[PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

 

No. 94-3594

 

D. C. Docket No. 94-01036

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

JAMES R. YOUNG,

Defendant-Appellant.

 

Appeal from the United States District Court

for the Northern District of Florida

 

Before TJOFLAT, DUBINA and CARNES, Circuit Judges.

PER CURIAM:
2

Appellant James R. Young (“Young”) appeals his conviction and

sentence imposed by the district court for violation of 18 U.S.C.

§ 922(g) and § 924(e) (unlawful possession of a firearm). The

district court sentenced Young to 262 months incarceration based on

an offense level of 34 pursuant to U.S.S.G. § 4B1.4(b)(3)(A). Upon

review of the record, we affirm Young’s conviction and sentence.

BACKGROUND

The prosecution of Young resulted from the Gainesville,

Florida, police department’s search for Kristi S., a fourteen-yearold runaway. When the police finally located Kristi S., she

informed them that she had been staying with Young at his

apartment. Kristi S. told the police that while she was at Young’s

apartment, she noticed guns in his attic. She observed a rifle in

a canvas case and a handgun in a cardboard box.

The police conducted a criminal history check of Young and

learned that he was a convicted felon. Based on this information,

the police obtained a search warrant for Young’s apartment. During

the search, they discovered the rifle in Young’s attic inside a

zippered case as Kristi S. had described. The police also located

the cardboard box, but the handgun was not inside. While

conducting the search, the police realized that Young was hiding in

the attic. Concerned that Young might be armed with the missing

handgun, the police called a SWAT team to the scene. Young then

came down from the attic and the police took him into custody.
3

The government charged Young with being a felon in possession

of a firearm. During the trial, the government presented the

testimony of James Anderson, whose home had been burglarized and

from whom a rifle was stolen. Mr. Anderson identified his stolen

rifle as the rifle discovered in Young’s attic. The government

also presented evidence that Young’s fingerprints had been found at

the point of entry of the burglary of the Anderson home. The court

cautioned the jury to consider this evidence only in relation to

Young’s knowledge of and possession of the gun. Following the

trial, the jury returned a verdict of guilty. Pursuant to

U.S.S.G. § 4B1.4(b)(3)(A), the district court sentenced Young to

262 months incarceration.

ISSUES

Young presents several issues for appellate review: (1)

whether the search warrant for Young’s home was invalid; (2)

whether the district court erred in admitting evidence about

Young’s prior crimes; (3) whether the district court erred in

sentencing Young as a career criminal under U.S.S.G. §

4B1.4(b)(3)(A); and (4) whether the statute under which Young was

convicted, 18 U.S.C. § 922(g)(1), is unconstitutional.

DISCUSSION

Having conducted a thorough review of the record, we summarily

affirm the district court’s rulings on the validity of the search
 1

 See 11th Cir. R. 36-1.

4

warrant and the admission of the evidence of Young’s prior crimes.1

Young’s argument regarding the constitutionality of 18 U.S.C. §

922(g) is foreclosed by this court’s recent decision in United

States v. McAllister, 77 F.3d 387, 389-90 (11th Cir.), cert.

denied, ___ U.S. ___, 117 S.Ct. 262 (1996). The final issue

presented by Young -- whether the district court erred in

sentencing him as an armed career criminal under U.S.S.G. §

4B1.4(b)(3)(A) because Young’s possession of the firearm was not

“in connection with” the burglary -- merits discussion. . 

We review a sentencing court’s findings of fact for clear

error and review its application of the law to the facts de novo.

United States v. Ramsdale, 61 F.3d 825, 831 (11th Cir. 1995). We

hold that the district court did not err in sentencing Young as an

armed career criminal because the firearm stolen in the burglary

was possessed “in connection with” that burglary. Therefore, we

affirm Young’s sentence.

We begin our analysis by focusing on the wording of U.S.S.G.

§ 4B1.4(b)(3)(A), which states:

(b) The offense level for an armed career criminal is the

greatest of:

. . . .

(3) (A) 34, if the defendant used or possessed

 the firearm or ammunition in connection

 with a crime of violence or controlled

 substance offense, as defined in

 § 4B1.2(1), or if the firearm possessed

 by the defendant was of a type described

 in 26 U.S.C. § 5845(a)[]; or
 2

 The indictment charged that James R. Young . . . “did

knowingly possess in and affecting commerce, a firearm described as

a Remington bolt action rifle, Model 700, 270 caliber, serial

number A6632175, and rounds of .22 caliber ammunition, which had

been transported in interstate commerce in violation of Title 18,

United States Code, Sections 922(g), and 924(e).”

5

. . . .

