United States v. Nichols ( 2006 )

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA,  No. 05-30503
Plaintiff-Appellee, D.C. No.
v.  CR-05-00083-
KEVIN WESLEY NICHOLS, JLQ/CI
Defendant-Appellant.
 OPINION
Appeal from the United States District Court
for the Eastern District of Washington
Justin L. Quackenbush, Senior Judge, Presiding
Argued and Submitted
July 24, 2006—Seattle, Washington
Filed October 6, 2006
Before: J. Clifford Wallace, Kim McLane Wardlaw and
Raymond C. Fisher, Circuit Judges.
Opinion by Judge Fisher;
Concurrence by Judge Wallace
17393
17396 UNITED STATES v. NICHOLS
COUNSEL
Philip E. Nino, Spokane, Washington, for the defendant-
appellant.
Earl A. Hicks, Assistant United States Attorney, Spokane,
Washington, for the plaintiff-appellee.
OPINION
FISHER, Circuit Judge:
Kevin Nichols appeals his 57-month sentence following his
guilty plea conviction for being a felon in possession of a fire-
arm, in violation of 18 U.S.C. § 922(g)(1). We have jurisdic-
tion under 28 U.S.C. § 1291.
Nichols challenges the district court’s enhancement of his
base offense level under U.S.S.G. § 2K2.1(b)(5), which pro-
vides for a four-level increase “[i]f the defendant used or pos-
sessed any firearm . . . in connection with another felony
offense.” He argues that this provision applies only to fire-
arms listed in the count of conviction or underlying indict-
ment. Because his two-count federal indictment did not list
UNITED STATES v. NICHOLS 17397
the firearm he used in connection with a prior felony assault,
Nichols contends that the district court erred in increasing his
offense level under § 2K2.1(b)(5). Nichols also argues that his
sentence was unreasonable.
We affirm the district court’s application of § 2K2.1(b)(5),
because Nichols’ use and possession of the gun during the
assault constitutes relevant conduct under U.S.S.G. § 1B1.3.
We further hold that Nichols’ sentence was not unreasonable,
and therefore affirm his sentence.
I. Factual and Procedural Background
On July 19, 2004, Nichols displayed a Glock brand hand-
gun while threatening to kill another person in Spokane,
Washington. The victim informed local police that Nichols
could be found at Dennis Sinclair’s residence. Sinclair told
the investigating officers that Nichols had arrived at his home
shortly after threatening the victim and had deposited firearms
in Sinclair’s girlfriend’s safe. After obtaining consent to
search the safe, the police seized a .380 caliber Sterling Model
400 handgun and a Lorcin Model L-380 semiautomatic hand-
gun, both of which were reported stolen in late June 2004.
The police also found a stolen Glock Model 19 9mm handgun
in a laundry basket located in a bedroom in Sinclair’s resi-
dence.
Two weeks later, based upon a separate investigation con-
ducted by the United States Secret Service, officers from the
Bureau of Alcohol, Tobacco and Firearms (ATF) searched the
residence of Sinclair’s friend, David Waldvogel, and recov-
ered five additional stolen firearms. According to Waldvogel,
Nichols had instructed his girlfriend to remove the guns from
her residence, where they were being stored, and she in turn
had arranged for Sinclair to remove them. Some time thereaf-
ter, Waldvogel agreed to take the stolen firearms and store
them for Nichols.
17398 UNITED STATES v. NICHOLS
As a result of the July 19 incident, Nichols pled guilty to
third degree assault and second degree unlawful possession of
a firearm — specifically, the Glock — in Spokane County
Superior Court on December 22, 2004. According to the state
court amended information, the firearm used in the assault
was the Glock that police had found in the laundry basket at
Sinclair’s home.
After his state conviction, Nichols informed an ATF agent
that both he and Sinclair were methamphetamine addicts in
the summer of 2004, and that he worked with a burglary ring
that would steal property, including firearms. Nichols further
admitted to taking the Sterling and Lorcin handguns to Sin-
clair’s residence, along with other stolen property. In a subse-
quent interview, Nichols admitted to hiding a Glock Model 19
handgun in the basement of Sinclair’s home after committing
the July 19 assault. He claimed to have purchased the gun
from an unknown individual on the street, and asserted that
police had not recovered this firearm from Sinclair’s home
because his girlfriend had removed it from the basement and
had given it to an individual to whom Nichols reportedly took
stolen property and firearms in exchange for methamphet-
amine. Nichols explained that he ultimately pled guilty in
state court to possessing the Glock found in Sinclair’s home
— even though he had not possessed it during the assault —
because his cousin (whom he did not want to get in trouble)
had taken that particular handgun to Sinclair’s residence.
