United States Court of Appeals, Eleventh Circuit.
No. 94-8428
Non-Argument Calendar.
UNITED STATES of America, Plaintiff-Appellee,
v.
Kevin WHITFIELD, Defendant-Appellant.
April 24, 1995.
Appeal from the United States District Court for the Northern
District of Georgia. (No. 1:93-CR-325), William C. O'Kelley, Judge.
Before KRAVITCH, ANDERSON and CARNES, Circuit Judges.
PER CURIAM:
Kevin Whitfield pleaded guilty to storing a stolen firearm in
violation of 18 U.S.C. § 922(j) and was sentenced to 102 months
imprisonment. On appeal, Whitfield challenges the district court's
imposition of a sentencing enhancement to his base offense level,
pursuant to U.S.S.G. § 2K2.1(b)(5), based upon its finding that
Whitfield used the gun in connection with two burglaries (for which
he pleaded guilty in state court). We hold that the district court
did not clearly err in making this factual determination;
accordingly, we AFFIRM.1
I.
1
Whitfield also contends that U.S.S.G. § 2K2.1(b)(5)
violates the equal protection clause and is beyond the statutory
power of the Sentencing Commission. Because Whitfield did not
raise these arguments below, we do not address them on appeal.
See United States v. Jones, 899 F.2d 1097, 1103 (11th Cir.)
("Where the district court has offered the opportunity to object
and a party is silent or fails to state the grounds for
objection, objections to the sentence will be waived for the
purposes of appeal ... [absent] manifest injustice."), cert.
denied, 498 U.S. 906, 111 S.Ct. 275, 112 L.Ed.2d 230 (1990),
overruled on other grounds, United States v. Morrill, 984 F.2d
1136, 1137 (11th Cir.1993) (en banc).
On October 18, 1992, Whitfield burglarized an apartment in
Atlanta, and stole a gun. On his way out of the apartment,
Whitfield threatened the victim's neighbor, who inadvertently
confronted him, with this weapon. Shortly thereafter, Whitfield
attempted to burglarize another apartment. When police officers
arrived at the scene, they discovered Whitfield in a chair facing
the front door of the second residence. Whitfield's hands were
hidden under a coat that was folded and lying on his lap. While
one officer "covered" Whitfield, the other removed the coat from
his lap and unfolded it; a semi-automatic pistol fell out. One of
the officers stated, in a written report after the incident, that
he believed that Whitfield had specifically positioned himself in
front of the door in the hope of ambushing a police officer.
Whitfield pleaded guilty to two burglary counts in state court, and
was sentenced to concurrent four-year prison terms.
In federal court, the presentence investigation report ("PSI")
recommended a four-point increase in Whitfield's base offense level
pursuant to U.S.S.G. § 2K2.1(b)(5), which provides for such an
adjustment if, inter alia, "the defendant used or possessed any
firearm ... in connection with another felony offense." The PSI
reasoned that Whitfield used the gun in connection with the
state-law burglaries. Whitfield objected, contending that he was
simply carrying the gun along with all the other stolen "loot," and
intended to pawn it later in the day. The district court
disagreed, specifically finding that "the weapon was not being
carried as part of the loot from a burglary but ha[d] been
sequestered and separated from that and was being used as a weapon
while committing another crime." Accordingly, the district court
imposed the sentencing adjustment.
II.
The Guidelines do not define the phrase "in connection with"
in § 2K2.1(b)(5). This court has never addressed the question, and
other circuits, at first glance, appear to disagree on the proper
nexus between the weapon and the underlying felony. Some courts
hold, by analogy to 18 U.S.C. § 924(c),2 that
the prosecution will have to make a greater showing than a
defendant's mere possession of a firearm to obtain a section
2K2.1(b)(5) enhancement. Instead, to the extent that the
government relies upon physical possession, it must show that
the firearm was possessed in a manner that permits an
inference that it facilitated or potentially facilitated—i.e.,
had some potential emboldening role in—a defendant's felonious
conduct.
United States v. Routon, 25 F.3d 815, 819 (9th Cir.1994).3 Other
courts apply a more lenient nexus by analogy to U.S.S.G. §
2
18 U.S.C. § 924(c)(1) mandates an enhanced sentence for an
offender who, "during and in relation to any [federal] crime of
violence or [federal] drug trafficking crime ... uses or carries
a firearm." In Smith v. United States, --- U.S. ----, ----, 113
S.Ct. 2050, 2059, 124 L.Ed.2d 138 (1993), the Court construed the
phrase "in relation to" in this provision to require that the
weapon facilitate or have the potential of facilitating a drug
trafficking offense.
3
See also United States v. Gomez-Arrellano, 5 F.3d 464, 466-
67 (10th Cir.1993) (§ 2K2.1(b)(5) "is not satisfied if the
weapon's possession is coincidental or entirely unrelated to the
offense"). Compare also United States v. Brewster, 1 F.3d 51, 54
(1st Cir.1993) ("in connection with" to be given its "ordinary
meaning"); United States v. Thompson, 32 F.3d 1, 6-7 (1st
Cir.1994) (construing analogous § 2K2.1(c)(2) and interpreting
Brewster as holding that "[w]hile it is difficult to sketch the
outer boundaries of this link, there is no question that where a
defendant's possession of a firearm somehow aids or facilitates,
or has the potential to aid or facilitate, the commission of
another offense, the defendant's possession of the firearm is
causally and logically related to the other offense").
