United States v. Valenzuela ( 2007 )

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA,  No. 06-30398
Plaintiff-Appellee,
v.  D.C. No.
CR-04-00442-ALH
JOSE VALENZUELA,
OPINION
Defendant-Appellant.

Appeal from the United States District Court
for the District of Oregon
Ancer L. Haggerty, District Judge, Presiding
Argued and Submitted
March 9, 2007—Portland, Oregon
Filed August 3, 2007
Before: Ronald M. Gould, Richard A. Paez, and
Johnnie B. Rawlinson, Circuit Judges.
Opinion by Judge Gould
9303
9306 UNITED STATES v. VALENZUELA
COUNSEL
Gerald Needham, Assistant Federal Public Defender, Port-
land, Oregon, for appellant Jose Valenzuela.
Thomas H. Edmonds, Assistant United States Attorney, Port-
land, Oregon, for appellee United States of America.
OPINION
GOULD, Circuit Judge:
United States Sentencing Guidelines § 2K2.1(b)(5) (2005)
enables a district court to increase a defendant’s base offense
level by four if the defendant possessed or used a firearm in
connection with another felony offense. Application Note 151
to § 2K2.1(b)(5) precludes such an enhancement when the
other felony offense involved a firearms trafficking or fire-
arms possession offense. Here, Jose Valenzuela
(“Valenzuela”) used a shotgun to embolden his possession
and sale of stolen property. Valenzuela appeals the district
court’s enhancement of his sentence under § 2K2.1(b)(5)
arguing that his other felony offense was a firearms traffick-
ing or possession offense. We have jurisdiction under 28
U.S.C. § 1291, we disagree with Valenzuela, and we affirm
the district court’s sentence.
I
On August 31, 2004, at about 10:30 a.m., Officer Araiza
(“Araiza”) saw Valenzuela driving a motor vehicle in Wood-
burn, Oregon. Araiza knew Valenzuela had a suspended driv-
1
The relevant Application Note in the 2005 version of the Sentencing
Guidelines was 15, however it was listed as Application Note 18 in prior
versions of the Sentencing Guidelines, and Application Note 14 in the
2006 Sentencing Guidelines.
UNITED STATES v. VALENZUELA 9307
er’s license, was wanted for parole violations, and was a
suspect in several recent burglaries and vehicle thefts. Araiza
stopped Valenzuela, and Officer Tony Rodriguez
(“Rodriguez”) responded to assist.
While Araiza was speaking with Valenzuela on the driver’s
side, Rodriguez approached Valenzuela’s vehicle from the
passenger side, stopping at a point where he could see the
driver’s side floorboard. On that floorboard, Rodriguez spot-
ted .22 caliber shells. Rodriguez then saw Valenzuela reach
down to the floorboard, where Rodriguez saw a pistol-grip.
Rodriguez immediately ordered Valenzuela to put his hands
in the air and to exit the vehicle. After Valenzuela was
arrested, Rodriguez found a pistol-grip shotgun on the driv-
er’s side floorboard. Inside the vehicle and its trunk, the
police officers also found several gun holsters, a gun case, a
handgun, several rifles and bb guns, a duffel bag, clothing, a
wallet, a camcorder, a backpack, and other shooting equip-
ment.
After being advised of his rights, and waiving them, Valen-
zuela told the officers that: (1) about one hour before he was
stopped, he had committed a burglary where he obtained the
firearms and property in his vehicle; (2) after the burglary he
sold a stolen firearm holster and a stolen .22 caliber rifle to
two different friends; and (3) he was “on his way to get rid
of the rest of the property” when he was stopped.
On March 6, 2006, Valenzuela pled guilty to being a felon
in possession of a firearm. Sentencing took place on June 5,
2006. The Government argued that the pistol-grip shotgun
that Rodriguez found near Valenzuela’s feet emboldened him
to commit the crime of sale or attempted sale of stolen prop-
erty, or possession of stolen property. Valenzuela maintained
that the burglary and the sale and possession of stolen fire-
arms were not distinct in conduct or time sufficient to support
the four-level enhancement. The district court applied
9308 UNITED STATES v. VALENZUELA
§ 2K2.1(b)(5),2 increasing Valenzuela’s base offense level by
four. The district court sentenced Valenzuela to eighty-seven
months, and Valenzuela timely appealed.
II
We must determine the proper standard of review for
Valenzuela’s argument. Valenzuela contends, raising this
argument for the first time on appeal, that Application Note
15 precludes the district court from applying § 2K2.1(b)(5)
because the other felony offense that he committed was a fire-
arms trafficking or possession offense.
