United States v. Garnett ( 2001 )

PUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
UNITED STATES OF AMERICA, 
Plaintiff-Appellee,
v.  No. 99-4818
MICHAEL TRACY GARNETT,
Defendant-Appellant.

Appeal from the United States District Court
for the Southern District of West Virginia, at Charleston.
Charles H. Haden II, Chief District Judge.
(CR-99-114)
Argued: December 8, 2000
Decided: March 13, 2001
Before WIDENER, LUTTIG, and MICHAEL, Circuit Judges.
Vacated and remanded by published opinion. Judge Luttig wrote the
opinion, in which Judge Widener and Judge Michael joined.
COUNSEL
ARGUED: Edward Henry Weis, Assistant Federal Public Defender,
Charleston, West Virginia, for Appellant. Steven Ian Loew, Assistant
United States Attorney, Charleston, West Virginia, for Appellee. ON
BRIEF: Hunt L. Charach, Federal Public Defender, Charleston, West
Virginia, for Appellant. Rebecca A. Betts, United States Attorney,
Charleston, West Virginia, for Appellee.
2 UNITED STATES v. GARNETT
OPINION
LUTTIG, Circuit Judge:
Appellant Michael Tracy Garnett pled guilty to a single violation
of 18 U.S.C. § 922(j) for possession of a machine gun. On appeal, he
contends that the district court’s enhancement of his sentence pursu-
ant to United States Sentencing Guideline ("U.S.S.G.") § 2K2.1(b)(5)
was unwarranted because he did not use the machine gun in connec-
tion with a second felony offense.1 The district court’s findings sup-
port the inference that Garnett used the machine gun to facilitate a
second drug-related offense. However, these same findings do not
support the conclusion that such offense rose to the level of a felony
offense, as section 2K2.1(b)(5) requires. We therefore remand for
additional fact-finding and, if necessary, resentencing.
I.
It is uncontroverted that Garnett stole a German Schmeisser
machine gun that he knew was worth $1300. And, after he stole the
machine gun, Garnett contacted Pat Shively, who informed Garnett
that he could sell the gun for Garnett. Garnett gave the machine gun
to Shively and admits that he expected that Shively would sell the
machine gun and obtain cocaine base with the proceeds. In fact,
Shively returned to Garnett with $20 worth of cocaine base and with-
out the machine gun.
Three days later, local law enforcement officials questioned Gar-
nett, and he confessed to stealing the machine gun. Garnett admitted
during the interview that he transferred the gun to Shively and
Shively "took it down the road so they could sell it and come back
with $20 worth of crack." The officers later located Shively and
1
Garnett’s base level offense under the U.S.S.G. was 20, and his
enhancements resulted in a total offense level of 26. Garnett’s Criminal
History Category was II, and the Guidelines range for imprisonment was
70 months to 87 months. Garnett was sentenced to 70 months, the mini-
mum term of imprisonment. Absent the section 2K2.1(b)(5) enhance-
ment at issue here, Garnett’s sentencing range would have been 41 to 51
months.
UNITED STATES v. GARNETT 3
recovered the stolen machine gun from him; contrary to Garnett’s
expectations, Shively had not sold the machine gun.
Garnett signed a plea agreement in which he agreed to waive
indictment and enter a guilty plea to one count of possession of a fire-
arm in violation of 18 U.S.C. § 922(j).2 The presentence report
("PSR") recommended that the district court enhance Garnett’s sen-
tence by two levels pursuant to U.S.S.G. § 2K2.1(b)(4) because the
machine gun was stolen.3
Garnett’s sentence was also enhanced by four levels because the
firearm was used "in connection with another felony offense" under
U.S.S.G. § 2K2.1(b)(5). Section 2K2.1(b)(5) provides a four-level
enhancement,
[i]f the defendant used or possessed any firearm or ammuni-
tion 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 pos-
sessed in connection with another felony offense.
Garnett objected to this enhancement, claiming that it could not apply
because the machine gun was not used in connection with an eligible
felony offense.
