UNITED STATES OF AMERICA v. XAVIER RASHAD BROOKS
No. 22-11456
United States Court of Appeals for the Eleventh Circuit
August 09, 2024
[PUBLISH]
D.C. Docket No. 7:21-cr-00001-HL-TQL-1
In the United States Court of Appeals For the Eleventh Circuit
Before WILSON, GRANT, and LAGOA, Circuit Judges.
LAGOA, Circuit Judge:
Xavier Rashad Brooks, a felon, pled guilty to one count of possessing a firearm in violation of
I. BACKGROUND
On October 12, 2020, a Remerton, Georgia police officer spotted a Lincoln Navigator believed to be related to a shooting in Valdosta, Georgia. The officer observed two males—Xavier Brooks and Alex Hollis—walk from a nearby apartment building and approach the Navigator. The officer spoke with Hollis, but Brooks stood behind a nearby Kia automobile and concealed his hands. The officer ordered Brooks to walk toward the officer and to show his hands, but Brooks ducked behind the Kia before complying with the officer‘s order. Additional law enforcement arrived and discovered a Glock pistol behind the Kia. The officers attempted to detain Brooks, but he ran from the scene.
The officers obtained an arrest warrant for Brooks based on his possession of the Glock as a felon. On October 15, 2020, law enforcement returned to the apartment building and arrested Brooks. On January 13, 2021, a federal grand jury indicted Brooks for one count of possession of a firearm by a felon under
Four days later, on January 17, 2021, officers stopped Brooks‘s vehicle in Valdosta, Georgia after Brooks failed to use a turn signal. Dispatch confirmed an outstanding warrant for the
Brooks initially pled not guilty to the federal charge related to his possession of the Glock, but Brooks later changed his plea to guilty. In light of Brooks‘s guilty plea, a probation officer prepared a presentence
The PSI then recommended that the district court reduce Brooks‘s offense level by three under U.S.S.G. § 3E1.1(a) and (b) because Brooks accepted responsibility and timely entered a guilty plea. This reduced Brooks‘s total offense level to 29. The PSI also determined that Brooks had a criminal history category of III. With a criminal history category of III and a total offense level of 29, Brooks‘s advisory sentencing range was 108 to 120-months’ imprisonment.
Brooks objected to the PSI on three grounds. First, Brooks argued that the PSI improperly recommended a two-level enhancement under § 2K2.1(b)(4)(A) based on his possession of a stolen pistol. Brooks noted that he pled guilty to the
Second, Brooks argued that the PSI incorrectly recommended a four-level enhancement under § 2K2.1(b)(6)(B), which provides for a four-level enhancement if Brooks “possessed” a “firearm” “in connection with another felony offense.” The PSI reasoned that Brooks possessed the stolen Smith & Wesson “in connection with another felony offense” because Georgia criminalizes theft by receiving stolen property,
Third, Brooks argued that the PSI started with an incorrect base offense level. Brooks contended that his base offense level should be 22, rather than 26, because his 2008 conviction for robbery,
At sentencing, the district court overruled Brooks‘s objections and accepted the PSI as presented. However, the district
II. STANDARD OF REVIEW
Generally, we review “a district court‘s sentencing-range calculation under an abuse-of-discretion standard.” United States v. Siegelman, 786 F.3d 1322, 1332 (11th Cir. 2015). “A district court abuses its discretion if it applies an incorrect legal standard, follows improper procedures in making the determination, or makes findings of fact that are clearly erroneous.” Id. (quoting United States v. Register, 678 F.3d 1262, 1266 (11th Cir. 2012)). Additionally, “[w]e review de novo whether a defendant‘s prior conviction qualifies as a ‘crime of violence’ under the Sentencing Guidelines.” United States v. Harris, 586 F.3d 1283, 1284 (11th Cir. 2009). Finally, we review a district court‘s determination that an act qualifies as “relevant conduct” under U.S.S.G. § 1B1.3 for clear error. Siegelman, 786 F.3d at 1332.
