concurring in part and dissenting in part.
I respectfully dissent from the majority opinion with regard to the following statement:
The burden of proof borne by the prosecution in a criminal trial is significantly heavier than the burden which the prosecution bears at a sentencing hearing. In the situation before us, the state might not have been able to prove robbery beyond a reasonable doubt; that hardly means that the preponderance of the evidence does not support the conclusion that a robbery occurred, however.
In the instant case, though defendant’s federal weapons charge arises through the commission of a state theft offense, the district court sentenced defendant as if he had been convicted of a federal robbery. The record, however, reveals no evidence of a federal robbery offense. The majority, by its statement, seems to indicate that though the defendant was never charged or tried for a federal robbery offense, and though the government put forth no evidence that defendant committed, attempted to commit or intended to commit a federal robbery offense, the defendant can be nonetheless sentenced for a crime as if the violation were supported by a preponderance of the evidence.
In the instant case, defendant Steven D. Voyles entered into an agreement with federal prosecutors whereby he pled guilty to one *95count of possessing a firearm as a convicted felon in violation of 18 U.S.C. § 922(g). After conducting a hearing, the district court sentenced defendant to 115 months imprisonment, to run concurrently with a state sentence of six years arising from the same illegal conduct.1
The district court determined defendant’s sentence in accordance with U.S.S.G. § 2K2.1(c)(l), which provides for a cross reference to U.S.S.G. § 2X1.1 where a defendant used/possessed a firearm in the commission, attempt, solicitation or conspiracy to commit another offense, or for a cross reference to homicide guidelines where a death occurred in the course of the crime. Application Note 14 to U.S.S.G. § 2K2.1(c)(1) requires the sentencing court to calculate the base offense level for the underlying offense pursuant to U.S.S.G. § 2X1.1. The court must then select the greatest base offense level from three possible determinations: 1) the calculation for the underlying offense defendant intended to commit with the firearm; 2) the appropriate § 2K2.1 firearm offense level; or 3) base offense level 12. United States v. Holmes, 975 F.2d 275, 280 (6th Cir.1992). Application Note 2 to U.S.S.G. § 2X1.1(a) requires the court to consider the underlying offense defendant specifically intended to commit or which actually occurred. United States v. Holmes, 975 F.2d at 280-281. The court cannot use the characteristics of a speculative offense to elevate defendant’s base offense level. United States v. Holmes, 975 F.2d at 280-281. Finally, defendant’s use of the firearm must be linked to the underlying offense in order to consider it in enhancing a firearm possession sentence. United States v. Bronaugh, 895 F.2d 247, 248, 252 (6th Cir.1990).
In the instant case, the district court determined the underlying offense to be a federal robbery offense, and so began its analysis with the base offense level set forth in U.S.S.G. § 2B3.1, which redresses the federal robbery offenses set forth in 18 U.S.C. §§ 1951, 2113, 2114, 2118(a). 18 U.S.C. § 1951 prohibits the obstruction of commerce through the. use of force or violence; 18 U.S.C. § 2113 prohibits bank robberies and incidental crimes; 18 U.S.C. § 2114 prohibits theft of United States property; and 18 U.S.C. § 2118 prohibits thefts of controlled substances from persons registered with the Drug Enforcement Administration (pharmacists, for example).
Defendant was convicted and sentenced for a state theft offense which did not involve banks, interstate commerce, United States property or persons registered with the Drug Enforcement Administration. At the evidentiary hearing conducted by the district court prior to sentencing, the testimony revealed only that defendant brandished a gun and verbally threatened a pawnshop clerk as she struggled to reclaim jewelry defendant took from a display case while her back was turned. There is no indication in the record that these actions might be considered federally prohibited conduct. Absent evidence that while defendant committed a theft in contravention of state law he actually intended to commit a federal robbery offense, the district court should not have used the higher federal penalty in calculating defendant’s base offense level. As I noted earlier, the majority of this panel opines that though “... the state might not have been able to prove robbery beyond a reasonable doubt; that hardly means that the preponderance of the evidence does not support the conclusion that a robbery occurred....” My review of the record reveals no evidence that the defendant intended to commit, or actually committed, a federal robbery offense. Likewise, I find no indication in the record that the State of Tennessee tried to prove the defendant did in fact commit such a federally prohibited crime. The district court essentially, and I believe improperly, allowed the defendant to be sentenced for a crime of which he was not indicted or charged and of which he was not proven guilty beyond a reasonable doubt. Accordingly, I must respectfully dissent from the majority’s position.
. Defendant pled guilty to a Tennessee state theft charge and received a six year sentence before entering his federal plea agreement on the firearm charge.