PUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

UNITED STATES OF AMERICA, 

Plaintiff-Appellant,

v.  No. 02-4668

NORMAN LEE BLOUNT,

Defendant-Appellee. 

Appeal from the United States District Court

for the Eastern District of Virginia, at Norfolk.

Henry C. Morgan, Jr., District Judge.

(CR-01-17)

Argued: April 4, 2003

Decided: July 24, 2003

Before WILKINS, Chief Judge, and TRAXLER and

GREGORY, Circuit Judges.

Affirmed by published opinion. Chief Judge Wilkins wrote the opinion, in which Judge Traxler and Judge Gregory joined. 

COUNSEL

ARGUED: James Ashford Metcalfe, Assistant United States Attorney, Norfolk, Virginia, for Appellant. Frances Hemsley Pratt,

Research and Writing Attorney, Norfolk, Virginia, for Appellee. ON

BRIEF: Paul J. McNulty, United States Attorney, Norfolk, Virginia,

for Appellant. Frank W. Dunham, Jr., Federal Public Defender, Larry

M. Dash, Assistant Federal Public Defender, Norfolk, Virginia, for

Appellee. 
OPINION

WILKINS, Chief Judge: 

Appellee Norman Lee Blount was convicted of possession of a

firearm and ammunition by a felon, in violation of 18 U.S.C.A.

§ 922(g)(1) (West 2000). The Government contends that the district

court erred at sentencing by refusing to impose a four-level enhancement for "possess[ing] [a] firearm or ammunition in connection with

another felony offense," U.S. Sentencing Guidelines Manual

§ 2K2.1(b)(5) (2001).1 We affirm. 

I.

The conviction and sentence at issue here arose from a burglary

committed by Blount in Chesapeake, Virginia. As recounted in the

presentence report (PSR), Blount was stopped by police while walking near the crime scene. The police ultimately arrested him and

searched his bag, which contained, inter alia, a box of ammunition.

Blount subsequently confessed to committing a burglary and to stealing the ammunition during the commission of that offense. He also

admitted that he stole a revolver during the burglary and later discarded it; with Blount’s guidance, the police found the revolver in a

ditch approximately one-half mile from the site of the burglary. 

After being indicted for multiple offenses arising from this incident, Blount pled guilty to violating § 922(g)(1). The PSR prepared

after this plea stated that the applicable offense level was 27, based

in part on a four-level enhancement pursuant to § 2K2.1(b)(5). This

offense level, together with Blount’s criminal history category of VI,

yielded a guideline range of 130 to 162 months. Before sentencing,

however, Blount objected to the guidelines computations, asserting

that the § 2K2.1(b)(5) enhancement was improper because the only

other offense associated with his possession of the firearm was the

burglary during which the firearm was obtained. The district court

1There is some ambiguity in the record about whether the probation

officer and the district court used the 2000 guidelines manual or the 2001

manual. We need not resolve this, however, as the provisions relevant to

this appeal are identical. 

2 UNITED STATES v. BLOUNT
agreed with Blount and therefore concluded that his offense level

should be 23 rather than 27. This conclusion yielded a sentencing

range of 92 to 115 months. The court sentenced Blount to 108 months

imprisonment. 

II.

Section 2K2.1(b)(5) provides for a four-level enhancement 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." The purpose of this enhancement is to ensure that a defendant receives more severe punishment if, in addition to committing a

firearms offense within the scope of § 2K2.1, he commits a separate

felony offense that is rendered more dangerous by the presence of a

firearm (or facilitates another person’s commission of an offense

involving a firearm). See United States v. McDonald, 165 F.3d 1032,

1037 (6th Cir. 1999) (stating that § 2K2.1(b)(5) "was created in

response to a concern about the increased risk of violence when firearms are used or possessed during the commission of another felony"

(emphasis omitted)); United States v. Armstead, 114 F.3d 504, 513

(5th Cir. 1997) (stating that § 2K2.1(b)(5) "reflects the concern for

public safety which the Guidelines sought to achieve"). 

