Joseph J. Hill and Larry E. Lumsden both pleaded guilty to a charge that they had unlawfully possessed firearms as convicted felons, in violation of 18 U.S.C. § 922(g)(1). Hill was ordered to serve a prison term of sixty-six months, while his co-defendant Lumsden was sentenced to a term of seventy-one months. They both appeal their sentences. Hill contends that the district court improperly denied him an offense-level reduction based on his mitigating role in the offense, see U.S.S.G. § 3B1.2, and that the court, in deciding the length of his sentence, improperly referenced what it thought Lumsden’s prison term ought to have been rather than what it actually was. Lumsden argues that the *574 court erroneously increased his offense level for possessing firearms in connection with another offense, see U.S.S.G. § 2K2.1(b)(6), and that the court’s use of the Sentencing Guidelines manual in effect at the time of his sentencing was contrary to the ex post facto clause of the Constitution. Because the district court appears to have erroneously believed Hill was ineligible for a mitigating-role reduction due to the fact that he was held accountable only for his own criminal conduct, we vacate his sentence and remand for re-sentencing. We affirm Lumsden’s sentence, however.
I.
On September 2, 2006, Lumsden, together with his brother Charles and his brother’s girlfriend, Dee Iku, a/k/a Christine Waller (“Waller”), burglarized the residence of Waller’s estranged husband in Durand, Blinois. Among other items, they stole various firearms and ammunition. Hill did not participate in the robbery.
Lumsden subsequently sought to sell the stolen firearms. On the afternoon of September 6, he was visiting the home of another brother, David, and spoke with his brother’s girlfriend about the guns. She was or became a confidential informant (“Cl”) for the authorities. Lumsden told the Cl that he had three “long guns” and one handgun for sale. Lumsden was candid about the fact that the guns had been stolen. The Cl told Lumsden that she would get back to him after asking around to see if anyone was interested in the firearms. The Cl proceeded to contact the Rockford Police Department (“RPD”) to report what Lumsden had told her about the burglary and Lumsden’s desire to sell the firearms.
On the following day, September 7, the Cl, acting on instructions from members of the federal Bureau of Alcohol, Tobacco, Firearms and Explosives (“ATF”) and the RPD, arranged to make a purchase of firearms from Lumsden. She told him that her uncle was interested in buying some guns. Lumsden subsequently offered to sell her two double-barreled shotguns, a 12-gauge shotgun, and a crate of ammunition for $600. The Cl agreed to Lumsden’s terms.
Later that afternoon, the Cl drove to Lumsden’s mobile home to make the purchase. She wore a body recording device to the meeting and was under surveillance while she met with Lumsden. Surveillance agents saw Lumsden carry something wrapped in a blue blanket and place it in the back of the Cl’s vehicle; Lumsden also placed a large crate in the vehicle. When the Cl later met with the authorities, they discovered that the blue blanket concealed three firearms: two Stoeger Arms double-barreled shotguns and a Remington Arms single-barreled shotgun. The crate contained some 298 rounds of assorted shotgun shells. The firearms purchased by the Cl matched the description of three shotguns reported stolen from the residence in Durand, and inside the crate of ammunition was a gun cleaning kit with the name of the burglarized homeowner. The guns and the ammunition all were manufactured outside of Illinois, and they would later form the basis for Count One of the indictment against Lumsden and Hill. The Cl told ATF Special Agent Daniel Ivancich that when she arrived at Lumsden’s home, Lumsden was not there. Lumsden showed up a few minutes later with Hill. At Lumsden’s instruction, the Cl retrieved from her vehicle a blanket that she had brought with her to cover the guns. Lumsden led the Cl to a back room where the three shotguns and crate of ammunition were laid out on the floor. Hill wrapped the guns in the Cl’s blanket while the Cl paid Lumsden. Lumsden reminded the Cl that the guns were “hotter than a piece of bacon in a frying pan.” R. 1 Ivancich Aff. ¶ 9.
