* This order and judgment is not binding precedent, e xcept under the

doctrines of law of the case, res judicata, and col lateral estoppel. The court generally disfavors the citation of orders and judg ments; nevertheless, an order and judgment may be cited under the terms and condi tions of 10th Cir. R. 36.3. 

## F I L E D United States Court of Appeals Tenth Circuit 

### JUN 1 2004 

### PATRICK FISHER Clerk UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

UNITED STATES OF AMERICA,

Plaintiff - Appellee, No. 03-4232

v. (D. Utah) RYAN EVANS,

Defendant - Appellant. (D.C. No. 03-CR-283-DAK)

ORDER AND JUDGMENT *

Before TACHA, Chief Judge, ANDERSON and BALDOCK , Circuit Judges.

After examining the briefs and appellate record, th is panel has determined unanimously that oral argument would not materiallyassist the determination of this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is therefore ordered submitted without oral argument.1 The probation officer who prepared the presentence report in this case

recommended the four-level increase in base offense level. Evans objected to that portion of the presentence report. He objected aga in at sentencing, following which the district court, with some reservations, d etermined that the four-level increase was warranted. -2- Ryan Evans appeals the sentence imposed following h is conviction for being a felon in possession of a firearm, in violat ion of 18 U.S.C. § 922(g)(1). We vacate Evans’ sentence and remand for resentenci ng.

BACKGROUND During a field visit to Evans’ home, state probatio n officers found a .22 caliber rifle in his bedroom. After initially deny ing ownership of the rifle, he later admitted that he had received it as payment f or methamphetamine he had previously sold. Evans pled guilty. At sentencing, relying upon Evans’ statement about how he came into possession of the gun, the district court increasedhis base offense level in accordance with United States Sentencing Commission, Guidelines Manual (“USSG”) §2K2.1(b)(5), which provides for a four-level increase “[i]f the defendant used or possessed any firearm or ammuniti on in connection with another felony offense.” 1 The court then sentenced Evans to thirty months imprisonment, to run concurrently with a state sent ence, followed by thirty-six months of supervised release.-3-

“We review a district court’s interpretation of the Sentencing Guidelines de novo, and its factual findings for clear error, giv ing due deference to the district court’s application of the guidelines to the facts.” United States v. Brown , 314 F.3d 1216, 1222 (10th Cir.), cert. denied , 537 U.S. 1223 (2003). We have held that “if the weapon facilitated or had the potentia l to facilitate the underlying felony, then enhancement under § 2K2.1(b)(5) is appropriate.” Id. (further quotation omitted). An enhancement is inappropriat e if “possession of the weapon is coincidental or entirely unrelated to the offense.” Id. The government concedes that the drug distribution, which occurred on some prior unknown date, was completed by the time Evans received the gun as payment for the drugs. The government further conc edes that “there is no evidence that Evans bargained for or agreed to sell his drugs in exchange for a firearm.” Gov’t’s Br. at 7. Evans did not therefo re use or possess the gun “in connection with” another felony offense. Accordingly, the case is REMANDED for resentencing.
ENTERED FOR THE COURT
Stephen H. Anderson Circuit Judge