United States v. Jason Krumwiede

In the
United States Court of Appeals
For the Seventh Circuit
No. 08-4081
U NITED STATES OF A MERICA,
Plaintiff-Appellee,
v.
JASON A. K RUMWIEDE,
Defendant-Appellant.
Appeal from the United States District Court
for the Western District of Wisconsin.
No. 3:08-cr-00090-bbc-1—Barbara B. Crabb, Chief Judge.
A RGUED O CTOBER 28, 2009—D ECIDED M ARCH 31, 2010
Before R IPPLE, W ILLIAMS and T INDER, Circuit Judges.
R IPPLE, Circuit Judge. Jason A. Krumwiede pleaded
guilty to charges that he had stolen thirty-four firearms
from a federally licensed firearms dealer, in violation of
18 U.S.C. § 922(u), and that he had possessed a firearm
after having been convicted of a felony, in violation of
18 U.S.C. § 922(g)(1). Mr. Krumwiede was sentenced to
140 months’ imprisonment. He now appeals his sen-
tence on the ground that the district court improperly
2 No. 08-4081
included in its Guidelines calculation the four-level
enhancement provided in § 2K2.1(b)(6). We conclude that
the district court committed no error by applying this
enhancement. Accordingly, we affirm the judgment of
the district court.
I
BACKGROUND
In the early morning of March 9, 2008, Mr. Krumwiede
broke into Main Street Guns & Knives, a federally licensed
firearms dealer in Medford, Wisconsin. Responding to the
silent alarm, the police soon arrived. Mr. Krumwiede
ignored their order to stop, and he fled the scene. The
police later found him hiding in a nearby dumpster and
arrested him. The police recovered two guns in the dump-
ster, fifteen guns in a bag by the door from which
Mr. Krumwiede had exited the store and additional guns
in the store that had been removed from their cases.
At least one of the guns was a semiautomatic firearm
capable of accepting a large capacity magazine.
On June 4, 2008, a grand jury returned a two-count
indictment against Mr. Krumwiede. He was charged with
theft of thirty-four firearms from a federally licensed
dealer, in violation of 18 U.S.C. § 922(u), and with being
a felon in possession of a firearm, in violation of 18
U.S.C. § 922(g)(1). On September 15, 2008, Mr. Krumwiede
entered a plea of guilty to both counts pursuant to a
written plea agreement.
No. 08-4081 3
On November 25, 2008, the district court conducted a
sentencing hearing. Prior to the hearing, Mr. Krumwiede
filed a written objection to the sentence calculation con-
tained in the pre-sentence report (“PSR”); 1 speci-
fically, Mr. Krumwiede objected to the inclusion of the
1
The PSR utilized the November 2008 version of the Guide-
lines. The PSR made the following calculations:
Base offense level: 22 pursuant to U.S.S.G. § 2K2.1(a)(3),
because the offense involved a semiautomatic firearm
capable of accepting a large capacity magazine and
Mr. Krumwiede had already been convicted of a prior
violent felony;
Six level enhancement: pursuant to § 2K2.1(b)(1)(c),
because the offense involved more than 25 firearms;
Two level enhancement: pursuant to § 2K2.1(b)(4)(a),
because the firearms involved in the offense were
stolen;
Reduction to 29 levels: pursuant to § 2K2.1(b)(4), because
the §§ 2k2.1(b)(1)-(4) enhancements cannot produce
an offense level greater than 29;
Four level enhancement: pursuant to § 2K2.1(b)(6) and
Application Note 14(B) because Mr. Krumwiede pos-
sessed guns in connection with another felony offense;
and
Three level reduction: pursuant to § 3E1.1 for acceptance
of responsibility and cooperation.
Mr. Krumwiede’s criminal history category was VI. With a base
offense level of thirty and criminal history category of VI,
the Guidelines range was 168 to 210 months.
