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United States Court of Appeals

FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued March 18, 2003 Decided April 11, 2003

No. 02-3020

UNITED STATES OF AMERICA,

APPELLEE

v.

JASON HART,

APPELLANT

Appeal from the United States District Court

for the District of Columbia

(No. 01cr00198–01)

Erica J. Hashimoto, Assistant Federal Public Defender,

argued the cause for the appellant. A. J. Kramer, Federal

Public Defender, was on brief. Maria D. Jankowski, Assistant Federal Public Defender, entered an appearance.

Michael T. Truscott, Assistant United States Attorney,

argued the cause for the appellee. Roscoe C. Howard, Jr.,

United States Attorney, John R. Fisher, Roy W. McLeese III

 Bills of costs must be filed within 14 days after entry of judgment.

The court looks with disfavor upon motions to file bills of costs out

of time.
2

and Catherine Sheehan, Assistant United States Attorneys,

were on brief.

Before: SENTELLE, HENDERSON and TATEL, Circuit Judges.

Opinion for the court filed by Circuit Judge HENDERSON.

Concurring opinion filed by Circuit Judge SENTELLE.

KAREN LECRAFT HENDERSON, Circuit Judge: The appellant,

Jason Hart, seeks reversal and remand of the district court’s

January 2002 judgment sentencing him to 82 months in

prison. See App. of Appellant at 50–56; Sentencing Tr. at

131–39. He contends that the court: (1) erred as a matter of

law in interpreting section 2K2.1(b)(5) of the United States

Sentencing Guidelines (U.S.S.G. or Guidelines) to apply to a

‘‘felony offense’’ neither temporally nor factually related to

the offense of conviction, see Br. of Appellant at 14–20; (2)

admitted unreliable hearsay evidence and placed an impermissible burden on him to demonstrate the hearsay declarant’s lack of bias against him, see id. at 28–33; and (3) failed

to make clear the specific factual basis on which it rested its

conclusion that a four-level enhancement was appropriate

under section 2K2.1(b)(5), see id. at 20–28. Although Hart’s

first two challenges are unavailing, the third has merit.

Accordingly, and for the reasons set forth in Part II.C, infra,

we reverse and remand the case for resentencing with instructions to resolve the ambiguities in the sentencing court’s

application of section 2K2.1(b)(5).

I.

Hart was arrested in April 2001 while in possession of a .32

caliber Colt semiautomatic handgun and a .38 caliber Colt

special revolver. In June a grand jury indicted him on one

count of unlawful possession of a firearm and ammunition by

a felon, in violation of 18 U.S.C. § 922(g)(1). See App. of

Appellant at 6. Hart pleaded guilty. At sentencing the

government sought an upward adjustment in his Guidelines

offense level pursuant to U.S.S.G. § 2K2.1(b)(5), which provides for a four-level enhancement
3

[i]f 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 offenseTTTT

U.S.S.G. § 2K2.1(b)(5). The government asserted that Hart

‘‘used or possessed’’ the .32 caliber gun ‘‘in connection with’’

the February 25, 2001 homicide of one David Jones.1

 See

App. of Appellant at 41–44; see also Br. of Appellee at 10.

The district court conducted an evidentiary hearing in January 2002 to determine whether there was a factual basis for

the four-level enhancement.

A.

At the hearing, the government offered the testimony of

four police officers—Todd Gray, Nicholas Viggiani, Kerry

Jernigan and Jeffrey Eckrich—from the Washington, D.C.

Metropolitan Police Department and the Prince George’s

County Police Department. It also introduced a hearsay

statement by Theodore Scott, who allegedly sold Hart the .32

Colt in January 2001, and several ballistics reports indicating

that the gun was used in a number of shootings that took

place in January and February 2001. The evidence can be

summarized as follows:

First, Detective Viggiani investigated the January 18, 2001

shooting of Danielle Duncan and he arrested and interviewed

Scott in connection therewith. See Sentencing Tr. at 31–40

(Det. Viggiani). During Viggiani’s questioning, Scott admitted that he shot Duncan—with a .32 Colt—but claimed it was

an accident. See id. at 38 (Det. Viggiani); see also id. at 42–

43 (ballistics report confirming a .32 caliber handgun used).

He told Viggiani that he sold the gun to Hart a day or two

after the Duncan shooting:

1 The .38 caliber gun was not at issue during sentencing because

it was inoperable at the time it was seized incident to Hart’s arrest.

See Sentencing Tr. at 132; Br. of Appellant at 3 & n.3; Br. of

Appellee at 7.
4

Q: Who did you give it to?

A: A dude named Jay Rock. I think somebody

called him Jason. His brother is Antoine Hart. I

worked at the Palm Tree Caf ́e with him. Their little

brother Justin got killed in DC and I don’t know

who did it. He was like 17 years old. I heard when

the DC police had went to Jason’s house he ran out

with the guns or something and he got locked up.

Q: What did you get in return for the .32 from

Jason?