III. ANALYSIS
On appeal, Brooks raises the same three objections that he raised to the district court. First, he argues that his base offense level is 22—rather than 26—under U.S.S.G. § 2K2.1(a) because his 2008 robbery conviction was not a conviction for a crime of violence. Second, he argues that his possession of a stolen pistol in January 2021 did not warrant a two-level enhancement under U.S.S.G. § 2K2.1(b)(4)(A). Finally, he argues that a four-level enhancement under U.S.S.G. § 2K2.1(b)(6)(B) was improper because he did not possess a firearm “in connection with” theft by receiving stolen property,
A. The Base Offense Level Under U.S.S.G. § 2K2.1(a)(1)
Section 2K2.1 prescribes how courts should calculate the offense level for defendants who, like Brooks, are convicted under
(A) the offense involved a (i) semiautomatic firearm that is capable of accepting a large capacity magazine . . . ; and (B) the defendant committed any part of the instant offense subsequent to sustaining at least two felony convictions of either a crime of violence or a controlled substance offense.
(Emphasis added). The district court determined that a base offense level of 26 was appropriate under § 2K2.1(a)(1) because Brooks was previously convicted of two crimes of violence before he possessed the Glock in October 2020. Specifically, Brooks was convicted of armed robbery,
Section 4B1.2(a) defines the term “crime of violence,” stating:
The term “crime of violence” means any offense under federal or state law, punishable by imprisonment for a term exceeding one year, that—
(1) has as an element the use, attempted use, or threatened use of physical force against the person of another; or
(2) is murder, voluntary manslaughter, kidnapping, aggravated assault, a forcible sex offense, robbery, arson, extortion, or the use or unlawful possession of a firearm described in
26 U.S.C. § 5845(a) or explosive material as defined in18 U.S.C. § 841(c) .
To determine whether Brooks‘s 2008 conviction for robbery,
Based on the categorical approach, Brooks argues that robbery under
(a) A person commits the offense of robbery when, with intent to commit theft, he takes property of another from the person or the immediate presence of another:
(1) By use of force;
(2) By intimidation, by the use of threat or coercion, or by placing such person in fear of immediate serious bodily injury to himself or to another; or
(3) By sudden snatching.
(Emphasis added). Brooks contends that, under this statute, a person could be guilty of robbery “by sudden snatching,” which is the least of the acts criminalized in the statute and is not a crime of violence. Thus, Brooks argues, his conviction for robbery under section 16-8-40 is not a conviction for a crime of violence.
The government concedes that robbery by sudden snatching is not a crime of violence, but maintains that Brooks‘s argument fails because section 16-8-40 is a “divisible” statute. See Harrison, 56 F.4th at 1336 (holding that section 16-8-40 is divisible). A “divisible” statute “lists multiple, alternative elements, and so effectively creates ‘several different crimes’ in one provision.” Descamps v. United States, 570 U.S. 254, 264 (2013) (alterations adopted) (quoting Nijhawan v. Holder, 557 U.S. 29, 41 (2009)). When a statute is “divisible,” we do not employ the usual “categorical approach,” Mathis v. United States, 579 U.S. 500, 505-06 (2016), because in that case a “single statute” effectively prohibits “multiple crimes” at once. Id. at 505. Thus, if “a statute is divisible,” we employ a “modified categorical approach” and look to a “limited class of documents” to determine the offense underlying a defendant‘s prior conviction. We then determine if the offense underlying a defendant‘s prior conviction is a crime of violence by applying the categorical approach only to that offense.” Harrison, 56 F.4th at 1331 (citation omitted) (quoting Mathis, 579 U.S. at 505-06).
Applying the “modified categorical approach” to section 16-8-40, the government
a “crime of violence” for the purposes of U.S.S.G. § 2K2.1(a)(1). Both of the government‘s arguments are correct.
