United States v. Navarro

Opinions of the United

2007 Decisions States Court of Appeals

for the Third Circuit

2-14-2007

USA v. Navarro

Precedential or Non-Precedential: Precedential

Docket No. 05-4102

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PRECEDENTIAL

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

No. 05-4102

UNITED STATES OF AMERICA

v.

CHARLES NAVARRO,

Appellant

On Appeal from the United States District Court

for the Eastern District of Pennsylvania

(D.C. No. 04-cr-00189)

District Judge: Honorable R. Barclay Surrick

Argued September 11, 2006

Before: FUENTES, FISHER and BRIGHT,* Circuit Judges.

(Filed: February 14, 2007 )

*

The Honorable Myron H. Bright, United States Circuit

Judge for the Eighth Circuit, sitting by designation.

David L. McColgin (Argued)

Defender Association of Philadelphia

Federal Court Division

Suite 540, The Curtis Center

601 Walnut Street

Philadelphia, PA 19106

Attorney for Appellant

Robert A. Zauzmer (Argued)

Julie M. Hess

Office of United States Attorney

615 Chestnut Street

Philadelphia, PA 19106

Attorneys for Appellee

OPINION OF THE COURT

FISHER, Circuit Judge.

After entering an “open” plea to one count of possession

of a firearm by a convicted felon, and two counts of simple

possession of controlled substances, Charles Navarro was

sentenced to 108 months imprisonment on August 19, 2005.

Navarro appeals his sentence claiming that the District Court

erred by applying an enhancement under the United States

2

Sentencing Guidelines (“Guidelines”) section 2K2.1(b)(5)1 in

calculating the sentence. For the reasons that follow, we will

affirm the District Court’s sentence.

I. Background

On April 15, 2003, a police officer noticed Navarro

driving a Jeep in West Chester, Pennsylvania. Navarro was

wanted on state charges of aggravated assault, and the officer

attempted to effect a stop of Navarro’s Jeep. But, Navarro did

not comply. Instead, a pursuit ensued which ended with

Navarro losing control of and flipping his Jeep. The Jeep came

to a rest on its roof. Navarro then exited the Jeep, fled on foot,

and managed to escape capture.2

1

Section 2K2.1(b)(5) was renumbered in November 2006,

and is now section 2K2.1(b)(6). See U.S. Sentencing Guidelines

Manual § 2K2.1. Because this case is based on the Guidelines

as they existed before November 2006, we use the numbering

that existed prior to the change.

2

In February 2003, an officer effected a traffic stop of

Navarro’s vehicle, intending to cite him for driving without a

valid license. Navarro waited until the officer’s vehicle was

stopped, and then sped away. A few weeks later, an officer

approached Navarro’s Jeep, opened the door, and grabbed

Navarro by the arm. Navarro refused to submit, and began to

drive forward dragging the officer for approximately ten feet.

This latter incident was the basis of the aggravated assault

charge that predicated the most recent traffic pursuit.

3

Navarro left behind some incriminating evidence.

Officers discovered a loaded, semiautomatic handgun on the

roof of the Jeep, above the driver’s seat. The day after the crash,

a local resident provided the police with a jacket that was found

near the scene of the crash. The jacket contained a quantity of

marijuana (weighing 3.9 grams), and several packets of cocaine

(weighing .31 grams).

Navarro was subsequently arrested and, after waiving his

Miranda rights, gave a statement to officers. He admitted that

he had been driving the Jeep during the pursuit and that the

handgun and drugs found at the scene belonged to him. He also

confessed to another crime, previously unknown to the officers.

Navarro informed the police that he had obtained the gun in

2002 through a drug exchange. He had given an unknown

person “three rocks” of crack and had received the gun in return.

According to Navarro, he wanted the gun only for emergencies,

and usually kept it buried in the ground. He had retrieved the

gun the day before the pursuit with the intention of getting rid of

it.

Navarro was initially charged by state authorities with

two counts of possession of a controlled substance, but these

charges were subsequently dismissed in favor of federal

prosecution. A federal indictment, filed in the District Court for

the Eastern District of Pennsylvania, charged Navarro with one

count of possession of a firearm by a convicted felon, see 18

U.S.C. § 922(g), and two counts of simple possession of

controlled substances (cocaine and marijuana), see 21 U.S.C.