*575 On September 11, after additional contacts with Lumsden, the Cl purchased two additional firearms from him for $500: a Marlin .22 caliber rifle, and a Remington 12 gauge shotgun. As part of the deal, Lumsden also provided the Cl with twenty-five rounds of ammunition for each of the guns. Like the guns the Cl had procured from Lumsden four days earlier, these two firearms had also been stolen from the Durand residence. They had also been manufactured outside of Illinois. These two firearms and the ammunition would later form the basis for Count Two of the indictment against Hill and Lumsden. When the Cl arrived at Lumsden’s home to make the purchase, Lumsden took her into a bedroom where the firearms were laying on a futon beneath a blanket. The Cl paid Lumsden in cash, and Lumsden wrapped the guns in the blanket. Hill was present while the Cl and Lumsden did business, and he carried the wrapped firearms outside to the Cl’s vehicle, which was parked in the driveway. Hill knew that the firearms had been stolen. Hill did not profit from the sale. His possession of the firearms did not exceed ten minutes.
Hill and Lumsden were arrested several days later. As convicted felons, both were prohibited from possessing firearms in or affecting commerce, and based on their possession of the weapons and ammunition sold to the Cl on September 7 and 11, 2006, they were jointly charged in an indictment with two separate violations of the federal felon-in-possession statute, 18 U.S.C. § 922(g)(1). Lumsden alone was charged in a third count with the possession of another weapon found in his home on the date of his arrest (not a gun that was taken in the burglary). Both defendants ultimately pleaded guilty to Count Two of the indictment, which charged their unlawful possession of the shotguns and ammunition sold to the Cl on September 11, 2006.
The district court sentenced Lumsden to a prison term of seventy-one months. In calculating the advisory sentencing range for Lumsden under the Sentencing Guidelines, the district court adjusted his offense level upward by four levels pursuant to Guidelines section 2K2.1(b)(6), finding that Lumsden had possessed the five firearms he sold to the Cl in connection with another offense — namely, the burglary by which he had obtained the firearms. The court relied on the November 2006 version of the Sentencing Guidelines when imposing that enhancement, rejecting Lumsden’s contention that the Constitution’s ex post facto clause forbade the court from doing so. R. 65 at 9-10. The 2006 Guidelines also specified a four-level enhancement based on the fact that the gun found in Lumsden’s home on the date of his arrest had an obliterated serial number, see U.S.S.G. § 2K2.1(b)(4)(A), whereas earlier versions had called for only a two-level enhancement. The final offense level called for a sentence in the range of fifty-seven to seventy-one months. The court considered imposing a sentence above that range in view of Lumsden’s relatively extensive and serious criminal history (he had three felony convictions and several misdemeanor convictions). However, the court ultimately rejected that possibility given the increases in Lumsden’s offense level triggered by the 2006 Guidelines. R. 65 at 22-23.
The district court imposed a sixty-six month term on Hill. Hill contended that he was entitled to a reduction in his offense role for having played a minor or minimal role in the offense. See U.S.S.G. § 3B1.2. Hill’s theory was that because he was not involved in the theft of the guns, did not profit from the sale of the guns to the Cl, and only briefly possessed the guns when he carried them out to the Cl’s automobile on September 11, his role in the offense was much less culpable than that of Lums *576 den and the average participant in unlawful weapons possession. But the district court rejected Hill’s request for the reduction. The court reasoned in part that Hill was not eligible for the reduction because he had not been charged for the theft and sale of the guns, in which he played a lesser role than Lumsden, but rather solely with his own possession of the guns. R. 70 at 12-13. “This is a narrowly tailored offense, and I’m satisfied that ... he is not eligible for it under all these facts.” R. 70 at 13. Alternatively, the court held that even if Hill was eligible for the reduction it was not appropriate in his case, as “he would not be substantially less culpable than the average participant in his possession.” R. 70 at 13. The resulting offense level produced an advisory sentencing range of fifty-seven to seventy-one months — the same as Lumsden’s. (Hill too had prior convictions for three felonies and “countless misdemeanor offenses.” R. 70 at 26.) The court rejected Hill’s request for a sentence below that range based essentially on the same facts underlying his (rejected) request for a mitigating-role reduction. “I sense that in your situation it was Lumsden’s scheme, and you were there. You’re his buddy and you possessed the weapon just to help him out.” R. 70 at 27. But given the circumstances of the offense, Hill’s criminal history, and the other relevant sentencing factors, see 18 U.S.C. § 3553(a), the court concluded that a below-Guidelines sentence was not appropriate. In deciding where within the range to sentence Hill, the court referenced the sentence it had imposed on Lumsden:
|Y]our co-defendant received 71 months. I almost was going to depart upward and sentence him to 96 months, but I did not, and that was on the basis that he got extra points for the possession of the other weapon. I think there was an obliterated serial number....