If a defendant does not raise an objection in the district
court, but does so on appeal, we review that argument for
plain error. See Fed. R. Crim. P. 52(b); United States v.
Olano, 507 U.S. 725, 730-36 (1993); United States v. Santi-
ago, 466 F.3d 801, 803 (9th Cir. 2006). Under the plain error
standard, we will affirm Valenzuela’s sentence unless there
has been: (1) error, (2) that was plain, (3) that affected sub-
stantial rights, and (4) that seriously affected the fairness,
integrity, or public reputation of the judicial proceedings. See
United States v. Recio, 371 F.3d 1093, 1099-1100 (9th Cir.
2004). However, we review “the district court’s interpretation
of the Sentencing Guidelines de novo.” United States v. Kim-
brew, 406 F.3d 1149, 1151 (9th Cir. 2005).3
2
Both Valenzuela and the Government, and the relevant sentencing doc-
uments in this case refer to § 2K2.1(b)(5) as the guideline provision in
question. The relevant provision in the 2006 Sentencing Guidelines is
§ 2K2.1(b)(6), but the amendment that modified the 2005 version of
§ 2K2.1(b)(5), Amendment 691, was not effective until November 1,
2006. See U.S. Sentencing Guidelines Manual supp. to app. C 177 (2006).
Because Valenzuela was sentenced before the effective date of Amend-
ment 691, § 2K2.1(b)(5), and all applicable commentary of the 2005
Guidelines apply to and control this appeal.
3
De novo review also applies to the argument that Valenzuela raised
before the district court that the § 2K2.1(b)(5) enhancement should not
apply because there was no break in conduct or time between the burglary,
which included the taking of the firearms and other property, and the sub-
sequent sale of the rifle and holster.
UNITED STATES v. VALENZUELA 9309
III
This case, one of first impression for us in interpreting
§ 2K2.1(b)(5), presents four sub-issues: (1) the definition of
“another felony offense” in § 2K2.1(b)(5); (2) whether Appli-
cation Note 15 to § 2K2.1(b)(5) precludes the use of firearms
trafficking and possession offenses as “another felony
offense” for enhancement under § 2K2.1(b)(5); (3) the test for
determining whether a defendant’s other felony offense is a
firearms trafficking or possession offense; and (4) whether the
district court plainly erred by enhancing Valenzuela’s sen-
tence under § 2K2.1(b)(5). We address each issue in turn.
[1] In the 2005 Sentencing Guidelines Manual,
§ 2K2.1(b)(5) reads in pertinent part: “If the defendant used
or possessed any firearm or ammunition in connection with
another felony offense; or possessed or transferred any fire-
arm or ammunition with knowledge, intent, or reason to
believe that it would be used or possessed in connection with
another felony offense, increase by 4 levels.” Id.
We have previously defined the terms “use,” “possession,”
and the phrase “in connection with.” In United States v.
Polanco, 93 F.3d 555 (9th Cir. 1996), we applied the United
States Supreme Court’s definition of “use” in Bailey v. United
States, 516 U.S. 137 (1995),4 and held that “use” in
§ 2K2.1(b)(5) “ ‘requires evidence sufficient to show an
active employment of the firearm by the defendant, a use that
makes the firearm an operative factor in relation to the predi-
cate offense.’ ”5 Polanco, 93 F.3d at 565 (quoting Bailey, 516
4
In Bailey, the Supreme Court defined the term “use” in the context of
18 U.S.C. § 924(c)(1). 516 U.S. at 138.
5
In Bailey, the Supreme Court provided a non-exhaustive list of exam-
ples that satisfy the “active employment” test for “use”: “brandishing, dis-
playing, bartering, striking with, and, most obviously, firing or attempting
to fire, a firearm.” Id. at 148. Conversely, the Supreme Court detailed that
“storage” or “mere possession of a firearm . . . at or near” a crime site does
not constitute use, nor would a defendant’s concealment of a firearm
nearby so it could be used in case there was a confrontation. Id. at 149.
9310 UNITED STATES v. VALENZUELA
U.S. at 143). We stressed that “ ‘the inert presence of a fire-
arm, without more, is not enough to trigger’ ” the “use” clause
of § 2K2.1(b)(5). Id. (quoting Bailey, 516 U.S. at 143).
[2] In United States v. Routon, 25 F.3d 815 (9th Cir. 1994),
we defined the term “possession,” in § 2K2.1(b)(5), stating
that “the prosecution will have to make a greater showing
than a defendant’s mere possession of a firearm.” Id. at 819.
