United States v. Mitchell

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT

No. 97-31252

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

ARTHUR MITCHELL, III,

Defendant-Appellant.

- - - - - - - - - -
Appeal from the United States District Court
for the Eastern District of Louisiana
- - - - - - - - - -

January 29, 1999

Before JOLLY, DAVIS, and WIENER, Circuit Judges.

JACQUES L. WIENER, JR., Circuit Judge.

In this direct criminal appeal, Defendant-Appellant Arthur

Mitchell III seeks (1) reversal of his conviction for possession of

a firearm by a felon, in violation of 18 U.S.C. § 922(g)(1), and

(2) vacatur of the incarceration portion of his sentence which

condemns him to serve 120 months in prison. Regarding his

conviction, Mitchell contends that he was erroneously denied a

mistrial for impermissible comments to the jury by the district

court in response to a question submitted by the jurors during the

course of their deliberations. Regarding his sentence, Mitchell

complains that the district court erred by applying § 2K2.1(c) of

the United States Sentencing Guidelines (“U.S.S.G.” or the “the
Guidelines”) to produce an unlawfully lengthy term of imprisonment,

contending that the court’s unauthorized use of that provision

resulted from the clearly erroneous factual determination that he

possessed the firearm in question, under the seat of a car, “in

connection with the commission or attempted commission of another

offense...,”1 specifically, the possession of crack cocaine located

in a lock box inside the house where he resided.2 This is the same

house from which he had driven to take three small children to

school; and the same car which law enforcement agents stopped

several blocks from the house and in which they found the subject

firearm.

Concluding that the district court did not commit reversible

error in refusing to declare a mistrial on the basis of its

comments to the jury, we affirm Mitchell’s conviction. Concluding,

however, that the district court clearly erred in determining that

the evidence and its reasonable inferences support a finding that

Mitchell possessed the gun in the car “in connection with” his

uncharged possession of the cocaine in the house where he was

staying with his girlfriend, we vacate Mitchell’s sentence and

remand to the district court for resentencing consistent with this

opinion.

I.
FACTS and PROCEEDINGS

1
U.S.S.G. § 2K2.1(c)(1)(A).
2
Mitchell was not charged for the narcotics violation in
this case; neither had he been convicted of possessing these
drugs when he was sentenced.

2
 On the morning of his arrest, Mitchell was observed by law

enforcement personnel driving a car away from a house that he did

not own or rent but in which he was residing at the time with his

girlfriend.3 When he was stopped and arrested, Mitchell was on the

way to take three small children to school. The officers who

stopped Mitchell searched the car and found a handgun under the

driver’s seat but found no drugs.4

The arresting officers took Mitchell back to the house and,

with permission of the third party tenant, searched it. The search

revealed (1) a plastic bag containing another gun and (2) a locked

box containing approximately 24 grams of crack cocaine. Both the

gun and the locked box were found in the living room of the house.

Mitchell’s girlfriend told the officers that this gun and the

locked box belonged to Mitchell. A key chain containing, inter

alia, two keys to the locked box and a key to the car were in

Mitchell’s possession at the time of his arrest.

Mitchell was tried twice in connection with the foregoing

incident. In neither trial was he charged with or tried for any

narcotics violation; rather, he was twice tried only for being a

felon in possession of firearms. In the first trial, Count 1

implicated Mitchell’s own gun, which was found in the living room

of the house, and Count 2 implicated a gun that was found under the

seat of the car he was driving when he was arrested. In that

3
The record reflects that Mitchell had a permanent
residence elsewhere at the time.
4
The record reflects that the officer had a K-9 drug dog
sniff the car but came up empty, i.e., no “alerts.”

3
trial, Mitchell was acquitted of possession of the firearm in the

house; however, the jury could not reach a verdict on his

possession of the gun in the car, so a mistrial was declared on

that count. Mitchell was tried again on that count; and in his

second trial —— the one from which the instant appeal is taken ——

the jury found him guilty of possessing the gun that was in the

car.

Mitchell’s PSR correctly cited the 1996 version of Guideline

§ 2K2.1(c) in recommending a base offense level of 28. The PSR

concluded that Mitchell had possessed the gun “in connection with

the commission or attempted commission of another offense,” i.e.,

his possession with intent to distribute crack cocaine. In

response to Mitchell’s objections to this proposal, the probation

officer who had prepared the PSR defended the § 2K2.1(c)

recommendation, also cautioning the court that if it should sustain

Mitchell’s objection, his offense level would only be 14.5 The

court adopted the recommendation in the PSR and sentenced Mitchell

accordingly.