Nichols does not contest, however, that the gun he used in the
July 19 assault was a Glock.
On April 19, 2005, a federal grand jury returned a two-
count indictment charging Nichols with being a felon in pos-
session of two firearms in violation of 18 U.S.C. § 922(g)
(Count One) and possession of stolen firearms in violation of
18 U.S.C. § 922(j) (Count Two). Count One listed the Sterling
and Lorcin handguns found in Sinclair’s girlfriend’s safe,
while Count Two listed the five firearms recovered from
UNITED STATES v. NICHOLS 17399
Waldvogel’s residence. None of the guns listed in the indict-
ment was a Glock.
Nichols pled guilty to Count One under the terms of a writ-
ten plea agreement, pursuant to which Count Two was dis-
missed. The plea agreement further specified that the parties
agreed to a base offense level of 14 under U.S.S.G.
§ 2K2.1(a)(6), with a two-level increase under § 2K2.1(b)(4)
because the firearms were stolen. The government agreed to
move for a three-level downward adjustment if Nichols timely
accepted responsibility for the offense and provided complete
and accurate information during the sentencing process. The
government also agreed to recommend that the district court
impose a sentence at the low end of the applicable guidelines
range.
However, the parties disagreed as to the applicability of
U.S.S.G. § 2K2.1(b)(5), which is a specific offense character-
istic that provides for a four-level increase “[i]f the defendant
used or possessed any firearm or ammunition in connection
with another felony offense.” The plea agreement noted the
government’s belief that this increase should be added
because Nichols used a firearm during the July 19 felony
assault; Nichols disagreed because the Glock he used was not
listed in the indictment. Notwithstanding this disagreement,
both parties acknowledged that the actual sentence imposed
would be within the sole discretion of the district court and
that the court could “impose any sentence it deems appropri-
ate up to the statutory maximum[ ]” of 10 years in prison.
At the initial sentencing hearing, the district court raised the
possibility of imposing a four-level enhancement under
§ 2K2.1(b)(1)(B) for relevant conduct that included involve-
ment of eight or more weapons. This enhancement was absent
from the plea agreement. In addition, the district court noted
that Nichols had “a common M.O.,” namely, that
in July of 2004, Mr. Nichols was involved in an
ongoing scheme to burglarize houses and steal fire-
17400 UNITED STATES v. NICHOLS
arms, and use those firearms for various purposes
such as sale or barter for drugs, or in the case of that
third degree assault, use of the firearm in connection
with another felony . . . . [T]here’s no question he
possessed a firearm illegally as a convicted felon at
the time he assaulted and threatened to kill the per-
son over some relatively minor dispute.
However, having noted that neither the indictment nor the
plea agreement referred to the Glock used in the assault, the
district court questioned whether that firearm had to be named
in the indictment to sustain a four-level enhancement under
§ 2K2.1(b)(5).1 The court continued the hearing to allow the
parties to review the enhancement issues.
At the second sentencing hearing, Nichols did not dispute
that he possessed or used a Glock 9mm handgun to commit
his prior third degree assault. However, he again objected to
an enhancement under § 2K2.1(b)(5) because the firearm was
not listed in the indictment. In addition, the government stated
that it was no longer pursuing this enhancement and explicitly
recommended a 30-month sentence. Notwithstanding Nich-
ols’ and the government’s positions, the district court found
that a four-level enhancement under § 2K2.1(b)(5) was appro-
priate:
[T]he record is clear here, and it is not disputed, that
Mr. Nichols used a firearm in connection with [the
July 19, 2004 assault], so there is really no dispute
that he used a firearm. The issue is whether or not it
has to be the same firearm as the offense of convic-
1
Similarly, to enhance under § 2K2.1(b)(1) for involvement of more
than eight firearms, the court asked the parties whether the court could
include, as “relevant conduct,” all of the firearms involved in Nichols’
“ongoing course of illegal conduct,” rather than only the two guns named
in the count of conviction. However, Nichols ultimately stipulated to the
facts supporting this enhancement.
