United States of America v. Brent W. King

*The Honorable Robert H. Cleland, United States District Judge for
the Eastern District of Michigan, sitting by designation.
1
RECOMMENDED FOR FULL-TEXT PUBLICATION
Pursuant to Sixth Circuit Rule 206
ELECTRONIC CITATION: 2003 FED App. 0301P (6th Cir.)
File Name: 03a0301p.06
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
_________________
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
BRENT W. KING,
Defendant-Appellant.
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No. 02-1128
Appeal from the United States District Court
for the Western District of Michigan at Grand Rapids.
No. 01-00173—Gordon J. Quist, District Judge.
Argued: May 1, 2003
Decided and Filed: August 25, 2003
Before: CLAY and GIBBONS, Circuit Judges;
CLELAND, District Judge.*
_________________
COUNSEL
ARGUED: Lawrence J. Phelan, HAEHNEL & PHELAN,
Grand Rapids, Michigan, for Appellant. Timothy P. VerHey,
2 United States v. King No. 02-1128
UNITED STATES ATTORNEY, Grand Rapids, Michigan,
for Appellee. ON BRIEF: Lawrence J. Phelan, HAEHNEL
& PHELAN, Grand Rapids, Michigan, for Appellant. Mark
V. Courtade, UNITED STATES ATTORNEY, Grand Rapids,
Michigan, for Appellee.
_________________
OPINION
_________________
CLELAND, District Judge. Appellant/Defendant Brent
King challenges the sentence imposed by the district court.
Specifically, he asserts that the court was in error when it
applied an enhancement pursuant to U.S.S.G. § 2K2.1(b)(5).
For the reasons set forth below, we AFFIRM the judgment of
the district court.
I. FACTS AND PROCEDURAL HISTORY
On May 13, 2001, Battle Creek police officers responded
to a complaint that a man was seen pointing a shotgun and
threatening an individual at 47 South 22nd Street. When the
police arrived at the above address, they witnessed Appellant
pointing a pump-action shotgun at an individual named Billy
Sisler. The officers noted that the shotgun was pointed at Mr.
Sisler’s face and chest. Upon discovering that the police had
arrived, Appellant attempted to hide the gun in his sweatshirt
and walk away. The police, however, ordered Appellant to
drop the gun. When Appellant raised his hands in the air, the
shotgun fell to the ground. The officers apprehended
Appellant and recovered the gun--a Mossberg 12-gauge,
pump-action shotgun loaded with five rounds of ammunition.
On July 26, 2001, an indictment was filed with the United
States District Court for the Western District of Michigan.
The indictment charged Appellant with one count of being a
Felon in Possession of a Firearm in violation of 18 U.S.C.

