United States v. Gregory Sewalson ( 2022 )

United States Court of Appeals
For the Eighth Circuit
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No. 21-1914
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United States of America,
lllllllllllllllllllllPlaintiff - Appellee,
v.
Gregory Sewalson,
lllllllllllllllllllllDefendant - Appellant.
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Appeal from United States District Court
for the Northern District of Iowa - Western
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Submitted: February 14, 2022
Filed: June 13, 2022
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Before LOKEN, COLLOTON, and SHEPHERD, Circuit Judges.
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COLLOTON, Circuit Judge.
Gregory Sewalson pleaded guilty to unlawful possession of a firearm and
ammunition as a convicted felon. See 18 U.S.C. §§ 922(g)(1), 924(a)(2). Police
found a loaded revolver at Sewalson’s residence in a bedroom where they also seized
quantities of methamphetamine that were suitable for distribution and other evidence
of drug trafficking. Officers seized the gun from an area above a removable ceiling
tile in the bedroom.
In calculating an advisory guideline range at sentencing, the district court1
found based on the evidence of drug trafficking that Sewalson possessed the firearm
“cited in the offense of conviction in connection with the commission . . . of another
offense.” USSG § 2K2.1(c)(1). Therefore, the court applied a cross-reference under
§ 2K2.1(c)(1)(A) and applied § 2X1.1 in respect to the offense of possession with
intent to distribute methamphetamine. As a result, the base offense level under
§ 2X1.1(a) was 32 based on USSG § 2D1.1(a)(5), (c)(5), and (b)(1), and Sewalson’s
guideline sentence was the statutory maximum term of 120 months’ imprisonment.
See id. § 5G1.1(a). The court varied downward and imposed a sentence of 102
months.
Sewalson argues that the district court erred by applying the cross reference,
and that the error increased his advisory guideline sentence. He contends that the
cross reference applies only when the firearm is “actively used” during the
commission of another offense, not when it is simply possessed. He contends that the
district court instead should have applied a base offense level of 14 under USSG
§ 2K2.1(a)(6) with a four-level increase under § 2K2.1(b)(6) for possession of a
firearm “in connection with another felony offense.” His suggested approach would
have produced an advisory range of 46 to 57 months’ imprisonment after all
adjustments.
We conclude that the district court properly applied the cross reference under
§ 2K2.1(c)(1). The guideline states that it applies “[i]f the defendant used or
possessed” the firearm. USSG § 2K2.1(c)(1) (emphasis added). By its plain terms,
1
The Honorable Leonard T. Strand, Chief Judge, United States District Court
for the Northern District of Iowa.
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the guideline extends beyond “use” to “possession,” as long as the possession is “in
connection with the commission” of another offense. The guideline commentary
specifies that the cross reference applies “in the case of a drug trafficking offense in
which a firearm is found in close proximity to drugs, drug-manufacturing materials,
or drug paraphernalia.” USSG § 2K2.1, comment. (n.14(B)). This commentary fits
Sewalson’s case precisely. According to the plain meaning of § 2K2.1(c), as
explained more specifically by the commentary, active use of the firearm is not
required for application of the cross reference.
Sewalson relies on United States v. Myers, 112 F.3d 406 (9th Cir. 1997), where
the court concluded that § 2K2.1(c) applied only when a firearm is “actually used”
in connection with the commission of another offense. Id. at 411. The Ninth Circuit
perceived a difference in meaning between § 2K2.1(b)(5) (now (b)(6)) and
§ 2K2.1(c)(1). The former assessed a four-level increase when a firearm was
possessed “in connection with another felony offense,” and the latter called for a
cross reference when a firearm was possessed “in connection with the commission . . .
of another offense.” The Ninth Circuit thought the words “the commission of” in
§ 2K2.1(c) implied a requirement that the firearm was “actually used” in another
offense, while the four-level increase under § 2K2.1(b)(5) applied in a case of
possession. 112 F.3d at 410-11. But see United States v. Varela, 586 F.3d 1249,
1253-54 (10th Cir. 2009).
We believe that the conclusion in Myers is contrary to the plain meaning of the
guideline. The cross reference applies when a gun is “used” or “possessed.” And a
firearm may be possessed in connection with the commission of a drug trafficking
offense even if the gun is not actively employed—possession of a handgun for
protection of drugs and drug proceeds is one ready example. See United States v.
Stobaugh, 420 F.3d 796, 802 (8th Cir. 2005). We note also that the Sentencing
Commission, after Myers, amended the guideline commentary to specify that both
subsections (b)(6) and (c)(1) apply in the case of a drug trafficking offense when a
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gun is found in close proximity to drugs. USSG App. C, Amend. 691 (Nov. 1, 2006).
The authoritative commentary eliminates any ambiguity that might have existed when
Myers was decided. See Stinson v. United States, 508 U.S. 36, 38 (1993).
The judgment of the district court is affirmed.
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