A: $50.

Q: Did Jason tell you that DC police got the .32?

A: No, I never talked to him. I just heard he got

locked up with two guns. He may have even gotten

rid of the .32. I don’t know.

Q: So did Jason have the gun, the .32, from about

January 19th to the 20th, 2001, until April 18th,

2001?

A: I don’t know. I guess he did, but he could have

gotten rid of it.

Q: Can you describe Jason?

A: Black male about 20, 21 years old, about five

foot ten to six one. Skinny, light brown skin. He

wears his hair all kinds of ways; probably a bush.

Has facial hair.

Id. at 36–37 (Det. Viggiani). When Viggiani showed Scott a

photograph of Hart, Scott stated ‘‘That’s Jay Rock. That’s

the one I gave the gun to. So that’s Jason Hart, Jay Rock.’’

Id. at 39–40 (Det. Viggiani).

Second, in early 2001 Hart lived in a section of Washington,

D.C. known as Riggs Road and associated with a group of

people from the same area. See id. at 19–22 (Det. Gray). At

that time there was an ongoing dispute between the Riggs

Road group and a group from the Fleetwood Village section

of nearby Hyattsville, Maryland. See id. (Det. Gray). The

dispute, or ‘‘beef,’’ between the Riggs Road group and the
5

Fleetwood Village group manifested itself through several

violent incidents. Id. at 20 (Det. Gray); see id. at 71–72 (Det.

Jernigan). For instance, on February 21, 2001 Ricardo Seldon—a friend of Hart and a member of the Riggs Road

group—was shot in the abdomen, apparently by members of

the Fleetwood Village group. See id. at 14–15 (Det. Gray).

The next day Anthony Grissett and Larry Lucey, two members of the Riggs Road group, allegedly robbed Gregory

Wallace and Willie Smith at gunpoint. See id. at 15–18 (Det.

Gray). Wallace was associated with the Fleetwood Village

group but was friends with certain members of the Riggs

Road group as well. See id. at 18 (Det. Gray); id. at 132–33.

Third, on February 25 two men shot and killed David

Jones while Jones and his girlfriend were entering a vehicle.

See id. at 65 (Det. Jernigan). Jones was in the Fleetwood

Village area at the time but was not a member of the

Fleetwood Village group. See id. at 132. Jones’s girlfriend

was unable to identify the shooters from a lineup but gave the

police a general description of the two men. See id. at 65–68

(Det. Jernigan). Her description of one resembled Michael

Freeman, another of Hart’s friends and a member of the

Riggs Road group. See id. at 67–68 (Det. Jernigan). The

police recovered .32 caliber and .38 caliber shell casings from

the scene of the homicide. See id. at 68–70 (Det. Jernigan).

A ballistics analysis confirmed that the casings from the .32

caliber gun ‘‘matched’’ the .32 Colt that was in Hart’s possession when he was arrested. Id. at 70 (Det. Jernigan).

Fourth, on February 26 Gregory Wallace was shot in

Hyattsville. Detective Eckrich attempted to interview Wallace on February 27 but was unsuccessful because Wallace

was heavily sedated and in pain. See id. at 93–94 (Det.

Eckrich). Eckrich was unable to speak to Wallace until

nearly two months later, at which time Wallace—when shown

individual photographs of Hart and Freeman—identified the

two as his attackers. See id. at 94, 99–100 (Det. Eckrich).

The police recovered .38 caliber casings from the scene of the

Wallace shooting. See id. at 68–69 (Det. Jernigan). A ballistics analysis confirmed that the casings were ‘‘consistent

with’’ the .38 caliber casings found at the scene of the Jones
6

homicide. Id. at 73–75 (Det. Jernigan). Given that analysis,

along with Wallace’s statement and the statement of Jones’s

girlfriend, the police considered Hart and Freeman as suspects in the Jones homicide. The two men were also indicted

in the Wallace shooting and were awaiting trial in Maryland

at the time of the evidentiary hearing. See id. at 106–07

(Det. Eckrich).

B.

The district court credited the testimony of Detectives

Gray, Viggiani, Jernigan and Eckrich. See id. at 132. Finding nothing in the record to rebut Scott’s hearsay statement

and no evidence of bias on his part, the district court credited

his testimony as well. See id. at 133–34. Applying a preponderance-of-the-evidence standard, the court found that Scott

sold Hart the .32 Colt in late January and that Hart had the

same gun in his possession when he was arrested on April 17.

See id. at 137–38.

Because Hart claims on appeal that the district court failed

to make clear the specific factual basis on which it rested its

conclusion that a four-level enhancement was appropriate

under section 2K2.1(b)(5), see infra Part II.C, we quote the

court’s pertinent statements at length:

In terms of my conclusions. I’ve broken it down

into sort of two parts. The first part is the link of

the defendant’s gun to a felony.

They have a ballistics report that the .32 caliber

bullets recovered from the Jones homicide on February 25th matched the defendant’s .32 caliber gun

recovered from the defendant on April 17th.

