[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________ FILED
U.S. COURT OF APPEALS
No. 10-13650 ELEVENTH CIRCUIT
Non-Argument Calendar FEBRUARY 16, 2011
________________________ JOHN LEY
CLERK
D.C. Docket No. 6:10-cr-00005-BAE-GRS-3
UNITED STATES OF AMERICA,
llllllllllllllllllllllllllllllllllllllllPlaintiff-Appellee,
versus
JAMES TYRONE WRICE,
llllllllllllllllllllllllllllllllllllllllDefendant-Appellant.
________________________
Appeal from the United States District Court
for the Southern District of Georgia
________________________
(February 16, 2011)
Before CARNES, WILSON and KRAVITCH, Circuit Judges.
PER CURIAM:
James Tyrone Wrice appeals his 87-month sentence, imposed after he
pleaded guilty and was convicted of theft of firearms from a federal firearms
licensee, in violation of 18 U.S.C. § 922(u).1 Wrice contends that a four-level
U.S.S.G. § 2K2.1(b)(6) enhancement does not apply to him because there was no
evidence that he, instead of one of his codefendants, found or took a firearm in
connection with the burglary of Brantley’s Marine and Gun. He argues that he
should not be held accountable under § 1B1.3 for the acts of his codefendants.
According to the undisputed facts as set forth in the presentence
investigation report, Brantley’s Marine and Gun, a federally licensed firearms
dealer in Georgia, was burglarized in the early morning hours of December 11,
2009. Police officers responded to an alarm at Brantley’s, saw that a concrete
block had been thrown through the window, and later determined that eight
firearms had been stolen. Four days after the burglary, law enforcement used a
confidential informant to purchase a pistol from Wrice at his home. After the
transaction, officers searched Wrice’s home, found cocaine base, and arrested
Wrice. Two days after that, Wrice told two officers during an interview that just
before the burglary he dropped off Nicholas Carwell and Justin Mosely at Wal-
Mart, a few blocks from Brantley’s, and that Carwell and Mosely broke into
1
That provision makes it a crime: “to steal or unlawfully take or carry away from the
person or the premises of a person who is licensed to engage in the business of importing,
manufacturing, or dealing in firearms, any firearm in the licensee’s business inventory that has
been shipped or transported in interstate or foreign commerce.” 18 U.S.C. § 922(u).
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Brantley’s and stole some firearms. Wrice picked them up after the burglary at a
Holiday Inn Express near Brantley’s. When the three men arrived at Wrice’s
residence, Carwell and Mosely gave him one of the pistols, which he later sold to
the informant, and they took the rest of the firearms. Wrice later admitted that he
knew Mosely and Carwell were planning to steal guns before the burglary
occurred.
We review de novo a district court’s application and interpretation of the
sentencing guidelines. United States v. Rhind, 289 F.3d 690, 693 (11th Cir.
2002). Section 2K2.1 of the guidelines applies to the “Unlawful Receipt,
Possession, or Transportation of Firearms or Ammunition.” U.S.S.G. § 2K2.1. It
includes a four-level enhancement based on a specific offense characteristic “[i]f
the defendant used or possessed any firearm or ammunition in connection with
another felony offense.” U.S.S.G. § 2K2.1(b)(6).
The application notes for subsection (b)(6) explain that if burglary is the
other felony offense connected with the firearm use or possession, § 2K2.1(b)(6)
applies to “a defendant who, during the course of [the] burglary, finds and takes a
firearm, even if the defendant did not engage in any other conduct with that
firearm during the course of the burglary.” U.S.S.G. § 2K2.1 cmt. n.14(B). That
application note goes on to explain that “application of subsection[ ] (b)(6) . . . is
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warranted because the presence of the firearm has the potential of facilitating
another felony offense.”2 Id. Wrice argues that the application note about
burglary is fact specific, and § 2K2.1(b)(6) cannot be extended to him based on it
because there is no evidence that he was the “defendant” who found or took a
firearm during the course of the burglary.
