FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA,  No. 05-30503

Plaintiff-Appellee, D.C. No.

v.  CR-05-00083-

JLQ/CI KEVIN WESLEY NICHOLS,

Defendant-Appellant. OPINION 

Appeal from the United States District Court

for the Eastern District of Washington

Justin L. Quackenbush, Senior Judge, Presiding

Argued and Submitted

July 24, 2006—Seattle, Washington

Filed October 6, 2006

Before: J. Clifford Wallace, Kim McLane Wardlaw and

Raymond C. Fisher, Circuit Judges.

Opinion by Judge Fisher;

Concurrence by Judge Wallace

17393
COUNSEL

Philip E. Nino, Spokane, Washington, for the defendantappellant. 

Earl A. Hicks, Assistant United States Attorney, Spokane,

Washington, for the plaintiff-appellee. 

OPINION

FISHER, Circuit Judge: 

Kevin Nichols appeals his 57-month sentence following his

guilty plea conviction for being a felon in possession of a firearm, in violation of 18 U.S.C. § 922(g)(1). We have jurisdiction under 28 U.S.C. § 1291. 

Nichols challenges the district court’s enhancement of his

base offense level under U.S.S.G. § 2K2.1(b)(5), which provides for a four-level increase “[i]f the defendant used or possessed any firearm . . . in connection with another felony

offense.” He argues that this provision applies only to firearms listed in the count of conviction or underlying indictment. Because his two-count federal indictment did not list

17396 UNITED STATES v. NICHOLS
the firearm he used in connection with a prior felony assault,

Nichols contends that the district court erred in increasing his

offense level under § 2K2.1(b)(5). Nichols also argues that his

sentence was unreasonable. 

We affirm the district court’s application of § 2K2.1(b)(5),

because Nichols’ use and possession of the gun during the

assault constitutes relevant conduct under U.S.S.G. § 1B1.3.

We further hold that Nichols’ sentence was not unreasonable,

and therefore affirm his sentence. 

I. Factual and Procedural Background

On July 19, 2004, Nichols displayed a Glock brand handgun while threatening to kill another person in Spokane,

Washington. The victim informed local police that Nichols

could be found at Dennis Sinclair’s residence. Sinclair told

the investigating officers that Nichols had arrived at his home

shortly after threatening the victim and had deposited firearms

in Sinclair’s girlfriend’s safe. After obtaining consent to

search the safe, the police seized a .380 caliber Sterling Model

400 handgun and a Lorcin Model L-380 semiautomatic handgun, both of which were reported stolen in late June 2004.

The police also found a stolen Glock Model 19 9mm handgun

in a laundry basket located in a bedroom in Sinclair’s residence. 

Two weeks later, based upon a separate investigation conducted by the United States Secret Service, officers from the

Bureau of Alcohol, Tobacco and Firearms (ATF) searched the

residence of Sinclair’s friend, David Waldvogel, and recovered five additional stolen firearms. According to Waldvogel,

Nichols had instructed his girlfriend to remove the guns from

her residence, where they were being stored, and she in turn

had arranged for Sinclair to remove them. Some time thereafter, Waldvogel agreed to take the stolen firearms and store

them for Nichols. 

UNITED STATES v. NICHOLS 17397
As a result of the July 19 incident, Nichols pled guilty to

third degree assault and second degree unlawful possession of

a firearm — specifically, the Glock — in Spokane County

Superior Court on December 22, 2004. According to the state

court amended information, the firearm used in the assault

was the Glock that police had found in the laundry basket at

Sinclair’s home. 

After his state conviction, Nichols informed an ATF agent

that both he and Sinclair were methamphetamine addicts in

the summer of 2004, and that he worked with a burglary ring

that would steal property, including firearms. Nichols further

admitted to taking the Sterling and Lorcin handguns to Sinclair’s residence, along with other stolen property. In a subsequent interview, Nichols admitted to hiding a Glock Model 19

handgun in the basement of Sinclair’s home after committing

the July 19 assault. He claimed to have purchased the gun

from an unknown individual on the street, and asserted that

police had not recovered this firearm from Sinclair’s home

because his girlfriend had removed it from the basement and

had given it to an individual to whom Nichols reportedly took

stolen property and firearms in exchange for methamphetamine. Nichols explained that he ultimately pled guilty in

state court to possessing the Glock found in Sinclair’s home

— even though he had not possessed it during the assault —

because his cousin (whom he did not want to get in trouble)

had taken that particular handgun to Sinclair’s residence.