4 No. 08-4081
§ 2K2.1(b)(6) 2 four-level enhancement for possession of
firearms in connection with another felony offense
because, he maintained, no other felony offense had been
committed. R.30. The Government replied that the en-
hancement was appropriate; it relied on Application
Note 14(B).3 The Sentencing Commission had promulgated
2
Section 2K2.1(b)(6) provides:
If the defendant used or possessed any firearm or
ammunition in connection with another felony offense;
or possessed or transferred any firearm 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. If the resulting
offense level is less than level 18, increase to level 18.
3
Application Note 14 reads, in relevant part,
14. “In Connection With”.—
(A) In General.—Subsections (b)(6) and (c)(1)
apply if the firearm or ammunition facilitated,
or had the potential of facilitating, another
felony offense or another offense, respectively.
(B) Application When Other Offense is Bur-
glary or Drug Offense.—Subsections (b)(6) and
(c)(1) apply [] in a case in which a defendant
who, during the course of a burglary, finds and
takes a firearm, even if the defendant did not
engage in any other conduct with that firearm
during the course of the burglary . . . . In these
cases, application of subsections (b)(6) and
(c)(1) is warranted because the presence of
(continued...)
No. 08-4081 5
this application note in 2006 to resolve a circuit split over
the application of § 2K2.1(b)(6) when a defendant’s con-
duct constituted another felony offense in the nature
of burglary or a drug offense. See infra at 11. In an adden-
dum to the PSR, the Probation Officer noted that
Mr. Krumwiede’s objection was supported by United
States v. Szakacs, 212 F.3d 344, 346 (7th Cir. 2000), which
had determined that the state offense of conspiracy to
commit burglary, committed simultaneously with the
charged federal offense of conspiracy to steal firearms
from a federally licensed dealer, did not qualify as “an-
other felony offense” for purposes of the § 2K2.1(b)(6)
enhancement. R.32 at 2. The Probation Officer never-
theless concluded that Application Note 14(B), promul-
gated after Szakacs, had resolved a circuit conflict with
respect to the term “in connection with” in § 2K2.1(b)(6)
3
(...continued)
the firearm has the potential of facilitating
another felony offense or another offense,
respectively.
(C) Definitions.—
“Another felony offense”, for purposes of
subsection (b)(6), means any Federal, state, or
local offense, other than the explosive or fire-
arms possession or trafficking offense, punish-
able by imprisonment for a term exceeding
one year, regardless of whether a criminal
charge was brought, or a conviction obtained.
U.S.S.G. § 2K2.1 app. n. 14.
6 No. 08-4081
and that “[t]he Commission determined the enhance-
ment was warranted in cases involving burglary because
of the potential a firearm has to facilitate another of-
fense.” R.32 at 2.
The district court overruled Mr. Krumwiede’s objection
and included the § 2K2.1(b)(6) enhancement in its Guide-
lines calculation. The district court explained that Ap-
plication Note 14(B) mandated that the four-level en-
hancement be included when a defendant took fire-
arms during a burglary, in addition to the other conduct
underlying the charged offense. See Tr. at 6-7, Nov. 25,
2008. Accordingly, the district court accepted the PSR
calculations and determined that the Guidelines range
was 168 to 210 months’ imprisonment. Id. at 15. However,
the district court recognized mitigating factors and de-
parted from the recommended Guidelines range.4 The
district court sentenced Mr. Krumwiede to a term of
140 months’ imprisonment (120 months on count one
and 20 months on count 2, to run consecutively). Id. at 19.
On December 2, 2008, Mr. Krumwiede filed a notice
of appeal.
4
The district court considered Mr. Krumwiede’s age (27), the
fact that he was under the influence of alcohol at the time of
the offense, his acceptance of responsibility, his admission
that he was an alcoholic and the unsophisticated nature of the
offense. See Tr. at 16, Nov. 25, 2008.
No. 08-4081 7
II
DISCUSSION
A.