The PSR identified as "another felony offense" both conspiracy to
possess with intent to distribute cocaine and transfer of stolen prop-
erty. Garnett objected to the PSR on the grounds that, while he
intended that Shively would sell the machine gun, purchase cocaine
base with the proceeds, and give the cocaine base to Garnett, there
was no evidence in the record to support a conspiracy to possess with
the intent to distribute cocaine. Therefore, he insisted, the only possi-
ble offenses related to the transfer of the machine gun are: (1) a fire-
2
18 U.S.C. § 922(j) provides in relevant part: "It shall be unlawful for
any person to receive, possess, conceal, store, barter, sell, or dispose of
any stolen firearm . . . which has been shipped or transported in, inter-
state or foreign commerce . . . knowing or having reasonable cause to
believe that the firearm . . . was stolen."
3
Garnett does not appeal this enhancement and we do not consider it.
4 UNITED STATES v. GARNETT
arms trafficking offense, which cannot serve as the basis for the
section 2K2.1(b)(5) enhancement,4 or (2) a misdemeanor drug posses-
sion offense, which also cannot satisfy the enhancement prerequisite
of "another felony offense."5
The district court rejected Garnett’s analysis and applied the
2K2.1(b)(5) enhancement, explaining at the sentencing hearing that
"[d]efendant stole a gun that he intended to trade or sell so he could
acquire cocaine base and he enlisted Mr. Shively into the venture and
that qualifies as another offense, either an attempt or conspiracy or
both." In its Memorandum of Sentencing Hearing and Report of
Statement of Reasons, the district court held as follows:
[F]ound and concluded that second offense was a conspiracy
to transfer the stolen machine gun, worth as much as $1,300,
for cocaine base in addition to the $20 worth received
immediately. The Court held this constituted a conspiracy,
within the meaning of 18 U.S.C. § 371, to violate the laws
of the United States against drug trafficking.
J.A. 81-82. Although Garnett’s counsel agreed that Garnett was seek-
ing more than $20 worth of cocaine for the $1300 machine gun, the
government presented no evidence, and the district court entered no
factual finding, with respect to the amount of cocaine base Garnett
expected or planned to receive from Shively over time in exchange
for the $1300 machine gun.
4
Such offenses are not eligible bases for imposing the section
2K2.1(b)(5) enhancement as U.S.S.G. § 2K2.1, cmt. n.18 provides in
pertinent part: "As used in subsections (b)(5) and (c)(1), ‘another felony
offense’ and ‘another offense’ refer to offenses other than explosives or
firearms possession or trafficking offenses."
5
"‘Felony offense,’ as used in subsection (b)(5) means any offense . . .
punishable by imprisonment for a term exceeding one year, whether or
not a criminal charge was brought, or conviction obtained." U.S.S.G.
§ 2K2.1, cmt. n.7.
UNITED STATES v. GARNETT 5
II.
In order to apply the sentence enhancement provided by U.S.S.G.
§ 2K2.1(b)(5), the district court must find both that a firearm was
used (or that the defendant possessed or transferred the firearm
expecting that it would be used) and that such use was "in connection
with another felony offense." U.S.S.G. § 2K2.1(b)(5). The govern-
ment bears the burden of proving the facts necessary to establish the
applicability of this enhancement by the preponderance of the evi-
dence, and we review the district court’s findings of fact for clear
error, giving due deference to the district court’s application of the
Guidelines to the facts. See United States v. Nale, 101 F.3d 1000,
1003 & n.3 (4th Cir. 1996).
The requirement for "another felony offense," is both precisely
demarcated and specifically defined in U.S.S.G. § 2K2.1, cmt. n.7:
the second criminal offense must be punishable by imprisonment for
a term exceeding one year. And while neither "used" nor "in connec-
tion with" is defined in the Guidelines, these terms are deemed analo-
gous to the terms "use" and "in relation to" found in 18 U.S.C.
§ 924(c). See id. at 1003-04 ("used" "in connection with" language of
section 2K2.1(c)6 is analogous to "use" "in relation to" language in
section 924(c)).7 Such "use" is defined expansively. Thus, a district
6
Section 2K2.1(c) is a cross-reference that employs the same language
as section 2K2.1(b)(5), and the terms therein have the same meaning.