Nichols does not contest, however, that the gun he used in the

July 19 assault was a Glock. 

On April 19, 2005, a federal grand jury returned a twocount indictment charging Nichols with being a felon in possession of two firearms in violation of 18 U.S.C. § 922(g)

(Count One) and possession of stolen firearms in violation of

18 U.S.C. § 922(j) (Count Two). Count One listed the Sterling

and Lorcin handguns found in Sinclair’s girlfriend’s safe,

while Count Two listed the five firearms recovered from

17398 UNITED STATES v. NICHOLS
Waldvogel’s residence. None of the guns listed in the indictment was a Glock. 

Nichols pled guilty to Count One under the terms of a written plea agreement, pursuant to which Count Two was dismissed. The plea agreement further specified that the parties

agreed to a base offense level of 14 under U.S.S.G.

§ 2K2.1(a)(6), with a two-level increase under § 2K2.1(b)(4)

because the firearms were stolen. The government agreed to

move for a three-level downward adjustment if Nichols timely

accepted responsibility for the offense and provided complete

and accurate information during the sentencing process. The

government also agreed to recommend that the district court

impose a sentence at the low end of the applicable guidelines

range. 

However, the parties disagreed as to the applicability of

U.S.S.G. § 2K2.1(b)(5), which is a specific offense characteristic that provides for a four-level increase “[i]f the defendant

used or possessed any firearm or ammunition in connection

with another felony offense.” The plea agreement noted the

government’s belief that this increase should be added

because Nichols used a firearm during the July 19 felony

assault; Nichols disagreed because the Glock he used was not

listed in the indictment. Notwithstanding this disagreement,

both parties acknowledged that the actual sentence imposed

would be within the sole discretion of the district court and

that the court could “impose any sentence it deems appropriate up to the statutory maximum[ ]” of 10 years in prison. 

At the initial sentencing hearing, the district court raised the

possibility of imposing a four-level enhancement under

§ 2K2.1(b)(1)(B) for relevant conduct that included involvement of eight or more weapons. This enhancement was absent

from the plea agreement. In addition, the district court noted

that Nichols had “a common M.O.,” namely, that

in July of 2004, Mr. Nichols was involved in an

ongoing scheme to burglarize houses and steal fireUNITED STATES v. NICHOLS 17399
arms, and use those firearms for various purposes

such as sale or barter for drugs, or in the case of that

third degree assault, use of the firearm in connection

with another felony . . . . [T]here’s no question he

possessed a firearm illegally as a convicted felon at

the time he assaulted and threatened to kill the person over some relatively minor dispute. 

However, having noted that neither the indictment nor the

plea agreement referred to the Glock used in the assault, the

district court questioned whether that firearm had to be named

in the indictment to sustain a four-level enhancement under

§ 2K2.1(b)(5).1 The court continued the hearing to allow the

parties to review the enhancement issues. 

At the second sentencing hearing, Nichols did not dispute

that he possessed or used a Glock 9mm handgun to commit

his prior third degree assault. However, he again objected to

an enhancement under § 2K2.1(b)(5) because the firearm was

not listed in the indictment. In addition, the government stated

that it was no longer pursuing this enhancement and explicitly

recommended a 30-month sentence. Notwithstanding Nichols’ and the government’s positions, the district court found

that a four-level enhancement under § 2K2.1(b)(5) was appropriate:

[T]he record is clear here, and it is not disputed, that

Mr. Nichols used a firearm in connection with [the

July 19, 2004 assault], so there is really no dispute

that he used a firearm. The issue is whether or not it

has to be the same firearm as the offense of convic1Similarly, to enhance under § 2K2.1(b)(1) for involvement of more

than eight firearms, the court asked the parties whether the court could

include, as “relevant conduct,” all of the firearms involved in Nichols’

“ongoing course of illegal conduct,” rather than only the two guns named

in the count of conviction. However, Nichols ultimately stipulated to the

facts supporting this enhancement. 

