United States v. Wright , 7 F. App'x 296 ( 2001 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
UNITED STATES OF AMERICA, 
Plaintiff-Appellee,
v.  No. 00-4564
GLENN WRIGHT,
Defendant-Appellant.

Appeal from the United States District Court
for the Southern District of West Virginia, at Charleston.
Charles H. Haden II, Chief District Judge.
(CR-00-67-2)
Submitted: January 31, 2001
Decided: April 25, 2001
Before WILKINS, WILLIAMS, and TRAXLER, Circuit Judges.
Vacated and remanded by unpublished per curiam opinion.
COUNSEL
Mary Lou Newberger, Acting Federal Public Defender, George H.
Lancaster, Jr., Assistant Federal Public Defender, Charleston, West
Virginia, for Appellant. Rebecca A. Betts, United States Attorney,
John J. Frail, Assistant United States Attorney, Charleston, West Vir-
ginia, for Appellee.
2 UNITED STATES v. WRIGHT
Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).
OPINION
PER CURIAM:
Glenn Wright was convicted pursuant to his guilty pleas of posses-
sion with intent to distribute crack cocaine and possession of a fire-
arm in connection with a drug trafficking offense. On appeal, he
alleges that the district court improperly enhanced his base offense
level pursuant to USSG § 2D1.1(b)(1).1 Because we find that the Sen-
tencing Commission has amended the Sentencing Guidelines in a
manner that supports Wright’s position, and because the Commission
has stated that the amendment is to be applied retroactively, we vacate
Wright’s sentence and remand the case for resentencing.
After receiving information from a confidential informant, police
officers executed a search warrant at Wright’s residence. Officers
seized drugs, three firearms, and drug paraphernalia. One of the fire-
arms was found underneath the couch on which Wright was sitting
when police entered the residence and served as the basis for Wright’s
conviction under 28 U.S.C.A. § 924(c) (West Supp. 2000). The other
two firearms, unloaded shotguns, were found in a duffel bag in a bed-
room closet. The district court considered the shotguns in deciding to
apply an enhancement under USSG § 2D1.1(b)(1).
We review the district court’s application of the Sentencing Guide-
lines de novo. United States v. Daughtrey, 874 F.2d 213, 217 (1989).
Although a defendant’s base offense level is increased by two levels
if a firearm is possessed,2 he may not receive an enhancement for the
possession of a firearm under the guideline for the underlying offense
when he is also sentenced to a consecutive sentence under § 924(c).3
1
U.S. Sentencing Guidelines Manual (1998).
2
USSG § 2D1.1(b)(1).
3
USSG § 2K2.4, comment. (n.2) (hereinafter "Application Note 2").
UNITED STATES v. WRIGHT 3
The majority of the circuits that have interpreted Application Note
2 have held that an enhancement is permissible when it is based on
the defendant’s possession of a second firearm or a firearm possessed
by a co-defendant.4 Only the Third Circuit has held that Application
Note 2 precludes an enhancement for firearms the defendant pos-
sessed during a drug conspiracy in addition to the one underlying his
§ 924(c) conviction.5 The district court followed the majority view
and overruled Wright’s objection to the calculation of his offense
level.
The Sentencing Commission has recently clarified its position on
this issue.6 Amendment 599 expressly states that a firearm enhance-
ment is inappropriate in factual situations similar to the one currently
before the court. The Commission also made Amendment 599 retroac-
tive.7 Accordingly, we find that the district court’s decision to apply
the USSG § 2D1.1(b)(1) enhancement was erroneous.8
We therefore vacate Wright’s sentence and remand the case to the
district court for resentencing consistent with this opinion. We dis-
pense with oral argument because the facts and legal contentions are
adequately presented in the materials before the court, and argument
would not aid the decisional process.
VACATED AND REMANDED
4
See United States v. White, 222 F.3d 363, 372-76 (7th Cir. 2000) (pos-
session of a second weapon of a different type); United States v. Cover,
199 F.3d 1270, 1277-78 (11th Cir. 2000) (firearm possessed by co-
defendant); United States v. Park, 167 F.3d 1258, 1260-61 (9th Cir.
1999) (defendant possessed firearms in other robberies); United States v.
Washington, 44 F.3d 1271, 1280 (5th Cir. 1995) (firearm possessed by
co-defendant).
5
See United States v. Knobloch, 131 F.3d 366, 371-73 (3d Cir. 1997).
6
See USSG App. C (Supp. 2000), Amendment 599.
7
See U.S. Sentencing Guidelines Manual § 1B1.10(c), p.s. (2000).
8
We note, however, that the district court did not have the benefit of
Amendment 599 when it made its decision.