United States v. Larry Lumsden ( 2009 )

In the
United States Court of Appeals
For the Seventh Circuit
Nos. 07-2714 & 07-2715
U NITED STATES OF A MERICA,
Plaintiff-Appellee,
v.
JOSEPH J. H ILL and
L ARRY E. L UMSDEN,
Defendants-Appellants.
Appeals from the United States District Court
for the Northern District of Illinois, Western Division
No. 06 CR 50060—Philip G. Reinhard, Judge.
A RGUED S EPTEMBER 22, 2008—D ECIDED A PRIL 21, 2009
Before E ASTERBROOK, Chief Judge, and R OVNER and
W ILLIAMS, Circuit Judges.
R OVNER, Circuit Judge. Joseph J. Hill and Larry E.
Lumsden both pleaded guilty to a charge that they had
unlawfully possessed firearms as convicted felons, in
violation of 18 U.S.C. § 922(g)(1). Hill was ordered to
serve a prison term of sixty-six months, while his co-
defendant Lumsden was sentenced to a term of seventy-
2 Nos. 07-2714 & 07-2715
one months. They both appeal their sentences. Hill con-
tends that the district court improperly denied him an
offense-level reduction based on his mitigating role in
the offense, see U.S.S.G. § 3B1.2, and that the court, in
deciding the length of his sentence, improperly
referenced what it thought Lumsden’s prison term ought
to have been rather than what it actually was. Lumsden
argues that the court erroneously increased his offense
level for possessing firearms in connection with another
offense, see U.S.S.G. § 2K2.1(b)(6), and that the court’s
use of the Sentencing Guidelines manual in effect at the
time of his sentencing was contrary to the ex post facto
clause of the Constitution. Because the district court
appears to have erroneously believed Hill was ineligible
for a mitigating-role reduction due to the fact that he was
held accountable only for his own criminal conduct, we
vacate his sentence and remand for re-sentencing. We
affirm Lumsden’s sentence, however.
I.
On September 2, 2006, Lumsden, together with his
brother Charles and his brother’s girlfriend, Dee Iku, a/k/a
Christine Waller (“Waller”), burglarized the residence of
Waller’s estranged husband in Durand, Illinois. Among
other items, they stole various firearms and ammunition.
Hill did not participate in the robbery.
Lumsden subsequently sought to sell the stolen fire-
arms. On the afternoon of September 6, he was visiting
the home of another brother, David, and spoke with his
brother’s girlfriend about the guns. She was or became a
Nos. 07-2714 & 07-2715 3
confidential informant (“CI”) for the authorities. Lumsden
told the CI that he had three “long guns” and one handgun
for sale. Lumsden was candid about the fact that the
guns had been stolen. The CI told Lumsden that she
would get back to him after asking around to see if
anyone was interested in the firearms. The CI proceeded
to contact the Rockford Police Department (“RPD”) to
report what Lumsden had told her about the burglary
and Lumsden’s desire to sell the firearms.
On the following day, September 7, the CI, acting on
instructions from members of the federal Bureau of
Alcohol, Tobacco, Firearms and Explosives (“ATF”) and
the RPD, arranged to make a purchase of firearms from
Lumsden. She told him that her uncle was interested in
buying some guns. Lumsden subsequently offered to
sell her two double-barreled shotguns, a 12-gauge shot-
gun, and a crate of ammunition for $600. The CI agreed
to Lumsden’s terms.
Later that afternoon, the CI drove to Lumsden’s mobile
home to make the purchase. She wore a body recording
device to the meeting and was under surveillance
while she met with Lumsden. Surveillance agents
saw Lumsden carry something wrapped in a blue
blanket and place it in the back of the CI’s vehicle;
Lumsden also placed a large crate in the vehicle. When
the CI later met with the authorities, they discovered
that the blue blanket concealed three firearms: two
Stoeger Arms double-barreled shotguns and a Remington
Arms single-barreled shotgun. The crate contained some
298 rounds of assorted shotgun shells. The firearms
4 Nos. 07-2714 & 07-2715
purchased by the CI matched the description of three
shotguns reported stolen from the residence in Durand,
and inside the crate of ammunition was a gun cleaning
kit with the name of the burglarized homeowner. The
guns and the ammunition all were manufactured outside
of Illinois, and they would later form the basis for
Count One of the indictment against Lumsden and Hill.