UNITED STATES v. NICHOLS 17401
tion, and it is my ruling it does not need to be and,
therefore, I will increase the offense level by 4 pur-
suant to [§ 2K2.1(b)(5)].2
The district court then added another four levels under
§ 2K2.1(b)(1)(B) for relevant conduct that included involve-
ment of eight or more weapons.
As a result of these enhancements, and after a three-level
reduction for acceptance of responsibility and timely entry of
plea, the court determined that Nichols had a total offense
level of 21 and a criminal history category of IV, yielding an
advisory guidelines range of 57-71 months. In imposing Nich-
ols’ sentence, the district court paid special attention to Nich-
ols’ violent behavior and repeated use of deadly weapons,
stating that “a finding could well be made . . . that a category
IV seriously underrepresents, in fact, [Nichols’] true criminal
history.” The court also addressed other potentially mitigating
factors like Nichols’ addiction to methamphetamine and his
cooperation with the government during the proceedings.
Finally, in addressing the government’s recommended sen-
tence, the court made special reference to its post-Booker sen-
tencing obligations, stating that a 30-month sentence “would
be inappropriate in view of the nature of the offense, the advi-
sory Sentencing Guideline Range, the factors set forth in 18
U.S.C. § 3553(a), and the Defendant’s history of on-going
violence including the possession and use of deadly weap-
ons.” Ultimately, the district court sentenced Nichols to a
term of 57 months, the low end of the guidelines range. Nich-
ols timely appealed.
II. Standard of Review
We review a district court’s interpretation of the sentencing
2
The district court noted, however, that the state conviction for third
degree assault properly was not included in Nichols’ criminal history
score.
17402 UNITED STATES v. NICHOLS
guidelines de novo. See United States v. Kimbrew, 406 F.3d
1149, 1151 (9th Cir. 2005). A district court’s application of
the Sentencing Guidelines to the facts of a case is reviewed
for abuse of discretion, and we review a district court’s fac-
tual findings for clear error. Id. at 1151. “[I]f there was no
material error in the district court’s calculation of the appro-
priate Guidelines range,” we examine the “reasonableness of
the overall sentence in light of all the 18 U.S.C. § 3553(a) fac-
tors.” United States v. Cantrell, 433 F.3d 1269, 1280 (9th Cir.
2006).
III. Discussion
A. Four-level enhancement under U.S.S.G. § 2K2.1(b)(5)
Nichols does not dispute the district court’s factual finding
that he used and possessed a Glock 9mm handgun “in connec-
tion with” his prior felony assault. Instead, he argues that the
district court erred in enhancing his sentence under
§ 2K2.1(b)(5) because it misinterpreted the term “any fire-
arm,” which Nichols asserts refers only to the firearms listed
in the federal indictment underlying the conviction upon
which the enhancement is based. To support his position,
Nichols relies on Judge Morris Arnold’s dissenting opinion in
United States v. Mann, which concluded that “the word ‘any’
refers to any firearm that is mentioned in the indictment.” 315
F.3d 1054, 1057 (8th Cir. 2003) (Arnold, J., dissenting).
On appeal, the government responds that the plain meaning
of “any firearm” controls and that a § 2K2.1(b)(5) increase
does not require the firearm to be listed in the indictment. The
government suggests that “any” means just that and further
notes that each of our sister circuits to consider arguments like
Nichols’ have rejected it. See United States v. Brummett, 355
F.3d 343, 345 (5th Cir. 2003) (affirming a § 2K2.1(b)(5)
enhancement for possession of two uncharged firearms);
Mann, 315 F.3d at 1056 (holding that “use of the term ‘any
firearm[ ]’ in § 2K2.1(b)(5) indicates that this guideline
UNITED STATES v. NICHOLS 17403
applies to any firearm and not merely to a particular firearm
upon which the defendant’s felon-in-possession conviction is
based”); United States v. Jardine, 364 F.3d 1200, 1208 (10th
Cir. 2004) (holding that § 2K2.1(c)(1), which includes the
language “used or possessed any firearm,” applies to “any
firearm or ammunition, including that firearm or ammunition
used by a defendant in connection with another offense, even
if different from the particular firearm or ammunition upon
which defendant’s felon-in-possession conviction is based”),
judgment vacated on other grounds by Jardine v. United
States, 543 U.S. 1102 (2005) . The district court found these
cases persuasive and expressly relied on them in applying the
enhancement.