[Second,] as to the link as to whether the defendant

knew or somehow is associated or had knowledge

that this .32 gun was used in a felony—in other

words, we have the gun linked, but do we have the

defendant—we have Mr. Scott’s statement that on

either January 19th or 20th—as I’ve credited, I’ve

indicated why I could credit his statement—that he
7

sold, which is criminal conduct, this .32 caliber gun

to the defendant. And we know that a .32 caliber

gun was used by Mr. Scott in his shooting of Ms.

Duncan.

And, as I said, we then have evidence that the

defendant is involved in the beef between the Riggs

Road and Fleetwood area.

We have the Wallace shooting where he identifies

the defendant and Mr. Freeman, and I’ve indicated

why I would accept that statement.

We have [Hart’s] mother linking the defendant to

the Riggs Road group through [Hart’s] friends, and

Mr. Seldon’s shooting seems to start the beef.

We have links between the Jones and Wallace shooting, which are one day apart. It’s circumstantial

evidence. But the defendant is identified by Wallace

and Mr. Freeman is also identified as the shooters.

Although it’s not the .32 caliber gun, there is the

same gun in terms of the .38[ ] shell casings that

[are consistent] in the Jones homicide and the Wallace shooting. And, as I’ve indicated, there’s two

shootings in both — two shooters in both shootings.

So I would conclude — we’re talking about a preponderance of the evidence. I don’t think it’s clear and

convincing evidence, and it certainly isn’t beyond a

reasonable doubt, but whether it’s more likely than

not, I think that the defendant — there’s several

possibilities. The defendant used the gun in the

Jones shooting or let someone else use it and got it

back and would have known it.

We have the defendant had a .32 caliber gun that

matches a shooting and, therefore, there’s evidence

that he had the gun before and after the shooting

and he’s involved in the surrounding incidents between those dates.

I would also note that even if the defendant, as

[defense counsel] argues, acquired the .32 gun after
8

the Jones shooting, his involvement in the beef he

would have reason to believe that it was used in the

Jones shooting or one of these other instance [sic].

I mean, who would the defendant have acquired the

gun from after the shooting?

So I think under the circumstances that there’s

enough — much of it is circumstantial as to the

defendant’s link. There’s a clear link of the gun.

But I think it’s sufficient for a preponderance of the

evidence. So I would grant the four levels.

Sentencing Tr. at 136–39 (emphases added). On January 24,

2002 the district court sentenced Hart to 82 months in prison

and three years of supervised release and it imposed a special

assessment of $100. See App. of Appellant at 50–57.

II.

Hart timely filed an appeal of his sentence pursuant to 18

U.S.C. § 3742(a)(1) and (2), see App. of Appellant at 57–58,

raising three challenges. In reviewing his challenges—which

we address in turn below—we ‘‘accept the findings of fact of

the district court unless they are clearly erroneous’’ and we

‘‘give due deference to the district court’s application of the

[G]uidelines to the facts.’’ 18 U.S.C. § 3742(e); see United

States v. Yeh, 278 F.3d 9, 13 (D.C. Cir. 2002). We review

issues of law de novo. See Yeh, 278 F.3d at 13; United States

v. Drew, 200 F.3d 871, 876 (D.C. Cir. 2000).

A.

As noted, section 2K2.1(b)(5) of the Guidelines provides for

a four-level enhancement

[i]f 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 offenseTTTT
9

U.S.S.G. § 2K2.1(b)(5). Hart claims that section 2K2.1(b)(5)

is inapplicable as a matter of law because the ‘‘[ ]other felony

offense’’ to which it refers in this case, the homicide of David

Jones, is not factually and temporally related to the offense of

which Hart was convicted — unlawful possession of the .32

Colt.2

 We disagree.

Proceeding as we must from ‘‘the fundamental canon that

statutory interpretation begins with the language of the statute itself,’’ Seattle Opera v. NLRB, 292 F.3d 757, 761 (D.C.

Cir. 2002) (quotation omitted); see United States v. Cutler, 36

F.3d 406, 408 (4th Cir. 1994) (interpreting section 2K2.1(b)(5)

and declaring ‘‘the Sentencing Guidelines should be applied as

written’’), we acknowledge that at least one definition of the

phrase ‘‘in connection with’’ lends support to Hart’s view.

See WEBSTER’S THIRD NEW INTERNATIONAL DICTIONARY, UNABRIDGED 481 (1993) (‘‘connection’’ implies ‘‘cause and effect,

logical sequence, mutual dependence or involvement’’). We

also recognize that section 2K2.1(b) is entitled ‘‘Specific Of2 To illustrate his point, Hart provides an example of ‘‘another

felony offense’’ he believes the Guideline would cover:

Clearly, if Mr. Hart had been in the process of committing

another felony when he was arrested for possession of a

firearm, the enhancement would apply. If, for instance, on

the date of his arrest Mr. Hart was dealing narcotics while

in possession of the .32 caliber firearm, § 2K2.1(b)(5)

would properly be invoked.

