F I L E D
United States Court of Appeals
Tenth Circuit
UNITED STATES COURT OF APPEALS
JUN 1 2004
TENTH CIRCUIT
PATRICK FISHER
Clerk
UNITED STATES OF AMERICA,
Plaintiff - Appellee, No. 03-4232
v. (D. Utah)
RYAN EVANS, (D.C. No. 03-CR-283-DAK)
Defendant - Appellant.
ORDER AND JUDGMENT *
Before TACHA, Chief Judge, ANDERSON and BALDOCK , 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(G). The case is
therefore ordered submitted without oral argument.
This order and judgment is not binding precedent, except under the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.
Ryan Evans appeals the sentence imposed following his conviction for
being a felon in possession of a firearm, in violation of 18 U.S.C. § 922(g)(1).
We vacate Evans’ sentence and remand for resentencing.
BACKGROUND
During a field visit to Evans’ home, state probation officers found a .22
caliber rifle in his bedroom. After initially denying ownership of the rifle, he
later admitted that he had received it as payment for methamphetamine he had
previously sold. Evans pled guilty.
At sentencing, relying upon Evans’ statement about how he came into
possession of the gun, the district court increased his base offense level in
accordance with United States Sentencing Commission, Guidelines Manual
(“USSG”) §2K2.1(b)(5), which provides for a four-level increase “[i]f the
defendant used or possessed any firearm or ammunition in connection with
another felony offense.” 1
The court then sentenced Evans to thirty months
imprisonment, to run concurrently with a state sentence, followed by thirty-six
months of supervised release.
1
The probation officer who prepared the presentence report in this case
recommended the four-level increase in base offense level. Evans objected to that
portion of the presentence report. He objected again at sentencing, following
which the district court, with some reservations, determined that the four-level
increase was warranted.
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“We review a district court’s interpretation of the Sentencing Guidelines de
novo, and its factual findings for clear error, giving due deference to the district
court’s application of the guidelines to the facts.” United States v. Brown , 314
F.3d 1216, 1222 (10th Cir.), cert. denied , 537 U.S. 1223 (2003). We have held
that “if the weapon facilitated or had the potential to facilitate the underlying
felony, then enhancement under § 2K2.1(b)(5) is appropriate.” Id. (further
quotation omitted). An enhancement is inappropriate if “possession of the
weapon is coincidental or entirely unrelated to the offense.” Id.
The government concedes that the drug distribution, which occurred on
some prior unknown date, was completed by the time Evans received the gun as
payment for the drugs. The government further concedes that “there is no
evidence that Evans bargained for or agreed to sell his drugs in exchange for a
firearm.” Gov’t’s Br. at 7. Evans did not therefore use or possess the gun “in
connection with” another felony offense.
Accordingly, the case is REMANDED for resentencing.
ENTERED FOR THE COURT
Stephen H. Anderson
Circuit Judge
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