In the

United States Court of Appeals

For the Seventh Circuit ____________

No. 02-3846

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v.

LARRY J. PURIFOY,

Defendant-Appellant.

____________

Appeal from the United States District Court

for the Northern District of Illinois, Western Division.

No. 02 CR 50004-1—Philip G. Reinhard, Judge.

____________

ARGUED MARCH 4, 2003—DECIDED APRIL 10, 2003

____________

Before BAUER, EVANS, and WILLIAMS, Circuit Judges.

EVANS, Circuit Judge. In July 2002 Larry Purifoy

pleaded guilty to one count of possession of a firearm by

a felon, 18 U.S.C. § 922(g)(1). He was sentenced to a term

of 96 months. On appeal, Purifoy argues that the district

court erred when it gave him a four-level upward adjustment for using the firearm in connection with another

felony. U.S.S.G. § 2K2.1(b)(5). The issue raised on appeal

is whether he committed “another felony offense” for

purposes of § 2K2.1(b)(5) when he pointed the firearm at

an arresting officer. We agree with the district court that

he did commit another felony offense and affirm.

In December 2001 Purifoy was in an apartment in

Rockford, Illinois when officers of the Metro Narcotics Unit
2 No. 02-3846

of the Rockford Police Department arrived there to execute a search warrant. When no one answered the door,

the officers forced entry into building. The police were

not undercover; they wore clothing, badges and baseball

caps that identified them as officers, and they also verbally identified themselves as officers. When the officers

entered the apartment, Purifoy ran into a bedroom,

grabbed a gun, and pointed it at one of the officers. The

officers pointed their weapons at Purifoy and ordered him

to drop his gun. A standoff ensued for some 15 more

seconds, before Purifoy accepted the officers’ demand to

end the standoff. The officers then seized his gun, which

was loaded with six live rounds, one in the firing chamber.

Purifoy pleaded guilty pursuant to a plea agreement. At

sentencing, the parties disagreed over whether his offense

level should be increased by four under § 2K2.1(b)(5). This

adjustment applies if a defendant “used or possessed any

firearm or ammunition in connection with another felony

offense.” U.S.S.G. § 2K2.1(b)(5). The district court found

that the adjustment was appropriate because when Purifoy

pointed the gun at the officer, he committed the statelaw felony of aggravated assault, see Ill. Comp. Stat. 5/12-

2(a)(6) and (b). Purifoy argues that the aggravated assault was not “another crime” for purposes of § 2K2.1(b)(5)

because it occurred simultaneously with his federal offense

of possession of a firearm by a felon.

We generally review a district court’s application of a

sentencing guideline de novo. United States v. Irby, 240

F.3d 597, 599 (7th Cir. 2001). More deference may be

appropriate in light of the Supreme Court’s recent decision

in United States v. Buford, 532 U.S. 59 (2001). Because

the outcome in this case does not depend on the standard

of review, however, we need not decide which standard

applies when reviewing a district court’s ruling that certain conduct qualifies as “another felony offense” under

§ 2K2.1(b)(5).
No. 02-3846 3

Purifoy’s § 2K2.1(b)(5) upward adjustment was appropriate if the crime he committed when he pointed his gun

at the arresting officer was “another felony offense.” In

United States v. Szakacs, 212 F.3d 344, 349-51 (7th Cir.

2000), we considered the circumstances under which a

state-law crime that occurs contemporaneously with a

federal weapons crime may be treated as a separate offense. We reasoned that the two could be treated as separate crimes if there were a sufficient distinction in conduct between them. See id. at 351. The defendants in

Szacaks had planned to break into a gun shop and steal

firearms. They were convicted of the federal crime of

conspiracy to steal firearms from a licensed dealer, and the

district court imposed § 2K2.1(b)(5) adjustments, concluding that they used or possessed the firearms in connection with the state-law crime of conspiracy to commit

burglary. We found the adjustments inappropriate in that

case. The conspiracy to commit burglary and the conspiracy to commit theft of the firearms were essentially the

same crime because they involved nearly identical offense

conduct. Id. at 349.

Purifoy’s case cannot be viewed the same way. His offense of conviction, because he was a felon, involved mere

possession of the firearm. When he pointed his gun at the

arresting officers, he committed an aggravated assault—he

was actually using the weapon. And the distinction is

significant considering the increased danger created by

pointing a firearm at a police officer during an arrest. The

distinction between mere possession and actual use of

the gun distinguishes the two crimes and justifies treating them as separate offenses. Indeed, two other circuits

have found the distinction in conduct between possession

and use of a weapon to be significant for purposes of

§ 2K2.1(b)(5). See United States v. Jackson, 276 F.3d 1231,

1234 (11th Cir. 2001); United States v. Kuban, 94 F.3d 971,

976 (5th Cir. 1996).
4 No. 02-3846

We hasten to add, in closing, that Purifoy should consider himself lucky. When someone levels a loaded gun

at police officers during a tense search warrant/arrest

situation, that person usually suffers far greater consequences than an upward adjustment to his guideline range.

Getting shot, and often killed, are the usual consequences

that flow from that kind of conduct. The challenge to Mr.

Purifoy’s sentence is rejected and the judgment of the

district court is AFFIRMED.

A true Copy:

Teste: 

 ________________________________

Clerk of the United States Court of

Appeals for the Seventh Circuit 

USCA-02-C-0072—4-10-03