FILED
United States Court of Appeals
Tenth Circuit
PUBLISH
April 14, 2009
UNITED STATES COURT OF APPEALS
Elisabeth A. Shumaker
TENTH CIRCUIT Clerk of Court
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v. No. 07-8099
MATTHEW O. MORRIS,
Defendant - Appellant.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF WYOMING
(D.C. No. 2:07-CR-147-ABJ-1)
Gregory A. Phillips, Assistant United States Attorney (Kelly H. Rankin, United
States Attorney, with him on the brief), Cheyenne, Wyoming, for
Plaintiff-Appellee.
Wendy C. Palen of Palen Law Offices, LLP, Glendo, Wyoming, for
Defendant-Appellant.
Before KELLY, TYMKOVICH, Circuit Judges, and DeGIUSTI, * District Judge.
DeGIUSTI, District Judge.
Defendant-Appellant Matthew O. Morris appeals his federal prison
sentence for unlawful possession of a firearm to challenge the district court’s
*
Honorable Timothy D. DeGiusti, District Judge, United States District
Court for the Western District of Oklahoma, sitting by designation.
application of § 2K2.1(b)(6) of the Sentencing Guidelines to the circumstances of
his offense. There is no question that, because Mr. Morris took possession of the
firearm during a burglary, Application Note 14(B) to § 2K2.1 directed the district
court to apply subsection (b)(6), which authorizes a four-level enhancement if the
defendant possessed a firearm “in connection with another felony offense.”
U.S.S.G. § 2K2.1(b)(6). The sole issue presented for decision is whether
Application Note 14(B) is inconsistent with § 2K2.1(b)(6) and, therefore, should
not have been followed. We have jurisdiction under 28 U.S.C. § 1291 and 18
U.S.C. § 3742(a), and we affirm.
BACKGROUND
On March 9, 2007, Mr. Morris confessed to the burglary of an apartment in
Cheyenne, Wyoming. Mr. Morris also admitted taking a .223 caliber Bushmaster
rifle, Model XM15, in the course of the burglary. Mr. Morris had previously been
convicted of a crime punishable for a term of imprisonment exceeding one year.
Also, the rifle was manufactured outside the State of Wyoming and, therefore,
had traveled in interstate commerce.
On May 17, 2007, Mr. Morris was charged in a one-count indictment with
being a felon in possession of a firearm in violation of 18 U.S.C. §§ 922(g)(1) and
924(a)(2). Pursuant to a written plea agreement, Mr. Morris entered his guilty
plea on September 25, 2007. No other charges were brought by local, state, or
federal authorities.
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In calculating a guidelines sentence, the presentence report (“PSR”) utilized
a base offense level of 20 under the applicable guideline provision, § 2K2.1. See
U.S.S.G. § 2K2.1(a)(4)(A). The PSR then applied a two-level enhancement
because the offense involved a stolen a firearm. See U.S.S.G. § 2K2.1(b)(4)(A).
The PSR also applied a four-level enhancement for use or possession of the
firearm in connection with another felony offense, the burglary in which the rifle
was obtained. See U.S.S.G. § 2K2.1(b)(6). After a three-level reduction for
acceptance of responsibility, the PSR provided a total offense level of 23 and a
criminal history category of III, which resulted in a guideline range of
imprisonment of 57 to 71 months.
In a written objection to the PSR, Mr. Morris objected to the four-level
enhancement of § 2K2.1(b)(6) only on the ground of “over-counting.” 5 R. at
Addendum. At the sentencing hearing, defense counsel did not explain this
objection; she indicated only that the objection was intended to preserve for
appellate review the applicability of the enhancement. Sent’g Tr. at 5. The
district court overruled the objection and, relying on Application Note 14(B),
applied § 2K2.1(b)(6) to calculate Mr. Morris’s sentence. The district court then
imposed a sentence of 57 months’ imprisonment, followed by a three-year term of
supervised release, a $100 special assessment, and restitution in the amount of
$1,844.85.
