United States of America v.  ROBERT WILHELM KAISER, a/k/a Robert Wilhelm Russell

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
 UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v. No. 00-4392 
ROBERT WILHELM KAISER, a/k/a
Robert Wilhelm Russell,
Defendant-Appellant. 
Appeal from the United States District Court
for the Middle District of North Carolina, at Durham.
Frank W. Bullock, Jr., District Judge.
(CR-99-347)
Submitted: December 15, 2000
Decided: January 12, 2001
Before LUTTIG, MOTZ, and TRAXLER, Circuit Judges.
Affirmed as modified by unpublished per curiam opinion.
COUNSEL
Louis C. Allen, III, Federal Public Defender, John A. Dusenbury, Jr.,
Assistant Federal Public Defender, Greensboro, North Carolina, for
Appellant. Walter C. Holton, Jr., United States Attorney, L. Patrick
Auld, Assistant United States Attorney, Greensboro, North Carolina,
for Appellee.

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Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).
OPINION
PER CURIAM:
Robert Wilhelm Kaiser appeals his convictions and sentences for
conspiracy to make, utter, and possess counterfeit securities and to
produce false identification documents; impersonation of a federal
official; and possession of a firearm by an illegal alien. For the rea-
sons discussed below, we affirm as modified.
Kaiser raises four sentencing issues on appeal: (1) the district court
erred in imposing an enhancement for possession of a firearm in con-
nection with another felony offense pursuant to U.S. Sentencing
Guidelines Manual ("USSG") § 2K2.1(b)(5) (1998); (2) the district
court erred in imposing an enhancement for possession of multiple
firearms pursuant to USSG § 2K2.1(b)(1); (3) the district court erred
in imposing an enhancement for obstruction of justice pursuant to
USSG § 3C1.1; and (4) the district court erred in sentencing him to
fifty-five months of imprisonment for impersonating a federal offi-
cial.
First, we find that the district court correctly imposed a four level
increase pursuant to USSG § 2K2.1(b)(5) to Kaiser’s offense level on
Count Three, possession of a firearm by an illegal alien. The court
imposed the enhancement after finding that he possessed the firearm
in connection with his felony offense of impersonating a federal offi-
cial. Although the guidelines do not define the phrase "in connection
with," we have adopted the view that the phrase is best interpreted by
analogy to the definition of the phrase "in relation to" used in 18
U.S.C.A. § 924(c) (West 2000). United States v. Nale, 101 F.3d 1000,
1003-04 (4th Cir. 1996). Therefore, in order to show that the firearm
was possessed "in connection with" another felony offense, the Gov-
ernment was required to prove by a preponderance of the evidence
that Kaiser possessed the weapon and that it facilitated, or had the
potential to facilitate, the other offense. Id.
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We find that the district court reasonably concluded that disclosing
the presence of the firearm while impersonating a government official
bolstered Kaiser’s contention that he was operating undercover and
was a legitimate federal officer. Accordingly, Kaiser’s possession of
the firearm facilitated his impersonation offense and the district court
properly imposed an enhancement pursuant to USSG § 2K2.1(b)(5).
Second, we find that the district court properly included all unlaw-
fully possessed firearms in calculating Kaiser’s enhancement pursuant
to USSG § 2K2.1(b)(1). Because Kaiser possessed at least five fire-
arms within the same time span that were a part of the same course
of conduct, namely the possession of a firearm by an illegal alien, we
find that the district court correctly applied an upward adjustment pur-
suant to USSG § 2K2.1(b)(1)(B).
Third, we note that the district court did not specifically determine
at sentencing that Kaiser’s actions in providing false information to
law enforcement officers amounted to obstruction of justice, much
less that they amounted to a willful obstruction. Instead, the court
noted that the guideline range would remain the same regardless of
whether the enhancement applied. We decline to reach the issue of
whether the district court properly imposed an enhancement for
obstruction of justice because under the grouping rules of USSG
§§ 3D1.1-3D1.4, Kaiser’s sentence was based entirely upon the
offense level for Count Three, possession of a firearm by an illegal
alien. Kaiser therefore would have received an offense level of
twenty-three, regardless of whether the court imposed a two level
increase in the offense level for his crime of conspiracy. Any resulting
error is therefore harmless.
Finally, we find that the district court erred in imposing a fifty-five
month concurrent sentence for impersonating a federal official in vio-
lation of 18 U.S.C. § 912 (1994), which provides for a three-year stat-
utory maximum sentence. Because the sentence imposed by the
district court exceeded the statutory maximum, we modify Kaiser’s
sentence on this count to thirty-six months of imprisonment.
Accordingly, we affirm Kaiser’s convictions and sentences as mod-
ified. We dispense with oral argument because the facts and legal
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contentions are adequately presented in the materials before the court
and argument would not aid the decisional process.
AFFIRMED AS MODIFIED
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