F I L E D United States Court of Appeals Tenth Circuit UNITED STATES CO URT O F APPEALS October 31, 2006 TENTH CIRCUIT Elisabeth A. Shumaker __________________________ Clerk of Court
U N ITED STA TES O F A M ER ICA,
Plaintiff-Appellee,
v. No. 06-2047 (D . N.M .) ED W A RD PA U L WILSO N , (D.C. No. CR-05-1441-JH)
Defendant-Appellant. ____________________________
OR D ER AND JUDGM ENT *
Before TA CH A, Chief Circuit Judge, BARRETT, and BROR BY, Senior Circuit Judges.
After examining the briefs and appellate record, this panel has determined
unanimously that oral argument would not materially assist the determination of
this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1.9(G). The case is
therefore ordered submitted without oral argument.
Appellant Edward Paul W ilson pled guilty to three counts of being a felon
in possession of a firearm in violation of 18 U.S.C. §§ 922(g)(1) and 924(a)(2)
* This order and judgment is not binding precedent except under the doctrines of law of the case, res judicata and collateral estoppel. The court generally disfavors the citation of orders and judgments; nevertheless, an order and judgment may be cited under the terms and conditions of 10th Cir. R. 36.3. (counts one, two, and four); one count of transporting a stolen vehicle in
interstate commerce in violation of 18 U.S.C. §§ 2(a) and 2312 (count three); four
counts of fraud in connection with identification documents in violation of 18
U.S.C. §§ 2(a) and 1028(a)(3) (counts five through eight); one count of the use of
document-making implements used in the production of false identification
documents in violation of 18 U.S.C. §§ 2(a) and 1028(a)(5) (count nine); and one
count of fraud in connection with an access device in violation of 18 U.S.C.
§§ 2(a) and 1029(a)(3) (count ten). He now appeals his seventy-month sentence,
contending a four-level increase to his offense level under United States
Sentencing Guidelines (“Guidelines” or “U.S.S.G.”) § 2K2.1(b)(5) should not
apply because he did not possess firearms in connection with another felony
offense. W e exercise jurisdiction pursuant to 18 U.S.C. § 3742 and 28 U.S.C.
§ 1291 and affirm M r. W ilson’s convictions and sentences.
The criminal counts to which M r. W ilson pled guilty occurred on different
dates, including two incidents occurring on June 10, 2002, and September 22 and
23, 2002, resulting in guilty pleas to two counts of being a felon in possession of
a firearm in violation of 18 U.S.C. §§ 922(g)(1) and 924(a)(2). The probation
officer who prepared M r. W ilson’s presentence report did not rely on either of
these two incidents or counts for the purpose of recommending the four-level
offense increase under U.S.S.G. § 2K2.1(b)(5) for possession of a firearm in
connection with another felony. Instead, the probation officer relied on a third
-2- incident, which occurred between M ay 18 and M ay 28, 2003, resulting in counts
three through ten, to which M r. W ilson pled guilty, for the purpose of applying
the four-level offense increase of which M r. W ilson now complains. The relevant
facts are as follow s.
On or before M ay 21, 2003, Brandon Kerby paid M r. W ilson $500 to drive
a stolen Chevrolet M alibu from New M exico to Colorado. M r. W ilson and a
companion, Adam R ussell, arrived in Colorado in the stolen vehicle on M ay 21,
2003, and rented a room at a hotel in Greenwood Village, Colorado. On M ay 27,
2003, M r. Kerby arrived at the hotel room. On M ay 28, 2003, Greenwood
Village Police Officers investigated the report of a stolen black Jeep, which they
located in the hotel parking lot, and made contact with the driver of that stolen
vehicle: Adam Russell, who shared the hotel room with M r. W ilson. In the same
parking lot they also made contact with the other hotel roommate, M r. Kerby,
who was driving another stolen vehicle, a Chevrolet Tahoe. At that time, M r.
Russell possessed a loaded handgun, and the stolen Tahoe driven by M r. Kerby
contained two stolen pistols and a fanny pack containing a revolver. Parked fifty
yards away from these vehicles w as the stolen Chevrolet M alibu previously
driven across state lines by M r. W ilson.