Relevant conduct plays a role in the application of a specific offense
characteristic enhancement like the one in § 2K2.1(b)(6). See U.S.S.G.
§ 1B1.3(a)(1)(A)–(B). Section 1B1.3 of the guidelines is titled “Relevant Conduct
(Factors that Determine the Guideline Range).” It provides that “[u]nless
otherwise specified . . . specific offense characteristics . . . shall be determined on
the basis of . . . all acts and omissions committed, aided, abetted, counseled,
commanded, induced, procured, or willfully caused by the defendant.” U.S.S.G.
§ 1B1.3(a)(1)(A). For “jointly undertaken criminal activity,” like the burglary in
the present case, a specific offense characteristic enhancement is based on “all
reasonably foreseeable acts and omissions of others in furtherance” of that
activity. U.S.S.G. § 1B1.3(a)(1)(B). In the context of § 1B1.3(a)(1)(B), a “jointly
2
“[W]e must interpret the text of the Guidelines in light of the corresponding
Commentary and Application Notes, which are binding on the courts unless they contradict the
plain meaning of the text of the Guidelines.” United States v. Kinard, 472 F.3d 1294, 1297 (11th
Cir. 2006) (quotation marks omitted).
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undertaken criminal activity” is “a criminal plan, scheme, endeavor, or enterprise
undertaken by the defendant in concert with others, whether or not charged as a
conspiracy.” Id.
Nothing in § 2K2.1(b)(6) suggests that the relevant conduct rules under
U.S.S.G. § 1B1.3(a)(1) do not apply. See U.S.S.G. § 2K2.1(b)(6). While
application note 14(B) to § 2K2.1 clarifies that subsection (b)(6) applies when a
defendant, during the course of a burglary, “finds and takes a firearm,” nothing in
that note requires the conclusion that § 2K2.1(b)(6) applies only when the
defendant himself finds and takes a firearm during the burglary. U.S.S.G. § 2K2.1
cmt. n.14(B). Where the Sentencing Commission has intended to limit the
relevant conduct that applies to a defendant, it has expressly done that. See
U.S.S.G § 2K2.1 cmt. n.13(B) (explaining that in applying subsection (b)(5) of
U.S.S.G. § 2K2.1 “[t]he term ‘defendant,’ consistent with § 1B1.3 (Relevant
Conduct), limits the accountability of the defendant to the defendant’s own
conduct and conduct that the defendant aided or abetted, counseled, commanded,
induced, procured, or willfully caused”); see also U.S.S.G. § 2K2.6 cmt. n.1(A)
(explaining that in applying subsection (b)(1) of § 2K2.6 “[c]onsistent with §
1B1.3 (Relevant Conduct), the term ‘defendant’ . . . limits the accountability of the
defendant to the defendant’s own conduct and conduct that the defendant aided or
5
abetted, counseled, commanded, induced, procured, or willfully caused”). If the
Sentencing Commission had intended to limit the relevant conduct that applies to
a defendant for purposes of a § 2K2.1(b)(6) enhancement, it would have expressly
included a limitation. See United States v. Saunders, 318 F.3d 1257, 1264 (11th
Cir. 2003) (interpreting a sentencing guideline in light of the rule of statutory
construction that “where Congress includes particular language in one section of a
statute but omits it in another section of the same Act, it is generally presumed that
Congress acts intentionally and purposely in the disparate inclusion or exclusion”)
(quotation marks and alterations omitted).
The relevant conduct rules in U.S.S.G. § 1B1.3(a)(1)(B) apply to
§ 2K2.1(b)(6) under the facts of this case. It was reasonably foreseeable that
Wrice’s codefendants, in the course of burglarizing a gun store with the intention
of stealing guns, would find and take a firearm. Because Wrice is accountable for
“all reasonably foreseeable acts and omissions of others in furtherance” of their
jointly undertaken criminal activity, he was properly held accountable for the
finding and taking of a firearm in connection with the burglary of the gun store.
The district court did not err by applying the four-level enhancement under
§ 2K2.1(b)(6).
AFFIRMED.
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