And then he got another enhancement [for possession of the firearms in connection with the burglary].
He would have gotten a 96-month sentence but for the fact that the guidelines had changed since he pled guilty, and I’ve tried to recognize that ...
So, in sentencing you within the guideline range, I’ve compared what I think is appropriate in comparison to your codefendant, who would have received some 90 months. I’m sentencing you to 66 months in the Bureau of Prisons....
R. 70 at 28.
II.
A. Hill
Hill maintains that he was entitled to a reduction in his offense level for the weapons offense based on his minimal or minor role in that offense. Hill’s position is that when one looks to the broader conduct of which his possession of the weapons was a part — namely, the theft and subsequent sale of the guns to the Cl — his involvement was indeed minor if not minimal: he did not participate in the burglary in which the guns were taken, he did not arrange the sale of the guns to the Cl, nor did he profit from the sale. His involvement was limited to wrapping the guns in the blanket (on September 7) and helping to carry them from Lumsden’s home to the Cl’s vehicle outside (on September 11). In calculating Hill’s advisory range under the Sentencing Guidelines, the probation officer did not grant Hill the benefit of a mitigating role reduction. Hill objected to the Pre-Sentence Report (“PSR”) on that basis, but as we have noted, the district court overruled the objection, reasoning in part that Hill was not eligible for a reduction in view of the fact he was only being held accountable at sentencing for his own possession of the weapons and alternative *577 ly that, even if Hill should be deemed eligible for a reduction, he did not merit one because he was not substantially less culpable than the average participant in the offense.
Section 3B1.2 provides for “a range of [offense-level] adjustments for a defendant who plays a part in committing the offense that makes him substantially less culpable than the average participant.” U.S.S.G. § 3B1.2, cmt. (n.3(A)). As logic would suggest, the guideline only applies when there was more than one criminally culpable participant in the offense.
Id.,
cmt. (n.2). The guideline permits a four-level decrease in the defendant’s offense level if the defendant was a “minimal participant” in the offense — one who is “plainly among the least culpable of those involved in the conduct of a group,”
id.,
cmt. (n.4) — a two-level reduction if he was a “minor participant” — one who “is less culpable than most other participants, but whose role could not be described as minimal,”
id.,
cmt. (n.5)' — and a three-level reduction if his participation fell somewhere between “minimal” and “minor.” The determination whether to grant the defendant credit for his lesser role in the offense requires the court to “weigh[ ] the totality of the circumstances” and is “heavily dependent on the facts of the particular case.”
Id.,
cmt. (n.3(C)). We review the district court’s construction of a guideline and its methodology in applying the guideline de novo, as these present legal questions.
See United States v. Wasz,
The commentary to the mitigating role guideline was amended in 2001 in a respect that has particular importance in this case. Prior to the amendment, we were of the view that if a defendant, notwithstanding his participation in concerted criminal activity, was sentenced solely for his own criminal conduct and not the conduct of the other participants in the concerted activity, then he was ineligible for a mitigating role reduction.