Br. of Appellant at 17. Hart goes on to state that ‘‘in all of the

cases this court has reviewed involving § 2K2.1(b)(5), the trial court

applied the enhancement to just [that] type of [scenario].’’ Id.

(citing, inter alia, In re Sealed Case, 246 F.3d 696, 697–702 (D.C.

Cir. 2001); United States v. Bowie, 198 F.3d 905, 907, 913 (D.C. Cir.

1999)). While his assertion appears to be correct, it is beside the

point; the fact that we have had no occasion to address a case in

which ‘‘another felony offense’’ is not temporally or factually related

to the offense of conviction does not preclude us from applying

section 2K2.1(b)(5) to such a case. See Br. of Appellee at 17 (‘‘None

of the cases cited [by Hart] actually addresses the question whether

‘another felony offense’ is limited to the offense of conviction.’’).
10

fense Characteristics,’’ i.e., the circumstances that attend the

offense of conviction. See generally U.S.S.G. § 2K2.1(b); see

also, e.g., id. § 2K2.1(b)(1) (‘‘[i]f the offense [of conviction]

involved three or more firearms,’’ court should increase offense level according to graduated enhancements listed in

accompanying table); id. § 2K2.1(b)(3) (‘‘[i]f the offense [of

conviction] involved a destructive device,’’ court should increase offense level by two). Not all of the language found in

section 2K2.1(b)(5) supports Hart’s reading, however; the

fact that the provision incorporates the phrase ‘‘another felony’’—meaning a felony ‘‘that is different [or] separate,’’ WEBSTER’S THIRD, supra, at 89 (defining ‘‘another’’) (emphasis

added)—seriously undermines his interpretation. Nor are we

the first court to consider whether section 2K2.1(b)(5) requires an identity—or at least a tight factual or temporal

link—between the offense of conviction and ‘‘another felony

offense.’’ In United States v. Sanders, 162 F.3d 396 (6th Cir.

1998), for example, the Sixth Circuit reasoned that

a logical reading of the § 2K2.1(b)(5) Guideline term

‘‘another felony offense’’ would TTT require, as a

condition precedent to the application of a major

four level [G]uideline enhancement, a finding of a

separation of time between the offense of conviction

and the other felony offense, or a distinction of

conduct between that occurring in the offense of

conviction and the other felony offense. Otherwise,

the word ‘‘another’’ is superfluous, and of no significance to the application of that provision.

Id. at 400 (footnote omitted) (emphases added); see Qi–Zhuo

v. Meissner, 70 F.3d 136, 139 (D.C. Cir. 1995) (reaffirming

‘‘endlessly reiterated principle of statutory construction TTT

that all words in a statute are to be assigned meaning, and

that nothing therein is to be construed as surplusage’’).

Likewise, in United States v. Draper, 24 F.3d 83 (10th Cir.

1994), the Tenth Circuit rejected in no uncertain terms the

same argument Hart proffers today:
11

[C]ounsel suggests that [U.S.S.G. § 2K2.1(b)(5)]

does not permit a four-level enhancement of a base

offense level where the other alleged felony offense,

in our case drug offenses, occurred ‘‘weeks or

months prior to the offense of conviction which

occurred on March 15, 1993.’’ We do not agreeTTTT

The [G]uidelines do not require that the other offense occur on the same date as the offense for

which the defendant was indicted and found guilty,

or be otherwise closely related thereto.

Id. at 85. Significantly, the Tenth Circuit’s interpretation has

stood for nearly ten years without any effort by the Sentencing Commission—despite multiple amendments of other

Guidelines provisions—to amend the provision to a different

effect; this is reason enough not to break rank with our sister

courts. See United States v. Bruce, 285 F.3d 69, 73–74 (D.C.

Cir. 2002) (per curiam) (declining to adopt Guideline interpretation inconsistent with that of other circuits where prevailing

interpretation was longstanding and ‘‘neither the Congress

nor the Commission ha[d] done anything to call [it] into

question’’). We therefore conclude the Jones homicide qualifies as ‘‘another felony offense’’ under section 2K2.1(b)(5)

even though it occurred ‘‘months prior’’ to Hart’s arrest for

possession of the .32 Colt. Draper, 24 F.3d at 85.

B.

Next, Hart contends that the district court impermissibly

shifted to him the burden of demonstrating that Scott’s

hearsay statement lacked the requisite indicia of reliability

and that, in any event, the court erred in admitting the

statement because it was, in fact, unreliable. Again, Hart’s

argument is unavailing.

At the evidentiary hearing, as Detective Viggiani began to

read Scott’s statement into the record, Hart’s counsel interrupted and stated:
12

Your Honor, just to clarify my lack of objection. I

would just note that [the statement] is double hearsay, and obviously we can attack the credibility of

both the hearsay declarant and the manner in which

it was taken, but I just want to preserve that.

