United States v. Keller
| Decision Date | 14 December 2011 |
| Docket Number | 11–1173.,Nos. 11–1172,s. 11–1172 |
| Citation | 666 F.3d 103 |
| Parties | UNITED STATES of America, Appellant v. Jason KELLER. |
| Court | U.S. Court of Appeals — Third Circuit |
OPINION TEXT STARTS HERE
Laura S. Irwin, Michael L. Ivory, Office of the United States Attorney, Pittsburgh, PA, for Appellant.
Sally A. Frick, Pittsburgh, PA, for Appellee.
Before: HARDIMAN, BARRY, Circuit Judges and SLOMSKY *, District Judge.
This appeal requires us to interpret § 2K2.1(b)(6) of the United States Sentencing Guidelines (USSG), which increases a defendant's offense level by four points when he “used or possessed any firearm or ammunition in connection with another felony offense.” In a trio of cases over the past decade, we crafted a test for district courts to use in deciding when to apply USSG § 2K2.1(b)(6). We held that for an offense to count as “another felony offense,” it must be distinguished from the firearms offense of conviction in two ways: the offense conduct must (1) be distinct in time or conduct, and (2) require proof of an additional element. This appeal requires us to consider whether Amendment 691 to the Sentencing Guidelines vitiates our precedents holding that USSG § 2K2.1(b)(6) does not apply when the predicate offense is burglary of the firearms that are the subject of the conviction.
In 2007, Jason Keller and two others tried to burglarize three gun shops in Western Pennsylvania, succeeding in one of the attempts. Their modus operandi involved stealing a vehicle and using it to break into a store that sold firearms. That plan proved to be easier said than done. On their first try, they fastened straps to both the vehicle and the doors of Kaufman's Antique and Gun Shop in Aliquippa and attempted to rip the door from its hinges, but their straps broke. Almost two weeks later, Keller and his cohorts tried to burglarize Gander Mountain in Coraopolis by ramming its doors with a van. This time, the transmission failed before the doors did. Approximately two weeks later, Keller and his co-conspirators drove a vehicle through the front doors of Fazi's Firearms in Plum Boro and absconded with thirty firearms. After his apprehension, Keller confessed that he sold about eighteen of the firearms to “Adrian” in Maryland for $2,000.
A grand jury of the United States District Court for the Western District of Pennsylvania indicted Keller for conspiracy to commit an offense against the United States in violation of 18 U.S.C. § 371, and stealing firearms from a federally licensed firearms dealer in violation of 18 U.S.C. § 922(u). The Government subsequently filed an information against Keller, charging him with possessing an unregistered firearm in violation of 26 U.S.C. § 5861(d). Keller pleaded guilty to all three offenses.
The Probation Office prepared a Presentence Investigation Report, calculating Keller's total offense level as 27 and his criminal history category as I, resulting in an advisory Guidelines range of 70 to 87 months imprisonment. The offense level included a four-point enhancement pursuant to USSG § 2K2.1(b)(6), which must be applied “[i]f 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.” 1 The Probation Office concluded that Keller's burglary of Fazi's Firearms was “another felony offense” justifying application of the enhancement. Keller filed a sentencing memorandum contesting the enhancement. Noting that the issue was “close,” the District Court found that the enhancement did not apply to Keller's conduct. Over the Government's objection, the Court reduced Keller's Guidelines range to 46 to 57 months and sentenced him to 48 months in prison. The Government filed this timely appeal.
The District Court exercised jurisdiction pursuant to 18 U.S.C. § 3231. We have jurisdiction under 28 U.S.C. § 1291 and 18 U.S.C. § 3742(b).
The sole issue in this appeal concerns the District Court's interpretation of the Sentencing Guidelines, which we review de novo. United States v. Grier, 585 F.3d 138, 141 (3d Cir.2009); see Gall v. United States, 552 U.S. 38, 51, 128 S.Ct. 586, 169 L.Ed.2d 445 (2007).
