*Pursuant to Local Rule 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opinion should not be published and is not precedent except under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 Local Rule 47.5.4.

UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

__________________

No. 96-40565

Summary Calendar

__________________

UNITED STATES OF AMERICA,

Plaintiff-appellee,

versus

TERRY BELLINI BARLOW,

Defendant-Appellant.

______________________________________________

Appeal from the United States District Court for the

Eastern District of Texas

(1:95-CR-166-1)

_____________________________________________

December 13, 1996

Before HIGGINBOTHAM, WIENER, and BENAVIDES, Circuit Judges.

PER CURIAM:*

This appeal concerns the district court's application of

U.S.S.G. § 2K2.1(b)(5), which provides for a four-level increase in

offense level if the defendant used or possessed a firearm in

connection with another felony offense. Terry Barlow pleaded

guilty to stealing firearms, which were previously shipped in

interstate commerce, from a licensed firearms dealer in violation
1 According to the presentence report, the local district

attorney's office would dismiss the burglary charge upon sentencing

in the federal case.

2

of 18 U.S.C. § 922(u). These firearms were acquired as a result of

conduct which would constitute the felony offense of burglary in

violation of Tex. Penal Code Ann. § 30.02(a)(1), (3). Barlow

contends that the burglary he committed is not "another offense"

within the meaning of § 2K2.1(b)(5). Rejecting this contention, we

affirm.

Barlow stipulated to the following facts at his guilty plea

proceeding. Barlow and three cohorts broke into Phillip's Pawnshop

in Jasper, Texas, and stole several firearms. Thereafter, they

drove to Houston and sold some of the guns. Upon returning to

Jasper, all four men were arrested, and four of the stolen firearms

were recovered in the vehicle. 

Pursuant to a plea agreement, Barlow pleaded guilty to

violating 18 U.S.C. § 922(u), which provides that:

It shall be unlawful for a person to steal or unlawfully

take or carry away from the person or the premises of a

person who is licensed to engage in the business of

importing, manufacturing, or dealing in firearms, any

firearm in the licensee's business inventory that has

been shipped or transported in interstate or foreign

commerce.

Barlow also was charged in state court with burglary of Phillip's

Pawnshop.1 Under Texas law, "[a] person commits [burglary] if,

without the effective consent of the owner, he: (1) enters a

habitation, or a building . . . not then open to the public, with

intent to commit a felony or theft; or . . . enters a building or
2 Section 2K2.1(b)(5) provides that:

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. If the resulting offense

level is less than level 18, increase to level 18.

3

habitation and commits or attempts to commit a felony or theft."

Tex. Penal Code Ann. § 30.02(a)(1), (3). 

Barlow's offense level was increased four levels pursuant to

U.S.S.G. § 2K2.1(b)(5) because he possessed firearms "in connection

with another felony offense." (emphasis added).2 The commentary

to § 2K2.1(b)(5) defines "felony offense" as "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." § 2K2.1(b)(5) comment. (n.7). 

Barlow argues that the theft of the firearms in violation of

federal law and the state burglary are essentially the same

offense, and thus, the burglary cannot be deemed "another" felony

offense under § 2K2.1(b)(5). We disagree. Here, Barlow committed

the state offense of burglary by entering the building, which was

not then open to the public, with the intent to commit a felony or

theft. Tex. Penal Code Ann. § 30.03(a)(1). At that point, Barlow

had completed the state offense of burglary. Barlow then stole

firearms from the premises of a licensed firearms dealer in

violation of 18 U.S.C. § 922(u). It was not necessary to the

offense of conviction for Barlow to enter the building at a time
3 Barlow does not contend that the firearms were not possessed "in

connection with" the state burglary offense within § 2K2.1(b)(5).

In any event, such contention would likely be rejected. See United

States v. Guerrero, 5 F.3d 868 (5th Cir. 1993), cert. denied, 510

U.S. 1134, 114 S.Ct. 1111 (1994) (interpreting U.S.S.G. §

4B1.4(b)(3)(A), this Court held that the defendant possessed

firearms "in connection with" a burglary even though the guns were

fruits of the burglary) (plain error case); United States v.

Condren, 18 F.3d 1190 (5th Cir.), cert. denied, 115 S.Ct. 161

(1994) (explaining that phrase "in connection with" in §

2K2.1(b)(5) should be given its ordinary and natural meaning, we

concluded that a firearm found in drawer of desk in which drugs

were found was possessed "in connection with" the other offense of

possession of drugs).

4

not open to the public. Likewise, it was not necessary to the

completion of the burglary offense for Barlow to actually steal and

possess the firearms. Nonetheless, he did so. In doing so, he

possessed a firearm in connection with the burglary offense.3 The

burglary clearly was not the same offense as the offense of

conviction. See United States v. Kuban, 94 F.3d 971 (5th Cir.

1996) (explaining that increase in base offense level pursuant to

§ 2K2.1(b)(5) for possession of firearm in connection with state

felony offense of aggravated assault did not result in improper

double punishment of defendant's conviction for felon in possession

of a firearm). 

Barlow also argues that § 2K2.1(b)(5), comment. (n.18)

"specifically urges the District Court to give this increase only

when there is a separate offense in which the defendant utilizes

the firearms." Barlow is mistaken. In pertinent part, the

commentary provides that "another felony offense" and "another

offense" refer to offenses other than firearms possession or
5

trafficking offenses. In the instant case, however, the other

felony offense is burglary, not possessing or trafficking in

firearms.

Accordingly, we hold that the district court did not err in

increasing Barlow's offense level for his possession of firearms in

connection with another felony offense, burglary. The district

court properly applied § 2K2.1(b)(5). 

AFFIRMED.