* Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not

be published and is not precedent except under the limited circumstances set forth in 5TH CIR.

R. 47.5.4.

REVISED May 23, 2013

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 12-10315

UNITED STATES OF AMERICA,

Plaintiff–Appellee,

v.

TOD DEWAYNE PIMPTON, JR.,

Defendant–Appellant.

Appeal from the United States District Court

for the Northern District of Texas

USDC No. 1:11-CR-32-1

Before REAVLEY, PRADO, and ELROD, Circuit Judges.

PRADO, Circuit Judge:*

Tod Dewayne Pimpton, Jr. was charged with being a dangerous felon in

possession of body armor and being a convicted felon in possession of a firearm

after police found body armor and a loaded pistol in the trunk of a car he was

driving. Pimpton agreed to plead guilty to firearm possession, and the

government voluntarily dismissed the body armor charge. At sentencing, a fourUnited States Court of Appeals

Fifth Circuit

F I L E D

May 6, 2013

Lyle W. Cayce

Clerk
No. 12-10315

1 The fulltext of § 2K2.1(b)(6)(B) provides that a defendant receives a four-level increase

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

2

level enhancement was applied because Pimpton possessed the firearm in

connection with another felony, namely, being a violent felon in possession of

body armor. Pimpton appeals the application of the enhancement. As explained

below, we vacate Pimpton’s sentence and remand for resentencing because the

district court relied on the incorrect standard in interpreting the sentencing

enhancement and the error was not harmless.

I

During the course of a traffic stop on March 1, 2011, a police dog alerted

to the presence of drugs in a car being driven by Tod Dewayne Pimpton, Jr.

(“Pimpton”). The car was searched, and police recovered a loaded ninemillimeter pistol and body armor from the trunk of the car. The gun was inside

of a purse along with a pair of men’s gloves. The body armor was in a black

plastic bag underneath the purse. At the time, Pimpton admitted that the body

armor belonged to him, but denied knowing that the gun was in the vehicle; he

also denied ownership of it. Pimpton had been previously convicted of a felony

in 2005.

Pimpton was then indicted on two counts: (1) violent felon in possession

of body armor; and (2) convicted felon in possession of a firearm. On December

15, 2011, Pimpton agreed to a guilty plea on the second count. The first count,

charging Pimpton with unlawful possession of body armor, was dismissed after

he pleaded guilty to the firearm charge. At sentencing, the probation officer

recommended a four-level enhancement pursuant to U.S. Sentencing

Commission Guidelines Manual § 2K2.1(b)(6)(B) because Pimpton was found in

possession of a firearm in connection with another felony offense, being a violent

felon in possession of body armor.1 Pimpton objected, arguing that his firearm
No. 12-10315

offense[.]” U.S. Sentencing Guidelines Manual § 2K2.1(b)(6)(B).

3

possession did not facilitate or have the potential to facilitate his possession of

body armor. The court overruled his objection and sentenced him to seventyeight months of incarceration. Pimpton filed a timely notice of appeal

challenging the enhancement he received.

II

As this is a direct appeal from the final decision of a district court, this

Court has jurisdiction pursuant to 28 U.S.C. § 1291.

III

A

“The district court’s interpretation or application of the Sentencing

Guidelines is reviewed de novo, while its factual findings are reviewed for clear

error.” United States v. Hernandez–Galvan, 632 F.3d 192, 196 (5th Cir. 2011)

(internal quotation marks omitted). “In determining whether a Guidelines

enhancement applies,the district courtis allowed to draw reasonable inferences

from the facts, and these inferences are fact findings reviewed for clear error.

The district court’s determination of the relationship between [a] firearm and

another offense is a factual finding.” United States v. Coleman, 609 F.3d 699,

708 (5th Cir. 2010) (internal citation omitted). “A factual finding is clearly

erroneous when the reviewing court on the entire evidence is left with the

definite and firm conviction that a mistake has been committed.” Id. “[T]his

court ‘may affirm the district court’s judgment on any basis supported by the

record.’” United States v. Le, 512 F.3d 128, 134 (5th Cir. 2007) (quoting United

States v. Clay, 408 F.3d 214, 218 n.7 (5th Cir. 2005)).

B

At Pimpton’s sentencing, it was recommended that Pimpton receive a fourlevel enhancement pursuant to § 2K2.1(b)(6)(B), which provides for an
No. 12-10315

2

In 2005, this provision was listed in the Guidelines as § 2K2.1(b)(5).

4

enhancement if the defendant “possessed any firearm . . . in connection with

another felony offense; or possessed . . . any firearm . . . with knowledge, intent,

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

another felony offense[.]” U.S. Sentencing Guidelines Manual (hereinafter

“USSG”) § 2K2.1(b)(6)(B). Pimpton objected, claiming that his firearm was not

possessed “in connection with” his possession of body armor because the two

items were possessed independent of each other; they were merely found in the

same place at the same time. The government responded by claiming that guns

and body armor “go hand in hand[,]” each making the other more dangerous.

The district court overruled Pimpton’s objection and sentenced him to seventyeight months of incarceration.

