U.S. v. Howse

• Decision Date: 06 March 2007
• Docket Number: No. 06-5017.,06-5017.
• Citation: 478 F.3d 729
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Antonia M. HOWSE, Defendant-Appellant.
• Court: U.S. Court of Appeals — Sixth Circuit

478 F.3d 729

UNITED STATES of America, Plaintiff-Appellee, v. Antonia M. HOWSE, Defendant-Appellant.

No. 06-5017.

United States Court of Appeals, Sixth Circuit.

Argued: February 1, 2007.

Decided and Filed: March 6, 2007.

ARGUED: Michael C. Holley, Federal Public Defender's Office, Nashville, Tennessee, for Appellant. Paul M. O'Brien, Assistant United States Attorney, Nashville, Tennessee, for Appellee. ON BRIEF: Michael C. Holley, R. David Baker, Federal Public Defender's Office, Nashville, Tennessee, for Appellant. Philip H. Wehby, Assistant United States Attorney, Nashville, Tennessee, for Appellee.

Before MARTIN, COLE, and GILMAN, Circuit Judges.

OPINION

RONALD LEE GILMAN, Circuit Judge.

Antonia Howse pled guilty to one count of being a felon in possession of a firearm. In October of 2004, the district court sentenced him to 48 months of imprisonment, which was within the recommended Sentencing Guidelines range of 46 to 57 months. The Guidelines calculation included a four-level enhancement for possessing a firearm during the commission of an aggravated assault that had occurred one day prior to his arrest for the charged offense.

Howse's first appeal resulted in a remand for resentencing in light of United States v. Booker, 543 U.S. 220, 125 S.Ct. 738, 160 L.Ed.2d 621 (2005). On remand, the district court imposed a lesser sentence of 46 months' imprisonment, the bottom of the now-advisory Guidelines range. But the district court continued to find the four-level enhancement appropriate. Howse has again appealed, arguing that the enhancement was improper because the government did not prove that the gun used in the enhancement offense was the same gun, or related to the gun, used in the charged offense. For the reasons set forth below, we VACATE the judgment of the district court and REMAND the case for resentencing.

I. BACKGROUND

Antonia Howse, a resident of Nashville who is now 46 years old, was convicted in August of 1990 of selling cocaine, a felony under Tennessee law. He was sentenced to five years' imprisonment by the state court.

On November 18, 2003, two state warrants were sworn out against Howse by his then-girlfriend, Angela Edmondson. The warrants charged Howse with both aggravated and domestic assault. Edmondson alleged that Howse had pointed a loaded gun at Edmondson's 15-year-old daughter. To protect her daughter, Edmondson had stepped between Howse and her daughter and told him to leave. Edmondson told authorities that the weapon was a .45 caliber handgun.

Howse was arrested the next day on the outstanding warrants. The arresting officers discovered that Howse was carrying a loaded. 380 caliber Lorcin semiautomatic pistol on his person, as well as an additional loaded magazine. A criminal background check revealed that Howse was a convicted felon. After a Bureau of Alcohol, Tobacco and Firearms expert determined that the gun had not been manufactured in the state of Tennessee, Howse was indicted on one count of being a felon in possession of a firearm, in violation of 18 U.S.C. §§ 922(g)(1) and 924. He pled guilty to the charge.

In the Presentence Report (PSR), the probation officer used the 2003 edition of the Guidelines to calculate Howse's Total Offense Level at 21 and recommended a sentence of between 46 and 57 months of imprisonment. This recommendation included a four-level enhancement, pursuant to U.S.S.G. § 2K2.1(b)(5), based on the aggravated assault perpetrated on Edmondson and her daughter. That provision in the Guidelines adds a four-level enhancement "[i]f the defendant used or possessed any firearm or ammunition in connection with another felony offense." Id. (This section has been moved to § 2K2. 1(b)(6) in the 2006 edition of the Guidelines, but we will continue to refer to § 2K2.1 (b)(5) for the sake of consistency.)

Edmondson testified at the sentencing hearing in March of 2005 that, although she told the investigating officers that the weapon used in the assault was a .45 caliber handgun, she did not know guns very well:

Yeah, I knew he was arrested the next day with the same gun he pointed at my daughter. I don't know what it was. I don't know if it was a .45 or a .380. I told the police officer it was a .45 because that is what I assumed . . . . All of them look alike to me.

Howse objected to the four-level enhancement, arguing that Edmondson was not a credible witness and pointing out that the state assault charges were ultimately dismissed. The district court, however, determined that the government had proven the application of the enhancement by a preponderance of the evidence and sentenced Howse to 48 months of imprisonment.