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STANDARD OF REVIEW
In this appeal, Mr. Morris argues for the first time that Application
Note 14(B) should be disregarded due to an alleged inconsistency with
§ 2K2.1(b)(6). Specifically, he contends the enhancement provided by
§ 2K2.1(b)(6) for possession of a firearm in connection with “another felony
offense” necessarily connotes a separation of time or a distinction of conduct. In
his view, Application Note 14(B) erroneously expands § 2K2.1(b)(6) to apply to
contemporaneous situations in violation of the plain meaning of that guideline.
The government contends that Mr. Morris raises a new objection to the
application of § 2K2.1(b)(6) that was not presented to the district court, and thus
we should review for plain error the district court’s decision to apply
§ 2K2.1(b)(6). 1 Plain error review is appropriate when a defendant fails to
properly challenge an error in the district court. See United States v. Teague, 443
F.3d 1310, 1314 (10th Cir. 2006); Fed. R. Crim. P. 52(b). Under the plain error
doctrine, “we will reverse the judgment below only if ‘there is (1) error, (2) that
is plain, which (3) affects substantial rights, and which (4) seriously affects the
fairness, integrity, or public reputation of judicial proceedings.’” Teague, 443
1
At oral argument, the government also argued that Mr. Morris waived or
forfeited this objection because he stipulated in the plea agreement that
§ 2K2.1(b)(6) would apply at sentencing. We decline to address arguments that
are not briefed or are inadequately briefed. See Bronson v. Swensen, 500 F.3d
1099, 1104-05 (10th Cir. 2007); Adler v. Wal-Mart Stores, Inc., 144 F.3d 664,
679 (10th Cir. 1998); see also Fed. R. App. P. 28(a)(6).
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F.3d at 1314 (quoting United States v. Gonzalez-Huerta, 403 F.3d 727, 732 (10th
Cir. 2005) (en banc)); see United States v. Olano, 507 U.S. 725, 732-36 (1993).
Notably, Mr. Morris’s brief does not address the proper standard of review,
contrary to Fed. R. App. P. 28(a)(9)(B). When questioned during oral argument,
his counsel argued that the objection was sufficiently presented to the district
court to preserve the current issue for appellate review. We disagree. Because
Mr. Morris’s trial counsel failed to lodge a specific objection based on the issue
now presented for decision on appeal, we find plain error review to be
appropriate. See United States v. Gilkey, 118 F.3d 702, 704 (10th Cir. 1997).
DISCUSSION
Section 2K2.1(b)(6) provides for a four-point increase in offense levels “if
the defendant used or possessed any firearm or ammunition in connection with
another felony offense; or possessed . . . any firearm or ammunition with
knowledge, intent, or reason to believe that it would be used or possessed in
connection with another felony offense.” U.S.S.G. § 2K2.1(b)(6). Application
Note 14 to § 2K2.1 defines the phrase “in connection with” as it is used in
subsection (b)(6) and (c)(1). It states in pertinent part:
(A) In General. Subsections (b)(6) and (c)(1) apply if the firearm
or ammunition facilitated, or had the potential of facilitating, another
felony offense or another offense, respectively.
(B) Application When Other Offense is Burglary or Drug Offense.
Subsections (b)(6) and (c)(1) apply (i) in a case in which a defendant
who, during the course of a burglary, finds and takes a firearm, even
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if the defendant did not engage in any other conduct with that firearm
during the course of the burglary . . . . In these cases, application of
subsections (b)(6) and (c)(1) is warranted because the presence of the
firearm has the potential of facilitating another felony offense or
another offense, respectively.
(C) Definitions. “Another felony offense,” for purposes of
subsection (b)(6), means any federal, state, or local offense, other
than the explosive or firearms possession or trafficking offense,
punishable by imprisonment for a term exceeding one year,
regardless of whether a criminal charge was brought, or a conviction
obtained.
U.S.S.G. § 2K2.1, cmt. n.14.
Mr. Morris contends the plain meaning of “another felony offense” in
§ 2K2.1(b)(6) connotes the commission of a separate or distinct felony apart from
the defendant’s possession of a firearm. He argues that Application Note 14(B)(i)
erroneously expands § 2K2.1(b)(6) to encompass conduct that is not separate or
distinct when, as in this case, a defendant takes a gun in the course of a burglary
but commits no other offense after he gains possession of the firearm. Thus,
Mr. Morris argues that the four-level enhancement was erroneously applied to
him because Application Note 14(B)(i) inconsistently interpreted § 2K2.1(b)(6) to
include his burglary offense, which occurred contemporaneously with his
possession of the rifle and involved no subsequent felony.