17400 UNITED STATES v. NICHOLS
tion, and it is my ruling it does not need to be and,

therefore, I will increase the offense level by 4 pursuant to [§ 2K2.1(b)(5)].2

The district court then added another four levels under

§ 2K2.1(b)(1)(B) for relevant conduct that included involvement of eight or more weapons. 

As a result of these enhancements, and after a three-level

reduction for acceptance of responsibility and timely entry of

plea, the court determined that Nichols had a total offense

level of 21 and a criminal history category of IV, yielding an

advisory guidelines range of 57-71 months. In imposing Nichols’ sentence, the district court paid special attention to Nichols’ violent behavior and repeated use of deadly weapons,

stating that “a finding could well be made . . . that a category

IV seriously underrepresents, in fact, [Nichols’] true criminal

history.” The court also addressed other potentially mitigating

factors like Nichols’ addiction to methamphetamine and his

cooperation with the government during the proceedings.

Finally, in addressing the government’s recommended sentence, the court made special reference to its post-Booker sentencing obligations, stating that a 30-month sentence “would

be inappropriate in view of the nature of the offense, the advisory Sentencing Guideline Range, the factors set forth in 18

U.S.C. § 3553(a), and the Defendant’s history of on-going

violence including the possession and use of deadly weapons.” Ultimately, the district court sentenced Nichols to a

term of 57 months, the low end of the guidelines range. Nichols timely appealed.

II. Standard of Review

We review a district court’s interpretation of the sentencing

2The district court noted, however, that the state conviction for third

degree assault properly was not included in Nichols’ criminal history

score. 

UNITED STATES v. NICHOLS 17401
guidelines de novo. See United States v. Kimbrew, 406 F.3d

1149, 1151 (9th Cir. 2005). A district court’s application of

the Sentencing Guidelines to the facts of a case is reviewed

for abuse of discretion, and we review a district court’s factual findings for clear error. Id. at 1151. “[I]f there was no

material error in the district court’s calculation of the appropriate Guidelines range,” we examine the “reasonableness of

the overall sentence in light of all the 18 U.S.C. § 3553(a) factors.” United States v. Cantrell, 433 F.3d 1269, 1280 (9th Cir.

2006). 

III. Discussion

A. Four-level enhancement under U.S.S.G. § 2K2.1(b)(5)

Nichols does not dispute the district court’s factual finding

that he used and possessed a Glock 9mm handgun “in connection with” his prior felony assault. Instead, he argues that the

district court erred in enhancing his sentence under

§ 2K2.1(b)(5) because it misinterpreted the term “any firearm,” which Nichols asserts refers only to the firearms listed

in the federal indictment underlying the conviction upon

which the enhancement is based. To support his position,

Nichols relies on Judge Morris Arnold’s dissenting opinion in

United States v. Mann, which concluded that “the word ‘any’

refers to any firearm that is mentioned in the indictment.” 315

F.3d 1054, 1057 (8th Cir. 2003) (Arnold, J., dissenting). 

On appeal, the government responds that the plain meaning

of “any firearm” controls and that a § 2K2.1(b)(5) increase

does not require the firearm to be listed in the indictment. The

government suggests that “any” means just that and further

notes that each of our sister circuits to consider arguments like

Nichols’ have rejected it. See United States v. Brummett, 355

F.3d 343, 345 (5th Cir. 2003) (affirming a § 2K2.1(b)(5)

enhancement for possession of two uncharged firearms);

Mann, 315 F.3d at 1056 (holding that “use of the term ‘any

firearm[ ]’ in § 2K2.1(b)(5) indicates that this guideline

17402 UNITED STATES v. NICHOLS
applies to any firearm and not merely to a particular firearm

upon which the defendant’s felon-in-possession conviction is

based”); United States v. Jardine, 364 F.3d 1200, 1208 (10th

Cir. 2004) (holding that § 2K2.1(c)(1), which includes the

language “used or possessed any firearm,” applies to “any

firearm or ammunition, including that firearm or ammunition

used by a defendant in connection with another offense, even

if different from the particular firearm or ammunition upon

which defendant’s felon-in-possession conviction is based”),

judgment vacated on other grounds by Jardine v. United

States, 543 U.S. 1102 (2005) . The district court found these

cases persuasive and expressly relied on them in applying the

enhancement. 

