Lead Opinion
Appellant Lionel Dixon pleaded guilty to being a felon in possession of a firearm, in violation of 18 U.S.C. § 922(g)(1). The
On May 21, 2014, Dixon was involved in a confrontation with a neighbor during which Dixon retrieved a pistol and threatened the neighbor with the weapon. After an unidentified observer placed an emergency phone call, police located and arrested Dixon and cоnfiscated the firearm. An officer subsequently attempted to test-fire the pistol and discovered that it did not function due to an issue with the gun’s firing mechanism.
Dixon pleaded guilty to being a felоn in possession of a firearm, in violation of 18 U.S.C. § 922(g)(1). At Dixon’s sentencing hearing, the Government pursued a four-level enhancement under section 2K2.1(b)(6)(B) of the sentencing guidelines becausе Dixon had used the weapon in connection with a felony offense—the crime of “[e]xhibit[ing], in the presence of one or more persons, [a] weapon readily cаpable of lethal use in an angry or threatening manner.” Mo.Rev.Stat. § 571.080.1(4). Dixon objected to this enhancement. He argued that because the gun was not functional, it did not meet the Missоuri statute’s requirement that the weapon be “readily capable of lethal use.” Although the court agreed with Dixon’s reasoning, it found the argument foreclosed by previous decisions of the Missouri Supreme Court.
The district court’s application of the enhancement resulted in a guidelines range of 57-71 months’' imprisonment (as opposed to the 37-46 month rangе that would have applied without the enhancement). Acknowledging the circumstances of the offense and the fact that the pistol was not functional, the district court variеd downward and sentenced Dixon to a term of 48 months’ imprisonment. Dixon now appeals, renewing his argument that he did not violate section 571.030.1(4) of the Missouri statutes because a weаpon must be functional in order to be “readily capable of lethal use” under the statute.
Section 2K2.1(b)(6)(B) of the Guidelines Manual provides that “[i]f the defendant [u]sed or possessed any firearm or ammunition in connection with another felony offense,” then the court should • increase the offense level by four levels. “In applying § 2K2.1(b)(6) when the defendant has not bеen convicted of another state or federal felony offense, the district court must find by a preponderance of the evidence that another felony offensе was committed, and that use or possession of the firearm ‘facilitated’ that other felony.” United States v. Littrell,
Missouri law prohibits as one of several “unlawful usеs of weapons” the knowing “[e]xhibit[ion], in the presence of one or more persons, [of] any weapon readily capable of lethal use in an angry or threatening manner.” ■ Mo.Rev.Stat. § 570.030.1(4). Violation of this provision constitutes a class D felony punishable by up to four years -in prison. Mo.Rev.Stat.
The Missouri Supreme Court has held that a weapon qualifies as “readily capable of lethal use” under section 571.030.1 even if it is not functional. In State v. Wright, a defendant challenged his conviction under the statute’s prohibition against carrying a concealed weapon, arguing that the state had failed to provide evidence showing that the weаpon in question was functional.
The felony underlying Dixon’s enhancement contains the same “readily capable of lethal use” language as the concealed-weapon offense considered by the Missouri Supreme Court in Wright. See Mo.Rev. Stat. § 570.030.1(4). Under Missouri law, therefore, the Government did not neеd to prove in its case in chief that Dixon’s weapon was functional in order for the district court to find that Dixon possessed the weapon in connection with a violation оf the statute. See Wright,
For the foregoing reasons, we affirm.
Notes
. The Honorablе Stephen N. Limbaugh, Jr., United States District Judge for the Eastern District of Missouri.
. Dixon does not challenge the substantive reasonableness of his sentence.
Concurrence Opinion
concurring.
Wright held that “Section 571.030[ ] does not requirе the state to prove that a[ ] ... firearm is ‘functional,’ ” commenting that “the majority of cases have consistently held there is no requirement for a firearm to be loaded or оperational for a defendant to be convicted.”
This distinction is illustrated by the special negative defense enumerated in § 571.030.3: that defense applies to transporting weapons “in a nonfunctioning state,” as distinct from a nonfunctioning weapon. The latter suggests the firearm doesn’t work as a firearm at all under any circumstances; the former suggests that an otherwise functioning firearm doesn’t presently functiоn simply because of the state it is in, perhaps because it is unloaded, purposely broken down into its parts, or otherwise disabled to prevent unexpected dischargе during transportation. A firearm “in a nonfunctioning state” could under some circumstances be “readily capable of lethal use,” but the special negative defense allows a defendant to avoid culpability if he can prove the weapon or firearm was being transported “in a non-functioning state” even if the firearm was otherwise “readily capable of lethal use.”
That does not, however, answer the precise question posed by this case: whether the fact that a firearm is completely non-functioning is rеlevant to determining whether it is “readily capable of lethal use.” If faced with this question on facts like those presented here — where all parties agree that Dixon’s pistоl was nonfunc-tioning — it seems possible that the Supreme Court of Missouri would limit the applicability of Wright, and would rather consider the functionality of the firearm in the context of the plаin language of the statute, which asks whether the weapon exhibited was “readily capable of lethal use.” Because the Missouri courts have not been presented with the opportunity to consider such a case, however, I concur.