UNITED STATES COURT OF APPEALS
Filed 3/27/96
TENTH CIRCUIT
UNITED STATES OF AMERICA, )
)
Plaintiff - Appellee, )
)
v. ) No. 95-3171
) (D.C. No. 94-20072-01)
JAMES MATTHEW ZIMMERMAN, ) (District of Kansas)
)
Defendant - Appellant. )
ORDER AND JUDGMENT*
Before BRORBY, BARRETT, and MURPHY, Circuit Judges
Defendant James M. Zimmerman entered a plea of guilty to a single-count
indictment charging him with unlawful possession of a weapon by a convicted felon in
violation of 18 U.S.C. § 922(g)(1). The district court sentenced Zimmerman to a ninety-
six-month term of incarceration and three years of supervised release. The sentence was
based on an adjusted offense level of 21, which included a four-level enhancement under
*This order and judgment is not binding precedent, except under the doctrines of law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 order and judgments; nevertheless, an order and judgment may be cited under the terms
and conditions of 10th Cir. R. 36.3.
U.S.S.G. § 2K2.1(b)(5) for possession of a firearm “in connection with another felony
offense.”
Zimmerman appeals the district court’s calculation of his sentence, claiming that
the district court erred when it applied the four-level enhancement under section
2K2.1(b)(5). As an additional point on appeal, Zimmerman asserts that even if the
2K2.1(b)(5) enhancement was proper, the district court erred when it refused to impose
his sentence to run concurrently with an undischarged state sentence. We affirm.
BACKGROUND
On August 30, 1994, officers of the Johnson County Sheriff’s Office responded to
a vehicle stop in DeSoto, Kansas. The officers arrested David Holly, a passenger in the
car, on an outstanding felony warrant. During a search incident to his arrest, officers
seized a motel key from Holly. The officers determined that the room had been rented by
the driver of the car in which Holly was riding. The driver gave the officers written
consent to search the motel room. While the officers were searching the room, the
telephone rang and a caller who identified himself as “Dog” apologized for missing an
appointment with Holly. Deputy Charles Black remained in the room and monitored
phone calls from Dog. In a subsequent call, Dog indicated that he wanted to come over to
the room to complete the deal which he had previously arranged with Holly. After
several additional calls, including one where Dog informed Officer Black that it was not
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safe to be out because there were plain-clothes police officers everywhere, Dog arrived at
the motel. He was promptly arrested by Black and other officers.
During a search incident to his arrest, officers found a loaded Ruger P89DC 9mm
semiautomatic pistol and a black nylon holster under Dog’s shirt. They also recovered
additional ammunition from Dog’s right rear pocket, $2,587 in United States currency, a
small plastic bag containing methamphetamine, a small blue plastic container filled with
marijuana and Zig-Zag rolling papers, and a mobile phone pager. Although he refused to
identify himself at the time, police eventually identified Dog as the defendant James M.
Zimmerman. Zimmerman was prosecuted for and pled guilty to felony possession of
methamphetamine and marijuana in the Kansas state criminal justice system.
On September 22, 1994, a one-count indictment was returned by the grand jury for
the United States District Court for the District of Kansas charging Zimmerman with
unlawful possession of a firearm by a convicted felon. After Zimmerman pled guilty to
the charge, the district court ordered the Probation Office to prepare a presentence report.
In a portion of that report, the author recommended that Zimmerman’s Total Offense
Level be increased by four pursuant to section 2K2.1(b)(5) of the Sentencing Guidelines
because Zimmerman “used the firearm in this offense in connection with another felony
offense, Johnson County, Kansas Case No. 94CR3067.” Case No. 94CR3067 was
Zimmerman’s state conviction for possession of marijuana and methamphetamine.
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Zimmerman objected to the proposed enhancement, arguing that the weapon
possession was simply incidental (i.e., not connected) to his possession of a personal-use
quantity of drugs. In response to Zimmerman’s letter, the U.S. Attorney submitted a letter
and sentencing memorandum asserting that a four-level enhancement pursuant to section
2K2.1(b)(5) was proper for the reason that Zimmerman’s possession of the firearm was in
connection with his attempt to purchase illegal drugs at the time of his arrest, a felony
under federal law.
At the sentencing hearing, the district court adopted both the theory for
enhancement advocated by the probation officer and the theory proposed by the U.S.