5
In so doing, the probation officer appears to have
miscalculated the putative offense level: Mitchell had a prior
felony conviction for burglary of an automobile and another for
distribution of a counterfeit controlled substance, as a
consequence of which his base level would have been 20, pursuant
to § 2K2.1(a)(4)(A) if the court had sustained his objection
under § 2K2.1(c). See § 2K2.1(a)(4)(A) (offense level is
increased for felony conviction for crime of violence or
controlled substance abuse); §§ 4b1.2(1)(ii), (2) (burglary of an
automobile is not a crime of violence, but distribution of
counterfeit controlled substance is a controlled substance
offense).

4
 Mitchell timely filed a notice of appeal, contesting the

district court’s refusal to grant a mistrial on the basis of its

comments to the jury, and that court’s sentencing grounded in its

finding that he possessed the firearm in connection with another

offense.

II.
ANALYSIS

A. Standard of Review

We review the trial court’s denial of a motion for a mistrial

for abuse of discretion.6 We review the sentencing court’s

application of the Guidelines de novo, but we review that court’s

factual findings under the clearly erroneous standard.7

B. Mistrial

Apparently mindful that Mitchell was not charged in the

instant case for drug trafficking and that he had not been

convicted on drug trafficking charges, the prosecutor took care not

to mention drugs in explaining to the jury the circumstances of

Mitchell’s arrest. In his opening statement, the prosecutor told

the jury that the arresting officers saw Mitchell drive away from

the house where he was staying and “lawfully stopped” him shortly

after. Although two officers testified that Mitchell’s arrest was

lawful, there was no explanation why he was stopped. Like the

prosecutor, Mitchell’s defense counsel apparently was aware of the

6
United States v. Ramirez, 963 F.2d 693, 699 (5th Cir.
1992).
7
United States v. Edwards, 65 F.3d 430, 432 (5th Cir.
1995).

5
potential prejudice of jury awareness of Mitchell’s involvement in

narcotics, as counsel neither objected to the “lawfully stopped”

conclusion nor cross-examined the officers on that point.

During the course of its deliberations, the jury sent the

following note to the trial judge:

The jury would like to know why the defendant
was stopped in the first place. Why he has
[sic] under surveillance. The jury would be
better able to reach a verdict with answers to
these questions.

When the trial court expressed consternation with the

government’s failure to adduce evidence about the circumstances of

Mitchell’s arrest, the prosecutor pointed out that he had

intentionally refrained from mentioning drugs because Mitchell had

not been convicted on drug charges at the time of the trial. The

government reminded the court that evidence of the lawfulness of

Mitchell’s arrest was uncontroverted.

Mitchell urged the court not to comment on the evidence but

instead to instruct the jurors that they would have to rely on

their memories. Following a recess during which the court, in the

presence of counsel, reviewed a transcript of the relevant

testimony, the jury was instructed as follows:

In the opening statement the United States
Assistant U.S. Attorney stated as follows:
“You will learn that [Mitchell] was watched by
Agent Chuck Hustmyre and members of his
surveillance team and they lawfully stopped
him shortly after he was driving away from the
residence he was staying at on Barrington
Court.”

They lawfully stopped him. Then in the course
of the examination of Sergeant Juselin and
Agent Hustmyre,

6
 “Question: Is there anything unusual about you
having your weapon drawn?”

This is at the stop. You will recall that.

“Answer: No, sir. It’s a felony stop.”

“Question: Standard practice for you to have
your weapon drawn in any arrest?”

“Answer: I will, yes.”

And even more to the point, the testimony of
Agent Hustmyre.

“Question: And on November 15, 1996, did you
and others participate in a lawful stop and
ultimate arrest of the defendant in this case,
Arthur Mitchell?”

“Answer: Yes, sir.”

The jury was then advised by the court that it was permitted

to comment on the evidence, but that any such comment was merely an

expression of opinion which could be disregarded because the jury

is the sole judge of the facts. The court stated that it intended

to comment on the evidence and that the jury could disregard the

court’s ensuing statements if it chose.