In this argument, Mr. Morris urges an interpretation of the language of
§ 2K2.1(b)(6) that some federal appellate courts had adopted before
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Application Note 14(B) was added by amendment of the Guidelines in 2006. 2 For
example, in United States v. Sanders, 162 F.3d 396, 400-401 (6th Cir. 1998),
relying on a “logical reading” of the guideline term “another felony offense,” the
court required “a finding of a separation of time between the offense of
conviction and the other felony offense, or a distinction of conduct between that
occurring in the offense of conviction or the other felony offense. Otherwise, the
word ‘another’ is superfluous, and of no significance to the application of that
provision.” Id. at 400 (footnote omitted); see also United States v. Fenton, 309
F.3d 825, 827 (3d Cir. 2002); United States v. Szakacs, 212 F.3d 344, 350 (7th
Cir. 2000); United States v. Valenzuela, 495 F.3d 1127, 1132 (9th Cir. 2007).
The opposite view was expressed in United States v. Armstead, 114 F.3d
504 (5th Cir. 1997). In that case, the Fifth Circuit found a burglary of a pawn
shop to be “another” felony offense “even though it arose contemporaneously
with the primary offense, theft of firearms from a licensed firearm dealer.” Id.
at 512. The court in Armstead reasoned that the defendant “possessed firearms
and could have used them in furtherance of ‘another felony,’ the state law crime
of burglary.” Id. at 513. The court noted that “nothing in the Guidelines suggests
that contemporaneous crimes cannot be considered when enhancing a sentence”
2
Effective November 1, 2006, Amendment 691 revised § 2K2.1 and, among
other changes, redesignated subsection (b)(6) from (b)(5) and substantially altered
the accompanying commentary. See U.S.S.G. supp. app. C.
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and considered the concept of relevant conduct in § 1B1.3 “to readily permit such
an enhancement.” Id.; see also United States v. Kenney, 283 F.3d 934, 938 (8th
Cir. 2002).
When amending § 2K2.1 in 2006, the Sentencing Commission explained
that Application Note 14 was intended to address the conflict among the circuits
regarding the application of enhancements under § 2K2.1(b)(6) and (c)(1)
“specifically with respect to the use of a firearm ‘in connection with’ burglary
and drug offenses.” U.S.S.G. supp. app. C, amend. 691 (“Reason for
Amendment”). “The Commission determined that application of these provisions
was warranted in these cases because of the potential that the presence of the
firearm has for facilitating another felony offense or another offense.” Id. The
amendment thus provides clear direction for cases involving burglary offenses
and embodies a rejection of the contention that “another felony offense” should
have the limited meaning Mr. Morris ascribes to it.
The Supreme Court determined in Stinson v. United States, 508 U.S. 36
(1993), that commentary issued by the Sentencing Commission to interpret or
explain a guideline is binding and “authoritative unless it violates the Constitution
or a federal statute, or is inconsistent with, or a plainly erroneous reading of, that
guideline.” Id. at 38. In this context, a guideline and its commentary are
inconsistent only when “following one will result in violating the dictates of the
other . . . .” Id. at 43. The Court also determined that because “the guidelines are
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the equivalent of legislative rules adopted by federal agencies,” the commentary
should “be treated as an agency’s interpretation of its own legislative rule.” Id. at
44-45. The Court reasoned that giving controlling weight to the commentary was
particularly appropriate in light of the Sentencing Commission’s statutory
obligation to review and periodically revise the guidelines. The Court stated:
Although amendments to guidelines provisions are one method of
incorporating revisions, another method open to the Commission is
amendment of the commentary, if the guideline which the
commentary interprets will bear the construction. Amended
commentary is binding on the federal courts even though it is not
reviewed by Congress, and prior judicial constructions of a
particular guideline cannot prevent the Commission from
adopting a conflicting interpretation that satisfies the standard
we set forth today.
Id. at 46 (emphasis added).
