### In the



# United States Court of Appeals

For the Seventh Circuit

No. 13

‐ 1496

U NITED S TATES OF A MERICA

, Plaintiff

‐ Appellee

,

v.

D ARNELL J ACKSON

, Defendant

‐ Appellant.

Appeal from the United States District Court for the

Northern District of Indiana, South Bend Division.

No. 3:12

‐ CR

‐ 82— Robert L. Miller, Jr.

, Judge.

A RGUED J UNE 6, 2013

— D ECIDED F EBRUARY 3, 2014

Before W OOD

, Chief Judge, and P OSNER and R OVNER

, Circuit

Judges.

R OVNER

, Circuit Judge. Darnell Jackson unlawfully pos

‐

sessed a firearm for a period of two to three weeks before

selling it to someone whose own possession of the gun was

illegal. At sentencing, the district court enhanced Jackson’s

offense level based on its finding that Jackson had transferred

the gun with knowledge or reason to believe it would be2 No. 13

‐ 1496

possessed “in connection with another felony offense,” i.e.

, the

transferee’s illegal possession of the gun. See U.S.S.G.

§ 2K2.1(b)(6)(B) (Nov. 2012). Jackson contends that the en

‐

hancement was improper in that it essentially penalized him a

second time for conduct that was otherwise encompassed

within his conviction. We affirm.

I.

In January 2011, Jackson’s friend Carlia Wells purchased a

nine

‐ millimeter Ruger pistol. In March, Jackson took the pistol

from Wells’ home. Having previously been convicted of

multiple felonies, Jackson’s possession of the gun was illegal.

See 18 U.S.C. § 922(g)(1). Two to three weeks after he took the

pistol from Wells, Jackson sold the weapon (or facilitated its

sale) to David Dircks, whom Jackson knew to be an illegal user

of crack cocaine and heroin. A grand jury later charged Wells,

Dircks, Jackson, and a fourth individual with various weapons

offenses; the indictment charged Jackson with his unlawful

possession of the pistol as a convicted felon, in violation of

section 922(g)(1).

On the morning that his trial was to begin, Jackson pleaded

guilty to the felon

‐ in

‐ possession charge without a written plea

agreement. At sentencing, the court found Jackson’s final,

adjusted offense level to be 17. This included a four

‐ level

enhancement under Guidelines section 2K2.1(b)(6)(B) for

transferring the firearm “with knowledge, intent or reason to

believe that it would be used or possessed in connection with

another felony offense.” The court found that Jackson’s transfer

of the gun to Dircks, a known felon and illegal drug user,

facilitated the commission of a felony by Dircks, whoseNo. 13

‐ 1496 3

possession of the pistol was prohibited under both section

922(g)(1) (possession by a felon) and section 922(g)(3) (posses

‐

sion by an unlawful user of controlled substances). R. 132 at 2

‐

3. Coupled with a criminal history category of VI (Jackson had

a lengthy criminal record that the court described as “astonish

‐ ing,” R. 132 at 6), the adjusted offense level of 17 resulted in an

advisory sentencing range of 51 to 63 months in prison.

Without the section 2K2.1(b)(6)(B) enhancement, the range

would have been 33 to 41 months. Judge Miller opted to

impose a within

‐ Guidelines sentence of 60 months’ imprison

‐

ment.

II.

The sole issue to be resolved on appeal is whether the

section 2K2.1(b)(6)(B) enhancement was correctly imposed.

We find that it was.

Section 2K2.1(b)(6)(B) provides that a defendant’s offense

level shall be increased by four levels if he “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.” Prior to amendments

that took effect in November 2006, an application note regard

‐ ing this enhancement (then set forth in section 2K2.1(b)(5))

defined “another felony offense” as one “other than explosives

or firearms possession or trafficking offenses.” § 2K2.1 cmt. n.

15 (Nov. 2005). This definition of “another felony offense” was

“understood to create a categorical exclusion for firearms and

explosive offenses.” See United States v. Jones

, 528 F. App’x 627,

631

‐ 32 (7th Cir. 2013) (nonprecedential decision) (collecting

cases). Thus in United States v. Mahalick

, 498 F.3d 475, 480 (7th4 No. 13

‐ 1496

Cir. 2007), we had observed that for purposes of the enhance

‐

ment, the other felony offense that the defendant facilitated

“cannot simply be that the [person who purchased the gun

from the defendant] was a felon and upon purchasing the gun

became a felon in possession of a firearm.”

