UNITED STATES COURT OF APPEALS

For the Fifth Circuit

No. 96-40539

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

VERSUS

STEVEN LAKEITH ARMSTEAD,

Defendant-Appellant.

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No. 96-40560

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

VERSUS

LEROY GRAHAM ARMSTEAD,

Defendant-Appellant.

Appeals from the United States District Court

For the Eastern District of Texas

June 2, 1997

Before GARWOOD, WIENER, and DeMOSS, Circuit Judges.

DeMOSS, Circuit Judge:

Before the Court are two consolidated appeals brought by

brothers Steven Lakeith Armstead and Leroy Graham Armstead (“the

Armsteads”) challenging the validity of the sentences imposed2

following their guilty pleas. The Armsteads pleaded guilty to

stealing firearms from a licensed firearms dealer, a violation of

18 U.S.C. § 92 2(u). At sentencing, the district court used the

1995 Guidelines and enhanced the Armsteads’ base offense level by

four levels pursuant to United States Sentencing Guidelines

(U.S.S.G.) § 2K2.1(b)(5) on the ground that they possessed firearms

in connection with “another felony offense,” the state law crime of

burglary of a building. The Armsteads argue that the enhancement

was improperly applied because there was not “another felony

offense” in addition to the condu ct underlying the firearmsburglary offense. Finding no error, we affirm the decision of

district court to enhance the Armsteads’ sentence under §

2K2.1(b)(5). Leroy Armstead also argues that the district court

improperly en hanced his base offense level by two levels for

possessing stolen firearms under U.S.S.G. § 2K2.1(b)(4). The

application of the two level enhancement under the 1995 Edition of

§ 2K2.1(b)(4) violates the ex post facto clause of the Constitution

and, as such, we vacate Leroy Armstead’s sentence and remand for

resentencing.

BACKGROUND

On August 22, 1995, at approximately 3:45 a.m., the Jasper

Police Department received a call indicating that an alarm had been

sounded at the Phillips Pawn Shop, a licensed firearms dealer.

When officers arrived, they realized that the pawn shop had been

broken into and that a number of firearms had been stolen. The3

man ager reported that, in fact, 19 guns had been stolen, two of

which were recovered outside the building.

Later that day, the police received a call from a confidential

informant (“CI”) who told the officers that the suspects were in

Houston selling the stolen guns. The CI identified the suspects as

“Bellini” (Terry Bellini Barlow), “Speed Buggy” (Michael D. White),

“Worm” (Steven Smith, a/k/a Steven Armstead), and “Worm’s brother”

(Leroy Armstead). The officers then set up surveillance at several

locations frequented by the suspects.

Upon apprehending the perpetrators, the officers learned that

13 of the gun s had been sold in Houston. They recovered the

remaining four firearm s from the automobile used during the

defend ants’ Houston trip. All of the defendants admitted their

roles in this crime except Barlow. No other firearms were found in

addition to those stolen from the pawn shop.

In December 1995, a federal grand jury returned a four-count

indictment against the four defendants. The Armsteads were both

named in Counts I and II of t he indictment. Count I charged the

Armsteads with conspiracy to steal firearms from a licensed

firearms dealer, in violation of 18 U.S.C. § 371. Count II charged

them with stealing the firearms from a licensed dealer in violation

of 18 U

. S.C. § 922(u). Leroy Armstead was charged with an

additional count, Count IV, felon in possession of firearms, in

violation of 18 U.S.C. § 922(g)(1).

In March 1996, the Armsteads entered a plea agreement with the

United States Attorney’s Office and pleaded guilty to Count II. In4

return, the government dismissed the conspiracy charge under Count

I. The government also dismissed Count IV, the felon in possession

charge, against Leroy Armstead.

The probation officer’s presentence report (PSR), applying the

1995 Edition of the Guidelines Manual, fixed Steven Armstead’s base

offense level at 12, pursuant to U.S.S.G. § 2K2.1(a)(7). The

probation officer, using U.S.S.G. § 2K2.1(b)(1)(D), then added four

points because more than 12 firearms were involved in the offense.

Four more points were added pursuant to U.S.S.G . § 2K2.1(b)(5).

