In the

United States Court of Appeals

For the Seventh Circuit

No. 08-4081

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v.

JASON A. KRUMWIEDE,

Defendant-Appellant.

Appeal from the United States District Court

for the Western District of Wisconsin.

No. 3:08-cr-00090-bbc-1—Barbara B. Crabb, Chief Judge.

ARGUED OCTOBER 28, 2009—DECIDED MARCH 31, 2010

Before RIPPLE, WILLIAMS and TINDER, Circuit Judges.

RIPPLE, Circuit Judge. Jason A. Krumwiede pleaded

guilty to charges that he had stolen thirty-four firearms

from a federally licensed firearms dealer, in violation of

18 U.S.C. § 922(u), and that he had possessed a firearm

after having been convicted of a felony, in violation of

18 U.S.C. § 922(g)(1). Mr. Krumwiede was sentenced to

140 months’ imprisonment. He now appeals his sentence on the ground that the district court improperly
2 No. 08-4081

included in its Guidelines calculation the four-level

enhancement provided in § 2K2.1(b)(6). We conclude that

the district court committed no error by applying this

enhancement. Accordingly, we affirm the judgment of

the district court. 

I

BACKGROUND

In the early morning of March 9, 2008, Mr. Krumwiede

broke into Main Street Guns & Knives, a federally licensed

firearms dealer in Medford, Wisconsin. Responding to the

silent alarm, the police soon arrived. Mr. Krumwiede

ignored their order to stop, and he fled the scene. The

police later found him hiding in a nearby dumpster and

arrested him. The police recovered two guns in the dumpster, fifteen guns in a bag by the door from which

Mr. Krumwiede had exited the store and additional guns

in the store that had been removed from their cases.

At least one of the guns was a semiautomatic firearm

capable of accepting a large capacity magazine.

On June 4, 2008, a grand jury returned a two-count

indictment against Mr. Krumwiede. He was charged with

theft of thirty-four firearms from a federally licensed

dealer, in violation of 18 U.S.C. § 922(u), and with being

a felon in possession of a firearm, in violation of 18

U.S.C. § 922(g)(1). On September 15, 2008, Mr. Krumwiede

entered a plea of guilty to both counts pursuant to a

written plea agreement.
No. 08-4081 3

The PSR utilized the November 2008 version of the Guide- 1

lines. The PSR made the following calculations:

Base offense level: 22 pursuant to U.S.S.G. § 2K2.1(a)(3),

because the offense involved a semiautomatic firearm

capable of accepting a large capacity magazine and

Mr. Krumwiede had already been convicted of a prior

violent felony;

Six level enhancement: pursuant to § 2K2.1(b)(1)(c),

because the offense involved more than 25 firearms;

Two level enhancement: pursuant to § 2K2.1(b)(4)(a),

because the firearms involved in the offense were

stolen;

Reduction to 29 levels: pursuant to § 2K2.1(b)(4), because

the §§ 2k2.1(b)(1)-(4) enhancements cannot produce

an offense level greater than 29;

Four level enhancement: pursuant to § 2K2.1(b)(6) and

Application Note 14(B) because Mr. Krumwiede possessed guns in connection with another felony offense;

and

Three level reduction: pursuant to § 3E1.1 for acceptance

of responsibility and cooperation. 

Mr. Krumwiede’s criminal history category was VI. With a base

offense level of thirty and criminal history category of VI,

the Guidelines range was 168 to 210 months.

On November 25, 2008, the district court conducted a

sentencing hearing. Prior to the hearing, Mr. Krumwiede

filed a written objection to the sentence calculation contained in the pre-sentence report (“PSR”); speci- 1

fically, Mr. Krumwiede objected to the inclusion of the
4 No. 08-4081

Section 2K2.1(b)(6) provides: 2

If the defendant used or possessed any firearm or

ammunition in connection with another felony offense;

or 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, increase by 4 levels. If the resulting

offense level is less than level 18, increase to level 18.

Application Note 14 reads, in relevant part, 3

14. “In Connection With”.—

(A) In General.—Subsections (b)(6) and (c)(1)

apply if the firearm or ammunition facilitated,

or had the potential of facilitating, another

felony offense or another offense, respectively.

(B) Application When Other Offense is Burglary or Drug Offense.—Subsections (b)(6) and

(c)(1) apply [] 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 . . . . In these

cases, application of subsections (b)(6) and

(c)(1) is warranted because the presence of

(continued...)

§ 2K2.1(b)(6) four-level enhancement for possession of

2

firearms in connection with another felony offense

because, he maintained, no other felony offense had been

committed. R.30. The Government replied that the enhancement was appropriate; it relied on Application

Note 14(B). The Sentencing Commission had promulgated

3
No. 08-4081 5

(...continued) 3

the firearm has the potential of facilitating

another felony offense or another offense,

respectively.