However, the application note was modified in 2006 and

now reads:

“Another felony offense”[ ] for purposes of subsec

‐

tion (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 ob

‐

tained.

§ 2K2.1 cmt. n. 14(C) (Nov. 2006) (emphasis ours). The com

‐

mentary now excludes from the definition of “another felony

offense” only the possession or trafficking offense that serves

as the basis for the defendant ʹ s conviction. United States v.

Juarez

, 626 F.3d 246, 255 (5th Cir. 2010). In Jones

, we therefore

concluded that the enhancement applies, as here, when a

defendant guilty of being a felon

‐ in

‐ possession has transferred

the firearm to another prohibited person. See Jones

, 528 F.

App’x at 632 (following Juarez

, 626 F.3d at 255). Our decision

in Jones was not precedential, but we find its rationale on this

point (and that of the Fifth Circuit in Juarez ) persuasive and

adopt it as binding precedent here. By selling the pistol to

Dircks, whom he knew to be an unlawful user of controlled

substances and thus someone who could not legally possess a

firearm, Jackson transferred the pistol with knowledge orNo. 13

‐ 1496 5

reason to believe that the gun would be used to commit

another felony offense—Dircks’s illegal possession of the same

gun.

Jackson nonetheless argues that his transfer of the firearm

to Dircks was not “another felony offense” separate and

distinct from his possession offense, and that therefore the

enhancement should not apply to him. Jackson contends that

his conduct “was simply the firearms possession or trafficking

offense and not another felony.” Jackson Brief at 11. He

appears to assume that the transfer to Dircks involved no

element beyond the offense of conviction, i.e.

, that his offense

of conviction includes the transfer as well as the possession.

But section 922(g)(1) requires proof of possession only; the

transfer of the firearm was a separate act neither necessary to

nor subsumed within his conviction for possession. See United

States v. Purifoy

, 326 F.3d 879, 881 (7th Cir. 2003) (defendant’s

act of pointing gun at police officer, which constituted aggra

‐

vated assault, was a felony distinct from felon

‐ in

‐ possession

offense for purposes of other felony offense enhancement); see

also

, e.g.

, United States v. Lane

, 267 F.3d 715, 718

‐ 19 (7th Cir.

2001) (act of holding gun sufficient to constitute unlawful

possession for purposes of section 922(g)(1)); cf. United States

v. Johns

, 732 F.3d 736, 740 (7th Cir. 2013) (in sentencing defen

‐

dant for being a felon in possession, district court erred in

applying trafficking enhancement, see § 2K2.1(b)(5), in addition

to other felony offense enhancement, when both enhancements

were based on same conduct—transfer of guns to confidential

informant, whom defendant knew to be a convicted felon, with

knowledge that informant intended to resell them).6 No. 13

‐ 1496

Jackson alternatively posits that had he been charged with

not only his possession of the gun under section 922(g), but

also the transfer of the pistol to Dircks under 18 U.S.C.

§ 922(d) (making it a crime to transfer a firearm or ammuni

‐

tion to, inter alia

, known felons or illegal drug users), the two

charges would have been grouped at sentencing and treated as

a single offense when calculating his offense level, and as a

result of the grouping there would not be “another felony

offense” to trigger the enhancement. See U.S.S.G. Chap. 3, Pt.

D. Given that Jackson in fact was charged only with the

possession offense, he reasons that it makes no sense to treat

him more harshly by applying the enhancement.

But it is a mistake to assume that the enhancement would

not apply were Jackson charged with and convicted of both

crimes. Jackson is no doubt correct that the possession and

transfer offenses would be grouped for sentencing purposes:

Both are subject to the same firearms guideline, section 2K2.1,

and section 3D1.2(d) specifies that offenses governed by

section 2K2.1 are to be grouped. But although grouping is

meant to avoid multiple punishments for the same conduct, see

Mahalick

, 498 F.3d at 481, it is not meant to ignore the specific

offense characteristics that distinguish one defendant’s

criminal acts from those of another. Jackson’s decision to sell

the gun to an unlawful user of controlled substances is one

such characteristic.

