USA Vjimison

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA,  No. 06-30417
Plaintiff-Appellee,
v.  D.C. No.
CR-05-00091-RFC
JESSE JAMES JIMISON,
OPINION
Defendant-Appellant.

Appeal from the United States District Court
for the District of Montana
Richard F. Cebull, District Judge, Presiding
Argued and Submitted
April 12, 2007—Seattle, Washington
Filed July 16, 2007
Before: Alex Kozinski and Raymond C. Fisher,
Circuit Judges, and Andrew J. Guilford,* District Judge.
Opinion by Judge Kozinski
*The Honorable Andrew J. Guilford, United States District Judge for
the Central District of California, sitting by designation.
8519
UNITED STATES v. JIMISON 8521
COUNSEL
David A. Merchant, Assistant Federal Defender, and Anthony
R. Gallagher, Chief Federal Defender, Billings, Montana, for
the defendant-appellant.
Eric B. Wolff, Assistant United States Attorney, Billings,
Montana, for the plaintiff-appellee.
8522 UNITED STATES v. JIMISON
OPINION
KOZINSKI, Circuit Judge:
We consider when a defendant can be subject to a sentenc-
ing enhancement under U.S.S.G. § 2K2.1(b)(5) (2005),1 for
possessing a firearm in connection with an offense that he
never commits.
Facts
Jesse Jimison beat up his girlfriend and then fled in her car.
He then became ill from drugs he had taken, stumbled into an
unlocked ranch house and passed out. When he woke up, he
grabbed up a couple of guns, gun accessories and clothes and
continued his flight. He ended up at the house of Bill Hecker,
an acquaintance. Jimison was crying and told Hecker that he
had been on the run from the police and thought that he had
just killed his girlfriend. Jimison then continued to act errati-
cally. He told Hecker “something about he was going to go
Rambo,” and called the owner of the ranch house, apologizing
for taking his guns and promised to return them. He then
locked the stolen guns in the trunk of his girlfriend’s car and
departed in a friend’s car, leaving the guns safely behind.
Jimison pled guilty to felony possession of firearms. The
district court enhanced his sentence under section
2K2.1(b)(5), finding that Jimison possessed the stolen guns
“with the intent of fighting it out with law enforcement if he
were caught.” Jimison now appeals.
Analysis
[1] A defendant is subject to a four-level sentencing
enhancement under U.S.S.G. § 2K2.1(b)(5), if he “possessed
1
In the most recent version of the Guidelines, this section has been
repaginated as U.S.S.G. § 2K2.1(b)(6).
UNITED STATES v. JIMISON 8523
or transferred any firearm . . . with knowledge, intent, or rea-
son to believe that it would be used or possessed in connec-
tion with another felony offense.” A “felony offense” is “any
offense (federal, state, or local) punishable by imprisonment
for a term exceeding one year, whether or not a criminal
charge was brought, or conviction obtained.” U.S.S.G.
§ 2K2.1 cmt. n.4.2 There is no dispute that shooting at police
is a felony offense—the issue is whether there was sufficient
evidence about Jimison’s intent to justify imposing this
enhancement.
[2] We have never considered what constitutes proof that
a defendant had “knowledge, intent, or reason to believe” that
he would, at some time in the future, commit “another felony
offense.” We hold that while the defendant need not actually
commit the crime, see United States v. Dodge, 61 F.3d 142,
146 (2d Cir. 1995), the government must produce sufficient
evidence that he intended to “use[ ] or possess[ ]” firearms “in
connection with” a specifically contemplated felony.3 The
plan to commit the felony need not be fully developed. Thus
if a defendant acquires a gun intending to use it in a bank rob-
bery, he need not have cased the location or even identified
a specific bank that he plans to rob. But he must have formed
a firm intent to use the gun for a felonious purpose.
[3] Here, the district court found that “this defendant stole
these gun[s], at least at that time, with the intent of fighting
it out with law enforcement if he were caught.” The govern-
ment must show more than the fact that a defendant stole guns
to obtain a section 2K2.1(b)(5) enhancement. See United
States v. Routon, 25 F.3d 815, 819 (9th Cir. 1994) (the gov-
2
Now U.S.S.G. § 2K2.1 cmt. n.14(C).
3
We don’t decide what the defendant must know or believe if he sells
guns to third parties who could commit felony offenses. See, e.g., United
States v. Molloy, 324 F.3d 35, 38-40 (1st Cir. 2003); United States v.
Mitchell, 328 F.3d 77, 83 (2d Cir. 2003).