The CI told ATF Special Agent Daniel Ivancich that when
she arrived at Lumsden’s home, Lumsden was not there.
Lumsden showed up a few minutes later with Hill. At
Lumsden’s instruction, the CI retrieved from her
vehicle a blanket that she had brought with her to cover
the guns. Lumsden led the CI to a back room where the
three shotguns and crate of ammunition were laid out
on the floor. Hill wrapped the guns in the CI’s blanket
while the CI paid Lumsden. Lumsden reminded the CI
that the guns were “hotter than a piece of bacon in a
frying pan.” R. 1 Ivancich Aff. ¶ 9.
On September 11, after additional contacts with
Lumsden, the CI purchased two additional firearms
from him for $500: a Marlin .22 caliber rifle, and a
Remington 12 gauge shotgun. As part of the deal,
Lumsden also provided the CI with twenty-five rounds
of ammunition for each of the guns. Like the guns the
CI had procured from Lumsden four days earlier, these
two firearms had also been stolen from the Durand resi-
dence. They had also been manufactured outside of
Illinois. These two firearms and the ammunition would
later form the basis for Count Two of the indictment
against Hill and Lumsden. When the CI arrived at
Lumsden’s home to make the purchase, Lumsden took
Nos. 07-2714 & 07-2715 5
her into a bedroom where the firearms were laying on a
futon beneath a blanket. The CI paid Lumsden in cash,
and Lumsden wrapped the guns in the blanket. Hill
was present while the CI and Lumsden did business, and
he carried the wrapped firearms outside to the CI’s
vehicle, which was parked in the driveway. Hill knew
that the firearms had been stolen. Hill did not profit
from the sale. His possession of the firearms did not
exceed ten minutes.
Hill and Lumsden were arrested several days later. As
convicted felons, both were prohibited from possessing
firearms in or affecting commerce, and based on their
possession of the weapons and ammunition sold to the
CI on September 7 and 11, 2006, they were jointly
charged in an indictment with two separate violations
of the federal felon-in-possession statute, 18 U.S.C.
§ 922(g)(1). Lumsden alone was charged in a third count
with the possession of another weapon found in his
home on the date of his arrest (not a gun that was taken
in the burglary). Both defendants ultimately pleaded
guilty to Count Two of the indictment, which charged
their unlawful possession of the shotguns and ammuni-
tion sold to the CI on September 11, 2006.
The district court sentenced Lumsden to a prison term
of seventy-one months. In calculating the advisory sen-
tencing range for Lumsden under the Sentencing Guide-
lines, the district court adjusted his offense level upward
by four levels pursuant to Guidelines section 2K2.1(b)(6),
finding that Lumsden had possessed the five firearms
he sold to the CI in connection with another offense—
6 Nos. 07-2714 & 07-2715
namely, the burglary by which he had obtained the fire-
arms. The court relied on the November 2006 version
of the Sentencing Guidelines when imposing that en-
hancement, rejecting Lumsden’s contention that the
Constitution’s ex post facto clause forbade the court
from doing so. R. 65 at 9-10. The 2006 Guidelines also
specified a four-level enhancement based on the fact
that the gun found in Lumsden’s home on the date of his
arrest had an obliterated serial number, see U.S.S.G.
§ 2K2.1(b)(4)(A), whereas earlier versions had called for
only a two-level enhancement. The final offense level
called for a sentence in the range of fifty-seven to seventy-
one months. The court considered imposing a sentence
above that range in view of Lumsden’s relatively exten-
sive and serious criminal history (he had three felony
convictions and several misdemeanor convictions). How-
ever, the court ultimately rejected that possibility given
the increases in Lumsden’s offense level triggered by
the 2006 Guidelines. R. 65 at 22-23.