The court then told the jury that the government had

“addressed the fact that this was a lawful stop,” but that the

court was “unable to go into the exact circumstances of [the

stop]...because that it not material to the case. It is material

to the case that this was a lawful stop.” The court explained that

the government had addressed the legality of the stop in its

opening statement; that it had offered uncontroverted testimony

from two witnesses that the stop was lawful; and that the

government was not required to explain the circumstances of the

7
stop. The court stated that it was merely calling these facts to

the jury’s attention and that the jury should draw its own

conclusions from them. The court reiterated that the jury is the

sole judge of the defendant’s guilt or innocence.

Counsel for Mitchell did not object during these statements

but, after the jury had been excused to continue its deliberations,

moved for a mistrial on the grounds that the court’s comments were

“improper” and “flat out wrong.” Defense counsel argued that the

court erred by mentioning the prosecutor’s opening statement

because it was not evidence and that the court’s reference to the

opening statement had bolstered the actual evidence. Counsel

further argued that the court’s statement that the legality of the

stop had not been controverted, infringed on the presumption of

innocence and the defendant’s right to remain silent. Defense

counsel conceded, however, that he did not question that Mitchell

had been lawfully stopped.

In a federal trial the court need not merely act as a

moderator of the proceedings.8 The court may comment on the

evidence, clarify the facts presented, and elicit facts not yet

adduced.9 Even if the trial court makes an improper comment to the

jury, the error does not entitle a defendant to a new trial unless

the comment is substantial error and prejudicial to the defendant’s

8
Moore v. United States, 598 F.2d 439, 442 (5th Cir. 1979).
9
Id.

8
case.10 On appeal, we view the proceedings as a whole to determine

whether the trial judge “overstepped the limits imposed on [his]

conduct.”11 To rise to the level of error, the trial court’s

actions, “viewed as a whole, must amount to an intervention that

could have led the jury to a predisposition of guilt by improperly

confusing the functions of judge and prosecutor.”12

We are satisfied that, in the instant case, the court’s

comments in response to the jury’s question about the legality of

the stop do not rise to the level of reversible error. First,

Mitchell does not dispute that the stop was legal. Second, the

legality of the stop clearly was not material to Mitchell’s guilt

or innocence.13 Even though that district court’s statement that

the legality of the stop was material was wrong, the innaccuracy of

that statement was irrelevant to the propriety of the jury’s

verdict.

The court correctly instructed the jury that the arguments of

the attorneys were not to be considered as evidence and that the

jury was free to disregard the court’s comments on the evidence.

10
See United States v. Wallace, 32 F.3d 921, 928 (5th Cir.
1994).
11
United States v. Carpenter, 776 F.2d 1291, 1294 (5th Cir.
1985)(finding no reversible error in the district judge’s comment
that he “had yet to hear a defense”).
12
United States v. Flores, 63 F.3d 1342, 1360 (5th Cir.
1995)(internal quotation and citation omitted), cert. denied, 117
S. Ct. 87 (1996).
13
See 18 U.S.C. § 922(g)(1).

9
The jury is presumed to have followed these instructions.14

Mitchell did not request that the jury be specifically instructed

that the opening statements were not evidence, and he has failed to

show that the absence of such an instruction constituted plain

error.15 We conclude that Mitchell has failed to show that the

district court abused its discretion in denying the motion for a

mistrial.16

C. Sentence

As noted, the PSR employed Guideline § 2K2.1(c) to reach a

base offense level of 28. Guideline § 2K2.1(c)(1)(A) provides:

(1) If the defendant used or possessed any
firearm or ammunition in connection with the
commission or attempted commission of another
offense, or possessed or transferred a firearm
or ammunition with knowledge or intent that it
would be used or possessed in connection with
another offense, apply...

(A) § 2X1.1 (Attempt, Solicitation, or
Conspiracy) in respect to that other offense,
if the resulting offense level is greater than
that determined above.17

That Mitchell possessed the gun in question is no longer

challenged. To subject Mitchell to the provision of Guideline §

2K2.1(c), however, the court had to find by a preponderance of the

evidence that the handgun found under the seat of the car was

14
Richardson v. Marsh, 481 U.S. 200, 211 (1987).
15
See United States v. Dukes, 139 F.3d 469, 476 (5th Cir.)
(reviewing challenge to jury instruction for plain error when
defendant did not request a specific instruction), cert. denied,
119 S. Ct. 215 (1998).
16
See Ramirez, 963 F.2d at 699.
17
U.S.S.G. 2K2.1(c)(1)(A) (emphasis added).