Although the government focuses solely on the plain mean-
ing of “any firearm” to support the district court’s enhance-
ment, “we may affirm on any ground supported by the record,
even if it differs from the rationale of the district court.”
Moran v. McDaniel, 80 F.3d 1261, 1268 (9th Cir. 1996)
(internal quotation marks omitted). In this case, we need not
determine whether the plain meaning of “any firearm” con-
trols, because Nichols’ possession of the Glock constitutes
relevant conduct under the Guidelines and the district court
therefore properly enhanced Nichols’ sentence. See U.S.S.G.
§ 1B1.3(a)(2).3
3
We note that our sister circuits faced with a challenge similar to Nich-
ols’ did not address the relevant conduct issue and instead permitted appli-
cation of a § 2K2.1(b)(5) enhancement for prior conduct that may not have
been relevant to the instant offense. Cf. Mann, 315 F.3d at 1056; United
States v. Davis, 360 F.3d 901, 903-04 (8th Cir. 2004); Jardine, 364 F.3d
at 1206-08. However, here Nichols’ possession of the Glock was relevant
to the underlying federal offense and we therefore need not address
whether an enhancement would be proper in a case where the prior con-
duct was unrelated.
Judge Wallace suggests that like the dissent in Mann, we read “any fire-
arm” as meaning “a firearm mentioned in the indictment,” and thereby
contravene the plain meaning of the statute. Not so. We merely read
§ 2K2.1(b)(5) in conjunction with § 1B1.3, the Guidelines provision that
explains how specific offense characteristics like 2K2.1(b)(5) “shall be
determined.” Moreover, just because Nichols and the government ignore
the relevant conduct provision does not prevent us from relying on it to
decide this case. See Moran, 80 F.3d at 1268.
17404 UNITED STATES v. NICHOLS
1. Relevant Conduct
[1] Relevant conduct under U.S.S.G. § 1B1.3(a)(2) encom-
passes specific offense characteristics of a defendant’s acts
that “were part of the same course of conduct or common
scheme or plan as the offense of conviction.” Application note
8 to § 1B1.3 provides two examples demonstrating when a
prior offense can and cannot be considered part of the same
course of conduct or common scheme:
For the purposes of subsection (a)(2), offense con-
duct associated with a sentence that was imposed
prior to the acts or omissions constituting the instant
federal offense (the offense of conviction) is not con-
sidered as part of the same course of conduct or
common scheme or plan as the offense of convic-
tion.
Examples: (1) The defendant was convicted for the
sale of cocaine and sentenced to state prison. Imme-
diately upon release from prison, he again sold
cocaine to the same person, using the same accom-
plices and modus operandi. The instant federal
offense (the offense of conviction) charges this latter
sale. In this example, the offense conduct relevant to
the state prison sentence is considered as prior crimi-
nal history, not as part of the same course of conduct
or common scheme or plan as the offense of convic-
tion. . . . (2) The defendant engaged in two cocaine
sales constituting part of the same course of conduct
or common scheme or plan. Subsequently, he is
arrested by state authorities for the first sale and by
federal authorities for the second sale. He is con-
victed in state court for the first sale and sentenced
to imprisonment; he is then convicted in federal
court for the second sale. In this case, the cocaine
sales are not separated by an intervening sentence.
Therefore, under subsection (a)(2), the cocaine sale
UNITED STATES v. NICHOLS 17405
associated with the state conviction is considered as
relevant conduct to the instant federal offense. The
state prison sentence for that sale is not counted as
a prior sentence; see § 4A1.2(a)(1).
U.S.S.G. § 1B1.3(a)(2), cmt. 8 (emphasis added).
[2] As the PSR explicitly noted, Nichols’ possession of the
Glock — which he possessed contemporaneously with the
Sterling and the Lorcin — qualified as relevant conduct under
example 2 of application note 8, because “it is related to the
offense conduct for the instant federal offense.”4 Application
note 9 supports our conclusion that Nichols’ possession of the
Glock was “part of the same course of conduct or common
scheme or plan” as his federal offense of conviction. U.S.S.G.
§ 1B1.3(a)(2). That note explains that “[f]or two or more
offenses to constitute part of a common scheme or plan, they
must be substantially connected to each other by at least one
common factor, such as common victims, common accom-
plices, common purpose, or similar modus operandi.”
