United States of America v. Larry J. Purifoy

In the
United States Court of Appeals
For the Seventh Circuit
____________
No. 02-3846
U NITED S TATES OF A MERICA ,
Plaintiff-Appellee,
v.
L ARRY J. P URIFOY ,
Defendant-Appellant.
____________
Appeal from the United States District Court
for the Northern District of Illinois, Western Division.
No. 02 CR 50004-1—Philip G. Reinhard, Judge.
____________
A RGUED M ARCH 4, 2003—D ECIDED A PRIL 10, 2003
____________
Before B AUER , E VANS , and W ILLIAMS , Circuit Judges.
E VANS , Circuit Judge. In July 2002 Larry Purifoy
pleaded guilty to one count of possession of a firearm by
a felon, 18 U.S.C. § 922(g)(1). He was sentenced to a term
of 96 months. On appeal, Purifoy argues that the district
court erred when it gave him a four-level upward adjust-
ment for using the firearm in connection with another
felony. U.S.S.G. § 2K2.1(b)(5). The issue raised on appeal
is whether he committed “another felony offense” for
purposes of § 2K2.1(b)(5) when he pointed the firearm at
an arresting officer. We agree with the district court that
he did commit another felony offense and affirm.
In December 2001 Purifoy was in an apartment in
Rockford, Illinois when officers of the Metro Narcotics Unit

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2 No. 02-3846
of the Rockford Police Department arrived there to exe-
cute a search warrant. When no one answered the door,
the officers forced entry into building. The police were
not undercover; they wore clothing, badges and baseball
caps that identified them as officers, and they also ver-
bally identified themselves as officers. When the officers
entered the apartment, Purifoy ran into a bedroom,
grabbed a gun, and pointed it at one of the officers. The
officers pointed their weapons at Purifoy and ordered him
to drop his gun. A standoff ensued for some 15 more
seconds, before Purifoy accepted the officers’ demand to
end the standoff. The officers then seized his gun, which
was loaded with six live rounds, one in the firing chamber.
Purifoy pleaded guilty pursuant to a plea agreement. At
sentencing, the parties disagreed over whether his offense
level should be increased by four under § 2K2.1(b)(5). This
adjustment applies if a defendant “used or possessed any
firearm or ammunition in connection with another felony
offense.” U.S.S.G. § 2K2.1(b)(5). The district court found
that the adjustment was appropriate because when Purifoy
pointed the gun at the officer, he committed the state-
law felony of aggravated assault, see Ill. Comp. Stat. 5/12-
2(a)(6) and (b). Purifoy argues that the aggravated as-
sault was not “another crime” for purposes of § 2K2.1(b)(5)
because it occurred simultaneously with his federal offense
of possession of a firearm by a felon.
We generally review a district court’s application of a
sentencing guideline de novo. United States v. Irby, 240
F.3d 597, 599 (7th Cir. 2001). More deference may be
appropriate in light of the Supreme Court’s recent decision
in United States v. Buford, 532 U.S. 59 (2001). Because
the outcome in this case does not depend on the standard
of review, however, we need not decide which standard
applies when reviewing a district court’s ruling that cer-
tain conduct qualifies as “another felony offense” under
§ 2K2.1(b)(5).

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No. 02-3846 3
Purifoy’s § 2K2.1(b)(5) upward adjustment was appro-
priate if the crime he committed when he pointed his gun
at the arresting officer was “another felony offense.” In
United States v. Szakacs, 212 F.3d 344, 349-51 (7th Cir.
2000), we considered the circumstances under which a
state-law crime that occurs contemporaneously with a
federal weapons crime may be treated as a separate of-
fense. We reasoned that the two could be treated as sepa-
rate crimes if there were a sufficient distinction in con-
duct between them. See id. at 351. The defendants in
Szacaks had planned to break into a gun shop and steal
firearms. They were convicted of the federal crime of
conspiracy to steal firearms from a licensed dealer, and the
district court imposed § 2K2.1(b)(5) adjustments, conclud-
ing that they used or possessed the firearms in connec-
tion with the state-law crime of conspiracy to commit
burglary. We found the adjustments inappropriate in that
case. The conspiracy to commit burglary and the conspir-
acy to commit theft of the firearms were essentially the
same crime because they involved nearly identical offense
conduct. Id. at 349.
Purifoy’s case cannot be viewed the same way. His of-
fense of conviction, because he was a felon, involved mere
possession of the firearm. When he pointed his gun at the
arresting officers, he committed an aggravated assault—he
was actually using the weapon. And the distinction is
significant considering the increased danger created by
pointing a firearm at a police officer during an arrest. The
distinction between mere possession and actual use of
the gun distinguishes the two crimes and justifies treat-
ing them as separate offenses. Indeed, two other circuits
have found the distinction in conduct between possession
and use of a weapon to be significant for purposes of
§ 2K2.1(b)(5). See United States v. Jackson, 276 F.3d 1231,
1234 (11th Cir. 2001); United States v. Kuban, 94 F.3d 971,
976 (5th Cir. 1996).

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4 No. 02-3846
We hasten to add, in closing, that Purifoy should con-
sider himself lucky. When someone levels a loaded gun
at police officers during a tense search warrant/arrest
situation, that person usually suffers far greater conse-
quences than an upward adjustment to his guideline range.
Getting shot, and often killed, are the usual consequences
that flow from that kind of conduct. The challenge to Mr.
Purifoy’s sentence is rejected and the judgment of the
district court is A FFIRMED .
A true Copy:
Teste:
________________________________
Clerk of the United States Court of
Appeals for the Seventh Circuit
USCA-02-C-0072—4-10-03

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