See, e.g., United States v. Hamzat,
A defendant who is accountable under 1.3 (Relevant Conduct) only for the conduct in which the defendant personally was involved and who performs a limited function in concerted criminal activity is not precluded from consideration for an adjustment under this guideline. For example, a defendant who is convicted of a drug trafficking offense, whose role in the offense was limited to transporting or storing drugs and who is accountable under 1.3 only for the quantity of drugs the defendant personally transported or stored is not precluded from consideration for an adjustment under this guideline.
U.S.S.G. § 3B1.2, cmt. (n.3(A));
see also id.,
Historical Notes regarding 2001 amendments. We have recognized that the amended commentary effectively overruled our prior cases on this subject.
United States v. Rodriguez-Cardenas,
In view of the amended commentary, the district court committed legal error in deeming Hill ineligible for a mitigating role reduction pursuant to section 3B1.2. Although the district court was
*578
aware of the 2001 amendment, it believed there was “no basis” for a reduction given that Hill had pleaded guilty simply to a “narrowly tailored” felon-in-possession charge rather than a broader charge such as the distribution of firearms as to which he played a lesser role than his co-defendant. Sent Tr. 12-13. This reasoning fails to appreciate the change wrought by the amended commentary and largely repeats the very rationale that the Sentencing Commission rejected. Consider that prior to the 2001 amendment, we had repeatedly held that a minor player in a drug trafficking conspiracy who was charged and sentenced only for the amount of drugs that he himself had possessed was not eligible for a mitigating role reduction because he was being held to account only for his own acts and not for the acts of the other conspirators — including the amounts of drugs they had distributed.
See, e.g., Hamzat,
*579
Although the district court went on to summarily state that Hill “was not substantially less culpable than the average participant in his possession,” which is a factual determination normally entitled to deferential review, we cannot be confident that its analysis was guided by the appropriate factors. We do agree that in addition to assessing a defendant’s role in a particular crime, a court must consider whether he is significantly less culpable than the average participant in the offense.
See United States v. McGee,
We find ourselves making the same point vis-a-vis Hill’s entitlement to the 3B1.2 reduction that we have already made in discussing his eligibility for the reduction: The facts underlying his possession of the guns matter. So far as the record reveals, his involvement with the guns was limited to a few discrete acts occupying no more than a few minutes on each of two occasions. On the first, he wrapped the guns in a blanket, and on the second, he carried the guns to the Cl’s car. He did not participate in the theft of the guns. He did not participate in arranging the sale of the guns to the Cl, and he did not profit from the sale of the guns to the CI.
Cf. United States v. Emerson,
Our point is thus not that Hill necessarily is entitled to credit for being a minor or minimal participant in the offense but rather that he is entitled to have the district court reconsider the matter. We shall remand the case to the district court for that purpose.
Because we are remanding the case for reconsideration of a possible reduction based on Hill’s role in the offense, we call the district court’s attention to one other point. When addressing the appropriate length of sentence for Hill, the district court referenced his co-defendant Lumsden, and the court’s remarks could be read to suggest that Hill’s sentence should be calculated in part based not on the actual sentence that Lumsden received, but the longer sentence that the court considered imposing on Lumsden but did not. We are not certain from the court’s remarks whether the court, in the end, used Lumsden’s actual sentence or a hypothetically longer sentence as its benchmark. It may be, as the government suggests, that what the court was saying was that it had considered sentencing Lumsden to a prison term above the advisory Guidelines range but ultimately did not, and for that reason it would not sentence Hill above the Guidelines range either. (The court previously had signaled that it was considering an above-Guidelines sentence for Hill as well.) But we cannot be sure that this is what the court meant. Referencing the longer sentence that the court did not, in the end, impose on Lumsden would be problematic, given that the principal reason cited by the court for a longer sentence was Lumsden’s criminal history, which had nothing to do with Hill and his own culpability. We invite the court to revisit and clarify its reasoning in this regard on remand.
