United States v. Richardson

McKEAGUE, Circuit Judge,

concurring.

I fully concur in the majority’s opinion, but write separately to explain why the other felony offense that serves as the predicate for the § 2K2.1(b)(6) enhancement need not actually have been committed by the defendant. I believe that under the plain language of § 2K2.1(b)(6), the four-level enhancement applies here regardless of whether it is shown that Richardson constructively possessed the marijuana found in Moore’s purse.

Section 2K2.1 (b)(6) provides for a four-level sentencing enhancement “[i]f the de*629fendant used or possessed any firearm or ammunition in connection with another felony offense.” The Application Notes to § 2K2.1(b)(6) define “another felony offense” as “any Federal, state, or local offense, other than the explosives or firearms possession or trafficking offense, punishable by imprisonment of a term exceeding one year, regardless of whether a criminal charge was brought, or a conviction obtained.” U.S.S.G. § 2K2.1(b)(6), Application Note 14(C).

Although the guidelines do not define the phrase “in connection with,” this court has explained that it has the same meaning as the phrase “in relation to” found in 18 U.S.C. § 924(c)(1)(A), which — according to the Supreme Court — means “the firearm must have some purpose or effect with respect to the drug trafficking crime; its presence or involvement cannot be the result of accident or coincidence ... Instead, the gun at least must facilitate or have the potential of facilitating the drug trafficking offense.” United States v. Hardin, 248 F.3d 489, 497-98 (6th Cir.2001) (quoting Smith v. United States, 508 U.S. 223, 238, 113 S.Ct. 2050, 124 L.Ed.2d 138 (1993)) (alterations omitted). Applying this definition, Hardin explained that the mere existence of a gun in the same room as narcotics does not, ipso facto, justify an enhancement under § 2K2.1(b)(5).1 Hardin, 248 F.3d at 501. Reiterating the proposition that § 2K2.1(b)(6) should be afforded an expansive interpretation, the Sentencing Commission added Application Note 14(B), which explains that where the other felony offense is drug trafficking, the “in connection with” requirement may be satisfied if the gun is “found in close proximity to drugs, drug-manufacturing materials, or drug paraphernalia.” U.S.S.G. § 2K2.1(b)(6), Application Note 14(B).

Based on the plain language of § 2K2.1(b)(6) and the definition provided in Hardin, in my opinion, there is no requirement that the defendant possess the firearm “in connection with another felony offense” that he himself has committed or is in the process of committing. So long as the defendant’s possession of the firearm in some way “facilitate^” or has the “potential of facilitating” the other felony offense, the enhancement is applicable, even if the other felony is actually being committed by another individual. An examination of the dictionary definition of “facilitate” bolsters this conclusion. According to Webster’s Dictionary, “facilitate” means “to make easier or less difficult.” Webster’s Third New International Dictionary (1986). Thus, the defendant’s firearm possession needs to reduce, or have the potential of reducing, the difficulty of completing the other offense, regardless of whether it is the defendant or another individual who is actually carrying out the other offense.

Furthermore, the interpretation set forth above finds support in the second clause of § 2K2.1(b)(6), which states that the four-level enhancement also applies if the defendant “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.” U.S.S.G. § 2K2.1(b)(6) (emphasis added). Under this portion of § 2K2.1(b)(6), an enhancement is warranted when the defendant transfers a firearm to another person with knowledge, intent, or reason to believe that it will be used in connection with another felony offense. In such a scenar*630io, the “another felony offense” phrase is clearly referring to an offense later committed by the transferee — not by the defendant-transferor whose sentence is being enhanced.

The Fourth Circuit’s decision in United States v. Cutler, 36 F.3d 406, 407-08 (4th Cir.1994), is illustrative of the typical factual scenario giving rise to an enhancement under the second clause of § 2K2.1(b)(6). In Cutler, the defendant was convicted of various firearms distribution offenses, and he received a four-level enhancement because he transferred numerous firearms with knowledge that they would later be used in felony offenses. Id. at 407. Affirming the enhancement, the Cutler court stated that § 2K2.1(b)(5) was satisfied because the guns sold by the defendant were “being distributed to drug abusers and drug dealers [and there is] no doubt that he knew that the guns were being used in connection with another felony offense.” Id. at 408; see also United States v. Mise, 240 F.3d 527, 531-32 (6th Cir.2001) (upholding a four-level enhancement under § 2K2.1(b)(5) because the defendant transferred a pipe-bomb to another individual with knowledge or reason to believe that the individual would use it in “another felony offense.”).

Applying the canon of statutory interpretation that “when Congress uses the same language in two different places in the same statute, the words are usually read to mean the same thing in both places,” Freeman v. Francis, 196 F.3d 641, 643 (6th Cir.1999), the phrase “another felony offense” should be interpreted to have the same meaning in both the first and second clauses of § 2K2.1(b)(6). This is especially true since the same phrase is used twice “within the same [provision] within the same subsection of the [guideline].” Lewis v. Philip Morris, Inc., 355 F.3d 515, 536 (6th Cir.2004). Because the phrase “another felony offense” as used in the second clause of § 2K2.1(b)(6) clearly contemplates the enhancement of a defendant’s sentence where the second felony is committed by another individual, the use of the same phraseology in the first clause of § 2K2.1(b)(6) should also be interpreted to encompass situations where the second felony was not actually committed by the defendant whose sentence is being enhanced. This, of course, assumes that facilitation or the possibility of facilitation has been demonstrated in accord with § 2K2.1(b)(6) as interpreted by Hardin.

Looking to the facts of this case, even if the marijuana in the purse was solely in the possession of and being distributed by Moore in the room rented by Richardson, his possession of a firearm in that same room inarguably had at least the potential to facilitate “another felony offense,” to wit: Moore’s drug trafficking. It is highly likely that the presence of her armed boyfriend in his hotel room would be of some assistance to Moore given the potential for violence inherent in drug transactions. Such an interpretation of § 2K2.1(b)(6) also comports with the Sentencing Commission’s intent of punishing more severely those individuals who bring firearms into situations where other criminal conduct is occurring. See generally United States v. Burke, 345 F.3d 416, 427 (6th Cir.2003).

Therefore, regardless of whether he constructively possessed the drugs in Moore’s purse, I believe the enhancement of Richardson’s sentence was warranted because even if one were to agree with Richardson that the drugs belonged to Moore, he possessed the firearm “in connection with” her felony drug trafficking offense, which is sufficient for the four-level enhancement to apply under the plain language of § 2K2.1(b)(6).

. Prior to November 1, 2006, what is now § 2K2.1(b)(6) was designated as § 2K2.1(b)(5).