First, Shepard documents establish that, in 2008, Brooks was convicted of robbery by force.
transcript, the state prosecutor said, “the facts of that case would show that on June 24, 2007, Mr. Brooks did take $20 from Bill Abercrombie by using force.” (Emphasis added). The state court then addressed Brooks, stating, “Mr. Brooks, you‘ve heard the statements of the District Attorney in your case. Is that about what happened?” Brooks responded, “Yes, sir.” The court said, “All right, is there anything you want to add to or take away from what he just said?” “No, sir,” Brooks stated. The court then asked, “And are you guilty of this charge of robbery under count one of your indictment?” “Yes, sir,” Brooks admitted. In light of these Shepard documents, Brooks‘s 2008 conviction was a conviction for robbery by force, as prohibited by
The elements clause of § 4B1.2(a) says that a “crime of violence” is any crime that “has as an element the use, attempted use, or threatened use of physical force against the person of another.” Brooks‘s 2008 conviction was for robbery “[b]y use of force.”
B. The Two-Level Enhancement Under U.S.S.G. § 2K2.1(b)(4)(A)
Next, Brooks argues that the district court erred by applying a two-level enhancement under U.S.S.G. § 2K2.1(b)(4)(A) because Brooks possessed a stolen Smith & Wesson in January 2021. Brooks notes that his federal conviction is only for his possession of a Glock in October 2020. He reasons that the district court erred by taking into account his 2021 possession of the stolen Smith & Wesson while calculating his sentence.
The district court applied a two-level enhancement under § 2K2.1(b)(4)(A) because it determined that Brooks‘s possession of the stolen Smith & Wesson was “relevant conduct,” U.S.S.G. § 1B1.3, even though it was not the conduct that led to his conviction. We review a district court‘s determination that an act qualifies as “relevant conduct” for clear error. Siegelman, 786 F.3d at 1332 (holding that a “relevant-conduct finding” under § 1B1.3 is a factual determination and reviewed for clear error).
“When calculating a defendant‘s sentencing range under the Guidelines, the sentencing court must consider all ‘relevant conduct’ as defined in § 1B1.3” of the Sentencing Guidelines. Id. Importantly, “relevant conduct is broadly defined to include both uncharged and acquitted conduct that is proven at sentencing by a preponderance of the evidence.” Id. The term “relevant conduct” also encompasses “acts and omissions” “that were part of the same course of conduct or common scheme or plan as the offense of conviction.” U.S.S.G. § 1B1.3(a)(2) (emphasis added). “Offenses that do not qualify as part of a common scheme or plan may nonetheless qualify as part of the same course of conduct if they are sufficiently connected or related to each other as to warrant the conclusion that they are part of [an] . . . ongoing series of offenses.” U.S.S.G. § 1B1.3 cmt. n.5(B)(ii). “Factors that are appropriate to the determination of whether offenses are sufficiently connected or related to each other” include (1) “the degree of similarity of the offenses,” (2) “the regularity (repetitions) of the offenses,” and (3) “the time interval between the offenses.” Id.
The district court did not clearly err by concluding that Brooks‘s possession of the stolen Smith & Wesson was part of the “same course of conduct” as his possession of the Glock. Regarding the first factor, the offenses were “similar” to each other because they were identical—Brooks possessed a firearm as a felon when he possessed the Glock and when he possessed the Smith & Wesson. As to the second factor, there admittedly was not a high “regularity” of this offense because the incident involving the stolen Smith & Wesson was the only additional incident that the government cited in which Brooks possessed a firearm. However, this is not dispositive because “[w]hen one of the above factors is absent,” a court may make a “same course of conduct” finding through “a stronger presence of at least one of the other factors.” U.S.S.G. § 1B1.3 cmt. n.5(B)(ii). Finally, regarding the third factor,
Overall, we conclude that the district court did not clearly err by holding that Brooks‘s possession of the stolen Smith & Wesson was “relevant conduct.” Thus, we affirm the district court‘s two-level enhancement under U.S.S.G § 2K2.1(b)(4)(A).