§ 844(a). He was not, however, charged with possession of

crack or possession with intent to distribute.

4

Navarro entered an “open” plea of guilty to the

indictment, and therefore there was no plea agreement. He

admitted during a plea colloquy that he had possessed both the

firearm and the controlled substances found at the scene of the

crash. He also acknowledged that he had given a statement to

officers following his arrest, but he denied telling them how he

had obtained the gun or admitting that he had engaged in a drug

transaction. The District Court accepted the plea with this

qualification.

A pre-sentence report recommended that Navarro’s

sentencing range be enhanced by four levels under section

2K2.1(b)(5) of the Guidelines, because the firearm had been

possessed “in connection with another felony offense.” See U.S.

Sentencing Guidelines Manual § 2K2.1(b)(5). The predicate

offense for the enhancement, according to the report, was simple

possession of cocaine and marijuana. Defense counsel objected,

arguing that the enhancement could not apply because the

predicate offense, simple possession of a controlled substance,

see 21 U.S.C. § 844(a), is not a felony. The Government

conceded this point.3 However, the Government asserted that

3

It appears that the Government’s concession of this point

was unnecessary, and that the pre-sentence report’s conclusion

that the simple possession charges constituted “another felony

offense” was correct. Simple possession is not a felony under

21 U.S.C. § 844(a) when there are no prior drug convictions

because it is not punishable by more than one year in prison.

See U.S. Sentencing Guidelines § 2K2.1 cmt. n.4. However, if

a defendant has prior drug convictions, state or federal, simple

possession is a felony because the defendant can be sentenced

5

the enhancement should nevertheless apply based on the felony

offense of drug distribution, see 21 U.S.C. § 841, to which

Navarro had confessed in his statement to the police.

A sentencing hearing was held in August 2005. The

officer who had taken Navarro’s statement at the police station

testified that Navarro admitted that the handgun was obtained

through a drug transaction. A recording and transcript of the

statement introduced into the record confirmed the officer’s

recollection. Defense counsel argued that the evidence was

insufficient to prove that the drug transaction had occurred.

Additionally, defense counsel argued, notwithstanding the

evidentiary deficiency, the offense could not support the

enhancement under section 2K2.1(b)(5) because the firearm had

been obtained as a direct result of the drug transaction.

Essentially, the argument was that the offense was not

sufficiently distinct from the firearms possession crime to

qualify as “another felony offense” for purposes of section

2K2.1(b)(5).

The District Court overruled the objection. It concluded

that Navarro’s statement, made after he had been given his

to more than one year in prison. See 21 U.S.C. § 844(a).

Navarro was convicted under Pennsylvania law of possession of

a controlled substance with intent to deliver in 1996. Therefore,

Navarro had a prior drug conviction and could be sentenced to

more than one year in jail for the 2004 charges of simple

possession of marijuana and cocaine. See 21 U.S.C. § 844(a);

U.S. Sentencing Guidelines § 2K2.1 cmt. 4. Regardless,

because the government conceded this argument we must

analyze the case as it stands before us.

6

Miranda rights, was sufficient to prove that the drug transaction

had in fact occurred.4 Without directly addressing defense

counsel’s argument that the drug transaction could not qualify

as “another felony offense,” the District Court held that section

2K2.1(b)(5) should be applied.

The final Guidelines range, with the enhancement and

based on an offense level of twenty-three and a criminal history

category of VI, was 92 to 115 months.5 The District Court, after

hearing argument on the remaining factors under 18 U.S.C.

4

Specifically, the District Court stated:

The statement given by [Navarro] to the

authorities which has been offered into evidence,

indicates that [Navarro], in fact, purchased this

gun in a drug transaction. He gave someone

crack cocaine in return for the gun. That

statement was given after [Navarro] was

Mirandized. There was no reason to believe that

he wasn’t being truthful with the officers, and I

am satisfied that [Navarro] under the

circumstances possessed a firearm in connection

with this drug transaction and, therefore, the four

level enhancement is appropriate.

5

Navarro contends that without the four-level

enhancement the Guideline range would have been 63 to 78

months based on a total offense level of nineteen and a criminal

history category of VI.

