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The Honorable Robert H. Cleland, United States District Judge for

the Eastern District of Michigan, sitting by designation.

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RECOMMENDED FOR FULL-TEXT PUBLICATION

Pursuant to Sixth Circuit Rule 206

ELECTRONIC CITATION: 2003 FED App. 0301P (6th Cir.)

File Name: 03a0301p.06

UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

_________________

UNITED STATES OF AMERICA,

 Plaintiff-Appellee,

v.

BRENT W. KING,

Defendant-Appellant.

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No. 02-1128

Appeal from the United States District Court

for the Western District of Michigan at Grand Rapids.

No. 01-00173—Gordon J. Quist, District Judge.

Argued: May 1, 2003

Decided and Filed: August 25, 2003 

Before: CLAY and GIBBONS, Circuit Judges;

CLELAND, District Judge.*

_________________

COUNSEL

ARGUED: Lawrence J. Phelan, HAEHNEL & PHELAN,

Grand Rapids, Michigan, for Appellant. Timothy P. VerHey,

2 United States v. King No. 02-1128

UNITED STATES ATTORNEY, Grand Rapids, Michigan,

for Appellee. ON BRIEF: Lawrence J. Phelan, HAEHNEL

& PHELAN, Grand Rapids, Michigan, for Appellant. Mark

V.Courtade, UNITED STATESATTORNEY,GrandRapids,

Michigan, for Appellee.

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OPINION

_________________

CLELAND, District Judge. Appellant/Defendant Brent

King challenges the sentence imposed by the district court.

Specifically, he asserts that the court was in error when it

applied an enhancement pursuant to U.S.S.G. § 2K2.1(b)(5).

For the reasons set forth below, we AFFIRM the judgment of

the district court.

I. FACTS AND PROCEDURAL HISTORY

On May 13, 2001, Battle Creek police officers responded

to a complaint that a man was seen pointing a shotgun and

threatening an individual at 47 South 22nd Street. When the

police arrived at the above address, they witnessed Appellant

pointing a pump-action shotgun at an individual named 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 Appellant to

drop the gun. When Appellant raised his hands in the air, the

shotgun fell to the ground. The officers apprehended

Appellant and recovered the gun--a Mossberg 12-gauge,

pump-action shotgun loaded with five rounds of ammunition.

On July 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 being a

Felon in Possession of a Firearm in violation of 18 U.S.C.
No. 02-1128 United States v. King 3

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At the time of the offense, Appellant had two prior felony

convictions: (1) a March 30, 1995 conviction for Attempting to Carry a

Concealed Weapon, and (2) a June 20, 1996 conviction for Attempted

Home Invasion.

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An evidentiary hearing was conducted to address Appellant’s

objection, which asserted that Appellant had never pointed the shotgun at

anyone when the incident occurred. The government presented the

testimony of the officer who observed Appellant on the night of the arrest.

Appellant presented three witnesses on his behalf. The trial court

“[found] by a preponderance of the evidence that [the officer] was telling

the truth when he testified that the defendant pointed the gun at Billy

Sisler.” (Sentencing Hr’g Tr. at 52.) Thus, the trial court applied the

§ 2K2.1(b)(5) enhancement. The trial court’s factual findings are not at

issue on appeal.

§ 922(g)(1).1 On October 3, 2001, pursuant to a six-page plea

agreement, Appellant pleaded guilty to the charged offense.

Appellant’s presentence report recommended that his

offense level be increased by four points pursuant to U.S.S.G.

§ 2K2.1(b)(5) because Appellant used the firearm in

connection with another felony offense, namely Assault With

a Dangerous Weapon (Felonious Assault), when he pointed

the firearm at the victim’s chest and face. Although

Appellant had been charged with Assault With a Dangerous

Weapon (Felonious Assault) and Felony Firearm in state

court, these charges were later dismissed on an order of nolle

prosequi because Appellant was being prosecuted in federal

court. On January 2, 2002, Appellant objected to the

proposed enhancement. The court overruled Appellant’s

objection and held that the § 2K2.1(b)(5) applied.2 On

January 14, 2002, Appellant was sentenced to serve 77

months imprisonment. Appellant now argues that the district

court erred when applying § 2K21.(b)(5), asserting that the

conduct upon which he was convicted (Felon in Possession)

was the same conduct the court used to enhance his sentence

(Felonious Assault).

4 United States v. King No. 02-1128

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In certain circumstances, the court reviews guideline decisions under

a more deferential standard. See United States v. Ennenga, 263 F.3d 499,

502 (6th Cir. 2001). Such review has been held appropriate when the

legal decision is closely intertwined with the factual conclusions reached

by the district court. In this case, the dispute is purely a legal issue:

Assuming Appellant committed a felonious assault when he pointed his

firearm at the victim, does the sentencing enhancement for “us[ing] or

possess[ing] any firearm or ammunition in connection with another felony

offense,” U.S.S.G. § 2K2.1(b)(5), apply where Appellant is convicted for

being a Felon in Possession of a Firearm? Thus, the district court’s legal

determination will be reviewed de novo.