U.S.S.G. § 4B1.4(b). This section does not define possession “in

connection with a crime of violence.” In the absence of any

guideline definition, we must construe the phrase according to its

ordinary and natural meaning. See Smith v. United States, 508 U.S.

223 (1993). “[T]he meaning of statutory language, plain or not,

depends on context.” King v. St. Vincent’s Hosp. , 502 U.S. 215,

221 (1991).

The Government urges this court to give the term “in

connection with” a literal interpretation. Under the Government’s

interpretation, the enhancement under § 4B1.4(b)(3)(A) was

appropriate because Young did possess the firearm during the

commission of the burglary.2

 Thus, giving the phrase its ordinary

meaning, Young possessed the firearm in connection with a crime of

violence - - a burglary - - whether he entered the dwelling with

the firearm or later obtained the firearm while in the dwelling.

Our circuit has addressed the “in connection with” language

used in U.S.S.G. § 4B1.4(b)(3)(A) and U.S.S.G. § 2K2.1(b)(5) in two

cases. See United States v. Gainey, No. 95-4421, 1997 WL 189070

(11th Cir. May 5, 1997); United States v. Whitfield, 50 F.3d 947,

948 (11th Cir.), cert. denied, ___ U.S. ___, 116 S.Ct. 234 (1995).

In both cases we compared the varying approaches applied by other
 3

 See United States v. Condren, 18 F.3d 1190, 1197 n. 19 (5th

Cir.), cert. denied, ___U.S. ___, 115 S.Ct. 161 (1994) (“[T]he

enhancement is required not only for use, but also simply for

possession, of a firearm in connection with another felony.”).

 4 See United States v. Routon, 25 F.3d 815, 819 (9th Cir.

1994) (“[The Government] must show that the firearm was possessed

in a manner that permits an inference that it facilitated or

potentially facilitated--i.e., had some potential emboldening role

in--a defendant’s felonious conduct.”).

6

circuits (i.e., “possession”3 or “facilitation”4 tests), but found

that the facts of both cases did not require us to adopt either

test because the sentences imposed by the district courts were not

in error. Gainey, No. 95-4421, slip op. at 1461; Whitfield, 50

F.3d at 949. 

In Smith, the Supreme Court held that a defendant who trades

a firearm for cocaine uses the firearm in relation to a drug

offense even though he did not “use it for its intended purpose.”

508 U.S. at 229-30. The Court noted that “[i]t is one thing to say

that the ordinary meaning of ‘uses a firearm’ includes using a

firearm as a weapon . . . [b]ut it is quite another to conclude

that, as a result, the phrase also excludes any other use.” Id. at

230. The Court acknowledged that using a firearm as a medium of

exchange was not the expected manner of use but determined that

section 924(c)(1)’s language “sweeps broadly, punishing any ‘us[e]’

of a firearm, so long as the use is ‘during and in relation to’ a

drug trafficking offense.” Id. at 229. Smith persuades us that

the possession of a firearm “in connection with” a crime of

violence does not exclude possession of the firearm as the fruit of

the crime which the possessor is contemporaneously committing.
7

An analogous case is United States v. Guerrero, 5 F.3d 868

(5th Cir. 1993), cert. denied, 510 U.S. 1134 (1994). The defendant

in Guerrero pled guilty to possession of a firearm by a felon in

violation of 18 U.S.C. §§ 922(g)(1) and 924(a), and to possession

of a stolen firearm in violation of 18 U.S.C. §§ 922(j) and

924(a)(2). The district court sentenced the defendant as an armed

career criminal pursuant to U.S.S.G. § 4B1.4(b)(3)(A). On appeal,

Guerrero argued that the district court erred in imposing a base

offense level of 34 under U.S.S.G. § 4B1.4(b)(3)(A) based on its

finding that he possessed the firearms in connection with a crime

of violence--burglary of a habitation. Guerrero did not object to

this finding in the district court, so the appellate court reviewed

the district court’s finding for plain error. 

Guerrero argued that he could not have possessed the firearms

in connection with the burglary because he remained outside the

house as a lookout. The appellate court rejected his argument for

two reasons. First, the evidence established that Guerrero

actively participated in the burglary by prying open the back door

and breaking into the gun cabinet. Second, the court reasoned that

even if Guerrero remained outside the residence, he could still be

responsible for the criminal acts of his cohort. See U.S.S.G. §

1B1.3(a)(1)(A) and (B). Thus, the court noted, it would not be

plain error to hold Guerrero accountable for the possession of the

firearms by his confederate.