Howse appealed. In July of 2005, the government moved to remand Howse's case to the district court for resentencing in light of United States v. Booker, 543 U.S. 220, 125 S.Ct. 738, 160 L.Ed.2d 621 (2005). This court agreed. The district court held a resentencing hearing in December of that year. Howse again argued that the four-level enhancement was inapplicable in his case because the facts supporting the enhancement were neither admitted by Howse nor proven to a jury beyond a reasonable doubt. He also argued that before the enhancement can be applied, the government must show a connection between the gun used in the enhancement offense and the gun used in the charged offense.

The district court disagreed with Howse's argument, concluding that § 2K2. 1(b)(5) does not require that the firearm used in the two offenses be one and the same. It conducted no analysis and made no finding concerning the connection, if any, between the two firearms, but found that there was sufficient proof offered by the government to apply the enhancement:

The proof on what occurred at that time was undisputed as it stands before the Court. It consists of the testimony of Ms. Edmonson [sic], as well as the exhibits filed with the Court that tend to corroborate her testimony about what occurred, in that they do show that she followed through the next day by obtaining warrants for aggravated assault.

Her testimony was somewhat ambivalent as to the type of pistol or handgun that he possessed when he confronted her daughter in her apartment, but it was clear that he possessed a weapon. She described the distance, described her apartment as being very small, and indicated it was within four feet or so. So there was no mistake in her mind that he did possess a weapon and had pointed it at both of them.

After hearing testimony from Howse's sister and mother, the district court imposed a new sentence of 46 months' imprisonment, which is at the bottom of the now-advisory Guidelines range. Howse timely appealed.

II. ANALYSIS

A. Standard of review

We will not reverse the district court's findings of fact with respect to the Guidelines unless the findings are clearly erroneous. United States v. Davidson, 409 F.3d 304, 310 (6th Cir.2005). In contrast, this court "reviews de novo the district court's legal interpretation of the Guidelines, including mixed questions of law and fact." United States v. Settle, 414 F.3d 629, 630 (6th Cir.2005) (italics omitted).

B. Application of U.S.S.G. § 2K2.1(b)(5)

On appeal, Howse's only challenge is to the district court's conclusion that the four-level enhancement under U.S.S.G. § 2K2.1(b)(5) properly applied to his Guidelines calculation. Subsection (b)(5) read as follows in 2003:

(b) Specific Offense Characteristics

(5) 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. If the resulting offense level is less than level 18, increase to level 18.

U.S.S.G. § 2K2.1(b)(5).

Howse argues that this court's decision in Settle forecloses application of the enhancement unless the government can show that the firearm used in the enhancement offense is "clearly connected" to the firearm used in the charged offense. In Settle, this court reinstated in part an earlier opinion affirming the defendant's conviction and sentence for being a felon in possession of a firearm. See Settle, 414 F.3d at 630 (Settle II), reinstating as amended, United States v. Settle, 394 F.3d 422, 424-25 (6th Cir.2005) (Settle I).

The defendant in Settle was stopped by police officers when they discovered that the license plate on the car he was driving corresponded to a different car. Settle I, 394 F.3d at 424. They recovered a .357 magnum pistol, and a subsequent police investigation revealed that Settle had previously been convicted of a felony. Id. This conduct formed the basis of a one-count federal indictment for being a felon in possession of a firearm, in violation of 18 U.S.C. § 922(g). Id. at 426. Settle pled guilty. Id. The probation officer noted in Settle's PSR that during the six weeks following the July 4, 2002 citation for carrying a firearm, Settle "threatened or shot individuals on four occasions." Id. at 429. At the sentencing hearing, the district court applied a four-level enhancement pursuant to U.S.S.G. § 2K2.1(c)(1). Id. at 427-30.

Section 2K2. 1 (c)(1) is a cross-reference provision that contains very similar language to the Guideline at issue in the present case, § 2K2.1(b)(5). Section 2K2.1(c)(1) provides that "[i]f the defendant used or possessed any firearm or ammunition in connection with the commission or attempted commission of another offense," then the Guideline producing the greatest offense level should be used. U.S.S.G. § 2K2.1(c)(1). The Settle II court stated that "[i]n determining the relevant conduct for Settle's offense, the district court will be free to consult Guidelines § 2K2 .1(c)(1)," and that the base offense level includes both offense conduct and all relevant conduct as determined by the framework described in U.S.S.G. § 1B1.3(a). 414 F.3d at 632 & n....