The probation officer interpreted § 2K2.1(b)(5) to require that

additional points should be added to Steven Armstead’s base offense

level because he used o r possessed the stolen firearms in

connection with another felony offense, the state law crime of

burglary of a building. Steven Armstead then received a three

point reduction for acceptance of responsibility which resulted in

a total base offense level calculation of 17. With a base offense

level of 17 and a criminal history category of IV, Steven

Armstead’s guideline sentencing range was 37 to 46 months.

The probation officer relied on similar r easoning in

calculating Leroy Armstead’s base off ense level. However, Leroy

Armstead received a substantially greater sentence due to his

extensive criminal history. The probation officer first arrived at

a base offense level of 20 pursuant to U.S.S.G. § 2K2.1(a)(4)(A).

Four points were added because the total number of firearms

involved exceeded 12 and an additional four points were applied

under U.S.S.G. § 2K2.1(b)(5) because Leroy Armstead used or5

possessed these firearms in connection with another felony offense.

Two additional points were added to Leroy Armstead’s base offense

level under U.S.S.G. § 2K2.1(b)(4) due to the fact that the

firearms at issue were stolen. After applying the three level

reduction for acceptance of responsibility, Leroy Armstead’s base

offense level was 27. With a criminal history category of VI,

Leroy Armstead’s guideline sentencin g range was 130-162 months.

Because the statutory maximum sentence of 120 months was less than

the applicable guideline range , Leroy Armstead’s sentence was

limited to 120 months.

The Armsteads filed timely objections to the PSR’s four-level

enhancement under U.S.S.G. § 2K2.1(b)(5). Leroy Armstead also

objected to the two level enhancement from U.S.S.G. § 2K2.1(b)(4).

The district court overruled both objections and adopted the PSR.

The district court then sentenced Steven Armstead to 46 months

imprisonment and thre e years supervised release. Leroy Armstead

was sentenced to 120 months imprisonment and three years supervised

re lease. The Armsteads filed timely appeals from the sentences

imposed by the district court.

ANALYSIS

A district court’s sentencing decision will be upheld unless

it was imposed in violation of the law, is a result of an incorrect

application of the guidelines, or the district court unreasonably

departed from the applicable guideline range. U nited States v.

Guadardo , 40 F.3d 102, 103 (5th Cir. 1994). The district court’s6

fact findings at sentencing are reviewed for clear error, and any

interpretation of the Guidelines is subject to de novo review.

United States v. Kuban , 94 F.3d 971, 973 (5th Cir. 1996), c ert.

denied , 117 S. Ct. 716 (1997).

1. Ex Post Facto Concerns

We begin our analysis with the question of whether the correct

edition of th e Guidelines Manual was used in calculating the

Armsteads’ sentences. The district court used the 1995 Edition of

the Guid elines Manual. Pursuant to U.S.S.G. §§ 1B1.11(a) and

1B1.11(b)(1), a district court should apply the edition of the

Guidelines Manual in effect on the date the defendant is sentenced,

unless the application of such Guideline Manual would violate the

ex post facto clause of the Constitution, in which event, the

Guidelines in effect on the date of the offense should be used.

In this case, sentencing occurred after the effective date of

the 1995 Edition. However, in August 1995, when the Armsteads

violated 18 U.S.C. § 922(u), the 1994 Edition of the Guidelines

Manual was in effect. The 1994 Edition did not contain any

reference to § 922(u) nor did it specify which Guideline should be

used to calculate a base offense level for such violations. This

circumstance developed b ecause the effective date of Public Law

103-159, which inserted the new subsection “(u)” in 18 U.S.C. §

922, was November 30, 1993. Obviously, the Sentencing Commission

did not have adequate tim e to prepare and file amendments to the

1994 Edition of the Guidelines referencing this new statute.7

After ordering supplemental briefing from the parties on this

issue and reviewing the applicability of both the 1994 Edition and

the 1995 Edition of the Gui delines Manual to this case, we are

convinced that no ex post facto violation occurred as to the

application of § 2K2.1, except as later specified. In reaching

this conclusion, we were required t o make two judgment calls.

First, given that the 1994 Guidelines do not refer to § 922(u), we

had to determine what would be the proper guideline to use for this

offense under the 1994 Guidelines. Second, once we determined the

appropriate guideline to apply, we asked whether the application of

the 1995 Guid elines increases the defendants’ sentences when

compared with the application of the same guideline under the 1994

Edition. We address each decision now in more detail.