Attorney. The district court made the following findings in relation to the 2K2.1(b)(5)
enhancement:
Well, the Court does find that a preponderance of the evidence
supports an enhancement recommended by the presentence report under
Section 2K2.1(b)(5).
Really, in making this finding, the Court adopts both of the premises
which the Government has argued. The first being that the firearm was
possessed in connection with the felony offense which resulted in
defendant’s conviction in Johnson County, Kansas, in Case No. 94CR3067.
And I agree with Mr. Streepy’s analysis that for this defendant any
possession of drugs would be a felony, and that a sufficient connection was
established through circumstantial evidence that the defendant was carrying
a firearm to protect himself, if nothing else, in the case of arrest.
I also adopt really substantially verbatim the proposition that Mr.
Zimmerman went to this motel in the middle of the night to do a drug
transaction. I think there’s no reasonable inference otherwise which the
record will support.
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If the Government is required to prove the specific drug which was
intended to be purchased or the specific amount, I am not aware of any
authority for that, and I guess the Tenth Circuit will have to let us know that
that is a requirement.
After the district court announced a proposed sentence of ninety-six months,
Zimmerman asked the Court to impose the sentence to run concurrently with the
undischarged term of confinement imposed by the State of Kansas on the possession
charge. Zimmerman based his request on section 5G1.3(b) of the Sentencing Guidelines
which requires imposition of a concurrent term when “the undischarged term of
imprisonment resulted from offense(s) that have been fully taken into account in the
determination of the offense level for the instant offense.” In plain language, section
5G1.3 provides that if the sentence for a federal crime was enhanced by reference to the
crime for which the defendant is serving an undischarged state prison sentence, the
federal sentence must run concurrently with the undischarged state sentence.
The district court refused to impose the sentence to run concurrently with the state
prison term. According to the district court, the undischarged state prison term was not
fully taken into account in the determination of the federal sentence because the
2K2.1(b)(5) enhancement was based on alternative grounds (i.e., the state possession
conviction and/or the uncharged federal attempt). Anticipating that this ruling might be
appealed, the district court made the following additional ruling: “In the alternative, if
I’m wrong about that, I would base my findings solely on the attempt theory and rise or
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fall on that prong alone. But I’m not going to impose this concurrently. So I guess that is
my alternative finding on that argument.”
Zimmerman appeals the sentence claiming that: (1) the district court erred in
enhancing his sentence pursuant to section 2K2.1(b)(5); and (2) even if the 2K2.1(b)(5)
enhancement is appropriate, his federal sentence should run concurrently with his
undischarged state sentence.
DISCUSSION
An enhancement under section 2K2.1(b)(5) of the sentencing guidelines is
appropriate when “the defendant used or possessed any firearm or ammunition in
connection with another felony offense.” U.S.S.G. § 2K2.1(b)(5) (emphasis added). As
the commentary to section 2K2.1(b)(5) makes clear, felony offense “means 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.” U.S.S.G. §
2K2.1(b)(5), application note 7. In sentencing Zimmerman, the district court found that a
2K2.1(b)(5) enhancement was appropriate on two grounds: (1) Zimmerman possessed the
weapon in connection with his state felony conviction for possession of
methamphetamine and marijuana; and (2) Zimmerman possessed the weapon in
connection with an uncharged, but proven, attempt to purchase drugs.
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On appeal, Zimmerman challenges both grounds identified by the district court as
supporting an enhancement under 2K2.1(b)(5). As to the first ground, Zimmerman
claims that the district court erred in finding that his possession of a weapon was
somehow “connected to” his possession of a personal use quantity of drugs. Instead,
Zimmerman argues that possession of the weapon was merely incidental to his state
felony drug possession conviction. Because the weapon did not “facilitate” his drug
possession felony, Zimmerman asserts that the 2K2.1(b)(5) enhancement was improper.
See United States v. Gomez-Arrellano, 5 F.3d 464, 466-67 (10th Cir. 1993) (holding that
2K2.1(b)(5) enhancement is proper where government shows that the weapon facilitated
or had the potential to facilitate a felony). As to the second ground identified by the
district court, Zimmerman contends that the “factual record is simply inadequate to
determine whether his intent to purchase some kind of controlled substance constitutes a
felony under 2K2.1(b)(5).”1 Because we conclude that Zimmerman’s sentence was
1
Although it is somewhat unclear from his brief, Zimmerman does not appear to
challenge the district court’s conclusion that his actions are sufficient to constitute
substantial steps toward the commission of a drug purchase. See United States v.