Although the government focuses solely on the plain meaning of “any firearm” to support the district court’s enhancement, “we may affirm on any ground supported by the record,

even if it differs from the rationale of the district court.”

Moran v. McDaniel, 80 F.3d 1261, 1268 (9th Cir. 1996)

(internal quotation marks omitted). In this case, we need not

determine whether the plain meaning of “any firearm” controls, because Nichols’ possession of the Glock constitutes

relevant conduct under the Guidelines and the district court

therefore properly enhanced Nichols’ sentence. See U.S.S.G.

§ 1B1.3(a)(2).3

3We note that our sister circuits faced with a challenge similar to Nichols’ did not address the relevant conduct issue and instead permitted application of a § 2K2.1(b)(5) enhancement for prior conduct that may not have

been relevant to the instant offense. Cf. Mann, 315 F.3d at 1056; United

States v. Davis, 360 F.3d 901, 903-04 (8th Cir. 2004); Jardine, 364 F.3d

at 1206-08. However, here Nichols’ possession of the Glock was relevant

to the underlying federal offense and we therefore need not address

whether an enhancement would be proper in a case where the prior conduct was unrelated. 

Judge Wallace suggests that like the dissent in Mann, we read “any firearm” as meaning “a firearm mentioned in the indictment,” and thereby

contravene the plain meaning of the statute. Not so. We merely read

§ 2K2.1(b)(5) in conjunction with § 1B1.3, the Guidelines provision that

explains how specific offense characteristics like 2K2.1(b)(5) “shall be

determined.” Moreover, just because Nichols and the government ignore

the relevant conduct provision does not prevent us from relying on it to

decide this case. See Moran, 80 F.3d at 1268. 

UNITED STATES v. NICHOLS 17403
1. Relevant Conduct 

[1] Relevant conduct under U.S.S.G. § 1B1.3(a)(2) encompasses specific offense characteristics of a defendant’s acts

that “were part of the same course of conduct or common

scheme or plan as the offense of conviction.” Application note

8 to § 1B1.3 provides two examples demonstrating when a

prior offense can and cannot be considered part of the same

course of conduct or common scheme:

For the purposes of subsection (a)(2), offense conduct associated with a sentence that was imposed

prior to the acts or omissions constituting the instant

federal offense (the offense of conviction) is not considered as part of the same course of conduct or

common scheme or plan as the offense of conviction.

Examples: (1) The defendant was convicted for the

sale of cocaine and sentenced to state prison. Immediately upon release from prison, he again sold

cocaine to the same person, using the same accomplices and modus operandi. The instant federal

offense (the offense of conviction) charges this latter

sale. In this example, the offense conduct relevant to

the state prison sentence is considered as prior criminal history, not as part of the same course of conduct

or common scheme or plan as the offense of conviction. . . . (2) The defendant engaged in two cocaine

sales constituting part of the same course of conduct

or common scheme or plan. Subsequently, he is

arrested by state authorities for the first sale and by

federal authorities for the second sale. He is convicted in state court for the first sale and sentenced

to imprisonment; he is then convicted in federal

court for the second sale. In this case, the cocaine

sales are not separated by an intervening sentence.

Therefore, under subsection (a)(2), the cocaine sale

17404 UNITED STATES v. NICHOLS
associated with the state conviction is considered as

relevant conduct to the instant federal offense. The

state prison sentence for that sale is not counted as

a prior sentence; see § 4A1.2(a)(1). 

U.S.S.G. § 1B1.3(a)(2), cmt. 8 (emphasis added). 

[2] As the PSR explicitly noted, Nichols’ possession of the

Glock — which he possessed contemporaneously with the

Sterling and the Lorcin — qualified as relevant conduct under

example 2 of application note 8, because “it is related to the

offense conduct for the instant federal offense.”

4

 Application

note 9 supports our conclusion that Nichols’ possession of the

Glock was “part of the same course of conduct or common

scheme or plan” as his federal offense of conviction. U.S.S.G.

§ 1B1.3(a)(2). That note explains that “[f]or two or more

offenses to constitute part of a common scheme or plan, they

must be substantially connected to each other by at least one

common factor, such as common victims, common accomplices, common purpose, or similar modus operandi.”