Mr. Krumwiede renews his contention that the district
court erroneously included the § 2K2.1(b)(6) four-level
enhancement in its Guidelines calculation. He main-
tains that the district court erred by not following
Szakacs, which held that a state offense that occurs con-
temporaneously with the convicted federal offense
cannot count as “another felony offense” for purposes of
§ 2K2.1(b)(6) unless the offense is “separated in time or
by a distinction of conduct.” United States v. Szakacs,
212 F.3d 344, 351 (7th Cir. 2000) (internal quotation
marks omitted). He also maintains that the 2006 amend-
ment to § 2K2.1 (the inclusion of Application Note 14)
did not implicate the Szakacs rule. In his view, “[w]hile
the Amendment may have clarified when the other
offense is a burglary, the Amendment did not change
this Court’s treatment of the enhancement in those uni-
que cases where the offense of conviction is the burglary
of a federally licensed gun dealer.” Appellant’s Br. 12-13
(emphasis in original). In Mr. Krumwiede’s view, Ap-
plication Note 14 concerns the “in connection with” phrase
of § 2K2.1(b)(6), not the “another felony offense” phrase.
The Government contends that Szakacs has no relevance
to this case because Application Note 14 “unequivocally”
directs district courts to apply the § 2K2.1(b)(6) enhance-
ment whenever a defendant possessed firearms during
the course of a burglary. Appellee’s Br. 11. The Govern-
ment submits that Application Note 14(B) created a “per se
8 No. 08-4081
rule regarding burglary” and “altered the previous
judicial construction of the enhancement’s application in
those circuits that had excluded burglary from consider-
ation as ‘another offense.’ ” Id. at 18-19. Additionally, the
Government argues that the conduct consisting of the
burglary—breaking and entering into the store at
night—was an act distinct from the theft of the guns
and Mr. Krumwiede’s possession of them. Id. (citing
United States v. Hill, 563 F.3d 572, 582 (7th Cir. 2009)).
Finally, the Government points out that, in any event,
the sentence imposed was reasonable because it “fell ex-
actly within the 120-150 month range that Krumwiede
would have faced had the district court not applied the
four-level enhancement under § 2K2.1(b)(6).” Id. at 12, 25.
B.
We review de novo questions of law involving the
interpretation of the Guidelines. See United States v.
Stitman, 472 F.3d 983, 986 (7th Cir. 2007). We review a
sentencing court’s findings of fact and applications of the
Guidelines for clear error. Id.We begin our analysis with an examination of Szakacs.
There, five defendants were convicted of the federal
offense of conspiracy to steal firearms from a licensed
firearms dealer. The defendants’ plan was foiled before
they reached the store and, therefore, no firearms were
actually taken. When sentencing the defendants, the
No. 08-4081 9
district court applied the four-level § 2K2.1(b)(5)5 enhance-
ment because “the defendants used or possessed any
firearm or ammunition in connection with another felony
offense, the other felony offense being the state law crime
of conspiracy to commit burglary.” Szakacs, 212 F.3d at 348(internal quotation marks omitted). We held that the
district court had erred by applying the enhancement. We
found the case “difficult . . . [because] the state law offense
and the federal offense were essentially the same crime.”
Id. at 349. We also recognized that circuits had divided
over whether the enhancement should apply in such
circumstances. Id.We noted in Szakacs that, in United States v. Armstead, 114
F.3d 504, 511-13 (5th Cir. 1997), the Fifth Circuit had
ruled that the enhancement was appropriately applied
when the defendants were convicted of the federal offense
of stealing firearms from a licensed dealer and the other
offense was the state crime of burglary. In Szakacs, we
contrasted Armstead with the Sixth Circuit’s approach in
United States v. Sanders, 162 F.3d 396, 399-402 (6th Cir.
1998). In Sanders, the Sixth Circuit had held that, when a
defendant was charged with the federal crimes of theft
from a licensed gun dealer, knowingly transporting
stolen firearms and being a felon in possession, the state
5
When United States v. Szakacs, 212 F.3d 344 (7th Cir. 2000),
was decided, § 2K2.1(b)(6) appeared in the Guidelines as
§ 2K2.1(b)(5). It was moved to § 2K2.1(b)(6) in the 2006 Guide-
lines, at which time Application Note 14(B) was also added.
