In considering the “degree of similarity of the offenses,” U.S.S.G. § 1B1.3 cmt.

n.5(B)(ii), we conclude that the offense of possessing a Non-NFA Firearm as a prohibited

person is distinct from the offense of possessing an NFA Firearm. Whereas the former is

unlawful because of the status of the offender, the latter is unlawful because of the

characteristics of the weapon. The Ninth Circuit explained this distinction in Vargem.

There, the Ninth Circuit held that the defendant’s possession of Non-NFA Firearms—

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which was unlawful only because the defendant was temporarily subject to a domestic

violence restraining order—was not “relevant” to his conviction for possessing an

unregistered NFA Firearm. Id. at 730. As the court explained, the defendant’s conduct

could not be classified as a “single episode, spree, or ongoing series of offenses.” Id. at

732. “When those otherwise-lawful weapons were rendered suddenly unlawful by the

[restraining order], there was no common scheme or plan to possess all 28 weapons

unlawfully.” Id. at 731–32.

The district court misapplied the (b)(1) Enhancement. Weighing the “degree of

similarity of the offenses, the regularity (repetitions) of the offenses, and the time interval

between the offenses” yields the conclusion that the offenses were not sufficiently related.

U.S.S.G. § 1B1.3 cmt. n.5(B)(ii). Because the Government did not meet its burden of

showing that Simmons’s drug use was part of the “same course of conduct or common plan

as the offense of conviction”—possessing an unregistered auto sear—only the NFA

Firearms found in Simmons’s possession should have been counted toward the (b)(1)

Enhancement. On remand, the district court must reapply the (b)(1) Enhancement without

consideration of the Non-NFA Firearms found in Simmons’s possession. Because we

vacate the district court’s application of the (b)(1) Enhancement to Simmons’s sentence,

we need not reach his constitutional challenge to this enhancement.

2. The (b)(4)(A) Enhancement

The district court similarly erred in applying the (b)(4)(A) Enhancement. Here

again, the Government failed to meet its burden of showing that the stolen firearm, a Non-

NFA Firearm, was relevant to Simmons’s conviction. Like the (b)(1) Enhancement, the

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(b)(4)(A) Enhancement applies only to conduct that is both unlawful and related to the

offense of conviction. The (b)(4)(A) Enhancement does not apply to firearms that are not

sufficiently connected to the offense for which the defendant was convicted. See Cole, 525

F.3d at 660; Gonzales, 996 F.2d at 92 n.6; Roxborough, 99 F.3d at 214–16. The “relevant

conduct” analysis for the (b)(4)(A) Enhancement is no less demanding than the “relevant

conduct” analysis for the (b)(1) Enhancement. Yet the Government provided no evidence

that the stolen firearm found in Simmons’s possession was in any way connected to his

National Firearms Act offense. As a result, the district court should not have applied this

enhancement.

C. Harmless Error

The Government argues that, even if erroneous, the district court’s application of

the challenged Guidelines provisions was harmless. The government bears the burden of

establishing that a sentencing calculation error was harmless. United States v. Robinson,

460 F.3d 550, 557 (4th Cir. 2006). Because the district court applied a significant

downward variance from Simmons’s advisory Sentencing Guidelines range, the

Government contends that any error in the district court’s calculation was inconsequential.

The district court calculated Simmons’s total offense level as 25. It reached this total

by applying the (a)(4)(B) Guideline and the (b)(1) and (b)(4)(A) Enhancements. This

offense level, combined with Simmons’s criminal history score, resulted in an advisory

Guidelines range of 57-71 months’ imprisonment. Applying a downward variance, the

district court sentenced Simmons to 36 months’ imprisonment. On remand, when the

district court properly applies the (b)(1) Enhancement and no longer applies the (b)(4)(A)

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Enhancement, Simmons’s base offense level could be as low as 19. This corresponds to a

recommended Guidance range of 30-37 months.

Although Simmons’s current sentence of 36 months’ imprisonment falls within this

30-37 months Guidelines range, we are still required to vacate and remand for resentencing.

That is because when “a defendant is sentenced under an incorrect Guidelines range—

whether or not the defendant’s ultimate sentence falls within the correct range—the error

itself can, and most often will, be sufficient to show a reasonable probability of a different

outcome absent the error.” Molina-Martinez v. United States, 578 U.S. 189, 198 (2016).

This conclusion “follows from the essential framework the Guidelines establish for

sentencing proceedings” as “the sentencing court’s starting point and . . . initial

benchmark.” Id. (internal citation omitted). Had Simmons’s Guidelines range been

properly calculated at 30-37 months, we cannot divine whether the district court would

have sentenced Simmons at the high-end of that range. On remand, the district court may

well apply a downward variance, as it did at the initial sentencing.

Because the record does not provide us “with knowledge that the district court

would have reached the same result even if it had decided the [G]uidelines issue the other

way,” we cannot find the error was harmless. United States v. Montes-Flores, 736 F.3d

357, 370 (4th Cir. 2013) (alteration in original) (internal quotation omitted). The

Government failed to point to a single statement at sentencing indicating that the district

court would have imposed the same sentence if it had correctly applied the (b)(1)

Enhancement and not applied the (b)(4)(A) Enhancement. “The standard for

17 USCA4 Appeal: 23-4607 Doc: 45 Filed: 07/07/2025 Pg: 18 of 18

harmlessness—knowledge of an identical outcome—is a high bar, and in this situation we

are not so omniscient as to possess the requisite knowledge.” Id. at 371.

III. Conclusion

For the reasons set forth above, we reject Simmons’s challenge to the district court’s

application of the (a)(4)(B) Guideline. Because the district court incorrectly applied the

(b)(1) Enhancement and should not have applied (b)(4)(A) Enhancement, however, we

vacate Simmons’s sentence and remand for resentencing under the appropriate Guidelines

range.

VACATED AND REMANDED