Sentencing Tr. at 35. And when the government finished

presenting its case for the four-level enhancement, counsel for

Hart asserted that

[t]he government’s evidentiary presentation was almost entirely hearsay, and under the [G]uidelines

they are certainly entitled to present hearsay evidence at a sentencing hearing, but when they [do so]

it’s got to at least be reliable. And I think the

evidence in this case, first of all, did not provide the

necessary links.

The government’s only evidence that Mr. Hart possessed the .32 prior to April 17, 2001, was the

hearsay testimony of, essentially, of Theodore Scott

who, first of all, gave an incredible story about

where he got the gun.

I mean, he said he found it in a park in a paper bag

and he gave an incredible story about why he was

hanging on to it, which was that he was going to

turn it into a gun buy back.

As [Detective Viggiani] testified, he had TTT no way

to verify or corroborate that information, and there

is nothing to suggest that [Scott’s] story about what

he did with the gun after January 18th was any

more credibleTTTT

I mean, there’s no reason to believe that he was not

the person involved and was just not trying to push

it off on Jason Hart.

Id. at 119–20. The foregoing comments notwithstanding, the

government contends that Hart never made a clear objection

to the admissibility of Scott’s statement and ‘‘certainly did not

make any objection as to who bore the burden of establishing

[its] admissibility.’’ Br. of Appellee at 29. It argues, there-
13

fore, that we should review for plain error the district court’s

decision to admit the statement. See id. (citing United States

v. Robinson, 198 F.3d 973, 979 (D.C. Cir. 2000)). We need

not decide, however, whether Hart preserved his hearsay

objection — the district court did not err, plainly or otherwise, in admitting Scott’s hearsay testimony.

First, nothing in the record supports Hart’s assertion that

the court ‘‘found that the defense had failed to show ‘evidence

of bias on [Scott’s] part specifically against Mr. Hart.’ ’’ Br.

of Appellant at 31 (quoting Sentencing Tr. at 134). The court

made no reference to what ‘‘the defense had failed to show.’’

Indeed, the transcript page to which Hart refers reveals the

court stated merely that ‘‘I TTT have no evidence of bias on

[Scott’s] part specifically against Hart.’’ Sentencing Tr. at

134 (emphasis added). Neither this observation nor any

other indicates the court shifted from the government to Hart

the burden of proof as to the veracity of Scott’s statement.

Second, it is well-settled that ‘‘[t]he district court’s credibility determinations are entitled to the greatest deference from

this court on appeal.’’ Carter v. Bennett, 840 F.2d 63, 67

(D.C. Cir. 1988); see 18 U.S.C. § 3742(e) (‘‘The court of

appeals shall give due regard to the opportunity of the

district court to judge the credibility of the [sentencing]

witnessesTTTT’’); see also United States v. Anderson, 881

F.2d 1128, 1142 (D.C. Cir. 1989) (‘‘credibility determinations

TTT are not for us to second guess’’). No case of which we

are aware suggests (much less holds) that deference is less

appropriate where the sentencing court, as here, credits a

hearsay statement as opposed to in-court testimony. Cf.

U.S.S.G. § 6A1.3(a) (‘‘In resolving any dispute concerning a

factor important to the sentencing determination, the court

may consider relevant information without regard to its admissibility under the rules of evidence applicable at trialTTTT’’); Nichols v. United States, 511 U.S. 738, 747 (1994)

(‘‘As a general proposition, a sentencing judge may appropriately conduct an inquiry broad in scope, largely unlimited

either as to the kind of information he may consider, or the

source from which it may come.’’ (quotation omitted)). The

district court, therefore, had broad latitude to admit Scott’s
14

statement. See United States v. Rouse, 168 F.3d 1371, 1376–

77 (D.C. Cir. 1999) (deferring to sentencing court’s conclusion

that witness lacked credibility because ‘‘[a]lthough the evidence TTT might support a different conclusion, that possibility does not warrant a finding that the district court abused its

discretion’’). Nothing in the record justifies our disturbing

the court’s determination that Scott’s statement was sufficiently credible to admit into evidence. As the government

demonstrates, see Br. of Appellee at 31–32, Detective Viggiani

was in fact able to corroborate much of what Scott said —

through a statement given by Duncan and, more importantly,

through ballistics evidence linking the .32 Colt to Hart, see

Sentencing Tr. at 59 (Det. Viggiani). Those two indicia of

reliability are enough to satisfy us that the court did not

abuse its discretion in admitting the hearsay evidence.

C.

Hart’s remaining argument—that the district court failed

to make clear the specific factual basis on which it rested its

conclusion that section 2K2.1(b)(5) applied—gives us concern.

As before, see supra Part II.B, the government contends that

Hart failed to preserve his objection and that a plain-error

standard of review applies, see Br. of Appellee at 19. We

disagree. On receiving the probation office’s initial presentence report, the government objected to the absence of a

four-point enhancement pursuant to section 2K2.1(b)(5).