7

§ 3553(a), imposed a term of imprisonment of 108 months.6

Navarro timely filed this appeal.

II. Discussion

The sole question raised on appeal is the propriety of the

four-level enhancement under section 2K2.1(b)(5).7 We have

jurisdiction pursuant to 18 U.S.C. § 3742(a) and 28 U.S.C.

§ 1291. See United States v. Batista De La Cruz, 460 F.3d 466,

468 (3d Cir. 2006). We review de novo a district court’s

interpretation of the Guidelines. Id. (citing United States v.

Urban, 140 F.3d 229, 234 (3d Cir. 1998)). Our review of a

district court’s finding of facts is for clear error. Batista De La

Cruz, 460 F.3d at 468 (citing United States v. Lennon, 372 F.2d

535, 538 (3d Cir. 2004)).

It is relatively rare for a firearms offense to be

unaccompanied by other illegal conduct. Possession of a gun is

often a practical prerequisite for the sale of controlled

substances or commission of other violent acts. Many

defendants charged with unlawful possession of a firearm are

6

The District Court sentenced Navarro to 108 months

imprisonment for the violation of 18 U.S.C. § 922(g)(1). On the

two counts in violation of 21 U.S.C. § 844(a), the District Court

sentenced Navarro to 12 months of imprisonment for each of the

violations to run concurrently with the 108 month sentence.

Additionally, the District Court ordered three years of

supervised release and a $300 special assessment.

7

Navarro did not appeal the sufficiency of the evidence

issue.

8

also guilty of, although sometimes not charged with, separate

state or federal crimes.8 See, e.g., United States v. Loney, 219

F.3d 281, 285-86 (3d Cir. 2000); cf. United States v. Regans,

125 F.3d 685, 686 (8th Cir. 1997) (“[A] firearm is a ‘tool of the

trade’ for drug dealers . . . .”).

To ensure that the final sentence reflects the defendant’s

culpability for these other offenses, the Guidelines provide for

an increase in the base sentencing range when the firearm is

possessed in connection with “another felony offense.” See

Loney, 219 F.3d at 287-88; see also United States v. McDonald,

165 F.3d 1032, 1037 (6th Cir. 1999) (explaining that section

2K2.1(b)(5) “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”) (emphasis omitted).

Section 2K2.1(b)(5) of the Guidelines states, in pertinent part,

as follows:

8

See, e.g., Bureau of Justice Statistics, U.S. Dep’t of

Justice, Federal Firearms Offenders, 1992-1998 (2000),

available at http://www.ojp.usdoj.gov/bjs/pub/pdf/ffo98.pdf;

Bureau of Justice Statistics, U.S. Dep’t of Justice,

Firearm Use by Offenders (2001), available at

http://www.ojp.usdoj.gov/bjs/pub/pdf/fuo.pdf; Bureau of Justice

Statistics, U.S. Dep’t of Justice, Guns and Crime: Handgun

Victimization, Firearm Self-Defense, and Firearm Theft (1994),

available at http://www.ojp.usdoj.gov/bjs/pub/ascii/hvfsdaft.txt;

Bureau of Justice Statistics, U.S. Dep’t of Justice, Firearm

Injury and Death from Crime, 1993-97 (2000), available at

http://www.ojp.usdoj.gov/bjs/pub/pdf/fidc9397.pdf.

9

If the defendant used or possessed any firearm or

ammunition in connection with another felony

offense . . . increase by 4 levels.

U.S. Sentencing Guidelines Manual § 2K2.1(b)(5). The

commentary to the section explains that “[a]s used in

subsection[] (b)(5) . . . ‘another felony offense’ . . . refer[s] to

offenses other than explosives or firearms possession or

trafficking offenses.” Id. § 2K2.1 cmt. n.15. In other words, the

enhancement should apply only when the predicate offense is

distinct from the firearms possession crime of which the

defendant was convicted.

The enhancement is most often applied in circumstances

in which the firearm was employed during a drug transaction or

violent crime, either to protect the defendant or to threaten or

harm a victim. See, e.g., Loney, 219 F.3d at 287. This case is

atypical in this respect. The firearm here was neither used nor

intended as a means of intimidation or protection, but rather was

proffered as an item of trade. It was given to Navarro in

exchange for the drugs, but it did not otherwise facilitate the

drug distribution offense.

