In the
United States Court of Appeals
For the Seventh Circuit
No. 13‐1496
UNITED STATES OF AMERICA,
Plaintiff‐Appellee,
v.
DARNELL JACKSON,
Defendant‐Appellant.
Appeal from the United States District Court for the
Northern District of Indiana, South Bend Division.
No. 3:12‐CR‐82— Robert L. Miller, Jr., Judge.
ARGUED JUNE 6, 2013 — DECIDED FEBRUARY 3, 2014
Before WOOD, Chief Judge, and POSNER and ROVNER, Circuit
Judges.
ROVNER, Circuit Judge. Darnell Jackson unlawfully pos‐
sessed a firearm for a period of two to three weeks before
selling it to someone whose own possession of the gun was
illegal. At sentencing, the district court enhanced Jackson’s
offense level based on its finding that Jackson had transferred
the gun with knowledge or reason to believe it would be
2 No. 13‐1496
possessed “in connection with another felony offense,” i.e., the
transferee’s illegal possession of the gun. See U.S.S.G.
§ 2K2.1(b)(6)(B) (Nov. 2012). Jackson contends that the en‐
hancement was improper in that it essentially penalized him a
second time for conduct that was otherwise encompassed
within his conviction. We affirm.
I.
In January 2011, Jackson’s friend Carlia Wells purchased a
nine‐millimeter Ruger pistol. In March, Jackson took the pistol
from Wells’ home. Having previously been convicted of
multiple felonies, Jackson’s possession of the gun was illegal.
See 18 U.S.C. § 922(g)(1). Two to three weeks after he took the
pistol from Wells, Jackson sold the weapon (or facilitated its
sale) to David Dircks, whom Jackson knew to be an illegal user
of crack cocaine and heroin. A grand jury later charged Wells,
Dircks, Jackson, and a fourth individual with various weapons
offenses; the indictment charged Jackson with his unlawful
possession of the pistol as a convicted felon, in violation of
section 922(g)(1).
On the morning that his trial was to begin, Jackson pleaded
guilty to the felon‐in‐possession charge without a written plea
agreement. At sentencing, the court found Jackson’s final,
adjusted offense level to be 17. This included a four‐level
enhancement under Guidelines section 2K2.1(b)(6)(B) for
transferring the firearm “with knowledge, intent or reason to
believe that it would be used or possessed in connection with
another felony offense.” The court found that Jackson’s transfer
of the gun to Dircks, a known felon and illegal drug user,
facilitated the commission of a felony by Dircks, whose
No. 13‐1496 3
possession of the pistol was prohibited under both section
922(g)(1) (possession by a felon) and section 922(g)(3) (posses‐
sion by an unlawful user of controlled substances). R. 132 at 2‐
3. Coupled with a criminal history category of VI (Jackson had
a lengthy criminal record that the court described as “astonish‐
ing,” R. 132 at 6), the adjusted offense level of 17 resulted in an
advisory sentencing range of 51 to 63 months in prison.
Without the section 2K2.1(b)(6)(B) enhancement, the range
would have been 33 to 41 months. Judge Miller opted to
impose a within‐Guidelines sentence of 60 months’ imprison‐
ment.
II.
The sole issue to be resolved on appeal is whether the
section 2K2.1(b)(6)(B) enhancement was correctly imposed.
We find that it was.
Section 2K2.1(b)(6)(B) provides that a defendant’s offense
level shall be increased by four levels if he “possessed or
transferred any firearm or ammunition with knowledge, intent,
or reason to believe that it would be used or possessed in
connection with another felony offense.” Prior to amendments
that took effect in November 2006, an application note regard‐
ing this enhancement (then set forth in section 2K2.1(b)(5))
defined “another felony offense” as one “other than explosives
or firearms possession or trafficking offenses.” § 2K2.1 cmt. n.