§ 1B1.3, cmt. 9(A). “Offenses that do not qualify as part of a
common scheme or plan may nonetheless qualify as part of
the same course of conduct if they are sufficiently connected
or related to each other as to warrant the conclusion that they
are part of a single episode, spree, or ongoing series of
offenses.” Id. at cmt. 9(B). The determining factors are “the
degree of similarity of the offenses, the regularity (repetitions)
of the offenses, and the time interval between the offenses.”
Id.
[3] In this case, and as the district court correctly found,
Nichols’ possession of all of the stolen firearms stems from
4
As noted previously, Nichols now claims that the Glock found in Sin-
clair’s laundry basket during the July 19 search was not the Glock that he
used to assault his victim. However, not only did the state court amended
information note that the recovered Glock was the same one used in the
assault, but Nichols pled guilty to possessing that particular pistol.
17406 UNITED STATES v. NICHOLS
the same common and ongoing scheme — a
methamphetamine-linked burglary ring that trafficked in
stolen firearms. His possession of the Sterling, Lorcin and
Glock qualify as the same course of conduct because there is
“sufficient similarity and temporal proximity [among each
possession] to reasonably suggest that [the] repeated instances
of criminal behavior constitute a pattern of criminal conduct.”
United States v. Hahn, 960 F.2d 903, 910 (9th Cir. 1992)
(internal quotation marks omitted). Not only did Nichols pos-
sess all three firearms when he committed the July 19 assault
— indeed, he was charged in state court with unlawful pos-
session of all three guns — but he also fled to Sinclair’s house
and hid the guns after committing the assault.
Similarly, Count One of Nichols’ federal felon-in-
possession charge arises out of the assault and his subsequent
arrest, and Nichols admitted that he regularly possessed stolen
weapons. Given this evidence, we cannot say that the district
court abused its discretion in applying § 2K2.1(b)(5) to
enhance Nichols’ offense level. Cf. Brummett, 355 F.3d at
345 (holding that the defendant’s possession of four firearms
on three separate occasions within a nine month period “per-
mits a conclusion that the firearms possessions were part of
an ongoing series of offenses,” and affirming the district
court’s determination that “all [four] instances of firearm pos-
session . . . were relevant conduct in relation to [the defen-
dant’s] offense of conviction,” even though only two of the
firearms were listed in the indictment); United States v. San-
toro, 159 F.3d 318, 321 (7th Cir. 1998) (affirming the district
court’s findings of relevant conduct and enhancement deter-
minations under § 2K2.1(b)(1) where a defendant had pos-
sessed an uncharged assault rifle “within a six to nine month
period” of his arrest for possession of two other guns); United
States v. Windle, 74 F.3d 997, 1000-01 (10th Cir. 1996) (hold-
ing that a pattern of possessing illegal firearms over a four to
five month period is sufficient to constitute the “same course
of conduct”); United States v. Powell, 50 F.3d 94, 104 (1st
Cir. 1995) (holding that “the contemporaneous, or nearly con-
UNITED STATES v. NICHOLS 17407
temporaneous, possession of uncharged firearms is . . . rele-
vant conduct in the context of a felon-in-possession
prosecution”).5
[4] Because Nichols’ possession of the Glock during and
after the assault constitutes relevant conduct under § 1B1.3,
we hold that the district court properly enhanced his sentence
under § 2K2.1(b)(5).6
B. Reasonableness of Nichols’ sentence
Although Nichols asserts that his 57-month sentence was
unreasonable, he fails to explain why or how this is so.
Instead, he provides a number of reasons why he believes —
as the government did at sentencing — that a 30-month sen-
tence would have been reasonable.7 However, the question
before us is not the reasonableness of Nichols’ and the gov-
ernment’s requested sentence, but rather whether the “ulti-
mate sentence” imposed is reasonable in light of the § 3553(a)
factors. See Cantrell, 433 F.3d at 1279 (emphasis added).
5
Nichols’ possession of the Glock may also have constituted relevant
conduct under § 1B1.3(a)(1)(A) as an act “committed . . . by the defendant
. . . that occurred during the commission of the offense of conviction . . . .”
We do not need to resolve this question, however.