See infra at 11. The texts of § 2K2.1(b)(5), as it existed prior
to 2006, and § 2K2.1(b)(6), post-2006, are identical.
10 No. 08-4081
law crime of conspiracy to commit burglary did not
qualify as “another felony offense.” In the end, we
agreed with Sanders that, “since almost all federal crimes
can also be characterized as state crimes,” allowing a state
law offense “based on the exact same offense conduct
to count as ‘another felony offense’ renders ‘the word
“another” . . . superfluous, and of no significance to the
application of [the enhancement].’ ” Szakacs, 212 F.3d at
350 (quoting Sanders, 162 F.3d at 400). We also noted
that Sanders interpreted the then-extant Application Note
18 to § 2K2.1(b)(5) as precluding a state burglary crime
from qualifying as “another felony offense.” 6 Id. Finally, we
agreed with Sanders that “courts should not adjust a
sentence upward based on factors already reflected in
the base-offense level,” i.e., “double counting” the same
conduct already included in a base offense level calcula-
tion. Id. at 350-51. We concluded that the Sixth Circuit’s
approach was consistent with our own previous applica-
tion of § 2K2.1(b)(5) in situations where “there was ‘a
finding of a separation of time between the offense
6
In 2000, Application Note 18 read in pertinent part, “ ‘another
felony offense’ and ‘another offense’ refer to offenses other than
explosives or firearms possession or trafficking offenses.” U.S.
Sentencing Guidelines Manual § 2K2.1 app. n. 18 (2000).
Building on the Sanders interpretation, we interpreted that
language so as to exclude burglaries from the definition of
“another felony offense” because Application Note 18 used
the general phraseology of “explosives or firearms possession
or trafficking offenses,” rather than invoking “specific stat-
utory provisions.” Szakacs, 212 F.3d at 350.
No. 08-4081 11
of conviction and the other felony offense, or a distinction
of conduct between that occurring in the offense of con-
viction and the other felony offense.’ ” Id. at 351 (quoting
Sanders, 162 F.3d at 400). We thus adopted the Sanders
approach and “reject[ed] the approach represented by
the Armstead court.” Id.In 2006, the Sentencing Commission promulgated
Amendment 691, which modified § 2K2.1 and its Ap-
plication Notes. See U.S. Sentencing Guidelines Manual,
Supplement to Appendix C, 170-77 (2006) (Amendment
691). The Amendment re-designated § 2K2.1(b)(5) as
§ 2K2.1(b)(6), id. at 171, struck Application Note 18, id.
at 172, 7 and added the new Application Note 14, id. at 174-
75. The Sentencing Commission also stated,
[T]he amendment addresses a circuit conflict
pertaining to the application of [§ 2K2.1(b)(6)] . . . ,
specifically with respect to the use of a firearm “in
connection with” burglary and drug offenses. . . .
[T]he amendment provides that in burglary of-
fenses, [§ 2K2.1(b)(6)] appl[ies] to a defendant who
takes a firearm during the course of the burglary,
even if the defendant did not engage in any other
conduct with that firearm during the course of the
burglary. . . . The Commission determined
that application of [§ 2K2.1(b)(6)] is warranted in
these cases because of the potential that the pres-
7
By then, Application Note 18 had been moved to Application
Note 15. See U.S. Sentencing Guidelines Manual, Supplement to
Appendix C, 94 (2005) (Amendment 669).
12 No. 08-4081
ence of the firearm has for facilitating another
felony offense or another offense.
Id. at 177.
Later, in United States v. Hill, 563 F.3d 572, 581 (7th Cir.