Navarro seizes on this distinction. He argues that,

because possession of the firearm constituted an integral aspect

of the drug distribution offense, that offense must be considered

part of the underlying firearms possession crime – not “another

felony offense” – and cannot support the enhancement under

section 2K2.1(b)(5). He also claims that, even if the drug

distribution qualifies as “another felony offense,” the firearm

was not possessed “in connection with” the drug distribution

because it was not brandished or otherwise used to facilitate the

offense.

10

A. “Another Felony Offense”

The primary argument Navarro raises against the

enhancement is that the drug distribution in this case does not

qualify as “another felony offense,” separate from the firearms

possession crime, because possession of the firearm formed an

integral aspect of that offense. We have addressed similar

arguments in two previous cases: United States v. Fenton, 309

F.3d 825 (3d Cir. 2002), and United States v. Lloyd, 361 F.3d

197 (3d Cir. 2004). The reason that these cases were resolved

differently – Fenton against application of the enhancement and

Lloyd in favor of it – guides the resolution of this case.

1. Fenton

The predicate offense in Fenton was burglary. 309 F.3d

at 826-27. The defendant had broken into a sporting goods store

and stolen several firearms, and he was later convicted of

unlawful possession of those firearms. Id. In calculating the

recommended sentencing range, the district court found that the

burglary constituted “another felony offense” and that the

firearms had been possessed “in connection with” that offense.

Id. It therefore applied, over an objection by defense counsel,

the enhancement under section 2K2.1(b)(5). Id.

We reversed the district court’s judgment of sentence.

We held that the phrase “another felony offense,” as used in

section 2K2.1, requires a “distinction in time or conduct”

between the predicate offense and the firearms possession crime.

Id. at 827-28. Specifically, possession of the firearm cannot

constitute an integral aspect of the predicate offense; if it does,

then the two offenses must be considered one and the same, and

the predicate offense cannot be deemed “another felony offense”

11

for purposes of section 2K2.1(b)(5). Id. Possession of the

firearm was an integral aspect of the predicate offense because

Fenton possessed the guns because he had stolen them. Id. at

826-27. We summarized the holding in a single sentence: “[A]

state law crime, identical and coterminous with the federal

crime, cannot be considered as ‘another felony offense’ within

the meaning of the Sentencing Guidelines.” Id. at 826.

Of particular concern to this Court was the possibility of

double-counting. The theft of the firearms in Fenton had

already been used to establish the base sentencing range for the

substantive offense (unlawful possession of a firearm) and to

support an enhancement for possession of a “stolen” firearm.

Id. at 827-28. To use the same conduct to support yet another

enhancement, for possession of the firearm in connection with

“another felony offense,” seemed fundamentally unfair. See

also id. at 828 (“[W]e are troubled by the fact that almost every

federal weapons offense could be prosecuted simultaneously

under state law.”).

We noted that this interpretation accorded with the plain

language of the provision, the presumption of lenity in the

interpretation of criminal statutes, and the decisions of the

Courts of Appeals for the Sixth and Seventh Circuits. Id. at

827-28; see United States v. Sanders, 162 F.3d 396, 399-400

(6th Cir. 1998) (concluding that enhancement for stealing

firearms during burglary of pawn shop was improper because

there was no separation of time or conduct); United States v.

Szakacs, 212 F.3d 344, 351 (7th Cir. 2000) (holding that

conspiracy to steal firearms was not sufficiently distinct from

firearms possession to be considered “another felony offense”

for purposes of section 2K2.1(b)(5)). We rejected contrary

12

decisions from the Courts of Appeals for the Fifth and Eighth

Circuits. Fenton, 309 at 827-28; see United States v. Luna, 165

F.3d 316, 323-24 (5th Cir. 1999) (holding that enhancement

could apply when firearm was obtained as a result of burglary);

United States v. Kenney, 283 F.3d 934, 938-39 (8th Cir. 2002)

(concluding that enhancement could apply when firearm was

obtained as result of theft). Additionally, the majority in Fenton

rejected the dissent’s argument that the majority’s concerns over

double-counting were unfounded because possession of a

firearm – even if it forms an integral aspect of the predicate

offense – always has the independent potential to facilitate the

predicate offense, warranting an additional enhancement in the

sentence, see Fenton, 309 F.3d at 282-30 (Roth, J., dissenting).

