U.S.A v. Krumwiede

• Decision Date: 31 March 2010
• Docket Number: No. 08-4081.,08-4081.
• Citation: 599 F.3d 785
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Jason A. KRUMWIEDE, DefendantAppellant.
• Court: U.S. Court of Appeals — Seventh Circuit

599 F.3d 785

UNITED STATES of America, Plaintiff-Appellee, v. Jason A. KRUMWIEDE, DefendantAppellant.

No. 08-4081.

United States Court of Appeals

Seventh Circuit.

Argued: Oct. 28, 2009.

Decided: March 31, 2010.

Robert A. Anderson (argued), Office of the United States Attorney, Madison, WI for Plaintiff-Appellee.

Johanna M. Christiansen (argued), Richard H. Parsons, Office of the Federal Public Defender, Peoria, IL, for DefendantAppellant.

Before RIPPLE, WILLIAMS and TINDER, Circuit Judges.

RIPPLE, Circuit Judge.

Jason A. Krumwiede pleaded guilty to charges that he had stolen thirty-four firearms from a federally licensed firearms dealer, in violation of 18 U.S.C. § 922(u) and that he had possessed a firearm after having been convicted of a felony, in violation of 18 U.S.C. § 922(g)(1). Mr. Krumwiede was sentenced to 140 months' imprisonment. He now appeals his sentence on the ground that the district court improperly included in its Guidelines calculation the four-level enhancement provided in § 2K2.1(b)(6). We conclude that the district court committed no error by applying this enhancement. Accordingly, we affirm the judgment of the district court.

IBACKGROUND

In the early morning of March 9, 2008 Mr. Krumwiede broke into Main Street Guns & Knives, a federally licensed firearms dealer in Medford, Wisconsin. Responding to the silent alarm, the police soon arrived. Mr. Krumwiede ignored their order to stop, and he fled the scene. The police later found him hiding in a nearby dumpster and arrested him. The police recovered two guns in the dumpster fifteen guns in a bag by the door from which Mr. Krumwiede had exited the store and additional guns in the store that had been removed from their cases. At least one of the guns was a semiautomatic firearm capable of accepting a large capacity magazine.

On June 4, 2008, a grand jury returned a two-count indictment against Mr Krumwiede. He was charged with theft of thirty-four firearms from a federally licensed dealer, in violation of 18 U.S.C. § 922(u), and with being a felon in possession of a firearm, in violation of 18 U.S.C. § 922(g)(1). On September 15, 2008, Mr. Krumwiede entered a plea of guilty to both counts pursuant to a written plea agreement.

On November 25, 2008, the district court conducted a sentencing hearing. Prior to the hearing, Mr. Krumwiede filed a written objection to the sentence calculation contained in the pre-sentence report ("PSR");¹ specifically, Mr. Krumwiede objected to the inclusion of the § 2K2.1(b)(6)² four-level enhancement forpossession of firearms in connection with another felony offense because, he maintained, no other felony offense had been committed. R.30. The Government replied that the enhancement was appropriate; it relied on Application Note 14(B).³ The Sentencing Commission had promulgated this application note in 2006 to resolve a circuit split over the application of § 2K2.1(b)(6) when a defendant's conduct constituted another felony offense in the nature of burglary or a drug offense. See infra at 789-90. In an addendum to the PSR, the Probation Officer noted that Mr. Krumwiede's objection was supported by United States v. Szakacs, 212 F.3d 344, 346 (7th Cir.2000), which had determined that the state offense of conspiracy to commit burglary, committed simultaneously with the charged federal offense of conspiracy to steal firearms from a federally licensed dealer, did not qualify as "another felony offense" for purposes of the § 2K2.1(b)(6) enhancement. R.32 at 2. The Probation Officer nevertheless concluded that Application Note 14(B), promulgated after Szakacs, had resolved a circuit conflict with respect to the term "in connection with" in § 2K2.1(b)(6) and that "[t]he Commission determined the enhancement was warranted in cases involving burglary because of the potential a firearm has to facilitate another offense." R.32 at 2.

The district court overruled Mr. Krumwiede's objection and included the § 2K2.1(b)(6) enhancement in its Guidelines calculation. The district court explained that Application Note 14(B) mandated that the four-level enhancement be included when a defendant took firearms during a burglary, in addition to the other conduct underlying the charged offense. See Tr. at 6-7, Nov. 25, 2008. Accordingly, the district court accepted the PSR calculations and determined that the Guidelines range was 168 to 210 months' imprisonment. Id. at 15. However, the district court recognized mitigating factors and departed from the recommended Guidelines range.⁴ The district court sentenced Mr. Krumwiede to a term of 140 months' imprisonment (120 months on count one and 20 months on count 2, to run consecutively). Id. at 19.

