United States Court of Appeals
FOR THE EIGHTH CIRCUIT
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No. 10-1946
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United States of America, *
*
Appellee, *
* Appeal from the United States
v. * District Court for the Western
* District of Missouri.
Tommie E. Jackson, *
* [PUBLISHED]
Appellant. *
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Submitted: November 17, 2010
Filed: January 28, 2011
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Before WOLLMAN, HANSEN, and SHEPHERD, Circuit Judges.
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HANSEN, Circuit Judge.
Tommie E. Jackson pleaded guilty to unlawful possession of a firearm as a
previously convicted felon in violation of 18 U.S.C. § 922(g)(1). The district court1
sentenced Jackson to 110 months' imprisonment. Jackson appeals his sentence,
arguing that the district court erroneously applied a specific offense characteristic,
found in § 2K2.1 of the United States Sentencing Commission Guidelines Manual
(USSG or Guidelines), for possession of a firearm in connection with another felony
1
The Honorable Greg Kays, United States District Judge for the Western
District of Missouri.
offense. The district court correctly interpreted and applied the specific offense
characteristic, and so we affirm.
I.
In April 2008, Jackson confronted two men who were in an automobile parked
on the side of a residential street in Springfield, Missouri. When Jackson pulled up
and parked his vehicle facing their vehicle, the two men thought they had parked in
Jackson's space and so they backed their vehicle away from Jackson's vehicle. At that
point, Jackson exited his vehicle carrying a handgun and began shouting at the two
men, causing them to flee the area in their vehicle. After the two men drove past
Jackson, he fired several shots from his handgun. The two men could not identify
Jackson's intended target.
Shortly thereafter, and while responding to witness reports of gunshots, police
observed a speeding vehicle run a stop sign. Police detained the vehicle and
questioned its driver, Mr. Jackson. After conflicting stories from Jackson and a
positive witness identification of Jackson as the shooter, law enforcement extensively
searched Jackson's vehicle and discovered a handgun in the engine compartment. The
handgun was of the same caliber as five spent shell casings found at the scene of the
shooting. Confronted with this evidence, Jackson admitted to officers that he fired the
shots into the air but denied he fired at the two men or their automobile.
Jackson was arrested and eventually indicted for violating 18 U.S.C.
§ 922(g)(1) by being a felon in possession of a firearm. Jackson pleaded guilty, and
the presentence investigation report (PSR) recommended application of USSG
§ 2K2.1(b)(6), requiring a four-offense-level increase because Jackson possessed or
used the firearm in connection with the Missouri crime of unlawful use of a weapon.
Jackson objected to certain facts contained in the PSR, as well as application of
§ 2K2.1(b)(6), but ultimately acknowledged that if called at a sentencing hearing,
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multiple witnesses would testify to the facts detailed above. Jackson also agreed that
if called at sentencing he would testify that he fired the shots into the air to express his
anger at God.
At sentencing, the district court found that Jackson possessed the handgun in
connection with the Missouri offense of unlawful use of a weapon. The district court
applied the challenged specific offense characteristic, raising Jackson's total offense
level by four levels. With an applicable criminal history category of V, Jackson's
advisory guidelines sentencing range was 100 to 120 months' imprisonment. The
district court sentenced Jackson to 110 months' imprisonment. Jackson appeals the
sentence.
II.
We review de novo the district court's interpretation and application of the
Guidelines. United States v. Betts, 509 F.3d 441, 445 (8th Cir. 2007). We review the
district court's factual findings for clear error. Id.
III.
USSG § 2K2.1 guides district courts when sentencing for firearms convictions.
In this case, the district court applied § 2K2.1(b)(6) which "directs the court to
increase the defendant's offense level by four if he 'used or possessed any firearm or
ammunition in connection with another felony offense.'" United States v. Chapman,
614 F.3d 810, 812 (8th Cir.) (quoting USSG § 2K2.1(b)(6)), cert. denied, 131 S. Ct.
543 (2010). The commentary applicable to § 2K2.1(b)(6) defines "another felony
offense "to mean "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." USSG § 2K2.1(b)(6) comment. (n.14(C)).
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The district court found that Jackson committed the Missouri offense of
unlawful use of a weapon in connection with the underlying federal offense of
conviction, possession of a firearm by a felon. Missouri law states that "[a] person
commits the crime of unlawful use of weapons if he or she knowingly . . . [e]xhibits,
in the presence of one or more persons, any weapon readily capable of lethal use in
an angry or threatening manner." Mo. Rev. Stat. § 571.030.1. The offense is a class
D felony, id. § 571.030.7, which is punishable by up to four years' imprisonment, id.
