[PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
No. 94-3594
D. C. Docket No. 94-01036
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
JAMES R. YOUNG,
Defendant-Appellant.
Appeal from the United States District Court
for the Northern District of Florida
Before TJOFLAT, DUBINA and CARNES, Circuit Judges.
PER CURIAM:
Appellant James R. Young (“Young”) appeals his conviction and
sentence imposed by the district court for violation of 18 U.S.C.
§ 922(g) and § 924(e) (unlawful possession of a firearm). The
district court sentenced Young to 262 months incarceration based on
an offense level of 34 pursuant to U.S.S.G. § 4B1.4(b)(3)(A). Upon
review of the record, we affirm Young’s conviction and sentence.
BACKGROUND
The prosecution of Young resulted from the Gainesville,
Florida, police department’s search for Kristi S., a fourteen-year-
old runaway. When the police finally located Kristi S., she
informed them that she had been staying with Young at his
apartment. Kristi S. told the police that while she was at Young’s
apartment, she noticed guns in his attic. She observed a rifle in
a canvas case and a handgun in a cardboard box.
The police conducted a criminal history check of Young and
learned that he was a convicted felon. Based on this information,
the police obtained a search warrant for Young’s apartment. During
the search, they discovered the rifle in Young’s attic inside a
zippered case as Kristi S. had described. The police also located
the cardboard box, but the handgun was not inside. While
conducting the search, the police realized that Young was hiding in
the attic. Concerned that Young might be armed with the missing
handgun, the police called a SWAT team to the scene. Young then
came down from the attic and the police took him into custody.
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The government charged Young with being a felon in possession
of a firearm. During the trial, the government presented the
testimony of James Anderson, whose home had been burglarized and
from whom a rifle was stolen. Mr. Anderson identified his stolen
rifle as the rifle discovered in Young’s attic. The government
also presented evidence that Young’s fingerprints had been found at
the point of entry of the burglary of the Anderson home. The court
cautioned the jury to consider this evidence only in relation to
Young’s knowledge of and possession of the gun. Following the
trial, the jury returned a verdict of guilty. Pursuant to
U.S.S.G. § 4B1.4(b)(3)(A), the district court sentenced Young to
262 months incarceration.
ISSUES
Young presents several issues for appellate review: (1)
whether the search warrant for Young’s home was invalid; (2)
whether the district court erred in admitting evidence about
Young’s prior crimes; (3) whether the district court erred in
sentencing Young as a career criminal under U.S.S.G. §
4B1.4(b)(3)(A); and (4) whether the statute under which Young was
convicted, 18 U.S.C. § 922(g)(1), is unconstitutional.
DISCUSSION
Having conducted a thorough review of the record, we summarily
affirm the district court’s rulings on the validity of the search
3
warrant and the admission of the evidence of Young’s prior crimes.1
Young’s argument regarding the constitutionality of 18 U.S.C. §
922(g) is foreclosed by this court’s recent decision in United
States v. McAllister, 77 F.3d 387, 389-90 (11th Cir.), cert.
denied, ___ U.S. ___, 117 S.Ct. 262 (1996). The final issue
presented by Young -- whether the district court erred in
sentencing him as an armed career criminal under U.S.S.G. §
4B1.4(b)(3)(A) because Young’s possession of the firearm was not
“in connection with” the burglary -- merits discussion. .
We review a sentencing court’s findings of fact for clear
error and review its application of the law to the facts de novo.
United States v. Ramsdale, 61 F.3d 825, 831 (11th Cir. 1995). We
hold that the district court did not err in sentencing Young as an
armed career criminal because the firearm stolen in the burglary
was possessed “in connection with” that burglary. Therefore, we
affirm Young’s sentence.
We begin our analysis by focusing on the wording of U.S.S.G.
§ 4B1.4(b)(3)(A), which states:
(b) The offense level for an armed career criminal is the
greatest of:
. . . .
(3) (A) 34, if the defendant used or possessed
the firearm or ammunition in connection
with a crime of violence or controlled
substance offense, as defined in
§ 4B1.2(1), or if the firearm possessed
by the defendant was of a type described
in 26 U.S.C. § 5845(a)[]; or
1
See 11th Cir. R. 36-1.
4
. . . .
U.S.S.G. § 4B1.4(b). This section does not define possession “in
connection with a crime of violence.” In the absence of any
guideline definition, we must construe the phrase according to its
ordinary and natural meaning. See Smith v. United States, 508 U.S.