(C) Definitions.—

“Another felony offense”, for purposes of

subsection (b)(6), means any Federal, state, or

local offense, other than the explosive or firearms possession or trafficking offense, punishable by imprisonment for a term exceeding

one year, regardless of whether a criminal

charge was brought, or a conviction obtained.

U.S.S.G. § 2K2.1 app. n. 14.

this application note in 2006 to resolve a circuit split over

the application of § 2K2.1(b)(6) when a defendant’s conduct constituted another felony offense in the nature

of burglary or a drug offense. See infra at 11. In an addendum to the PSR, the Probation Officer noted that

Mr. Krumwiede’s objection was supported by United

States v. Szakacs, 212 F.3d 344, 346 (7th Cir. 2000), which

had determined that the state offense of conspiracy to

commit burglary, committed simultaneously with the

charged federal offense of conspiracy to steal firearms

from a federally licensed dealer, did not qualify as “another felony offense” for purposes of the § 2K2.1(b)(6)

enhancement. R.32 at 2. The Probation Officer nevertheless concluded that Application Note 14(B), promulgated after Szakacs, had resolved a circuit conflict with

respect to the term “in connection with” in § 2K2.1(b)(6)
6 No. 08-4081

The district court considered Mr. Krumwiede’s age (27), the 4

fact that he was under the influence of alcohol at the time of

the offense, his acceptance of responsibility, his admission

that he was an alcoholic and the unsophisticated nature of the

offense. See Tr. at 16, Nov. 25, 2008.

and that “[t]he Commission determined the enhancement was warranted in cases involving burglary because

of the potential a firearm has to facilitate another offense.” R.32 at 2.

The district court overruled Mr. Krumwiede’s objection

and included the § 2K2.1(b)(6) enhancement in its Guidelines calculation. The district court explained that Application Note 14(B) mandated that the four-level enhancement be included when a defendant took firearms during a burglary, in addition to the other conduct

underlying the charged offense. See Tr. at 6-7, Nov. 25,

2008. Accordingly, the district court accepted the PSR

calculations and determined that the Guidelines range

was 168 to 210 months’ imprisonment. Id. at 15. However,

the district court recognized mitigating factors and departed from the recommended Guidelines range. The 4

district court sentenced Mr. Krumwiede to a term of

140 months’ imprisonment (120 months on count one

and 20 months on count 2, to run consecutively). Id. at 19.

On December 2, 2008, Mr. Krumwiede filed a notice

of appeal.
No. 08-4081 7

II

DISCUSSION

A.

Mr. Krumwiede renews his contention that the district

court erroneously included the § 2K2.1(b)(6) four-level

enhancement in its Guidelines calculation. He maintains that the district court erred by not following

Szakacs, which held that a state offense that occurs contemporaneously with the convicted federal offense

cannot count as “another felony offense” for purposes of

§ 2K2.1(b)(6) unless the offense is “separated in time or

by a distinction of conduct.” United States v. Szakacs,

212 F.3d 344, 351 (7th Cir. 2000) (internal quotation

marks omitted). He also maintains that the 2006 amendment to § 2K2.1 (the inclusion of Application Note 14)

did not implicate the Szakacs rule. In his view, “[w]hile

the Amendment may have clarified when the other

offense is a burglary, the Amendment did not change

this Court’s treatment of the enhancement in those unique cases where the offense of conviction is the burglary

of a federally licensed gun dealer.” Appellant’s Br. 12-13

(emphasis in original). In Mr. Krumwiede’s view, Application Note 14 concerns the “in connection with” phrase

of § 2K2.1(b)(6), not the “another felony offense” phrase.

The Government contends that Szakacs has no relevance

to this case because Application Note 14 “unequivocally”

directs district courts to apply the § 2K2.1(b)(6) enhancement whenever a defendant possessed firearms during

the course of a burglary. Appellee’s Br. 11. The Government submits that Application Note 14(B) created a “per se
8 No. 08-4081

rule regarding burglary” and “altered the previous

judicial construction of the enhancement’s application in

those circuits that had excluded burglary from consideration as ‘another offense.’ ” Id. at 18-19. Additionally, the

Government argues that the conduct consisting of the

burglary—breaking and entering into the store at

night—was an act distinct from the theft of the guns

and Mr. Krumwiede’s possession of them. Id. (citing

United States v. Hill, 563 F.3d 572, 582 (7th Cir. 2009)).

Finally, the Government points out that, in any event,

the sentence imposed was reasonable because it “fell exactly within the 120-150 month range that Krumwiede

would have faced had the district court not applied the

four-level enhancement under § 2K2.1(b)(6).” Id. at 12, 25.

B.

