* This order and judgment is not binding precedent, except under the doctrines of

law of the case, res judicata, and collateral estoppel. The court generally disfavors the citation of orders and judgments; nevertheless, an order and judgment may be cited under the terms and conditions of 10th Cir. R. 36.3. 

## F I L E D United States Court of Appeals Tenth Circuit 

### MAY 5 1998 

### PATRICK FISHER Clerk UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

UNITED STATES OF AMERICA,

Plaintiff - Appellee, No. 97-3267

v. D. Kansas ROBERT JAMES HUNT,

Defendant - Appellant. (D.C. No. 97-10031-01)

ORDER AND JUDGMENT *

Before ANDERSON , McKAY , and LUCERO , Circuit Judges.

After examining the briefs and appellate record, th is panel has determined unanimously that oral argument would not materiallyassist the determination of this appeal. See Fed. R. App. P. 34 (a); 10th Cir. R. 34.1.9. This cause is therefore ordered submitted without oral argument. Robert Hunt pleaded guilty to one count of possessi on of a firearm by a convicted felon, in violation of 18 U.S.C. § 922(g) (1), and one count of-2-

impersonating a Secret Service agent, in violation of 18 U.S.C. § 912. He now appeals the sentence imposed, contending that the d istrict court erred by increasing his offense level pursuant to USSG § 2K2 .1(b)(5). We affirm.

BACKGROUND Hunt was originally indicted on three counts of pos session of firearms after having been previously convicted of a felony, and o n one count of impersonating a federal agent. Pursuant to a plea bargain, the g overnment dismissed two of the firearm counts, and Hunt pleaded guilty to a single count involving his possession of a Remington Shotgun. Hunt also pleaded guilty t o the charge of impersonating a Secret Service agent, and it is the conduct relat ed to the impersonation charge which forms the basis for the sentencing enhancement under USSG § 2K2.1(b)(5). The Presentence Investigation Report (“PSR”) recit es the following offense conduct: On February 27, 1997, authorities interviewed Warr en L. McCann, an employee of John’s Sports Center, 1804 N . Broadway, Pittsburg, Kansas. McCann reported that sometime i n November 1996, at John’s Sports Center, he was approached byRobert Hunt. Mr. Hunt was seeking to purchase a concealment-type holster for a 9mm Sig Sauer P-228 semi-automatic pistol. McCann indicated Hunt pulled the pistol from concealment on his person an d showed it to him. McCann stated Hunt told him that he (Hunt) wa s an agent of the U.S. Secret Service. Hunt also indicated that prior to serving as a Secret Service Agent, he was a Navy Seal. Hunt further offered to provide investigative services to McCann.1 By contrast, Hunt states that, if the evidence had shown that he identified himself

as a Secret Service Agent before asking for a holster for his gun, “then a connection between the crime of impersonating a Secret Agent and possessing the firearm might have been established.” Appellant’s Br. at 12. -3- R. Vol. II ¶ 7. Noting that Hunt “possessed a fire arm (Sig. Model P-228 9mm pistol) in connection with another felony offense ( Impersonation of a Secret Service Agent),” the PSR added four points to Hunt’ s base offense level pursuant to USSG § 2K2.1(b)(5). Id. ¶ 21. Hunt objected to the increase, arguing that the des cribed conduct failed to show the requisite nexus between his possessing the gun and his impersonating a Secret Service Agent. Id. , Addendum ¶¶ 110-123. Specifically, Hunt argued t hat the official interview report with McCann indicated that Hunt did not make the statement about being a Secret Service Agent until “afterhe had shown McCann his pistol in order to buy a holster.” Id. ¶ 123 (emphasis in original). According to Hunt’s theory, the undisputed sequence of the tw o events demonstrates only a coincidental relationship between his possession of the gun and his felony impersonation. 1 Therefore, Hunt objected that the government had failed to prove by a preponderance of the evidence that he possesse d the gun “in connection with” the impersonation. In response to Hunt’s objection, the probation offi cer noted that the brand and model weapon for which Hunt was seeking a conce alment holster “is the-4-

same type issued by the Secret Service to its’ [sic ] agents,” and that “the possession of such assisted Mr. Hunt in convincing Mr. McCann that he (Hunt) was actually an agent of the Secret Service.” Id. ¶ 125, 126.

