*This order and judgment is not binding precedent, except under the

doctrines of law of the case, res judicata, and collateral estoppel. The court

generally disfavors the citation of orders and judgments; nevertheless, an order

and judgment may be cited under the terms and conditions 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, this panel has determined

unanimously that oral argument would not materially assist 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.
1The 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 again at sentencing, following

which the district court, with some reservations, determined that the four-level

increase was warranted.

-2-

Ryan Evans appeals the sentence imposed following his conviction for

being a felon in possession of a firearm, in violation of 18 U.S.C. § 922(g)(1). 

We vacate Evans’ sentence and remand for resentencing.

BACKGROUND

During a field visit to Evans’ home, state probation officers found a .22

caliber rifle in his bedroom. After initially denying ownership of the rifle, he

later admitted that he had received it as payment for 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 increased his 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 ammunition in connection with

another felony offense.” 1 The court then sentenced Evans to thirty months

imprisonment, to run concurrently with a state sentence, 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, giving 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 potential to facilitate the underlying

felony, then enhancement under § 2K2.1(b)(5) is appropriate.” Id. (further

quotation omitted). An enhancement is inappropriate 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 concedes 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 therefore 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