United States v. Lewis Pate, 2017 U.S. App. LEXIS 6421

In 2012 Pate was convicted of being a felon in possession of a firearm; originally sentenced as an Armed Career Criminal to 200 months, later reduced to 120 months after Johnson invalidated the ACCA residual clause.
At resentencing the PSR treated two prior felonies (aggravated robbery and Minnesota third-degree non-residential burglary) as crimes of violence, yielding a base offense level of 24 under U.S.S.G. §2K2.1(a)(2).
The PSR also recommended a 4-level enhancement under U.S.S.G. §2K2.1(b)(6)(B) for possession/use of a firearm in connection with another felony, based on trial evidence of a street shootout and a witness who observed men in black hoodies firing at a third man.
Pate disputed (1) that the enhancement applied because no one was charged with a separate felony arising from the shooting and the government did not prove he fired the gun at the scene, and (2) that his burglary conviction qualified as a crime of violence under the Guidelines.
The district court applied the §2K2.1(b)(6)(B) enhancement, adopted the PSR, and sentenced Pate to 120 months; it also stated that even if the burglary did not qualify as a crime of violence (reducing the Guidelines range), it would still impose 120 months.

Issue	Pate's Argument	Government's Argument	Held
Whether a 4-level enhancement under U.S.S.G. §2K2.1(b)(6)(B) applies for possession/use of a firearm "in connection with another felony" when no separate felony conviction was obtained	The evidence was insufficient: no charges or conviction for a felony arising from the shooting; casings didn't match the recovered revolver; government didn’t prove Pate fired the gun at the scene	Trial testimony and Pate’s statements support a finding by a preponderance that he was present in a shootout and possessed the gun in connection with another felony; district court may find the underlying felony by factfinding	Affirmed: district court did not clearly err in applying the enhancement based on the totality of trial evidence and its factual findings
Whether Pate’s Minnesota third-degree non-residential burglary conviction is a "crime of violence" under the Guidelines, affecting base offense level	The burglary does not qualify; if it didn’t, base offense level would be 4 levels lower and Guidelines range reduced	Prior precedent treated burglary as a crime of violence; but even if that changed, the district court said it would still impose the same 120-month sentence	Affirmed: even if classification was erroneous, the error was harmless because district court expressly would have imposed the same 120-month sentence

Johnson v. United States, 576 U.S. 591 (2015) (invalidating the ACCA residual clause)
United States v. Pate, 754 F.3d 550 (8th Cir. 2014) (prior appeal addressing the facts of the shooting and conviction)
United States v. Ewert, 828 F.3d 694 (8th Cir. 2016) (standard of review for guideline interpretation and harmless-error rule)
United States v. Holm, 745 F.3d 938 (8th Cir. 2014) (requirement that district court find by preponderance another felony and that the firearm facilitated it when no conviction exists)
United States v. Littrell, 557 F.3d 616 (8th Cir. 2009) (same principle on §2K2.1(b)(6)(B) factfinding)
United States v. Battle, 774 F.3d 504 (8th Cir. 2014) (affirming district-court factfinding to apply the §2K2.1(b)(6)(B) enhancement)
United States v. Walker, 771 F.3d 449 (8th Cir. 2014) (omission of a reference to underlying offense can be harmless where facts support a statutory violation)
United States v. Benedict, 815 F.3d 377 (8th Cir. 2016) (earlier Eighth Circuit treatment of commercial burglary as crime of violence; subsequently vacated judgment noted)
United States v. Stymiest, 581 F.3d 759 (8th Cir. 2009) (discussion of generic burglary as a crime of violence under §4B1.2)