United States v. Robert Kelly Mounts , 155 F. App'x 951 ( 2005 )

United States Court of Appeals
FOR THE EIGHTH CIRCUIT
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No. 04-3491
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United States of America, *
*
Appellee, * Appeal from the United States
* District Court for the
v. * Southern District of Iowa.
*
Robert Kelly Mounts, * [UNPUBLISHED]
*
Appellant. *
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Submitted: November 4, 2005
Filed: December 5, 2005
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Before BYE, McMILLIAN, and RILEY, Circuit Judges.
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PER CURIAM.
Robert Mounts (Mounts) appeals the sentence imposed by the district court
after he pled guilty to being a felon in possession of firearms and ammunition, in
violation of 18 U.S.C. § 922(g)(1); and to interstate transportation of a stolen vehicle,
in violation of 18 U.S.C. § 2312. The district court sentenced Mounts to 100 months’
imprisonment, the bottom of the Guidelines range, and 3 years’ supervised release.
Mounts seeks review of his sentence based on Blakely v. Washington, 124 S. Ct. 2531(2004), maintaining the facts supporting certain sentencing enhancements were not
charged in the indictment, and were neither proven to a jury beyond a reasonable
doubt nor admitted by Mounts during his plea colloquy. Mounts also argues that aside
from the Blakely issue, the court erred by applying a 4-level enhancement for
possessing a firearm in connection with another felony offense, under U.S.S.G.
§ 2K2.1(b)(5), because there was no evidence to indicate he directly possessed the
firearm; and further, the court wrongly applied the lower standard of proof used in
drug cases.
This court reviews the district court’s application of the Sentencing Guidelines
de novo and the court’s factual findings for clear error. See United States v. Mack,
343 F.3d 929, 935 (8th Cir. 2003), cert. denied, 540 U.S. 1226 (2004). It is
undisputed Mounts drove a stolen truck while aware of a loaded RG Model 66 .22
caliber pistol in the glove box of the truck. The district court did not err by inferring
the pistol in the glove box emboldened Mounts to continue possessing the stolen
truck. Thus, the court properly enhanced Mounts’s base offense level under section
2K2.1(b)(5). See id. at 936 (for section 2K2.1(b)(5) purposes, “a defendant’s
maintenance of a firearm at an easily accessible location while in a stolen car permits
the inference that the firearm emboldened the defendant to continue his illegal
conduct” of tampering with same vehicle). Additionally, the court’s reasoning in its
entirety reveals that although the court drew an analogy to drug cases, it did not
actually apply the “not clearly improbable standard” used to determine the possession
of firearms in drug cases, see U.S.S.G. § 2D1.1 (comment. n.3), and instead
determined Mounts possessed the firearm in connection with the offense of interstate
transportation of a stolen vehicle.
Mounts’s Blakely challenge to his sentence, however is valid, because the
district court erred in sentencing Mounts under a mandatory Guidelines regime, see
United States v. Booker, 125 S. Ct. 738, 756-57 (2005) (holding Guidelines to be only
advisory), and Mounts preserved this issue at sentencing. We thus review for
harmless error. See id. at 769. The government did not meet its burden of proving
harmless error. Mounts was sentenced at the bottom of the applicable Guidelines
range, and there is nothing in the record to suggest the district court would have given
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the same sentence under an advisory system. See United States v. Haidley, 400 F.3d
642, 644-45 (8th Cir. 2005).
Accordingly, we remand for resentencing.
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