United States v. John Davis ( 2004 )

United States Court of Appeals
FOR THE EIGHTH CIRCUIT
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No. 03-2499
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United States of America, *
*
Appellee, *
* Appeal from the United States
v. * District Court for the
* Western District of Missouri.
John Jeffery Davis, *
*
Appellant. *
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Submitted: January 14, 2004
Filed: March 16, 2004
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Before WOLLMAN, RICHARD S. ARNOLD, and MORRIS SHEPPARD ARNOLD,
Circuit Judges.
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WOLLMAN, Circuit Judge.
Following John Jeffery Davis’s plea of guilty to being a felon in possession of
a firearm, the district court1 sentenced him to 120 months of imprisonment, to be
followed by three years of supervised release. Davis appeals, arguing that the district
court erroneously increased his sentence of imprisonment through application of
United States Sentencing Guideline (U.S.S.G.) § 2K2.1(b)(5). We affirm.
1
The Honorable Scott O. Wright, United States District Judge for the Western
District of Missouri.
I.
On January 18, 2003, a few months after Davis had completed a federal
sentence of imprisonment for, among other things, armed bank robbery, he committed
a carjacking, using a nine millimeter semiautomatic handgun in the process of doing
so. Davis was charged with armed robbery in state court and released on bond.
Because the commission of the carjacking offense constituted a violation of Davis’s
supervised release on his prior federal conviction, a federal arrest warrant was issued
on January 27, 2003, and Davis was taken into custody the following day. At the
time of his arrest, Davis had a .25 caliber semiautomatic pistol on his person, the
weapon that formed the basis of the present charge.
At sentencing, the district court considered the January 18 carjacking and
applied § 2K2.1(b)(5), which provides for a four-level increase in a defendant’s
Guideline offense level “if the defendant used or possessed any firearm . . . in
connection with another felony offense . . . .” This shifted Davis’s total imprisonment
range under the Guidelines from 70-87 months to 100-120 months.
II.
Davis challenges the district court’s application of the Guidelines to the facts
of his case, a matter that we review de novo. See United States v. Willey, 350 F.3d
736, 738 (8th Cir. 2003). Davis argues that § 2K2.1(b)(5) does not contemplate
enhancement for “another felony offense” that was temporally and spatially distinct
from the offense of conviction. He accordingly contends that the enhancement is
inapplicable here because his commission of “another felony offense” – the
carjacking – occurred in a different location some ten days prior to his possession of
the .25 caliber pistol. We do not agree.
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Nothing in § 2K2.1(b)(5) expressly precludes its application to a felony offense
that occurred at a time and place distinct from the offense of conviction. Although
it may often be the case that a defendant’s possession of a firearm occurs in relation
to the commission of a contemporaneous felony offense, § 2K2.1(b)(5) does not limit
the application of the words “another felony offense” to such a situation. See United
States v. Mann, 315 F.3d 1054, 1056-57 (8th Cir.), cert. denied, 124 S. Ct. 125 (2003)
(applying plain language); cf. United States v. Stolba, 357 F.3d 850, 853 (8th Cir.
2004) (finding that § 3C1.1 included specific language that precluded its application
to prior obstructive conduct). Absent a special definition of the particular term at
issue, we give Guideline language its ordinary meaning. Mann, 315 U.S. at 1055
(citing Chapman v. United States, 500 U.S. 453, 462 (1991)). A plain reading here
is consonant with the Guideline’s far-reaching purpose of accounting for the
increased risk of violence when those committing felonies possess firearms. See
Mann, 315 F.3d 1056; United States v. Regans, 125 F.3d 685, 686 (8th Cir. 1997).
Davis argues that reading § 2K2.1(b)(5) to encompass non-contemporaneous
felonies would permit enhancement for uncharged felonious conduct that may have
been committed years prior to the offense of conviction. Cf. United States v.
Regenwether, 300 F.3d 967, 969-70 (8th Cir. 2002) (Bright, J., concurring). Be that
as it may, we conclude that our decision in Mann, which holds that the firearm used
in another felony offense need not be the same firearm involved in the offense of
conviction, requires that we reject Davis’s proposed reading of § 2K2.1(b)(5).
Davis’s argument presumes that the § 2K2.1(b)(5) enhancement is limited only to acts
or omissions “during commission of the offense of conviction, in preparation for that
offense, or in the course of attempting to avoid detection or responsibility for that
offense . . . .” U.S.S.G. § 1B1.3(a)(1). In fact, relevant offense conduct also includes
“any other information specified in the applicable guideline,” U.S.S.G. §1B1.3(a)(4),
and the applicable Guideline here, § 2K2.1(b)(5), specifies enhancement whenever
the defendant possessed “any firearm . . . in connection with . . . another felony
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offense . . . .” Cf. United States v. Torres-Echavarria, 129 F.3d 692, 698 (2d Cir.
1997).
Davis argues further that because neither § 2K2.1(b)(5) nor § 1B1.3 expressly
provides that § 2K2.1(b)(5) should apply to non-contemporaneous conduct, the latter
section is ambiguous and that under the rule of lenity we should find that it is not
applicable to his case. See United States v. Speakman. 330 F.3d 1080, 1083 (8th Cir.
2003). Davis did not raise this argument below, and in any event we do not agree that
the relevant Guideline provisions are ambiguous. The phrase “felony offense” is
elsewhere defined in §2K2.1(b)(5), see id. cmt. 7, and use of the word “another” here
does not admit of two reasonable interpretations. Id. cmt. 18; cf. United States v.
Fenton, 309 F.3d 825, 828 n. 3 (3rd Cir. 2002) (agreeing that “another felony offense”
is unambiguous but urging application of the rule of lenity).
We have rejected the requirement of contemporaneous conduct in other
contexts, see United States v. Mack, 343 F.3d 929, 933 (8th Cir. 2003), and two other
circuits have refused to read §2K2.1(b)(5) as Davis would have us do. See United
States v. Hart, 324 F.3d 740, 750 (D.C. Cir. 2003); United States v. Draper, 24 F.3d
83, 85 (10th Cir. 1994). As observed in Hart, the Draper holding has stood during a
decade of amendments to the Guidelines without any suggestion by the Sentencing
Commission that the enhancement should apply only to contemporaneous conduct.
Hart, 324 F.3d at 746.
A judge sentencing someone in Davis’s situation during the pre-Guidelines
regime would have been free to consider Davis’s participation in the carjacking.
Likewise, we believe that the Commission was free to conclude that the risk created
by a defendant who earlier committed an armed carjacking should be taken into
account in sentencing that defendant on a charge of unlawfully possessing yet another
firearm.
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We conclude that the January 18, 2003, armed carjacking constituted “another
felony offense” within the meaning of § 2K2.1(b)(5). Accordingly, Davis’s use of a
firearm during the carjacking different from the weapon that formed the basis of the
present prosecution does not preclude the application of the guideline in determining
the sentence to be imposed on the conviction on the present charge.
The sentence is affirmed.
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