We held that possession requires “that the firearm was pos-
sessed in a manner that permits an inference that it facilitated
or potentially facilitated—i.e., had some potential embolden-
ing role in—a defendant’s felonious conduct” to obtain a sen-
tence enhancement under § 2K2.1(b)(5). Id. And in Polanco,
we held that the phrase “in connection with” in § 2K2.1(b)(5)
“requires proof of a ‘connection’ between the use or posses-
sion of the firearm and the underlying offense.” Polanco, 93
F.3d at 565-66.
[3] We have not, however, previously defined the term “an-
other felony offense” for § 2K2.1(b)(5) purposes. Application
Note 4 defines “[f]elony offense” as “any offense (federal,
state, or local) punishable by imprisonment for a term exceed-
ing one year, whether or not a criminal charge was brought,
or conviction obtained.” U.S. Sentencing Guidelines Manual
§ 2K2.1 cmt. n.4. This definition, however, literally would
seem to allow a sentence enhancement for another felony
offense that is a lesser included offense of the offense of con-
viction, or for felony offenses that are the same offense as the
predicate offense. Many courts addressing this issue have
rejected the position that “another felony offense” applies to
any felony offense. See United States v. Lloyd, 361 F.3d 197,
200 (3d Cir. 2004) (reasoning that to allow a sentence
enhancement under § 2K2.1(b)(5) for “any” felony “would
make little sense”); United States v. Fenton, 309 F.3d 825,
827 (3d Cir. 2002) (same); United States v. Sanders, 162 F.3d
396, 400 (6th Cir. 1998) (reasoning that to allow a sentence
enhancement for a state law offense based on the same con-
duct as the federal predicate offense would render “the word
UNITED STATES v. VALENZUELA 9311
‘another’ . . . superfluous, and of no significance to the appli-
cation of” § 2K2.1(b)(5) (footnote omitted)); United States v.
Szakacs, 212 F.3d 344, 350 (7th Cir. 2000) (same).
[4] To resolve this problem, some of our sister circuits have
adopted the Blockburger6 test to determine if the second
offense is “another felony offense.” See United States v.
Navarro, 476 F.3d 188, 196 (3d Cir. 2007); United States v.
Blount, 337 F.3d 404, 408 (4th Cir. 2003); see also Lloyd, 361
F.3d at 204 (applying the Blockburger test to determine if
assault and felon in possession of a firearm are the same
offense); United States v. Emerson, 432 F. Supp. 2d 128, 139
(D. Me. 2006) (applying the Blockburger test as one part of
a three-part analysis to determine if Emerson committed
another felony offense for § 2K2.1(b)(5) enhancement pur-
poses). The Blockburger test, originally applied in the double
jeopardy context, provides that two offenses are separate if
they both require proof of an element that the other does not.
See Blockburger, 284 U.S. at 304. Using this test, a court
would ask if the other felony offense and the firearms offense
each contain an element different from the other. If they do,
then the second felony offense may be used as “another fel-
ony offense” to enhance a defendant’s sentence under
§ 2K2.1(b)(5).
Other courts have required that there be a separation of
time or conduct between the firearms offense and the other
felony offense. See Fenton, 309 F.3d at 828; Szakacs, 212
F.3d at 351; United States v. McDonald, 165 F.3d 1032, 1037
(6th Cir. 1999), abrogated on other grounds by United States
v. Jackson-Randolph, 282 F.3d 369, 389 (6th Cir. 2002);
Sanders, 162 F.3d at 400. These cases involved an unarmed
defendant who broke into a pawn shop or licensed firearms
shop and stole firearms and other items. In each case, the
defendant’s predicate felony was felon in possession of a fire-
arm, and the Government sought to use the burglary, where
6
Blockburger v. United States, 284 U.S. 299 (1932).
9312 UNITED STATES v. VALENZUELA
the defendant stole the firearm(s) in the first place, to enhance
the defendant’s sentence under § 2K2.1(b)(5). These cases
held that because there was no distinction in time or conduct
between the burglary and the defendant’s possession of a fire-
arm taken from that burglary, the sentence could not be
enhanced using § 2K2.1(b)(5). See Fenton, 309 F.3d at 828;
McDonald, 165 F.3d at 1037; Sanders, 162 F.3d at 400.
