USA v. Michael Kilgore

Filing

OPINION and JUDGMENT filed: The district court's imposition of a four-level enchancement is REVERSED, and the case is REMANDED for resentencing proceedings. Decision for publication. Gilbert S. Merritt (AUTHORING), Karen Nelson Moore, and Eric L. Clay, Circuit Judges.

Case: 13-5623

Document: 39-2

Filed: 04/15/2014

Page: 1

RECOMMENDED FOR FULL-TEXT PUBLICATION
Pursuant to Sixth Circuit I.O.P. 32.1(b)
File Name: 14a0073p.06

UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
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UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.

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No. 13-5623

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MICHAEL KILGORE,
Defendant-Appellant.

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Appeal from the United States District Court
for the Eastern District of Tennessee of Chattanooga
No. 1:12-cr-00090-1—Harry S. Mattice, Jr., District Judge.
Decided and Filed: April 15, 2014
Before: MERRITT, MOORE, and CLAY, Circuit Judges.
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COUNSEL
ON BRIEF:
Laura E. Davis, FEDERAL DEFENDER SERVICES OF EASTERN
TENNESSEE, INC., Knoxville, Tennessee, for Appellant. Terra L. Bay, UNITED STATES
ATTORNEY’S OFFICE, Chattanooga, Tennessee, for Appellee.
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OPINION
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MERRITT, Circuit Judge. Defendant Michael Kilgore appeals his sentence of 70 months
for being a felon in possession of a firearm in violation of 18 U.S.C. § 922(g)(1) and 18 U.S.C.
§ 924(a)(2). Defendant was performing community service at a police station in South Pittsburg,
Tennessee, when he stole two unloaded firearms from an evidence room and took them home.
He does not contest a two-level enhancement under U.S.S.G. § 2K2.1(b)(4) for “stealing” the

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Case: 13-5623
No. 13-5623

Document: 39-2

United States v. Kilgore

Filed: 04/15/2014

Page: 2
Page 2

two pistols that created his status as a felon in possession of firearms.1 Rather he contends that
the district court erred in thereafter applying a four-level enhancement to his base offense level
for possessing a firearm “in connection with another felony offense” pursuant to U.S.S.G.
§ 2K2.1(b)(6)(B).2

The defendant argues that the four-level enhancement was incorrectly

applied because the law requires that the “another felony offense” language from the guideline
means that the offense triggering application of the enhancement must be separate and distinct
conduct from the underlying offense. We agree. The “another felony offense” language that
triggered application of the four-level enhancement was the theft of the pistols that converted
Kilgore into a felon-in-possession with a two-level enhancement for theft. There is no “another
felony offense” on which to base another enhancement on top of the two-level enhancement.
Raising the punishment substantially with an additional four-level enhancement violates the
language of the guideline itself, engages in double counting and appears to subject Kilgore twice
to punishment for the same offense.3
The theft here from the evidence room was not “another felony offense.” It converted
Kilgore to the status of being a “felon in possession of a firearm.” In United States v. Sanders,
162 F.3d 396, 400 (6th Cir. 1998), the Sixth Circuit explained how to determine when “another
felony offense” had occurred:

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Guideline § 2K2.1 is a long, convoluted rule about firearms with more than 20 parts and subparts.
Subsection (b)(4) says: “If any firearm was stolen, increase by 2 levels.”
2

This subsequent subsection adds: “If the defendant —

...
(B) used or possessed any firearm or ammunition in connection with another felony offense, or
possessed or transferred any firearm or ammunition with knowledge, intent, or reason to
believe that it would be used or possessed in connection with another felony offense,
Increase by 4 levels. (Emphasis added.)
Then Application Note 14 to the Guidelines states:
14. “In Connection With”
(A) In General.—Subsections (b)(6)(B) and (c)(1) apply if the firearm or ammunition facilitated,
or had the potential of facilitating, another felony offense or another offense, respectively.
3

We review legal conclusions regarding application of the guidelines de novo, while factual findings are
reviewed for clear error. United States v. Jackson, 635 F.3d 205, 207 (6th Cir. 2011).

Case: 13-5623
No. 13-5623

Document: 39-2

United States v. Kilgore

Filed: 04/15/2014

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A logical reading of the § 2K2.1(b)(5) [now § 2K2.1(b)(6)] Guideline term
“another felony offense” would at least require, as a condition precedent to the
application of a major four level guideline enhancement, a finding of a separation
of time between the offense of conviction and the other felony offense, or a
distinction of conduct between that occurring in the offense of conviction and the
other felony offense. Otherwise, the word “another” is superfluous ….
(Footnote omitted.) The Sanders court concluded that the defendant, who had become a felon in
possession of a firearm when he burglarized a pawn shop and stole a firearm, was not eligible for
the enhancement because the exact same conduct that supported the offense of conviction (i.e.,
being a felon in possession) also supported the “other” felony offense (e.g., the burglary).
Although the Application Notes to this guideline have been altered over time, this Circuit has not
altered the Sanders interpretation of the “another felony offense” enhancement. See United
States v. Stafford, 721 F.3d 380, 400 (6th Cir. 2013) (shooting into a crowd to complete “another
felony offense”); United States v. Clay, 320 F. App’x 384, 391 (6th Cir. 2009); United States v.
Hyler, 308 F. App’x at 962, 966 (6th Cir. 2009). 4
In spite of the convincing nature of this reasoning in the cases, the prosecutor argues
nevertheless that Kilgore, as a felon in possession of a stolen firearm, had the “potential,” within
the meaning of Application Note 14 (see footnote 2, supra), to threaten violence or engage in
further criminal offenses.

But, of course, this possibility is always true of any felon in

possession of a firearm. The punishment for this status is fully taken into account by the
punishment imposed before the four level enhancement is considered. The “in connection with
another felony offense” language of the guideline should not be measured by the limits of the
prosecutor’s imagination. Obviously, the felon could go on a rampage with his firearm, but the
guideline language means a real offense, not a prosecutor’s imagined, hypothetical offense.
Accordingly, the imposition of the above-described, four-level enhancement by the
District Court is reversed and the case is remanded for resentencing proceedings in compliance
with this opinion.
4

In 2006, the Sentencing Commission added new commentary providing that the enhancement applied “to
a defendant, who, during the course of a burglary, finds and takes a firearm, even if the defendant did not engage in
any other conduct with that firearm during the course of the burglary.” U.S.S.G. § 2K2.1(b)(6)(B) cmt. n.14(B)
(emphasis added). Because Kilgore did not commit a burglary, the Sanders interpretation of the enhancement still
applies.