See id. at 827-28.

2. Lloyd

Fenton was revisited and revised in Lloyd. The

defendant in Lloyd admitted to having placed a bomb under the

car of an intended victim and pleaded guilty to unlawful

possession of a destructive device in violation of 26 U.S.C.

§ 5861(d), and conspiracy to violate that provision in violation

of 18 U.S.C. § 371. 361 F.3d at 199. The district court found

that the defendant had possessed the firearm9 in connection with

the felony offense of criminal mischief, see 18 Pa. Cons. Stat.

§ 3304, and applied the enhancement under section 2K2.1(b)(5).

Lloyd, 361 F.3d at 199-200. It overruled the defendant’s

9

A destructive device is considered a “firearm” under

federal law. See, e.g., 18 U.S.C. § 921(a)(3), cited in U.S.

Sentencing Guidelines Manual § 2K2.1 cmt. n.1; see also 26

U.S.C. § 5845(a).

13

objection that, under Fenton, the enhancement could not apply

because possession of the firearm was an integral part of the

offense. Id.

This Court affirmed. We implicitly acknowledged that

a broad reading of Fenton might support the defendant’s view:

possession of the firearm constituted an integral part of the

criminal mischief and therefore the latter offense should

arguably not be considered “another felony offense” under the

reasoning of Fenton. Id. at 200-02. However, the Court in

Lloyd rejected this view in favor of a new, broader analysis of

section 2K2.1(b)(5).

We held that a predicate offense can be considered

“another felony offense” under section 2K2.1(b)(5) if it satisfies

the test announced in Blockburger v. United States, 284 U.S.

299 (1932). Lloyd, 361 F.3d at 200-01. Under the Blockburger

test, punishment may be imposed under two criminal statutes

based on the same conduct if each of the two crimes requires

proof of an element that the other does not. 284 U.S. at 304.

The Court in Lloyd imported this analysis to section

2K2.1(b)(5), stating that an offense can be deemed “another

felony offense” only if that offense and the firearms possession

crime each have one element that the other does not. 361 F.3d

at 200-01.

This definition, if taken alone, conflicts with Fenton.

The offense in Fenton was burglary, and burglary and firearms

possession each require proof of an element that the other does

not. Compare 18 Pa. Cons. Stat. § 3502(a) (requiring proof of

entry in a building, but not possession of a firearm, to establish

burglary), with 18 U.S.C. § 922(I) (requiring proof of possession

of a firearm, but not entry into a building, to establish unlawful

14

possession of a stolen firearm). Under the pure Blockburger

test, and contrary to Fenton, burglary would be considered

“another felony offense” and would support an enhancement

under section 2K2.1(b)(5), no matter the particular

circumstances of the offense. See Lloyd, 361 F.3d at 200-02.

The Court in Lloyd reconciled this potential conflict by

interpreting Fenton as imposing an additional, factual layer of

analysis over the Blockburger test. Id. It found support for this

interpretation in the application notes to section 2K2.1, which

excepts from the definition of “another felony offense” those

crimes that constitute “explosives or firearms possession or

trafficking offenses.” U.S. Sentencing Guidelines Manual

§ 2K2.1 cmt. n.15. This exception, the Court held, reflected an

intent to exclude from the definition of “another felony offense”

those crimes that are so closely linked to firearms possession

that they may themselves be deemed “firearms possession

offenses.” Lloyd, 361 F.3d at 200-01. If mere possession of the

firearm was an integral aspect of the predicate offense, then that

offense must be deemed the functional equivalent of a “firearms

possession offense,” meaning that the enhancement cannot

apply. Id.

The decision in Fenton reflected this understanding. The

defendant in Fenton had committed burglary by entering the

sporting goods store with the intent to commit a crime therein.

The crime at issue, the theft of the firearms, involved only the

possession of the firearms; they were not brandished or

otherwise used to facilitate the burglary. Possession of the

firearms served no purpose other than satisfaction of an essential

legal element of the offense. Under these circumstances,

burglary was properly considered a “firearms possession

15

offense,” precluding application of the enhancement. Id.

(discussing Fenton).

