Argued June 6, 2013.
Emily Kathleen Cremeans, Attorney, Office of the United States Attorney, Hammond, IN, Donald J. Schmid, Attorney, Office of the United States Attorney, South Bend, IN, for Plaintiff-Appellee.
William J. Stevens, Attorney, Bridgman, MI, for Defendant-Appellant.
Before WOOD, Chief Judge, and POSNER and ROVNER, Circuit Judges.
ROVNER, Circuit Judge.
Darnell Jackson unlawfully possessed a firearm for a period of two to three weeks before selling it to someone whose own possession of the gun was illegal. At sentencing, the district court enhanced Jackson's offense level based on its finding that Jackson had transferred the gun with knowledge or reason to believe it would be possessed " in connection with another felony offense," i.e., the transferee's illegal possession of the gun. See U.S.S.G. § 2K2.1(b)(6)(B) (Nov.2012). Jackson contends that the enhancement was improper in that it essentially penalized him a second time for conduct that was otherwise encompassed within his conviction. We affirm.
In January 2011, Jackson's friend Carlia Wells purchased a nine-millimeter Ruger pistol. In March, Jackson took the pistol from Wells' home. Having previously been convicted of multiple felonies, Jackson's possession of the gun was illegal. See 18 U.S.C. § 922(g)(1). Two to three weeks after he took the pistol from Wells, Jackson sold the weapon (or facilitated its sale) to David Dircks, whom Jackson knew to be an illegal user of crack cocaine and heroin. A grand jury later charged Wells, Dircks, Jackson, and a fourth individual with various weapons offenses; the indictment charged Jackson with his unlawful possession of the pistol as a convicted felon, in violation of section 922(g)(1).
On the morning that his trial was to begin, Jackson pleaded guilty to the felon-in-possession charge without a written plea agreement. At sentencing, the court found Jackson's final, adjusted offense level to be 17. This included a four-level enhancement under Guidelines section 2K2.1(b)(6)(B) for transferring the firearm " with knowledge, intent or reason to believe that it would be used or possessed in connection with another felony offense." The court found that Jackson's transfer of the gun to Dircks, a known felon and illegal drug user, facilitated the commission of a felony by Dircks, whose possession of the pistol was prohibited under both section 922(g)(1) (possession by a felon) and section 922(g)(3) (possession by an unlawful user of controlled substances). R. 132 at 2-3. Coupled with a criminal history category of VI (Jackson had a lengthy criminal record that the court described as " astonishing," R. 132 at 6), the adjusted offense level of 17 resulted in an
advisory sentencing range of 51 to 63 months in prison. Without the section 2K2.1(b)(6)(B) enhancement, the range would have been 33 to 41 months. Judge Miller opted to impose a within-Guidelines sentence of 60 months' imprisonment.
The sole issue to be resolved on appeal is whether the section 2K2.1(b)(6)(B) enhancement was correctly imposed. We find that it was.
Section 2K2.1(b)(6)(B) provides that a defendant's offense level shall be increased by four levels if he " 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." Prior to amendments that took effect in November 2006, an application note regarding this enhancement (then set forth in section 2K2.1(b)(5)) defined " another felony offense" as one " other than explosives or firearms possession or trafficking offenses." § 2K2.1 cmt. n.15 (Nov.2005). This definition of " another felony offense" was " understood to create a categorical exclusion for firearms and explosive offenses." See United States v. Jones, 528 Fed.Appx. 627, 631-32 (7th Cir.2013) (nonprecedential decision) (collecting cases). Thus in United States v. Mahalick,498 F.3d 475, 480 (7th Cir.2007), we had observed that for purposes of ...