First, to ascertain the applicable guideline using the 1994

Edition, we found that no provision exists in that edition for

violations of 18 U.S.C. § 922(u). Appendix A of the 1994

Guidelines Manual directs us to U.S.S.G. § 2X5.1 to calculate the

guideline range for offenses not listed in the index, in this case,

§ 922(u) offenses. S ee U.S.S.G. § 2K2.1 App. A. Section 2X5.1

states:

If the offense is a felony or Class A misdemeanor

for which no guideline expressly has been

promulgated, apply the most analogous offense

guideline. If there is not a sufficiently

analogous guideline, the provisions of 18 U.S.C. §

3553(b) shall control, except that any guidelines

and policy statements that can be applied

meaningfully in the absence of a Chapter 2 offense

guideline shall remain applicable.

U.S.S.G. § 2X5.1.8

In our view, the most analogous guideline in the 1994 Edition

for the Armsteads’ offenses is U.S.S.G. § 2K2.1. This guideline

deals with firearms offenses and enhancements for possession or use

of stolen firearms. This guideline is the applicable guideline for

all of the other subsections of § 922 which define criminal

conduct, with the exception of violations of 18 U.S.C. § 922(q),

for which U.S.S.G. § 2K2.5 applies. In passing Public Law 103-159,

Congress expressly dec ided that the prohibited conduct in

subsection “(u)” would be a part of § 922. The maximum penalty

fixed by Congress for violations of § 922(u), ten (10) years,

reflects the same punishment as set out by Congress for other

violations of § 922. This new subsection “(u)” was intended to

protect the holders of federal licenses who import, manufacture or

deal in firearms from theft of their inventories. In fact, many of

these licenses are issued in accordance with other subsections of

§ 922.

Furthermor e, in May 1995, the Sentencing Commission filed

proposed Amendm ent 522 with Congress. In this amendment, the

Commission itself determined that the proper guideline for handling

§ 922(u) violations would be U.S.S.G. § 2K2.1. When dealing with

a new sta tutory crime, we believe the courts should defer to the

authority of the Sentencing Commission to define, by amending the

guidelines, which particular guideline will be applicable to the

new crime. See United States v. White , 869 F.2d 822, 826-26 (5th

Cir. 1989)(recognizing th at Congress has the power to completely

divest the courts of their sentencing discretion and that Congress1 The Armsteads also rely on an analogous case from the Sixth

Circuit, United States v. Halliburton

, 73 F.3d 110 (6th Cir. 1996).

The Halliburton defendants were convicted under 18 U.S.C. § 922(u)

for theft of firearms from a licensed firearms dealer and the

district court sentenced them under U.S.S.G. § 2K2.1. The Sixth

Circuit reversed holding that U.S.S.G. § 2B1.1 most resembled the

charged con duct, in that case, theft. In so holding, the court

ignored the subsequent “clarifying” amendment in the 1995 Edition

of the Guidelines for § 2K2.1, which directed courts to use § 2K2.1

for violations of 18 U.S.C. § 922(u). This amendment was pending

in Congress and publicly available at the time of the Sixth

Circuit’s decision. According to U.S.S.G. § 1B1.11(b)(2), we are

to consider subsequent clarifying amendments to the Guidelines. As

s uch, we decline to adopt the Sixth Circuit’s reasoning in

Haliburton

.

9 granted broad authority to the Sentencing Commission guided by

specific goals and principles). Where, as in this case, evidence

o f the Commission’s policies and goals are publicly available to

the courts, we should utilize these proposed new amendments in

making determinations as to “analogous guidelines” for sentencing

purposes under § 2X5.1. See Stinson v. United States , 113 S. Ct.

1913, 1915 (1993)(Commentary “that interprets or expl ains 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.”). For these reasons, we hold that

“the most analogous offense guideline” to be applied for violations

of § 922(u) under the 1994 Edition is section 2K2.1. 1

We now turn to compare the provisions of the 1994 Guidelines

with the 1995 Guidelines to determine if § 2K2.1, in the 1995

Guidelines, would produce a higher sentence than § 2K2.1 in the

1994 Guidelines and thus implicate the ex post facto clause. Both

editions contain identical provisions for determining a defendant’s

base offense level.10

Finding no changes to the main structure of § 2K2.1 itself, we

then look to the offense characteristics section, U.S.S.G. §

2K2.1(b). Section 2K2.1(b)(5) states:

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 posse ssed in

connection with another felony offense, increase by

4 levels.