B. Lumsden
In calculating Lumsden’s offense level, the district court applied a four-level enhancement pursuant to Guidelines section 2K2.1(b)(6), which mandates such an increase “[i]f the defendant ... possessed any firearm ... in connection with another felony offense....” Effective November 1, 2006, the commentary to this guideline was amended to state the following in regard to the meaning of the phrase “in connection with”:
14. “In Connection With”—
(A) In General. Subsection [ 1(b)(6) ... applies] if the firearm or ammunition facilitated, or had the potential of facilitating, another felony offense....
(B) Application When Other Offense is Burglary or Drug Offense. Subsection [ 1(b)(6) ... applifies] (i) in a case in which a defendant, ... during the course of a burglary, finds and takes a firearm, even if that defendant did not *581 engage in any other conduct with that firearm during the course of the burglary. ...
US.S.G. § 2K2.1, comment, (n.14). There is no dispute the increase to Lumsden’s offense level was required by Application Note 14(b)(i): Lumsden took in a burglary the firearms he was convicted of possessing. But Lumsden argues that the amended commentary is inconsistent with the language of the guideline. He also contends that because the amended commentary took effect after his crime, the district court’s reliance on that commentary in calculating his sentencing range violated the Constitution’s ex post facto clause. Neither argument has merit.
“[C]ommentary in the Guidelines Manual that interprets or explains a guideline is authoritative unless it violates the Constitution or a federal statute, or is inconsistent with, or a plainly erroneous reading of, that guideline.”
Stinson v. United States,
Lumsden’s contention is that Note 14(b)(i) disregards the guideline’s requirement that the defendant possess a firearm in connection with
“another
” felony offense, that is, an offense distinct from the weapons offense itself. As Lumsden points out, we held in
United States v. Szakacs,
But as our decision in
United States v. Purifoy, supra,
As in Purifoy, the enhancement in this case was based on conduct that was distinct from Lumsden’s simple possession of the firearms, namely the burglary. We understand Lumsden’s point that he could not have possessed these particular guns without committing the burglary. But that does not render the two offenses one *582 and the same for sentencing purposes. The offenses are based on separate conduct, and the fact that Lumsden committed one of the crimes did not mean that he necessarily had to commit the other: He could have burglarized the residence without taking possession of the guns, and he could have possessed a gun (even these guns, if he came by them a different way) without committing a burglary. The district court therefore properly treated the crimes as distinct for purposes of the 2K2,1(b)(6) enhancement.
We note finally that the guideline does not require Lumsden to have possessed the weapons for the purpose of committing the burglary. The guideline by its terms requires only that the defendant have possessed a weapon “in connection with” another offense. That language is sufficiently broad to include possessing a weapon as a result of the burglary,
see United States v. Armstead,
Lumsden goes on to argue that it was a violation of his rights under the
ex post facto
clause of the Constitution for the district court to use the 2006. Guidelines Manual which included the amended commentary in sentencing him, given that his offense took place two months prior to the November 1, 2006 effective date of the new commentary. Lumsden assumes that absent the new commentary, he would not have received the enhancement. That is not a given. The Fifth Circuit had previously interpreted the guideline language to apply to the unlawful possession of weapons that were taken in a burglary,
see Armstead,
But even giving Lumsden the benefit of the doubt on this point, our decision in
United States v. Demaree,
III.
The district court erred in deeming Hill ineligible for a possible reduction in his offense level based on his minimal or minor role in the offense. We therefore Vacate Hill’s sentence and Remand for reconsideration of his entitlement to such a reduction and also clarification as to the manner in which the court took into account his codefendant’s sentence. The court properly enhanced Lumsden’s offense level based on his possession of a weapon in connection with another offense. We therefore Affirm his sentence.
Notes
. That sequence distinguishes this case from
United States v. Thompson,