The question before us is whether the language of § 2K2.1(b)(5)—

viewed in light of its commentary and its underlying purpose—

requires an enhancement when, as here, a defendant acquires a firearm during a theft or burglary but does not use the firearm or evince

any willingness to do so. To answer this question, we must consider

whether the burglary committed by Blount constituted "another felony offense" and, if so, whether the firearm and ammunition underlying his conviction were possessed "in connection with" the burglary.

We hold that the burglary does qualify as "another felony offense" but

that a § 2K2.1(b)(5) enhancement is nonetheless improper here

because the record does not demonstrate a sufficient nexus between

the burglary and Blount’s possession of a firearm. 

UNITED STATES v. BLOUNT 3
A. "Another Felony Offense"

1.

The Government argues that the burglary committed by Blount

constituted "another felony offense" for purposes of § 2K2.1(b)(5)

because the burglary and Blount’s § 922(g) offense would be

regarded as separate crimes under Blockburger v. United States, 284

U.S. 299 (1932). Blount counters that "another felony offense" must

be "an offense distinct from the conduct by which he acquired the

firearms." Br. of Appellee at 22. We agree with the position advanced

by the Government. 

Blockburger provides that, "where the same act or transaction constitutes a violation of two distinct statutory provisions, the test to be

applied to determine whether there are two offenses or only one, is

whether each provision requires proof of a fact which the other does

not." Blockburger, 284 F.3d at 304. This test has been applied to

ascertain legislative intent, see id., and to determine whether two

offenses were the same for purposes of the Fifth Amendment prohibition against double jeopardy or the Sixth Amendment right to counsel, see Texas v. Cobb, 532 U.S. 162, 173 (2001). 

The commentary to § 2K2.1 supports the application of Blockburger here. In particular, Application Note 7 defines "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." This definition necessarily

focuses on the elements of the "felony offense," as there is no way to

determine whether conduct is "punishable by imprisonment for a term

exceeding one year" except by ascertaining that such conduct satisfies

the elements of a particular crime. Thus, the "felony offense" that

forms the basis for a § 2K2.1(b)(5) enhancement ("the enhancement

offense")—in this case, burglary—must consist of a crime comprising

defined elements. 

In determining whether a proffered enhancement offense constitutes "another felony offense" relative to the offense of conviction, a

sentencing court could conceivably compare the elements of the

enhancement offense with the conduct surrounding the offense of

4 UNITED STATES v. BLOUNT
conviction. The word "another," however, signifies that such asymmetry is inappropriate. See Webster’s Third New Int’l Dictionary 89

(1981) (defining "another" to mean "an additional one of the same

kind : one more"); cf. United States v. Cutler, 36 F.3d 406, 408 (4th

Cir. 1994) (defining "another," as used in this context, to mean "‘additional, one more’" (quoting The American Heritage Dictionary, Second College Edition (1982))). Thus, if a sentencing court must look

to the elements of the enhancement offense, as Note 7 requires, it

should also consider the elements of the offense of conviction.2

We recognize that this focus on the elements does not compel us

to apply Blockburger. But the Blockburger test was formulated for

resolving the very issue before us—namely, whether conduct by the

defendant should be regarded as constituting a single offense or multiple distinct offenses. Moreover, because the Blockburger test requires

only minimal separation between the enhancement offense and the

offense of conviction, it does not unduly curtail application of

§ 2K2.1(b)(5). We therefore believe that Blockburger provides the

appropriate standard for determining whether a proffered enhancement offense qualifies as "another felony offense." 

2.

Five other courts of appeals have considered the validity of

§ 2K2.1(b)(5) enhancements in cases similar to this one. Two of these

courts approved the imposition of such enhancements without articulating a general test for determining when a proffered enhancement

offense qualifies as "another felony offense." See United States v.

