United States v. Michael Aaron Johnson , 433 F. App'x 753 ( 2011 )


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  •                                                                    [DO NOT PUBLISH]
    IN THE UNITED STATES COURT OF APPEALS
    FOR THE ELEVENTH CIRCUIT
    ________________________            FILED
    U.S. COURT OF APPEALS
    No. 10-15122         ELEVENTH CIRCUIT
    Non-Argument Calendar        JULY 6, 2011
    ________________________        JOHN LEY
    CLERK
    D.C. Docket No. 4:10-cr-00026-RH-WCS-1
    UNITED STATES OF AMERICA,
    llllllllllllllllllllllllllllllllllllllll                                  Plaintiff-Appellee,
    versus
    MICHAEL AARON JOHNSON,
    llllllllllllllllllllllllllllllllllllllll                            Defendant-Appellant.
    ________________________
    Appeal from the United States District Court
    for the Northern District of Florida
    ________________________
    (July 6, 2011)
    Before HULL, PRYOR and ANDERSON, Circuit Judges.
    PER CURIAM:
    Michael Aaron Johnson appeals his 78-month total sentence, imposed
    following his guilty plea to theft of firearms from a federal licensee, in violation of
    
    18 U.S.C. §§ 922
    (u), 924 (a)(1), and 2; possession of stolen firearms, in violation
    of 
    18 U.S.C. §§ 922
    (j), 924(a)(2), and 2; and possession of a firearm by a
    convicted felon, in violation of 
    18 U.S.C. §§ 922
    (g)(1) and 924(a)(2). The offense
    involved the burglary of a pawn shop, during which Johnson and his codefendants
    stole several firearms. Johnson argues on appeal that the four-level enhancement
    under U.S.S.G. § 2K2.1(b)(6), for possession of a firearm “in connection with”
    another felony, is appropriate only where there is proof that the firearm facilitated
    the other felony. Thus, he argues, the district court erroneously applied
    § 2K2.1(b)(6) in his case, because the government failed to prove that his
    possession of the firearm facilitated another offense. Johnson concedes in his
    responsive brief that the issue has been resolved by an amendment to the
    Guidelines.
    We review a district court’s application and interpretation of the Guidelines
    de novo, and its factual findings for clear error. United States v. Rhind, 
    289 F.3d 690
    , 693 (11th Cir. 2002).
    Subsection 2K2.1(b)(6) of the Guidelines states that “[i]f the defendant used
    or possessed any firearm or ammunition in connection with another felony offense
    . . . increase [the base offense level by] 4 levels . . . .” In United States v. Rhind,
    we held that the phrase, “in connection with,” does not require that the firearm
    2
    facilitate the underlying offense. Rhind, 
    289 F.3d at 695
    . In order to resolve a
    circuit conflict pertaining to the application of U.S.S.G. § 2K2.1(b)(6), specifically
    with respect to the use of a firearm “in connection with” a burglary offense, the
    Sentencing Commission promulgated Amendment 691in 2006, noting that the
    application of U.S.S.G. § 2K2.1(b)(6) is warranted in the case of a burglary
    “because of the potential that the presence of the firearm has for facilitating
    another felony offense . . . .” U.S.S.G. App. C, Amend. 691. Subsection
    2K2.1(b)(6) now applies “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.” U.S.S.G. §
    2K2.1, comment. (n.14(B)). The enhancement applies “if the firearm or
    ammunition facilitated, or had the potential of facilitating, another felony
    offense . . . .” Id. at comment. (n.14(A)). For the purposes of this enhancement,
    “another felony offense” is defined as “any federal, state, or local offense, other
    than the . . . firearms possession or trafficking offense . . . regardless of whether a
    criminal charge was brought, or a conviction obtained.” Id. at comment.
    (n.14(C)).
    The U.S.S.G. § 2K2.1(b)(6) enhancement was correctly applied in this case,
    because under Amendment 691, the enhancement required only that the presence
    3
    of the firearm had the potential of facilitating the burglary. U.S.S.G. § 2K2.1,
    comment. (n.14(B)). Accordingly, we affirm Johnson’s total sentence.
    AFFIRMED.
    4
    

Document Info

Docket Number: 10-15122

Citation Numbers: 433 F. App'x 753

Filed Date: 7/6/2011

Precedential Status: Non-Precedential

Modified Date: 1/12/2023