NOT RECOMMENDED F OR F ULL-TEXT PUBLICATION F ile Nam e: 13a0007n.06
No. 11-2572
UNITED STAT ES COURT OF AP P EALS F OR THE S IXTH CIRCUIT
UNI TED STATES OF AMERI CA, Plaintiff-Appellee ,

v. J OHN AN DREW MEKEDI AK, Def endant- Appellant. ) ) ) ) ) ) ) ) ) ON APPEALFROM THE U NI TED STATES DI STRI CT COURT FOR THE WESTERN DI STRI CT OF MI CHI GAN

Before: KEITH, CLAY, and ROGERS, Circuit Judges.
DAMON J. KEITH, Circuit Judge

. J oh n M e k e d iak appea ls his sentenc e following a g uilty plea to being a felon in possession o f a fi rearm. He arg ues that the district court err ed by : 1)

sentenc ing him as an arme d car eer criminal, 2) setting his base offe nse level at 24, and 3) apply ing

a four- level enhanc ement to his sentenc e for using a firea rm in connec tion with another felony

. For the rea sons detailed below, we REVERSE and VACATE the sentenc e in part and AF F IRM in part. BACK GR OUND On Fe bruar

y 24, 2011, a fede ral g rand jury in Gra nd Rapids, Michig an indicted J ohn Andre w Mekedia k on three counts of being a felon in possession of a firea rm. Mekedia k alleg edly stole and transporte d ninety -six firea rms acr oss state lines and then sold them on the blac k marke t. Mekedia k ag ree d to a proff er interview with the United States Attorney ’s Offi ce for the
Western District of Michig an on the condition that if he was cooper ative, then “nothing either saidNo. 11-2572

United States v. J

ohn Mek ediak Pag e 2

or reve aled by him” would be used ag ainst him. Appellant Br

. at 18, R. 49 at 4. During the 1 interview, Mekedia k informed the Gover nment of an instance in which he trade d two stolen firea rms for approximately 3.5 g rams of coca ine base, ref err ed to by the parties and the district court as “the
M innesota transac tion.” He also named the individuals who participa ted in the Mi n n es o t a
transac tion, one of them being an Edwin Wolf. Wolf was one of Mekedia k’s acc omplices and was being investiga ted himsel f

. W o l f had alre ady completed two proff er interviews with the
Gover nment by the time Mekedia k was i n t er v i ew ed , but it was Mekedia k who first disclosed the Minnesota transa ction to the Gover nment. On August 19, 2011, Mekedia k pleade d g uilty to one count of being a fel o n i n possession of a fi rea

rm pursuant to a plea ag ree ment. Prior to the sentenc ing hear ing, a Presentenc e I nvestig ation Report (“PSI R”) was prepa red and submitt ed to the dis t ri ct court, rec ommending a
sentenc ing r ang e of 262–327 months. The PSI R cate g orized M ek ed i ak as an arme d car eer criminal (“A CC”) based upon the following prior convictions: a 2003 adult conviction in which Mekedi ak p leade d g uilty to a drug offe nse, spec ifically

possession of a c hemical or labora tory

equipment that he kne w or had rea son
to know would be used to manufa cture a controlled substance; a 1999 adult convicti o n i n whi ch Mekedia k pleade d g uilty to unarme d robber y ; and two 1995 juvenile deli n q u encies: one for possession of a short-bar

rele d rifle and one for felonious assault. The PSI R also set Mekedia k’s base offe nse level at 24, naming the afor ementioned 1999 adult conviction for unarme d robber y and 2003

A p r o f f e r i n t e r v i e w i s a n i n t e r v i e w i n w h i c h a d e f e n d a n t a g r e e s t o d i s c l o s e i n f o r m a t i o n p e r t i n e n t t o t h e 1 i n v e s t i g a t i o n o f o t h e r s u s p e c t s .No. 11-2572