The district court imposed a sixty-six month term on
Hill. Hill contended that he was entitled to a reduction
in his offense role for having played a minor or minimal
role in the offense. See U.S.S.G. § 3B1.2. Hill’s theory was
that because he was not involved in the theft of the
guns, did not profit from the sale of the guns to the CI, and
only briefly possessed the guns when he carried them
out to the CI’s automobile on September 11, his role in
the offense was much less culpable than that of Lumsden
and the average participant in unlawful weapons posses-
sion. But the district court rejected Hill’s request for the
reduction. The court reasoned in part that Hill was not
Nos. 07-2714 & 07-2715 7
eligible for the reduction because he had not been
charged for the theft and sale of the guns, in which he
played a lesser role than Lumsden, but rather solely with
his own possession of the guns. R. 70 at 12-13. “This is a
narrowly tailored offense, and I’m satisfied that . . . he is
not eligible for it under all these facts.” R. 70 at 13. Alter-
natively, the court held that even if Hill was eligible for
the reduction it was not appropriate in his case, as “he
would not be substantially less culpable than the average
participant in his possession.” R. 70 at 13. The resulting
offense level produced an advisory sentencing range of
fifty-seven to seventy-one months—the same as
Lumsden’s. (Hill too had prior convictions for three
felonies and “countless misdemeanor offenses.” R. 70 at
26.) The court rejected Hill’s request for a sentence below
that range based essentially on the same facts underlying
his (rejected) request for a mitigating-role reduction.
“I sense that in your situation it was Lumsden’s scheme,
and you were there. You’re his buddy and you possessed
the weapon just to help him out.” R. 70 at 27. But given
the circumstances of the offense, Hill’s criminal history,
and the other relevant sentencing factors, see 18 U.S.C.
§ 3553(a), the court concluded that a below-Guidelines
sentence was not appropriate. In deciding where within
the range to sentence Hill, the court referenced the sen-
tence it had imposed on Lumsden:
[Y]our co-defendant received 71 months. I almost was
going to depart upward and sentence him to 96
months, but I did not, and that was on the basis that
he got extra points for the possession of the other
weapon. I think there was an obliterated serial num-
ber. . . .
8 Nos. 07-2714 & 07-2715
And then he got another enhancement [for possession
of the firearms in connection with the burglary].
***
He would have gotten a 96-month sentence but for
the fact that the guidelines had changed since he
pled guilty, and I’ve tried to recognize that . . .
So, in sentencing you within the guideline range, I’ve
compared what I think is appropriate in comparison
to your codefendant, who would have received some
90 months. I’m sentencing you to 66 months in the
Bureau of Prisons. . . .
R. 70 at 28.
II.
A. Hill
Hill maintains that he was entitled to a reduction in
his offense level for the weapons offense based on his
minimal or minor role in that offense. Hill’s position is
that when one looks to the broader conduct of which his
possession of the weapons was a part—namely, the theft
and subsequent sale of the guns to the CI—his involve-
ment was indeed minor if not minimal: he did not par-
ticipate in the burglary in which the guns were taken, he
did not arrange the sale of the guns to the CI, nor did he
profit from the sale. His involvement was limited to
wrapping the guns in the blanket (on September 7) and
helping to carry them from Lumsden’s home to the CI’s
vehicle outside (on September 11). In calculating Hill’s
Nos. 07-2714 & 07-2715 9
advisory range under the Sentencing Guidelines, the
probation officer did not grant Hill the benefit of a mitigat-
ing role reduction. Hill objected to the Pre-Sentence
Report (“PSR”) on that basis, but as we have noted, the
district court overruled the objection, reasoning in part
that Hill was not eligible for a reduction in view of the
fact he was only being held accountable at sentencing
for his own possession of the weapons and alternatively
that, even if Hill should be deemed eligible for a reduc-
tion, he did not merit one because he was not substantially
less culpable than the average participant in the offense.