223 (1993). “[T]he meaning of statutory language, plain or not,
depends on context.” King v. St. Vincent’s Hosp. , 502 U.S. 215,
221 (1991).
The Government urges this court to give the term “in
connection with” a literal interpretation. Under the Government’s
interpretation, the enhancement under § 4B1.4(b)(3)(A) was
appropriate because Young did possess the firearm during the
commission of the burglary.2 Thus, giving the phrase its ordinary
meaning, Young possessed the firearm in connection with a crime of
violence - - a burglary - - whether he entered the dwelling with
the firearm or later obtained the firearm while in the dwelling.
Our circuit has addressed the “in connection with” language
used in U.S.S.G. § 4B1.4(b)(3)(A) and U.S.S.G. § 2K2.1(b)(5) in two
cases. See United States v. Gainey, No. 95-4421, 1997 WL 189070
(11th Cir. May 5, 1997); United States v. Whitfield, 50 F.3d 947,
948 (11th Cir.), cert. denied, ___ U.S. ___, 116 S.Ct. 234 (1995).
In both cases we compared the varying approaches applied by other
2
The indictment charged that James R. Young . . . “did
knowingly possess in and affecting commerce, a firearm described as
a Remington bolt action rifle, Model 700, 270 caliber, serial
number A6632175, and rounds of .22 caliber ammunition, which had
been transported in interstate commerce in violation of Title 18,
United States Code, Sections 922(g), and 924(e).”
5
circuits (i.e., “possession” or “facilitation”4 tests), but found
3
that the facts of both cases did not require us to adopt either
test because the sentences imposed by the district courts were not
in error. Gainey, No. 95-4421, slip op. at 1461; Whitfield, 50
F.3d at 949.
In Smith, the Supreme Court held that a defendant who trades
a firearm for cocaine uses the firearm in relation to a drug
offense even though he did not “use it for its intended purpose.”
508 U.S. at 229-30. The Court noted that “[i]t is one thing to say
that the ordinary meaning of ‘uses a firearm’ includes using a
firearm as a weapon . . . [b]ut it is quite another to conclude
that, as a result, the phrase also excludes any other use.” Id. at
230. The Court acknowledged that using a firearm as a medium of
exchange was not the expected manner of use but determined that
section 924(c)(1)’s language “sweeps broadly, punishing any ‘us[e]’
of a firearm, so long as the use is ‘during and in relation to’ a
drug trafficking offense.” Id. at 229. Smith persuades us that
the possession of a firearm “in connection with” a crime of
violence does not exclude possession of the firearm as the fruit of
the crime which the possessor is contemporaneously committing.
3
See United States v. Condren, 18 F.3d 1190, 1197 n. 19 (5th
Cir.), cert. denied, ___U.S. ___, 115 S.Ct. 161 (1994) (“[T]he
enhancement is required not only for use, but also simply for
possession, of a firearm in connection with another felony.”).
4
See United States v. Routon, 25 F.3d 815, 819 (9th Cir.
1994) (“[The Government] 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.”).
6
An analogous case is United States v. Guerrero, 5 F.3d 868
(5th Cir. 1993), cert. denied, 510 U.S. 1134 (1994). The defendant
in Guerrero pled guilty to possession of a firearm by a felon in
violation of 18 U.S.C. §§ 922(g)(1) and 924(a), and to possession
of a stolen firearm in violation of 18 U.S.C. §§ 922(j) and
924(a)(2). The district court sentenced the defendant as an armed
career criminal pursuant to U.S.S.G. § 4B1.4(b)(3)(A). On appeal,
Guerrero argued that the district court erred in imposing a base
offense level of 34 under U.S.S.G. § 4B1.4(b)(3)(A) based on its
finding that he possessed the firearms in connection with a crime
of violence--burglary of a habitation. Guerrero did not object to
this finding in the district court, so the appellate court reviewed
the district court’s finding for plain error.
Guerrero argued that he could not have possessed the firearms
in connection with the burglary because he remained outside the
house as a lookout. The appellate court rejected his argument for
two reasons. First, the evidence established that Guerrero
actively participated in the burglary by prying open the back door
and breaking into the gun cabinet. Second, the court reasoned that
even if Guerrero remained outside the residence, he could still be
responsible for the criminal acts of his cohort. See U.S.S.G. §
1B1.3(a)(1)(A) and (B). Thus, the court noted, it would not be
plain error to hold Guerrero accountable for the possession of the
firearms by his confederate.
