22 F.4th 940
10th Cir.2022Background
- Defendant Victor Sanchez pleaded guilty (blind plea) to being a felon in possession of a firearm under 18 U.S.C. § 922(g)(1). District court varied downward and sentenced him to 96 months (statutory max 10 years).
- Presentence report: on July 16, 2019 Sanchez was driving a stolen Hyundai with the ignition popped; he left the vehicle, fled when officers announced themselves, reached into his waistband, and a loaded .40-caliber pistol with an obliterated serial number fell out.
- Sanchez acknowledged possessing the loaded firearm while driving the stolen vehicle and that possession of the stolen vehicle was a felony under New Mexico law.
- District court applied a +4 enhancement under U.S.S.G. § 2K2.1(b)(6)(B) (possession of a firearm "in connection with" another felony), finding by a preponderance of the evidence the gun had the potential to facilitate maintaining possession of the stolen car (e.g., by intimidating challengers or police).
- Sanchez argued the gun was not possessed "in connection with" the stolen-vehicle felony (no evidence he possessed the gun to protect the car); the Tenth Circuit reviews the factual finding for clear error and affirmed.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether Sanchez's possession of the firearm was "in connection with" the felony of possessing a stolen vehicle for purposes of U.S.S.G. § 2K2.1(b)(6)(B) | Government: must show firearm facilitated or had the potential to facilitate another felony; preponderance standard satisfied because the loaded gun could embolden Sanchez to keep the stolen vehicle when confronted | Sanchez: mere possession insufficient; no evidence he possessed the gun to protect or facilitate keeping the stolen car | Affirmed. Court held "in connection with" means the gun facilitated or had the potential to facilitate another felony; on these undisputed facts the district court did not clearly err in finding potential facilitation and applying the +4 enhancement |
Key Cases Cited
- United States v. Bunner, 134 F.3d 1000 (10th Cir. 1998) ("in connection with" requires that the firearm facilitated or could facilitate another felony)
- United States v. Constantine, 263 F.3d 1122 (10th Cir. 2001) (same interpretation of "in connection with")
- United States v. Walters, 269 F.3d 1207 (10th Cir. 2001) (upheld finding that a gun could potentially facilitate unlawful possession of stolen vehicle)
- United States v. Kitchell, 653 F.3d 1206 (10th Cir. 2011) (reiterating facilitation/ potential-facilitation standard)
- United States v. Justice, 679 F.3d 1251 (10th Cir. 2012) (application note supports potential-to-facilitate reading)
- United States v. Marrufo, 661 F.3d 1204 (10th Cir. 2011) (same)
- United States v. Joe, 696 F.3d 1066 (10th Cir. 2012) (harmless-error analysis in guideline calculation context)
- State v. Bernard, 355 P.3d 831 (N.M. Ct. App. 2015) (possession of a stolen vehicle is a separate felony under New Mexico law)