15 (Nov. 2005). This definition of “another felony offense” was
“understood to create a categorical exclusion for firearms and
explosive offenses.” See United States v. Jones, 528 F. App’x 627,
631‐32 (7th Cir. 2013) (nonprecedential decision) (collecting
cases). Thus in United States v. Mahalick, 498 F.3d 475, 480 (7th
4 No. 13‐1496
Cir. 2007), we had observed that for purposes of the enhance‐
ment, the other felony offense that the defendant facilitated
“cannot simply be that the [person who purchased the gun
from the defendant] was a felon and upon purchasing the gun
became a felon in possession of a firearm.”
However, the application note was modified in 2006 and
now reads:
“Another felony offense”[ ] for purposes of subsec‐
tion (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 ob‐
tained.
§ 2K2.1 cmt. n. 14(C) (Nov. 2006) (emphasis ours). The com‐
mentary now excludes from the definition of “another felony
offense” only the possession or trafficking offense that serves
as the basis for the defendantʹs conviction. United States v.
Juarez, 626 F.3d 246, 255 (5th Cir. 2010). In Jones, we therefore
concluded that the enhancement applies, as here, when a
defendant guilty of being a felon‐in‐possession has transferred
the firearm to another prohibited person. See Jones, 528 F.
App’x at 632 (following Juarez, 626 F.3d at 255). Our decision
in Jones was not precedential, but we find its rationale on this
point (and that of the Fifth Circuit in Juarez) persuasive and
adopt it as binding precedent here. By selling the pistol to
Dircks, whom he knew to be an unlawful user of controlled
substances and thus someone who could not legally possess a
firearm, Jackson transferred the pistol with knowledge or
No. 13‐1496 5
reason to believe that the gun would be used to commit
another felony offense—Dircks’s illegal possession of the same
gun.
Jackson nonetheless argues that his transfer of the firearm
to Dircks was not “another felony offense” separate and
distinct from his possession offense, and that therefore the
enhancement should not apply to him. Jackson contends that
his conduct “was simply the firearms possession or trafficking
offense and not another felony.” Jackson Brief at 11. He
appears to assume that the transfer to Dircks involved no
element beyond the offense of conviction, i.e., that his offense
of conviction includes the transfer as well as the possession.
But section 922(g)(1) requires proof of possession only; the
transfer of the firearm was a separate act neither necessary to
nor subsumed within his conviction for possession. See United
States v. Purifoy, 326 F.3d 879, 881 (7th Cir. 2003) (defendant’s
act of pointing gun at police officer, which constituted aggra‐
vated assault, was a felony distinct from felon‐in‐possession
offense for purposes of other felony offense enhancement); see
also, e.g., United States v. Lane, 267 F.3d 715, 718‐19 (7th Cir.
2001) (act of holding gun sufficient to constitute unlawful
possession for purposes of section 922(g)(1)); cf. United States
v. Johns, 732 F.3d 736, 740 (7th Cir. 2013) (in sentencing defen‐
dant for being a felon in possession, district court erred in
applying trafficking enhancement, see § 2K2.1(b)(5), in addition
to other felony offense enhancement, when both enhancements
were based on same conduct—transfer of guns to confidential
informant, whom defendant knew to be a convicted felon, with
knowledge that informant intended to resell them).
6 No. 13‐1496
Jackson alternatively posits that had he been charged with
not only his possession of the gun under section 922(g), but
also the transfer of the pistol to Dircks under 18 U.S.C.
§ 922(d) (making it a crime to transfer a firearm or ammuni‐
tion to, inter alia, known felons or illegal drug users), the two
charges would have been grouped at sentencing and treated as
a single offense when calculating his offense level, and as a
result of the grouping there would not be “another felony
offense” to trigger the enhancement. See U.S.S.G. Chap. 3, Pt.
D. Given that Jackson in fact was charged only with the
possession offense, he reasons that it makes no sense to treat
him more harshly by applying the enhancement.
But it is a mistake to assume that the enhancement would
not apply were Jackson charged with and convicted of both
crimes. Jackson is no doubt correct that the possession and
transfer offenses would be grouped for sentencing purposes:
Both are subject to the same firearms guideline, section 2K2.1,
and section 3D1.2(d) specifies that offenses governed by
section 2K2.1 are to be grouped. But although grouping is
meant to avoid multiple punishments for the same conduct, see
Mahalick, 498 F.3d at 481, it is not meant to ignore the specific
offense characteristics that distinguish one defendant’s
criminal acts from those of another. Jackson’s decision to sell
the gun to an unlawful user of controlled substances is one
such characteristic.