When the enhancement was included in the final presentence

report, Hart then objected. During the evidentiary hearing,

after the government presented its case, Hart again objected

to the enhancement on the ground that ‘‘the evidence just

doesn’t bear TTT out in this case’’ the application of the

Guideline. Sentencing Tr. at 118. Although the government

argues that ‘‘[a]t no time’’ during the hearing ‘‘did [Hart]

object on the basis that the district court’s findings were TTT

inadequate,’’ Br. of Appellee at 19 n.5, the lack-of-clarity

argument Hart raises on appeal is essentially the same

argument he raised during the hearing — that the facts (as

they have been found and summarized by the sentencing
15

court) do not clearly ‘‘bear TTT out’’ the enhancement. Hart

thus preserved his current contention, one that we find

meritorious for the reasons discussed below.

* * *

We have long required the district court to explain clearly

the factual basis on which it relies in applying an enhancement to a defendant’s base offense level. See, e.g., In re

Sealed Case, 108 F.3d 372, 374 (D.C. Cir. 1997) (per curiam)

(requiring ‘‘detailed findings with respect to the evidentiary

links tying a particular defendant to the amount of drugs for

which the district court finds him responsible’’ under Guidelines (quotation omitted)); United States v. Caballero, 936

F.2d 1292, 1299–1300 & n.9 (D.C. Cir. 1991) (remanding to

sentencing court ‘‘for clarification and application of the correct legal standard’’ where appellate court could not discern

from findings whether ‘‘the evidence before the trial judge

was insufficient as a matter of law to support a TTT downward

adjustment’’), cert. denied, 502 U.S. 1061 (1992); United

States v. Lam Kwong–Wah, 924 F.2d 298, 307 (D.C. Cir. 1991)

(remanding to sentencing court ‘‘for resentencing and for

clarification of the factual findings’’ regarding Guidelines enhancement where appellate court ‘‘would have difficulty discerning from the paper record’’ what factual inferences sentencing court drew). In this vein, we have reminded district

judges that

[a]lthough it is easy to understand how a sentencing

court, with knowledge obtained during plea proceedings or TTT after a lengthy trial, knows well the

evidence that supports its sentence, on review that

knowledge is not discernible except through specific

findings. TTT Regardless how [knowledgeable] it is,

the court must lay out its factual findings in detail

sufficient to make clear the basis for the sentence

imposed. TTT

Ultimately, it is the district court’s responsibility to

ensure the clarity and thoroughness of its findings.

As has the Seventh Circuit, we encourage the dis-
16

trict court to ‘‘adopt the practice of setting forth [its]

findings TTT in a sentencing memorandum in order

to avoid needless misinterpretation by this court on

appellate review.’’ United States v. Billops, 43 F.3d

281, 289 (7th Cir. 1994), cert. denied, 514 U.S. 1030

(1995). If written findings prove too cumbersome, it

nevertheless is essential that the district court enunciate its findings in detail sufficient to allow this

court to conduct its review without struggling to find

evidentiary links.

United States v. Dudley, 104 F.3d 442, 447 (D.C. Cir. 1997).

Likewise, we have made clear that where the sentencing

court suggests alternative factual bases to support an enhancement—one of which is legally sufficient and at least one

of which is not—but does not plainly choose among them, the

proper course on appeal is to remand to that court for

clarification of its findings and application of the proper legal

standard. See United States v. Barry, 938 F.2d 1327, 1333

(D.C. Cir. 1991) (citing Caballero, 936 F.2d at 1299–1300;

Lam Kwong–Wah, 924 F.2d at 307); cf. United States v.

Hazel, 928 F.2d 420, 422–23 (D.C. Cir. 1991) (‘‘[A] reviewing

court can review effectively a departure only if it is made

aware of the justifications for that departure.’’ (citing, inter

alia, United States v. Allen, 898 F.2d 203, 204–05 (D.C. Cir.

1990))).

Here, as Hart contends, a remand is necessary because it is

unclear whether the district court based its application of the

section 2K2.1(b)(5) enhancement on a legally sufficient factual

foundation. As we have seen, supra Part I.B, the court

divided its conclusions into two parts, the first of which

analyzed ‘‘the link of the defendant’s gun to [another] felony.’’

Sentencing Tr. at 137. At this step, the court was perfectly

precise; it found, no more and no less, ‘‘that the .32 caliber

bullets recovered from the Jones homicide on February 25th

matched the defendant’s .32 caliber gun recovered from the

defendant on April 17th.’’ Id. We can be certain from the

foregoing statement that, in the district court’s view of the

facts, the ‘‘[ ]other felony offense’’ within the meaning of
17

section 2K2.1(b)(5) was, solely, the February 25 Jones homicide.