§ 1B1.3, cmt. 9(A). “Offenses that do not qualify as part of a

common scheme or plan may nonetheless qualify as part of

the same course of conduct if they are sufficiently connected

or related to each other as to warrant the conclusion that they

are part of a single episode, spree, or ongoing series of

offenses.” Id. at cmt. 9(B). The determining factors are “the

degree of similarity of the offenses, the regularity (repetitions)

of the offenses, and the time interval between the offenses.”

Id.

[3] In this case, and as the district court correctly found,

Nichols’ possession of all of the stolen firearms stems from

4As noted previously, Nichols now claims that the Glock found in Sinclair’s laundry basket during the July 19 search was not the Glock that he

used to assault his victim. However, not only did the state court amended

information note that the recovered Glock was the same one used in the

assault, but Nichols pled guilty to possessing that particular pistol. 

UNITED STATES v. NICHOLS 17405
the same common and ongoing scheme — a

methamphetamine-linked burglary ring that trafficked in

stolen firearms. His possession of the Sterling, Lorcin and

Glock qualify as the same course of conduct because there is

“sufficient similarity and temporal proximity [among each

possession] to reasonably suggest that [the] repeated instances

of criminal behavior constitute a pattern of criminal conduct.”

United States v. Hahn, 960 F.2d 903, 910 (9th Cir. 1992)

(internal quotation marks omitted). Not only did Nichols possess all three firearms when he committed the July 19 assault

— indeed, he was charged in state court with unlawful possession of all three guns — but he also fled to Sinclair’s house

and hid the guns after committing the assault. 

Similarly, Count One of Nichols’ federal felon-inpossession charge arises out of the assault and his subsequent

arrest, and Nichols admitted that he regularly possessed stolen

weapons. Given this evidence, we cannot say that the district

court abused its discretion in applying § 2K2.1(b)(5) to

enhance Nichols’ offense level. Cf. Brummett, 355 F.3d at

345 (holding that the defendant’s possession of four firearms

on three separate occasions within a nine month period “permits a conclusion that the firearms possessions were part of

an ongoing series of offenses,” and affirming the district

court’s determination that “all [four] instances of firearm possession . . . were relevant conduct in relation to [the defendant’s] offense of conviction,” even though only two of the

firearms were listed in the indictment); United States v. Santoro, 159 F.3d 318, 321 (7th Cir. 1998) (affirming the district

court’s findings of relevant conduct and enhancement determinations under § 2K2.1(b)(1) where a defendant had possessed an uncharged assault rifle “within a six to nine month

period” of his arrest for possession of two other guns); United

States v. Windle, 74 F.3d 997, 1000-01 (10th Cir. 1996) (holding that a pattern of possessing illegal firearms over a four to

five month period is sufficient to constitute the “same course

of conduct”); United States v. Powell, 50 F.3d 94, 104 (1st

Cir. 1995) (holding that “the contemporaneous, or nearly con17406 UNITED STATES v. NICHOLS
temporaneous, possession of uncharged firearms is . . . relevant conduct in the context of a felon-in-possession

prosecution”).5

[4] Because Nichols’ possession of the Glock during and

after the assault constitutes relevant conduct under § 1B1.3,

we hold that the district court properly enhanced his sentence

under § 2K2.1(b)(5).6

B. Reasonableness of Nichols’ sentence 

Although Nichols asserts that his 57-month sentence was

unreasonable, he fails to explain why or how this is so.

Instead, he provides a number of reasons why he believes —

as the government did at sentencing — that a 30-month sentence would have been reasonable.7

 However, the question

before us is not the reasonableness of Nichols’ and the government’s requested sentence, but rather whether the “ultimate sentence” imposed is reasonable in light of the § 3553(a)

factors. See Cantrell, 433 F.3d at 1279 (emphasis added). 

5Nichols’ possession of the Glock may also have constituted relevant

conduct under § 1B1.3(a)(1)(A) as an act “committed . . . by the defendant

. . . that occurred during the commission of the offense of conviction . . . .”

We do not need to resolve this question, however. 