C. The Four-Level Enhancement Under U.S.S.G. § 2K2.1(b)(6)(B)
Finally, Brooks argues that the district court erred by applying a four-level increase under U.S.S.G. § 2K2.1(b)(6)(B). Section 2K2.1(b)(6)(B) provides:
If the defendant . . . used or possessed any firearm or ammunition in connection with another felony offense; or possessed or transferred any firearm or ammunition with knowledge, intent, or reason to believe that it would be used or possessed in connection with another felony offense, increase by 4 levels.
(Emphasis added). The district court determined that § 2K2.1(b)(6)(B) applied because Brooks possessed a firearm “in connection with another felony offense“—namely, theft by receiving stolen property in violation of Georgia law,
Brooks advances three arguments on appeal. First, he again argues that receipt of the stolen Smith & Wesson was not relevant conduct. Second, he argues that the district court clearly erred by concluding that he received a stolen firearm. Finally, he argues that even if he did receive a stolen firearm, his possession of the firearm was not “in connection with” his theft-by-receiving offense. We address each argument in turn.
1. Receipt of the Stolen Smith & Wesson is “Relevant Conduct” Under U.S.S.G. § 1B1.3.
Brooks‘s first argument rests on the same reasoning as his argument for the inapplicability of § 2K2.1(b)(4)(A). Brooks argues that his receipt and possession of the stolen Smith & Wesson in January 2021 was not relevant to his possession of the Glock in October 2020. For the reasons explained above, however, this argument is incorrect, as “[r]elevant conduct” includes “acts and omissions” “that were part of the same course of conduct . . . as the offense of conviction.” U.S.S.G. § 1B1.3(a)(2). As discussed, the district court did not clearly err in determining that Brooks‘s possession of the stolen Smith & Wesson in January 2021 was a part of the “same course of conduct” as his possession of the Glock in October 2020.
2. The District Court Did Not Clearly Err by Concluding that Brooks Received a Stolen Firearm.
Next, Brooks argues that the district court erred by concluding that he committed theft by receiving stolen property,
The district court did not clearly err in determining—by a preponderance of the evidence—that Brooks committed theft by receiving stolen property,
3. The District Court Correctly Concluded that Brooks “Possessed” a “Firearm” “in Connection with Another Felony Offense.”
Finally, Brooks argues that the district court incorrectly applied the four-level enhancement under § 2K2.1(b)(6)(B). The district court reasoned that Brooks possessed the stolen Smith & Wesson “in connection with another felony offense,” § 2K2.1(b)(6)(B), because his receipt of the pistol also made him guilty of theft by receiving stolen property under Georgia law,
The parties’ dispute raises a question of first impression in this Circuit: whether, under § 2K2.1(b)(6)(B), a felon possesses a firearm “in connection with” theft by receiving stolen property,
In United States v. Canamore, 916 F.3d 718 (8th Cir. 2019), a felon pled guilty to possessing a firearm in violation of
We start with the text. Section 2K2.1(b)(6)(B) provides for a four-level enhancement if the defendant “used or possessed any firearm or ammunition in connection with another felony offense.” (Emphasis added). To correctly interpret this provision, we must read the phrase “in connection with” according to its ordinary and
natural meaning. See United States v. Rhind, 289 F.3d 690, 695 (11th Cir. 2002) (holding that “courts should give” the phrase “in connection with” its “ordinary meaning“);5 Antonin Scalia & Bryan A. Garner, Reading Law: The Interpretation of Legal Texts 69 (2012) (noting that the ordinary-meaning canon “is the most fundamental semantic rule of interpretation“). Controlling precedent also requires us to reject narrow constructions of that phrase. See Rhind, 289 F.3d at 695; United States v. Smith, 480 F.3d 1277, 1280 (11th Cir. 2007) (“[T]he term ‘in connection with’ in U.S.S.G. § 2K2.1(b)(5) [now, § 2K2.1(b)(6)(B)] should be given its ordinary and natural meaning, and we have expressly rejected a more restrictive interpretation.“).
