* The Ho nora ble RobertH. Clel and, Unit ed Sta tes Dist ric t Ju dge f

or the Eastern Distri ct of Michigan, sit ting by designation.
1 RECOMMENDED FOR FULL-TEXT PUBLICATION Pursuant to Six

th Circuit Rul e 206

ELECTRO NIC CIT

ATION: 2003 FED App . 0301P (6th C ir.) File Name: 03a03 01p.06



### UNITED STATES COURT OF APPEALS

FOR THE SIXT H CIR CUIT

_________________
U NITED S TAT ES OF A MERICA , Plaintiff-Appellee,

v.

B RENT W. K ING , Defenda nt-Appel

lant. X - - - -
> , - - N No. 02-1128

Appeal from the United States District Court for the We stern District of M ichiga n at Gran d Rapids. No. 01-00173—Gordon J. Quist, District Judge.

Argued: May

1, 2003 Decided and Filed: August 25, 2003

Befor e: CLA Y and GI BBONS,Circuit Judges; CLELA ND, District Judge. *

_________________ COUNSEL

ARGUED: Lawrence

J. Phelan, HAEHN EL & PHELAN, Grand Rapids, Michigan, for

Appellant. Ti mo th y P. Ve rH ey, 2 United States v. King No. 02-1128

UNITE D STATES ATTORNEY, Grand Rapids, Michigan, for Appellee. ON BRI EF: Lawrence J. Phelan, HAEHNEL & PHELA

N, Grand Rapids, Michigan, for Appellant. Mark V. C ourtade, UNITED STATES ATTORNEY, Grand Rapids , Michigan, for Appellee.

_________________ OPINION

_________________ CLELA ND, District Judge. Appellant/De fe ndant Brent Kingchallenges the sentence impos edby t he distric t court. Sp ec if ic al ly, he asserts that the court was i n error

when it applied an enhancement pursuant to U.S.S.G. § 2K2.1(b)(5). For the reasons set forth below, we AFFI RM the judgment of the distri ct court

. I. FACTS AND PROCEDURAL HISTORY

OnMay 13, 2001, Ba

ttle Creek police officers responded to a compla

int that a man was s ee n pointing a shotgun and threatening

an individual at 47 South 22ndStreet. When the police arrived at the above address, they w itnessed Appellant pointing a pump-action

shotgun at an indi vidual na med Billy Sisler. The officers noted that the shotgun was pointed at Mr. Sisler’s face and chest. Upon discovering that the police had arrived, Appellant

attempted to hide the gun in his sweatshirt and walk away . The police, however, ordered Appe llant to drop the gun. When Appellant raised his hands in the air, the shotgun fell t o the gr ound . The officers apprehended Appellant and rec ov ered the gun--a Mossberg 12-gauge, pump-action

shotgun loaded with five rounds of ammunition.

OnJuly 26, 2001, an indictment was filed with the United States District Court for the Western District of Michigan. The indictment charged Appellant with one count of beinga Felon in Poss es sion of a F irearm i n violation

of 18 U.S.C

.No. 02-1128 United States v. King 3

1 At th e t ime of t

he of fe nse , Ap pella nt had two prior felony convictions: (1) a M arch 3 0, 1 995 c onvic tion for A ttemp ting to C arry a Concealed Wea pon, and (2) a June 20, 1996 conviction for Attempte d Hom e Invasion.

2 An e viden tiary hea ring wa s con duc ted to add ress A ppe llant’ s objection, which asserted that Appellant had never poi nted the shotg un at anyone when the incident occurred. The governm ent presented the testi mony of

the offi cer who observed Ap pellant on the night of the arrest. Appellant presented three witnesse s on his behalf. The trial court “[f ound] by a preponderance of the evi dence that

[the of fice r] was telling the truth when he testified that the d efend ant po inted the gun at B il l y Sisler.” (Sente ncin g Hr ’g Tr. at 52.) Thus, the t rial court appli ed the § 2K2.1(b)(5) enhanc ement. The trial court’ s fact

ual f indin gs are n ot at issue o n app eal. § 922(g)(1). 1 On October 3, 2001, pursuant to a six-page plea agreement, Appellant pleaded g uilty to the charg ed offense. Appellant’s presentence report rec ommended

that his offense level be increased by

four poin ts pursua nt to U.S.S.G. § 2K2.1(b) (5) bec ause App ell antused the f irearm i n connection

with another

felony offense , namely

Assault With
a Dangerous Weapon (Felonious Assault), whe n he pointed the fir earm at the vi ctim ’s ches t and f ace. Al thou gh Appellant had been charged

with Assault With a Dangerous We apon (Feloni ous Assau lt) and F elony

Firear m in state court, these charges were

later dismissed on an order of nolle prosequibecause Appellant was being prosecuted in federal court. On January 2, 2002, Appe llant objected to the proposed enhancement. The c ourt overruled Appellant’s objectionand held t

hat th e § 2K2. 1(b)(5) applied. 2 On January 14, 2 002, Appellant was sentenced to serve 77 months imprisonment. Appellant now argues that

the district court erred whe n applying § 2K 21.(b)(5), asserting that the conduct upon which he was convicted (Felon i nPossession)
was the same conduct the court used to enhance his sentence (Felonious Assault). 4 United States v. King No. 02-1128