6Ordinarily, we would proceed to a second inquiry after determining

that the prior felony offense constituted relevant conduct, namely, whether

the defendant used or possessed the firearm “in connection with another

felony.” See U.S.S.G. § 2K2.1(b)(5) (emphasis added). This inquiry

requires us to determine whether the defendant used or possessed the gun

“in a manner that permits an inference that it facilitated or potentially

facilitated — i.e., had some potential emboldening role” — in the defendant’s felonious conduct. United States v. Routon, 25 F.3d 815, 819 (9th

Cir. 1994) (emphasis added). However, we need not reach this issue,

because Nichols does not dispute that he used the Glock in connection

with his prior felony assault. 

7Although the government agreed with Nichols on this point, at no point

did the government concede that a within-guidelines sentence would be

unreasonable. 

UNITED STATES v. NICHOLS 17407
[5] Section 3553(a) states that a district court should

impose a sentence “sufficient, but not greater than necessary”

to “reflect the seriousness of the offense, to promote respect

for the law, and to provide just punishment for the offense; to

afford adequate deterrence to criminal conduct; to protect the

public from further crimes of the defendant . . . ; and to provide the defendant with needed . . . training, medical care, or

other correctional treatment . . . .” 18 U.S.C. § 3553(a)(2).

The district court also should weigh factors such as “the

nature and circumstances of the offense and the history and

characteristics of the defendant;” “the kinds of sentences

available;” “the [applicable] sentencing range[;]” the articulated policy goals of the guidelines; “the need to avoid unwarranted sentence disparities” among similar defendants; and

“the need to provide restitution to any victims of the offense.”

§ 3553(a)(1), (3) (7). “To comply with the requirements of

Booker, the district court must have sufficiently considered

the Guidelines as well as the other factors listed in § 3553(a).

This requirement does not necessitate a specific articulation of

each factor separately, but rather a showing that the district

court considered the statutorily-designated factors in imposing

a sentence.” United States v. Knows His Gun, 438 F.3d 913,

918 (9th Cir. 2006). 

[6] Here, the record demonstrates both that the district court

sufficiently considered these factors and that Nichols’ sentence was not unreasonable. 

[7] First, as defense counsel conceded at sentencing, Nichols’ criminal history is “horrendous.” Although only 22 years

old, Nichols has numerous prior convictions for crimes

involving illegal drug possession, assault and illegal firearm

possession, acts and threats of violence and the use of deadly

weapons (including firearms, knives and brass knuckles). The

district court viewed Nichols’ history as “one of complete disregard of the rules that we all live by,” noting in particular

Nichols’ 2003 assault conviction for throwing an eight-year

old child across a room and slamming his head into a wall.

17408 UNITED STATES v. NICHOLS
This “constant history of violence and . . . violation of court

orders” indicated to the court that “the protection of society

may well mandate that Mr. Nichols be incarcerated for a very

long period of time,” a statement that reflects the court’s consideration of the need for the sentence to reflect the seriousness of the offense, to promote respect for the law and to

protect the public from further crimes of violence.8

In addition, the district court emphasized the nature and circumstances of the instant offense, which was part of a large

burglary ring, but at the same time considered Nichols’ forthrightness in admitting to the crime and the period of time necessary to afford him with needed educational, mental health

and drug treatment. Moreover, the record demonstrates that

the district court considered the government’s recommended

sentence.9 After considering these factors, the district court

8Although we agree with most of the district court’s observations, we

disagree that Nichols presents “the perfect example” of why criminal

defendants should be sentenced to “compulsory military training.” As the

court aptly put it, our criminal justice system should teach convicted criminals that “kicking people when they are down isn’t tolerated in our society.” However, sending to the military a methamphetamine addict with a

disturbing history of violence toward vulnerable and weaker individuals

hardly seems an appropriate way to achieve that goal. See, e.g., Jim Dwyer

& Robert F. Worth, Accused G.I. Was Troubled Long Before Iraq, N.Y.

Times, July 14, 2006, at A1 (reporting on criminal history of an American

soldier accused of raping and killing civilians in Iraq). 