II. STANDARD OF REVIEW

Appellant concedes that because he objected only to the

presentence report’s factual findings and not the report’s legal

conclusion regarding the sentencing enhancement, the court

must review his current claim for plain error. See United

States v. Koeberlein, 161 F.3d 946, 949 (6th Cir. 1998)

(holding that the defendant’s failure to object to sentencing

decision in the district court does not preclude appellate

review of the sentence for plain error under Federal Rule of

Civil Procedure 52(b)). To establish plain error, Appellant

must show “(1) that an error occurred in the district court;

(2) that the error was plain, i.e., obvious or clear; (3) that the

error affected [Appellant’s] substantial rights; and (4) that this

adverse impact seriously affected the fairness, integrity or

public reputation of the judicial proceedings.” Koeberlein,

161 F.3d at 949. Finally, the court reviews de novo the

district court’s legal conclusions regarding the application of

the Sentencing Guidelines. United States v. Humphrey, 279

F.3d 372, 379 (6th Cir. 2002).3

III. DISCUSSION

United States Sentencing Guideline § 2K2.1(b)(5) provides

that “if the defendant used or possessed any firearm or

ammunition in connection with another felony offense . . .

increase [the sentence] by four levels.” U.S.S.G.

§ 2K2.1(b)(5). Appellant argues that the four-level
No. 02-1128 United States v. King 5

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The court also based its decision on the language of Application

Note 18, which states, “‘another felony offense’ . . . refer[s] to offenses

other than . . . firearms possession or trafficking offenses.”

enhancement he received pursuant to this section was

improper because the state law crime, felonious assault,

occurred simultaneously with the offense of conviction and

thus cannot constitute “another felony.” Appellant relies on

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

wherein this Court held that the district court erred in

applying § 2K2.1(b)(5) where the conduct that led to

defendant’s conviction for being a felon in possession of a

firearm--the burglary of a pawnshop where guns were among

the items taken--was the same conduct utilized to apply the

four-level enhancement. The reasoning underpinning the

Sanders decision, however, does not apply to the facts of this

case. Further, more recent, albeit unpublished, case law from

this circuit supports the district court’s application of

§ 2K2.1(b)(5).

In Sanders, the defendants burglarized a pawn shop, taking

firearms, electronics, and other items. They were eventually

convicted for being felons in possession of firearms 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 use

firearms during the course of the burglary. “Beyond the

contemporaneous burglary . . ., there was not ‘another felony

offense,’ and that burglary was the basis for the federal

firearms offenses charged.” Id. at 401. This Court found that

the enhancement under § 2K2.1(b)(5) was improperly applied

by the district court because there was no separation of time

or distinction in conduct between the offense that led to the

conviction and the conduct considered for the enhancement.4

Id. at 400.

In this case, unlike Sanders, there is “a separation of time

between 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

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In Sanders, the court was concerned that allowing the enhancement

to stand in that case would lead to “the automatic application of this

significant 4 level Guideline enhancement in almost every federal gun

theft case.” Sanders, 162 F.3d at 400. There is no risk of automatic

application of the enhancement in this case. If Appellant had not pointed

the gun towards Sisler, the enhancement would not apply. “Rather, the

firearm was used to commit the assault, which is precisely the type of

conduct that the Sentencing Commission intended to reach with the

enhancement.” United States v. Parker, 234 F.3d 1270, 2000 WL

1647922, *2 (6th Cir. Oct. 23, 2000); see also United States v. McDonald,

165 F.3d 1032, 1037 (6th Cir. 1999) (Section 2K2.1(b)(5) “is a sentencing

enhancement provision that was created in response to a concern about

the increased risk of violence when firearms are used or possessed during

the commission of another felony.”).

in the offense of conviction and the other felony offense.” Id.

Appellant admitted to the probation officer that, on the night

of the incident, he had an argument with individuals at the

residence next to his girlfriend’s home. He reported that he

returned to his girlfriend’s residence and retrieved his shotgun

from the bedroom closet. He loaded the shotgun and

concealed it beneath his shirt before returning to the

neighbor’s driveway. It reportedly took two minutes to

retrieve the gun, load it with ammunition, and return to the

driveway. 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 well before he used it to assault Sisler. Upon storage of

and then retrieval of the gun from his girlfriend’s apartment,

he was committing the crime of being a felon in possession of

a firearm. Beyond mere possession, he took the further step

of committing a felonious assault with the firearm. Because

of this distinction in conduct, it cannot be said that Appellant

was convicted and had his sentence enhanced based upon the

same conduct. Appellant first possessed the gun (offense of

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

The key distinction between this case and Sanders is that

the conduct giving rise to the enhancement here was not

inevitable upon completion of the underlying offense. After
No. 02-1128 United States v. King 7

Appellant retrieved the firearm, he could have refrained from

using the weapon to commit assault. In other words, the

enhancement conduct was not unavoidable once the

underlying offense took place; Appellant chose to point the

weapon at Sisler. Conversely, the defendants in Sanders

inevitably possessed firearms upon completion of the

burglary because the firearms were among the items taken

during the burglary.

United States v. Parker, an unpublished decision from this

circuit, directly addresses the issue presented in this case. In

that case, the defendant made the same argument as Appellant

is asserting in this case. This Court stated:

The incredulity of this argument renders it wholly

unpersuasive. As a matter of logic, in order for Parker to

shoot at his wife with the firearm, the firearm must have

first come into his possession. The possession of the

firearm and the ensuing assault are two independent acts,

therefore, the felonious 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, 2000). This Court found the Sanders holding

inapplicable and held that the district court did not err in

using the felonious assault to enhance the defendant’s offense

level pursuant to U.S.S.G. § 2K2.1(b)(5). This case is no

different. Accordingly, Appellant’s position is without merit.

IV. CONCLUSION

We find that the district court did not err in enhancing

Appellant’s sentence pursuant to U.S.S.G. § 2K2.1(b)(5).

Accordingly, the judgment of the district court is

AFFIRMED.