7
Section 924(c)(1)(A) states in pertinent part:
Except to the extent that a greater minimum sentence is other-
wise provided by this subsection or by any other provision of
law, any person who, during and in relation to any crime of vio-
lence or drug trafficking crime (including a crime of violence or
drug trafficking crime that provides for an enhanced punishment
if committed by the use of a deadly or dangerous weapon or
device) for which the person may be prosecuted in a court of the
United States, uses or carries a firearm, or who, in furtherance
of any such crime, possesses a firearm, shall, in addition to the
punishment provided for such crime of violence or drug traffick-
ing crime—
(i) be sentenced to a term of imprisonment of not less than 5
years[.]
18 U.S.C. § 924(c)(1).
6 UNITED STATES v. GARNETT
court may find that a firearm is "used" "in connection with" another
felony offense if it facilitates or has a tendency to facilitate the felony
offense. See United States v. Smith, 508 U.S. 223, 237 (1993). This
includes trading a firearm for drugs. Id. at 228; see also Bailey v.
United States, 516 U.S. 137, 148 (1995) ("active employment" of a
firearm constitutes "use," to include "brandishing, displaying, barter-
ing, striking with, and, most obviously, firing or attempting to fire a
firearm"); United States v. Lipford, 203 F.3d 259, 267 (4th Cir. 2000)
(firearm "used to facilitate drug trafficking" where gun’s involvement
is not "spontaneous" or "coincidental").
Garnett contests the imposition of the section 2K2.1(b)(5) enhance-
ment on two grounds. First, he contends that his actions do not war-
rant imposition of the enhancement because there is not "another
felony offense," as section 2K2.1(b)(5) requires. Second, Garnett
insists that he did not "use" the machine gun within the meaning of
section 2K2.1(b)(5). Garnett’s factual concessions establish the neces-
sary nexus between the machine gun and the cocaine base.8 However,
we ultimately agree with Garnett that the district court’s factual find-
ings are deficient with respect to whether the second offense is "an-
other felony offense."
III.
Although the district court made general reference to the existence
of "another felony offense" and a "qualifying offense," it neglected to
make specific findings on the amount of cocaine base involved — or
even findings from which such amount could be inferred — though
it is precisely this amount that would provide the necessary factual
basis to support its conclusion that the second offense was "another
felony offense." We are confident that, in this case, no less than five
grams of a substance containing cocaine base must be implicated in
the second offense for the enhancement to apply because the evidence
does not support a finding that Garnett was involved in a conspiracy
to distribute drugs and we cannot accept the government’s contention
that any trade of a gun for drugs — irrespective of type or amount —
8
Garnett himself does not contest the factual findings of the district
court, excepting its suggestion that he intended or believed that Shively
would "trade" the gun for drugs.
UNITED STATES v. GARNETT 7
constitutes a violation of 18 U.S.C. § 924(c). See infra 9-11; 21
U.S.C. § 844; 18 U.S.C. 924(c)(2). Moreover, possession of less than
five grams of cocaine base constitutes a misdemeanor only and cannot
serve as either "another felony offense," for purposes of U.S.S.G.
§ 2K2.1(b)(5), or as "a drug trafficking offense," for purposes of 18
U.S.C. § 924(c)(1), as those terms are defined.
A.
While we could affirm the enhancement if there was even evidence
that Garnett believed or had reason to believe when he transferred the
gun to Shively that the gun would be used "in connection with" "an-
other felony offense," no such evidence currently exists. For, we
agree with Garnett that neither the PSR nor the sentencing record sup-
ports, by a preponderance of the evidence, the conclusion that Garnett
conspired, either with Shively alone, or with Shively and a third party,
to possess cocaine base with the intent to distribute — a felony offense.9
Further, even assuming that Shively’s trading of the machine gun
for an unknown quantity of cocaine base would constitute "another
felony offense" for purposes of the section 2K2.1(b)(5) enhancement,
and even though it is true that the district court stated at various points
that Garnett expected or believed that Shively would "trade or sell"
the machine gun in exchange for drugs, the record contains no evi-
dence, let alone a preponderance of evidence, that Garnett intended,
agreed, believed, or had reason to believe that Shively would trade
the machine gun to a third party in exchange for cocaine base. Indeed,
contrary to the government’s assertions during oral argument, the evi-
dence in the record shows that Garnett expected Shively to sell the
gun and purchase cocaine base with the proceeds of the sale. See J.A.