Section 3B1.2 provides for “a range of [offense-level]
adjustments for a defendant who plays a part in com-
mitting the offense that makes him substantially less
culpable than the average participant.” U.S.S.G. § 3B1.2,
cmt. (n.3(A)). As logic would suggest, the guideline only
applies when there was more than one criminally
culpable participant in the offense. Id., cmt. (n.2). The
guideline permits a four-level decrease in the defendant’s
offense level if the defendant was a “minimal participant”
in the offense—one who is “plainly among the least
culpable of those involved in the conduct of a group,” id.,
cmt. (n.4)—a two-level reduction if he was a “minor
participant”—one who “is less culpable than most other
participants, but whose role could not be described as
minimal,” id., cmt. (n.5)—and a three-level reduction if
his participation fell somewhere between “minimal” and
“minor.” The determination whether to grant the defen-
dant credit for his lesser role in the offense requires the
court to “weigh[ ] the totality of the circumstances” and is
“heavily dependent on the facts of the particular case.” Id.,
10 Nos. 07-2714 & 07-2715
cmt. (n.3(C)). We review the district court’s construction
of a guideline and its methodology in applying the guide-
line de novo, as these present legal questions. See United
States v. Wasz, 450 F.3d 720, 726 (7th Cir. 2006). We review
the court’s factual findings for clear error. United States
v. Veazey, 491 F.3d 700, 706 (7th Cir. 2007). And to the
extent a particular guideline enhancement or reduction
(properly construed and applied) rests on the court’s
factual assessment, we review the decision to impose
or deny the enhancement or reduction for clear error.
United States v. Wagner, 467 F.3d 1085, 1089 (7th Cir. 2006).
The commentary to the mitigating role guideline was
amended in 2001 in a respect that has particular impor-
tance in this case. Prior to the amendment, we were of
the view that if a defendant, notwithstanding his partic-
ipation in concerted criminal activity, was sentenced solely
for his own criminal conduct and not the conduct of the
other participants in the concerted activity, then he was
ineligible for a mitigating role reduction. See, e.g., United
States v. Hamzat, 217 F.3d 494, 497 (7th Cir. 2000). To
resolve a division among the circuits on this issue, the
Sentencing Commission in 2001 added the following
statement to the commentary:
A defendant who is accountable under 1.3 (Relevant
Conduct) only for the conduct in which the defendant
personally was involved and who performs a limited
function in concerted criminal activity is not pre-
cluded from consideration for an adjustment under
this guideline. For example, a defendant who is con-
victed of a drug trafficking offense, whose role in the
Nos. 07-2714 & 07-2715 11
offense was limited to transporting or storing drugs
and who is accountable under 1.3 only for the quantity
of drugs the defendant personally transported or
stored is not precluded from consideration for an
adjustment under this guideline.
U.S.S.G. § 3B1.2, cmt. (n.3(A)); see also id., Historical Notes
regarding 2001 amendments. We have recognized that the
amended commentary effectively overruled our prior
cases on this subject. United States v. Rodriguez-Cardenas,
362 F.3d 958, 960 (7th Cir. 2004); see also United States
v. Panaigua-Verdugo, 537 F.3d 722, 725 (7th Cir. 2008).
In view of the amended commentary, the district court
committed legal error in deeming Hill ineligible for a
mitigating role reduction pursuant to section 3B1.2.
Although the district court was aware of the 2001 amend-
ment, it believed there was “no basis” for a reduction
given that Hill had pleaded guilty simply to a “narrowly
tailored” felon-in-possession charge rather than a broader
charge such as the distribution of firearms as to which he
played a lesser role than his co-defendant. Sent Tr. 12-13.
This reasoning fails to appreciate the change wrought
by the amended commentary and largely repeats the
very rationale that the Sentencing Commission rejected.