In light of these principles, “we have held that, in certain circumstances, mere possession of a firearm can be enough to apply a sentencing enhancement” under § 2K2.1(b)(6)(B). United States v. Jackson, 276 F.3d 1231, 1234-35 (11th Cir. 2001); see also Rhind, 289 F.3d at 695 (holding that “the firearm does not have to facilitate the underlying offense” to satisfy the “in connection with” requirement). A defendant can possess a firearm “in connection with” another felony offense if the firearm “potentially embolden[s]” or has the potential of facilitating the other felony offense. Jackson, 276 F.3d at 1234; United States v. Carillo-Ayala, 713 F.3d 82, 93-94 (11th Cir. 2013).
Cir. 2013). This includes circumstances when the firearm is “a fruit and not an instrument of the crime.” Carillo-Ayala, 713 F.3d at 94 (citing United States v. Young, 115 F.3d 834, 838 (11th Cir. 1997) (per curiam)).
In United States v. Young, for example, we analyzed the meaning of the phrase “used or possessed the firearm or ammunition in connection with a crime of violence” under Guideline
Later, in United States v. Matos-Rodriguez, 188 F.3d 1300 (11th Cir. 1999), we noted that Young afforded “the phrase ‘in connection with’ an expansive construction.” Id. at 1308 (citing Young, 115 F.3d at 836-38). Matos-Rodriguez characterized Young as holding, “in effect,” “that it did not matter whether [the defendant] had entered the dwelling with the gun in his hand, or obtained it while burglarizing the house, as a fruit of the crime.” Id. And, in United States v. Carillo-Ayala, we characterized Young as holding that the defendant “possessed [a] rifle ‘in connection with’ the burglary during which he stole it, although it was a fruit and not an instrument of the crime.” 713 F.3d at 94 (citing Young, 115 F.3d at 838); see also United States v. Hedger, 354 F.3d 792, 793, 795 (8th Cir. 2004) (holding that the defendant possessed a firearm “in connection with” another felony offense when he stole the firearm from a gun shop).
To be sure, neither Young, Matos-Rodriguez, nor Carillo-Ayala ruled on the meaning of the phrase “in connection with” under
See Jackson, 276 F.3d at 1234 (citing Matos-Rodriguez, 188 F.3d at 1308); Rhind, 289 F.3d at 695 (citing Young, 115 F.3d at 838; Matos-Rodriguez, 188 F.3d at 1308-09); Smith, 480 F.3d at 1280 (citing Young, 115 F.3d at 838); Martinez, 964 F.3d at 1337-38 (citing Carillo-Ayala, 713 F.3d 82).
We therefore hold that a defendant possesses a firearm “in connection with another felony offense,”
Our learned colleague, Judge Wilson, views this case differently. He emphasizes that our prior precedents apply the enhancement under
We part ways, however, with the dissent‘s view that Brooks‘s possession of the stolen Smith & Wesson did not alter the theft-by-receiving offense. The dissent emphasizes that “[t]he nature of Brooks‘s possession of the stolen Smith & Wesson was not altered by his possession of it.” Wilson Dis. Op. at 6. Of course, that limited point is true. But that does not speak to the question at issue here—whether the stolen Smith & Wesson had the potential to facilitate the theft-by-receiving offense. See
The dissent counters that the firearm had no potential to facilitate Brooks‘s theft-by-receiving offense because Brooks did not possess the stolen Smith & Wesson “before or during” the theft offense. See Wilson Dis. Op. at 6. Thus, the firearm was not “available for use” during the commission of its own theft. Id. But the dissent‘s argument rests on a misunderstanding of theft-by-receiving under Georgia law. Under section 16-8-7(a), a “person commits the offense of theft by receiving stolen property when he receives, disposes of, or retains stolen property which he knows or should know was stolen . . .”
