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United States v. Brown.

No. 22-6175. 11/7/2023. W.D.Okla. Judge Kelly. Felon in Possession of Ammunition—US Sentencing Guidelines—Sentence Enhancements—Nexus—Fed. R. Civ. Proc. 23.

November 7, 2023

In March 2021, law enforcement suspected that Brown was driving a stolen vehicle that was parked at a convenience store, and they approached Brown as he exited the store. Officers patted down Brown and found three rounds of 9mm ammunition in his front pocket and the key fob to the stolen vehicle. Officers also observed the handgrip of a firearm visibly sticking out of a purse on the front passenger floorboard. Brown denied knowledge of the firearm or that the vehicle was stolen but admitted to seeing the ammunition in the car and putting it in his pocket. In addition to the 9mm pistol, officers located an extended magazine containing 13 rounds of 9mm ammunition in the driver side door compartment, identification belonging to Brown’s son, and several used car dealership tags. When he was arrested, Brown was serving suspended sentences from 2015 state convictions for being a felon in possession of a firearm and possessing a firearm during the commission of a felony. Brown pleaded guilty to a single count of being a felon in possession of ammunition under 18 USC § 922(g)(1). The Presentence Report (PSR) detailed Brown’s extensive criminal history, including 12 felony convictions, and it recited facts surrounding Brown’s federally charged offense in March 2021 and other instances of criminal conduct involving Brown in December 2020 and February 2021. The district court found that the government established by a preponderance of the evidence that Brown constructively possessed firearms on December 21, 2020, February 11, 2021, and March 3, 2021, and that each act was relevant, given Brown’s course of conduct of possessing firearms. The court sentenced Brown to 120 months’ imprisonment and three years’ supervised release after applying (1) a multiple-firearms enhancement, (2) a stolen-firearm enhancement, (3) a higher base offense for possession of a high-capacity magazine, (4) a reckless-endangerment upward adjustment, and (5) an “in-connection-with” enhancement.

On appeal, Brown argued that the district court erred in applying the multiple-firearms enhancement and the stolen-firearm enhancement. Brown conceded that the guns possessed in December 2020 and March 2021 were both stolen and that he possessed a gun on February 11, 2021, but he asserted that the evidence was insufficient to demonstrate constructive possession of the March pistol and December rifle. He also maintained that all uncharged instances of gun possession were not relevant conduct. An 18 USC § 922(g)(1) conviction corresponds with US Sentencing Guideline (USSG) § 2K2.1, which, together with USSG §§ 3D1.2(d) and § 1B1.3(a)(2), provide that all acts and omissions that were part of the same course of conduct, common scheme, or plan as the offense of conviction are relevant in determining the guideline range. Section 2K2.1(b)(1)(A) encompasses both constructive and actual firearms possession. Here, sufficient circumstantial evidence supports Brown’s knowledge of and intent to possess the March pistol: he was the reported driver of the car, the pistol was found in plain view near the driver’s seat on the floor of the passenger’s seat, a magazine with 9mm ammunition was in the driver side compartment, and the 9mm ammunition in his pocket was compatible with the 9mm pistol. Further, the record supports a finding of constructive possession of the December rifle because an officer recognized Brown driving the car with the rifle, the car was then parked at his son’s mother’s home, Brown’s girlfriend told officers he had instructed her to retrieve the vehicle with the gun inside, and Brown’s identification cards were found in the car along with ammunition. Brown’s history with guns also supports an inference that he knew about both guns. Further, Brown’s acts of possessing ammunition and guns in cars on December 21, 2020, February 11, 2021, and March 3, 2021, were all similar in nature and occurred regularly over a span of approximately two months, and Brown was a convicted felon on each occasion. Thus, the instances of uncharged conduct in December 2020 and February 2021 were relevant conduct given their similarity, regularity, and temporal proximity, and the district court erred in applying the enhancements.

Brown also argued that the district court erred in applying a higher base offense for possession of a high-capacity magazine. He claimed there is insufficient evidence that he possessed the December rifle or March pistol, so the February gun possession cannot be relevant conduct. The district court applied this enhancement based on the discovery of a loaded 50-round drum magazine compatible with an FMP9 pistol (containing Brown’s DNA) in a car abandoned by Brown on February 11, 2021. For the reasons stated above, sufficient evidence supported the district court’s finding that Brown possessed the March and December guns, and each incident also involved Brown’s possession of ammunition as a convicted felon. Thus, the February 11, 2021, possession of a 50-round drum magazine and compatible gun is relevant conduct and supports the high-capacity magazine enhancement.

Brown further asserted that the district court erred in applying the sentence enhancement under USSG § 3C1.2 for his acts of reckless endangerment in fleeing from law enforcement in December 2020 and February 2021. Brown maintained that a nexus is required between reckless endangerment and charged conduct, and these acts are not relevant conduct because even assuming weapons possession may be relevant conduct, flight is not. The Tenth Circuit did not resolve whether § 3C1.2 requires a nexus between reckless endangerment and the offense of conviction for conduct found relevant under § 1B1.3(a)(1). However, because § 1B1.3 allows the court to broadly consider all acts from the same course of conduct as the charged offense, it held that the § 3C1.2 enhancement may be applied to conduct found relevant under § 1B1.3(a)(2). Accordingly, the district court properly applied the enhancement based on Brown’s actions in leading law enforcement on three separate high-speed chases in December 2020 and February 2021.

Lastly, Brown argued that the district court erred in applying the USSG 2K2.1(b)(6)(B) enhancement for Brown’s possession of a firearm or ammunition in connection with another felony offense. However, the enhancement applies based on the March firearm possession alone in connection with felony possession of a stolen vehicle.

The sentence was affirmed.

Official US Court of Appeals for the Tenth Circuit proceedings can be found at the US Court of Appeals for the Tenth Circuit website.

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