U.S.S.G. § 2K2.1(b)(5). For the reasons discussed later in part 2,

the Armsteads’ conduct appears to satisfy the requirements for this

s ection. Consequently, if the 1994 Guidelines had been applied,

the Armsteads would have received a four-level increase in their

base offense levels pursuant to U.S.S.G. § 2K2.1(b)(5).

The 1995 Edition of the Guidelines expressly states that

U.S.S.G. § 2K2.1 should be used for offenses involving 18 U.S.C. §

922(u). See U.S.S.G. App. A. Section 2K2.1(b)(5), which was not

amended from 1994 to 1995, directs us to increase the Armsteads

base offense level by four points for using a firearm in connection

with another felony offense. As such, the four-level increase

under § 2K2.1(b)(5) is applicable to this case under either the

1994 or 1995 Editions of the Guidelines Manual. Consequently, we

hold that no ex post facto concerns are raised by the application

of § 2K2.1(b)(5) of the 1995 Edition of the Guidelines Manual.

However, Leroy Armstead also appealed from the district

court’s imposition of a two level enhancement assesse d under the

1995 Edition of § 2K2.1(b)(4) because the firearms at issue were

stolen. In considering the ex post facto concerns raised by this11

enhancement, for situations where “any firearm was stolen,” we

first consider enhancement under the 1994 Edition of the

Guidelines. Subsection (b)(4) increases a base offense 2 levels if

any firearm involved in the offense was stolen or had an altered or

obliterated serial number.

The 1994 Edition of the Guidelines, commentary note 12 states:

If the defe ndant is convicted under 18 U.S.C. §

922(I), (j), or (k), or 26 U.S.C. § 5861(g) or (h)

(offenses involving stolen firearms or ammunition),

and is convicted of no other offense s ubject to

this guideline

, do not apply th e adjustment in

subsection (b)(4) because the base offense level

itself takes such conduct into account.

U.S.S.G. § 2K2.1, comment. (n.12) (1994) (emphasis added). As

stated earlier, this note does not refer to § 922(u) because that

subsection only became effective on November 30, 1993, and § 922(u)

is not mentioned anywhere in the 1994 Guidelines. Because we have

already determined that § 2K2.1 is “the most analogous guideline”

within the meaning of U.S.S.G. § 2X5.1, we should likewise read

note 12 of the 1994 Edition as if it included new subsection “(u)”

in its reference to convictions under § 922. The listed § 922

offenses under note 12 all apply to offenses involving stolen

firearms or ammunition. The § 922(u) offense is one involving

stolen firearms. The second element of the note 12 commentary

requires a determination as to whether Leroy Armstead was

“convicted of no other offense subject to this guideline.” He

clearly was not convicted of any offense other than § 922(u) and,

therefore, subsection (b)(4)’s enhancement would not have been

applied to Leroy Armstead under the 1994 Edition of the Guidelines.12

In the 1995 Edition of the Guidelines, the text of subsection

(b)(4) remained the same but commentary note 12 was amended. Note

12 now provides:

If the only offense to which § 2K2.1 applies is 18

U.S.C. § 922(I), (j), or (u), 18 U.S.C. § 924(j) or

(k), or 26 U.S.C. § 5861(g) or (h)(offenses

involving a stolen firearm or stolen ammunition)

and the base offense level is determined under

subsection (a )(7) , do not apply the adjustment in

subsection (b)(4) unless the offense involved a

firearm with an altered or obliterated serial

number. This is because the base offense level

takes into accoun t that the firearm or ammunition

was stolen.

Similarly, if the only offens e to which § 2K2.1

applies is 18 U.S.C. § 922(k)(offenses involving an

altered or obliterated serial number) and the base

offense level is determined under subsection

(a)(7), do not apply the adjustment in subsection

(b)(4) unless the offense involved a stolen firearm

or stolen ammuniti on. This is because the base

offense level takes into ac count that the firearm

had an altered or obliterated serial number.

U.S.S.G. § 2K2.1, comment. (n.12) (1995) (emphasi s added). This

amended commentary clearly permits the sentencing court to enhance

an offense by two levels under subsection (b)(4) if the base

offense is not calculated under U.S.S.G. § 2K2.1(a)(7). Leroy

Armstead’s base offense was calculated under § 2K2.1(a)(4)(A) and,

therefore, his offense may be enhanced under this subsection.

