UNITED STATES COURT OF APPEALS
FIFTH CIRCUIT
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No. 97-40160
(Summary Calendar)
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UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
FRANCHSA R. FRANKLIN,
Defendant-Appellant.
Appeal from the United States District Court
For the Eastern District of Texas
(1:96-CR-63-1)
August 18, 1997
Before WIENER, BARKSDALE, and EMILIO M. GARZA, Circuit Judges.
PER CURIAM:*
A federal grand jury charged Franchsa R. Franklin with one
count of stealing firearms from a licensed firearms facility in
violation of 18 U.S.C. § 922(u) and one count of selling and
*
Pursuant to 5th Cir. R. 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that this opinion should not be published and is not precedent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 5th Cir. R.
47.5.4.
disposing of stolen firearms in violation of 18 U.S.C. § 922(j).
Franklin plead guilty to the second count. The district court
sentenced Franklin to an eighty-month term of imprisonment, a
three-year term of supervised release, and restitution of
$1,423.48.
On appeal, Franklin alleges that the district court erred by
(1) determining that his base offense level should be 20 because he
had a prior conviction for a “controlled substance offense” under
§ 2K2.1(a)(4)(A) of the United States Sentencing Guidelines (“the
Guidelines”) and (2) increasing his offense level by four levels
under § 2K2.1(B)(5) of the Guidelines for possession of a firearm
in connection with another felony offense. We agree with Franklin
on the first issue, and reverse his sentence in part and remand for
resentencing.
I
We review a sentencing court's factual findings for clear
error and its application of the United States Sentencing
Guidelines de novo. United States v. Dean, 59 F.3d 1479, 1494
(5th Cir. 1995), cert. denied, __ U.S. __, 116 S. Ct. 794, 133 L.
Ed. 2d 742 (1996). We must uphold a sentence unless it was imposed
in violation of law, resulted from an incorrect application of the
Guidelines, or departed unreasonably from the applicable sentence
range. United States v. Manges, 110 F.3d 1162, 1178 (5th Cir.
1997).
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A
Franklin contends that he had a prior state conviction for
delivery of a simulated controlled substance and that this
conviction was not for a “controlled substance offense” for
purposes of § 2K2.1(a)(4)(A). Thus, he claims that the district
court erred in setting his base offense level at 20.
Section 2K2.1(a)(4)(A) provides for an offense level of 20 if
the defendant has “one prior felony conviction of either a crime of
violence or a controlled substance offense . . . .” Citing this
section, the probation officer recommended that the district court
should assess a base offense level of 20 because Franklin had a
prior state felony conviction for delivery of a simulated
controlled substance. Franklin objected, contending that a
simulated controlled substance offense did not trigger the
§ 2K2.1(a)(4)(A) enhancement and, besides, this offense had been
reduced to a misdemeanor. In response, the probation officer
maintained that the Guidelines provide that offenses involving
“counterfeit controlled substances” are controlled substance
offenses, and a “simulated controlled substance” is the same thing
as a “counterfeit controlled substance.”
At the sentencing hearing, the district court examined the
state court judgment of conviction. Based on this document, the
court found that Franklin’s state conviction was for a felony
rather than a misdemeanor, and that he had been convicted of
delivery of a controlled substance, not a simulated controlled
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substance. Therefore, the district court determined that it would
give Franklin a base offense level of 20 under § 2K2.1(a)(4)(A).
After Franklin was sentenced, the government investigated the
conflict between the state court judgment and the probation
officer’s assertions about the nature of Franklin’s prior
conviction. The government then determined that the state court
judgment was incorrect))Franklin had only been convicted of
delivery of a simulated controlled substance, not a controlled
substance. The government then supposedly arranged for the state
court judgment to be corrected nunc pro tunc to reflect Franklin’s
actual conviction. Hence, the government concedes that the
district court based Franklin’s sentence in part on erroneous
information. In addition, the government admits that a “simulated
controlled substance” is not a “counterfeit controlled substance”
under the Guidelines, and thus Franklin should not have received
the § 2K2.1(a)(4)(A) enhancement.
While the government did not provide us with a copy of the
corrected state court judgment, we will accept for purposes of this
appeal the government’s concession that Franklin was convicted of
delivery of a simulated controlled substance. Given that
concession, then, we agree with the government that a “simulated
controlled substance” is not a “controlled substance” for purposes
of § 2K2.1(a)(4)(A). Under Texas law, a “simulated controlled
substance” means a “substance that is purported to be a controlled
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substance, but is chemically different from the controlled
substance it is purported to be.” Tex. Health & Safety Code Ann.
§ 482.001(4). We also note that a “simulated controlled substance”
is not a “counterfeit substance” under the Guidelines. 21 U.S.C.
§ 802(7) defines “counterfeit substance” as a controlled substance
that has been mislabeled. Conversely, under Texas law, “simulated
controlled substance” means only a purported controlled substance.
Because the government concedes that the district court relied
on an incorrect state court judgment in sentencing, one that
resulted in a longer sentence for Franklin, we vacate Franklin’s
sentence and remand to the district court for resentencing.
B
Franklin also challenges the district court’s determination
that, under § 2K2.1(b)(5) of the Guidelines, his base offense level
should be enhanced by four points because he possessed stolen
firearms in connection with a felony offense other than his
§ 922(j) violation. Franklin contends that the four-level
enhancement is invalid under Bailey v. United States, __ U.S. __,
116 S. Ct. 501, 133 L. Ed. 2d 472 (1995) because he did not
actively employ the firearms while stealing them.
Bailey dealt with the issue of what actions constituted “use”
of a firearm under 18 U.S.C. § 924(c). Section 2K2.1(b)(5)
expressly provides for an enhancement based on the defendant’s “use
or possession” of that firearm. Franklin has admitted that he
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broke into a pawnshop, stole eight firearms, and then sold or
otherwise disposed of them. In stealing and then disposing of the
firearms from the pawnshop, Franklin possessed them. Moreover,
burglary is a felony under Texas law, as is stealing a firearm.2
Therefore, Franklin possessed a firearm in connection with a felony
offense other than his § 922(j) violation. See United States v.
Armstead, 114 F.3d 504, 510-13 (5th Cir. 1997) (holding that, where
defendant plead guilty to breaking into pawnshop and stealing
firearms in violation of 18 U.S.C. § 922(u), Bailey did not
preclude court from applying § 2K2.1(b)(5) enhancement because
defendant also committed state-law felony of burglary of a building
and did not dispute that he possessed firearms during theft).
Accordingly, we determine that the district court was not
precluded under Bailey from enhancing Franklin’s sentence by four
levels under § 2K2.1(b)(5).
II
For the foregoing reasons, we AFFIRM Franklin’s sentence in
part and REVERSE his sentence in part, and REMAND for resentencing
in accordance with this opinion.
2
A person commits burglary if “without the effective
consent of the owner, he . . . enters a building or habitation and
commits or attempts to commit a felony or theft.” Tex. Penal Code
Ann. § 30.02(a). Burglary is a “state jail felony if committed in
a building other than a habitation . . . .” Id. at § 30.02(c)(1).
In addition, stealing a firearm is a state jail felony. Id. at
§ 31.03(e)(4)(C).
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