We review de novo questions of law involving the

interpretation of the Guidelines. See United States v.

Stitman, 472 F.3d 983, 986 (7th Cir. 2007). We review a

sentencing court’s findings of fact and applications of the

Guidelines for clear error. Id.

We begin our analysis with an examination of Szakacs.

There, five defendants were convicted of the federal

offense of conspiracy to steal firearms from a licensed

firearms dealer. The defendants’ plan was foiled before

they reached the store and, therefore, no firearms were

actually taken. When sentencing the defendants, the
No. 08-4081 9

When United States v. Szakacs, 212 F.3d 344 (7th Cir. 2000), 5

was decided, § 2K2.1(b)(6) appeared in the Guidelines as

§ 2K2.1(b)(5). It was moved to § 2K2.1(b)(6) in the 2006 Guidelines, at which time Application Note 14(B) was also added.

See infra at 11. The texts of § 2K2.1(b)(5), as it existed prior

to 2006, and § 2K2.1(b)(6), post-2006, are identical.

district court applied the four-level § 2K2.1(b)(5) enhance- 5

ment because “the defendants used or possessed any

firearm or ammunition in connection with another felony

offense, the other felony offense being the state law crime

of conspiracy to commit burglary.” Szakacs, 212 F.3d at 348

(internal quotation marks omitted). We held that the

district court had erred by applying the enhancement. We

found the case “difficult . . . [because] the state law offense

and the federal offense were essentially the same crime.”

Id. at 349. We also recognized that circuits had divided

over whether the enhancement should apply in such

circumstances. Id.

We noted in Szakacs that, in United States v. Armstead, 114

F.3d 504, 511-13 (5th Cir. 1997), the Fifth Circuit had

ruled that the enhancement was appropriately applied

when the defendants were convicted of the federal offense

of stealing firearms from a licensed dealer and the other

offense was the state crime of burglary. In Szakacs, we

contrasted Armstead with the Sixth Circuit’s approach in

United States v. Sanders, 162 F.3d 396, 399-402 (6th Cir.

1998). In Sanders, the Sixth Circuit had held that, when a

defendant was charged with the federal crimes of theft

from a licensed gun dealer, knowingly transporting

stolen firearms and being a felon in possession, the state
10 No. 08-4081

In 2000, Application Note 18 read in pertinent part, “ ‘another 6

felony offense’ and ‘another offense’ refer to offenses other than

explosives or firearms possession or trafficking offenses.” U.S.

Sentencing Guidelines Manual § 2K2.1 app. n. 18 (2000).

Building on the Sanders interpretation, we interpreted that

language so as to exclude burglaries from the definition of

“another felony offense” because Application Note 18 used

the general phraseology of “explosives or firearms possession

or trafficking offenses,” rather than invoking “specific statutory provisions.” Szakacs, 212 F.3d at 350.

law crime of conspiracy to commit burglary did not

qualify as “another felony offense.” In the end, we

agreed with Sanders that, “since almost all federal crimes

can also be characterized as state crimes,” allowing a state

law offense “based on the exact same offense conduct

to count as ‘another felony offense’ renders ‘the word

“another” . . . superfluous, and of no significance to the

application of [the enhancement].’ ” Szakacs, 212 F.3d at

350 (quoting Sanders, 162 F.3d at 400). We also noted

that Sanders interpreted the then-extant Application Note

18 to § 2K2.1(b)(5) as precluding a state burglary crime

from qualifying as “another felony offense.” Id. Finally, we 6

agreed with Sanders that “courts should not adjust a

sentence upward based on factors already reflected in

the base-offense level,” i.e., “double counting” the same

conduct already included in a base offense level calculation. Id. at 350-51. We concluded that the Sixth Circuit’s

approach was consistent with our own previous application of § 2K2.1(b)(5) in situations where “there was ‘a

finding of a separation of time between the offense
No. 08-4081 11

By then, Application Note 18 had been moved to Application 7

Note 15. See U.S. Sentencing Guidelines Manual, Supplement to

Appendix C, 94 (2005) (Amendment 669).

of conviction and the other felony offense, or a distinction

of conduct between that occurring in the offense of conviction and the other felony offense.’ ” Id. at 351 (quoting

Sanders, 162 F.3d at 400). We thus adopted the Sanders

approach and “reject[ed] the approach represented by

the Armstead court.” Id.

In 2006, the Sentencing Commission promulgated

Amendment 691, which modified § 2K2.1 and its Application Notes. See U.S. Sentencing Guidelines Manual,

Supplement to Appendix C, 170-77 (2006) (Amendment

691). The Amendment re-designated § 2K2.1(b)(5) as

§ 2K2.1(b)(6), id. at 171, struck Application Note 18, id.

at 172, and added the new Application Note 14, id. at 174- 7

75. The Sentencing Commission also stated,

[T]he amendment addresses a circuit conflict

pertaining to the application of [§ 2K2.1(b)(6)] . . . ,

specifically with respect to the use of a firearm “in

connection with” burglary and drug offenses. . . .