In proceeding to the second part of its inquiry—‘‘as to

whether the defendant knew or somehow is associated or had

knowledge that this .32 gun was used in a felony[,] [or] in

other words, we have the gun linked, but do we have the

defendant,’’ Sentencing Tr. at 137—the court seemed to believe a preponderance of the evidence placed Hart at the

scene of the Jones homicide:

We have links between the Jones and Wallace shooting, which are one day apart. It’s circumstantial

evidence. But the defendant is identified by Wallace

and Mr. Freeman is also identified as the shooters.

Although it’s not the .32 caliber gun, there is the

same gun in terms of the .38[ ] shell casings that

[are consistent] in the Jones homicide and the Wallace shooting. And, as I’ve indicated, there’s two

shootings in both—two shooters in both shootings.

Id. at 137–38. So far, we believe the court found that Hart

used or possessed the .32 Colt in connection with the Jones

homicide. But the paragraphs that follow cast doubt:

So I would conclude — we’re talking about a preponderance of the evidence. I don’t think it’s clear and

convincing evidence, and it certainly isn’t beyond a

reasonable doubt, but whether it’s more likely than

not, I think that the defendant — there’s several

possibilities. The defendant used the gun in the

Jones shooting or let someone else use it and got it

back and would have known it.

We have the defendant had a .32 caliber gun that

matches a shooting and, therefore, there’s evidence

that he had the gun before and after the shooting

and he’s involved in the surrounding incidents between those dates.

I would also note that even if the defendant, as

[defense counsel] argues, acquired the .32 gun after

the Jones shooting, his involvement in the beef he
18

would have reason to believe that it was used in the

Jones shooting or one of these other instance [sic].

I mean, who would the defendant have acquired the

gun from after the shooting?

See id. at 138 (emphases added). On reviewing these comments, we cannot with confidence conclude the court found

that Hart used or possessed the .32 Colt in connection with

the Jones homicide—a factual basis that would plainly support application of section 2K2.1(b)(5)—because this scenario

(Scenario One) is only one of ‘‘several possibilities.’’ Two

other possibilities the district court posited are that Hart ‘‘let

someone else use [the gun] and got it back and would have

known it,’’ Sentencing Tr. at 138 (Scenario Two), or that he

‘‘acquired the .32 gun after the Jones shooting’’ and ‘‘would

have reason to believe that it was used in the Jones shooting

or one of these other instance[s]’’ given ‘‘his involvement in

the beef,’’ id. (Scenario Three). Neither Scenario Two nor

Scenario Three, however, is a sufficient basis on which to rest

the application of section 2K2.1(b)(5). Neither triggers the

text of the Guideline because, in each case, Hart was on the

ex post end of the transaction. That is, in neither case could

Hart be accused of ‘‘possess[ing] or transferr[ing] any firearm

or ammunition with knowledge, intent, or reason to believe

that it would be used or possessed in connection with another

felony offense.’’ U.S.S.G. § 2K2.1(b)(5) (emphasis added).

As Hart points out, the provision’s text ‘‘is prospective TTT

rather than retrospective in scope’’ and is plainly ‘‘meant to

punish more severely those defendants who enable felony

crimes by providing others with weapons,’’ not those defendants who acquire weapons that were previously used feloniously. Br. of Appellant at 26–27.

We acknowledge that Scenario Three is better characterized as a hypothetical than a finding. See Sentencing Tr. at

138 (‘‘not[ing]’’ that ‘‘even if the defendant TTT acquired the

.32 gun after the Jones shooting TTT he would have reason to

believe that it was used in the Jones shooting’’ (emphasis

added)). After all, just moments before positing Scenario

Three, the court stated that it was crediting ‘‘Mr. Scott’s
19

statement that on either January 19th or 20th TTT he sold TTT

this .32 caliber gun to the defendant.’’ Id. at 137. Accordingly—and despite the fact that the phrase ‘‘several possibilities’’ does not ordinarily mean only two—we are left with

Scenarios One and Two as the possible findings supporting

the court’s application of section 2K2.1(b)(5).

As between Scenarios One and Two, it is impossible to tell

which theory the district court adopted, or if it even adopted

one to the exclusion of the other. The court stated that ‘‘[t]he

defendant used the gun in the Jones shooting or let someone

else use it and got it back and would have known it.’’ Id. at

138 (emphasis added). The ‘‘or’’ in the preceding sentence is

used in the disjunctive. At oral argument, the government

suggested that it is legally immaterial whether Scenario One

or Scenario Two served as the basis for application of the

Guideline because either supports the four-level enhancement. Regarding Scenario Two, the government argued that

the phrase ‘‘would have known it,’’ id. (emphasis added),

means that Hart let someone else use the .32 Colt knowing

that it would be used in the Jones homicide and then ‘‘got it

back’’ later. We are inclined to agree with Hart, however,

that ‘‘the word ‘it’ in the phrase ‘would have known it’ is the

use of the gun in the Jones shooting’’ and that, under

Scenario Two, ‘‘Hart let someone else use the gun and got it

back knowing that it had been used in the shooting.’’ Reply

Br. of Appellant at 4 n.2 (emphasis added). Hart’s reading is

more consistent with the structure of the sentence than is the

government’s interpretation. Moreover, the fact that the

district court entertained Scenario Three at all—in the mistaken belief that a four-level enhancement would be appropriate if Hart had acquired the .32 Colt knowing it had been