Officers then made contact with M r. W ilson in the hotel room and during
their search discovered two handguns – a Taurus .45 caliber semi-automatic pistol
and a Taurus 9mm semi-automatic pistol – on the floor betw een the two beds.
-3- The room also contained several fraudulent New M exico and Texas drivers’
licenses; stolen credit cards, social security cards, Department of Energy
identification cards, and New M exico motor vehicle holograms; various
computers, scanners, printers, and cameras; various laminating sheets, labels,
photo and print paper; and other related computer equipment and software, all of
which could be used in the production of fraudulent identification documents.
M r. W ilson later admitted in his plea agreement he knew the vehicle he drove
across state lines was stolen and that he manufactured false identifications and
documents for himself and others by using a computer and scanner, and by
utilizing stolen credit cards, drivers’ licenses, and other federal identification
documents.
Based on the circumstances surrounding the M ay 2003 incident, authorities
charged M r. W ilson with one count of unlawfully transporting a stolen motor
vehicle in interstate commerce in violation of 18 U.S.C. §§ 2(a) and 2312 (count
three); being a felon in possession of firearms in violation of 18 U.S.C.
§§ 922(g)(1) and 924(a)(2) (count four); four counts of fraud in connection with
identification documents in violation of 18 U.S.C. §§ 2(a) and 1028(a)(3) (counts
five through eight); one count of the use of document-making implements used in
the production of false identification documents in violation of 18 U.S.C. §§ 2(a)
and 1028(a)(5) (count nine); and one count of fraud in connection with an access
device in violation of 18 U.S.C. §§ 2(a) and 1029(a)(3) (count ten).
-4- Following M r. W ilson’s guilty plea, the probation officer prepared the
presentence report, calculating his base offense level at fourteen under U.S.S.G .
§ 2K2.1(a)(6), and applying the contested four-level upward adjustment based on
the M ay 2003 incident, pursuant to Guidelines § 2K2.1(b)(5). 1 After applying
various other offense level increases and factoring in a three-level reduction for
acceptance of responsibility, the probation officer calculated M r. W ilson’s total
offense level at twenty and his criminal history at Category VI, for a total
Guidelines sentencing range of seventy to eighty-seven months imprisonment.
M r. W ilson filed formal objections to the presentence report, contending
the four-point enhancement under § 2K2.1(b)(5) was “inappropriate” because he
1 On appeal, the government contends the four-level § 2K 2.1(b)(5) increase could also apply to counts one and two, involving the June 10, 2002, and September 22 and 23, 2002 offenses, because M r. W ilson possessed firearms during those offenses in connection with stealing a vehicle, pointing a gun at another driver, and possessing methamphetamine or materials used in the production of methamphetamine. M r. W ilson contests the use of these incidents, explaining: 1) he pled guilty to the firearms charges only and not to “the other felony,” including the alleged stealing of a vehicle, pointing a gun at an unidentified individual, or possessing drugs; 2) the facts in the presentence report concerning those incidents were “uncharged, unproven,” and “non-admitted” conduct; 3) the information for these offenses w as based solely on three-year-old offenses described in police reports which contained hearsay and opinion; 4) no field test was conducted on the alleged illegal substances found; 5) he made no admissions concerning the facts cited and, to the extent he did, was never advised of his rights or provided with any type of adversarial proceeding; and 6) the search of his trunk, where certain alleged illegal items were found, was unconstitutional. Because we can resolve the § 2K2.1(b)(5) issue based on the M ay 2003 offenses alone, as did the probation officer and the district court, w e need not address the June or September 2002 offenses or the parties’ related contentions.
-5- did not use or possess a firearm “in connection with” another felony; instead, he
claimed his felonies were all fraud-related, “secret, [and] outside the public eye,”
and therefore the firearms were irrelevant to the commission of the fraud
offenses. In response, the probation officer noted it was reasonably foreseeable
M r. W ilson possessed the firearms in connection with the M ay 2003 felony fraud
offenses, given the firearms were found in his hotel room along with items used
in producing fraudulent documents, and, in addition, he was convicted of
interstate transportation of a stolen vehicle, which is also a felony offense.
At the sentencing hearing, M r. W ilson’s attorney continued to argue M r.