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No. 02-1128 United States v. King 3
1At the time of the offense, Appellant had two prior felony
convictions: (1) a M arch 3 0, 1995 conviction for A ttempting to Carry a
Concealed Wea pon, and (2) a June 20, 1996 conviction for Attempted
Hom e Invasion.
2An evidentiary hearing was conducted to address Appe llant’s
objection, which asserted that Appellant had never pointed the shotgun at
anyone when the incident occurred. The governm ent presented the
testimony of the officer who observed Ap pellant on the night of the arrest.
Appellant presented three witnesses on his behalf. The trial court
“[found] by a preponderance of the evidence that [the officer] was telling
the truth when he testified that the defendant po inted the gun at B illy
Sisler.” (Sentencing Hr’g Tr. at 52.) Thus, the trial court applied the
§ 2K2.1(b)(5) enhancement. The trial court’s factual findings are not at
issue on app eal.
§ 922(g)(1).1 On October 3, 2001, pursuant to a six-page plea
agreement, Appellant pleaded guilty to the charged offense.
Appellant’s presentence report recommended that his
offense level be increased by four points pursuant to U.S.S.G.
§ 2K2.1(b)(5) because Appellant used the firearm in
connection with another felony offense, namely Assault With
a Dangerous Weapon (Felonious Assault), when he pointed
the firearm at the victim’s chest and face. Although
Appellant had been charged with Assault With a Dangerous
Weapon (Felonious Assault) and Felony Firearm in state
court, these charges were later dismissed on an order of nolle
prosequi because Appellant was being prosecuted in federal
court. On January 2, 2002, Appellant objected to the
proposed enhancement. The court overruled Appellant’s
objection and held that the § 2K2.1(b)(5) applied.2 On
January 14, 2002, Appellant was sentenced to serve 77
months imprisonment. Appellant now argues that the district
court erred when applying § 2K21.(b)(5), asserting that the
conduct upon which he was convicted (Felon in Possession)
was the same conduct the court used to enhance his sentence
(Felonious Assault).
4 United States v. King No. 02-1128
3In certain circumstance s, the court reviews guideline decisions under
a more deferential standard . See United States v. Ennenga, 263 F.3d 499,
502 (6th Cir. 2001). Such review has been held appropriate when the
legal decisio n is closely intertwined with the factual conclusions reached
by the district court. In this case, the dispute is purely a legal issue:
Assuming App ellant co mmitted a felo nious assault when he p ointed his
firearm at the victim, does the sentencing enhancement for “us[ing] or
possess[ing] any firearm or ammunition in connection with another felony
offense,” U.S.S.G. § 2K 2.1(b)(5), apply where Appellant is convicted for
being a Felon in Possession of a Firearm? Thus, the district court’s legal
determination will be reviewed de novo.
II. STANDARD OF REVIEW
Appellant concedes that because he objected only to the
presentence report’s factual findings and not the report’s legal
conclusion regarding the sentencing enhancement, the court
must review his current claim for plain error. See United
States v. Koeberlein, 161 F.3d 946, 949 (6th Cir. 1998)
(holding that the defendant’s failure to object to sentencing
decision in the district court does not preclude appellate
review of the sentence for plain error under Federal Rule of
Civil Procedure 52(b)). To establish plain error, Appellant
must show “(1) that an error occurred in the district court;
(2) that the error was plain, i.e., obvious or clear; (3) that the
error affected [Appellant’s] substantial rights; and (4) that this
adverse impact seriously affected the fairness, integrity or
public reputation of the judicial proceedings.” Koeberlein,
161 F.3d at 949. Finally, the court reviews de novo the
district court’s legal conclusions regarding the application of
the Sentencing Guidelines. United States v. Humphrey, 279
F.3d 372, 379 (6th Cir. 2002).3
III. DISCUSSION
United States Sentencing Guideline § 2K2.1(b)(5) provides
that “if the defendant used or possessed any firearm or
ammunition in connection with another felony offense . . .
increase [the sentence] by four levels.” U.S.S.G.
§ 2K2.1(b)(5). Appellant argues that the four-level