10
possessed by Mitchell either (1) “in connection with the commission

or attempted commission of another offense” or (2) “with knowledge

or intent that [the gun] would be...possessed in connection with

the commission or attempted commission of another offense....”18

The “other offense” here was his possession of a distribution

quantity of crack cocaine in the locked box. With this in mind, we

turn to the facts on which the district court relied in sentencing

Mitchell.19

First, the record shows that, when he was stopped, Mitchell

had been under surveillance for an unrelated drug offense, but that

no drugs were recovered from the car he was driving to take the

three young children to school. Although the jury in the first

trial acquitted Mitchell of possessing the gun in the plastic bag

in the same room as the locked box that contained the drugs, the

evidence shows that it was his gun and was in close proximity to

the drugs on which his “other offense” sentencing enhancement is

now predicated. In contrast, there is no evidence that the car had

been used to transport those or any drugs to or from the house;

18
Id. (emphasis added). Like the PSR, the sentencing court
relied on and applied only the first of § 2K2.1(c)(1)’s two
alternative “in connection with” standards.
19
Inasmuch as the PSR credited by the district court in
assessing Mitchell’s sentence relied entirely on the first,
present tense prong (“possessing a firearm or ammunition in
connection with the commission or attempted commission of another
offense”) and did not address the second, future tense prong
(“possessed or transferred a firearm or ammunition with knowledge
or intent that it would be used or possessed in connection with
another offense”), we need not and therefore do not address the
second prong, particularly its distinguishing “knowledge or
intent” element.

11
indeed, a police search and a drug dog sniff turned up no sign of

drugs in the car, past or present. There is no evidence that the

gun had ever been in the house or that Mitchell had any intention

of —— or reason for —— taking it into the house; neither is there

evidence of there ever having been either spatial or functional

proximity of the gun in the car and the drugs in the house. Nor is

there any evidence that Mitchell had any intention of taking the

subject drugs from the house to the car.

Moreover, if there is any reasonable inference to be drawn

from the possession of any gun “in connection with the commission”

of the “other offense,” i.e., possession of the narcotics in the

locked box inside the house, that inference must be drawn relative

to Mitchell’s own gun which was found in the plastic bag, alongside

the locked box. The presence of that gun inside the house, in

immediate proximity to the locked box, begs the question, “Why

would Mitchell use or possess, or intend to use or possess, Berry’s

gun —— located as it was outside the house, under the car seat ——

in connection with possession of the drugs in the locked box inside

the house when Mitchell’s own gun was right there?” Again, the

only scintilla of evidence purporting to link Mitchell’s

constructive possession of the gun in the car to the drugs he

constructively possessed in the box inside the house is Mitchell’s

coincidental possession of keys to the box and the car keys at the

time he was stopped while driving the car —— the proverbial reed

too slender.

12
 These are the discrete facts found by the district court in

connection with Mitchell’s sentencing. A factual finding is not

clearly erroneous if it is “plausible in the light of the record as

a whole.”20 A sentencing court may consider “any information which

has sufficient indicia of reliability to support its probable

accuracy.”21 The PSR is considered reliable evidence for sentencing

purposes.22 If the defendant does not submit affidavits or other

evidence to rebut the information in the PSR, the district court

may adopt its findings without further inquiry or explanation.23

But, Mitchell is not contesting the discrete facts in the PSR

that were relied by the sentencing court, i.e., the location of the

drugs, the location of the locked box, the location of his gun in

the house (for possession of which he was acquitted in the first

trial), the ownership and location of the car he was driving when

stopped, the ownership and location of the gun in the car (for

possession of which Mitchell was convicted in the second trial),

his residing in the house of another with his girlfriend, or his

possession of a key chain on which there were two keys to the

locked box and a key to the car. What Mitchell is contesting is

the conclusion drawn by the sentencing court on the basis of these

particular facts regarding the nexus between the possession of the

20
Edwards, 65 F.3d at 432.
21
United States v. Vital, 68 F.3d 114, 120 (5th Cir.
1995)(quotation and citation omitted).
22
Id.
23
Id.