8, 95. But such sale would constitute a firearms trafficking offense
9
Indeed, the only evidence is that Garnett conspired with Shively to
obtain cocaine, and, given the total absence of evidence in the record
regarding a third party, we cannot engage in supposition that the third
party even knew of Garnett or the machine gun, let alone had entered
into anything beyond a buyer-seller arrangement with Garnett. Neither,
on these facts, can we conclude that Garnett believed or had reason to
believe such to be the case.
8 UNITED STATES v. GARNETT
and, as such, is not "another felony offense" for purposes of section
2K2.1(b)(5).
Of course, irrespective of one stated basis for imposition of the
enhancement, we can affirm Garnett’s sentence on the basis of "any
conduct [in the record] that independently and properly should result
in an increase in the offense level" by virtue of the enhancement.
United States v. Ashers, 968 F.2d 411, 414 (4th Cir. 1992) (if one
basis for application of an enhancement is erroneous, enhancement
may be affirmed based on correctly determined alternative basis). The
record provides two such potential bases for imposition of the section
2K2.1(b)(5) enhancement, both of which were addressed by the dis-
trict court, and both of which are based on the factual findings that
Garnett enlisted the help of Shively to obtain cocaine base and agreed
to Shively’s sale10 of the stolen machine gun, worth as much as
$1,300, in order to achieve that end.
First, whether described as a violation of 18 U.S.C. § 371 (conspir-
acy to commit an offense) or as a violation of 21 U.S.C. § 846 (con-
spiracy to commit any offense under the Controlled Substances Act,
21 U.S.C. § 801 et seq.), ample evidence supports the finding that
Garnett conspired with Shively to possess cocaine base and used the
machine gun to effect the object of that conspiracy. Second, during
the course of Garnett’s sentencing hearing, the district court also,
albeit less clearly, addressed a violation of 18 U.S.C. § 924(c)
wherein Garnett gave the machine gun to Shively and received
cocaine base in exchange. Either offense, if supported by a preponder-
ance of the evidence, may provide sufficient grounds upon which to
rest the (b)(5) enhancement.
B.
However, despite evidence in the record that suggests two alterna-
tive offenses upon which Garnett’s 2K2.1(b)(5) enhancement might
be based, we nonetheless remand the case for further proceedings to
develop the record. This is so even though we answer in the affirma-
tive the question left open in United States v. Fountain, 993 F.2d
10The district court incorrectly added "trade" as an alternate disposition
for the machine gun.
UNITED STATES v. GARNETT 9
1136 (4th Cir. 1993), and hold that purchase, i.e., possession, of a fel-
ony amount of cocaine base in violation of 21 U.S.C. § 844, consti-
tutes a "drug trafficking crime" for purposes of section 924(c); we
have no doubt that conspiracy to possess cocaine base may constitute
a felony drug trafficking offense in some circumstances. Id. at 1137
n.1. We are similarly certain that transfer of a machine gun for
cocaine base will — more often than not — satisfy the "drug traffick-
ing crime" predicate for that offense. However, we cannot hold that
this is invariably so, as would be required to affirm the sentence
enhancement on the record before us, which lacks evidence that the
drug offenses suggested therein are felony drug offenses.
1.
As one example, possession of less than five grams of cocaine base
by a defendant with no prior drug convictions is punishable by
imprisonment for up to one year only, and therefore is not a felony.
21 U.S.C. § 844. In contrast, however, that same section provides that
possession of five or more grams of a substance which contains
cocaine base is punishable by up to three years imprisonment — a
felony. And, of course, the inchoate offenses of attempt and conspir-
acy are subject to the same punishments as the completed offense.