Although the concerns expressed by our sister circuits in
Fenton, Szakacs, McDonald, and Sanders are significant, we
believe that our precedents defining the terms “use” and “pos-
session” for § 2K2.1(b)(5) accomplish the same goal, that a
district court will apply a sentence enhancement under
§ 2K2.1(b)(5) only if there is a separation in time or conduct
between the other felony offense and the predicate felony.
Indeed, there must be some separate conduct or distinction in
time for a defendant to have “used” a firearm within the
meaning of § 2K2.1(b)(5). That is, as we explained in
Polanco, a defendant must actively employ a firearm in con-
nection with another felony. 93 F.3d at 565-66. Likewise, the
“possession” of a firearm implicates § 2K2.1(b)(5) only if it
had some potential to embolden the separate felonious con-
duct, such as if an armed defendant burglarized a pawn shop.
See Szakacs, 212 F.3d at 351 (concluding that “a defendant
who steals a firearm and then . . . robs the liquor store down
the street . . . could receive an enhancement”). Thus, we need
not explicitly adopt the separation in time or conduct element
from Fenton, Szakacs, McDonald, and Sanders because we
already recognize such limits in our interpretation of “use”
and “possession” as employed in § 2K2.1(b)(5).
[5] However, we find persuasive the cases adopting the
Blockburger test to determine initially if the other felony
offense is a distinct felony from the predicate firearms
offense. Applying the Blockburger test will prevent a sen-
tence enhancement for a felony offense that is the same
offense, or a lesser included offense, of the defendant’s predi-
cate felony. We hold that in applying § 2K2.1(b)(5), a district
UNITED STATES v. VALENZUELA 9313
court should use the Blockburger test to ensure that the predi-
cate firearms felony and the other felony offense are separate
offenses. See Navarro, 476 F.3d at 196; Blount, 337 F.3d at
408. Then, the district court must determine if the defendant
used or possessed the firearm in connection with the other fel-
ony offense.7
IV
[6] Apart from this general standard, Application Note 15
restricts the type of felony offenses that a district court may
use to enhance a defendant’s sentence under § 2K2.1(b)(5).
Application Note 15 states:
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. However, where the defen-
dant used or possessed a firearm or explosive to
facilitate another firearms or explosives offense
(e.g., the defendant used or possessed a firearm to
protect the delivery of an unlawful shipment of
explosives), an upward departure under § 5K2.6
(Weapons and Dangerous Instrumentalities) may be
warranted.
U.S. Sentencing Guidelines Manual § 2K2.1 cmt. n.15.
7
Because we so hold, Valenzuela’s argument that there was no break in
conduct or time between the burglary of the firearms and property and the
subsequent sale of the rifle and holster, necessarily fails. As we previously
stated, we think the requirement from Polanco that Valenzuela must have
“actively employed” the firearm, 93 F.3d at 565, or that he must have pos-
sessed the firearm in a way that potentially emboldened the other felony
offense, see Routon, 25 F.3d at 819, serve the same purpose as the separa-
tion in time and conduct element from our sister circuits. Thus, we analyze
Valenzuela’s use or possession of the firearm under our established prece-
dent. See discussion infra Section VI.
9314 UNITED STATES v. VALENZUELA
It is well known that “commentary in the Guidelines Man-
ual that interprets or explains a guideline is authoritative
unless it violates the Constitution or a federal statute, or is
inconsistent with, or a plainly erroneous reading of, that
guideline.” Stinson v. United States, 508 U.S. 36, 38 (1993).
When interpreting the Sentencing Guidelines, we apply “the
rules of statutory construction.” United States v. Robinson, 94
F.3d 1325, 1328 (9th Cir. 1996). The plain meaning of unam-
biguous language in a guideline provision controls. Id.
[7] Application Note 15 is explicit: firearms trafficking and
possession offenses cannot be used as “another felony
offense” to enhance a defendant’s sentence under
§ 2K2.1(b)(5). A plain reading of Application Note 15
answers the second question in the affirmative, a defendant’s
sentence may not be enhanced under § 2K2.1(b)(5) if the
other felony offense is a firearms trafficking or possession
offense.8
V
How then may a court differentiate between those offenses
that are firearms trafficking or possession offenses, and those
that are not? We adopt the test applied by the Eighth Circuit
in United States v. English, 329 F.3d 615 (8th Cir. 2003): an
offense is a firearms possession or trafficking offense if it
“contains, as an element, the presence of a firearm.” Id. at 618.9
8
Our holding is in accord with our sister circuits that have considered
the same issue. See, e.g., Navarro, 476 F.3d at 192; United States v. Lind-
quist, 421 F.3d 751, 755 (8th Cir. 2005); United States v. Boumelhem, 339
F.3d 414, 427 (6th Cir. 2003); Blount, 337 F.3d at 409.
