United States v. Stepp , 67 F. App'x 107 ( 2003 )

Opinions of the United
2003 Decisions States Court of Appeals
for the Third Circuit
5-20-2003
USA v. Stepp
Precedential or Non-Precedential: Non-Precedential
Docket 02-4415
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Recommended Citation
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NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
__________
Case No: 02-4415
__________
UNITED STATES OF AMERICA
v.
JOHN LEE STEPP,
a/k/a John L. Stapp,
a/k/a Speedy,
Appellant
On Appeal From The United States District Court
For The Western District of Pennsylvania
(Crim. No. 01- CR-0040E)
District Judge: The Honorable Maurice B. Cohill, Jr.
__________
Submitted Under Third Circuit LAR 34.1(a)
May 16, 2003
__________
Before: RENDELL, SMITH and ALDISERT, Circuit Judges
(Opinion Filed: May 20, 2003)
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OPINION
____________
SMITH, Circuit Judge
I.
Stepp alleges that the District Court erred in applying a four-level enhancement
pursuant to U.S. Sentencing Guidelines Manual § 2K2.1(b)(5). For the reasons that
follow, we will affirm.
II.
On November 5, 2001, appellant John Lee Stepp, Lamar Thomas and Robert
Tarver were standing in the vicinity of East 22nd Street in Erie, Pennsylvania. Stepp gave
Tarver a quarter ounce of crack cocaine to break down for further distribution. Suddenly,
a man known as Twin Beason came by, grabbed the cocaine from Tarver and fled.
Thomas gave a handgun to Stepp, who then went in search of Beason who he
wished to scare in retaliation for stealing the cocaine. Officers apprehended Stepp,
Thomas and Tarver before they found Beason. At the time of the arrest, the handgun was
back in the possession of Thomas.
Stepp pled guilty to one count of being a felon in possession of a firearm in
violation of 18 U.S.C. 922(g)(1). Stepp’s Presentence Investigation Report (“PSR”)
recommended that the base offense level be increased by four points, pursuant to U.S.
Sentencing Guidelines Manual § 2K2.1(b)(5), because the gun was possessed “in
connection with” a drug transaction. PSR ¶ 17. Stepp objected to this increase, but
Judge Cohill denied his objection and sentenced him to 90 months imprisonment.
The District Court had jurisdiction over the sentencing pursuant to 18 U.S.C. §
3231, and we have jurisdiction over the appeal pursuant to 28 U.S.C. § 1291 and 18
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U.S.C. § 3742.
III.
The facts are not in dispute. Our review of the District Court’s interpretation and
application of the Sentencing Guidelines phrase “in connection with” is plenary. See
United States v. Cicirello, 301 F.3d 135, 137 (3d Cir. 2002); United States v. Titchell, 261
F.3d 348, 353 (3d Cir. 2001).
U.S. Sentencing Guidelines Manual § 2K2.1(b)(5) states: “[i]f the defendant used
or possessed any firearm or ammunition in connection with another felony offense . . .
increase by 4 levels.” Stepp argues that it was not possible for him to possess the
handgun “in connection with” the drug transaction because he had not obtained the
weapon from Thomas until after he handed the cocaine to Tarver.
The language “‘in connection with’ is notable for its ‘vagueness and pliability’”
and the phrase “‘should be interpreted broadly.’” United States v. Loney, 219 F.3d 281,
283-84 (3d Cir. 2000) (internal citations omitted). Connection “can encompass any
‘casual or logical relation or sequence.’” Id. at 284 (quoting Webster’s Ninth New
Collegiate Dictionary 278 (1990)); see also United States v. Brannan, 74 F.3d 448, 453
(3d Cir. 1996). But, it requires “more than just that the person committed a felony
offense and at some point in time and in some place possessed a gun.” Loney, 219 F.3d at
286. Based on this broad definition, when gun possession arises as a result of a felony,
such possession is “in connection with” that felony. Here, Stepp obtained the gun
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specifically to scare Beason and get the cocaine back from him. This was “in connection
with” Stepp’s drug transaction with Tarver. Had it not been for the drug transaction,
Stepp would not have pursued Beason with the gun.
Although Stepp did not have the gun during his drug transaction, we have
implicitly rejected the argument that a gun must be possessed during a felony to be
possessed “in connection” with that felony. Cf. Loney, 219 F.3d at 287 (noting that the
Supreme Court’s interpretation of what constitutes carrying a gun “in relation to” a drug
trafficking offense in violation of 18 U.S.C. § 924(c)(1) may shed light on the meaning of
“in connection to,” but that the “during” requirement of § 924(c)(1) is inapplicable).
Moreover, the fact that Congress chose not to use the ‘“in connection with the
commission or attempted commission of another offense” language from U.S.S.G. §
2K2.1(c), suggests that § 2K2.1(b)(5) does not require that the gun be possessed during
the commission of the felony. Therefore, Stepp possessed a gun “in connection with”
the drug transaction, even though he obtained it after the drug transaction was completed.
We will affirm the sentence imposed by the District Court.
______________________________________
TO THE CLERK:
Please file the foregoing Opinion.
/s/ D. Brooks Smith
Circuit Judge
Date: May 20, 2003
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