Additionally, and more importantly for our purposes, the Fifth
Circuit discussed the “in connection with” language in U.S.S.G. §
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4B1.4(b)(3)(A). Relying on the Supreme Court’s decision inSmith,
the court construed the phrase according to its ordinary and
natural meaning. The court noted that “[t]he Supreme Court reads
terms such as ‘used or possessed’ quite expansively in the context
of firearms.” Guerrero, 5 F.3d at 872. The Fifth Circuit examined
the guidelines for enhancing drug offenses where the defendant
possessed a dangerous weapon, see U.S.S.G. § 2D1.1(b)(1), and
concluded that the rationale for U.S.S.G. § 2D1.1(b)(1), as
expressed in the commentary5, was equally applicable to a crime of
violence such as a burglary of a residence. “Possession 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.” Guerrero, 5
F.3d at 873.
We find the Fifth Circuit’s reasoning persuasive. As in
Guerrero, Young was sentenced as an armed career criminal based on
his unlawful possession of a firearm rather than his participation
in the burglary by which the firearm was obtained. The one-point
enhancement in section 4B1.4(b)(3)(A) for possession of the firearm
“in connection with” a crime of violence merely reflects the
context of Young’s possession of the firearm: the commission of a
5
U.S.S.G. § 2D1.1, comment. (n.3), states in relevant part:
“The enhancement for weapon possession reflects the increased
danger of violence when drug traffickers possess weapons. The
adjustment should be applied if the weapon was present, unless it
is clearly improbable that the weapon was connected with the
offense.”
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burglary. The one distinguishing fact between the present case
and Guerrero is that Young obtained the firearm more than a year
before he was charged with violations of 18 U.S.C. § 922(g) and §
924(e). However, the Government presented evidence that the rifle
possessed by Young was stolen from Mr. Anderson’s home; that
Young’s fingerprints were found on the windowsill of Mr. Anderson’s
home where the burglar made his entrance; that the exterminator who
sprayed Young’s apartment saw the rifle in Young’s attic several
months after the burglary; and that Kristi S. saw the rifle in the
attic on two separate occasions following the burglary. This
evidence is sufficient to place Young at Anderson’s residence on
the date of the burglary.
Young urges this court to adopt, by analogy, the reasoning of
other circuits which have addressed the “in connection with”
language in U.S.S.G. § 2K2.1(b)(5)6. These circuits hold that the
“in connection with” language requires more than mere use or
possession. These circuits hold that the “in connection with”
requirement is satisfied only when the firearm serves a purpose
related to the crime; its presence or involvement must not be the
result of accident or coincidence. United States v. Wyatt, 102
6
U.S.S.G. § 2K2.1(b)(5) states:
(5) If the defendant used or possessed any
firearm or ammunition in connection with
another felony offense; or 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, increase by 4 levels. . . .
9
F.3d 241, 247 (7th Cir. 1996); United States v. Nale, 101 F.3d
1000, 1003 (4th Cir. 1996); United States v. Thompson, 32 F.3d 1,
7 (1st Cir. 1994); United States v. Routon, 25 F.3d 815, 819 (9th
Cir. 1994); United States v. Gomez-Arrellano, 5 F.3d 464, 466-67
(10th Cir. 1993). These cases applied the definition of “in
relation to” in 18 U.S.C. § 924(c)7, as interpreted by the Supreme
Court in Smith v. United States, 508 U.S. 223, 238 (1993), and held
that a weapon is used “in connection with” an offense under § 2K2.1
if the weapon facilitated or potentially facilitated the felonious
conduct. Thompson, 32 F.3d at 7; Routon, 25 F.3d at 819; Gomez, 5
F.3d at 466-67.
We conclude that the Fifth Circuit’s interpretation of Smith
is more accurate and pertinent to the issue presented here.
Accordingly, we decline to follow the other circuits’ rationales
which defined the language of U.S.S.G. § 2K2.1. We note that the
Fifth Circuit is the only circuit to interpret the specific
language of U.S.S.G. § 4B1.4(b)(3)(A), which is at issue in the
present case. Additionally, the guideline section at issue here is
addressed to armed career criminals. In our view, an armed career
criminal possesses a firearm in connection with a crime of violence
7
18 U.S.C. § 924(c)(1) provides in part:
(c)(1) Whoever, during and in relation to any
crime of violence or drug trafficking crime .
. . for which he may be prosecuted in a court
of the United States, uses or carries a
firearm, shall, in addition to the punishment
provided for such crime of violence or drug
trafficking crime, be sentenced to
imprisonment for five years, . . . .
10
when that firearm is obtained during the commission of a burglary.
Accordingly, we affirm Young’s conviction and sentence.
AFFIRMED.
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