* Pursuant to 5th Cir. R. 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that this opinion should not be published and is not precedent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 5th Cir. R.

47.5.4.

UNITED STATES COURT OF APPEALS

FIFTH CIRCUIT

_________________

No. 97-40160

(Summary Calendar)

_________________

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

FRANCHSA R. FRANKLIN,

Defendant-Appellant.

Appeal from the United States District Court

For the Eastern District of Texas

(1:96-CR-63-1)

August 18, 1997

Before WIENER, BARKSDALE, and EMILIO M. GARZA, Circuit Judges.

PER CURIAM:*

A federal grand jury charged Franchsa R. Franklin with one

count of stealing firearms from a licensed firearms facility in

violation of 18 U.S.C. § 922(u) and one count of selling and
-2-

disposing of stolen firearms in violation of 18 U.S.C. § 922(j).

Franklin plead guilty to the second count. The district court

sentenced Franklin to an eighty-month term of imprisonment, a

three-year term of supervised release, and restitution of

$1,423.48. 

On appeal, Franklin alleges that the district court erred by

(1) determining that his base offense level should be 20 because he

had a prior conviction for a “controlled substance offense” under

§ 2K2.1(a)(4)(A) of the United States Sentencing Guidelines (“the

Guidelines”) and (2) increasing his offense level by four levels

under § 2K2.1(B)(5) of the Guidelines for possession of a firearm

in connection with another felony offense. We agree with Franklin

on the first issue, and reverse his sentence in part and remand for

resentencing. 

I

We review a sentencing court's factual findings for clear

error and its application of the United States Sentencing

Guidelines de novo. United States v. Dean, 59 F.3d 1479, 1494

(5th Cir. 1995), cert. denied, __ U.S. __, 116 S. Ct. 794, 133 L.

Ed. 2d 742 (1996). We must uphold a sentence unless it was imposed

in violation of law, resulted from an incorrect application of the

Guidelines, or departed unreasonably from the applicable sentence

range. United States v. Manges, 110 F.3d 1162, 1178 (5th Cir.

1997).
-3-

A

Franklin contends that he had a prior state conviction for

delivery of a simulated controlled substance and that this

conviction was not for a “controlled substance offense” for

purposes of § 2K2.1(a)(4)(A). Thus, he claims that the district

court erred in setting his base offense level at 20.

Section 2K2.1(a)(4)(A) provides for an offense level of 20 if

the defendant has “one prior felony conviction of either a crime of

violence or a controlled substance offense . . . .” Citing this

section, the probation officer recommended that the district court

should assess a base offense level of 20 because Franklin had a

prior state felony conviction for delivery of a simulated

controlled substance. Franklin objected, contending that a

simulated controlled substance offense did not trigger the

§ 2K2.1(a)(4)(A) enhancement and, besides, this offense had been

reduced to a misdemeanor. In response, the probation officer

maintained that the Guidelines provide that offenses involving

“counterfeit controlled substances” are controlled substance

offenses, and a “simulated controlled substance” is the same thing

as a “counterfeit controlled substance.”

At the sentencing hearing, the district court examined the

state court judgment of conviction. Based on this document, the

court found that Franklin’s state conviction was for a felony

rather than a misdemeanor, and that he had been convicted of

delivery of a controlled substance, not a simulated controlled
-4-

substance. Therefore, the district court determined that it would

give Franklin a base offense level of 20 under § 2K2.1(a)(4)(A).

After Franklin was sentenced, the government investigated the

conflict between the state court judgment and the probation

officer’s assertions about the nature of Franklin’s prior

conviction. The government then determined that the state court

judgment was incorrect))Franklin had only been convicted of

delivery of a simulated controlled substance, not a controlled

substance. The government then supposedly arranged for the state

court judgment to be corrected nunc pro tunc to reflect Franklin’s

actual conviction. Hence, the government concedes that the

district court based Franklin’s sentence in part on erroneous

information. In addition, the government admits that a “simulated

controlled substance” is not a “counterfeit controlled substance”

under the Guidelines, and thus Franklin should not have received

the § 2K2.1(a)(4)(A) enhancement.

While the government did not provide us with a copy of the

corrected state court judgment, we will accept for purposes of this

appeal the government’s concession that Franklin was convicted of

delivery of a simulated controlled substance. Given that

concession, then, we agree with the government that a “simulated

controlled substance” is not a “controlled substance” for purposes

of § 2K2.1(a)(4)(A). Under Texas law, a “simulated controlled

substance” means a “substance that is purported to be a controlled
-5-

substance, but is chemically different from the controlled

substance it is purported to be.” Tex. Health & Safety Code Ann.

§ 482.001(4). We also note that a “simulated controlled substance”

is not a “counterfeit substance” under the Guidelines. 21 U.S.C.

§ 802(7) defines “counterfeit substance” as a controlled substance

that has been mislabeled. Conversely, under Texas law, “simulated

controlled substance” means only a purported controlled substance.

Because the government concedes that the district court relied

on an incorrect state court judgment in sentencing, one that

resulted in a longer sentence for Franklin, we vacate Franklin’s

sentence and remand to the district court for resentencing.

B

Franklin also challenges the district court’s determination

that, under § 2K2.1(b)(5) of the Guidelines, his base offense level

should be enhanced by four points because he possessed stolen

firearms in connection with a felony offense other than his

§ 922(j) violation. Franklin contends that the four-level

enhancement is invalid under Bailey v. United States, __ U.S. __,

116 S. Ct. 501, 133 L. Ed. 2d 472 (1995) because he did not

actively employ the firearms while stealing them.

Bailey dealt with the issue of what actions constituted “use”

of a firearm under 18 U.S.C. § 924(c). Section 2K2.1(b)(5)

expressly provides for an enhancement based on the defendant’s “use

or possession” of that firearm. Franklin has admitted that he
2 A person commits burglary if “without the effective

consent of the owner, he . . . enters a building or habitation and

commits or attempts to commit a felony or theft.” Tex. Penal Code

Ann. § 30.02(a). Burglary is a “state jail felony if committed in

a building other than a habitation . . . .” Id. at § 30.02(c)(1).

In addition, stealing a firearm is a state jail felony. Id. at

§ 31.03(e)(4)(C).

-6-

broke into a pawnshop, stole eight firearms, and then sold or

otherwise disposed of them. In stealing and then disposing of the

firearms from the pawnshop, Franklin possessed them. Moreover,

burglary is a felony under Texas law, as is stealing a firearm.2

Therefore, Franklin possessed a firearm in connection with a felony

offense other than his § 922(j) violation. See United States v.

Armstead, 114 F.3d 504, 510-13 (5th Cir. 1997) (holding that, where

defendant plead guilty to breaking into pawnshop and stealing

firearms in violation of 18 U.S.C. § 922(u), Bailey did not

preclude court from applying § 2K2.1(b)(5) enhancement because

defendant also committed state-law felony of burglary of a building

and did not dispute that he possessed firearms during theft).

Accordingly, we determine that the district court was not

precluded under Bailey from enhancing Franklin’s sentence by four

levels under § 2K2.1(b)(5).

II

For the foregoing reasons, we AFFIRM Franklin’s sentence in

part and REVERSE his sentence in part, and REMAND for resentencing

in accordance with this opinion.