[PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FILED
U.S. COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT ELEVENTH CIRCUIT
________________________ August 20, 2002
THOMAS K. KAHN
No. 01-16937 CLERK
Non-Argument Calendar
________________________
D. C. Docket No. 01-00120-CR-1-1
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
LARRY D. SUTTON, a.k.a. Sosa,
Defendant-Appellant.
________________________
Appeal from the United States District Court
for the Northern District of Georgia
_________________________
(August 20, 2002)
Before BLACK, MARCUS and COX, Circuit Judges.
PER CURIAM:
Larry D. Sutton was arrested after a police officer saw him selling drugs. A
search of Sutton’s residence revealed the presence of weapons and ammunition.
Sutton was charged in a four-count superseding indictment. He pleaded guilty
to Count One, being a convicted felon in possession of a Winchester 30-30 caliber
rifle, a Remington .22 caliber rifle, a Sears and Roebuck model 200 shotgun, and
Federal 30-30 caliber ammunition, in violation of 18 U.S.C. §§ 922(g) and 924(e).
The remaining three counts were dismissed.
The Presentence Investigation Report (“PSI”) recommended that Sutton be
sentenced under §4B1.4(b)(3)(A) of the Sentencing Guidelines, which provides a base
offense level of 34 “if the defendant used or possessed the firearm or ammunition in
connection with a . . . controlled substance offense.” United States Sentencing
Commission, Guidelines Manual, §4B1.4(b)(3)(A) (Nov. 2001). Furthermore, the PSI
recommended a criminal history category of VI, as required by §4B1.4(c)(2) “if the
defendant used or possessed the firearm or ammunition in connection with a . . .
controlled substance offense.” USSG §4B1.4(c)(2).
At Sutton’s sentencing hearing, Sutton asserted that none of the weapons were
used in connection with the drug transaction. After hearing testimony regarding the
weapons, the district court found that it was “clearly improbable” that the 30-30, .22,
and shotgun were connected to the offense. (R.4 at 41.) However, the court found
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that certain .357 ammunition, which was found at Sutton’s residence but was not
charged in the indictment, was connected to the offense. (R.4 at 41.) Sutton objected
to this finding because the .357 ammunition was not charged in the indictment. (R.4
at 40.)
Using §4B1.4(b)(3)(A), the district court calculated a base offense level of 34
and subtracted 3 points for acceptance of responsibility. It also placed Sutton’s
criminal history category at VI, in accordance with §4B1.4(c)(2). Sutton’s sentencing
range was 188 to 235 months, and the court sentenced Sutton to 188 months in prison.
On appeal, Sutton asserts that he should not have been sentenced under
§4B1.4(b)(3)(A). According to Sutton, the .357 ammunition could not be “the firearm
or ammunition” for purposes of §4B1.4(b)(3)(A) and §4B1.4(c)(2) because the .357
ammunition was not charged in the indictment. The Government confesses error,
agreeing that, for firearms or ammunition to qualify under §4B1.4(b)(3)(A) and
§4B1.4(c)(2), they must be charged in the indictment.
The language of the Sentencing Guidelines, like the language of a statute, must
be given its plain and ordinary meaning. United States v. Pompey, 17 F.3d 351, 354
(11th Cir. 1994). Section 4B1.4(b)(3)(A) imposes an offense level of 34 if the felon
convicted of violating 18 U.S.C. § 922(g) uses or possesses “the firearm or
ammunition” in connection with a drug offense. USSG §4B1.4(b)(3)(A). The phrase
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“the firearm or ammunition” echoes, but does not replicate, the phrase “any firearm
or ammunition” that is used in the statute. 18 U.S.C. § 922(g) (2000). The difference
is the use of the word “the” in the Guidelines instead of the word “any.”
While the word “any” is general and nonspecific, the word “the” is particular
and specific. The Sentencing Guidelines themselves evince an understanding of this
distinction. When any firearm or ammunition will do, the Guidelines use the
nonspecific phrases “any firearm or ammunition,” see, e.g., USSG §2K2.1(b)(5), or
“a firearm or ammunition,” see, e.g., §2K1.1(c)(1), rather than the specific phrase “the
firearm or ammunition.” The use of “the firearm or ammunition” in §4B1.4(b)(3)(A),
then, indicates that this Guideline applies only to a particular firearm.
The applicable firearm is evident from a reading of the Guideline in the context
of the criminal process. A defendant, whether by plea or trial, stands convicted of
possessing a firearm. If “the” firearm was used in connection with a drug offense, the
defendant receives a base offense level of 34; if not, the defendant receives a base
offense level of 33. When viewed in this way, the Guideline seems to use “the
firearm” to refer to the firearm that the defendant is convicted of possessing.
Similarly, §4B1.4(c)(2) provides a criminal history category of VI if the
defendant possesses “the firearm or ammunition” in connection with a drug offense.
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A plain reading of this Guideline indicates that it also applies only to firearms or
ammunition for which the defendant is convicted.
In this case, Sutton was indicted, in Count One, for possessing four firearms.
Sutton’s possession of these firearms violated the statute, and he pleaded guilty to the
violation. The district court found that none of these firearms were used in connection
with a drug offense. But it nevertheless found §4B1.4(b)(3)(A) appropriate because
certain .357 ammunition, for which Sutton was not indicted, was used in connection
with a drug offense. This use of §4B1.4(b)(3)(A) was in error, because, as we have
seen, §4B1.4(b)(3)(A) is applicable only if the firearms or ammunition for which the
felon was convicted were used in connection with a drug offense. The .357
ammunition did not qualify under §4B1.4(b)(3)(A) because Sutton was not convicted
of possessing it. Since none of the firearms for which Sutton was convicted were used
in connection with Sutton’s drug transaction, §4B1.4(b)(3)(A) was improperly applied
to Sutton. Moreover, Sutton should not have received a criminal history category of
VI because the .357 ammunition does not qualify as “the firearm or ammunition”
under §4B1.4(c)(2).
Because Sutton was not convicted of possessing the .357 ammunition, the
district court erred by using Sutton’s possession of this ammunition to sentence him
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under §4B1.4(b)(3)(A) and §4B1.4(c)(2). Therefore, Sutton’s sentence is vacated, and
this case is remanded for resentencing.
VACATED AND REMANDED.
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