Monholland, 607 F.2d 1311, 1318, 1320 (10th Cir. 1979) (holding that component parts
of attempt are a specific intent to commit offense together with performance of acts
which constitute substantial steps towards its commission). Instead, Zimmerman’s brief
focuses on the issue of whether his specific intent to purchase drugs constitutes a felony.
To the extent that Zimmerman’s brief can be read as stating a challenge to the conclusion
that he committed acts which are sufficient to constitute a substantial step toward the
commission of a drug purchase, we conclude that the government has met its burden of
proving by a preponderance of the evidence that Zimmerman committed such acts. See
United States v. Hill, 53 F.3d 1151, 1153 (10th Cir. 1995) (“The government must prove
a sentence enhancement by a preponderance of the evidence.”).
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properly enhanced on the ground that he possessed a weapon “in connection” with a
felony attempt to purchase drugs, we do not address the propriety of the first ground for
enhancement identified by the district court.
We conclude that there is ample support in the record for the district court’s
conclusion that Zimmerman’s attempt to purchase drugs, no matter what type of drugs he
specifically intended to purchase, constituted a felony. Zimmerman makes much of the
fact that the district court specifically declined to make a finding as to what type of drug
he intended to purchase at the motel room. According to Zimmerman, such a finding is
critical because an attempt to purchase marijuana is a misdemeanor under Kansas law,
while an attempt to purchase methamphetamine is a felony under Kansas law. Without a
finding as to what type of drug he intended to purchase, Zimmerman contends that it is
impossible to tell if the enhancement was appropriate.
Although we are puzzled by the district court’s refusal to make a finding as to
what type of drug Zimmerman intended to purchase,2 that decision is of no moment
2
We note that there is ample evidence in the record from which the district court
could have concluded that Zimmerman went to the motel room to purchase
methamphetamine. During Zimmerman’s plea hearing, the district court asked the U.S.
Attorney what evidence it would produce if this case were to go to trial. During a portion
of the proffer, the U.S. Attorney indicated that “While the officers were [in the motel
room], they received a phone call from a man who wanted to purchase some
methamphetamine.” At the conclusion of this proffer, the district court engaged in the
following colloquy with Zimmerman:
The Court: Mr. Zimmerman, do you have any disagreement at all with what
(continued...)
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because any attempt on the part of Zimmerman to purchase drugs, no matter what kind, is
felony under federal law. 21 U.S.C. § 844 provides as follows:
It shall be unlawful for any person knowingly or intentionally to
possess a controlled substance unless such substance was obtained directly,
or pursuant to a valid prescription or order, from a practitioner, while acting
in the course of his professional practice, or except as otherwise authorized
by this subchapter or subchapter II of this chapter. Any person who violates
this subsection may be sentenced to a term of imprisonment of not more
than 1 year . . . , except that if he commits such offense after a prior
conviction under this subchapter or subchapter II of this chapter, or a prior
conviction for any drug or narcotic offense chargeable under the law of any
State, has become final, he shall be sentenced to a term of imprisonment for
not less than 15 days but not more than 2 years . . . .
21 U.S.C § 844(a) (emphasis added). Furthermore, 21 U.S.C. § 846 provides that “[a]ny
person who attempts or conspires to commit any offense defined in this subchapter shall
be subject to the same penalties as those prescribed for the offense, the commission of
which was the object of the attempt or conspiracy.” Thus, if Zimmerman had at least one
(...continued)
the Government says it has in the way of evidence against you?
[Zimmerman]: No, I don’t.
The Court: Are you admitting to the Court, then, that you did, in fact, do
exactly what Mr. Streepy has indicated?
[Zimmerman]: Yes, I am.
In addition to this admission, one of the arresting officers testified that he found
methamphetamine residue in the motel room and that Zimmerman had a small amount of
methamphetamine on his person when he was arrested. These facts, when taken together,
support an inference that Zimmerman went to the motel room to purchase
methamphetamine.
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prior conviction for drug possession, any attempt on his part to purchase drugs would
constitute a felony under sections 844 and 846 of Title 21.