On December 2, 2008, Mr. Krumwiede filed a notice of appeal.

IIDISCUSSION

A.

Mr. Krumwiede renews his contention that the district court erroneously included the § 2K2.1(b)(6) four-level enhancement in its Guidelines calculation. He maintains that the district court erred by not following Szakacs, which held that a state offense that occurs contemporaneously with the convicted federal offense cannot count as "another felony offense" for purposes of § 2K2.1(b)(6) unless the offense is "separated in time or by a distinction of conduct." United States v. Szakacs, 212 F.3d 344, 351 (7th Cir.2000) (internal quotation marks omitted). He also maintains that the 2006 amendment to § 2K2.1 (the inclusion of Application Note 14) did not implicate the Szakacs rule. In his view "[w]hile the Amendment may have clarified when the other offense is a burglary, the Amendment did not change this Court's treatment of the enhancement in those unique cases where the offense of conviction is the burglary of a federally licensed gun dealer." Appellant's Br. 1213 (emphasis in original). In Mr. Krumwiede's view, Application Note 14 concerns the "in connection with" phrase of § 2K2.1(b)(6), not the "another felony offense" phrase.

The Government contends that Szakacs has no relevance to this case because Application Note 14 "unequivocally" directs district courts to apply the § 2K2.1(b)(6) enhancement whenever a defendant possessed firearms during the course of a burglary. Appellee's Br. 11. The Government submits that Application Note 14(B) created a "per se rule regarding burglary" and "altered the previous judicial construction of the enhancement's application in those circuits that had excluded burglary from consideration as 'another offense.'" Id. at 18-19. Additionally, the Government argues that the conduct consisting of the burglary—breaking and entering into the store at night—was an act distinct from the theft of the guns and Mr. Krumwiede's possession of them. Id. (citing United States v. Hill, 563 F.3d 572, 582 (7th Cir.2009)). Finally, the Government points out that, in any event, the sentence imposed was reasonable because it "fell exactly within the 120-150 month range that Krumwiede would have faced had the district court not applied the four-level enhancement under § 2K2.1(b)(6)." Id. at 12, 25.

B.

We review de novo questions of law involving the interpretation of the Guidelines. See United States v. Stitman 472 F.3d 983, 986 (7th Cir.2007). We review a sentencing court's findings of fact and applications of the Guidelines for clear error. Id.

We begin our analysis with an examination of Szakacs. There, five defendants were convicted of the federal offense of conspiracy to steal firearms from a licensed firearms dealer. The defendants' plan was foiled before they reached the store and, therefore, no firearms were actually taken. When sentencing the defendants, the district court applied the fourlevel § 2K2.1(b)(5)⁵ enhancement because "the defendants used or possessed any firearm or ammunition in connection with another felony offense, the other felonyoffense being the state law crime of conspiracy to commit burglary." Szakacs, 212 F.3d at 348 (internal quotation marks omitted). We held that the district court had erred by applying the enhancement. We found the case "difficult... [because] the state law offense and the federal offense were essentially the same crime." Id. at 349. We also recognized that circuits had divided over whether the enhancement should apply in such circumstances. Id.

We noted in Szakacs that, in United States v. Armstead, 114 F.3d 504, 511-13 (5th Cir. 1997), the Fifth Circuit had ruled that the enhancement was appropriately applied when the defendants were convicted of the federal offense of stealing firearms from a licensed dealer and the other offense was the state crime of burglary. In Szakacs, we contrasted Armstead with the Sixth Circuit's approach in United States v. Sanders, 162 F.3d 396, 399-402 (6th Cir. 1998). In Sanders, the Sixth Circuit had held that, when a defendant was charged with the federal crimes of theft from a licensed gun dealer, knowingly transporting stolen firearms and being a felon in possession, the state law crime of conspiracy to commit burglary did not qualify as "another felony offense." In the end, we agreed with Sanders that, "since almost all federal crimes can also be characterized as state crimes, " allowing a state law offense "based on the exact same offense conduct to count as 'another felony offense' renders 'the word "another" superfluous, and of no significance to the application of [the enhancement].'" Szakacs, 212 F.3d at 350 (quoting Sanders, 162 F.3d at 400). We also noted that Sanders interpreted the then-extant Application Note 18 to § 2K2.1(b)(5) as precluding a state burglary crime from qualifying as "another felony offense."⁶ Id, Finally, we agreed with Sanders that "courts should not adjust a sentence upward based on factors already reflected in the baseoffense level, " i.e., "double counting" the same conduct already included in a base offense level calculation. Id. at 350-51. We concluded that the Sixth Circuit's approach was consistent with our own previous application of § 2K2.1(b)(5) in situations where "there was 'a...