To summarize, Brooks‘s possessed a firearm “in connection with” the crime of theft by receipt of stolen property because the firearm was acquired during the theft offense and had the potential to facilitate that offense. See
IV. CONCLUSION
For the reasons stated, we affirm Brooks‘s sentence.
AFFIRMED.
GRANT, J., Concurring
GRANT, Circuit Judge, Concurring:
I join the majority opinion in full. For the reasons the majority describes, the district court properly found that Xavier Brooks‘s 2008 state-law conviction for robbery under
I also agree that the district court properly applied a four-level enhancement under
Instead, the firearm‘s mere presence during the commission of the other felony may be enough. As this Circuit has previously explained, a firearm facilitates or has the potential to facilitate another felony if its presence “embolden[s] an actor who
So far, I have simply restated the analysis given in the majority‘s well-reasoned opinion. My main purpose in writing separately, however, is to explain that there is another, simpler ground supporting application of the
“use[]” of a firearm “during and in relation to any crime of violence or drug trafficking crime.” See id. at 227.
The Supreme Court affirmed. Id. at 241. It concluded that the phrase “in relation to” was broad, and that for a firearm to have been used in relation to a drug trafficking offense, it must “facilitate, or have the potential of facilitating” that offense. Id. at 237-38 (alterations omitted and quotation adopted). But the firearm need not do so in “the expected manner“—i.e., as a weapon. Young, 115 F.3d at 837; see Smith, 508 U.S. at 229. Instead, serving as an item of exchange, to be traded away for drugs, was sufficient. Carillo-Ayala, 713 F.3d at 94; see Smith, 508 U.S. at 238. Indeed, the Court stated that Smith‘s use of his firearm met “any reasonable construction” of the phrase “in relation to” because “the gun was an integral part of the transaction. Without it, the deal would not have been possible.” Smith, 508 U.S. at 238 (alteration adopted and quotation omitted).
Here, Brooks‘s stolen Smith & Wesson directly facilitated the offense of theft by receiving stolen property; it was the very stolen thing that was received. The firearm was as integral an element to Brooks‘s felony theft offense as the submachine gun was to Smith‘s drug trafficking offense. No gun, no crime—“[w]ithout it, the [offense] would not have been possible.” Id. at 238. And yes, being the stolen item that changes hands is not, perhaps, the “expected manner” in which a gun would facilitate a crime. But Smith instructs that the meaning of “in connection with” is broad, not narrow.2
* * *
Brooks possessed the stolen Smith & Wesson “in connection with” another felony offense—theft by receiving stolen property. That firearm facilitated or had the potential to facilitate his other offense both because of its potential for use as a weapon during that crime, and because it was a necessary component of that crime as the stolen property that Brooks received. The district court
therefore properly applied the four-level
WILSON, Circuit Judge, concurring in part and dissenting in part:
I join all but Part III-C-3 of the majority and write separately to explain that I would find the district court erred in its application of the four-level enhancement under
I.
I begin by summarizing how precedent has applied the Guidelines and its commentary.2 In United States v. Young, our
connection with” an even more “expansive construction.” 188 F.3d 1300, 1308 (11th Cir. 1999). With Matos-Rodriguez, we found that the presence of a gun as the defendant delivered counterfeit money was enough to imply a connection, particularly given that the gun could easily have “prevent[ed] theft during a close, face-to-face, hand-to-hand encounter.” Id. at 1309. Our decision in United States v. Rhind applied similar reasoning in finding a four-level enhancement reasonable: “the mere availability and appearance of the firearms could have served to promote the defendants’ prolonged criminal episode.”4 289 F.3d 690, 695 (11th Cir. 2002).
Our interpretation of
II.