§ 559.011.1. Jackson does not argue on appeal that the district court erred in finding
that he committed the Missouri felony offense.2
Instead, Jackson argues that his conduct does not support the district court's
application of the specific offense characteristic found in USSG § 2K2.1(b)(6). In
support of this general position, Jackson essentially makes two distinct legal
arguments. First, he argues that the Missouri offense of unlawful use of a weapon is
excluded from § 2K2.1(b)(6) by the Guideline’s commentary defining "another felony
offense." Second, Jackson argues that even if the commentary does not exclude the
Missouri offense, the district court's application of § 2K2.1(b)(6) in the particular
circumstances of this case would punish him twice for a single course of criminal
conduct. Seeing no merit in either argument, we affirm.
2
Although the district court did not make an explicit finding that Jackson
violated Missouri Revised Statute § 571.030.1, it did overrule Jackson's objection to
application of USSG § 2K2.1 by stating "as to the objection—as to whether or not this
fact situation is consistent with the—the felony offense—Missouri felony offense of
unlawful use of a weapon or exhibiting in a[n] angry or threatening manner, I'm going
to overrule your objection in that regard." (Sent. Tr. at 11.) A factual finding that
Jackson committed the Missouri offense was implied.
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As to Jackson's first argument, which raises an issue of interpretation of the
Guidelines, we start with the proposition that the plain language of § 2K2.1(b)(6) casts
a broad net. If the defendant used or possessed a firearm in connection with another
felony, his offense level must be increased. Application note 14(C) narrows the scope
only slightly, by defining "another felony offense" to exclude "the explosive or
firearms possession or trafficking offense." Importantly, application note 14(C) does
not exclude "any," "an," or "a" firearms possession offense. The word "the" is a
definite article commonly employed to refer to something specific. See United States
v. I.L., 614 F.3d 817, 821 (8th Cir. 2010). The phrase "the . . . firearms possession .
. . offense" in application note 14(C) most plainly refers to the underlying offense of
conviction—in Jackson's case, possession of a firearm by a felon. Thus, the plain
language of application note 14(C) excludes only the underlying firearms possession
offense of conviction from the definition of "another felony offense."
In this case, the district court relied on the Missouri state offense of unlawful
use of a weapon, which is clearly not the same offense as the underlying federal
offense of conviction. The district court did not err in interpreting the Guidelines not
to exclude the Missouri unlawful use of a weapon offense.
In support of his argument that application note 14(C) excludes the Missouri
offense of unlawful use of a weapon from the definition of "another felony offense,"
Jackson relies on United States v. English, 329 F.3d 615 (8th Cir. 2003), and United
States v. Lindquist, 421 F.3d 751 (8th Cir. 2005), cert. denied, 550 U.S. 905 (2007),
abrogated on other grounds as recognized in United States v. Steward, 598 F.3d 960,
962-63 (8th Cir. 2010), both of which considered the specific offense characteristic
for possessing or using a firearm in connection with another felony. The Government
argues that English and Lindquist are not controlling because the applicable guidelines
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commentary has been amended, narrowing the offenses that trigger the exclusion.3
In response, Jackson argues that the amendment did not change the meaning of §
2K2.1(b)(6). Regardless of whether the amendment effected a change in the meaning
of the Guidelines, English and Lindquist instruct that the district court did not err in
this case.
English held that, even under the previous version, what is now application note
14(C) should be read narrowly. 329 F.3d at 618. In that case, we refused to read the
definition of "another felony offense" to exclude all offenses in which the underlying
conduct merely involved firearms possession. Id. at 617. At the same time, we
recognized that "it would be unreasonable, and hence presumably contrary to the
Commission's intent, to allow the 'additional felony' to be an offense that the
defendant has to commit, in every case, in order to commit the underlying offense."
Id. at 618. We held that to be excluded under the predecessor to application note
14(C) the additional felony must be "an offense which contains, as an element, the
presence of a firearm." Id.
The additional felony in English was the Iowa offense of possession of stolen
property valuing over $1000. Id. at 617. We recognized "[t]hat there is nothing about
[that] theft offense that necessarily has anything to do with firearms." Id. at 618
(citing Iowa Code § 714.1(4)). That the offense lacked as a requisite element the
presence of a firearm led inexorably to the conclusion that the theft offense was "not
among the list of excluded offenses that cannot serve as an additional felony for the
purposes of" what is now the § 2K2.1(b)(6) specific offense characteristic. Id. at 618.
We affirmed the district court's application of the same specific offense characteristic
at issue in this case. Id.
3
Prior to the 2006 amendment, § 2K2.1(b)(6) was numbered § 2K2.1(b)(5) and
the applicable commentary, application note 15, defined "another felony offense" to
"refer to offenses other than explosives or firearms possession or trafficking offenses."