Section 2K2.1(b)(6) of the 2010 Sentencing Guidelines Manual was previously found at § 2K2.1(b)(5). Interpreting that provision, we were confronted more than once with a case involving a defendant, like Keller here, who had possessed or stolen one or more firearms in the course of a single criminal act, and was thereafter convicted of a federal firearms offense. For example, in United States v. Fenton, the defendant broke into a sporting goods store, stole several firearms, and received the enhancement.2 309 F.3d 825, 826 (3d Cir.2002). Recognizing a circuit split over whether the burglary could trigger the enhancement, we held that “ ‘another felony offense’ cannot apply to the same felonious conduct for which the criminal defendant is being sentenced.” Id. at 827. We reasoned that to give effect to the word “another,” the defendant must have committed a felony that was separate from the firearms possession offense. Id. at 827–28. Because “almost every federal weapons offense could be prosecuted simultaneously under state law [ ] ... deciding this issue [to the contrary] would require enhancement for almost every weapons offense.” Id. at 828. Therefore, we articulated a “distinction in time or conduct” test for applying the enhancement. Id.
We revised the Fenton rule in United States v. Lloyd, 361 F.3d 197 (3d Cir.2004). In that case, Lloyd placed a bomb under the car of a man who had pursued a woman who was dating one of Lloyd's criminal associates. Id. at 199. The District Court enhanced Lloyd's Guidelines range over an objection based on Fenton that the enhancement was inappropriate because he had committed only one criminal act. Id. at 199–200. We again observed that “[t]he word ‘another’ avoids ... [the] absurd result” of automatic enhancement based on the offense of conviction, and we noted “it is equally clear that the guideline was not intended to exclude only the technical offense of conviction from the scope of ‘another felony offense.’ ” Id. at 200. To assist in distinguishing between cases involving impermissible double counting and permissible enhancement for other felonies, we imported the same-elements test pronounced in Blockburger v. United States, 284 U.S. 299, 52 S.Ct. 180, 76 L.Ed. 306 (1932), which is used in the double jeopardy context. Id. Accordingly, we held that “the ‘distinction in time or conduct’ test set forth in Fenton requires that a felony offense must at least satisfy Blockburger before it may be used to adjust a sentence upward under § 2K2.1(b)(5).” Id. at 200–01. We explained that because thefts and burglaries of firearms are species of possession offenses, they are not “other” offenses. Id. at 201–02. Stating that we would not “read too much into [ Fenton's ] ‘distinction of time or conduct’ requirement,” and relying on the fact that Lloyd had committed no mere theft or burglary, we held that his range was properly enhanced. Id. at 203–05.
United States v. Navarro, 476 F.3d 188 (3d Cir.2007), served as a capstone for Fenton and Lloyd. Navarro confessed to drug distribution, which was used as the predicate “[ ]other felony offense” to enhance his sentence for possessing a firearm as a convicted felon. Id. at 190–91. We explained that “a two-part standard may be distilled” from Fenton and Lloyd:
The first part of the test, from Blockburger, is legal in nature and asks whether the predicate offense and the firearms possession crime each have an element that is not shared by the other. The second part of the test, from Fenton, is essentially factual in nature and asks whether more than mere possession of the firearm—brandishment or other use—was an integral aspect of the predicate offense. If these two questions are answered in the affirmative, then the four-level enhancement under section 2K2.1(b)(5) should apply.
Id. at 196 (citations and footnote omitted).3 Evaluating the drug distribution offense under this standard, we held the enhancement was correctly applied to Navarro. Id. at 196–97.
In 2006, the Sentencing Commission proposed an amendment to USSG § 2K2.1, which was eventually adopted as Amendment 691 and incorporated into the Guidelines. See USSG supp. app. C amend. 691, at 170–77. In addition to adding a subsection (5), which bumped the guideline at issue here to subsection (6), and other changes not relevant here, the Commission removed Application Note 15, which stated that “ ‘another felony offense’ ... refer[s] to offenses other than explosives or firearms possession or trafficking offenses,” and inserted a new Application Note 14, which states in relevant part:
(A) In General.—Subsections (b)(6) and (c)(1) apply if the firearm or ammunition facilitated, or had the potential of facilitating, another felony offense or another offense, respectively.
(B) Application When Other Offense is Burglary or Drug Offense.—Subsections (b)(6) and (c)(1) apply (i) in a case in which 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 (ii) 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)(1) and (c)(1) is warranted because the presence of the firearm has the potential of facilitating another
felony offense or another offense, respectively.
(C) Definitions.—
“Another felony offense”, for purposes of subsection (b)(6), means any Federal, state, or local offense, other than the...
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