See, e.g., 21 U.S.C. § 846.
Here, we cannot say that the evidence is even in equipoise with
respect to the amount of cocaine base that Garnett expected to
receive, or stood to receive, over time in exchange for the $1300
machine gun. The government produced no evidence at sentencing,
and the district court made no factual findings, either on this point or
with respect to the amount of money which the stolen Schmeisser
machine gun would bring on the black market. Thus, though Garnett
has conceded that he was seeking more than $20 worth of cocaine for
the $1300 machine gun and the district court so found, we have no
record evidence that the amount of cocaine base met or exceeded five
grams, as it must for the conspiracy to possess cocaine base to consti-
tute "another felony offense" as section 2K2.1(b)(5) requires.
2.
A finding that Garnett expected to receive five or more grams of
cocaine base in exchange for the $1300 machine gun is thus no less
10 UNITED STATES v. GARNETT
necessary if the district court’s "[ ]other felony offense" for purposes
of the U.S.S.G. § 2K2.1(b)(5) enhancement is 18 U.S.C. § 924(c).
Indeed, such amount of cocaine base is necessary to the very exis-
tence of an offense under 18 U.S.C. § 924(c) when the weapon is used
"during and in furtherance of . . . [a] drug trafficking crime," and the
individual charged is implicated in the possession, rather than the dis-
tribution, side of the drug trafficking transaction. This is necessarily
the case, given the language of section 924(c) itself, read in conjunc-
tion with the statutory penalties for various aspects of a drug traffick-
ing scheme.
In the first place, though each instance of drug distribution or pos-
session with the intent to distribute cocaine base constitutes a felony
irrespective of the amount of cocaine base involved, see 21 U.S.C.
§ 841(b), only purchase or possession of five or more grams of
cocaine base constitutes a felony, see supra 9.
Second, a violation of section 924(c) has two elements: "(1) the
defendant used or carried a firearm, and (2) the defendant did so dur-
ing and in relation to a drug trafficking offense or crime of violence."
United States v. Mitchell, 104 F.3d 649, 652 (4th Cir. 1997) (empha-
sis added). At issue in this case is "drug trafficking offense," and for
purposes of section 924(c) only specified felonies supply that element
of the section 924(c) offense: A "drug trafficking crime" is "any fel-
ony punishable under the Controlled Substances Act (21 U.S.C. 801
et seq.), the Controlled Substances Import and Export Act (21 U.S.C.
951 et seq.), or the Maritime Drug Law Enforcement Act (46 U.S.C.
App. 1901 et seq.)." 18 U.S.C. § 924(c)(2) (emphasis added). And, of
course, the felony must be one for which, "the person [using the gun
in furtherance of the drug trafficking offense] may be prosecuted in
a court of the United States." 18 U.S.C. § 924(c). Here, Garnett may
be deemed to have used the machine gun in connection with a drug
trafficking offense under section 924(c) — trading the machine gun
to Shively in exchange for drugs — only if he conspired to receive,
or believed he would receive, five or more grams of cocaine base in
exchange for the machine gun. Absent such a finding there is no
"drug trafficking crime" as defined in section 924(c)(2), and hence no
section 924(c) violation at all.
UNITED STATES v. GARNETT 11
The government does not undertake this analysis of the statute yet
boldly proclaims that any time a gun is traded for a controlled sub-
stance it constitutes a section 924(c) violation, which provides for a
mandatory minimum sentence of three years.11 In support of this prop-
osition it cites Smith, which states quite baldly: "We therefore hold
that a criminal who trades his firearm for drugs ‘uses’ it during and
in relation to a drug trafficking offense within the meaning of
924(c)(1)." Smith, 508 U.S. at 241.