6
Ordinarily, we would proceed to a second inquiry after determining
that the prior felony offense constituted relevant conduct, namely, whether
the defendant used or possessed the firearm “in connection with another
felony.” See U.S.S.G. § 2K2.1(b)(5) (emphasis added). This inquiry
requires us to determine whether the defendant used or possessed the gun
“in a manner that permits an inference that it facilitated or potentially
facilitated — i.e., had some potential emboldening role” — in the defen-
dant’s felonious conduct. United States v. Routon, 25 F.3d 815, 819 (9th
Cir. 1994) (emphasis added). However, we need not reach this issue,
because Nichols does not dispute that he used the Glock in connection
with his prior felony assault.
7
Although the government agreed with Nichols on this point, at no point
did the government concede that a within-guidelines sentence would be
unreasonable.
17408 UNITED STATES v. NICHOLS
[5] Section 3553(a) states that a district court should
impose a sentence “sufficient, but not greater than necessary”
to “reflect the seriousness of the offense, to promote respect
for the law, and to provide just punishment for the offense; to
afford adequate deterrence to criminal conduct; to protect the
public from further crimes of the defendant . . . ; and to pro-
vide the defendant with needed . . . training, medical care, or
other correctional treatment . . . .” 18 U.S.C. § 3553(a)(2).
The district court also should weigh factors such as “the
nature and circumstances of the offense and the history and
characteristics of the defendant;” “the kinds of sentences
available;” “the [applicable] sentencing range[;]” the articu-
lated policy goals of the guidelines; “the need to avoid unwar-
ranted sentence disparities” among similar defendants; and
“the need to provide restitution to any victims of the offense.”
§ 3553(a)(1), (3) (7). “To comply with the requirements of
Booker, the district court must have sufficiently considered
the Guidelines as well as the other factors listed in § 3553(a).
This requirement does not necessitate a specific articulation of
each factor separately, but rather a showing that the district
court considered the statutorily-designated factors in imposing
a sentence.” United States v. Knows His Gun, 438 F.3d 913,
918 (9th Cir. 2006).
[6] Here, the record demonstrates both that the district court
sufficiently considered these factors and that Nichols’ sen-
tence was not unreasonable.
[7] First, as defense counsel conceded at sentencing, Nich-
ols’ criminal history is “horrendous.” Although only 22 years
old, Nichols has numerous prior convictions for crimes
involving illegal drug possession, assault and illegal firearm
possession, acts and threats of violence and the use of deadly
weapons (including firearms, knives and brass knuckles). The
district court viewed Nichols’ history as “one of complete dis-
regard of the rules that we all live by,” noting in particular
Nichols’ 2003 assault conviction for throwing an eight-year
old child across a room and slamming his head into a wall.
UNITED STATES v. NICHOLS 17409
This “constant history of violence and . . . violation of court
orders” indicated to the court that “the protection of society
may well mandate that Mr. Nichols be incarcerated for a very
long period of time,” a statement that reflects the court’s con-
sideration of the need for the sentence to reflect the serious-
ness of the offense, to promote respect for the law and to
protect the public from further crimes of violence.8
In addition, the district court emphasized the nature and cir-
cumstances of the instant offense, which was part of a large
burglary ring, but at the same time considered Nichols’ forth-
rightness in admitting to the crime and the period of time nec-
essary to afford him with needed educational, mental health
and drug treatment. Moreover, the record demonstrates that
the district court considered the government’s recommended
sentence.9 After considering these factors, the district court
8
Although we agree with most of the district court’s observations, we
disagree that Nichols presents “the perfect example” of why criminal
defendants should be sentenced to “compulsory military training.” As the
court aptly put it, our criminal justice system should teach convicted crim-
inals that “kicking people when they are down isn’t tolerated in our soci-
ety.” However, sending to the military a methamphetamine addict with a
disturbing history of violence toward vulnerable and weaker individuals
hardly seems an appropriate way to achieve that goal. See, e.g., Jim Dwyer
& Robert F. Worth, Accused G.I. Was Troubled Long Before Iraq, N.Y.
Times, July 14, 2006, at A1 (reporting on criminal history of an American
soldier accused of raping and killing civilians in Iraq).