Consider that prior to the 2001 amendment, we had
repeatedly held that a minor player in a drug trafficking
conspiracy who was charged and sentenced only for the
amount of drugs that he himself had possessed was not
eligible for a mitigating role reduction because he was
being held to account only for his own acts and not for
the acts of the other conspirators—including the
12 Nos. 07-2714 & 07-2715
amounts of drugs they had distributed. See, e.g., Hamzat,
217 F.3d at 497 (“This circuit follows the rule that where
a defendant is sentenced only for the amount of drugs
he handled, he is not entitled to a § 3B1.2 reduction.”); see
also United States v. Perez, 249 F.3d 583, 584 (7th Cir. 2001)
(per curiam) (coll. cases). That was precisely the district
court’s rationale here: because Hill was charged with,
convicted of, and sentenced for only his own possession
of the firearms, and not the burglary or the sale of those
firearms, the court could not credit him for his lesser role
in the broader scheme to obtain and distribute the fire-
arms. And this is precisely the view that the Sentencing
Commission has rejected. See § 3B1.2, cmt., historical
notes regarding 2001 amendments (“In contrast to the
holding in United States v. Burnett, [66 F.3d 137, 140-41
(7th Cir. 1995)], this amendment allows the court to
apply traditional analysis on the applicability of a reduc-
tion pursuant to § 3B1.2, even in a case in which a defen-
dant is held liable under 1.3 only for conduct (such as
drug quantities) in which the defendant was involved
personally.”). There is nothing unique about the nature
of the felon-in-possession offense to which Hill pleaded
guilty that alters the analysis. See id. (“Although th[e]
circuit conflict [resolved by the 2001 amendment] arose
in the context of a drug offense, the amendment resolves
it in a manner that makes the rule applicable to all types
of offenses.”). Just as one drug transaction may be part
of a broader trafficking operation and may be recognized
as such in sentencing, Hill’s possession of the guns was
one step in a longer sequence of events through which
firearms were obtained by burglary and then sold to the
Nos. 07-2714 & 07-2715 13
CI.1 That context cannot be disregarded in assessing
his eligibility for a mitigating role reduction. The intro-
ductory comments to the role in the offense provisions
of the Guidelines could not be more clear on this point:
“The determination of a defendant’s role in the offense is
to be made on the basis of all conduct within the scope
of §1B1.3 (Relevant Conduct), i.e., all conduct included
under §1B1.3(a)(1)-(4), and not solely on the basis of
elements and acts cited in the count of conviction.”
U.S.S.G. Chapter Three, Part B, intro. cmt.; see United
States v. Anderson, 259 F.3d 853, 864 n.9 (7th Cir. 2001)
(citing United States v. Ramsey, 237 F.3d 853, 861-62 (7th
Cir. 2001)). In short, Hill’s offense of conviction should
not be treated as an isolated act in which only he was
involved, but rather one step in a broader criminal
scheme that involved multiple participants. Hill is
eligible for a section 3B1.2 reduction.
Although the district court went on to summarily state
that Hill “was not substantially less culpable than the
average participant in his possession,” which is a
factual determination normally entitled to deferential
review, we cannot be confident that its analysis was
guided by the appropriate factors. We do agree that in
addition to assessing a defendant’s role in a particular
crime, a court must consider whether he is significantly
1
That sequence distinguishes this case from United States v.
Thompson, 990 F.2d 301, 303-04 (7th Cir. 1993), in which, so far
as the reported facts reveal, the defendant simply possessed
the gun (alone or perhaps jointly with his girlfriend) without
doing so in furtherance of a broader criminal scheme.
14 Nos. 07-2714 & 07-2715
less culpable than the average participant in the offense.
See United States v. McGee, 408 F.3d 966, 987 (7th Cir.
2005). In other words, just because a particular defendant
may have been less culpable than the leader of concerted
criminal activity does not mean that he qualifies as a
minor or minimal participant. Id.; see also United States v.