DISCUSSION Under USSG § 2K2.1(b)(5), a defendant’s base offens e level is increased by four levels “[i]f the defendant used or possesse d any firearm . . . in connection with another felony offense.” Id. We review the district court’s factual findings in support of a sentence enhancement for clear erro r, United States v. ValdezArieta , 127 F.3d 1267, 1270 (10th Cir. 1997), and we viewthe evidence and inferences therefrom in the light most favorable to the district court’s determination. United States v. Conley , 131 F.3d 1387, 1389 (10th Cir. 1997), petition for cert. filed , (U.S. Mar. 16, 1998) (No. 97-8337). However, we review the district court’s interpretation of the sentenci ng guidelines de novo. United
States v. Smartt , 129 F.3d 539, 540 (10th Cir. 1997). On appeal, Hunt contends that the government failed to demonstrate anything more than a coincidental relationship betw een his possession of the gun and his felony impersonation. He argues that the r ecord is completely void of any facts which show that he knew his weapon was the s ame type as the weapons used by Secret Service Agents. Moreover, he conten ds that the evidence shows2 The government correctly notes that the disjunctive second portion of USSG

§ 2K2.1(b)(5) does contain a requirement of intent or knowledge. Appellee’s Br. at 5 n.11. That language does not govern Hunt’s case, however, and he makes no argument that it should.

3 Compare § 2K2.1(b)(5) with § 2D1.1(b)(1), whose accompanying commentary specifically provides that the stated enhancement applies whenever the weapon was present in some proximity to the offense, unless the defendant shows that it was “clearly improbable” that the gun was connected with the offense. USSG § 2D1.1(b)(1) & comment. (n. 3). Based on that commentary as well as the difference in the plain language of the two guidelines—i.e. , mere possession under § 2D1.1(b)(1) versus possession “in connection with” under § 2K2.1(b)(5)—we have required different proof for enhancements under the respective sections. United States v. Gomez-Arrellano , 5 F.3d 464, 466 (10th Cir. 1993). -5- that his wife purchased the gun several years befor e the felony at issue, and such evidence refutes any conclusion that he acquired th e gun to facilitate the offense. In response, the government notes that the relevantportion of § 2K2.1(b)(5) does not require that the gun be acquired for the purpos e of the felony offense. 2 Additionally, the government notes that only specia lly authorized persons, such as law enforcement officers, may carry concealed weapo ns under Kansas law. K.S.A. § 21-4201(a)(4), (b). Hence, the fact that Hunt identified himself as a Secret Service Agent, together with the fact that t he gun was the type used by Secret Service Agents, also served to explain his a uthority to carry the weapon. Except for its plain language, USSG § 2K2.1(b)(5) p rovides no guidance regarding the application of the “in connection wit h” nexus between firearm possession and the felony offense. 3 However, we have previously explained the required nexus in United States v. Gomez-Arrellano , 5 F.3d 464, 466-67 (10th4In a prior case, we rejected a defendant’s argument that the standard for § 924(c)

should also apply to enhancements under § 2K2.1(b)(5). United States v. Sanders , 990 F.2d 582, 585 & n.1 (10th Cir. 1993). At the time Sanderswas decided, however, this circuit employed a much higher standard for § 924(c) than the Supreme Court later articulated in Smith v. United States , 508 U.S. 223 (1993). -6- Cir. 1993). Specifically addressing the guideline’ s plain language, we have held that the “in connection with” requirement of § 2K2. 1(b)(5) is analogous to the “in relation to” requirement of 18 U.S.C. § 924(c)(1), which “is satisfied if the government shows that the weapon facilitates or has the potential to facilitate the . . . offense, but is not satisfied if the weapon’s possession is coincidental or entirely unrelated to the offense.” 4 Id. at 466-67 (citing the “expansive” reading of § 924(c) in Smith v. United States , 508 U.S. 223, 238 (1993)); see also United
States v. Bunner , 134 F.3d 1000, 1006 (10th Cir. 1998). In this case, the district court correctly noted th at the government may prove the “in connection with” requirement of § 2K2 .1(b)(5) if it shows, by a preponderance of the evidence, that the gun had the potential for facilitating the felony offense. Applying that standard, the distri ct court found that the fact that the gun was the same type as the guns issued by the Secret Service to its agents was strong circumstantial evidence that Hunt posses sed the weapon for the purpose of facilitating the impersonation offense. The court further found that, regardless of whether Hunt displayed the weapon bef ore or after falsely identifying himself as a Secret Service Agent, the weapon was intended to and-7-

had the potential of facilitating the impersonation . R. Vol. IV, Tab 34 at 15-16; R. Vol. I, Tab 26 at 2. Viewing the evidence and i nferences therefrom in the light most favorable to the district court’s determinatio n, we conclude that its findings are not clearly erroneous. Accordingly, we AFFIRM the judgment of the districtcourt. ENTERED FOR THE COURT
Stephen H. Anderson Circuit Judge