United States v. Joseph Michael Scolaro, Also Known As, Joseph Michael Pena , 299 F.3d 956 ( 2002 )

HEANEY, Circuit Judge.

Joseph Michael Scolaro was convicted of possession of stolen firearms in violation of 18 U.S.C. § 922(j) and was sentenced to seventy-eight months in prison. Scolaro appeals the district court’s application of a four-level enhancement to his sentence. Because the evidence shows that Scolaro possessed the stolen firearms in connection with the felony offense of aggravated assault with intent to inflict serious bodily injury, Iowa Code § 708.2(1) and (4) (1993), we affirm.

On January 6, 2001, Joseph Michael Sco-laro attended a party at Erik Hennlich’s home. Hennlich unlocked and opened a gun cabinet in his house and allowed the party-goers to take out the guns and admire them. Once the guns were returned to the cabinet, Hennlich noticed that a .380 caliber handgun was missing. Brandon Deverell, a friend of Scolaro’s, had taken the gun and left the house. Hennlich and Scolaro argued about the missing gun. Scolaro subsequently beat Hennlich, tied him up, repeatedly threatened to kill him, and placed him in a closet. Scolaro then broke into the gun cabinet and, with the assistance of others, stole at least thirteen firearms, which he eventually distributed among his acquaintances.

On July 23, 2001, Scolaro pled guilty to a one-count indictment charging possession of stolen firearms in violation of 18 U.S.C. § 922(j) and § 924(a)(2). The sentencing court determined that Scolaro had eight criminal history points, a criminal history category of IV, and an adjusted offense level of 23. In reaching that offense level, the court applied a U.S.S.G. § 2K2.1(b)(5) enhancement because Scolaro committed an assault in connection with his possession of stolen weapons.

We review the district court’s legal conclusion concerning the application of the sentencing enhancement in U.S.S.G. § 2K2.1(b)(5) de novo and its factual findings for clear error. United States v. Chavarria-Cabrera, 272 F.3d 1049, 1050 (8th Cir.2001). U.S.S.G. § 2K2.1(b)(5) states, “[i]f the defendant used or possessed ... or transferred any firearm ... with knowledge, intent, or reason to believe that it would be used or possessed in connection with another felony offense, increase by 4 levels.” U.S.S.G. § lB1.3(a)(l)(A)-(B) provides that a defendant’s relevant conduct, inclusive of the base offense level, specific offense characteristics, cross references, and adjustments shall be determined on the basis of:

all acts and omissions committed, aided, abetted, counseled, commanded, induced, procured, or willfully caused by the defendant ... that occurred during the 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 .... [Emphasis added.]

Scolaro argues that the enhancement should not apply because he did not use a weapon to commit the assault. The plain meaning of this section, however, contemplates conduct taken prior to, and in order to facilitate, the charged offense. Furthermore, the Guidelines provide that the enhancement is applicable where the weapon is used or possessed in connection with another felony offense, not in the commission of the felony.

To summarize, the § 2K2.1(b)(5) adjustment is warranted in this case if Scolaro used or possessed any firearm in connection with another felony offense. Scolaro possessed at least thirteen stolen firearms in connection with the assault. In applying the enhancement, the district court explained,

I find there is another felony in this case and that’s the assault .... [Scolaro’s conduct] would [constitute] ... an aggravated assault which was done with the intent to inflict serious bodily injury.... I believe that there is a separate felony here ... aside from the actual theft of the guns themselves.

Transcript of Sentencing at 55. Scolaro’s possession of stolen firearms was made possible by the assault. We therefore hold that the felonies were sufficiently connected to mandate the application of (b)(5).

Concluding that the sentencing court interpreted the Sentencing Guidelines appropriately, we affirm the district court’s application of the 4-level adjustment to Scolaro’s sentence.