2009), we considered whether Application Note 14 was
inconsistent with the language of § 2K2.1(b)(6).8 The
defendant in Hill disputed the application of § 2K2.1(b)(6)
and the district court’s conclusion that a burglary
qualified as another felony offense when he had taken
guns during the burglary and had pleaded guilty to a
felon in possession count. We concluded that Applica-
tion Note 14(B) was consistent with § 2K2.1(b)(6), and that
the guideline indeed applied in the defendant’s case
because “the relevant question is not whether the two
offenses occur simultaneously or have some causal rela-
tionship with one another, but whether they are based on
the same conduct.” Hill, 563 F.3d at 581 (citing United States
v. Purifoy, 326 F.3d 879, 880-81 (7th Cir. 2003)). We rea-
soned that, unlike the defendants in Szakacs, the applica-
tion of the § 2K2.1(b)(6) enhancement in Hill “was based
on conduct that was distinct from [the defendant’s] simple
possession of the firearms, namely the burglary.” Id.
Mr. Krumwiede contends that Hill “reaffirms [our] basic
holding in Szakacs that, where the offense of conviction
8
See also Stinson v. United States, 508 U.S. 36, 38 (1993)
(“[C]ommentary in the Guidelines Manual 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.”).
No. 08-4081 13
and the ‘other’ offense for the enhancement’s purposes are
essentially the same crime because they involved nearly
identical offense conduct, the four level enhancement
does not apply.” Appellant’s Br. 14 (internal quotation
marks omitted). The Government contends just the oppo-
site. It points out that, in Hill, we cited Armstead and said,
The guideline [§ 2K2.1(b)(6)] by its terms requires
only that the defendant have possessed a weapon
‘in connection with’ another offense. That language
is sufficiently broad to include possessing a
weapon as a result of the burglary . . . and thus to
accommodate the interpretation reflected in the
commentary.
Hill, 563 F.3d at 582. The Government believes that, in Hill,
we abandoned Szakacs and adopted the Armstead ap-
proach. See Appellee’s Br. 19-20.
We believe that the resolution of these conflicting
positions is straightforward. Application Note 14(B),
not Szakacs, governs the application of § 2K2.1(b)(6)
in Mr. Krumwiede’s case; Application Note 14(B) is
unequivocal about when the § 2K2.1(b)(6) enhancement
should apply: when a defendant “during the course
of a burglary, finds and takes a firearm, even if the defen-
dant did not engage in any other conduct with that fire-
arm.” U.S.S.G. § 2K2.1 app. n. 14(B). As we already have
held, the Application Note is consistent with the guide-
line itself and thus is authoritative. See Hill, 563 F.3d at 581
(citing Stinson v. United States, 508 U.S. 36, 38 (1993)).
Application Note 14 was meant to “remedy the disagree-
ment among the courts regarding the application of the
14 No. 08-4081
four-level enhancement to cases in which the other
offense is a burglary.” See United States v. Morris, 562 F.3d
1131, 1136 (10th Cir. 2009) (also concluding that Applica-
tion Note 14(B) is consistent with § 2K2.1(b)(6) and that
the enhancement applied in a felon in possession case
where the defendant took firearms during the course of
a burglary).
This straightforward reliance on the plain language of
Application Note 14 renders nugatory Mr. Krumwiede’s
contention that Application Note 14 concerned the “in
connection with” phrase of § 2K2.1(b)(6), not the “another
felony offense” phrase. Application Note 14(B) is specifi-
cally titled “Application When Other Offense is Burglary
or Drug Offense” and discusses the application of the
enhancement when either burglary or a drug offense
constitutes the purported “other” felony offense. Notably,
Application Note 14(C) provides a definition of “another
felony offense,” when the purported other felony offense
is not burglary or a drug offense. In short, Application
Note 14 is squarely on point in this case, and the
district court correctly applied the enhancement.
Conclusion
The district court correctly applied the enhancement
provided by § 2K2.1(b)(6) in the calculation of
Mr. Krumwiede’s Guidelines calculation. Accordingly,
the judgment of the district court is affirmed.
A FFIRMED
3-31-10