Were the possession and transfer offenses governed by

different Chapter 2 guidelines, the court would determine the

offense level for each offense separately and then apply the

higher of the two levels to the group. See § 3D1.3(a) & com

‐

ment. (n.2.). The section 2K2.1(b)(6)(B) enhancement wouldNo. 13

‐ 1496 7

apply to the possession offense, as we have discussed, and if

that rendered the offense level for the possession offense

higher than the level for the transfer offense, the offense level

for the possession offense would become the offense level for

the group.

Here, both offenses are governed by the same guideline.

But if the court were to follow the same approach, the enhance

‐

ment would apply to the possession offense even if it would

not apply to the transfer offense, as Jackson assumes; the

resulting offense level for the possession offense, assuming it

was the greater of the two, would then carry the day for the

group. So we reasoned in Mahalick

, where the defendant had

been convicted of both possession and transfer offenses and

contended that the other felony offense enhancement amount

‐

ed to double counting because it punished the same behavior

as his section 922(d) conviction for the transfer of the gun. 498

F.3d at 481

‐ 82. This is essentially the same argument that

Jackson is making—that as to the transfer conviction, there

would be no “other” felony offense to trigger the enhancement.

Even if he is right, there would be another offense vis

‐ à

‐ vis the

possession conviction, and if the offense level for that convic

‐

tion alone turned out to be greater than the offense level for the

transfer conviction alone, the former should logically apply to

the two offenses grouped together. See id. ; see also United States

v. Schaal

, 340 F.3d 196, 198

‐ 99 (4th Cir. 2003) (enhancement for

stolen firearm appropriate notwithstanding fact that stolen

nature of the firearm was an element of 16 of 19 of grouped

offenses).

Consider it from a second perspective. Given Jackson’s

prior conviction for a crime of violence, section 2K2.1(a)(4)8 No. 13

‐ 1496

specifies a base offense level of 20; and this would be his base

offense level regardless of whether he were convicted of

possession, transfer, or both. That particular offense level,

however, turns on the defendant’s criminal history alone; it

does not take into account, as for example section 2K2.1(a)(6)

does, whether the defendant may have transferred the gun to

another person whose own possession of the gun amounts to

a crime. So the enhancement specified by section 2K2.1(b)(6)(B)

would capture an aspect of Jackson’s conduct that his base

offense level does not.

If we were to agree with Jackson that a second conviction

for transfer of the gun would take the section 2K2.1(b)(6)(B)

enhancement off the table, then we would be saying that the

Guidelines would, in practice, treat one’s unlawful possession

and transfer of a firearm to another prohibited person no

differently than simple possession of the gun. That would be

both illogical and contrary to the spirit of the grouping rules.

See Schaal

, 340 F.3d at 198

‐ 99.

As we noted at argument, a sentencing judge is always

able, given the advisory nature of the Guidelines and the

sentencing criteria set forth in 18 U.S.C. § 3553, to determine

that the defendant’s offense level and sentencing range over

‐

or under

‐ represent the extent of his criminal conduct and to

adjust the sentence accordingly. Judge Miller, in fact, gave

thorough and thoughtful attention to how well the Guidelines

range accurately accounted for Jackson’s offense and criminal

history and concluded that a within

‐ range sentence was

appropriate. R. 132 at 8

‐ 9. For all of the reasons we have

discussed, we are not convinced that it was improper to

enhance Jackson’s offense level pursuant to sectionNo. 13

‐ 1496 9

2K2.1(b)(6)(B) based on his transfer of the gun to Dircks, or that

the resulting sentencing range was out of proportion to his

conduct.

III.

By selling the Ruger pistol to Dircks, who like Jackson was

prohibited from possessing a firearm, Jackson transferred the

firearm in connection with a felony offense separate and

distinct from the possession offense of which he was charged

and convicted. Consequently, the district court properly

increased Jackson’s offense level pursuant to section

2K2.1(b)(6)(B). See Jones

, 528 F. App’x at 632. Finding no error

in the calculation of Jackson’s offense level, we AFFIRM his

sentence.