13
gun in the car and the “commission or attempted commission” of

another offense —— again, an offense not charged in this case and

not an offense for which Mitchell had been convicted —— involving

the narcotics in the locked box back at the house.24

The facts we considered in United States v. Condren well

illustrate the points that distinguish it from the instant case.25

There, Condren’s home was searched pursuant to a warrant obtained

after he had sold crack cocaine to an undercover officer. The

search revealed a loaded firearm in a desk drawer and a small

amount of cocaine base and marijuana seed lying on the top of the

same desk.26 Also, at issue in Condren was Guideline § 2K2.1(b)(5),

not § 2K2.1(c)(1), with which we deal today. Still, Condren’s

discussion of the provision of the former subsection presents a

“useful, if imperfect, standard for comparison,”27 as both of those

24
Although the conclusion that the district court drew on
the basis of these discrete facts would appear to be a legal one,
or at least a mixed question of fact and law, we are bound by the
precedent of our decisions, see, e.g., United States v. Condren,
18 F.3d 1190 (5th Cir. 1994), to treat the district court’s
determination of the relationship between the firearm and another
offense as a factual finding and review that determination for
clear error rather than de novo. See id. at 1199-2000. Even so,
when we apply that standard we are left with the distinct
impression that the district court’s nexus determination in this
case is not plausible in light of the record and is thus clearly
erroneous.
25
118 F.3d 1190 (5th Cir. 1994).
26
Id. at 1191-94.
27
Id. at 1197; see also United States v. Nale, 101 F.3d
1000, 1003 (4th Cir. 1996)(relying on cases interpreting §
2K2.1(b)(5) to aid in interpreting § 2K2.1(c)’s “in connection
with” language).

14
subsections require an in-context construction of the phrase “in

connection with.”28

In Condren, the government urged us to apply the phrase “in

connection with” in a straightforward and literal fashion,

referring to the connection required between the firearm and the

other offense as “nexus.”29 The government argued that we should

find the existence of such link or connection there “because both

the gun and the drugs were in Condren’s possession at the same time

and in close proximity to one another.”30 Our panel in Condren then

elucidated the findings of fact that bore on the required

connection: (1) The firearm was found in precisely the same

location “where drugs or drug paraphernalia [w]ere stored or where

part of the drug transaction occurred”;31 (2) the gun was “in close

28
“Hence, we turn to the issue before us: the relationship
that must exist between firearm possession and the other
[offense]; specifically, the construction to be given ‘in
connection with’.” Condren, 18 F.3d at 1195.
29
Id. at 1196 n.18.
30
Id. at 1196 (emphasis added); but see United States v.
Thompson, 32 F.3d 1, 8 (4th Cir. 1994)(suggesting that physical
proximity is not required). Although we agree that such
proximity is not an indispensable element of “connection” it is
certainly an important consideration; the greater the physical
separation, the greater the attenuation, and thus the greater the
government’s hurdle to reach nexus. In fact, a thorough review
of our cases in which the needed “connection” has been found to
exist reveals that close physical proximity was found and relied
on. See, e.g., United States v. Hernandez (unpublished by
precedential), No. 91-8249 (5th Cir. Feb. 26, 1992)(finding
presence of gun and marijuana in same room); United States v.
Richardson, 87 F.3d 706, 709 n.4 (5th Cir. 1996)(gun seized by
agents while investigating drug trafficking in residence); United
States v. Gonzales, 996 F.2d 88, 92 n.6 (5th Cir. 1993)(illegally
acquired guns present in car during kidnapping).
31
Condren, 18 F.3d at 1199.

15
physical proximity to the narcotics...in a drawer of the very desk

where the drugs were found”;32 the gun was fully loaded;33 and “it

was readily available to [Condren] to protect his drug-related

activities.”34

The facts that in Condren we considered significant to the

“connection” element for purposes of Guideline § 2K2.1(b)(5) are

palpably different from those we consider today in reviewing the

sentencing court’s determination of nexus between the gun possessed

in the car and the “other offense” of drug possession in the house

for purposes of Guideline § 2K2.1(c)(1): The handgun of conviction

in Condren was in a drawer of the very same desk where the

narcotics were located, whereas geographically, spatially, and

functionally, the gun of conviction in the instant case was remote

from the crack cocaine in the locked box inside the house; and,

significantly, another gun —— one concededly belonging to Mitchell

—— was in immediate proximity of the drugs and thus available to

protect the crack, the trafficker, and the trafficking operations

—— in essence, an intervening firearm that further attenuates the

functional nexus between the gun under the seat of the car and the

contraband in the house. Unlike the firearm in Condren, the gun in

the car driven by Mitchell was never “readily available” to

Mitchell to protect his drugs or his drug-related activities.

