Sentencing Guidelines – Enhancement

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7^th Circuit Court of Appeals

Case Name: United States of America v. Michael Price

Case No.: 20-2490

Officials: EASTERBROOK, ROVNER, and WOOD, Circuit Judges.

Focus: Sentencing Guidelines – Enhancement

Believing that Carissa Sammons had stolen some of his girlfriend’s jewelry, Michael Price called the house in Indianapolis where Sammons was staying and announced that he was coming to get the jewelry back—by force, if necessary. When Price tried to gain entrance, Brian Butler closed the front door. Price fired a revolver several times through the door, hitting Edwin Smith in the leg. Price dropped the revolver and fled. When police caught up with his truck, they found a Taurus pistol. Price has pleaded guilty to the crime of possessing a gun, which his felony record made unlawful. 18 U.S.C. §922(g)(1). Although the indictment does not identify the gun or guns that Price unlawfully possessed, the factual basis proffered in support of the plea identifies possessing the Taurus pistol as the crime of conviction. The court sentenced Price to 110 months in prison.

The presentence report recommended that the judge add four offense levels under U.S.S.G. §2K2.1(b)(6)(B), which applies when the defendant “used or possessed any firearm or ammunition in connection with another felony offense”. The PSR observed that shooting into an occupied house amounts to the state offense of criminal recklessness, Ind. Code §35-42- 2-2(b)(1)(A), if not something more serious. Unfortunately, the report did not quote §2K2.1(b)(6)(B) accurately. Instead it paraphrased the rule as one that adds four levels if “[t]he defendant possessed the firearm while committing another felony offense.”

At sentencing the judge quoted from that paraphrase rather than from §2K2.1(b)(6)(B). Yet the two concepts differ. An enhancement for a felony committed “while possessing” a firearm would apply if Price had left the Taurus in a bank vault and arrived at the house with a baseball bat or a knife. The crime of possession continues as long as a gun is under a felon’s control; it need not be in his hand (or truck). But under §2K2.1(b)(6)(B) the enhancement is appropriate only if the firearm was “used or possessed … in connection with another felony offense”—in other words, only if the firearm was involved in, or contributed to, the other felony. See, e.g., United States v. LePage, 477 F.3d 485, 489 (7th Cir. 2007).

The judge did mention that, by possessing the revolver long enough to shoot it, Price independently violated §922(g)(1). And the Assistant United States Attorney observed that the indictment is broad enough to encompass the revolver—which three witnesses say Price brought to the door, though Price says he obtained during a struggle with Butler. Still, the crime of conviction entailed the pistol but not the revolver, given the factual basis admitted in the plea colloquy. The district court’s failure to make an essential finding means that we must remand. The United States has not argued that any error was harmless.

The judgment is vacated, and the case is remanded for proceedings consistent with this opinion.

Vacated and cause remanded

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Derek A Hawkins is Corporate Counsel, at Salesforce.