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No. 02-1128 United States v. King 5
4The court also based its decision on the language of Application
No te 18, which states, “‘another felony offense’ . . . refer[s] to offenses
other than . . . firearm s possession or trafficking offenses.”
enhancement he received pursuant to this section was
improper because the state law crime, felonious assault,
occurred simultaneously with the offense of conviction and
thus cannot constitute “another felony.” Appellant relies on
United States v. Sanders, 162 F.3d 396, 400 (6th Cir. 1998),
wherein this Court held that the district court erred in
applying § 2K2.1(b)(5) where the conduct that led to
defendant’s conviction for being a felon in possession of a
firearm--the burglary of a pawnshop where guns were among
the items taken--was the same conduct utilized to apply the
four-level enhancement. The reasoning underpinning the
Sanders decision, however, does not apply to the facts of this
case. Further, more recent, albeit unpublished, case law from
this circuit supports the district court’s application of
§ 2K2.1(b)(5).
In Sanders, the defendants burglarized a pawn shop, taking
firearms, electronics, and other items. They were eventually
convicted for being felons in possession of firearms in
violation of 18 U.S.C. §§ 922(g)(1) and 924(a)(2). See
Sanders, 162 F.3d at 397-98. The defendants did not use
firearms during the course of the burglary. “Beyond the
contemporaneous burglary . . ., there was not ‘another felony
offense,’ and that burglary was the basis for the federal
firearms offenses charged.” Id. at 401. This Court found that
the enhancement under § 2K2.1(b)(5) was improperly applied
by the district court because there was no separation of time
or distinction in conduct between the offense that led to the
conviction and the conduct considered for the enhancement.4
Id. at 400.
In this case, unlike Sanders, there is “a separation of time
between the offense of conviction and the other felony
offense, [and] a distinction of conduct between that occurring
6 United States v. King No. 02-1128
5In Sanders, the court was concerned that allowing the enhancement
to stand in that case wo uld lead to “the autom atic application of this
significant 4 level Guid eline enhancement in almo st every fed eral gun
theft case.” Sanders, 162 F.3d at 400. There is no risk o f autom atic
application of the enhancement in this case. If Appellant had not pointed
the gun towards Sisler, the enhancement would not apply. “Rather, the
firearm was used to commit the assault, which is precisely the type of
conduct that the Sentencing Comm ission intended to reach with the
enhancem ent.” United States v. Parker, 234 F.3d 1270, 2000 WL
1647922, *2 (6th Cir. O ct. 23, 200 0); see also United States v. McDona ld,
165 F.3d 1032, 1037 (6th Cir. 1999) (Section 2K2.1(b)(5) “is a sentencing
enhancement provision that 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.”).
in the offense of conviction and the other felony offense.” Id.
Appellant admitted to the probation officer that, on the night
of the incident, he had an argument with individuals at the
residence next to his girlfriend’s home. He reported that he
returned to his girlfriend’s residence and retrieved his shotgun
from the bedroom closet. He loaded the shotgun and
concealed it beneath his shirt before returning to the
neighbor’s driveway. It reportedly took two minutes to
retrieve the gun, load it with ammunition, and return to the
driveway. According to the officers that arrived at the scene
shortly thereafter, Appellant was pointing the gun at Sisler’s
face and chest. It is quite clear that Appellant possessed the
gun well before he used it to assault Sisler. Upon storage of
and then retrieval of the gun from his girlfriend’s apartment,
he was committing the crime of being a felon in possession of
a firearm. Beyond mere possession, he took the further step
of committing a felonious assault with the firearm. Because
of this distinction in conduct, it cannot be said that Appellant
was convicted and had his sentence enhanced based upon the
same conduct. Appellant first possessed the gun (offense of
conviction) and then used the gun (enhancement conduct).5
The key distinction between this case and Sanders is that
the conduct giving rise to the enhancement here was not
inevitable upon completion of the underlying offense. After

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No. 02-1128 United States v. King 7
Appellant retrieved the firearm, he could have refrained from
using the weapon to commit assault. In other words, the
enhancement conduct was not unavoidable once the
underlying offense took place; Appellant chose to point the
weapon at Sisler. Conversely, the defendants in Sanders
inevitably possessed firearms upon completion of the
burglary because the firearms were among the items taken
during the burglary.
United States v. Parker, an unpublished decision from this
circuit, directly addresses the issue presented in this case. In
that case, the defendant made the same argument as Appellant
is asserting in this case. This Court stated:
The incredulity of this argument renders it wholly
unpersuasive. As a matter of logic, in order for Parker to
shoot at his wife with the firearm, the firearm must have
first come into his possession. The possession of the
firearm and the ensuing assault are two independent acts,
therefore, the felonious assault can be used to enhance
the firearms conviction under U.S.S.G. § 2K2.1(b)(5).
Parker, 234 F.3d 1270, 2000 WL 1647922, *2 (6th Cir.
Oct. 23, 2000). This Court found the Sanders holding
inapplicable and held that the district court did not err in
using the felonious assault to enhance the defendant’s offense
level pursuant to U.S.S.G. § 2K2.1(b)(5). This case is no
different. Accordingly, Appellant’s position is without merit.
IV. CONCLUSION
We find that the district court did not err in enhancing
Appellant’s sentence pursuant to U.S.S.G. § 2K2.1(b)(5).
Accordingly, the judgment of the district court is
AFFIRMED.

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