W ilson’s possession of the firearms in the hotel room did not “facilitate” the
fraud offenses; the “firearms were moneymakers to him, not ... instrumentalities
of violent crime”; and “the guidelines, without the four-level enhancement, are
more than sufficient, whether it’s the low end or the high end, to penalize ... [his]
conduct ....” After considering the parties’ arguments and other submissions, the
district court found the four-level enhancement applicable and sentenced M r.
W ilson at the low end of the Guidelines range to seventy months imprisonment.
In applying the four-level enhancement under § 2K2.1(b)(5), the district court
stated it took into consideration the advisory Guidelines and the factors set forth
in 18 U.S.C. § 3553(a)(1)-(7) and found the government’s arguments persuasive
and the sentence reasonable.
-6- On appeal, M r. W ilson continues to argue the four-level enhancement under
§ 2K2.1(b)(5) should not apply absent a showing the weapons facilitated, or had
the potential to facilitate, the commission of the fraudulent acts. Rather than
being possessed “in connection with” these felony offenses, M r. W ilson suggests
the firearms were merely in proximity to instruments of fraudulent activity or
“coincidental or entirely unrelated to the offense.” In support, he relies almost
exclusively on two Fifth Circuit cases, United States v. Houston, 364 F.3d 243
(5th Cir. 2004), and United States v. Fadipe, 43 F.3d 993 (5th Cir. 1995), in
which the same Guidelines section was not applied.
W hile w e recognize the Guidelines are now advisory rather than mandatory
under the principles announced in United States v. Booker 2 , they continue to be a
factor the district court must consider in imposing a sentence. See United States
v. Kristl, 437 F.3d 1050, 1053 (10th Cir. 2006) (per curiam). Since Booker, we
review for reasonableness the ultimate sentence imposed. Id. W e require
reasonableness in two respects – “the length of the sentence, as well as the
method by which the sentence was calculated.” Id. at 1055. If the district court
“properly considers the relevant Guidelines range and sentences the defendant
within that range, the sentence is presumptively reasonable,” but “[t]he defendant
may rebut this presumption by demonstrating that the sentence is unreasonable in
light of the other sentencing factors laid out in § 3553(a).” Id. In determining
2 543 U.S. 220 (2005).
-7- w hether the district court properly considered the applicable Guidelines, we
review its legal conclusions de novo and its factual findings for clear error. Id. at
1054.
Guidelines § 2K2.1(b)(5) recommends a four-level increase “[i]f the
defendant used or possessed any firearm or ammunition in connection with
another felony offense ....” U.S.S.G. § 2K2.1(b)(5). This court has recognized
that “[e]xcept for its plain language, § 2K2.1(b)(5) provides little guidance
regarding the nexus required between firearm possession and the felony offense.”
United States v. Brown, 314 F.3d 1216, 1222 (10th Cir. 2003). W e have noted the
phrase “in connection with” in § 2K2.1(b)(5) “is analogous to the ‘in relation to’
requirem ent of 18 U .S.C . § 924(c)(1), which ‘is satisfied if the government show s
that the weapon facilitates or has the potential to facilitate the ... offense, but is
not satisfied if the weapon’s possession is coincidental or entirely unrelated to the
offense.” United States v. Walters, 269 F.3d 1207, 1219 (10th Cir. 2001)
(quoting United States v. Gomez-Arrellano, 5 F.3d 464, 466-67 (10th Cir. 1993)).
W e have further acknowledged cases interpreting § 924(c) do not control the
interpretation of § 2K2.1(b)(5) but have nevertheless concluded that “if the
weapon facilitated or had the potential to facilitate the underlying felony, then
enhancement under § 2K2.1(b)(5) is appropriate,” and, likewise, an enhancement
under § 2K2.1(b)(5) is inappropriate if “possession of the weapon is coincidental
or entirely unrelated to the offense.” Brown, 314 F.3d at 1222; see also United
-8- States v. Taylor, 413 F.3d 1146, 1154 (10th Cir. 2005). 3
The Eighth Circuit applied the “potential to facilitate” criteria in a case
similar to the instant one, where the defendant was found with three loaded
firearms, together with a computer scanner, digital camera, spray adhesive,
counterfeit detector pen, several fraudulent drivers’ licenses, photographic paper,
$4,300 in currency, and two ski masks. See United States v. Kanatzar, 370 F.3d
810, 814 (8th Cir. 2004), cert. granted, judgment vacated, 543 U.S. 1107 (U.S.