However, the Court in Lloyd stressed that “the

characterization of theft or burglary of a firearm as a ‘firearms

possession offense’ without a doubt marks the extreme outer

limits of that category.” It noted that “the fact patterns of cases

such as Sanders, Szakacs, and Fenton are practically sui generis

in terms of the inapplicability of [section] 2K2.1(b)(5).” Id. at

204 n.5.

The predicate offense in Lloyd, criminal mischief, easily

passed muster under the refined standard. It satisfied

Blockburger because the two offenses each require an element

that the other does not: criminal mischief requires proof of

danger to third parties but not possession of a firearm whereas

firearms possession requires proof of possession of a firearm but

not danger to third parties. Id. at 204-05. It also satisfied

Fenton because, as a factual matter, “the manner in which [the

defendant] used the bomb extended far beyond simple

possession.” Id. The defendant’s offense had involved not

merely simple possession of the bomb but affirmative use of the

device in an attempt to destroy property. It therefore could not

be considered the functional equivalent of a “firearms

possession offense.” Id.

The Court cited with approval the decisions from the

Sixth and Seventh Circuits in United States v. King, 341 F.3d

503 (6th Cir. 2003), and United States v. Purifoy, 326 F.3d 879

(7th Cir. 2003). Lloyd, 361 F.3d at 203-05; see King, 341 F.3d

at 506-07 (holding that offense of assault, when committed with

firearm, could be considered “another felony offense” for

purposes of section 2K2.1(b)(5)); Purifoy, 326 F.3d at 880-81

16

(same). In these cases, as in Lloyd, the firearm was not merely

possessed, but was actually used by the defendant to threaten or

attempt to harm the victim. We concluded that “[t]he criminal

mischief alleged here is more similar to the crime of assault (as

in King and Purifoy) than it is to the crimes of burglary or theft

that result in possession of firearms (as in Sanders, Szakacs, and

Fenton).”10 Id.

3. The Standard of Lloyd and Fenton

From Lloyd and Fenton a two-part standard may be

distilled for determining whether an offense committed in

connection with possession of a firearm may support an

enhancement under section 2K2.1(b)(5). The first part of the

test, from Blockburger, is legal in nature and asks whether the

predicate offense and the firearms possession crime each have

an element that is not shared by the other. Lloyd, 361 F.3d at

10

In Lloyd we rejected the government’s invitation to

adopt a broader reading of section 2K2.1(b)(5), under which a

crime would be considered “another felony offense” whenever

the completion of that crime is temporally separate from

possession of the firearm. 361 F.3d at 203. This approach

would preclude application of the enhancement only in those

cases in which possession of the firearm occurred at the same

time as commission of the other offense. Id. Adoption of this

standard would arguably contravene Fenton, since the offense

of burglary was completed when the defendant entered the

building with the intent to commit a felony (whether or not he

actually committed that felony) and therefore the possession of

the firearms was temporally separate from that crime. Id. at 203,

205.

17

204-05; see also Blockburger, 284 U.S. at 304. The second part

of the test, from Fenton, is essentially factual in nature and asks

whether more than mere possession of the firearm –

brandishment or other use – was an integral aspect of the

predicate offense.11 Lloyd, 361 F.3d at 204-05; see also Fenton,

309 F.3d at 827-28. If these two questions are answered in the

affirmative, then the four-level enhancement under section

2K2.1(b)(5) should apply. See id.

Judged by this standard, it is clear that the District Court

properly applied the enhancement under section 2K2.1(b)(5).

The predicate offense in this case was drug distribution under 21

U.S.C. § 841(a), a “felony offense” under the Guidelines. See

21 U.S.C. § 841(b)(1)(C); U.S. Sentencing Guidelines § 2K2.1

cmt. n.4.

The offenses of drug distribution and firearms possession

satisfy the first part of the Lloyd standard, the Blockburger test.

Dispensation of a controlled substance is an element of drug

distribution but not of firearms possession; possession of a

firearm is an element of firearms possession but not of drug

11

Although not directly relevant to resolution of this

case, it should be noted that the application notes of section

2K2.1 of the Guidelines have been amended, and the

amendments became effective in November 2006. See U.S.