In this case, the fact that the Sentencing Commission has declined to
differentiate between contemporaneous and distinct felony offenses does not
make Application Note 14(B) inconsistent with § 2K2.1(b)(6). Nothing in that
guideline suggests that a contemporaneous crime cannot be considered “another”
offense. See Armstead, 114 F.3d at 513. Even before Application Note 14(B)
was adopted, this Court had upheld the application of the four-level firearm
enhancement now reflected in subsection (b)(6) in situations involving
contemporaneous felony offenses. See United States v. Constantine, 263 F.3d
1122, 1124-1125 (10th Cir. 2001) (burglar carrying a handgun with an illegal
silencer properly received a four-level enhancement because “the silencer
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facilitated or had the potential to facilitate the burglary”). 3 Thus, applying
Application Note 14(B) would not violate the dictates of § 2K2.1(b)(6).
Further, Application Note 14(B) remains consistent with § 2K2.1(b)(6)
because it advances and directly corresponds to the policies of the guideline. The
Sentencing Commission adopted Amendment 691 in 2006 to address “various
issues pertaining to the primary firearms guideline” through revisions to § 2K2.1
and its commentary. See U.S.S.G. supp. app. C, amend. 691 (“Reason for
Amendment”). In the words of Stinson, “we can presume that the interpretations
of the guidelines contained in the commentary represent the most accurate
indications of how the Commission deems that the guidelines should be applied to
be consistent with the Guidelines Manual as a whole as well as the authorizing
statute.” Stinson, 508 U.S. at 45. In this case, we need not resort to any such
presumption because the Sentencing Commission expressly explained its reasons
for adopting Application Note 14(B) by reference to other guidelines and the
policies behind them. 4 Thus, regardless whether we approve of the interpretation
of § 2K2.1(b)(6) reflected in Application Note 14(B), we must defer to the
3
The issue presented in Constantine was whether the defendant had used or
possessed the firearm “in connection with” another felony rather than whether
there was “another felony offense.” See id. at 1125.
4
In drafting Application Note 14(B), the Sentencing Commission adopted
language from Smith v. United States, 508 U.S. 223 (1993) (regarding 18 U.S.C.
§ 924(c)(1)), so “that the provisions apply if the firearm facilitated or had the
potential of facilitating, another felony offense or another offense, respectively.”
U.S.S.G. supp. app. C, amend. 691 (“Reason for Amendment”).
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Sentencing Commission’s view unless we can say “that the notes so far depart
from the language of the Guideline that they are ‘inconsistent with, or a plainly
erroneous reading of [the] guideline.’” United States v. Smith, 433 F.3d 714, 716
(10th Cir. 2006) (quoting Stinson, 508 U.S. at 38 (alteration in Smith)). As
discussed above, we cannot say that Application Note 14(B)(i) is inconsistent
with § 2K2.1(b)(6).
In summary, Application Note 14(B)(i) was added to remedy the
disagreement among the courts regarding the application of the four-level
enhancement to cases in which the other offense is a burglary. Neither party has
cited any case subsequent to Amendment 691 which holds that the commentary in
Application Note 14(B) is inconsistent with § 2K2.1(b)(6), and the Court is aware
of no such case. Thus, applying the test for inconsistency set forth in Stinson,
and given the presumption that the Sentencing Commission’s commentary
represents the most authoritative statement of how the guidelines should be
applied, we hold that Application Note 14(B) and § 2K2.1(b)(6) are not
inconsistent. Accordingly, we find that Application Note 14(B) is controlling and
must be applied in computing a correct guidelines sentence.
Turning to Mr. Morris’s challenge to the calculation of his guidelines
sentence, we hold that the district court properly followed Application
Note 14(B)(i) and applied the four-level enhancement of § 2K2.1(b)(6) to
Mr. Morris’s burglary offense. Because the Sentencing Commission’s
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interpretation of § 2K2.1(b)(6) is binding on the courts, we hold there was no
error in the district court’s decision to adhere to the interpretative guidance of the
Sentencing Commission. Necessarily then, we find no plain error in the
application of § 2K2.1(b)(6) to the circumstances of Mr. Morris’s firearm offense.
CONCLUSION
Based on our conclusion that the four-level enhancement for possession of
a firearm in relation to another felony offense was appropriate, and having thus
resolved the sole issue presented, we AFFIRM the sentence imposed by the
district court.
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