U.S. v. Blount

• Decision Date: 24 July 2003
• Docket Number: No. 02-4668.,02-4668.
• Citation: 337 F.3d 404
• Parties: UNITED STATES of America, Plaintiff-Appellant, v. Norman Lee BLOUNT, Defendant-Appellee.
• Court: U.S. Court of Appeals — Fourth Circuit

337 F.3d 404

UNITED STATES of America, Plaintiff-Appellant, v. Norman Lee BLOUNT, Defendant-Appellee.

No. 02-4668.

United States Court of Appeals, Fourth Circuit.

Argued: April 4, 2003.

Decided: July 24, 2003.

ARGUED: James Ashford Metcalfe, Assistant United States Attorney, Norfolk, Virginia, for Appellant. Frances Hemsley Pratt, Research and Writing Attorney, Norfolk, Virginia, for Appellee. ON BRIEF: ON BRIEF: Paul J. McNulty, United States Attorney, Norfolk, Virginia, for Appellant. Frank W. Dunham, Jr., Federal Public Defender, Larry M. Dash, Assistant Federal Public Defender, Norfolk, Virginia, for Appellee.

Before WILKINS, Chief Judge, and TRAXLER and GREGORY, Circuit Judges.

Affirmed by published opinion. Chief Judge WILKINS wrote the opinion, in which Judge TRAXLER and Judge GREGORY joined.

OPINION

WILKINS, Chief Judge:

Appellee Norman Lee Blount was convicted of possession of a firearm and ammunition by a felon, in violation of 18 U.S.C.A. § 922(g)(1) (West 2000). The Government contends that the district court erred at sentencing by refusing to impose a four-level enhancement for "possess[ing][a] firearm or ammunition in connection with another felony offense," U.S. Sentencing Guidelines Manual § 2K2.1(b)(5) (2001).¹ We affirm.

I.

The conviction and sentence at issue here arose from a burglary committed by Blount in Chesapeake, Virginia. As recounted in the presentence report (PSR), Blount was stopped by police while walking near the crime scene. The police ultimately arrested him and searched his bag, which contained, inter alia, a box of ammunition. Blount subsequently confessed to committing a burglary and to stealing the ammunition during the commission of that offense. He also admitted that he stole a revolver during the burglary and later discarded it; with Blount's guidance, the police found the revolver in a ditch approximately one-half mile from the site of the burglary.

After being indicted for multiple offenses arising from this incident, Blount pled guilty to violating § 922(g)(1). The PSR prepared after this plea stated that the applicable offense level was 27, based in part on a four-level enhancement pursuant to § 2K2.1(b)(5). This offense level, together with Blount's criminal history category of VI, yielded a guideline range of 130 to 162 months. Before sentencing, however, Blount objected to the guidelines computations, asserting that the § 2K2.1(b)(5) enhancement was improper because the only other offense associated with his possession of the firearm was the burglary during which the firearm was obtained. The district court agreed with Blount and therefore concluded that his offense level should be 23 rather than 27. This conclusion yielded a sentencing range of 92 to 115 months. The court sentenced Blount to 108 months imprisonment.

II.

Section 2K2.1(b)(5) provides for a four-level enhancement 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." The purpose of this enhancement is to ensure that a defendant receives more severe punishment if, in addition to committing a firearms offense within the scope of § 2K2.1, he commits a separate felony offense that is rendered more dangerous by the presence of a firearm (or facilitates another person's commission of an offense involving a firearm). See United States v. McDonald, 165 F.3d 1032, 1037 (6th Cir.1999) (stating that § 2K2.1(b)(5) "was created in response to a concern about the increased risk of violence when firearms are used or possessed during the commission of another felony" (emphasis omitted)); United States v. Armstead, 114 F.3d 504, 513 (5th Cir.1997) (stating that § 2K2.1(b)(5) "reflects the concern for public safety which the Guidelines sought to achieve").

The question before us is whether the language of § 2K2.1(b)(5) — viewed in light of its commentary and its underlying purpose — requires an enhancement when, as here, a defendant acquires a firearm during a theft or burglary but does not use the firearm or evince any willingness to do so. To answer this question, we must consider whether the burglary committed by Blount constituted "another felony offense" and, if so, whether the firearm and ammunition underlying his conviction were possessed "in connection with" the burglary. We hold that the burglary does qualify as "another felony offense" but that a § 2K2.1(b)(5) enhancement is nonetheless improper here because the record does not demonstrate a sufficient nexus between the burglary and Blount's possession of a firearm.

A. "Another Felony Offense"

1.