While the Commission refers to th is amendment as a

“clarifying” amendment, it is clear that the new commentary note 12

provides for a su bstantive change in the sentencing treatment of

defendants that have violated statutes governed by § 2K2.1. “To be

ex post facto, a law first `must be retrospective, that is it must

apply to events occurring before its enactment’; and second `must2 Because the remaining substantive sections of § 2K2.1 have

not been changed from the 1994 Edition to the 1995 Edition, it is

irrelevant which edition is used for purposes of our remaining

analysis.

3 18 U.S.C. § 922(u) states:

[I]t shall be unlawful fo r a person to steal or

unlawfully take or carry away from the person or

t he premises of a person who is lice nsed to

engage in the business of importing,

13 disadvantage the offender’ it affects.” United States v. Suarez

,

911 F.2d 1016, 1021-22 (5th Cir. 1990)(quoting Miller v. Florida

,

482 U.S. 423, 430 (1970)). “A sentence that is increased pursuant

to an amendment to the guidelines effective after the offense was

committed violates the ex post facto clause.” U nited States v.

Domino , 62 F.3d 716, 720 (5th Cir. 1995).

In this case, subsection (b)(4) of the 1995 Edition of the

Guidelines wa s applied to enhance Leroy Armstead’s sentence.

Therefore, his guideline sentence for the instant offense is higher

than it would have been under the guidelines applicable when the

offense was committed, the 1994 Edition. The ex post facto clause

operates to bar such a retrospective increase in Leroy Armstead’s

sentence. See U.S. C ONST . art. 1, § 9, cl. 3. For these reasons,

we hold that Leroy Armstead should not have received a two level

increase in his base offense level under § 2K2.1(b)(4) and Leroy

Armstead’s sentence shoul d have been calculated using the 1994

Edition of the Guidelines Manual. 2

2. “Another Felony Offense” - U.S.S.G. § 2K2.1(b)(5)

The Armsteads pleaded guilty to Count II of the indictment,

which charged them with violating 18 U.S.C. § 922(u). 3 Themanufacturing, or dealing in firearms, any

firearm in the licensee’s business inventory that

has been shipped or transported in interstate or foreign commerce.

14 Armsteads contend that the district court erred in assessing a four

point enhancement under U.S.S.G. § 2K2.1(b)(5) beca use such an

enhancement constitutes a double jeopardy violation. The Armsteads

maintain that the § 2K2.1(b)(5) enhancement punishes them twice for

the same underlying conduct, stealing the firearms from the pawn

shop.

Furthermore, the Armsteads contend that the four-level

enhancement was improperly applied because they were not involved

in “another felony offense” other than the conduct underlying the

theft-of-firearms offense. They argue that none of the stolen

firearms were used or possessed during the commission of the

burglary itself and, as such, it cannot be said that the stolen

firearms were “used or possessed in connection with another felony

offense” under U.S.S.G. § 2K2.1(b)(5).

In response to the Armsteads’ objection to the § 2K2.1(b)(5)

enhancement, the probation officer relied o n U.S.S.G. §

1B1.3(a)(1)(B), which provides that the application of th e cross

references in Chapter Two shall be determined based u pon the

following:

in the case of a jointly undertaken criminal

activity (a criminal plan, scheme, endeavor, or enterprise undertaken by the defendant in concert

with others, whether or not charged as a

conspiracy), all reasonably foreseeable acts and

omissions of others in furtherance of the joi ntly

undertaken criminal activity, that occurred during

the commission of the offense of c onviction, in15 pr eparation for that offense, or in the course of

attempting to avoid detection or responsibility for

that offense.

U.S.S.G. § 1B1.3(a)(1)(B). The probation officer determined that

§ 2K2.1(b)(5) was properly applied and should not b e considered

double counting because subsection (b)(5) takes into consideration

the increased danger when firearms are used or possessed in

connection with another felony offen se. This conduct should be

considered relevant conduct in light of § 1B1.3(a)(1)(B). The

probation officer also contends that the “[other] felony offense”

is the state law crime of burglary of a building, which is

different from the violation of 18 U.S.C. § 922(u). The Armsteads

did possess the stolen firearms in connection with the state law

felony of burglary.