[T]he amendment provides that in burglary offenses, [§ 2K2.1(b)(6)] appl[ies] to a defendant who

takes a firearm during the course of the burglary,

even if the defendant did not engage in any other

conduct with that firearm during the course of the

burglary. . . . The Commission determined

that application of [§ 2K2.1(b)(6)] is warranted in

these cases because of the potential that the pres-
12 No. 08-4081

See also Stinson v. United States, 508 U.S. 36, 38 (1993) 8

(“[C]ommentary in the Guidelines Manual that interprets or

explains a guideline is authoritative unless it violates the

Constitution or a federal statute, or is inconsistent with, or

a plainly erroneous reading of, that guideline.”).

ence of the firearm has for facilitating another

felony offense or another offense.

Id. at 177.

Later, in United States v. Hill, 563 F.3d 572, 581 (7th Cir.

2009), we considered whether Application Note 14 was

inconsistent with the language of § 2K2.1(b)(6). The 8

defendant in Hill disputed the application of § 2K2.1(b)(6)

and the district court’s conclusion that a burglary

qualified as another felony offense when he had taken

guns during the burglary and had pleaded guilty to a

felon in possession count. We concluded that Application Note 14(B) was consistent with § 2K2.1(b)(6), and that

the guideline indeed applied in the defendant’s case

because “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.” Hill, 563 F.3d at 581 (citing United States

v. Purifoy, 326 F.3d 879, 880-81 (7th Cir. 2003)). We reasoned that, unlike the defendants in Szakacs, the application of the § 2K2.1(b)(6) enhancement in Hill “was based

on conduct that was distinct from [the defendant’s] simple

possession of the firearms, namely the burglary.” Id.

Mr. Krumwiede contends that Hill “reaffirms [our] basic

holding in Szakacs that, where the offense of conviction
No. 08-4081 13

and the ‘other’ offense for the enhancement’s purposes are

essentially the same crime because they involved nearly

identical offense conduct, the four level enhancement

does not apply.” Appellant’s Br. 14 (internal quotation

marks omitted). The Government contends just the opposite. It points out that, in Hill, we cited Armstead and said,

The guideline [§ 2K2.1(b)(6)] by its terms requires

only that the defendant have possessed a weapon

‘in connection with’ another offense. That language

is sufficiently broad to include possessing a

weapon as a result of the burglary . . . and thus to

accommodate the interpretation reflected in the

commentary.

Hill, 563 F.3d at 582. The Government believes that, in Hill,

we abandoned Szakacs and adopted the Armstead approach. See Appellee’s Br. 19-20.

We believe that the resolution of these conflicting

positions is straightforward. Application Note 14(B),

not Szakacs, governs the application of § 2K2.1(b)(6)

in Mr. Krumwiede’s case; Application Note 14(B) is

unequivocal about when the § 2K2.1(b)(6) enhancement

should apply: when a defendant “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.” U.S.S.G. § 2K2.1 app. n. 14(B). As we already have

held, the Application Note is consistent with the guideline itself and thus is authoritative. See Hill, 563 F.3d at 581

(citing Stinson v. United States, 508 U.S. 36, 38 (1993)).

Application Note 14 was meant to “remedy the disagreement among the courts regarding the application of the
14 No. 08-4081

four-level enhancement to cases in which the other

offense is a burglary.” See United States v. Morris, 562 F.3d

1131, 1136 (10th Cir. 2009) (also concluding that Application Note 14(B) is consistent with § 2K2.1(b)(6) and that

the enhancement applied in a felon in possession case

where the defendant took firearms during the course of

a burglary).

This straightforward reliance on the plain language of

Application Note 14 renders nugatory Mr. Krumwiede’s

contention that Application Note 14 concerned the “in

connection with” phrase of § 2K2.1(b)(6), not the “another

felony offense” phrase. Application Note 14(B) is specifically titled “Application When Other Offense is Burglary

or Drug Offense” and discusses the application of the

enhancement when either burglary or a drug offense

constitutes the purported “other” felony offense. Notably,

Application Note 14(C) provides a definition of “another

felony offense,” when the purported other felony offense

is not burglary or a drug offense. In short, Application

Note 14 is squarely on point in this case, and the

district court correctly applied the enhancement.

Conclusion

The district court correctly applied the enhancement

provided by § 2K2.1(b)(6) in the calculation of

Mr. Krumwiede’s Guidelines calculation. Accordingly,

the judgment of the district court is affirmed.

AFFIRMED

3-31-10