Gallardo, 497 F.3d 727, 741 (7th Cir. 2007), cert. denied, 129
S. Ct. 288 (2008). But the court’s approach to that ques-
tion here reflects an inclination to divorce the offense of
conviction from the surrounding facts, and once that is
done to treat Hill’s possession of a gun as no different (and
no less culpable) than anyone else’s possession. But there
are any number of ways in which a firearm may be pos-
sessed and any number of purposes for which it may be
possessed, and although these may have no bearing on a
felon’s criminal liability for the possession (one either
possesses a gun or one does not), they do reflect on the
gravity of the offense. Consider a felon who is shown a
gun while visiting the home of a friend and takes it into
his hands to admire it for a moment, and compare that
felon to one who keeps a gun in his own home and one
day points it at a police officer who arrives to execute a
search warrant. The former is just as guilty of violating
section 922(g)(1) as the latter, notwithstanding his transi-
tory possession of the gun. See United States v. Matthews,
520 F.3d 806 (7th Cir. 2008). Yet one would not expect that
their acts of possession would necessarily be treated as
equivalent for sentencing purposes. Just as the second
felon’s malevolent use of the gun against the police officer
would be treated as an aggravating factor at sentencing, see
United States v. Purifoy, 326 F.3d 879, 880-81 (7th Cir. 2003),
Nos. 07-2714 & 07-2715 15
the first felon’s momentary possession absent an intent to
use the gun for malevolent purposes might be considered
a mitigating factor in the wake of United States v. Booker,
543 U.S. 220, 125 S. Ct. 738 (2005), see 18 U.S.C. § 3553(a)(1)
and (a)(2)(A); United States v. Williams, 403 F.3d 1188, 1198-
1200 (10th Cir. 2005); cf. United States v. Sura, 511 F.3d 654,
664 (7th Cir. 2007) (sentencing judge can consider circum-
stances that make possession of firearm more ominous
than the guidelines might otherwise recognize).
We find ourselves making the same point vis-à-vis Hill’s
entitlement to the 3B1.2 reduction that we have already
made in discussing his eligibility for the reduction:
The facts underlying his possession of the guns matter. So
far as the record reveals, his involvement with the guns
was limited to a few discrete acts occupying no more
than a few minutes on each of two occasions. On the
first, he wrapped the guns in a blanket, and on the
second, he carried the guns to the CI’s car. He did not
participate in the theft of the guns. He did not participate
in arranging the sale of the guns to the CI, and he did
not profit from the sale of the guns to the CI. Cf. United
States v. Emerson, 501 F.3d 804, 816 (7th Cir. 2007) (mitigat-
ing role reduction properly denied to participant in
conspiracy to possess cocaine via robbery, where
although defendant did not participate in robbery of
drug shipment, he was prepared to do so if needed and
stood to profit from it). His actions did further the dis-
tribution of the stolen guns, see United States v. Sorich, 523
F.3d 702, 717 (7th Cir. 2008) (finding mitigating role
reduction properly denied where although defendant
played a lesser role than co-defendant, he nonetheless
16 Nos. 07-2714 & 07-2715
performed a function essential to success of scheme),
cert. denied, 129 S. Ct. 1308, but reasonable minds could
differ as to the importance of his brief involvement. See
United States v. Hunte, 196 F.3d 687, 694-95 (7th Cir. 1999)
(defendant a minor if not minimal participant in
marijuana conspiracy where although she registered for
motel room where conspirators rested, helped roll a joint
for sampling, closed window blinds to conceal her co-
conspirator’s activities, and drove one of vehicles used to
transport conspirators, she did not handle drugs, was not
involved in negotiations, and did not stand to profit
from her involvement). Hill performed tasks that had to
be done, but his involvement was by no means essential
to the success of the scheme (the guns could just as easily
have been wrapped and carried to the CI’s car by either
Lumsden or the CI), and his contributions appear to
have been incidental.
Our point is thus not that Hill necessarily is entitled to
credit for being a minor or minimal participant in the
offense but rather that he is entitled to have the district
court reconsider the matter. We shall remand the case
to the district court for that purpose.
Because we are remanding the case for reconsideration
of a possible reduction based on Hill’s role in the offense,
we call the district court’s attention to one other point.