United States v. J

ohn Mek ediak Pag e 3 adult drug offe nse as qualify ing predic ate felonies. Finally , the PSI R rec ommended a four- level

sentenc e enhanc ement for using or possessing a firea rm in connec tion with another felony offe nse. The PSI R cited “the Minnesota transac tion” as a basis for apply ing the enhanc ement. T h e P SI R

n o t ed t h at the information reg arding the Minnesota transac tion was offe red by Edwin Wolf. Mekedia k’s total adjusted off ense le vel was 37. Mekedi ak objected to the PSI R. Three of those objections have been prese rved for this
appea l: 1) his status as an ar m ed ca re er cr iminal, 2) his base offe nse level of 24, and 3) the application of the four- level possession enhanc ement to his sentenc e. At sentenc ing, Mark Semear , the specia l ag ent who interviewe d both Mekedia k and Wolf, testified that the interviews took place months apar

t. He attested that when Wolf divulge d the Minnesota transac tion, he was asked openended questions an d t h at no one indicated that they had alre ady hear d about the Minnesota

transac tion from Mekedia k. He further testified that he did not have h i s notes from Mekedia k’s interview with him at Wolf’s interview, so he would not have been able to ref er to the details from Mekedia k’s interview. The district court overr uled Mekedia k’s objections and imposed a sentenc e below his gu i d el i n e rang e, rea soning that his criminal history cate g ory of VI was inappropria tely high. Mekedia k was sentenc ed to 240 months in prison. We addre ss eac h of Mekedia k’s objections below.
ANALYSIS
I. Arm ed Care er C rim inal S tatus Meke d i ak challeng es hi s status as an ACC. The dist rict court considere d the foll owing in order to sentenc e Mekedia k under the Armed Caree r Criminal Act (“A CCA”): a 2003 conviction forNo. 11-2572

United States v. J

ohn Mek ediak Pag e 4 possession of drug manufa cturing materia l s , a 1 9 99 conviction for unarme d robber y , and two juvenile delinquenc ies from 1995—one for possession of a firea rm and one for felonious assault. Mekedia k arg ues that the district c ourt improperly combined his individual juvenile delinquencie s in order to make them into one “violent felony ” as define d by the AC C A. M ek ed i ak was not an ACC because his juvenile delinquencie s were not predica te fe lonies for ACCA purpose s. A. The Arm ed Care er C rim inal Act
Fe d er al law prohibits a previously convicted felon from possessing a firea rm, imposin g a maxi mum sentenc e of ten y ear s’ imprisonment. 18 U.S.C. § 9 2 2 (g) (1 ). The ACCA imposes a fi ft ee n -y ear mandatory minimum sentenc e on any offe nder cate g orized as an ACC. 18 U.S.C

. § 924(e) (1). Any combination of three previous convictions constituting either a “violent felony ” or

a “ser ious drug offe nse” will lead to a classifica tion as an ACC. Id .; United States v. Goodman , 519 F.3d 310, 316 (6th Cir. 2008)

. The Gover nment bear s the burden of pro v i n g t h at a conviction qualifies as a predic at e fe l o ny . Goodman , 519 F.3d at 316. We revie w de novo a district court’s deter mination that a defe ndant is elig ible to be sentenc ed as a n ACC under the ACCA. Id

. 1. Violent F elony The district court combined Mekedia k’s 1995 juvenile delinquencie s into one act of juvenile delinquency

that met the ACCA’s definiti on of “violent felony .” A crime can meet t he definition of “violent felony ” in one of three way s: 1) the crime has the requisite element of actua l, attempted,

or threa tened use of phy sical forc e ag ainst the person of another ; 2) the crime is one of the statute’s

s p e c if ic ally identified offe nses–burg lary , arson, extorti on, or a crime involving the use of explo s iv e s ;

or 3) the crime “other

wise involves” conduct that cre ates a high risk of phy sical harm to others. 18No. 11-2572

United States v. J

ohn Mek ediak Pag e 5 U.S.C. § 924(e) (2)( B)