English, 329 F.3d 615, 617-18 (8th Cir. 2003);3 Armstead, 114 F.3d

2We do not suggest that this definition of "offense" is appropriate for

all applications of the guidelines, or even for all applications of § 2K2.1.

On the contrary, the guidelines generally use the word "offense" to mean

"the offense of conviction and all relevant conduct . . . unless a different

meaning is specified or is otherwise clear from the context." U.S.S.G.

§ 1B1.1, comment. (n.1(k)). As explained in the text, we believe another

meaning is "otherwise clear" here. 

3

In English, the Eighth Circuit appears to have applied the Blockburger

test without explicitly adopting it. See id. at 618. In an earlier case, the

Eighth Circuit upheld a § 2K2.1(b)(5) enhancement on the basis that the

enhancement offense was "a different kind of crime" from the offense of

conviction. United States v. Kenney, 283 F.3d 934, 938 n.3 (8th Cir.),

cert. denied, 123 S. Ct. 270 (2002). 

UNITED STATES v. BLOUNT 5
at 512-13. Three other courts overturned the defendants’

§ 2K2.1(b)(5) enhancements on the ground that there was insufficient

separation between the enhancement offense and the offense of conviction. See United States v. Fenton, 309 F.3d 825, 827-28 (3d Cir.

2002); United States v. Szakacs, 212 F.3d 344, 351-52 (7th Cir.

2000); United States v. Sanders, 162 F.3d 396, 400-02 (6th Cir.

1998). 

The Third, Sixth, and Seventh Circuits rejected the Blockburger

test, see Szakacs, 212 F.3d at 351-52, adopting instead a rule requiring "a separation of time between the offense of conviction and the

[enhancement] offense, or a distinction of conduct between that

occurring in the offense of conviction and the [enhancement]

offense," Sanders, 162 F.3d at 400; accord Szakacs, 212 F.3d at 351.

We have already explained why we believe Blockburger provides the

proper standard. We believe it is also appropriate to explain why we

would not follow the course charted by the Third, Sixth, and Seventh

Circuits. 

The primary justification cited by these other courts is that some

separation is necessary in order to give effect to the word "another"

in the phrase "another felony offense." See, e.g., Sanders, 162 F.3d

at 400. But this treatment of the word "another" presupposes that the

offense of conviction includes all "relevant offense conduct." Id. For

the reasons stated above, however, we consider it appropriate to focus

on the offense elements, not the relevant conduct. This approach

makes it possible to apply § 2K2.1(b)(5) only to distinct offenses—

and thus to give effect to the word "another"—without requiring

entirely separate conduct. 

Neither are we persuaded by the suggestion in Szakacs that the

word "another" bars the application of § 2K2.1(b)(5) based on a contemporaneous crime that, if prosecuted federally, would have been

grouped with the firearms offense for which the defendant is being

sentenced. See Szakacs, 212 F.3d at 351 n.2. See generally U.S.S.G.

§ 3D1.2 (explaining when convictions must be grouped). The Szakacs

court reasoned that overlapping offenses "should not result in double

counting for purposes of punishment." Szakacs, 212 F.3d at 351 n.2.

With respect, we believe this reasoning misconstrues the guidelines

process. It is true that grouping is designed to "prevent multiple pun6 UNITED STATES v. BLOUNT
ishment for substantially identical offense conduct." U.S.S.G. Ch. 3,

Pt. D, intro. comment. This does not mean, however, that a defendant

who commits two crimes during a single course of conduct may not

have the sentence for one offense increased based on the other

offense. On the contrary, Chapter 2 of the guidelines expressly provides for enhancements based on specific offense characteristics,

including offenses linked to the offense of conviction. The grouping

rules in Chapter 3 ensure that no additional penalty is imposed

beyond those enhancements; they do not preclude the enhancements

altogether. See id. (noting that some minor offenses may be "so

closely related to [a] more serious offense that it would be appropriate

to treat them as part of the more serious offense, leaving the sentence

enhancement to result from application of a specific offense characteristic"). 