The presentence report details, at length, Zimmerman’s criminal history. That
history includes no less than five prior convictions for possession of drugs.3 With this
history before it, the district court was entirely justified in finding that Zimmerman’s
attempt to purchase drugs was a felony under sections 844 and 846 of Title 21, regardless
of the type of drug that Zimmerman was attempting to purchase.
Having resolved Zimmerman’s contentions with regard to the appropriateness of
the 2K2.1(b)(5) enhancement, we next consider his claim that the district court erred
when it refused to impose his sentence to run concurrently with his undischarged state
sentence for drug possession. Section 5G1.3 of the Sentencing Guidelines provides as
follows:
(a) If the instant offense was committed while the defendant was serving a
term of imprisonment . . . or after sentencing for, but before commencing
service of, such term of imprisonment, the sentence for the instant offense
shall be imposed to run consecutively to the undischarged term of
imprisonment.
(b) If subsection (a) does not apply and the undischarged term of
imprisonment resulted from offense(s) that have been fully taken into
account in the determination of the offense level for the instant offense, the
3
We note that 21 U.S.C. § 851 provides that a prior conviction must have been obtained
in accordance with the United States Constitution before it can be used to enhance a sentence
under sections 844 and 846 of Title 21. Zimmerman has not, however, made any claim that the
prior convictions set out in the presentence report are constitutionally infirm. Accordingly, it is
perfectly appropriate to consider those convictions in considering whether the 2K2.1(b)(5)
enhancement was appropriate.
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sentence for the instant offense shall be imposed to run concurrently to the
undischarged term of imprisonment.
U.S.S.G. § 5G1.3. This court has recognized that the intended purpose of § 5G1.3(b) is to
effectively credit for guidelines purposes defendants who have already served time for the
same conduct or course of conduct that was used to enhance that defendants federal
sentence. United States v. Johnson, 40 F.3d 1079, 1082 (10th Cir. 1994). Accordingly,
section 5G1.3 requires a district court to impose a concurrent sentence when “(1) a
defendant is subject to an undischarged term of imprisonment, and (2) the conduct
underlying the undischarged term of imprisonment has been ‘fully taken into account in
the determination of the offense level for the instant offense.’” Id. (quoting U.S.S.G. §
5G1.3(b)).
Before the district court, Zimmerman argued that his federal sentence should run
concurrently with his state sentence because the court had considered his state possession
conviction to enhance his sentence. In response, the district court stated that
I am not going to voluntarily impose this sentence concurrently because,
number one, I think the--as I read 5G1.3(b), the undischarged term of
imprisonment does not “fully” take into account the determination of the
offense level because I based my findings with regard to the enhancement
on separate grounds.
In the alternative, if I’m wrong about that, I would base my findings
solely on the attempt theory and rise or fall on that prong alone. But I’m not
going to impose this concurrently.
On appeal, Zimmerman claims that section 5G1.3(b) is applicable even if the 2K2.1(b)(5)
enhancement is based solely on the attempt theory because the possession and attempt
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were both part of the same course of conduct. Because, according to Zimmerman, section
5G1.3(b) applies to defendants who have already served time for the same course of
conduct, the district court should have imposed his federal sentence to run concurrently
with his undischarged state possession sentence. See Johnson, 40 F.3d 1082.
Zimmerman’s analysis misses the mark. Section 5G1.3(b) applies only where the
conduct or course of conduct underlying an undischarged sentence has been considered in
arriving at the offense level for the instant federal offense. U.S.S.G. § 5G1.3 application
note 2. Although the district court identified Zimmerman’s state possession felony as a
potential ground for enhancement, it ultimately based the 2K2.1(b)(5) enhancement
exclusively on the federal attempt felony. Thus, in arriving at the offense level for
Zimmerman’s federal firearms charge, the conduct or course of conduct underlying his
state possession felony was not even considered, let alone “fully taken into account.”
Because the conduct or course of conduct underlying the state possession conviction was
ultimately not considered in calculating Zimmerman’s federal weapons sentence, the
district court was not obligated to impose his federal sentence to run concurrently with his
undischarged state sentence.
The judgment of the district court is AFFIRMED.
ENTERED FOR THE COURT
Michael R. Murphy
United States Circuit Judge
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