Of course, the statutory language of section 924(c) itself requires
that Smith be interpreted to encompass less then every criminal who
trades his firearm for drugs; section 924(c) requires a felony drug traf-
ficking offense. Furthermore, there is no call to resort to Smith for an
interpretation of what satisfies the "drug trafficking crime" element of
section 924(c): the question of whether the trade at issue therein con-
stituted a "drug trafficking crime" was not presented in Smith. Rather,
the issue addressed and decided in Smith was whether such trade of
a gun for drugs constituted a "use" "during and in relation" to the drug
trafficking offense. And the facts in Smith clearly indicate that the
underlying offense — conspiracy to possess cocaine with the intent
to distribute — was a felony offense, irrespective of amount. See 21
U.S.C. § 841(b); Smith, 508 U.S. at 237.
IV.
Assuming that the necessary factual findings are made on remand,
we note that Garnett’s argument that he did not "use" the machine gun
"in connection with" another offense, as those terms are understood
for purposes of the (b)(5) enhancement, is unavailing. For, whether
we assume that the predicate offense supporting imposition of the
2K2.1(b)(5) enhancement was a violation of 18 U.S.C. § 924(c) or a
conspiracy to possess drugs simpliciter, in either instance the nexus
between Garnett, the machine gun, and the cocaine base is unmistak-
able, and its status as "use" "in connection with" well-settled by pre-
cedent.
11
We reject Garnett’s argument that 18 U.S.C. § 924(c) may be charac-
terized only as a weapons trafficking offense — even where its predicate
offense is drug trafficking.
12 UNITED STATES v. GARNETT
Undoubtedly, giving the gun to Shively and receiving cocaine base
in return constitutes a "trade," and such circumstances can conclu-
sively constitute "use" "during and in furtherance of" a drug traffick-
ing offense. Smith, 508 U.S. at 241; Bailey, at 143. And it is no less
clear that giving a firearm to a fellow conspirator to further the object
of the conspiracy also constitutes use of the firearm "in connection
with" (i.e., to facilitate) the crime of conspiracy. See United States v.
Phan, 121 F.3d 149, 153 (4th Cir. 1997) (transfer of firearms to co-
conspirators, an overt act in furtherance of the conspiracy, constitutes
"use" "in furtherance of" the crime of conspiracy).
Here, the object of the conspiracy between Garnett and Shively
was to possess cocaine base in violation of 21 U.S.C. §§ 844 and 846,
and they agreed to sell the machine gun in order to obtain the money
needed to purchase the drugs. Thus, Garnett’s agreement with Shively
to sell the machine gun, and transfer of the machine gun to Shively,
were overt acts — the manner and means by which they intended to
achieve the object of their conspiracy. Garnett argues that the firearm
was not "used" because Shively kept the gun. However, this argument
is in vain because neither the law of conspiracy nor the language of
section 2K.1(b)(5) requires that the anticipated use come to fruition.
See United States v. Feola, 420 U.S. 671, 694 (1975) (criminal liabil-
ity for conspiracy attaches for agreement to engage in a criminal ven-
ture "plus an overt act in pursuit of it, regardless of whether the crime
agreed upon is ever committed."); U.S.S.G. § 2K2.1(b)(5) ("or trans-
ferred any firearm or ammunition with knowledge, intent, or reason
to believe that it would be used or possessed in connection with
another felony offense") (emphasis added). Just as a firearm traded
for drugs is "an integral part of the transaction," without which "the
deal would not have been possible," Smith, 508 U.S. at 238, so too
where the transfer of a firearm is itself an overt act in furtherance of
the conspiracy. Phan, 121 F.3d at 153. In either instance, the nexus
between the gun and the underlying offense could not be closer. Id.CONCLUSION
Given the current paucity of evidence in support of the district
court’s finding that Garnett used the machine gun in connection with
"another felony offense," we cannot affirm imposition of the section
2K2.1(b)(5) enhancement. Therefore, we remand to the district court
UNITED STATES v. GARNETT 13
for additional fact-finding and, if necessary, resentencing on the issue
of section 2K2.1(b)(5). See United States v. Singh, 54 F.3d 1182 (4th
Cir. 1995) (remanding for additional fact-finding where district
court’s findings did not support its enhancement).
VACATED AND REMANDED