UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
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No. 96-40565
Summary Calendar
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UNITED STATES OF AMERICA,
Plaintiff-appellee,
versus
TERRY BELLINI BARLOW,
Defendant-Appellant.
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Appeal from the United States District Court for the
Eastern District of Texas
(1:95-CR-166-1)
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December 13, 1996
Before HIGGINBOTHAM, WIENER, and BENAVIDES, Circuit Judges.
PER CURIAM:*
This appeal concerns the district court's application of
U.S.S.G. § 2K2.1(b)(5), which provides for a four-level increase in
offense level if the defendant used or possessed a firearm in
connection with another felony offense. Terry Barlow pleaded
guilty to stealing firearms, which were previously shipped in
interstate commerce, from a licensed firearms dealer in violation
*
Pursuant to Local Rule 47.5, the court has determined that this
opinion should not be published and is not precedent except under
the limited circumstances set forth in Local Rule 47.5.4.
of 18 U.S.C. § 922(u). These firearms were acquired as a result of
conduct which would constitute the felony offense of burglary in
violation of Tex. Penal Code Ann. § 30.02(a)(1), (3). Barlow
contends that the burglary he committed is not "another offense"
within the meaning of § 2K2.1(b)(5). Rejecting this contention, we
affirm.
Barlow stipulated to the following facts at his guilty plea
proceeding. Barlow and three cohorts broke into Phillip's Pawnshop
in Jasper, Texas, and stole several firearms. Thereafter, they
drove to Houston and sold some of the guns. Upon returning to
Jasper, all four men were arrested, and four of the stolen firearms
were recovered in the vehicle.
Pursuant to a plea agreement, Barlow pleaded guilty to
violating 18 U.S.C. § 922(u), which provides that:
It shall be unlawful for a person to steal or unlawfully
take or carry away from the person or the premises of a
person who is licensed to engage in the business of
importing, manufacturing, or dealing in firearms, any
firearm in the licensee's business inventory that has
been shipped or transported in interstate or foreign
commerce.
Barlow also was charged in state court with burglary of Phillip's
Pawnshop.1 Under Texas law, "[a] person commits [burglary] if,
without the effective consent of the owner, he: (1) enters a
habitation, or a building . . . not then open to the public, with
intent to commit a felony or theft; or . . . enters a building or
1
According to the presentence report, the local district
attorney's office would dismiss the burglary charge upon sentencing
in the federal case.
2
habitation and commits or attempts to commit a felony or theft."
Tex. Penal Code Ann. § 30.02(a)(1), (3).
Barlow's offense level was increased four levels pursuant to
U.S.S.G. § 2K2.1(b)(5) because he possessed firearms "in connection
with another felony offense." (emphasis added).2 The commentary
to § 2K2.1(b)(5) defines "felony offense" as "any offense (federal,
state, or local) punishable by imprisonment for a term exceeding
one year, whether or not a criminal charge was brought, or
conviction obtained." § 2K2.1(b)(5) comment. (n.7).
Barlow argues that the theft of the firearms in violation of
federal law and the state burglary are essentially the same
offense, and thus, the burglary cannot be deemed "another" felony
offense under § 2K2.1(b)(5). We disagree. Here, Barlow committed
the state offense of burglary by entering the building, which was
not then open to the public, with the intent to commit a felony or
theft. Tex. Penal Code Ann. § 30.03(a)(1). At that point, Barlow
had completed the state offense of burglary. Barlow then stole
firearms from the premises of a licensed firearms dealer in
violation of 18 U.S.C. § 922(u). It was not necessary to the
offense of conviction for Barlow to enter the building at a time
2
Section 2K2.1(b)(5) provides that:
If the defendant used or possessed any firearm or
ammunition in connection with another felony offense; or
possessed or transferred any firearm or ammunition with
knowledge, intent, or reason to believe that it would be
used or possessed in connection with another felony
offense, increase by 4 levels. If the resulting offense
level is less than level 18, increase to level 18.
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not open to the public. Likewise, it was not necessary to the
completion of the burglary offense for Barlow to actually steal and
possess the firearms. Nonetheless, he did so. In doing so, he
possessed a firearm in connection with the burglary offense.3 The
burglary clearly was not the same offense as the offense of
conviction. See United States v. Kuban, 94 F.3d 971 (5th Cir.
1996) (explaining that increase in base offense level pursuant to
§ 2K2.1(b)(5) for possession of firearm in connection with state
felony offense of aggravated assault did not result in improper
double punishment of defendant's conviction for felon in possession
of a firearm).
Barlow also argues that § 2K2.1(b)(5), comment. (n.18)
"specifically urges the District Court to give this increase only
when there is a separate offense in which the defendant utilizes
the firearms." Barlow is mistaken. In pertinent part, the
commentary provides that "another felony offense" and "another
offense" refer to offenses other than firearms possession or
3
Barlow does not contend that the firearms were not possessed "in
connection with" the state burglary offense within § 2K2.1(b)(5).
In any event, such contention would likely be rejected. See United
States v. Guerrero, 5 F.3d 868 (5th Cir. 1993), cert. denied, 510
U.S. 1134, 114 S.Ct. 1111 (1994) (interpreting U.S.S.G. §
4B1.4(b)(3)(A), this Court held that the defendant possessed
firearms "in connection with" a burglary even though the guns were
fruits of the burglary) (plain error case); United States v.
Condren, 18 F.3d 1190 (5th Cir.), cert. denied, 115 S.Ct. 161
(1994) (explaining that phrase "in connection with" in §
2K2.1(b)(5) should be given its ordinary and natural meaning, we
concluded that a firearm found in drawer of desk in which drugs
were found was possessed "in connection with" the other offense of
possession of drugs).
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trafficking offenses. In the instant case, however, the other
felony offense is burglary, not possessing or trafficking in
firearms.
Accordingly, we hold that the district court did not err in
increasing Barlow's offense level for his possession of firearms in
connection with another felony offense, burglary. The district
court properly applied § 2K2.1(b)(5).
AFFIRMED.
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