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United States v. Krumwiede

March 31, 2010

UNITED STATES OF AMERICA, PLAINTIFF-APPELLEE,
v.
JASON A. KRUMWIEDE, 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.

The opinion of the court was delivered by: Ripple, Circuit Judge

ARGUED OCTOBER 28, 2009

Before RIPPLE, WILLIAMS and TINDER, Circuit Judges.

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 sentence on the ground that the district court improperly 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 dumpster, 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.

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 contained in the pre-sentence report ("PSR");*fn1 specifically, Mr. Krumwiede objected to the inclusion of the firearms in connection with another felony offense because, he maintained, no other felony offense had been committed.*fn2 R.30. The Government replied that the enhancement was appropriate; it relied on Application Note 14(B).*fn3 The Sentencing Commission had promulgated § 2K2.1(b)(6) four-level enhancement for possession of this application note in 2006 to resolve a circuit split over the application of § 2K2.1(b)(6) when a defendant's conduct constituted another felony offense in the nature of burglary or a drug offense. See infra at 11. In an addendum 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 nevertheless 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) and that "[t]he Commission determined the enhancement was warranted in cases involving burglary because of the potential a firearm has to facilitate another offense." R.32 at 2.

The district court overruled Mr. Krumwiede's objection and included the § 2K2.1(b)(6) enhancement in its Guidelines calculation. The district court explained that Application Note 14(B) mandated that the four-level enhancement be included when a defendant took firearms 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.*fn4 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.

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 maintains that the district court erred by not following Szakacs, which held that a state offense that occurs contemporaneously 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 amendment 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 unique 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, Application 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) enhancement whenever a defendant possessed firearms during the course of a burglary. Appellee's Br. 11. The Government submits that Application Note 14(B) created a "per se rule regarding burglary" and "altered the previous judicial construction of the enhancement's application in those circuits that had excluded burglary from consideration 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 ...


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