United States v. Kevin Lorenzo Young , 261 F. App'x 237 ( 2008 )

[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FILED
FOR THE ELEVENTH CIRCUIT U.S. COURT OF APPEALS
________________________ ELEVENTH CIRCUIT
JAN 08 2008
No. 07-13308 THOMAS K. KAHN
Non-Argument Calendar CLERK
________________________
D. C. Docket No. 06-00339-CR-4
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
KEVIN LORENZO YOUNG,
Defendant-Appellant.
________________________
Appeal from the United States District Court
for the Southern District of Georgia
_________________________
(January 8, 2008)
Before ANDERSON, HULL and KRAVITCH, Circuit Judges.
PER CURIAM:
Kevin Lorenzo Young appeals his 100-month sentence imposed following
his guilty plea for possession of firearms by a felon. He contends that an
amendment to the Sentencing Guidelines that took effect between the commission
of the crime and the sentencing hearing created an ex post facto problem. Because
the amendment did not change Eleventh Circuit law, we affirm.
I. Background
Kevin Lorenzo Young and Robert Pickett committed a string of burglaries
on June 22, 2006. The second of three burglaries was at Doug Galbreath’s home.
There, they stole four firearms. After placing the guns in the trunk of the car,
Young and Pickett went to burglarize Pamela Gay’s home. Gay encountered
Pickett and called the police. Pickett and Young fled, leading to a high-speed
chase that lasted several miles. During the chase, Young drove on the wrong side
of the highway, forcing other vehicles off the road. The chase ended when Young
crashed the car and the two fled on foot. Both were caught while trying to flee the
police. Authorities searched the car and found various items stolen from the two
residences, including four firearms.
Young pleaded guilty to possession of a firearm by a convicted felon in
violation of 18 U.S.C. § 922(g). Using the May 2007 Guidelines manual, the
probation officer assigned a base level of 20 under U.S.S.G § 2K2.1. He then
added a two-level enhancement under § 2K2.1(b)(1)(A) for the number of
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firearms, a two-level enhancement under § 2K2.1(b)(4)(A) because the firearms
were stolen, a four-level enhancement under § 2K2.1(b)(6) because Young
possessed the firearms “in connection” with another felony offense, and a two-
level enhancement under § 3C1.2 for reckless endangerment during flight. The
officer then assigned Young a three-level reduction for acceptance of
responsibility. Thus, the adjusted offense level was 27. Young had a criminal
history category of IV, which resulted in a Guidelines range of 100 to 125 months.
Because the statutory maximum was 120 months, however, the range became 100
to 120 months.
Young objected to the § 2K2.1(b)(6) enhancement for possession of firearms
“in connection” with another offense. He asserted that the weapons were stolen as
part of the burglary and, thus, were the proceeds of the crime; he argued that they
were not “possessed in connection with” the crime. At sentencing, Young also
argued that applying the amended version of § 2K2.1(b)(6) would create an ex post
facto problem.
The court questioned whether the amended version of § 2K2.1(b)(6) marked
a change in the Guidelines or whether it simply resolved a circuit split. Young
responded that the amendment was a substantive change and, as such, that it should
not be applied in his case. The court adopted the PSI factual findings and
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determined that the firearms stolen during the earlier burglary and which were in
the car during the escape had the potential to facilitate another felony. Therefore,
the court concluded that the probation officer properly applied the Guidelines. The
court then adopted the PSI calculations and sentenced Young to 100 months
imprisonment.
On appeal, Young contends that the court improperly applied § 2K2.1(b)(6)
because he did not possess the firearms “in connection with” another felony
offense.
II. Standard of Review
We review for clear error the district court’s findings of fact regarding
whether a defendant should receive an enhanced sentence under the Guidelines.
United States v. Clay, 376 F.3d 1296, 1300 (11th Cir. 2004). We review de novo
the “district court’s interpretation of the Guidelines and its application of the
Guidelines to the facts.” United States v. McGill, 450 F.3d 1276, 1278 (11th Cir.
2006).
III. Analysis
The court should apply the Guidelines manual in effect at the time of
sentencing unless doing so presents an ex post facto violation. U.S.S.G. §
1B1.11(a), (b)(1); Stinson v. United States, 508 U.S. 36, 38 (1993).
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Section 2K2.1(b)(6) provides, “if the defendant used or possessed any
firearm or ammunition in connection with another felony offense . . . increase by 4
levels.” U.S.S.G § 2K2.1(b)(6). Amendment 691, which became effective between
the time when Young committed the crime and when Young was sentenced did not
change the language of the relevant Guidelines provision but added a note to this
section which resolved a circuit split. Amendment 691 made clear that the four-
level enhancement applies “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
other conduct with the firearm during the course of the burglary.” Young argues
that retroactive application of this amendment creates an ex post facto problem.
Because this change in the Guidelines did not change Eleventh Circuit law,
however, we disagree.
Two cases are particularly informative.
In United States v. Young, 115 F.3d 834 (11th Cir. 1997), this court upheld
a similar enhancement in the armed career criminal context. In that case, the
defendant stole a rifle during the commission of a burglary; accordingly, the court
concluded that he possessed the firearm “in connection with” that burglary for
purposes of applying the enhancement. Id. at 836. He did not brandish the firearm
at the scene of the burglary or afterwards. See id. We have the same scenario here.
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In U.S. v Rhind, 289 F.3d 690, 692 (11th Cir. 2002), the defendants placed
an unloaded firearm under the passenger seat of a vehicle and one in the trunk
before venturing out on a four-state road trip passing off counterfeit bills. This
court upheld a four-level enhancement under the same Guideline provision at issue
in this case.1 The court noted that “the availability and appearance of the firearms
could have easily served to promote the defendants’ prolonged criminal episode.”
Id. at 695. Thus, the court focused on the fact that the firearms could have been
used in the commission of other crimes, not whether they actually were used.
Similarly, the availability of the firearms in this case could have “easily
served to promote” Young’s criminal episode. After obtaining the firearms in the
Galbreath burglary, Young went to the Gay residence where he encountered the
owner. Young then fled the scene and led police in a high-speed police chase for
several miles. At any point after he obtained the firearms, Young could have used
them to promote the burglaries later in the day or could have used them to aid his
getaway. The sentencing judge mentioned as much.
Thus, because Eleventh Circuit precedent established that the enhancement
applied in this case, the appellant’s ex post facto argument is without merit.2
1
Amendment 691 moved the relevant provision from 2K2.1(b)(5) to 2K2.1(b)(6).
2
Because under either version of the Guidelines the court properly applied the
enhancement, we do not need to address whether Amendment 691 is a clarifying or substantive
amendment.
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IV. Conclusion
For the reasons above, we AFFIRM.
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