2D1.1(b)(1),4 holding that "the enhancement is required not only
for use, but also simply for possession, of a firearm in connection
with another felony." United States v. Condren, 18 F.3d 1190, 1197
n. 19 (5th Cir.), cert. denied, --- U.S. ----, 115 S.Ct. 161, 130
L.Ed.2d 99 (1994) (emphasis in original).5
It is questionable whether these theoretically distinct
standards in fact differ in practice. 6 This case, however, does
4
Under this provision, a defendant's base offense level is
increased by two points if a firearm "was possessed" during a
federal narcotics crime of which the defendant is convicted,
unless "it is clearly improbable that the weapon was connected
with the offense." See U.S.S.G. § 2D1.1(b)(1) & comment. (n.
3). This court has not yet decided whether the government or the
defendant bear the burden of proof on the "clearly improbable"
question. See Jefri Wood and Diane Sheehey, Guideline Sentencing
32 (Fed.Jud.Center 1994) (describing circuit split on this
issue).
5
Cf. United States v. Sanders, 990 F.2d 582, 585 & n. 1
(10th Cir.) (pre-Smith case; where circuit precedent imposed
stringent requirement under § 924(c)(1) that defendant have ready
access to weapon and it play an integral role in the offense
before statutory sentence enhancement could be imposed, §
924(c)(1) did not supply proper standard for more lenient §
2K2.1(b)(5) Guideline enhancement), cert. denied, --- U.S. ----,
114 S.Ct. 216, 126 L.Ed.2d 172 (1993).
6
Thus, for example, on facts similar to Condren, courts
applying the purportedly more stringent "facilitation" test have
reached the same result as did the Fifth Circuit under the more
relaxed "possession" benchmark: a weapon's physical proximity to
narcotics may provide the requisite nexus for underlying drug
felony enhancements under § 2K2.1(b)(5). See Routon, 25 F.3d at
816-19; Gomez-Arrellano, 5 F.3d at 467. The Fifth Circuit, on
the other hand, recently has demonstrated that its supposedly
lenient standard is not without some bite. See United States v.
Fadipe, 43 F.3d 993 (5th Cir.1995) (enhancement on federal gun
charge improper where gun was present in car filled with
documents used by defendant in felony bank fraud; the "presence
of a gun near instruments of bank fraud does not create the same
automatic increase in danger of physical violence that exists
when drugs and guns are present together"); see also United
States v. Guerrero, 5 F.3d 868, 872-73 (5th Cir.1993) (opining
that under U.S.S.G. § 2D1.1(b)(1), the government "may meet its
burden by showing that the weapon facilitated, or could have
facilitated, the drug trafficking offense," and thereby
not require us to choose between the two competing interpretations
of § 2K2.1(b)(5), because the enhancement was proper under either
legal standard. See McCabe v. Sharrett, 12 F.3d 1558, 1569 (11th
Cir.1994) (unnecessary to choose test for evaluating freedom of
association claim where result would be the same under both
standards).7 Whatever the applicable legal benchmark, the district
court's factual determination that the weapon was used or possessed
"in connection with" the burglaries was not clearly erroneous.8
Whitfield's use of the gun to threaten a bystander between the
burglaries, his concealment of the gun in his coat at the time of
the arrest, and the officer's averment that Whitfield had
apparently positioned himself to fire the weapon at persons coming
through the front entrance of the apartment, all plainly evidence
both possession of the gun in connection with the burglaries and
facilitation of the burglaries by use of the gun. Compare
Guerrero, 5 F.3d at 873 (defendant possessed firearms "in
implicitly suggesting that Condren's "possession" test for §
2K2.1(b)(5), developed in reliance on the former provision, may
not differ much from the other circuits' "facilitation" test),
cert. denied, --- U.S. ----, 114 S.Ct. 1111, 127 L.Ed.2d 422
(1994).
7
See also United States v. Blackmon, 36 F.3d 1094 (table),
1994 WL 524995 at *2 (4th Cir. Sept. 28, 1994) (unnecessary to
choose between competing approaches to § 2K2.1(b)(5), although
question was one of first impression, where enhancement was
correct under either test).
8
See, e.g., Routon, 25 F.3d at 819 (once legal standard
established, "in connection with" determination under §
2K2.1(b)(5) reviewed for clear error); Condren, 18 F.3d at 1199
(same); cf. United States v. Martinez, 924 F.2d 209, 210 (11th
Cir.) (for purposes of § 2D1.1(b)(1), question of whether
defendant possessed firearm "during" the commission of a drug
felony is reviewed for clear error), cert. denied, 502 U.S. 870,
112 S.Ct. 203, 116 L.Ed.2d 163 (1991).
connection with" a burglary for purposes of similar U.S.S.G. §
4B1.4(b)(3)(A) "armed career criminal" enhancement even where they
were not used to commit the burglary, but were instead its fruits;
"[p]ossession of firearms obviously increases the danger of
violence whether or not such weapons are actually used. If armed
burglars encounter the occupants of a home or law enforcement
officials, it makes little difference how the burglars obtained
their firearms.") (emphasis in original). Accordingly, the
district court did not err in increasing Whitfield's offense level
under § 2K2.1(b)(5).
AFFIRMED.