. This last cate g ory is often re fer

red to a s “the re sidual clause.” See United
States v. Jones , 673 F.3d 497, 504–05 (6th Ci r. 2 0 12). Offe nses that ty pically qualify under the residual clause are “roug hly simil ar, in ki n d as well as in deg ree of risk posed” to the enumerated felonies. Begay v. United States , 553 U.S. 137, 143 (2008). The statute’s specif i ca l l y i d en tified offe nses involve “pur

poseful, violent, and ag g ressive conduct.” Id . at 144–45. Thus, cr imes with
“a stringe nt mens rea require ment” ty pically qualify if, “a s a cate g orica l matter, [t hey prese nt] a serious potential risk of phy sical injury to another ” in a way “compa rable to that posed by its closest analog among the [ACC A’s] enumer ated offe nses.” Syke s v. United States , 131 S. Ct. 2267, 2273,
2275 (2011) (quoting Jame s v. United States , 550 U.S. 192, 203 (2009))

. A crime committed by a juvenile (an act of juvenile delinquency ) can also constitute a violent felony , but only if, in addition

to meeting the qualifica tions for an adult predic ate offe nse, it also “involv[es] the use or car ry ing of a fire arm, knife , or destruc tive device .” 18 U.S.C. § 924(e) (2)( B)

. B. The Categor ical and Modi fi ed Cate gorical Approaches
T o d et er mine whether a prior conviction constitutes a qualify ing crime—in this case , a “violent felony ,” we use a two-step analy sis. First, we employ a “categ orica l approa ch.” Taylor v. United States , 495 U.S. 575, 600, 602 (1990); United States v. Gibbs , 626 F.3d 344, 352 ( 6th Cir. 2010). To do this, we look only to the “statutory definition of the prior offe nse and not to the particula r fac ts underly ing the defe ndant’s conviction.” United States v. Kearney , 675 F.3d 571, 574 (6 th Cir. 2012). I n other words, “we consider the offe nse gene rica lly

. . . in terms of how t he l aw define s the offe nse and not in terms of how an individual o ff en d er might have committed it on a particula r occa sion.” Begay , 553 U.S. at 141. I f the offe nse requires p ro o f o f fac ts that meet theNo. 11-2572

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ohn Mek ediak Pag e 6 ACCA’s definition of a qualify ing offe nse, then the conviction automatically counts as a predic ate felony

. See Taylor , 495 U.S. at 600.
Howeve r, if it is possible to violate a statute in a way that would constitute a qualify ing crime and in a way that would not, a second inquiry is nece ssary . See Shepard v. United States , 544 U.S. 13, 17 (2005). I n such a case , we use a “modified cate g orica l approa ch” to deter mine whether there

was a finding that the ultimate crime of convic t i o n “‘ n ec essar ily ’ involved (and a prior plea

nece ssarily admitted) fac ts equating ” to a qualify ing crime. Id

. at 24. Such a finding must be contained within the “ Shepard documents.” Id

. at 26; United States v. Armstead , 467 F.3d 943, 948 (6th Cir. 2006). Shepard documents only include “the terms of the char g ing document,

. . . [t he] plea
ag ree ment, . . . or . . . some compa rable judicial rec ord.” Shepard , 544 U.S. at 26.
C. Analysis
I n 1995, Mekedia k was adjudicate d as a juvenile on two counts

— p ossession of a shortbarr eled rifle and felonious as s ault. R. 42-1. Mekedia k arg ues that the district court improperly applied the modif

ie d c a te g o r ic a l a p p r o a c h w h e n it combined his individual juvenile offe nses toge ther in order to make them into one “violent fe lony ” for the purposes of

the ACCA. We ag ree . 2

a. P ossession of

a Short-Barre led Rif

le One of Mekedia k’s juvenile delinquenc ies was for “possession of a short-bar rele d rifle” in violation of Michig an Compi l ed L aw s § 750.224b. Categ orica lly , possession is not considere d a “violent felony ” under the ACCA. See United States v. Amos , 501 F.3d 524, 5 3 0 (6th Cir. 2007)

A d e f e n d a n t m u s t h a v e t h r e e q u a l i f y i n g c o n v i c t i o n s i n o r d e r t o b e s e n t e n c e d a s a n A C C

. 1 8 U

. S

. C

. § 2 9 2 4 ( e ) ( 1 )

. M e k e d i a k a r g u e s t h a t n o n e o f t h e p r i o r o f f e n s e s q u a l i f

i e d f o r c o n s i d e r a t i o n u n d e r t h e A C C A

. B e c a u s e h i s j u v e n i l e d e l i n q u e n c i e s c a n n o t q u a l i f y a s a p r e d i c a t e o f

f e n s e , w e d e c l i n e t o a d d r e s s M e k e d i a k ’ s o t h e r a r g u m e n t s .No. 11-2572