See, e.g., USSG § 2K2.1(b)(5), & comment. (n.15) (2005).
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Similarly, there is nothing about the Missouri unlawful use of a weapon offense
that necessarily has anything to do with firearms. The Missouri statute is violated by
exhibiting "any weapon readily capable of lethal use." Mo. Rev. Stat. § 571.030.1(4).
Numerous weapons qualify as readily capable of lethal use. Thus, English supports
rather than undermines the district court's interpretation of § 2K2.1(b)(6). The
underlying offense here does not "contain[], as an element, the presence of a firearm."
See English, 329 F.3d at 618.
Jackson also cites Lindquist, where we reversed the district court's application
of the specific offense characteristic found in § 2K2.1(b)(6). 412 F.3d at 752. After
Lindquist pleaded guilty to being a felon in possession of a firearm, "the district court
found that Lindquist possessed the firearm in connection with violating Iowa Code §
724.16, which prohibits acquiring ownership of a handgun without a valid annual
permit to acquire handguns." Id. at 753. "As a person with a prior felony conviction,
Lindquist was statutorily prohibited from legally acquiring ownership of the
handgun." Id. at 756 (citing Iowa Code § 724.15(1)(b)). Thus, Lindquist could not
have committed the underlying federal offense without also violating the state offense
that the district court used to support the specific offense characteristic. For that
reason, we relied on the principle expounded in English, that "'it would be
unreasonable, and hence presumably contrary to the Commission's intent, to allow the
'additional felony' to be an offense that the defendant has to commit, in every case, in
order to commit the underlying offense,'" Lindquist, 421 F.3d at 756 (quoting English,
329 F.3d at 618), and we vacated Lindquist's sentence.
This case is distinguishable from Lindquist. Jackson was not doomed to
automatically commit the additional felony when he violated 18 U.S.C. § 922(g) by
possessing a firearm as a felon. Instead, additional affirmative conduct was required
to violate Missouri Revised Statute § 571.030.1(4). Apart from possessing the
firearm, Jackson had to exhibit it in an angry or threatening manner. Thus, Lindquist
does not support Jackson's broad reading of the application note 14(C) exclusion.
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In addition to his argument that the Missouri offense is categorically excluded
by the text of the Guidelines, Jackson argues that application of § 2K2.1(b)(6) in the
particular circumstances of this case amounted to impermissible double counting. We
recently rejected an identical argument in Chapman, 614 F.3d at 812. In that case,
"Chapman pled guilty to receipt of stolen firearms, unlawful possession of a firearm
as a previously convicted felon, and unlawful possession of ammunition as a
previously convicted felon." Id. at 810. As in English, the district court in Chapman
applied USSG § 2K2.1(b)(6), again relying on the additional felony of theft of
property exceeding $1000 in value. Id. at 811 (citing Iowa Code § 714.2(2)).
"Chapman argue[d] that the calculation of the base offense level for Count 1, which
alleged that he received stolen firearms, already accounted for the theft . . . , and that
it was therefore error to count that theft again by applying the four-level enhancement
under § 2K2.1(b)(6)." Id. at 812.
We noted that "double counting occurs when one part of the Guidelines is
applied to increase a defendant's punishment on account of a kind of harm that has
already been fully accounted for by application of another part of the Guidelines." Id.
(marks and quotations omitted). We also pointed out that "double counting is
permissible if the Sentencing Commission so intended and each guideline section
furthers an independent purpose of sentencing." Id. Relying on English, we rejected
Chapman's double-counting argument. We held that "[a] knowing recipient of stolen
firearms in violation of § 922(j), like a felon in possession of stolen firearms, will not
necessarily violate the Iowa felony theft statute, because the federal statute does not
require value in excess of $1000." Chapman, 614 F.3d at 813 (citing English, 329
F.3d at 618).
In the same way, the Missouri unlawful use of a weapon offense found by the
district court here is distinct from the underlying federal felon-in-possession offense.
The Missouri offense requires exhibition of the firearm in an angry or threatening
manner, which is not necessary to prove the underlying felon-in-possession offense;
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the underlying offense requires proof that the accused is a previously convicted felon,
which is not required by the Missouri offense. Thus, application of the specific
offense characteristic found in USSG § 2K2.1(b)(6) increases Jackson's punishment
on account of conduct not accounted for by the base offense level found in USSG §
2K2.1(a). Because the two parts of the Guidelines punish different aspects of
Jackson's conduct, no impermissible double counting occurred.
IV.
Accordingly, the judgment of the district court is affirmed.
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