The district court adopted the PSR and specifically stated:

I find that there’s no double counting for the

four-level increase, because subsection (b)(5)

takes into consideration the danger when firearms

are possessed or used in connection with another

felony offense, and that (b)(5) does not

additionally punish him for the firearms being

stolen.

I find further that 922, subsection “u”, of 18

U.S. Code is different from the genera l theft

statute, and possessing the stolen firearms under

922(u) is not double counting when addressing

behavior under U.S. Code section 2111.

Although he wasn’t charged with burglary in

the federal indictment, he was and is charged by

the State of Texas. In that regard, he and his codefendants jointly agreed and did possess, although

they didn’t use them, stolen firearms in connection

with the burglary, and that ... objection ... is

overruled.

To det ermine the propriety of the application of U.S.S.G. §16

2K2.1(b)(5), we must ascertain wh ether the Armsteads used or

possessed the stolen firearms “in connection with another felony

offense.” In this case, the district court found that the

Armsteads engaged in the state law crime of burglary and the

federal crime of theft of a firearm from a licensed firearms

dealer, and that the district court applied § 2K2.1(b)(5)

accordingly.

We have wrestled with the construction of § 2K2.1(b)(5) on at

least two other occasions

. See U nited States v. Fadipe

, 43 F.3d

993 (5th Cir. 1995); United States v. Condren

, 18 F.3d 1190 ( 5th

Cir. 1994). In Fadipe , we vacated a sentence enhancement under §

2K2.1(b)(5) because the gun in question was not used “in connection

with” the bank fraud committed by the defendant. Fadipe , 43 F.3d

at 995. We held that “[t]he mere possession of a gun near the

instruments invol ved in a fraudulent loan application scheme is

insufficient to prove that the gun was used `in connection with’

the bank fraud felony for purposes of the application of U.S.S.G.

§ 2K2.1(b)(5).” Id

.

In Condren

, however, we affirmed the district court’s

application of § 2K2.1(b)(5) based on the increased danger inherent

with the possession of firearms during the commission of another

felony offense. S ee Condren

, 18 F.3d at 1197-98; United States v.

Guerrero

, 5 F.3d 868, 873 (5th Cir. 1993). C ondren is

distinguishable fro m F adipe in that proof existed that Condren

could have used or possessed the firearms at issue in connection

with the other crime, drug distribution. Condren pleaded guilty to17

being a felon in possession of a firearm under 18 U.S

. C. §

922(g)(1) and his sentence was enhanced under § 2K2.1(b)(5) because

the PSR indicated that Condren possessed a loaded .22 caliber

revolver in connection with the distribution of cocaine. C ondren

,

18 F.3d at 1191-92. The district court made findings that Condren

possessed the firearm while in possession of small quantities of

crack cocaine and marijuana seed. The district court also found

that Condren possessed the firearm at the same time that he

possessed the controlled substances. This Court held that the

district court properly enhanced Condren’s sentence based on his

possession of a firearm in connection with the felony crime of drug

distribution. Id

. at 1198.

For sentencing purposes, the “in connection with” prong must

only be pro ved by a preponderance of the evidence. S ee United

States v. Angulo

, 927 F.2d 202, 205 (5th Cir. 1991). Further, for

purposes of enhancing a sentence under § 2K2.1(b)(5), a close

relationship between the firearm and the other felony offense need

not be shown. C

ondren

, 18 F.3d at 1198. As a result, we held that

“[u]nder the ordinary and natural meaning of `in connection with’

as found in § 2K2.1(b)(5),

... we cannot credit either Condren’s

contention that the quantity of drugs involved was too small, or

the possible contention that the source of the firearm was too

unrelated, to support the enhancement.” Id

.

In the present case, the Armsteads pleaded guilty to stealing

firearms from a licensed firearms dealer in violation of 18 U.S.C.

§ 922(u). The State of Texas has also charged the Armsteads with18

the crime of burglary of a building, a felony. While no evidence

exists to show that the Armsteads possessed or used firearms before

they broke into the pawn shop, they most certainly po ssessed

firearms once they entered the pawn s hop and picked up the guns.

This subsequent possession of firearms satisfies the nexus

requirement for possession as stated by this Court, because those

firearms were possessed and could have been used to facilitate the

crimes at issue. See Condren , 18 F.3d at 1194-1198.