When addressing the appropriate length of sentence for
Hill, the district court referenced his co-defendant
Lumsden, and the court’s remarks could be read to
suggest that Hill’s sentence should be calculated in part
based not on the actual sentence that Lumsden received,
Nos. 07-2714 & 07-2715 17
but the longer sentence that the court considered
imposing on Lumsden but did not. We are not certain
from the court’s remarks whether the court, in the end,
used Lumsden’s actual sentence or a hypothetically
longer sentence as its benchmark. It may be, as the gov-
ernment suggests, that what the court was saying was
that it had considered sentencing Lumsden to a prison
term above the advisory Guidelines range but ultimately
did not, and for that reason it would not sentence Hill
above the Guidelines range either. (The court previously
had signaled that it was considering an above-Guidelines
sentence for Hill as well.) But we cannot be sure that this
is what the court meant. Referencing the longer sentence
that the court did not, in the end, impose on Lumsden
would be problematic, given that the principal reason
cited by the court for a longer sentence was Lumsden’s
criminal history, which had nothing to do with Hill and
his own culpability. We invite the court to revisit and
clarify its reasoning in this regard on remand.
B. Lumsden
In calculating Lumsden’s offense level, the district court
applied a four-level enhancement pursuant to Guidelines
section 2K2.1(b)(6), which mandates such an increase “[i]f
the defendant . . . possessed any firearm . . . in connection
with another felony offense . . . .” Effective November 1,
2006, the commentary to this guideline was amended
to state the following in regard to the meaning of the
phrase “in connection with”:
18 Nos. 07-2714 & 07-2715
14. “In Connection With”—
(A) In General. Subsection [ ] (b)(6) . . . appl[ies] if
the firearm or ammunition facilitated, or had the
potential of facilitating, another felony offense. . . .
(B) Application When Other Offense is Burglary
or Drug Offense. Subsection [ ] (b)(6) . . . appli[ies]
(i) in a case in which a defendant, . . . during the
course of a burglary, finds and takes a firearm,
even if that defendant did not engage in any
other conduct with that firearm during the
course of the burglary . . . .
***
US.S.G. § 2K2.1, comment. (n.14). There is no dispute the
increase to Lumsden’s offense level was required by
Application Note 14(b)(i): Lumsden took in a burglary the
firearms he was convicted of possessing. But Lumsden
argues that the amended commentary is inconsistent with
the language of the guideline. He also contends that
because the amended commentary took effect after his
crime, the district court’s reliance on that commentary
in calculating his sentencing range violated the Constitu-
tion’s ex post facto clause. Neither argument has merit.
“[C]ommentary in the Guidelines Manual that inter-
prets or explains a guideline is authoritative unless it
violates the Constitution or a federal statute, or is inconsis-
tent with, or a plainly erroneous reading of, that guide-
line.” Stinson v. United States, 508 U.S. 36, 38, 113 S. Ct.
1913, 1915 (1993). Application Note 14(B)(i) is consistent
with the language of Guideline 2K2.1(b)(6).
Nos. 07-2714 & 07-2715 19
Lumsden’s contention is that Note 14(b)(i) disregards
the guideline’s requirement that the defendant possess a
firearm in connection with “another” felony offense, that
is, an offense distinct from the weapons offense itself.
As Lumsden points out, we held in United States v. Szakacs,
212 F.3d 344, 349-52 (7th Cir. 2000), that the 2K2.1(b)(6)
enhancement was improperly applied to defendants
convicted of the federal offense of conspiring to steal
firearms from a licensed dealer. The district court had
imposed the enhancement on the theory that the stolen
weapons had been possessed in connection with the state-
law offense of conspiracy to commit burglary. We
reasoned that because there was no separation either in
time or in conduct between the state and federal offenses,
it was not possible to say that the weapons had been
used to commit an offense apart from the offense of
conviction. Id. Taking his cue from Szakacs, Lumsden
posits that because he took possession of the firearms as a
result of the burglary, his possession cannot be divorced
from that offense; in other words, the burglary was not
“another” offense but one of which his possession of the
guns was part and parcel. “[T]he language of the Guide-
line does not allow the enhancement when the other
offense is not a separate offense but the very act of illegally
obtaining possession of the guns.” Lumsden Br. 16.
