United States v. Brummett

United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS December 19, 2003
FOR THE FIFTH CIRCUIT
Charles R. Fulbruge III
Clerk

No. 03-40636
Summary Calendar

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

DAVID KEITH BRUMMETT,

Defendant-Appellant.

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Appeal from the United States District Court
for the Eastern District of Texas

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Before HIGGINBOTHAM, DAVIS and PRADO, Circuit Judges.

PER CURIAM:

David Keith Brummett appeals from his 70-month sentence

following his guilty-plea conviction for being a felon in

possession of a firearm, in violation of 18 U.S.C. § 922(g)(1).

Brummett challenges the district court's determination at

sentencing that he was responsible not only for two firearms

charged in the indictment but also for two additional firearms

under relevant conduct. Finding no error, we affirm.

I.

On January 18, 2001, police executed a search warrant at

Brummett's home in connection with an investigation of a check
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forging scheme. In addition to finding miscellaneous drug

paraphernalia, police discovered a .22 caliber Jennings pistol

and a 20 gauge Harrington & Richardson shotgun with a stock that

had been altered to shorten the overall length. Brummett, who

has two prior felony drug convictions, was indicted in counts one

and two, respectively, for possession of these firearms.

Brummett pleaded guilty to count one, and count two was

dismissed.

On July 11, 2001, police went to Brumett's residence as part

of an investigation into a methamphetamine laboratory. While

searching Brummett's apartment, police found a .40 caliber Ruger

handgun in a closet along with methamphetamine lab equipment. On

September 5, 2001, while using Brummett as a confidential

informant in a methamphetamine investigation, police discovered

an SKS assault rifle, a methamphetamine lab, and methamphetamine

in Brummett's motel room.

The district court held Brummett responsible under relevant

conduct for the Ruger handgun and the SKS assault rifle.

Applying the 2000 version of the sentencing guidelines, the

district court increased Brummett's offense level by one pursuant

to U.S.S.G. § 2K2.1(b)(1)(A) because the offense involved three

to four firearms and also increased the offense level by four

pursuant to § 2K2.1(b)(5) because the Ruger handgun and the SKS

assault rifle were possessed in connection with another felony

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offense, namely the intent to manufacture and the manufacture of

methamphetamine. Applying these enhancements, the PSR determined

Brummett’s guideline range to be 63 to 78 months. Overruling

Brummett’s objections, the district court adopted the findings of

the PSR and sentenced Brummett to 70 months in prison and three

years of supervised release. Brummett timely appeals.

II.

Brummett challenges the enhancements applied under both

U.S.S.G. § 2K2.1(b)(1)(A) and § 2K2.1(b)(5) on the same basis.

Brummett argues that the district court's relevant conduct

determination and specific offense characteristic enhancements

were erroneous because his possession of the Ruger handgun and

the SKS assault rifle were not part of the same scheme or plan

as the offense of conviction, which occurred on January 18, 2001,

and were not charged in the indictment. He contends that such

extraneous offense conduct should not be used to enhance a

sentence in a felon-in-possession case, and he asserts that the

conduct was too remote in time from the offense of conviction to

warrant the increase in his offense level.

A district court's application of the sentencing guidelines

is reviewed de novo, and its findings of fact are reviewed for

clear error. United States v. Stevenson, 126 F.3d 662, 664 (5th

Cir. 1997). A district court may consider non-adjudicated

offenses (offenses for which the defendant has neither been

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charged nor convicted) that occur after the offense of

conviction, provided they constitute "relevant conduct" under

U.S.S.G. § 1B1.3. United States v. Vital, 68 F.3d 114, 118 (5th

Cir. 1995).

Relevant conduct includes offenses that are part of the same

course of conduct or common scheme or plan as the offense of

conviction. Id.; see § 1B1.3(a)(2). "For two or more offenses

to constitute part of a common scheme or plan, they must be

substantially connected to each other by at least one common

factor, such as common victims, common accomplices, common

purpose, or similar modus operandi." § 1B1.3, comment. (n.9(A)).

"Offenses that do not qualify as part of a common scheme or plan

may nonetheless qualify as part of the same course of conduct if

they are sufficiently connected or related to each other as to

warrant the conclusion that they are part of a single episode,

spree, or ongoing series of offenses." Id., comment. (n.9(B)).

The determining factors are "the degree of similarity of the

offenses, the regularity (repetitions) of the offenses, and the

time interval between the offenses." Id. A district court's

determination of relevant conduct is reviewed for clear error.

United States v. Solis, 299 F.3d 420, 461 (5th Cir. 2002).

In a case with facts similar to those present here, the

Seventh Circuit upheld the district court's findings of relevant

conduct and enhancement determinations under § 2K2.1(b)(1) where

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a defendant had possessed an uncharged assault rifle along with

two other weapons "within a six to nine month period." United

States v. Santoro, 159 F.3d 318, 321 (7th Cir. 1998).

Similarly, the Tenth Circuit has held that a pattern of

possessing illegal firearms over a four to five month period is

sufficient to constitute the "same course of conduct." United

States v. Windle, 74 F.3d 997, 1000-01 (10th Cir. 1996); see also

United States v. Powell, 50 F.3d 94, 104 (1st Cir. 1995)(holding

that "the contemporaneous, or nearly contemporaneous, possession

of uncharged firearms is, in this circuit, relevant conduct in

the context of a felon-in-possession prosecution").

As the district court found, Brummett possessed four

firearms on three separate occasions within a nine month period.

He possessed all four firearms after a felony conviction.

Brummett's pattern of behavior of possessing firearms was similar

and regular, and the time period between the offenses permits a

conclusion that the firearms possessions were part of an ongoing

series of offenses. Santoro, 159 F.3d at 321; Windle, 74 F.3d at

1000-01; see § 1B1.3, comment. (n.9(B)).

III.

The district court did not err in its conclusion that all

instances of firearm possession set forth in the PSR were

relevant conduct in relation to Brummett’s offense of conviction.

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Accordingly, Brummett’s challenge to the enhancements under §

2K2.1(b)(1)and § 2K2.1(b)(5) must fail.

AFFIRMED.

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