9
For example, after the government stated that Nichols’ youth and
addiction to methamphetamine at a very young age counseled against a
sentence within the advisory guidelines range, the district court concluded:
I am absolutely convinced that the appropriate sentence in this
case is the high end of the guidelines, 71 months, but I have lis-
tened to [the prosecutor], who has been ultimately fair with you,
Mr. Nichols, and were it not for [the prosecutor], I would give
you the high end of the guidelines. [B]ut because of what
[defense counsel] has said and what [the prosecutor] says, I am
going to sentence you to the low end of the guidelines and that
is not the appropriate sentence, but it is going to be the sentence
because of what counsel have recommended to me . . . .
17410 UNITED STATES v. NICHOLS
imposed a sentence at the bottom of the advisory guideline
range.
[8] The district court’s approach was reasoned and
addressed factors specified in § 3553(a). More importantly,
Nichols has not demonstrated that the district court over-
looked any significant factor, gave improper weight to any
factor or otherwise imposed an unreasonable sentence. It may
be that a 30-month sentence also would have been reasonable,
but the issue here is whether the sentence imposed was unrea-
sonable. It was not.
IV. Conclusion
[9] Because Nichols’ possession and use of the Glock
handgun in connection with his prior felony assault was rele-
vant conduct under § 1B1.3, the district court did not err in
applying a four-level increase under U.S.S.G. § 2K2.1(b)(5).
The ultimate sentence imposed was not unreasonable. We
therefore AFFIRM the sentence.
AFFIRMED.
WALLACE, Circuit Judge, concurring:
Although I concur with the result reached by the majority,
I write separately because I would follow the Eighth Circuit
in holding that the firearm used for enhancement under
U.S.S.G. § 2K2.1(b)(5) need not be mentioned in the indict-
ment. The issue raised by the parties is whether the plain
meaning of “any firearm” controls, and not whether posses-
sion of the Glock constituted relevant conduct. Thus, I would
affirm following the Eighth Circuit’s statutory interpretation,
without reaching the question of whether U.S.S.G.
§ 1B1.3(a)(2) serves as an alternative to the application of
section 2K2.1(b)(5).
UNITED STATES v. NICHOLS 17411
“If the language of a guideline is unambiguous, its plain
meaning controls.” United States v. Gonzalez, 262 F.3d 867,
869 (9th Cir. 2001). The guideline states that a defendant’s
use or possession of “any firearm . . . in connection with
another felony offense” is grounds for enhancement. U.S.S.G.
§ 2K2.1(b)(5) (2005) (emphasis added). Reading the phrase
“any firearm” as meaning “a firearm mentioned in the indict-
ment” contravenes the plain meaning of the statute.
In United States v. Mann, 315 F.3d 1054, 1056-57 (8th Cir.
2003), the Eighth Circuit considered and rejected the argu-
ment that “any firearm” under section 2K2.1(b)(5) referred to
a firearm mentioned in the indictment. The court pointed out
that such a reading would have the odd consequence of “bene-
fit[t]ing those criminals . . . who have the presence of mind
to dispose of whatever firearm they used or possessed in con-
nection with another felony before being apprehended.” Id. at
1057. See also United States v. Jardine, 364 F.3d 1200, 1208
(10th Cir. 2004) (relying on Mann and holding that enhance-
ment under U.S.S.G. § 2k2.1(c)(1) applies to “any firearm or
ammunition, . . . even if different from the particular firearm
or ammunition upon which defendant’s . . . conviction is
based”) (later vacated and remanded on other grounds);
United States v. Brummett, 355 F.3d 343, 345 (5th Cir. 2003)
(allowing enhancement for firearms not charged in the indict-
ment). The language of the guidelines is unambiguous. The
Eighth Circuit’s reasoning in Mann is persuasive, and I con-
clude that the phrase “any firearm” means any firearm, and
not “a firearm mentioned in the indictment.” The district court
correctly held the same opinion and should be affirmed on
that basis. The majority disagrees with the district court hold-
ing — I do not.
The majority searches for an alternative method to affirm
and rests on a theory embracing relevant conduct under
U.S.S.G. § 1B1.3(a)(2). Since the majority believes Nichols’s
possession of the Glock during and after the assault consti-
tuted relevant conduct under section 1B1.3, the majority holds
17412 UNITED STATES v. NICHOLS
that the district court properly enhanced his sentence under
section 2K2.1(b)(5). This will no doubt come as a surprise to
the parties, who never raised the issue. The issue has never
been briefed. There is an alternative: I would affirm the dis-
trict court based on the Eighth Circuit’s reasoning in Mann.