UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v. No. 96-4939

CHAD JOHNSON,

Defendant-Appellant.

Appeal from the United States District Court

for the Northern District of West Virginia, at Wheeling.

Frederick P. Stamp, Jr., Chief District Judge.

(CR-96-18)

Argued: October 27, 1997

Decided: December 19, 1997

Before RUSSELL, MICHAEL, and MOTZ, Circuit Judges.

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Affirmed by unpublished per curiam opinion.

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COUNSEL

ARGUED: Hunt Lee Charach, Federal Public Defender, Charleston,

West Virginia, for Appellant. Paul Thomas Camilletti, Assistant

United States Attorney, Wheeling, West Virginia, for Appellee. ON

BRIEF: William D. Wilmoth, United States Attorney, Wheeling,

West Virginia, for Appellee.

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Unpublished opinions are not binding precedent in this circuit. See

Local Rule 36(c).

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OPINION

PER CURIAM:

On December 17, 1995, Chad Johnson and several friends detonated, at several locations, "display fireworks," which they knew others had stolen a month earlier. In the process, Johnson and his friends

destroyed two cars -- the first in Wheeling, West Virginia, and the

second in Richland Township, Ohio. The fireworks Johnson and his

friends detonated are considered "Class B explosives," and are subject

to regulation as "explosives" under the National Firearms Act.

The Government initially charged Johnson with three counts of

destruction of property by means of explosive materials, in violation

of 18 U.S.C. § 844(i), and conspiracy to destroy property by means

of explosive materials in violation of 18 U.S.C.§ 371. Pursuant to a

plea agreement, however, Johnson pled guilty to one count of unlawfully aiding and abetting others in the receipt and disposal of explosive materials, knowing such materials were stolen, in violation of 18

U.S.C. § 842(h) and 18 U.S.C. § 2.

Pursuant to section 2K1.3(a)(4) of the United States Sentencing

Guidelines (the "Sentencing Guidelines"), the probation officer's presentence report calculated Johnson's base offense level at 12 and recommended that Johnson receive a six-level upward enhancement

pursuant to Sentencing Guideline § 2K1.3(b)(3) for possessing and

using explosives in connection with another felony offense.1 At his

sentencing hearing, Johnson objected to the recommended enhancement. Relying on § 2K1.3(a)(4), § 2K1.3(b)(3), Application Note 11

and the presentence report, the district court overruled Johnson's

objections and enhanced his offense level to 18. The district court

then credited Johnson with a three-level "acceptance of responsibility," thereby reducing his total offense level to 15. Johnson received

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1 U.S. SENTENCING GUIDELINES MANUAL § 2K1.3(b)(3) (1995).

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an 18-month prison term, the minimal sentence for Criminal History

Category I, offense level 15.

I.

Johnson appeals his sentence, arguing that the district court erred

in enhancing his sentence by six-levels pursuant to§ 2K1.3(b)(3). He

maintains that he did not commit "another felony offense," as used in

§ 2K1.3(b)(3), and that the phrase "another felony offense" refers

only to conduct of a "separate criminal episode." We review de novo

whether the district court correctly applied the six-level sentencing

enhancement.2 Finding no error in the enhancement, we affirm.

Section 2K1.3 of the Sentencing Guidelines establishes the framework for calculating the offense level for prohibited transactions

involving explosive materials. Accordingly, § 2K1.3(b)(3) provides:

If the defendant used or possessed any explosive material in

connection with another felony offense; or possessed or

transferred any explosive material with knowledge, intent,

or reason to believe that it would be used or possessed in

connection with another felony offense, increase by 4 levels.

If the resulting offense level is less than level 18, increase

to level 18.3

Application Note 11 to § 2K1.3 further provides:

As used in subsections (b)(3) and (c)(1), "another felony

offense" and "another offense" refer to offenses other than

explosives or firearms possession or trafficking offenses.4

In the instant case, Johnson, pursuant to his plea agreement, only pled

guilty to the receipt and disposal of stolen explosive materials. The

district court found that his other felony offenses, included the detonation of the explosives and the destruction of property in West Vir-

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2 United States v. Nale, 101 F.3d 1000, 1003 (4th Cir. 1996).

3 U.S. SENTENCING GUIDELINES MANUAL § 2K1.3(b)(3) (1995).

4 U.S. SENTENCING GUIDELINES MANUAL § 2K1.3 n.11 (1995).

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ginia, the interstate transportation of explosive materials with the

intent to damage or destroy property, and the detonation of the explosives and the destruction of property in Ohio.

First, Johnson contends that the district court erred in enhancing his

offense level because the offenses relied upon by the district court do

not constitute other felony offenses. He maintains that Application

Note 11 excludes all explosives offenses from consideration "as

another felony offense" under § 2K1.3(b)(3). We disagree. The phrase

"another felony offense" does not exclude all explosive offenses from

application under § 2K1.3(b)(3); rather, it excludes only the explosive

offenses of trafficking and possession from consideration. All remaining offenses, except those of firearms possession or trafficking, therefore, may be considered as "another felony offense" for purposes of

enhancing a sentence pursuant to § 2K1.3(b)(3). Accordingly, the district court did not err by enhancing Johnson's base offense level by

six levels.

Johnson alternatively contends the phrase "another felony offense"

in Application Note 11 refers to an offense that is episodically distinct

in time, place, or substance from the conduct comprising the offense

of conviction. Hence, because the interstate transportation of explosive materials and destruction of the two automobiles by explosive

materials involved the same explosives to which he pled guilty, Johnson maintains the enhancement was impermissible. We hold this

argument to be meritless because § 3K1.3(b)(3) does not contain a

temporal requirement, nor does it require that the offenses be episodically or substantively distinct. It only requires that the other felony be

committed "in connection with" the explosives offense, and that it not

be another explosives possession or trafficking offense.

II.

Having carefully reviewed the record, briefs, and contentions of the

parties at oral argument, we hold Johnson's remaining issue to be

without merit. Accordingly, we affirm the sentence imposed by the

district court.

AFFIRMED

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