Under the operative language in § 2K2.1(b)(6)(B), in order to warrant a

four-level enhancement, the defendant must have possessed a firearm “in

connection with” another felony. USSG § 2K2.1(b)(6)(B). However, until 2006,

the Guidelines did not define “in connection with.” To address this shortcoming,

in 2005, the Fifth Circuit interpreted the phrase “in connection with” from

§ 2K2.1(b)(6)(B)2 as requiring that “the presence of a firearm facilitated, and

made inherently more dangerous, another crime.” United States v. Villegas, 404

F.3d 355, 363 (5th Cir. 2005). Our precedent notwithstanding, in 2006, the

Guidelines were amended to provide a definition of “in connection with.”

According to that definition, a firearm is possessed “in connection with” another

felony “if the firearm . . . facilitated, or had the potential of facilitating, another

felony offense or another offense, respectively.” USSG § 2K2.1(b)(6) cmt. n.14.

The Fifth Circuit has stated that this sentencing enhancement applies, for

example, if the firearm “emboldened” the second offense or if it served to protect

other contraband. United States v. Jeffries, 587 F.3d 690, 694–95 (5th Cir. 2009)
No. 12-10315

5

(discussing possible ways to find the requisite connection under

§ 2K2.1(b)(6)(B)). 

At sentencing, the court relied on both Villegas and commentary note

fourteen to apply the enhancement. As explained below, Villegas was effectively

abrogated when the Guidelines were amended to define “in connection with.” It

was thus improper to rely on the “made more dangerous” conception of the

enhancement provided in Villegas. Moreover, given the content of the record on

appeal, it is not clear that the district court would have applied § 2K2.1(b)(6)(B)

without Villegas. Accordingly, we vacate Pimpton’s sentence and remand for

resentencing.

The conception of “in connection with” put forth in Villegas was effectively

abrogated by the Guidelines when the Guidelines were amended to define that

phrase. Compare Villegas, 404 F.3d at 363 (noting that the Guidelines do not

define “in connection with” and attempting to “give this language its ordinary

and natural meaning”), with USSG § 2K2.1(b)(6) cmt. n.14 (providing a

definition of “in connection with”). While the Fifth Circuit has stated that the

amendmentto commentary note fourteen “reinforces this court’s prior practice,”

United States v. Anderson, 559 F.3d 348, 357 (5th Cir. 2009), the “made more

dangerous” language in Villegas stands out as an anomalous addition to the

Fifth Circuit’s precedent. As discussed earlier, Villegas sought to elucidate a

definition of “in connection with” in the Guidelines at a time when the

Guidelines did not define the term. 404 F.3d at 363. The court determined that

a firearm was possessed “in connection with” another felony when “the presence

of a firearm facilitated, and made inherently more dangerous, another crime.”

Id. The Guidelines now specifically state that, except in the case of burglary and

drug trafficking offenses, a firearm is possessed “in connection with” another

offense when the firearm “facilitated, or had the potential of facilitating, another

felony offense or another offense, respectively.” USSG § 2K2.1(b)(6) cmt. n.14.
No. 12-10315

3 As an initial matter, it is not immediately clear that mere proximity, without more,

triggers § 2K2.1(b)(6)(B). See Jeffries, 587 F.3d at 693–94. Moreover, it bears emphasizing

that, for purposes of this case, § 2K2.1(b)(6)(B) is concerned with the firearm facilitating a

possession offense specifically. That is, under the terms of § 2K2.1(b)(6)(B), the enhancement

only applies to Pimpton if the firearm he possessed facilitated the possession of body armor.

Hypothetical uses for body armor have no bearing on the specific offense of possessing body

armor.

4

In its soliloquy, the court stated, “All right. The court, having considered the

objections of the defense to the presentence report, is of the opinion the objections should be

overruled for the reasons as set forth in the addendums to the presentence report and as

argued by government's counsel this morning.”

6

In other words, the definition proffered in Villegas included content not present

in the definition provided by commentary note fourteen or subsequent Fifth

Circuit precedent. Thus, the district court erred to the extent it relied on

Villegas and the “made more dangerous” standard in interpreting and applying

the § 2K2.1(b)(6)(B) enhancement.

While this Court may affirm a sentence based on any finding supported by

the record, United States v. Le, 512 F.3d 128, 134 (5th Cir. 2007), it is not clear

that the district court would have applied § 2K2.1(b)(6)(B) using the standard

set forth in commentary note fourteen.3 At sentencing, the government relied

extensively on Villegas and the notion that firearms and body armor “go hand

in hand,” each making the other more dangerous. The district court in turn

accepted the government’s arguments, without elaborating further.4 The

application of § 2K2.1(b)(6)(B) is a fact-dependent inquiry. Given the district

court’s familiarity with the evidence, we are reluctant to substitute our

judgment. Instead, vacating Pimpton’s sentence and remanding for resentencing

will provide the district court an opportunity to evaluate the parties’ arguments

in light of the standard provided by commentary note fourteen.

IV

Therefore, Pimpton’s sentence is VACATED and the case is REMANDED

for resentencing in accordance with this opinion.