9
We note, however, that if a prosecutor asserted that a § 2K2.1(b)(5)
enhancement should follow from another felony that did not include the
element of firearms possession or trafficking, but the court viewed the
offense as fundamentally a firearms possession or trafficking offense, the
court might be justified in disallowing the enhancement. However, that
question is not presented in this case and can be reserved for another day.
UNITED STATES v. VALENZUELA 9315
[8] In sum, we adopt a three-part test for a district court to
apply when considering a sentence enhancement under
§ 2K2.1(b)(5). First, the predicate felony and the other felony
offense that the prosecution proffers at sentencing, must be
separate felony offenses under the Blockburger test. See
Navarro, 476 F.3d at 196; Blount, 337 F.3d at 408.
[9] Second, the district court must determine if the other
felony offense is a firearms trafficking or possession offense
by asking whether the other felony offense contains the pos-
session or sale of a firearm as an element. If it does, then that
other felony offense is a firearms possession or trafficking
offense, and cannot be used to enhance a sentence under
§ 2K2.1(b)(5).
[10] Third, the district court must decide if the defendant
used or possessed the firearm in connection with the other fel-
ony offense. A defendant used the firearm if he actively
employed it. See Polanco, 93 F.3d at 565. A defendant pos-
sessed a firearm if it “had some potential emboldening role in
. . . a defendant’s felonious conduct.” Routon, 25 F.3d at 819.
There must be a “ ‘connection’ between the use or possession
of the firearm and the underlying offense.” Polanco, 93 F.3d
at 565-66. If all three requirements are satisfied, a district
court may enhance a defendant’s sentence under
§ 2K2.1(b)(5).
VI
Applying this framework to the facts of Valenzuela’s case,
we hold that the district court properly enhanced Valenzuela’s
sentence four levels under § 2K2.1(b)(5).
The Government sought a § 2K2.1(b)(5) sentence enhance-
ment for Valenzuela’s use of a pistol grip shotgun to
embolden his possession and sale of a stolen firearm and a
stolen firearm holster, and his possession and attempted sale
of the other stolen property in his vehicle. The Government
9316 UNITED STATES v. VALENZUELA
identified two Oregon state criminal offenses that prohibit this
conduct: (1) Oregon Revised Statutes § 164.055(1)(a), posses-
sion of stolen property;10 and (2) Oregon Revised Statute
§ 164.055(1)(c), selling stolen property.11 We analyze a sen-
tence enhancement under § 2K2.1(b)(5) for each offense in
turn.
As stated earlier, the elements of Valenzuela’s predicate
felony, felon in possession of a firearm are: (1) being a con-
victed felon (2) in possession (3) of a firearm. See 18 U.S.C.
§ 922(g)(1). Pertinent to the facts of Valenzuela’s conduct,
the most basic elements of the Oregon crime of possession of
stolen property are: (1) theft (2) of property (3) valued at
more than $200.
10
Oregon Revised Statutes § 164.055(1)(a) states:
A person commits the crime of theft in the first degree if . . . the
person commits theft as defined in ORS 164.015 and . . . [t]he
total value of the property in a single or aggregate transaction is
$200 or more in a case of theft by receiving, and $750 or more
in any other case . . . .
Id. (2005).
Section 164.015, defines theft. In pertinent part, that section states: “A
person commits theft when, with intent to deprive another of property . . .
the person . . . [t]akes, appropriates, obtains or withholds such property
from an owner thereof; or . . . . [c]ommits theft by receiving as provided
in ORS 164.095 . . . .” Or. Rev. Stat. §§ 164.105(1), (5) (2007), as
amended by 2007 Oregon Laws Ch. 71 (S.B. 84).
Section 164.095 defines theft by receiving. That section states: “A per-
son commits theft by receiving if the person receives, retains, conceals or
disposes of property of another knowing or having good reason to know
that the property was the subject of theft.” Or. Rev. Stat. § 164.095(1)
(2004).
11
Oregon Revised Statutes § 164.055(1)(c) (2005) states: “A person
commits the crime of theft in the first degree if, by other than extortion,
the person commits theft as defined in ORS 164.015 and . . . [t]he theft
is theft by receiving committed by buying, selling, borrowing or lending
on the security of the property . . . .”