used in connection with another felony offense—makes Hart’s

reading of the court’s finding more likely. In any event,

while we may be in doubt about what the court found or

understood, we know that it plainly misunderstood the prospective nature of the Guideline; we must assume, therefore,

that it made the same legal error regarding Scenario Two as

it did Scenario Three.
20

In sum, because we cannot be sure whether the district

court relied on Scenario One or Scenario Two as the factual

basis for application of section 2K2.1(b)(5), and because the

latter scenario does not support the four-level enhancement, a

remand is required for clarification and for application of the

proper legal standard. See Barry, 938 F.2d at 1333; see also

United States v. McCoy, 242 F.3d 399, 410 (D.C. Cir.) (remanding for clarification because ‘‘[w]hatever the sentencing

court intended to find or could have found, on the record

before us we cannot conclude with confidence that it [correctly applied the] enhancement’’), cert. denied, 534 U.S. 872

(2001).

III.

While we do not and should not expect perfection, especially from oral findings, we have ‘‘encourage[d] the district court

to adopt the practice of setting forth [its] findings TTT in a

sentencing memorandum in order to avoid needless misinterpretation by this court on appellate review,’’ Dudley, 104 F.3d

at 447 (quotation omitted), and we do require a minimum

quantum of ‘‘clarity and thoroughness’’ ‘‘sufficient to allow

this court to conduct its review without struggling to find

evidentiary links,’’ id.; cf. SEC v. Chenery Corp., 318 U.S. 80,

94–95 (1943) (‘‘All we ask of the [agency] is to give clear

indication that it has exercised the [proper] discretionTTTT

We are not suggesting that [it] must justify its exercise of TTT

discretion TTT with artistic refinement.’’). The requisite

quantum of precision is lacking here. We realize the district

court will likely and promptly reinstate the four-level enhancement on the legally sufficient ground that ‘‘[t]he defendant used the gun in the Jones shooting.’’ Sentencing Tr. at

138. In sending the case back, however, we are not ‘‘sticking

in the bark of words.’’ Chenery, 318 U.S. at 95. Rather, we

are ensuring that the years of extra prison time Hart will

likely serve for possessing a firearm he ‘‘used TTT in connection with another felony offense’’3

 are not founded on a

misreading of the Guidelines.

3 Under the Guidelines, Hart’s criminal history category is IV.

See App. of Appellant at 56. His total offense level with the section
21

The district court’s January 2002 judgment is reversed and

the case is remanded for resentencing consistent with the

instructions set forth in this opinion.

So ordered.

2K2.1(b)(5) enhancement added is 23, see id., a level mandating

between 70 and 87 months in prison, see U.S. Sentencing Guidelines

Manual ch. 5, pt. A (2002). Without the enhancement Hart’s total

offense level is 19, a level mandating between 46 and 57 months in

prison. See id.
1

SENTELLE, Circuit Judge, concurring: While I join the

balance of the court’s opinion without reservation, I join the

court’s interpretation of United States Sentencing Guideline

§ 2K2.1(b)(5) only because I find compelling the court’s concluding statement on the issue:

Significantly, the Tenth Circuit’s interpretation has stood

for nearly ten years without any effort by the Sentencing

Commission—despite multiple amendments of other

Guidelines provisions—to amend the provision to a different effect; this is reason enough not to break rank with

our sister courts. See United States v. Bruce, 285 F.3d

69, 73–74 (D.C. Cir. 2002) (per curiam) (declining to

adopt Guideline interpretation inconsistent with that of

other circuits where prevailing interpretation was longstanding and ‘‘neither the Congress nor the Commission

ha[d] done anything to call [it] into question’’). We

therefore conclude the Jones homicide qualifies as ‘‘another felony offense’’ under section 2K2.l(b)(5) even

though it occurred ‘‘months prior’’ to Hart’s arrest for

possession of the .32 Colt. Draper, 24 F.3d at 85.

I do not find compelling or even convincing the reasoning of

our sister circuits. Contrary to the declaration in United

States v. Sanders, 162 F.3d 396, 400 (6th Cir. 1998), that ‘‘a

logical reading of the 2K2.1(b)(5) Guideline term ‘another

felony’ would TTT require TTT a finding of a separation of time

between the offense of conviction and the other felony offenseTTT,’’ no such logical necessity exists. It is perfectly

possible, and indeed I think contemplated by the Guideline,

that more than one felony can be going on at the same time.

Given that, as the majority notes today, § 2K2.1(b) applies to

‘‘specific offense characteristics,’’ rather than to the criminal

history of the defendant, I think the appellant’s position far

more logical than that of the Sixth Circuit.

Nonetheless for the reasons set forth in the above-quoted

language from the opinion of the court, I join its conclusion.