United States v. William English

Citations: 329 F.3d 615; 2003 U.S. App. LEXIS 10400; 2003 WL 21203335Docket: 02-3218NI

Court: Court of Appeals for the Eighth Circuit; May 23, 2003; Federal Appellate Court

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William English was convicted of being a felon in possession of a firearm, violating 18 U.S.C. §§ 922(g)(1) and 924(a)(2), and received a 110-month prison sentence. At sentencing, the District Court applied a two-level increase for possessing a stolen firearm and another two-level increase for possessing three to seven firearms, with no objections raised to these enhancements. However, English objected to a four-level increase under U.S.S.G. § 2K2.1(b)(5) for possessing a firearm in connection with another felony, which the court initially upheld based on the sale of firearms to James Hiller. 

English contended that the enhancement should not apply because the sale constituted 'trafficking,' which is excluded under Application Note 18 of the guidelines. The government initially argued that 'trafficking' referred only to drugs, a position later conceded to be incorrect. The appellate court agreed with English, stating that the terms in Note 18 refer to both explosives and firearms trafficking. Consequently, the court could not support the four-level enhancement based on the government's original reasoning.

Despite this, the government suggested that the enhancement could still stand if based on a felony of possessing stolen property over $1,000, which was also established in the case. The value of the stolen firearms was stipulated to be about $1,600. The appellate court acknowledged the government's ability to affirm the District Court's judgment on alternative grounds.

The appeal centers on whether Mr. English's felony charge of possession of stolen property qualifies as a firearms possession offense under Application Note 18 of the Sentencing Guidelines. This provision excludes certain offenses related to firearms or explosives from being counted as additional felonies for a four-level enhancement. The court has not previously defined what constitutes a firearms possession offense in this context.

Two interpretations of the comment are considered: one that views it as referring to offenses requiring possession of a firearm as an element and another that includes offenses involving firearms possession in their underlying conduct. The court favors the first interpretation, emphasizing the plain language of the comment, which specifically mentions "firearms possession offenses." 

Mr. English is charged with theft, specifically controlling stolen property while knowing it was stolen, which does not inherently involve firearms. While he technically committed a firearms possession offense in a broad sense, applying such a broad interpretation would conflict with a previous ruling in United States v. Kenney, where the court narrowly interpreted the comment, stating it excludes limited types of offenses.

The distinction between the cases lies in the nature of the felonies: Kenney involved robbery while the current case involves possession of stolen property. The court expresses concern that allowing the state crime to count as an additional felony would be unreasonable and contrary to the Commission's intent. However, the argument fails because the Iowa felony includes a value element, meaning possession of stolen firearms does not automatically violate the statute unless certain value thresholds are met. Consequently, the court concludes that a firearms offense must include the element of firearm possession, which the Iowa statute lacks, thus it cannot serve as an additional felony under the enhancement guidelines.

The defendant contends that applying both subsections (b)(4) and (b)(5) would constitute double counting, penalizing him twice for the same conduct as established in United States v. Rohwedder. However, these enhancements are deemed conceptually distinct: subsection (b)(4) pertains to stolen firearms without regard to their value or the defendant's knowledge of their stolen status, while subsection (b)(5) relates to the Iowa theft statute, which requires the firearms to meet certain value criteria and for the defendant to know or reasonably believe they were stolen. Application Note 18, intended to prevent impermissible double counting, does not categorize a violation of the Iowa theft statute as a 'firearms possession offense' since it focuses on the knowing possession of valuable property, irrespective of its classification as a firearm. Consequently, it is determined that applying both subsections in this case does not constitute double counting. However, factual issues remain regarding whether Mr. English knew or should have known the firearms were stolen, necessitating a remand for a hearing where both parties can present additional evidence. The government bears the burden of proving the knowledge element of the Iowa crime. The District Court's judgment is vacated, and the case is remanded for further proceedings.