Were the possession and transfer offenses governed by
different Chapter 2 guidelines, the court would determine the
offense level for each offense separately and then apply the
higher of the two levels to the group. See § 3D1.3(a) & com‐
ment. (n.2.). The section 2K2.1(b)(6)(B) enhancement would
No. 13‐1496 7
apply to the possession offense, as we have discussed, and if
that rendered the offense level for the possession offense
higher than the level for the transfer offense, the offense level
for the possession offense would become the offense level for
the group.
Here, both offenses are governed by the same guideline.
But if the court were to follow the same approach, the enhance‐
ment would apply to the possession offense even if it would
not apply to the transfer offense, as Jackson assumes; the
resulting offense level for the possession offense, assuming it
was the greater of the two, would then carry the day for the
group. So we reasoned in Mahalick, where the defendant had
been convicted of both possession and transfer offenses and
contended that the other felony offense enhancement amount‐
ed to double counting because it punished the same behavior
as his section 922(d) conviction for the transfer of the gun. 498
F.3d at 481‐82. This is essentially the same argument that
Jackson is making—that as to the transfer conviction, there
would be no “other” felony offense to trigger the enhancement.
Even if he is right, there would be another offense vis‐à‐vis the
possession conviction, and if the offense level for that convic‐
tion alone turned out to be greater than the offense level for the
transfer conviction alone, the former should logically apply to
the two offenses grouped together. See id.; see also United States
v. Schaal, 340 F.3d 196, 198 ‐99 (4th Cir. 2003) (enhancement for
stolen firearm appropriate notwithstanding fact that stolen
nature of the firearm was an element of 16 of 19 of grouped
offenses).
Consider it from a second perspective. Given Jackson’s
prior conviction for a crime of violence, section 2K2.1(a)(4)
8 No. 13‐1496
specifies a base offense level of 20; and this would be his base
offense level regardless of whether he were convicted of
possession, transfer, or both. That particular offense level,
however, turns on the defendant’s criminal history alone; it
does not take into account, as for example section 2K2.1(a)(6)
does, whether the defendant may have transferred the gun to
another person whose own possession of the gun amounts to
a crime. So the enhancement specified by section 2K2.1(b)(6)(B)
would capture an aspect of Jackson’s conduct that his base
offense level does not.
If we were to agree with Jackson that a second conviction
for transfer of the gun would take the section 2K2.1(b)(6)(B)
enhancement off the table, then we would be saying that the
Guidelines would, in practice, treat one’s unlawful possession
and transfer of a firearm to another prohibited person no
differently than simple possession of the gun. That would be
both illogical and contrary to the spirit of the grouping rules.
See Schaal, 340 F.3d at 198‐99.
As we noted at argument, a sentencing judge is always
able, given the advisory nature of the Guidelines and the
sentencing criteria set forth in 18 U.S.C. § 3553, to determine
that the defendant’s offense level and sentencing range over‐
or under‐represent the extent of his criminal conduct and to
adjust the sentence accordingly. Judge Miller, in fact, gave
thorough and thoughtful attention to how well the Guidelines
range accurately accounted for Jackson’s offense and criminal
history and concluded that a within‐range sentence was
appropriate. R. 132 at 8‐9. For all of the reasons we have
discussed, we are not convinced that it was improper to
enhance Jackson’s offense level pursuant to section
No. 13‐1496 9
2K2.1(b)(6)(B) based on his transfer of the gun to Dircks, or that
the resulting sentencing range was out of proportion to his
conduct.
III.
By selling the Ruger pistol to Dircks, who like Jackson was
prohibited from possessing a firearm, Jackson transferred the
firearm in connection with a felony offense separate and
distinct from the possession offense of which he was charged
and convicted. Consequently, the district court properly
increased Jackson’s offense level pursuant to section
2K2.1(b)(6)(B). See Jones, 528 F. App’x at 632. Finding no error
in the calculation of Jackson’s offense level, we AFFIRM his
sentence.