Jan. 24, 2005) (N o. 04-6088). The court held firearms have the potential to
facilitate an ongoing counterfeiting operation which is “likely to present danger to
the defendant, giving him reason to keep weapons near the tools of his trade,
which, in turn, may embolden him to engage in the criminal activity.” Id. at 816.
In another case, United States v. Burke, the Sixth Circuit did not expound on the
meaning of the “in connection with” criteria in § 2K2.1(b)(5), but held it was met
where a defendant’s guns were found in a cabinet in his house containing
detached vehicle identification numbers (VIN) and other VIN-flipping evidence,
and his house was located across the drivew ay from his auto shop, where he w as
3 W e note that at least one circuit does not restrict the application of § 2K2.1(b)(5) to our “facilitate” or “potential to facilitate” standard, but uses a more expansive application of “in connection with,” so that “in certain circumstances, mere possession of a firearm can be enough to apply a sentencing enhancement.” United States v. Jackson, 276 F.3d 1231, 1234 (11th Cir. 2001) (relying on United States v. M atos-Rodriguez, 188 F.3d 1300, 1308 (11th Cir. 1999)). See also United States v. Rhind, 289 F.3d 690, 695 (11th Cir. 2002) (determining a firearm does not have to facilitate the underlying offense to apply § 2K2.1(b)(5)).
-9- conducting an illegal VIN-flipping operation. 345 F.3d 416, 427-28 (6th Cir.
2003). In explaining its holding, the Sixth Circuit acknowledged that, unlike
drugs, “there is no w idely acknow ledged consensus that VIN-flipping is a
dangerous activity that frequently involves guns,” but:
[n]evertheless, the guns and the VIN paraphernalia w ere found in close proximity, the illegal operation could have been protected by guns (e.g., to fend off disgruntled car buyers, to deter thieves, and to defend the operation from the police), and overall there was sufficient evidence for the district court reasonably to conclude that the guns and the operation were connected.
Id. at 428. The logic applied by these circuits squares with our analysis of a
defendant’s possession of firearms to protect himself and the money derived
while operating an illegal gambling enterprise, in which we determined the guns
facilitated or had the potential to facilitate his illegal gambling operation. See
United States v. Buck, 86 F.3d 1167, 1996 W L 276179, at *5 (10th Cir. M ay 24,
1996) (unpublished op.). W hile an unpublished order and judgment of this court
is not binding precedent, we believe Buck has persuasive value and, like the other
tw o circuits’ cases, aids in our disposition of the issues presented.
In this case, M r. W ilson admitted he used computers and scanners, as w ell
as the other items found in the hotel room, to produce fraudulent identification
documents, thereby admitting to their use as tools of his illegal trade or operation.
The sheer volume of fraudulent-identification-producing tools or inventory in the
room also indicates M r. W ilson and his companions w ere using the hotel room to
-10- house their illegal identification operation and were in fact operating an ongoing,
illegal, commercial-like venture, much like the illegal gambling operation in
Buck, the VIN-flipping operation in Burke, and the counterfeit operation in
Kanatzar. The fact the guns and the tools of the fraudulent identification
operation were found in close proximity clearly suggests the guns had the
potential of facilitating the offenses committed; i.e., protecting the tools used and
the false identifications produced from the contingency of theft or other danger.
Furthermore, the guns likely emboldened M r. W ilson to continue his illegal
activity knowing he possessed the weapons as “a means of protection or
intimidation.” Smith v. United States, 508 U.S. 223, 238 (1993).
Under the circumstances presented, it appears the guns were an integral
part of the offenses committed and not merely placed in the hotel room by
coincidence or happenstance or for reasons unrelated to the offenses committed.
Id. This determination is bolstered by the fact the other defendants involved in
the same fraudulent identification operation also possessed guns in the parking lot
outside the same hotel room. Consequently, we believe sufficient evidence
existed for the district court to reasonably conclude the guns and the tools of the
fraudulent identification operation found in the hotel room were connected for the
purpose of applying the four-level enhancement under § 2K2.1(b)(5).