8524 UNITED STATES v. JIMISON
ernment must show more “than a defendant’s mere possession
of a firearm” to get this enhancement).4
[4] The only direct evidence that Jimison stole the guns
with a felonious purpose was Hecker’s testimony that Jimison
“said something about he was going to go Rambo.” Taking
Hecker’s vague recollection at face value and assuming that
“going Rambo” implies turning to gun violence, Jimison’s
offhand comment lacks sufficient specificity to establish that
he formed a firm intent to shoot it out with police. Most of us
make empty statements out of frustration from time to time—
a parent learns that his kid got into trouble again and exhales,
“I’m going to wring his neck”; a driver gets cut off in traffic
and yells out the window, “I’ll beat you to a bloody pulp”;
one of the 12 Angry Men screams “I’ll kill him.”5 These
exclamations are part of our everyday parlance and don’t gen-
erally connote any intent to commit violence. This is espe-
cially true when the statement is made as a result of agitation
or emotional distress, as was the case here. Suppose a hus-
band learns that his wife has been cheating on him and blurts
out that, if he sees the paramour, he will “blow her head off.”
Without further evidence, we wouldn’t consider this comment
sufficient to conclude that the husband formed a firm intent
to harm the home-wrecker.
4
After November 2006, the Guidelines provide that this enhancement
applies “in a case in which a defendant who, during the course of a bur-
glary, 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.”
U.S.S.G. § 2K2.1 cmt. n.14(B). Because this comment was added after
Jimison stole the guns, it is questionable whether it would apply here. See
United States v. Stevens, 462 F.3d 1169, 1171 (9th Cir. 2006). In any case,
the district court didn’t impose the enhancement on this basis and the gov-
ernment has waived any argument that this comment applies retroactively.
5
Juror #3: I’ll kill him! I’LL KILL HIM.
Juror #8: You don’t really mean you’ll kill me, do you?
12 Angry Men (Orion-Nova Productions 1957), available at http://
us.imdb.com/title/tt0050083/quotes.
UNITED STATES v. JIMISON 8525
[5] Jimison’s “Rambo” statement was of the same charac-
ter. Hecker provided no context for the statement; he did not
indicate that it was made as part of a discussion of Jimison’s
plans for the future. Indeed, the statement left so little impact
on Hecker that he had difficulty recalling exactly what Jimi-
son said. This is not sufficient to establish that Jimison had a
firm intent to have a shootout with the police. As far as the
record reflects, Jimison’s statement was nothing more than a
scared and confused individual’s voicing of his fear through
bluster.
The Tenth Circuit confronted a similar situation in United
States v. Pantelakis, 58 F.3d 567 (10th Cir. 1995). There, the
defendant owned a gun and told a probation officer that “he
considered himself a threat to rival gang members.” Id. at
568. The Tenth Circuit explained that the district court errone-
ously imposed the section 2K2.1(b)(5) enhancement because
“[t]his statement, in and of itself, is simply insufficient to
prove that [defendant] had reason to know that he would use
a gun to commit a felony, much less to show actual intent or
knowledge that a felony would be committed. At most, this is
an example of braggadocio by an eighteen-year-old gang
member.” Id.
[6] In adopting this enhancement, the Sentencing Commis-
sion was concerned about criminals using (or plotting to use)
firearms “in connection with” specifically contemplated
crimes. See, e.g., Dodge, 61 F.3d at 144 (KKK member
bought a pistol with a silencer as well as a pipe bomb with a
timer so that he could have his “alibi all set up”); United
States v. Payton, 198 F.3d 980, 983 (7th Cir. 1999) (defen-
dant planned to use a shotgun in a robbery of a pawn shop,
and had planned out the robbery in detail). We don’t believe
that the Sentencing Commission meant to impose this four-
level enhancement, the same as the punishment for being a
leader or organizer of a criminal conspiracy, on defendants
who happened to make statements out of frustration, fear or
grandstanding. See United States v. Sanders, 162 F.3d 396,
8526 UNITED STATES v. JIMISON
401 (6th Cir. 1998) (comparing section 2K2.1(b)(5) to
U.S.S.G. § 3B1.1(a)).
[7] Moving past the “Rambo” comment, the rest of the evi-
dence demonstrates that Jimison acted just as the Sentencing
Commission doubtless hoped he would when it adopted this
enhancement. Soon after arriving at Hecker’s house, Jimison
called the owner of guns, apologized and made arrangements
to return them. He also safely locked the guns in the trunk of
the car and departed, leaving the car and guns at Hecker’s
house. Under these circumstances, there was insufficient evi-
dence to conclude that Jimison formed a firm intent to have
a shootout with law enforcement. Accordingly, we conclude
that the district court erred in applying the Guidelines to the
facts of this case and vacate defendant’s sentence.6
REVERSED and REMANDED.
6
We recognize that there is an intracircuit conflict regarding how we
review application of the Guidelines to the facts. Compare United States
v. Kimbrew, 406 F.3d 1149, 1151 (9th Cir. 2005) (“This court reviews . . .
the district court’s application of the Sentencing Guidelines to the facts of
this case for abuse of discretion.”), with United States v. Williamson, 439
F.3d 1125, 1137 n.12 (9th Cir. 2006) (“We review the interpretation and
application of the Guidelines de novo.”); see also United States v. Staten,
466 F.3d 708, 713 n.3 (9th Cir. 2006) (recognizing the conflict). But
because we would reverse even under the more deferential abuse of dis-
cretion standard, it is unnecessary for us to call this case en banc to resolve
the conflict.