United States v. J

ohn Mek ediak Pag e 7 (“[T]he plain lang uag e of the [ACC A] evince s an intent to include only offe nses with more asser tive, violent conduct than mere possession.”). There fore , Mekedia k’s delinquenc y for possession of a short-bar rele d rifle is not a qua lify ing a ct of juvenile de linquency

.

b. F elonious Assault
M e k e d ia k ’ s o th e r d elinquency was for “fe lonious assault” in violation of Michig an Co mp il e d
L aws § 750.82. This law is ambig uous under a cate g orica l approa ch beca use the statutory definition includes assault with a varie ty of items—not only g uns and kn i v es , b u t also iron bars, clubs, and brass knuckles—article s that we have commented are no t i n cl u d ed in the AC CA’s definition of a firea rm, knife, or “destruc tive device .” Mich. Comp. L aws § 750.82; see United States v. Eubanks , 3
617 F.3d 364, 369 (6 th Cir. 2010). There fore , the felonious assault count require s a modified

cate g orica l a

naly sis to deter

mine whether the terms of the Shepard documents nar row it to a point that it “‘ne cessa

rily involved’ (and a prior plea nece ssarily admitted) fac ts equating ” to a felonious assault that involved the use or car ry ing of a firea

rm, knife, or destructive device

. Shepard , 544 U.S.
at 24.
Her e, the Shepard documents consist of the petition and the order o f d i s position. The petition, dated J anuar

y 30, 1995, rec ites the count as follows “[O]n or about J anuar y 22, 1995, in the County of Calhoun, said juvenile did make an assault upon L ouise W. Mekedia k with intent to

1 8 U

. S

. C

. § 9 2 1 ( a ) ( 4 ) d e f i n e s “ d e s t r u c t i v e d e v i c e ” a s “ a n y e x p l o s i v e , i n c e n d i a r y , o r p o i s o n g a s , ” “ a n y t y p e 3
o f w e a p o n . . . w h i c h w i l l , o r w h i c h m a y b e r e a d i l y c o n v e r t e d t o , e x p e l a p r o j e c t i l e b y t h e a c t i o n o f a n e x p l o s i v e o r o t h e r p r o p e l l a n t , ” a n d “ a n y c o m b i n a t i o n o f p a r t s e i t h e r d e s i g n e d o r i n t e n d e d f o r u s e i n c o n v e r t i n g a n y d e v i c e i n t o a n y d e s t r u c t i v e d e v i c e . ” I

d

. T h e s t a t u t e a l s o s t a t e s t h a t “ ‘ d e s t r u c t i v e d e v i c e ’ s h a l l n o t i n c l u d e a n y d e v i c e w h i c h i s n e i t h e r d e s i g n e d n o r r e d e s i g n e d f o r u s e a s a w e a p o n . ” I

d

. S i n c e t h i s d e f

i n i t i o n a p p e a r s i n t h e s a m e c h a p t e r o f t h e U n i t e d S t a t e s C o d e t h a t d e f

i n e s a v i o l e n t f

e l o n y u n d e r t h e A C C A , i t f o l l o w s t h a t § 9 2 1 ( a ) ( 4 ) d e f i n e s “ d e s t r u c t i v e d e v i c e ” f o r t h e A C C A

. B e c a u s e i r o n b a r s a n d c l u b s d o n o t m e e t § 9 2 1 ( a ) ( 4 ) ’ s d e f i n i t i o n , s u c h i t e m s a r e n o t “ d e s t r u c t i v e d e v i c e s ” f o r t h e p u r p o s e s o f t h e A C C A

.No. 11-2572

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ohn Mek ediak Pag e 8 commit the crime of m urder ; Contrary to M C L 750.83.” R. 42-1. The order of dispositi on states that “the c ourt found that the following materia l a lleg ations of the petition da ted J anuar y 30, 1995

wer e sustained” and lists the alleg ation as “Count 1, Fe lonious Assault M.C .L . § 750.82.” Id