UNITED STATES v. VALENZUELA 9317
[11] Applying the Blockburger test, felon in possession of
a firearm and possession of stolen property under Oregon law
are separate offenses because they each require proof of an
element that the other does not. Oregon’s possession of stolen
property has theft as an element, and felon in possession of a
firearm has firearm possession as an element, both of which
are different.
[12] Second, under Oregon law, possession of stolen prop-
erty is not a firearms possession or trafficking offense. It does
not contain firearms as an element. Although Valenzuela did
possess several stolen firearms, that was not all the stolen
property he possessed. He also stole several gun holsters, a
gun case, a duffel bag, clothing, a wallet, a camcorder, a back-
pack, and other shooting equipment. Valenzuela’s stolen
property is fairly categorized as exactly that, stolen property,
not simply stolen firearms.12
[13] Third, Valenzuela possessed the pistol grip shotgun in
connection with the state felony of possession of stolen prop-
erty. Valenzuela had the pistol grip shotgun underneath his
seat, within ready reach. With the shotgun in this location, the
district court could reasonably find that the shotgun embold-
ened his possession of the stolen property. We hold that the
other felony offense of possession of stolen property was a
proper state felony offense for the district court to use to
enhance Valenzuela’ sentence under § 2K2.1(b)(5).13
12
Although the Government did not present any evidence at the sentenc-
ing hearing concerning the value of the stolen property, considering the
long list of stolen items, including firearms, we are confident that the
value of the stolen property well exceeded the $200 threshold required by
Oregon Revised Statutes § 164.055(1)(a).
13
Because we uphold the enhancement on the ground that Valenzuela
committed another felony offense when he violated Oregon Revised Stat-
utes § 164.055(1)(a), possession of stolen property, we need not address
whether the second offense asserted by the Government as a basis for the
enhancement, sale of stolen property, would also satisfy the test we have
outlined above.
9318 UNITED STATES v. VALENZUELA
Our conclusion is reinforced by the comparable decisions
of our sister circuits. Notably, in Navarro, a case applying a
similar framework to the one we adopt here, the defendant
was convicted of being a felon in possession of a firearm. 476
F.3d at 190. After his arrest, Navarro confessed to giving
someone crack cocaine in return for the firearm he illegally
possessed. Id. Based on this statement, the district court
enhanced Navarro’s sentence under § 2K2.1(b)(5) for the
other felony offense of drug distribution, in violation of 21
U.S.C. § 841. Id. at 191 n.4. Applying a multi-part test, the
Third Circuit held that the district court properly applied the
four-level enhancement under § 2K2.1(b)(5). Id. at 196. First,
the court applied the Blockburger test and determined that
drug distribution and being a felon in possession of a firearm
were separate offenses. Id. Next, the court asked whether the
second felony offense, drug distribution, “constitut[ed] mere
possession” of a firearm. Id. at 197 n.12. Because the offense
of drug distribution only involved dispensation of drugs,
“without the necessity of something being provided in
return,” Navarro’s possession of the firearm in that transac-
tion was not “an integral aspect of the offense.” Id. at 197.
Finally, the court reasoned that the presence of the firearm
during Navarro’s drug distribution facilitated or had the
potential of facilitating the drug distribution. Id. Having satis-
fied these three questions in the Government’s favor, the court
upheld Navarro’s sentence enhancement under § 2K2.1(b)(5).
Id. at 197-98.
Here, as in Navarro, Valenzuela use of the shotgun to
embolden his other felony offense of possession of stolen
property satisfies our multi-part test. See also United States v.
King, 341 F.3d 503, 506 (6th Cir. 2003); United States v.
Purifoy, 326 F.3d 879, 881 (7th Cir. 2003); Emerson, 432 F.
Supp. 2d at 139 (employing a multi-part test to determine if
a sentence enhancement under § 2K2.1(b)(5) was proper).
VII
We hold that in applying § 2K2.1(b)(5): (1) a district court
should determine under the Blockburger test whether the
UNITED STATES v. VALENZUELA 9319
other felony offense proposed by the Government is a sepa-
rate offense from the predicate felony offense. Next, the dis-
trict court must decide if the defendant actively employed or
possessed the firearm in a manner that emboldened or had the
potential to embolden the other felony offense; (2) Applica-
tion Note 15 prevents the use of firearms trafficking and pos-
session offenses as “another felony offense” to enhance a
defendant’s sentence; (3) firearms trafficking and possession
offenses necessarily contain the sale or possession of firearms
as an element; and (4) the district court properly used
§ 2K2.1(b)(5) to enhance Valenzuela’s sentence.
AFFIRMED.