9For example, after the government stated that Nichols’ youth and

addiction to methamphetamine at a very young age counseled against a

sentence within the advisory guidelines range, the district court concluded:

I am absolutely convinced that the appropriate sentence in this

case is the high end of the guidelines, 71 months, but I have listened to [the prosecutor], who has been ultimately fair with you,

Mr. Nichols, and were it not for [the prosecutor], I would give

you the high end of the guidelines. [B]ut because of what

[defense counsel] has said and what [the prosecutor] says, I am

going to sentence you to the low end of the guidelines and that

is not the appropriate sentence, but it is going to be the sentence

because of what counsel have recommended to me . . . . 

UNITED STATES v. NICHOLS 17409
imposed a sentence at the bottom of the advisory guideline

range. 

[8] The district court’s approach was reasoned and

addressed factors specified in § 3553(a). More importantly,

Nichols has not demonstrated that the district court overlooked any significant factor, gave improper weight to any

factor or otherwise imposed an unreasonable sentence. It may

be that a 30-month sentence also would have been reasonable,

but the issue here is whether the sentence imposed was unreasonable. It was not. 

IV. Conclusion

[9] Because Nichols’ possession and use of the Glock

handgun in connection with his prior felony assault was relevant conduct under § 1B1.3, the district court did not err in

applying a four-level increase under U.S.S.G. § 2K2.1(b)(5).

The ultimate sentence imposed was not unreasonable. We

therefore AFFIRM the sentence. 

AFFIRMED. 

WALLACE, Circuit Judge, concurring: 

Although I concur with the result reached by the majority,

I write separately because I would follow the Eighth Circuit

in holding that the firearm used for enhancement under

U.S.S.G. § 2K2.1(b)(5) need not be mentioned in the indictment. The issue raised by the parties is whether the plain

meaning of “any firearm” controls, and not whether possession of the Glock constituted relevant conduct. Thus, I would

affirm following the Eighth Circuit’s statutory interpretation,

without reaching the question of whether U.S.S.G.

§ 1B1.3(a)(2) serves as an alternative to the application of

section 2K2.1(b)(5). 

17410 UNITED STATES v. NICHOLS
“If the language of a guideline is unambiguous, its plain

meaning controls.” United States v. Gonzalez, 262 F.3d 867,

869 (9th Cir. 2001). The guideline states that a defendant’s

use or possession of “any firearm . . . in connection with

another felony offense” is grounds for enhancement. U.S.S.G.

§ 2K2.1(b)(5) (2005) (emphasis added). Reading the phrase

“any firearm” as meaning “a firearm mentioned in the indictment” contravenes the plain meaning of the statute. 

In United States v. Mann, 315 F.3d 1054, 1056-57 (8th Cir.

2003), the Eighth Circuit considered and rejected the argument that “any firearm” under section 2K2.1(b)(5) referred to

a firearm mentioned in the indictment. The court pointed out

that such a reading would have the odd consequence of “benefit[t]ing those criminals . . . who have the presence of mind

to dispose of whatever firearm they used or possessed in connection with another felony before being apprehended.” Id. at

1057. See also United States v. Jardine, 364 F.3d 1200, 1208

(10th Cir. 2004) (relying on Mann and holding that enhancement under U.S.S.G. § 2k2.1(c)(1) applies to “any firearm or

ammunition, . . . even if different from the particular firearm

or ammunition upon which defendant’s . . . conviction is

based”) (later vacated and remanded on other grounds);

United States v. Brummett, 355 F.3d 343, 345 (5th Cir. 2003)

(allowing enhancement for firearms not charged in the indictment). The language of the guidelines is unambiguous. The

Eighth Circuit’s reasoning in Mann is persuasive, and I conclude that the phrase “any firearm” means any firearm, and

not “a firearm mentioned in the indictment.” The district court

correctly held the same opinion and should be affirmed on

that basis. The majority disagrees with the district court holding — I do not. 

The majority searches for an alternative method to affirm

and rests on a theory embracing relevant conduct under

U.S.S.G. § 1B1.3(a)(2). Since the majority believes Nichols’s

possession of the Glock during and after the assault constituted relevant conduct under section 1B1.3, the majority holds

UNITED STATES v. NICHOLS 17411
that the district court properly enhanced his sentence under

section 2K2.1(b)(5). This will no doubt come as a surprise to

the parties, who never raised the issue. The issue has never

been briefed. There is an alternative: I would affirm the district court based on the Eighth Circuit’s reasoning in Mann.

17412 UNITED STATES v. NICHOLS