. Neither document narro ws the felonious assault to the point that Mekedia k’s admitted criminal activity “nec essar ily or alleg edly in v o lv e d u s e of a ‘fire arm, knife, or destructive device [.] ’” United States v. W

el l s , 4 7 3 F.3d 640, 649 (6th Cir. 2007) (quoting 18 U.S.C. § 924(e) (2)( B) ). I n W ells , we held that a juvenile delinquency did not satisfy the modified cate g orica l a pproac h wher e the petition noted the use of a firea rm but the pleade d offe nse did not. W ells , 473 F.3d at 649. Her e, the petition does not even mention a firear m. Although the a dmitted crime could ha ve involved a firea rm, “we have no w ay

of knowing whether

a fire arm wa s indeed involved in the c rime.” Id

. The district court applied the modified cate g orica l approa ch to the firea rm possession count and the felonious assault count collectively so that, toge ther, the separ ate offe nses blended to satisfy the ACCA’s require ments. The district court rea soned that beca use “the t wo [counts] came in toge ther a s g uilty

finding s on . . . [t he] same date, same location,” they could be combined. R. 49

at 56. I n support of this position, the Gover nment advanc es a ca s e from the Third Circuit which conclude d that “a sentenc ing court may consider a ll the statutory elements underly

ing the juvenile adjudication collectively .” United States v. Jones , 332 F.3d 688, 694 (3d Cir. 2003). This ignor es the fac t that Mekedia k’s fire ar m p ossession count should not be analy zed under the modified

cate g orica l approa ch at all. Acc ording to its statutory definition, it cate g orica l l y i s n o t a violent felony , as demonstra ted above

.No. 11-2572

United States v. J

ohn Mek ediak Pag e 9 Supreme Court pre cede nt decided a fter Jones war ns us to reser

ve the modified c ateg orica l
approa ch only when the cate g orica l approa ch fails. See Taylor , 495 U.S. at 602 (limiti ng modified

cate g orica l approa ch to a “nar row rang e of case s”); Shepard , 544 U.S. at 17 (explaining the modified

cate g orica l approa ch as “an exception to [t he] cate g orica l approa ch”) (interna l citation and quotation

m arks omitted). Prece dent from this circ uit compels us to do the same. See United State s v. Armstead , 467 F.3d 943, 948 ( 6th Cir. 2006); Jones , 673 F.3d at 504 n.2. What is more, we have alre ady reje cted the arg ument that juvenile adjudications merit being trea ted any differ ently

. S ee W ells , 473 F.3d at 649 (“[W] e opt to [apply the cate g orica l approa ch] to consideration of prior juvenile adjudications in the context of sentenc ing pursuant to the Armed Caree r Criminal Act.”)

. J uvenile offe nses may not be combined to meet the ACCA’s definition of a predic ate felony and Mekedia k’s juvenile delinquencie s wer e not a “violent felony .” After striking these offe nses Mekedia k does not have the three qualify ing felonies require d to be sentenc ed under the ACCA. See
18 U.S.C. § 924(e) (1). Ac co rdi ng ly , Mekedia k’s sentenc e with reg ard to his status as an ACC is

vacated. 4
II. Base Of

fense Level of 24 Of the two convictions used to set his base offe nse level at 24, Mekedia k only disputes the

use of his 1999 conviction for unarme d robber y as a “cr ime of violence” under the United States Sentencing Guidelines (“U SSG”). Howeve r, under the cate g orica l approa ch, unarme d robber y fits comforta bly within the residual cla

use of “ crime of

violence.”

D u e t o t h e n a t u r e o f

M e k e d i a k ’ s s p e c i f

i c o f f e n s e , h i s A C C s t a t u s d i d n o t a f f e c t h i s a d

j u s t e d o f f e n s e l e v e l o f 4 3 7

. H o w e v e r , i t d i d a f

f e c t h i s c r i m i n a l h i s t o r y c a t e g o r y b y c h a n g i n g i t f r o m a c a t e g o r y I V t o a c a t e g o r y V I