Sentencing Guidelines Manual § 2K2.1 cmt. n.14 (providing for

broader interpretation of “another felony offense,” covering

even those offenses that involve only simple possession of a

firearm). We recognize that the amendments call into question

our decision in Fenton for defendants who are sentenced under

the current Guidelines and application notes.

18

distribution. Compare 21 U.S.C. § 841(a) with 18 U.S.C.

§ 922(g). The two offenses each have an element not shared by

the other and therefore should be viewed as separate offenses for

purposes of section 2K2.1(b)(5).

The offenses also satisfy the second part of the Lloyd

standard, the Fenton test. The offense of drug distribution

involves only the dispensation of a controlled substance; it does

not require an exchange of something of value. See, e.g., United

States v. Coady, 809 F.2d 119, 124 (1st Cir. 1987). Navarro’s

possession of the firearm was therefore not an integral aspect of

the offense. Because the offense did not involve mere

possession of the firearm, it cannot be deemed the functional

equivalent of a “firearms possession offense.” The enhancement

under section 2K2.1(b)(5) can apply.

Notwithstanding the relative simplicity of this analysis,

the parties have engaged in an extensive debate over the

meaning of Lloyd and its effect on Fenton. These discussions

are almost wholly unnecessary because, even under a broad

reading of Fenton, the enhancement in this case would be

applicable.

The problem can be traced to a minor misunderstanding

of what constituted the “other” felony offense in this case. The

“other” offense in the case is described by the parties in various

ways including drug trafficking, drug dealing, trading drugs for

a gun, and drug distribution. In reality, the offense is drug

“distribution.” See 21 U.S.C. § 841. “Distribution” involves

only dispensation, without the necessity of something being

provided in return. See id. at 508; see also, e.g., Coady, 809

F.2d at 124. Because receipt of something of value is not an

essential element of drug distribution, Navarro’s possession of

19

the firearm was not an integral aspect of the offense.12 The

offense therefore cannot be considered the functional equivalent

of a “firearms possession offense.”

B. “In Connection With”

Having determined that drug distribution qualifies as

“another felony offense” for purposes of section 2K2.1(b)(5),

the only remaining question is whether the firearm was

possessed “in connection with” that offense. This is easily

answered in the affirmative.

The Supreme Court held, in Smith v. United States, 508

U.S. 223 (1993), that a defendant who trades a firearm for drugs

is properly found to have “use[d]” the firearm “during and in

relation to” the offense of drug distribution, warranting

application of the mandatory minimum sentence of 18 U.S.C.

§ 924(c)(1). Smith, 508 U.S. at 241. The Court held that this

provision requires, at a minimum, that the presence of the

firearm “facilitat[es], or ha[s] the potential of facilitating,” the

offense. Smith, 508 U.S. at 238. The standard is clearly met

when the defendant trades a firearm for drugs, the Court

concluded, because without the firearm “the deal would not [be]

possible.” Id.; see also United States v. Sumler, 294 F.3d 579,

580 (3d Cir. 2002); United States v. Cotto, 456 F.3d 25, 28 (1st

Cir. 2006).

We adopted the same standard for determining whether

a firearm is possessed “in connection with” another felony

12

We recognize that if an element of the felony offense of

drug distribution required the receipt of something of value that

under Fenton this would constitute mere possession.

20

offense for purposes of section 2K2.1 of the Guidelines. In

United States v. Loney, we held that the enhancement should

apply when possession of the firearm “facilitat[es], or ha[s] the

potential of facilitating,” the other offense. See id. at 287

(quoting Smith, 508 U.S. at 238). The enhancement was

properly applied in Loney because the defendant had possessed

a loaded firearm for protection during a drug transaction,

demonstrating that the presence of the firearm facilitated the

deal. Id. at 288.

Under this standard, there can be no doubt that Navarro’s

possession of the firearm during the drug transaction facilitated

the offense. Navarro dispensed the drugs only so that he could

secure the firearm in return; in other words, the drug distribution

would not have occurred if Navarro had not possessed the

firearm. The reasoning of Smith, adopted in Loney, is directly

applicable here: the possession of a firearm facilitates a drug

transaction when that firearm serves as an item of trade. See

Smith, 508 U.S. at 238. The enhancement under section

2K2.1(b)(5) is thus applicable. See Loney, 219 F.3d at 287; see

also United States v. Garnett, 243 F.3d 824, 829 (4th Cir. 2001)

(holding that “trading a firearm for drugs” can support an

enhancement under section 2K2.1) (citation omitted).