The Armsteads’ “possession” of the firearms appears to invoke

the enhancement under 2K2.1(b)(5). To insure that the firearms

were possessed “in co nnection with another felony offense,” we

press on. The phrase “in connection with,” as used in §

2K2.1(b)(5), is not defined by the Guidelines. For guidance, we

turn to the Guidelines’ relevant conduct provision, U.S.S.G. §

1B1.3(a)(1)(B). This provision directs us to determine Chapter 2

adjustments based on “all reasonably foreseeable acts and omissions

of others in furtherance of the jointly undertaken criminal

activity that occurred during the commission of the offense of

conviction, in preparation for that offense, or in the course of

attempting to avoid detection or responsibility for that offense.”

Part K of Chapter 2 expressly refers to offenses “involving

public safety.” Section 2K2.1(b)(5) was added in 1991 out of

concern about crimes of violence, drug offenses, and the use or

possession of firearms in connection with these offenses. Such an

enhancement for use or possession of a firearm “in connection with

another felony offense” illustrat es this increased concern for19

public safety. Further, given its ordinary and natural meaning, we

hold that the Armsteads’ possession of firearms was “in connection

with” their state law burglary crime.

Having satisfied ourselves that the firearms wer e possessed

“in connection with” the offense, we are left with the interpretive

dilemma of deciding whether the state crime of burglary constituted

“another felony offense.” The Guidelines define “felony offense”

to mean “any offense (federal, state or local) punishable by

imprisonment for a term exceeding one year, whether or not a

criminal charge was brought, or conviction obtained.” U.S.S.G. §

2K2.1, commen t. (n.7). The dilemma arises when we ascertain

whether the burglary constituted “another” offense even though it

arose contemporaneously with the primary offense, theft of firearms

from a licensed firearms dealer.

We could unearth no other circuit court decision which has

directly addressed this issue. Other circuit courts have applied

§ 2K2.1(b)(5) to other felon y offenses; however, those offenses

were clearly distinct from th e underlying firearms offense. S ee

United States v. Wyatt , 102 F.3d 241 (7th Cir. 1996) (enhancement

for possession of firearm in connection with mari j uana

distribution), cert. denied

, 117 S. Ct. 1325 (1997); United States

v. Stur tevant , 62 F.3d 33 (1st Cir. 1995) (enhancement for

possession of firearm in connection with state crime of assault and

battery); United States v. Collins

, 90 F.3d 1420 (9th Cir. 1996)

(defendant convicted of being a felon in possession of firearm

received enha ncement pursuant for possession of a firearm in20

connection wi th attempted burglary of check cashing business);

United States v. Whitfield

, 50 F.3d 947 (11th Cir.) (defendant who

was convicted of storing a stolen firearm received enhancement for

possession of a firearm in connection with state la w burglary),

cert. den ied , 116 S. Ct. 234 (1995); U nited States v. Routon

, 25

F.3d 815 (9th Cir. 1994) (enhancement for possession of a firearm

in connection with unlawful possession of stolen car). No case has

directly addressed the application of the § 2K2.1(b)(5) enhancement

to violations of 18 U.S.C. § 922(u).

The government relies primarily on United States v. Guerrero

,

5 F.3d 868 (5th Cir. 1993), in support of the district court’s

application of the four-level enhancement under § 2K2.1(b)(5).

Guerrero involved a dispute over the calculation of a base offense

level un der a different guideline provision, U.S.S.G. §

4B1.4(b)(3)(A). In that case, the defendant burglarized two

residences and stole a number of firearms. The defendant had prior

felony convictions and pleaded guilty to 18 U.S.C. §§ 922 (g)(1),

9 24(a), possession of a firearm by a felon, and 18 U. S.C. §§

922(j), 924(a)(2), possession of a stolen firearm. This Court

affirmed the district court’s imposition of a base offense level of

34 under U.S.S.G. § 4B1.4(b)(3)(A). I d

. at 874. We explained that

the Supreme Court’s reasoning in S mith v. United States

, 113 S. Ct.

2050, 2055 (1993), suggests that the meaning of § 4B1.4(b)(3)(A)’s

“in connection with” language “does not ne cessarily exclude4 In G uerrero

, we expressed some concern that §§ 2K2.1(b)(4)

and 2K2.1(b)(5) could enhance a defendant’s sentence twice for

ess entially the same conduct; however, we left the discussion of

that matter for another day. S ee Guerrero

, 5 F.3d at 873 n.10. In

this case, only Leroy Armstead’s offense level was enhanced under

both § 2K2.1(b)(4) and § 2K2.1(b)(5), and we have set aside the §

2 K2.1(b)(4) enhancement as not permissible under the applic able

1994 guidelines. Consequently, the concern expressed in Guerrero

is not present here.