3 In certain circumstance s, the court reviews gui deline decisi ons under

a mor e defe rential stan dard

. See United Stat es v. Ennenga , 263 F. 3d 499, 502 (6th Cir. 2001). Such review has been held appropriate when the legal decisio n is close ly int ertwi ned wit h the f actualconclus ions r eached by the distric t court. In th i s case, the di spute i s purel y a le gal i ssue: A s suming App ellant co mm itted a felo nious a ssault wh en he p ointed his firearm at the vi ctim, does the sent encing enhancement for “us [ing] or possess[ing] any fi rearm or ammun it ion in connec tion wi th anot her felony offense ,” U.S.S.G. § 2K 2.1(b)(5), apply where Appellant is convi cted for being a Felon i n Possessi on of a Fir earm? Thus, t he dist rict court’ s lega l deter mination w il l be r evie wed de novo

. II. STANDARD OF REVIEW Appellant concedes that because h e objec ted only to the presentence report’s factual findings and not the report’s legal conclusionregarding the sentenc ing en hance ment, the court must review his current

claim fo r plain error. See United State s v. Koebe

rlein , 161 F.3d 946, 949 (6th Cir. 19 98 ) (holding that the d

efenda nt’ s failu re to object to sentencing decisionin the distr

ict cour t does no t preclu

de appe llate review of the s enten ce for plain error under Fe deral Rule of Civil Procedure 52(b)). To establish plain error, Appe llant must show “(1) that an error occurr ed in the district c ourt; (2) that the error was plain, i.e., obvious or clear; (3) that the
error affec ted [A

ppellant ’s] substan

tial rig hts; and (4) that thi s adverse impact seriously aff

ected the fa irnes s, integrity or public reputation of the judicial proceedings.” Koeberle in , 161 F.3d at 949. Finally, the cour t review s de novo the districtcourt’s legal conclusions regarding the applica tion of the Sentencing Guidelines. United States v. Humphrey , 279 F.3d 372, 379 (6th Cir. 2002). 3

III. DISCU SSION
United Stat es Sen tenci ng Guideline § 2K2.1(b)(5) provides that “if the defendant used or pos ses sed any fire arm or ammunition in connection with another felony offen se . .

. increa se [the s entence] by four levels.” U.S.S.G. § 2K2.1(b)(5). Appellant argues tha t t he four-levelNo. 02-1128 United States v. King 5

4 The court also based its decision o n the la nguag e of Appl ication No te 18, which

stat es, “ ‘anoth er fel ony off ense’

. . . ref

er[s] to off

enses other than . . . firearm s pos session or traffick ing offen ses.” enhancement

he rece iv ed p ursuant to this section was improper because the state law

crime , felonio

us assaul t, occurred simultane ously

wit h th e offense of conviction and thus cannot constitute “another felony .” Appellant relies on United States v. Sande

rs , 162 F.3d

396, 400 (6th Cir. 1998), wherein this Court held that the district co urt erre d in app lying § 2K2.1(b )(5) whe re the c onduct tha

t led to defendant’s conviction for being a f elon i n possession of a firearm--theburglary

of a pawnshop where guns were a mong the items taken--was the same conduct utilized to apply the four-level enhancement. Th e reasoning underpinning the Sanders decision, however, does not a pply to the fa cts of this
case. Further, more recent, albeit unpublished, case law from this circuit s

upports th e district court’s application of § 2K2.1(b)(5).

In Sanders , the defendants burglarized a pawn shop, taking firear ms, electronics, and other items. The

y w ere eve

ntually convicted for bein g felon s in posses sion of fir earms in violation of 18 U.S.C. §§ 922(g)(1) and 924(a )(2)

. See Sanders , 162 F.3d at 397-98. The defendants did not u se firear ms during the cou

rs e of the burglary . “Bey ond the contemporaneous burglary . . ., there was not ‘another felony off ense,’ and that burglary was the basis for the fe dera l firear ms offenses charged.” Id. at 401. This Court found that the enhanc ement und

er § 2K2. 1(b)(5)

was impro

perly applied by the district

court be cause there wa s no separ ation of ti me or distinction in conduct betw een the offense that led to the convictionand the conduct considered for theenhanc ement. 4 Id. at 400.