32
Id. at 1200 (quotation and citation omitted).
33
Id.
34
Id.

16
Indeed, the only factual similarity of these two cases is that both

guns of conviction were loaded!

In addition to the foregoing factual distinctions between

Mitchell’s case and Condren’s, and the legal distinction that in

Condren we were reviewing the application of Guideline §

2K2.1(b)(5) but Mitchell’s turns on §2K2.1(c)(1), there is yet

another significant difference —— noted in dicta in Condren —— that

further calls into question the propriety of applying the latter

Guideline subsection in this case. Unlike the Guideline provision

applied in Condren, the “connection” required for applicability of

Guideline § 2K2.1(c)(1) is with the commission of another offense.

We agree with the dicta in the Condren opinion —— and adopt it by

reference as part of our holding today —— that § 2K2.1(c)’s

requirement that the firearm be possessed in connection with the

commission of another offense “mandate[s] a closer relationship

between the firearm and the other offense than that required for §

2K2.1(b)(5) purposes.”35 This is what we refer to as the functional

nexus required by § 2K2.1(c).36 Here, the gun under the car seat

was at least as attenuated functionally as it was physically from

the drugs in the locked box and Mitchell’s constructive possession

of those drugs.

35
Id. at 1197 (emphasis added).
36
See, e.g., Richardson, 87 F.3d at 709 (noting in dicta
that “[i]f the gun was present to facilitate the drug trafficking
activities that were occurring at the resident [sic], that
conduct could have been sanctioned by applying...§ 2K2.1(c).”).

17
 Even though we remain mindful of the concerns in all

responsible quarters —— Congress, the Sentencing Commission, law

enforcement, and the courts —— about drug trafficking and firearms,

and fully agree with those who repeat the truism that guns are the

tools of the trade in the illicit drug industry, we do not discern

that (1) Congress, in enacting firearms legislation, (2) the

Sentencing Commission, in drafting firearms guidelines, or (3) the

courts, in interpreting both, have gone so far as to create or

recognize an ipso facto nexus rule between firearms and illicit

drugs every time a defendant who is convicted of the abuse of one

has some relationship with the other, no matter how attenuated. In

other words, there is no conclusive presumption, either statutory

or jurisprudential, that a “connection” exists automatically

between drugs and guns —— certainly not in Guideline § 2K2.1(c)(1),

given its express requirement of a connection between possession of

the firearm and commission or attempted commission of another

offense.37 We are left, therefore, with the distinct impression

that the constructive possession of the gun under the car seat by

virtue of Mitchell’s driving the car while he was taking the three

children to school, was too geographically, spatially,

functionally, and logically remote from his possession of crack

cocaine (which, for purposes of relevant conduct —— not conviction

—— Mitchell constructively possessed by virtue of those drugs being

located in the locked box inside the house where he and his

girlfriend were residing) to satisfy the requirement of a

37
See supra n.19.

18
cognizable linkage between possession of the gun and “commission or

attempted commission of another offense.” Cumulatively, the two

are simply too attenuated to permit nexus! Specifically, the mere

coincidence of keys to the locked box and to the car on Mitchell’s

key ring is too minimal to bridge the attenuated nexus gap,

particularly when viewed in light of the presence of an intervening

firearm, owned by Mitchell, in much closer proximity to the drugs

than was the gun of conviction. In essence, under the particular

facts of this case, the chasm of nexus between the gun and the

drugs requires a leap of legal logic too great to make the required

connection. We are constrained to conclude that the sentencing

court’s finding of the required connection was clearly erroneous.

III.
CONCLUSION

For the reasons set forth in section II B. of this opinion, we

affirm Mitchell’s conviction, notwithstanding the remarks made to

the jury by the district court in response to the question

propounded to the court during the course of jury deliberations.

But, for the reasons set forth in section II C. above, regarding

Mitchell’s sentence —— specifically, the application of Guideline

§ 2K2.1(c) —— we discern a clear error in the finding of the

required connection between Mitchell’s possession of the firearm in

the car and his possession of the drugs in the locked box back in

the house. As the offense level produced was such that a

significant difference in Mitchell’s sentencing range resulted, the

error cannot be considered harmless. These conclusions, in turn,

leave us no choice but to vacate Mitchell’s sentence and remand the

19
case to the district court for resentencing in a manner consistent

with this opinion.

Conviction AFFIRMED; Sentence VACATED; and Case REMANDED for

resentencing.

20