Additionally, and more importantly for our purposes, the Fifth

Circuit discussed the “in connection with” language in U.S.S.G. §
 5

 U.S.S.G. § 2D1.1, comment. (n.3), states in relevant part:

“The enhancement for weapon possession reflects the increased

danger of violence when drug traffickers possess weapons. The

adjustment should be applied if the weapon was present, unless it

is clearly improbable that the weapon was connected with the

offense.”

8

4B1.4(b)(3)(A). Relying on the Supreme Court’s decision in Smith,

the court construed the phrase according to its ordinary and

natural meaning. The court noted that “[t]he Supreme Court reads

terms such as ‘used or possessed’ quite expansively in the context

of firearms.” Guerrero, 5 F.3d at 872. The Fifth Circuit examined

the guidelines for enhancing drug offenses where the defendant

possessed a dangerous weapon, see U.S.S.G. § 2D1.1(b)(1), and

concluded that the rationale for U.S.S.G. § 2D1.1(b)(1), as

expressed in the commentary5, was equally applicable to a crime of

violence such as a burglary of a residence. “Possession of

firearms obviously increases the danger of violence whether or not

such weapons are actually used. If armed burglars encounter the

occupants of a home or law enforcement officials, it makes little

difference how the burglars obtained their firearms.” Guerrero, 5

F.3d at 873.

We find the Fifth Circuit’s reasoning persuasive. As in

Guerrero, Young was sentenced as an armed career criminal based on

his unlawful possession of a firearm rather than his participation

in the burglary by which the firearm was obtained. The one-point

enhancement in section 4B1.4(b)(3)(A) for possession of the firearm

“in connection with” a crime of violence merely reflects the

context of Young’s possession of the firearm: the commission of a
 6

 U.S.S.G. § 2K2.1(b)(5) states:

(5) 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 possessed in connection with another felony

offense, increase by 4 levels. . . .

9

burglary. The one distinguishing fact between the present case

and Guerrero is that Young obtained the firearm more than a year

before he was charged with violations of 18 U.S.C. § 922(g) and §

924(e). However, the Government presented evidence that the rifle

possessed by Young was stolen from Mr. Anderson’s home; that

Young’s fingerprints were found on the windowsill of Mr. Anderson’s

home where the burglar made his entrance; that the exterminator who

sprayed Young’s apartment saw the rifle in Young’s attic several

months after the burglary; and that Kristi S. saw the rifle in the

attic on two separate occasions following the burglary. This

evidence is sufficient to place Young at Anderson’s residence on

the date of the burglary.

Young urges this court to adopt, by analogy, the reasoning of

other circuits which have addressed the “in connection with”

language in U.S.S.G. § 2K2.1(b)(5)6

. These circuits hold that the

“in connection with” language requires more than mere use or

possession. These circuits hold that the “in connection with”

requirement is satisfied only when the firearm serves a purpose

related to the crime; its presence or involvement must not be the

result of accident or coincidence. United States v. Wyatt, 102
 7

 18 U.S.C. § 924(c)(1) provides in part:

(c)(1) Whoever, during and in relation to any

crime of violence or drug trafficking crime .

. . for which he may be prosecuted in a court

of the United States, uses or carries a

firearm, shall, in addition to the punishment

provided for such crime of violence or drug

trafficking crime, be sentenced to

imprisonment for five years, . . . .

10

F.3d 241, 247 (7th Cir. 1996); United States v. Nale, 101 F.3d

1000, 1003 (4th Cir. 1996); United States v. Thompson, 32 F.3d 1,

7 (1st Cir. 1994); United States v. Routon, 25 F.3d 815, 819 (9th

Cir. 1994); United States v. Gomez-Arrellano, 5 F.3d 464, 466-67

(10th Cir. 1993). These cases applied the definition of “in

relation to” in 18 U.S.C. § 924(c)7, as interpreted by the Supreme

Court in Smith v. United States, 508 U.S. 223, 238 (1993), and held

that a weapon is used “in connection with” an offense under § 2K2.1

if the weapon facilitated or potentially facilitated the felonious

conduct. Thompson, 32 F.3d at 7; Routon, 25 F.3d at 819; Gomez, 5

F.3d at 466-67.

We conclude that the Fifth Circuit’s interpretation of Smith

is more accurate and pertinent to the issue presented here.

Accordingly, we decline to follow the other circuits’ rationales

which defined the language of U.S.S.G. § 2K2.1. We note that the

Fifth Circuit is the only circuit to interpret the specific

language of U.S.S.G. § 4B1.4(b)(3)(A), which is at issue in the

present case. Additionally, the guideline section at issue here is

addressed to armed career criminals. In our view, an armed career

criminal possesses a firearm in connection with a crime of violence
11

when that firearm is obtained during the commission of a burglary.

Accordingly, we affirm Young’s conviction and sentence.

AFFIRMED.