21 possessing the firearms as fruits of the crime the possessor is

contemporaneously committing.” 4 Id

. at 872.

In United States v. Kuban

, 94 F.3d 971, 975-76 (5th Cir.

1996), the defendant pleaded guilty to knowingly possessing

firearms that had been shipped in interstate commerce in violation

of 18 U.S.C. § 922(g)(1). The district court enhanced his sentence

under § 2K2.1(b)(5) based on the defendant’s related state law

crime of aggravated assault with a deadly weapon. The defendant

argued that the enhancement “doubly punished” him for his

possession of a firearm, which was contemporaneous with the

aggravated assault. This Court affirmed the district court’s

enhancement, noting that “by its own terms, section 2K2.1(b)(5)

mandates enhancement when the requisite conditions for application

of that section been met.” Id

. at 976 & n.10.

The facts of the present case are somewhat analogous to

Guerrero and Kuban an d we reach a similar result. The Armsteads

burglarized a pawn shop and stole a number of fire arms. In

connection with the state law crime of burglary, § 2K2.1(b)(5)

permits the district court to enhance a sentence on the grounds

that the firearms were possessed contemporaneously with the crime.

While no evidence suggests that the Armsteads po ssessed5 Steven Armstead also argues that the four-level enhancement

under § 2K2.1(b)(5) is unconsti tutional under B ailey v. United

States , 116 S. Ct. 501 (1995). This argument lacks merit because

Bailey dealt with the issue of what actions constituted “use” of a

firearm under 18 U.S.C. § 924(c). Section 2K2.1(b)(5) expressly

provides for an enhance ment based on the defendant’s “use or

possession ” of that firearm. Steven Armstead does not dispute that

he possessed firearms.

22 firearms before they en tered the pawn shop, once inside, they

p ossessed firearms and could have used them in furtherance of

“ another felony,” the state law crime of burglary. As a result,

the four-level enhancement appropriately reflects the concern for

public sa fety which the Guidelines sought to achieve. Amendment

374 of the Guidelines also supports this holding by noting that

“[t]he firearms statutes often are used as a device to enable the

federal court to exercise jurisdiction over offenses that otherwise

could be prosecuted only under state law.” U.S.S.G. App. C, Amend.

374. In this case, the enhancement sanctions the state law crime

of burglary as “another felony offense.” Nothing in the Guidelines

suggests that contemporaneous crimes cannot be considered when

enhancing a sentence. In fact, the relevant conduct provisions of

§ 1B1.3 appear to readily permit such an enhancement. Therefore,

in order to appropriately sanction the state crime of burglary in

connection with the Armsteads’ 18 U.S.C. § 922(u) offense, the §

2K2.1(b)(5) enhancement was proper. 5 S ee United States v. Hawkins

,

69 F.3d 11, 14 (5th Cir. 1995) (double counting is permitted under

the Guidelines unless expressly forbidden).

For the foregoing reasons, we hold that the district court

properly enhanced the Armstea ds’ sentences under § 2K2.1(b)(5)23

because they possessed firearms “in connection with another felony

offense.”

CONCLUSION

The two level sentence enhancement under § 2K2.1(b)(4)

violates the ex post facto clause and may not be applied to

increase Leroy Armstead’s sentence in this case. For the reasons

stated above, we vacate Leroy Armstead’s sentence and remand for

resentencing in accordance with this opin ion. Although we

recognize that this is a close case with respect to the application

of the § 2K2.1(b)(5) enhancements to Steven and Leroy Armstead’s

sentences, the Guidelin es do not direct us to forbid such

enhancements. In the absence of a directive from the Sentencing

Commission, we hold that the district court properly enhanced the

Armsteads’ sentences under §§ 2K2.1(b)(5). The application of the

four level enhancement for both Steven and Leroy Armstead is,

therefore, affirmed.

LEROY ARMSTEAD’S SENTENCE IS VACATED AND REMANDED FOR

RESENTENCING. IN ALL OTHER RESPECTS, THE DECISION OF THE TRIAL

COURT IS AFFIRMED.