.No. 11-2572

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ohn Mek ediak Pag e 10 A. The United States Sentencing Guidelines
We revie w leg al conclusions reg arding the application of the USSG de novo . United States

v. Jack son , 635 F.3d 205, 207 (6th Cir. 2011). Pursuant to Section 2K2.1(a )(2) of the USSG, a defe ndan t ’s i n i t i al b ase offe nse level is set at 24 if the defe ndant has at least two prior felony convictions that cons t i t u t e ei ther a “cr ime of violence” or a “contr olled substance offe nse.” U.S. Sentencing Guidelines Manua l § 2K2.1(a )(2)

. “Crime of violence” under the USSG is define d in the exact same terms as “violent felony ” under the ACCA. See U.S. Sentencing Guidelines Manual § 2K2.1(a )(2) cmt. n.1 & 4B1.2( a); 18 U.S.C. § 924(e) (2)( B)

. I n addre ssing USSG claims, we use the same two-step proce ss used to analy ze ACCA claims. United States v. Montanez , 442 F.3d 485, 489 (6th Cir. 2006) (c iting United States v. Galloway , 439 F.3d 320, 323 ( 6th Cir. 2006).
B. Analysis The PSI R cited Mekedia k’s 1999 adult conviction for unarme d robber y and his 2003 adult conviction for possession o f drug manufa cturing materia ls in order to set his base offense level at
24. Howeve r, as conce ded at oral arg ument, Mekedia k only challenges t h e u s e o f the 1999 conviction. I n 1999, unarme d robber y in violation of Michig an Compil ed L aws § 750.53 0 was a felony acc omplished without a dang erous wea pon and in one of three way s: “by forc e and violence, or by assault or putting in fea

r.” Mich. Comp. L aws § 750.530 (1999) (ame nded 2004). Michig an’s unarme d robber y offe nse is a specific intent crime. See Michigan v. Have rson , 804 N.W.2d 757, 761 (Mich. Ct. App. 2010). Thus, we may analy ze whether the risk of harm posed by unarme d robber

y is cate g orica lly compar able to that posed by the ACCA’s enumer ated offe nses. See Syke s , 131 S. Ct. at 2275. The Supreme Court has explained that the enume rate d offe nse ofNo. 11-2572

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ohn Mek ediak Pag e 11 burg lary “is dang erous beca use it can end in confr ontation leading to violence.” Id

. at 2273 (citing
Jame s v. United States , 550 U.S. 192, 200 (2007))

. L ikewise, the Court of Appea ls for the Seventh Circuit held t h at u n arme d robber y in violation of Michig an Compil ed L aws § 750.530 “in some
way s prese nts a g rea ter risk of violent confr ontation” than burg lary beca use it “alwa

y s occur s in the victim’s pr esenc e,” and the offe nder may be “pre pare d to use violence if nece ssary to c arr y out his plans.” United States v. Tirrell , 120 F.3d 670, 681 (7th Cir. 1997) (interna l citation and quotation marks omitted). This analy sis is consistent with prec edent from this Court holding that larc eny from the person, a lesser included crime of robber y , is a crime of violence for the purposes of the USSG.
See United States v. Payne , 163 F.3d 371, 375 (6th Cir. 1998) (“[A]lt houg h larc eny from the person ty pically involves no threa t of violence, the risk o f ensuing strug g le is omnipresent.”) (interna l quotation marks omitted). For these reasons, unarmed robbery cate g orica lly cre ates a sufficie ntly
compar able risk of injury to another as the risk posed by burg lary

. Consequently , it is a cr i m e of violence f or the purpose s of the ACCA.
III. F our-Level Enhan cem ent Mekedia k arg ues that the district court improperly applied a four- level enhanc ement to his

sentenc e for using or possessing a firea rm in connec tion with another felony offe nse. Specifica lly , Mekedia k objects to the use of the “Minnesota transac tion”—the incident in which he trade d stolen firea rms for coca ine base—a s a basis for apply ing the enhanc ement. He claims that the use of the Minnesota transac tion violated his proff er ag ree ment. Not so. The district court h ad sufficie nt independe nt evidence to use the Minnesota tra nsaction as a