An additional reason offered to support a restrictive reading of the

phrase "another felony offense" is that a broader interpretation would

require enhancement for virtually all weapons offenses because "almost every federal weapons offense could be prosecuted simultaneously under state law." Fenton, 309 F.3d at 828. In our experience,

however, it is common for § 922(g) convictions to arise from police

searches that result in the discovery of a firearm in the possession of

a convicted felon. While these searches are generally predicated on

suspicion that the felon has committed some other offense, there is

frequently no evidence linking that offense to possession of any

weapon; thus, that offense could not be used to support a

§ 2K2.1(b)(5) enhancement. On other occasions, the search ensues

from a traffic stop; in those cases, it may be clear that the defendant

possessed a firearm while committing a traffic infraction, but most

such infractions are not felonies and therefore would not justify a

§ 2K2.1(b)(5) enhancement. And, while possession of the firearm

may itself be a state-law crime, this would not support a

§ 2K2.1(b)(5) enhancement either, because Application Note 18

defines "another felony offense" to exclude firearms possession

crimes. Thus, even if contemporaneous crimes may be treated as

"[ ]other felony offense[s]," a large subset of § 922(g) prosecutions

would not implicate § 2K2.1(b)(5) at all.4

4

In the remaining cases—that is, those in which the defendant’s unlawful possession of a firearm is discovered because he has committed

UNITED STATES v. BLOUNT 7
Finally, we believe that adopting a restrictive definition of "another

felony offense"—such as the definition announced in Sanders—

entails significant disadvantages. First, such a definition may be more

difficult to apply than the Blockburger test, which has been clarified

by courts over several decades. Cf. Cobb, 532 U.S. at 173 (stating that

Blockburger would be easier to apply than "vague iterations of the

‘ "closely related to" ’ or ‘ "inextricably intertwined with" ’ test"

(quoting id. at 186 (Breyer, J., dissenting))). For example, suppose

that Blount had not picked up a firearm inside the house he was burglarizing, but had instead discovered the firearm in the backyard and

picked it up immediately before breaking into the house. It is not clear

to us whether this slight difference in the sequence of events would

alter Blount’s exposure to a § 2K2.1(b)(5) enhancement under the

Sanders test. This uncertainty about how to apply Sanders is troubling

because it could lead to disparate sentences for similarly situated

offenders. 

We are also concerned that the Sanders test would produce results

inconsistent with the purposes underlying § 2K2.1(b)(5). For example, suppose that Defendant X and Defendant Y both decide to burglarize pawnshops. Defendant X acquires a firearm before the breakin, and he keeps the weapon at ready during the burglary in case he

encounters anybody inside the shop. By contrast, Defendant Y is

unarmed when he breaks into the pawnshop, but he immediately finds

a firearm and keeps it close at hand while looting the rest of the shop.

Both defendants have prior felony convictions, and both are ultimately convicted of violating § 922(g). So far as we can tell, Defendant X would be eligible for a § 2K2.1(b)(5) enhancement under

Sanders, but Defendant Y would not be. But Defendant Y, no less

than Defendant X, deliberately armed himself and was prepared to

use a firearm to effectuate another crime. Consequently, applying

§ 2K2.1(b)(5) to Defendant X but not Defendant Y would not serve

the purposes of that enhancement. 

another offense—a § 2K2.1(b)(5) enhancement properly reflects the

defendant’s additional culpability. See, e.g., United States v. Turnipseed,

159 F.3d 383, 386 (9th Cir. 1998) (upholding the imposition of a

§ 2K2.1(b)(5) enhancement on a defendant who had used a firearm to

commit an assault because the assault increased "the seriousness of the

gun possession"). 

8 UNITED STATES v. BLOUNT
For these reasons, we conclude that the Sanders test does not

implement the language and purposes of § 2K2.1(b)(5) as effectively

as the Blockburger test. We therefore hold that a proffered enhancement offense qualifies as "another felony offense" if it is distinct from

the offense of conviction under Blockburger. And, because it appears

to be undisputed that Blount’s state-law burglary and his § 922(g)

offense are distinct under Blockburger, we hold that the burglary constituted "another felony offense." 

