United States v. Fadipe

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

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No. 94-10104
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UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

OLUFEMI A. FADIPE,

Defendant-Appellant.

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Appeal from the United States District Court for
the Northern District of Texas
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(January 24, 1995)

Before REAVLEY, DUHÉ and PARKER, Circuit Judges.

REAVLEY, Circuit Judge:

Olufemi A. Fadipe was convicted of bank fraud, in violation

of 18 U.S.C. § 1344, and unlawful possession of a firearm by an

illegal alien, in violation of 18 U.S.C. § 922(g)(5). He appeals

the enhancement of his sentence under United States Sentencing

Guidelines ("U.S.S.G.") § 2K2.1(b)(5). We vacate the sentence

and remand for resentencing.

BACKGROUND

Fadipe submitted a credit application containing false

information to Bank One. Keith Tidwell, the Assistant Vice

President and Line of Credit Manager for Bank One, received the

application and believed it to be fraudulent. He contacted the
United States Secret Service and agreed to cooperate in the

investigation of Fadipe. Tidwell provided the Secret Service

with a book of checks which the bank normally would have sent to

Fadipe.

The Secret Service conducted a controlled delivery by

placing the Bank One checks into Fadipe's apartment mail box.

Police officers arrested Fadipe as soon as he retrieved the

checks from the mail box and drove out of his apartment complex.

The officers recovered a loaded gun from the front passenger area

of Fadipe's automobile. The officers also found numerous

applications for loans from various banks, records containing the

personal and financial history of various individuals and other

materials which could be used in bank fraud schemes.

A jury convicted Fadipe of bank fraud and unlawful

possession of a firearm. At sentencing, the district court

enhanced Fadipe's base offense level by four pursuant to U.S.S.G.

§ 2K2.1(b)(5). Fadipe appeals his sentence.

DISCUSSION

U.S.S.G. § 2K2.1 provides the applicable base offense levels

for convictions relating to unlawful receipt, possession or

transportation of firearms. U.S.S.G. § 2K2.1(b)(5) provides for

a four-level enhancement of the applicable base offense levels

"[i]f the defendant used or possessed any firearm or ammunition

in connection with another felony offense." The district court

found that Fadipe had possessed the gun in his automobile in

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connection with the felony of bank fraud and assessed a four-

level enhancement under U.S.S.G. § 2K2.1(b)(5).

As a matter of law, we hold that the undisputed facts in

this case fail to prove that the gun was used "in connection

with" the bank fraud felony. See United States v. Reyes-Ruiz,

868 F.2d 698, 701 (5th Cir. 1989) (holding that questions of law

relating to the Sentencing Guidelines should be reviewed de

novo). The undisputed facts show no connection between the gun

and Fadipe's bank fraud crime other than that the gun was present

in Fadipe's automobile, along with other tools of Fadipe's bank

fraud trade, when the checks were retrieved. The enhancement

under U.S.S.G. § 2K2.1(b)(5) was improper.

In United States v. Condren, the Fifth Circuit upheld a

finding that a firearm was possessed "in connection with" a drug

felony, for the purposes of U.S.S.G. § 2K2.1(b)(5), where the

firearm was merely present in a location near the drugs. 18 F.3d

1190 (5th Cir.), cert. denied, 115 S.Ct. 161 (1994). This Court

took notice of the fact that "theft is a close and ever present

partner of illegal drugs," and therefore upheld the trial court's

finding that the gun was kept by the defendant to "help him

protect his drug-related activities." Id. at 1198-1200. We

approved the connection between the gun and the felony based on

the mere presence of the gun, because it could be assumed from

the gun's presence alone that the gun was to be used "in

connection with" the felony as a method of protection of the

felonious activity. This Court thought this interpretation of

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U.S.S.G. § 2K2.1(b)(5) comported with the intent of the

Guidelines to address the "real and obvious increase in the risk

of violence" which exists whenever guns and drugs are found

together. Id. at 1199.

In this case, the checks which Fadipe received in the

controlled delivery had his name, phone number and address on

them. It is not reasonable to assume that Fadipe had the gun

present to prevent their theft. The presence of a gun near

instruments of bank fraud does not create the same automatic

increase in the danger of physical violence that exists when

drugs and guns are present together.

An enhancement under U.S.S.G. § 2K2.1(b)(5) is appropriate

in a case involving a bank fraud felony where a gun is truly used

"in connection with" the commission of the crime. However,

"[t]he connection between the firearm and the [bank fraud] felony

must be proved." Id. at 1199 n. 20. No connection between the

gun possessed by Fadipe and the bank fraud committed by Fadipe

has been proved in this case. The mere possession of a gun near

the instruments involved in a fraudulent loan application scheme

is insufficient to prove that the gun was used "in connection

with" the bank fraud felony for purposes of the application of

U.S.S.G. § 2K2.1(b)(5). The sentencing enhancement assessed

against Fadipe pursuant to U.S.S.G. § 2K2.1(b)(5) was improper.

Sentence VACATED and REMANDED for resentencing.

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