Inthis case, unlike Sanders , there i s “a sepa ration of time b etween the offense of conviction and the other felony offense, [and] a distinction of conduct between that occurring 6 United States v. King No. 02-1128

5 In San ders , the court was concerned that allowing t

he enhancement to stand in that

c ase wo uld lea d to “the autom atic ap plicatio n of this sign ifi cant 4 leve l Guid eline en hanc eme nt in almo st every fed eral g u n theft case.” San ders , 162 F.3d at 400. Ther e is no risk o f autom atic appli cati on of the en hanc eme nt in this case

. If Appell ant had not

pointed the gun towa rds Sisler, the enhancement would not apply. “Rather, the firearm was u sed t o commit the ass ault , whi ch i s pre cis ely the type of conduct t hat the Sentencing Comm ission i ntended to reach with the enha ncem ent.” United States v. Parker , 234 F. 3d 1270, 2000 WL 1647922, *2 (6th Cir. O ct. 23 , 200 0); see a lso U nited State s v. M cD ona ld , 165 F.3d 1032, 1037 (6th Cir. 1999) (Se cti on 2K2.1(b) (5) “is a sent encing enha ncement provision that was created in response to a concern about the incre ased ris k of vi olence when fir earms are used or possessed during the commission of another fel ony.”). inthe offense of conviction and the other felony offense.” Id. Appellant admitted to the probation officer that, on the night of the incid ent, he ha d an arg ument with

individua

ls at th e r esidence next to his girlfriend’s home. He reported that he returned to his gir lfriend’ s reside

nce and retrieved his sh otgun fromthe bedr

oom closet. H e loaded the shotgun and concealed it beneath his shirt before returning t o the neighbor’s drivewa

y. I t reporte dly

took two min

utes to retrieve the gun, load it with ammunition, an d r eturn to the dr iv ew ay. According to the officers that arrived at the scene shortly thereafter, Appellant was pointing the gun at Sisler’s face and chest. It is quite clear that Appellant possessed the gun wel l before

he used it

to assault Sisler. Upon storage of and then ret rieval o f the gu

n from his

girlfriend’s apartme

nt, he was committing the crime of being a felon in possession of a firearm. Beyond me

re possession, he took the further step of committing a feloni ous assau lt with the f

irearm. Becau se of this distinction in con

duct, it cannot be said that Appellant
was convicte d and had

his sentence enhanced based upon the
same con duct. App ellant fi

rst possessed

the gun (offense of conviction) and then used the gun (enhancement conduct). 5

Th e key di stinction between this case and Sanders is that the condu ct giv ing rise to the enhancement here was not inevitable upon completionof the underlying offense. AfterNo. 02-1128 United States v. King 7

Appellant retrieved the firearm, he could have refrained from using the wea

pon to comm

it ass ault . In other words, the enhancement

conduct was not

un avoidable once the underlying

offense took place; Appellant chos e t o point the weap onat Sisler. Conversely, the def endants in Sand

er s inevit ab ly possessed firearms upon completion of the burglary because the fire arms w ere am ong the items taken du ri ng th e b ur gl ar y.
United States v. Parker , an unpublished decision from this circuit, directly addr

esses the issue present

ed in th is cas e. In that case, the defendant made

the same argument as Appellant is asserting in this case. This Court stated:

The incred

u lity of this ar

gument r enders i t wholly unpersuasive. As a matte r of log ic, in

order f or Parke r to shootat his wife with the firearm, the firearm must have first come into his possession. The p ossession of the firearm and the e nsuing a ssault

are two i ndepend ent acts , therefore, the fel onious assault can be used to enhance the firearms conviction under U.S.S.G. § 2K2.1(b)(5).

Parker , 234 F.3d 1270, 2000 WL 1647922, *2 (6th Cir. Oct. 23, 2 0 00). This Court found the Sanders holding inapplica ble andheld that

the distri ct court

did not er

r in using the felonious assault to enhance thedefenda nt’s offe nse level pursuant to U.S.S.G. § 2K2.1(b)(5). This c ase is no differe nt. Accordingly , Appellant’s positionis withoutmerit.

IV. CONCL USION

We find that the district court did not e rr in enhancing Appellant’s sentence pursuan t to U.S.S.G. § 2K2.1(b)(5). A cc or di ng ly, the judgment of the district court i s AFFIRMED.