AMD 691 Vitiates Precedent that USSG §2K2.1(b)(6) Does Not Apply When the Predicate is Burglary of the Firearms that are the Subject of the Conviction

In United States v. Keller, Nos. 11-1172-1173 (3d. Cir. December 14, 2011), the Third Circuit vacated the sentence in this burglary of a gun shop case and remanded to the District Court to recalculate the guidelines range by applying the four-level enhancement in USSG §2K2.1(b)(6) for use or possession of any firearm or ammunition in connection with "another felony offense".

Keller pled guilty to conspiracy against the United States, stealing firearms from a federally licensed firearms dealer and possession of unregistered firearms, in violation of 18 U.S.C. §§ 371, 922(u), and 26 U.S.C. § 5861(d). Although the Probation Office included the four-level enhancement in Keller’s guidelines calculations, the District Court found that the enhancement did not apply. The Government then appealed.

In ruling in favor of Keller, the District Court followed existing Third Circuit precedent in United States v. Fenton, 309 F.3d 825 (3d Cir. 2002), United States v. Lloyd, 361 F.3d 197 (3d Cir. 2004) and United States v. Navarro, 476 F.3d 188 (3d Cir. 2007).

However, in 2006, the Sentencing Commission proposed an amendment to USSG §2K2.1 in order to resolve a Circuit conflict (Amendment 691). This amendment removed Application Note 15, which said that "another felony offense" refers to offenses other than explosives or firearms possession or trafficking offense, and inserted a new Application Note 14 which said that the enhancement applies if the firearm or ammunition facilitated or had the potential of facilitating "another felony offense" or another offense. It also indicated that the enhancement applies in a case in which 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, and in the case of a drug trafficking offense, in which a firearm is found in close proximity to drugs, drug manufacturing materials, or drug paraphernalia. Amendment 691 noted that the enhancement is warranted because the presence of the firearm has the potential of facilitating "another felony offense" or another offense. The Third Circuit held that it was bound by this commentary, as provided in United States v. Stinson, 508 U.S. 36 (1993).

Despite that fact that the Circuit held in Fenton that the offense of burglary to steal firearms could not serve as the predicate for a USSG §2K2.1(b)(6) enhancement, the Commission sided with those courts of appeal that had held to the contrary. Therefore, the rule stated in Fenton and reaffirmed in Lloyd and Navarro is no longer valid to the extent it was applied to the burglary and drug trafficking offenses referenced in Application Note 14.

Finally, the Court determined that Amendment 691 is not plainly erroneous or inconsistent with USSG §2K2.1(b)(6), as provided in Stinson, 508 U.S. at 47.