But as our decision in United States v. Purifoy, supra, 326
F.3d at 880-81, reveals, the relevant question is not
whether the two offenses occur simultaneously or have
some causal relationship with one another, but whether
they are based on the same conduct. Purifoy sustained the
enhancement for a defendant who, like Lumsden, was
20 Nos. 07-2714 & 07-2715
convicted of being a felon in possession; the enhance-
ment was based on the fact that the defendant had com-
mitted the additional offense of aggravated assault by
pointing the gun at a police officer. The fact that the two
offenses occurred at the same time was immaterial, in
our view. “[Purifoy’s] offense of conviction, because he
was a felon, involved mere possession of a firearm. When
he pointed his gun at the arresting officers, he committed
an aggravated assault—he was actually using the weapon.”
Id. at 881 (emphasis in original).
As in Purifoy, the enhancement in this case was based on
conduct that was distinct from Lumsden’s simple posses-
sion of the firearms, namely the burglary. We understand
Lumsden’s point that he could not have possessed
these particular guns without committing the burglary.
But that does not render the two offenses one and the
same for sentencing purposes. The offenses are based on
separate conduct, and the fact that Lumsden committed
one of the crimes did not mean that he necessarily had
to commit the other: He could have burglarized the
residence without taking possession of the guns, and
he could have possessed a gun (even these guns, if he
came by them a different way) without committing a
burglary. The district court therefore properly treated
the crimes as distinct for purposes of the 2K2.1(b)(6)
enhancement.
We note finally that the guideline does not require
Lumsden to have possessed the weapons for the purpose
of committing the burglary. The guideline by its terms
requires only that the defendant have possessed a
Nos. 07-2714 & 07-2715 21
weapon “in connection with” another offense. That lan-
guage is sufficiently broad to include possessing a
weapon as a result of the burglary, see United States v.
Armstead, 114 F.3d 504, 511-12 (5th Cir. 1997), and thus to
accommodate the interpretation reflected in the com-
mentary.
Lumsden goes on to argue that it was a violation of his
rights under the ex post facto clause of the Constitution
for the district court to use the 2006 Guidelines
Manual which included the amended commentary in
sentencing him, given that his offense took place two
months prior to the November 1, 2006 effective date of
the new commentary. Lumsden assumes that absent
the new commentary, he would not have received the
enhancement. That is not a given. The Fifth Circuit
had previously interpreted the guideline language to
apply to the unlawful possession of weapons that were
taken in a burglary, see Armstead, 114 F.3d at 512-13, and
we had indicated in Szakacs that “we d[id] not neces-
sarily disagree with” that aspect of the Fifth Circuit’s
analysis, 212 F.3d at 349 (although we did disagree
with Armstead in another respect, id. at 349-52).
But even giving Lumsden the benefit of the doubt on
this point, our decision in United States v. Demaree, 459
F.3d 791, 795 (7th Cir. 2006), cert. denied, 127 S. Ct. 3055(2007), forecloses his argument, as Lumsden himself
recognizes. Demaree held that in view of the advisory
nature of the Guidelines following the Supreme Court’s
decision in United States v. Booker, supra, 543 U.S. 220, 125
S. Ct. 738, there is no ex post facto problem posed by
22 Nos. 07-2714 & 07-2715
applying the version of the Guidelines in effect at the
time of the defendant’s sentencing, even if that version
incorporates disadvantageous revisions that took effect
after the defendant committed his offense.
III.
The district court erred in deeming Hill ineligible for a
possible reduction in his offense level based on his
minimal or minor role in the offense. We therefore V ACATE
Hill’s sentence and R EMAND for reconsideration of his
entitlement to such a reduction and also clarification as
to the manner in which the court took into account his co-
defendant’s sentence. The court properly enhanced
Lumsden’s offense level based on his possession of a
weapon in connection with another offense. We there-
fore A FFIRM his sentence.
4-21-09