IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
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No. 94-10104
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UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
OLUFEMI A. FADIPE,
Defendant-Appellant.
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Appeal from the United States District Court for
the Northern District of Texas
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(January 24, 1995)
Before REAVLEY, DUHÉ and PARKER, Circuit Judges.
REAVLEY, Circuit Judge:
Olufemi A. Fadipe was convicted of bank fraud, in violation
of 18 U.S.C. § 1344, and unlawful possession of a firearm by an
illegal alien, in violation of 18 U.S.C. § 922(g)(5). He appeals
the enhancement of his sentence under United States Sentencing
Guidelines ("U.S.S.G.") § 2K2.1(b)(5). We vacate the sentence
and remand for resentencing.
BACKGROUND
Fadipe submitted a credit application containing false
information to Bank One. Keith Tidwell, the Assistant Vice
President and Line of Credit Manager for Bank One, received the
application and believed it to be fraudulent. He contacted the
United States Secret Service and agreed to cooperate in the
investigation of Fadipe. Tidwell provided the Secret Service
with a book of checks which the bank normally would have sent to
Fadipe.
The Secret Service conducted a controlled delivery by
placing the Bank One checks into Fadipe's apartment mail box.
Police officers arrested Fadipe as soon as he retrieved the
checks from the mail box and drove out of his apartment complex.
The officers recovered a loaded gun from the front passenger area
of Fadipe's automobile. The officers also found numerous
applications for loans from various banks, records containing the
personal and financial history of various individuals and other
materials which could be used in bank fraud schemes.
A jury convicted Fadipe of bank fraud and unlawful
possession of a firearm. At sentencing, the district court
enhanced Fadipe's base offense level by four pursuant to U.S.S.G.
§ 2K2.1(b)(5). Fadipe appeals his sentence.
DISCUSSION
U.S.S.G. § 2K2.1 provides the applicable base offense levels
for convictions relating to unlawful receipt, possession or
transportation of firearms. U.S.S.G. § 2K2.1(b)(5) provides for
a four-level enhancement of the applicable base offense levels
"[i]f the defendant used or possessed any firearm or ammunition
in connection with another felony offense." The district court
found that Fadipe had possessed the gun in his automobile in
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connection with the felony of bank fraud and assessed a four-
level enhancement under U.S.S.G. § 2K2.1(b)(5).
As a matter of law, we hold that the undisputed facts in
this case fail to prove that the gun was used "in connection
with" the bank fraud felony. See United States v. Reyes-Ruiz,
868 F.2d 698, 701 (5th Cir. 1989) (holding that questions of law
relating to the Sentencing Guidelines should be reviewed de
novo). The undisputed facts show no connection between the gun
and Fadipe's bank fraud crime other than that the gun was present
in Fadipe's automobile, along with other tools of Fadipe's bank
fraud trade, when the checks were retrieved. The enhancement
under U.S.S.G. § 2K2.1(b)(5) was improper.
In United States v. Condren, the Fifth Circuit upheld a
finding that a firearm was possessed "in connection with" a drug
felony, for the purposes of U.S.S.G. § 2K2.1(b)(5), where the
firearm was merely present in a location near the drugs. 18 F.3d
1190 (5th Cir.), cert. denied, 115 S.Ct. 161 (1994). This Court
took notice of the fact that "theft is a close and ever present
partner of illegal drugs," and therefore upheld the trial court's
finding that the gun was kept by the defendant to "help him
protect his drug-related activities." Id. at 1198-1200. We
approved the connection between the gun and the felony based on
the mere presence of the gun, because it could be assumed from
the gun's presence alone that the gun was to be used "in
connection with" the felony as a method of protection of the
felonious activity. This Court thought this interpretation of
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U.S.S.G. § 2K2.1(b)(5) comported with the intent of the
Guidelines to address the "real and obvious increase in the risk
of violence" which exists whenever guns and drugs are found
together. Id. at 1199.
In this case, the checks which Fadipe received in the
controlled delivery had his name, phone number and address on
them. It is not reasonable to assume that Fadipe had the gun
present to prevent their theft. The presence of a gun near
instruments of bank fraud does not create the same automatic
increase in the danger of physical violence that exists when
drugs and guns are present together.
An enhancement under U.S.S.G. § 2K2.1(b)(5) is appropriate
in a case involving a bank fraud felony where a gun is truly used
"in connection with" the commission of the crime. However,
"[t]he connection between the firearm and the [bank fraud] felony
must be proved." Id. at 1199 n. 20. No connection between the
gun possessed by Fadipe and the bank fraud committed by Fadipe
has been proved in this case. The mere possession of a gun near
the instruments involved in a fraudulent loan application scheme
is insufficient to prove that the gun was used "in connection
with" the bank fraud felony for purposes of the application of
U.S.S.G. § 2K2.1(b)(5). The sentencing enhancement assessed
against Fadipe pursuant to U.S.S.G. § 2K2.1(b)(5) was improper.
Sentence VACATED and REMANDED for resentencing.
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