III. Conclusion

The enhancement of section 2K2.1(b)(5) is properly

applied when the defendant obtains a prohibited firearm through

a drug trade. In such cases, possession of the firearm facilitates

the offense of drug distribution but does not constitute an

integral aspect of that offense. The District Court in this case

properly found that, by exchanging drugs for the firearm, the

defendant had possessed the firearm “in connection with another

21

felony offense,” warranting application of the enhancement

under section 2K2.1(b)(5). For the foregoing reasons, we will

affirm the District Court’s judgment of sentence.

BRIGHT, Circuit Judge, dissenting.

I respectfully dissent. In my judgment, this case rests on

reading a guideline rule, U.S.S.G. § 2K2.1(b)(5), and its

exception as set forth in Note 15, and determining whether

Navarro’s drugs for gun exchange falls within the exception.

Note 15 explains that “another felony offense” in U.S.S.G.

§ 2K2.1(b)(5) “refer[s] to offenses other than explosives or

firearms possession or trafficking offenses.” U.S.S.G. § 2K2.1,

cmt. n.15 (2004); see United States v. Lloyd, 361 F.3d 197, 201

(3d Cir. 2004) (Note 15 (then Note 18) categorically excludes

firearm possession and trafficking offenses from definition of

another felony offense). I agree with Navarro’s contention in

this case that his bartering drugs for a gun constitutes a means

of possessing a firearm such that the enhancement cannot apply

under Note 15.

In United States v. Fenton, 309 F.3d 825, 828 (3d Cir.

2002), this court refused to apply the same enhancement when

the defendant acquired the firearms he was convicted of

possessing by stealing them. Then Judge Alito explained in

Lloyd that Fenton stands “for the proposition that, where a

defendant is convicted for possession of firearms resulting from

a theft of those same firearms, that theft is effectively a ‘firearms

possession . . . offense’ . . . since that crime necessarily involves

a taking and carrying away of the firearms involved.” Lloyd,

361 F.3d at 202; see also United States v. Szakacs, 212 F.3d

22

344, 350 (7th Cir. 1999) (declining to apply enhancement to

burglary when items stolen are firearms); United States v.

Sanders, 162 F.3d 396, 399 (6th Cir. 1998) (same). Just as the

defendant in Fenton stole the firearms he was convicted of

possessing, Navarro purchased with drugs the firearm he was

convicted of possessing. The illegal means by which both men

came into possession of the firearms cannot be separated from

the possession itself; both crimes necessarily involve possession

and taking and carrying away of the gun.13 In light of such

precedent, in my view, it is incorrect for the majority to hold

that buying a gun through illegal means justified the

enhancement, when, as in Fenton, stealing a gun did not.

Application of the exception in Note 15 to the present

case is also consistent with this court’s decision in Lloyd. In that

case, the defendant placed a bomb under a car and ignited it

(without causing an explosion because of a malfunction). Lloyd,

361 F.3d at 199. The court determined that possession of the

homemade bomb warranted enhancement under § 2K2.1(b)(5).

Id. at 205. Although the defendant in that case possessed the

explosive device while he placed it under a car and ignited it, it

was not, as here and as in Fenton, the means through which he

came into possession of the bomb. See Lloyd, 361 F.3d at 199.

Here, the majority stresses that the elements of the

offense of drug “distribution” does not require an exchange of

13

As explained in Szakacs, although neither of these

crimes in generic form necessarily include possession of a

firearm, the crimes as they occurred in these cases necessarily

included the possession or trafficking of a firearm. See 212 F.3d

at 350.

23

something of value, rather than focusing on the facts as they

occurred in this case. In this case, firearm possession was

integral to Navarro’s drugs for guns exchange – the exchange

was the means through which he came into possession of the

gun. There is no indication that Navarro brandished the gun,

threatened anyone with it, or otherwise engaged in any behavior

beyond mere possession.

For these reasons, I respectfully dissent and would

reverse the District Court’s application of the enhancement

under U.S.S.G. § 2K2.1(b)(5).

24