The Government argues that the burglary committed by Blount constituted "another felony offense" for purposes of § 2K2.1(b)(5) because the burglary and Blount's § 922(g) offense would be regarded as separate crimes under Blockburger v. United States, 284 U.S. 299, 52 S.Ct. 180, 76 L.Ed. 306 (1932). Blount counters that "another felony offense" must be "an offense distinct from the conduct by which he acquired the firearms." Br. of Appellee at 22. We agree with the position advanced by the Government.

Blockburger provides that, "where the same act or transaction constitutes a violation of two distinct statutory provisions, the test to be applied to determine whether there are two offenses or only one, is whether each provision requires proof of a fact which the other does not." Blockburger, 284 U.S. at 304, 52 S.Ct. 180. This test has been applied to ascertain legislative intent, see id., and to determine whether two offenses were the same for purposes of the Fifth Amendment prohibition against double jeopardy or the Sixth Amendment right to counsel, see Texas v. Cobb, 532 U.S. 162, 173, 121 S.Ct. 1335, 149 L.Ed.2d 321 (2001).

The commentary to § 2K2.1 supports the application of Blockburger here. In particular, Application Note 7 defines "felony offense" to mean "any offense (federal, state, or local) punishable by imprisonment for a term exceeding one year, whether or not a criminal charge was brought, or conviction obtained." This definition necessarily focuses on the elements of the "felony offense," as there is no way to determine whether conduct is "punishable by imprisonment for a term exceeding one year" except by ascertaining that such conduct satisfies the elements of a particular crime. Thus, the "felony offense" that forms the basis for a § 2K2.1(b)(5) enhancement ("the enhancement offense") — in this case, burglary — must consist of a crime comprising defined elements.

In determining whether a proffered enhancement offense constitutes "another felony offense" relative to the offense of conviction, a sentencing court could conceivably compare the elements of the enhancement offense with the conduct surrounding the offense of conviction. The word "another," however, signifies that such asymmetry is inappropriate. See Webster's Third New Int'l Dictionary 89 (1981) (defining "another" to mean "an additional one of the same kind: one more"); cf. United States v. Cutler, 36 F.3d 406, 408 (4th Cir.1994) (defining "another," as used in this context, to mean "`additional, one more'" (quoting The American Heritage Dictionary, Second College Edition (1982))). Thus, if a sentencing court must look to the elements of the enhancement offense, as Note 7 requires, it should also consider the elements of the offense of conviction.²

We recognize that this focus on the elements does not compel us to apply Blockburger. But the Blockburger test was formulated for resolving the very issue before us — namely, whether conduct by the defendant should be regarded as constituting a single offense or multiple distinct offenses. Moreover, because the Blockburger test requires only minimal separation between the enhancement offense and the offense of conviction, it does not unduly curtail application of § 2K2.1(b)(5). We therefore believe that Blockburger provides the appropriate standard for determining whether a proffered enhancement offense qualifies as "another felony offense."

2.

Five other courts of appeals have considered the validity of § 2K2.1(b)(5) enhancements in cases similar to this one. Two of these courts approved the imposition of such enhancements without articulating a general test for determining when a proffered enhancement offense qualifies as "another felony offense." See United States v. English, 329 F.3d 615, 617-18 (8th Cir.2003);³ Armstead, 114 F.3d at 512-13. Three other courts overturned the defendants' § 2K2.1(b)(5) enhancements on the ground that there was insufficient separation between the enhancement offense and the offense of conviction. See United States v. Fenton, 309 F.3d 825, 827-28 (3d Cir.2002); United States v. Szakacs, 212 F.3d 344, 351-52 (7th Cir. 2000); United States v. Sanders, 162 F.3d 396, 400-02 (6th Cir.1998).

The Third, Sixth, and Seventh Circuits rejected the Blockburger test, see Szakacs, 212 F.3d at 351-52, adopting instead a rule requiring "a separation of time between the offense of conviction and the [enhancement] offense, or a distinction of conduct between that occurring in the offense of conviction and the [enhancement] offense," Sanders, 162 F.3d at 400; accord Szakacs, 212 F.3d at 351. We have already explained why we believe Blockburger provides the proper standard. We believe it is also appropriate to explain why we would not follow the course charted by the Third, Sixth, and Seventh Circuits.

The primary justification cited by these other courts is that some separation is necessary in order to give effect to the word "another" in the phrase "another felony offense." See, e.g., Sanders, 162 F.3d at 400. But this treatment of the word "another" presupposes that the offense of conviction includes all "relevant offense conduct." Id. For the reasons stated above, however, w...