With this background, I turn to the question we are asked to resolve: whether possession of a firearm can facilitate the felony of theft by receipt when the gun itself is the crime. Our precedent does not support such a finding.5
money and was found with a firearm during the delivery. 188 F.3d at 1309. In deciding whether the enhancement should apply, the court noted that the presence of the firearm could reasonably be viewed as added protection. Id. In Rhind, the defendants again were engaged in a counterfeit money offense. 289 F.3d at 692. The presence of an unloaded firearm qualified for a four-level enhancement given that “criminals frequently use unloaded guns to execute crimes” and in Rhind specifically, the court found that “defendants could have easily obtained ammunition” to promote their scheme. Id. at 695.
The majority uses these cases to emphasize the statute‘s breadth: a firearm can facilitate a felony by being a fruit—not just an instrument—of that crime. But a firearm does not always facilitate another felony offense simply by being the fruit of the other felony offense. The majority oversimplifies the issue instead of engaging with the nuances of the underlying facts or contextualizing what it means to be a “fruit” of a crime. More specifically, both the majority and concurrence fail to acknowledge how our precedent focuses on the role firearms played in connection with other, distinct offenses. In each of our precedential cases, the firearm was a fruit. However, in each case, we only applied the enhancement where we found the firearm to be a fruit that altered the nature of the other offense. We found burglary to be rendered more dangerous by the presence of a firearm. See Young, 115 F.3d at 837-38. The delivery of counterfeit money is eased by the presence of a firearm. See Matos-Rodriguez, 188 F.3d at 1309. Criminal episodes are promoted by the appearance of firearms. See Rhind, 289 F.3d at 695. Drug trafficking offenses are facilitated by the presence of firearms. See Bishop, 940 F.3d at 1250. But receipt of a stolen firearm? It is not altered by the presence of that same firearm.
The facts here strengthen this principle. Brooks was discovered in possession of a stolen Smith & Wesson. The State of Georgia charged him with the felony offense of theft by receiving stolen property based on his possession of the stolen firearm. When charging Brooks for a separate offense, the federal government gave him a four-level enhancement under
III.
Finally, the government and district court‘s acknowledgement of the perceived unfairness of this enhancement serves as further indication of the need for reversal. Initially, Brooks objected to the four-level enhancement, arguing that possession of the stolen Smith & Wesson could not facilitate the felony of theft by receipt when the gun itself is the crime. The government responded that it was not impermissible double counting because the gun facilitated the offense by being part of it. In spite of this exchange, the government still acknowledged the perceived unfairness of the calculation, stating:
[T]he guidelines are intended to be interpreted broadly so the proper calculations of the guidelines would include both, the two levels for it being a stolen gun and the four levels for it being possessed in
connection with another felony because it‘s certainly in connection with that felony. This is where the government has the request for a downward variance of two levels because we appreciate the kind of, I guess, the little bit of a—the nuances here that make this difficult to understand how the firearm can facilitate possession of the firearm but it‘s certainly all part and parcel of calculating the guidelines properly. So we‘re requesting a two-level downward variance to account for what—seeming unfairness.”
Doc. 47 at 14-15.7 The district court overruled Brooks‘s objection but still chose to follow the government‘s request, varying Brooks‘s base offense level down by two. Given the role of district courts as finders of fact, such hesitation should give us pause. The general acknowledgment of perceived unfairness reflects the atypicality of this case.
Bishop and Carillo-Ayala speak directly to the careful inquiry district courts must engage in when determining whether an enhancement applies. In Bishop, we clarified the significance of “in connection with,” holding that it “applies only if the court finds that ‘the firearm or ammunition facilitated, or had the potential of facilitating,
opinions—and all cases discussed—as expressing a desire to avoid using
For these reasons, I do not believe the four-level enhancement should be upheld here and respectfully dissent.
Notes
[A] defendant who, during the course of a burglary, finds and takes a firearm, even if the defendant did not engage in any other conduct with that firearm during the course of the burglary; and [] in the case of a drug trafficking offense in which a firearm is found in close proximity to drugs, drug-manufacturing materials, or drug paraphernalia. In these cases, application of subsections (b)(6)(B) . . . is warranted because the presence of the firearm has the potential of facilitating another felony offense or another offense.