B. "In Connection With"

The dispute among courts of appeals relating to the imposition of

§ 2K2.1(b)(5) enhancements based on contemporaneous crimes is

confined entirely to the phrase "another felony offense." This is

because the conclusion that a contemporaneous crime cannot be "another felony offense"—the conclusion reached by the Third, Sixth,

and Seventh Circuits—eliminates any need to examine other portions

of § 2K2.1(b)(5). In our view, however, the "in connection with"

requirement, rather than the "another felony offense" requirement,

represents the primary limitation on the applicability of

§ 2K2.1(b)(5). 

Among the decisions cited above, only Armstead analyzes the

phrase "in connection with" as it relates to the application of

§ 2K2.1(b)(5) to contemporaneous crimes. In Armstead, the Fifth Circuit applied its precedent concerning the phrase "in connection with"

and concluded that a § 2K2.1(b)(5) enhancement was appropriate

because the firearms stolen by the defendant during a burglary "were

possessed [during the burglary] and could have been used to facilitate" it. Armstead, 114 F.3d at 512. 

The Fifth Circuit employs a definition of "in connection with" that

is subtly different from the definition we have previously adopted. In

the Fifth Circuit, the mere fact that a firearm was available to the

defendant during the commission of another crime satisfies the "in

connection with" requirement, even if the firearm was possessed

under circumstances that would have hindered its use. See United

States v. Condren, 18 F.3d 1190, 1199-1200, 1200 n.22 (5th Cir.

1994) (upholding § 2K2.1(b)(5) enhancement based on possession of

weapon in same location as cache of drug paraphernalia, even though

UNITED STATES v. BLOUNT 9
drawer in which weapon was stored may have been locked). This

court, however, requires a clearer nexus between the firearm and the

associated offense. See United States v. Nale, 101 F.3d 1000, 1004

(4th Cir. 1996) (expressly rejecting the Condren approach); cf. United

States v. Young, 115 F.3d 834, 838 (11th Cir. 1997) (analyzing differences between Fourth and Fifth Circuit interpretations of "in connection with"). Our circuit precedent treats "in connection with" as

synonymous with "in relation to," as that term is used in 18 U.S.C.A.

§ 924(c) (West 2000). See United States v. Garnett, 243 F.3d 824,

828 (4th Cir. 2001). Under this interpretation, a weapon is used or

possessed "in connection with" another offense if the weapon "facilitates or has a tendency to facilitate the [other] offense." Id. at 829.

"[T]he firearm must have some purpose or effect with respect to the

. . . crime; its presence or involvement cannot be the result of accident

or coincidence." Smith v. United States, 508 U.S. 223, 238 (1993);

accord United States v. Lipford, 203 F.3d 259, 266 (4th Cir. 2000)

(stating that presence of firearm cannot be merely "spontaneous or

coincidental"). 

The Government bears the burden of proving that the defendant

possessed a firearm "in connection with another felony offense." See

Garnett, 243 F.3d at 828 (noting that Government has burden of proving facts necessary to support § 2K2.1(b)(5) enhancement). In a case

like the one before us, the Government can meet this burden by showing, for example, that the defendant actually used the stolen weapon

to intimidate occupants of the home, or that he prepared for this contingency by keeping the firearm close at hand. Because no evidence

of this nature is present here, the record fails to establish that Blount

was eligible for a § 2K2.1(b)(5) enhancement. 

III.

For these reasons, we hold that Blount committed "another felony

offense" but that the record contains no evidence that he possessed a

firearm "in connection with" that offense. It follows that the district

court properly refused to apply a § 2K2.1(b)(5) enhancement. We

therefore affirm the sentence imposed by the district court. 

AFFIRMED

10 UNITED STATES v. BLOUNT