basis to support the enhanc ement.No. 11-2572

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ohn Mek ediak Pag e 12 A. Sentence Enhancem ents Under the U SSG Once a defe ndant’s base offe nse level is calc ulated, that level may be enhanc ed if cer tain
ag g rava ting factors are present. A four-lev el i n cr ease applies i f t he defenda nt “used or possessed
any firea rm or ammunition in connec tion with another felony offe nse.” U.S. Sentencing Guidelines Manual § 2K2.1(b)( 6)(B ) (2011). The Gover nment must establish a nexus betwee n the firea rm and the independe nt f

elony by a preponde ranc e of the evidenc e. United States v. Angel , 576 F.3d 318,
321 (6 t h Cir. 2009). There are restric tions, howeve r, on how the g overnme nt may arg ue for an enhanc ement. I nformation g ained f rom cooper ation ag ree ments “shall not be used in determining the applicable g uideline rang e, except to the ex t en t p ro vided in the ag ree ment.” U.S. Sentencing Guidelines Manual § 1B1.8( a) (2011). This USSG p ro v i s ion “unquestionably forbids the
g overnme nt to influence the sentenc ing rang e by disclosing reve lations made by a defe ndant in the

course of cooper ation as re q u i red by a plea ag ree ment.” United States v. Miller , 910 F.2d 1321,
1325 (6th Cir. 1990). We revie w leg al conclusions reg arding the application of the USSG de novo , while fa ctual finding s are revie wed f or cle ar e rror . Jack

son , 635 F.3d a t 207.
B. Analysis Mekedia k does not dispute that the Minnesota transac tion—the incident in which he trade d stolen firea

rms for coca ine base—qua lifies him for a four- level enhanc ement. I nstead, he arg ues that

t h e P S I R ’s details reg arding the Minnesota transac tion wer e obtained in violation of his proff er
ag ree ment beca

use it wa s he who first disclosed the Minnesota transac tion to the Gover nment and he who identified Wolf as a participa nt. He contends that the interviewing office rs led Wolf to detail the Minnesota transac tion by indicating that they alre ady knew about i t , an d there by violated oneNo. 11-2572

United States v. J

ohn Mek ediak Pag e 13 proff er ag ree ment clause forbidding the Gover nment to use any

thing “said or re v ea l ed ” by Mekedia k. Whil e t h e ci rc u m stance s could be suspicious, in this case the Gover nment met their evidentiar y burden—a preponde ranc e of the evidenc e—with proof independe nt of Mekedia k’s interview. Ma

rk Semea r, the special age nt who i nterview ed both M ekedia k and Wolf, testified at the sentenc ing hear ing that the interviews took place months apar t, that he did not ref

er to his notes from Mekedia k’s interview during his interview wit h Wolf, and that when Wolf divulge d the Minnesota transac tion, he was asked o p en -e n d ed questions and no one indicated that they had alre ady hear d about the Minnesota transac tion from Mekedia k. The district court found that while Mekedia k’s testimon y m ay h av e been in the office rs’ minds, they did not confr ont Wolf with the information to elicit more details. Fur thermore , the district court ultimately conclude d that Semear ’s testimony was sufficie nt in itself to suppor t the enhanc ement by a preponde ranc e of the evidenc e. Be ing mindful that we revie w a district court’s finding s of fac t for clear er ro r, we are not firmly convince d that the Gover nment used privileg ed information ag ainst Mekediak. See U nited
States v. Davis , 912 F.2d 1210, 1213 (10th Cir. 1990) (holdin g t h at t h er e was no violation of an immunit y ag ree ment wher e there was “no indication that the co-de fenda nts’ statements wer e elicited

as a r esult of [the defe ndant’s plea ag ree ment] and [ the def endant] provided no evide nce tha t, had he ref used to cooper ate, hi s co -def endants likewise would not have offe red the information.”) ; accord United States v. Gibson , 48 F.3d 876, 879 ( 5th Cir. 1995) (per curia m). For these rea sons,

we c annot conc lude that it was improper to apply the four- level enha

nceme nt.No. 11-2572

United States v. J

ohn Mek ediak Pag e 14 CONCLUSION
For the fore g oing rea sons, we VACATE the sentenc e and REMAND for the limit ed purpose of considering the application of the ACCA to Mekedia k’s sentenc e. We AF F IRM the rema inder of the district cour

t’s judgme nt.