As to the Fifth Circuit cases on which M r. W ilson relies, we find them
distinguishable. First, in Houston, two firearms were found in the defendant’s
-11- hotel room, together with a handbook on forging documents, a computer, and a
small amount of marijuana. 364 F.3d at 244-45. The court first concluded the
small amount of marijuana found in the room did not constitute a felony for the
purpose of applying § 2K2.1(b)(5). Id. at 249. W ithout discussing the computer
or handbook, the court next concluded the defendant’s possession of a false social
security card and identification card, which he used to falsely identify himself to
police, might constitute a felonious forgery under state law, but that nothing in
the record indicated the firearms were actually “possessed ‘in connection with’
the forgery.” Id. at 244-45, 249-50. Unlike the defendant in Houston, M r.
W ilson possessed more than two forms of illegal identification together with
firearms; instead, he was found in possession of a bounty of stolen and fraudulent
identification documents together with tools he admitted using to produce the
false identifications found in the room, leaving the district court to reasonably
conclude the guns were used to facilitate the illegal identification operation,
whether for protection, intimidation, or other purposes.
Similarly, the other case relied on by M r. W ilson, United States v. Fadipe,
is also distinguishable. See 43 F.3d 993. In that case, the defendant submitted to
a bank a credit application which contained false information, and, at the bank’s
request, authorities conducted a controlled delivery by placing a book of checks
in his apartment mail box. Id. at 994. Police arrested the defendant as soon as he
retrieved the checks and drove out of his apartment complex; during the arrest,
-12- they found not only the book of checks in his vehicle, but a loaded gun in the
front passenger seat and numerous bank loan applications, personal and financial
history records of different individuals, and “other materials” which could be
used in bank fraud schemes. Id. The court concluded “[t]he undisputed facts
show no connection between the gun and [the defendant’s] bank fraud crime other
than that the gun was present in [his] automobile, along w ith other tools of [his]
bank fraud trade, when the checks were retrieved.” Id. In other w ords, the court
held nothing showed the gun facilitated the defendant’s earlier submission of the
fraudulent bank application and his subsequent retrieval of the book of checks
from his mail box, at which time the crime or offense was complete; instead, the
book of checks was found later in the same vehicle with the gun and other fraud-
related materials.
Unlike the defendant in Fadipe, M r. W ilson was found together with the
guns in close proximity to the stolen identification documents and numerous tools
he admitted to using in producing fraudulent identifications in an ongoing illegal
operation. These scenarios are sufficiently different for us to conclude the district
court reasonably applied § 2K2.1(b)(5) in this case. 4 M oreover, we agree with the
4 Having determined the district court did not err in applying § 2K2.1(b)(5), we need not address the government’s alternative suggestion that the guns found in the hotel room facilitated M r. W ilson’s transportation of the stolen vehicle found in the hotel parking lot, other than to note an issue exists as to whether the guns facilitated or had the potential to facilitate M r. W ilson’s transportation of the stolen vehicle, which occurred days before the guns were (continued...)
-13- Eighth Circuit’s assessment that the court in Fadipe “appeared to require a
show ing that the gun was used in connection with the commission of the crime
before the enhancement applied,” rather than that it had “the potential of
facilitating” the felony. Kanatzar, 370 F.3d at 816 (emphasis added, quotation
marks and citation omitted).
Finally, given the district court “properly consider[ed] the relevant
Guidelines range and sentence[d] the defendant within that range, the sentence is
presumptively reasonable,” and it is up to M r. W ilson to “rebut this presumption
by demonstrating that [his] sentence is unreasonable in light of the other
sentencing factors laid out in § 3553(a).” Kristl, 437 F.3d at 1055. Under the
circumstances presented and the applicable law, it was not unreasonable for the
district court to determine a sentence imposed at the bottom of the applicable
Guidelines range sufficiently reflected the factors in § 3553, and M r. W ilson has
not otherwise demonstrated his sentence is unreasonable.
For these reasons, we A FFIRM M r. W ilson’s convictions and sentences.
Entered by the C ourt:
W ADE BRO RBY United States Circuit Judge
4 (...continued) found in his hotel room.
-14-