United States v. Kevin Wesley Nichols

464 F.3d 1117 UNITED STATES of America, Plaintiff-Appellee, v. Kevin Wesley NICHOLS, Defendant-Appellant. No. 05-30503. United States Court of Appeals, Ninth Circuit. Argued and Submitted July 24, 2006. Filed October 6, 2006. Philip E. Nino, Spokane, WA, for the defendant-appellant. Earl A. Hicks, Assistant United States Attorney, Spokane, WA, for the plaintiff-appellee. Appeal from the United States District Court for the Eastern District of Washington; Justin L. Quackenbush, Senior Judge, Presiding. D.C. No. CR-05-00083-JLQ/ CI. Before WALLACE, WARDLAW and FISHER, Circuit Judges. FISHER, Circuit Judge. 1 Kevin Nichols appeals his 57-month sentence following his guilty plea conviction for being a felon in possession of a firearm, in violation of 18 U.S.C. § 922 (g)(1). We have jurisdiction under 28 U.S.C. § 1291 . 2 Nichols challenges the district court's enhancement of his base offense level under U.S.S.G. § 2K2.1(b)(5), which provides for a four-level increase "[i]f the defendant used or possessed any firearm ... in connection with another felony offense." He argues that this provision applies only to firearms listed in the count of conviction or underlying…

Kevin Nichols appeals his 57-month sentence following his guilty plea conviction for being a felon in possession of a firearm, in violation of 18 U.S.C. § 922 (g)(1). We have jurisdiction under 28 U.S.C. § 1291 .

Nichols challenges the district court’s enhancement of his base offense level under U.S.S.G. § 2K2.1(b)(5), which provides for a four-level increase “[i]f the defendant used or possessed any firearm ... in connection with another felony offense.” He argues that this provision applies only to firearms listed in the count of conviction or underlying indictment. Because his two-count federal indictment did not list the firearm he used in connection with a prior felony assault, Nichols contends that the district court erred in increasing his offense level under § 2K2.1(b)(5). Nichols also argues that his sentence was unreasonable.

We affirm the district court’s application of § 2K2.1(b)(5), because Nichols’ use and possession of the gun during the assault constitutes relevant conduct under U.S.S.G. § 1B1.3. We further hold that Nichols’ sentence was not unreasonable, and therefore affirm his sentence.

I. Factual and Procedural Background

On July 19, 2004, Nichols…

concurring:

Although I concur with the result reached by the majority, I write separately because I would follow the Eighth Circuit in holding that the firearm used for enhancement under U.S.S.G. § 2K2.1(b)(5) need not be mentioned in the indictment. The issue raised by the parties is whether the plain meaning of “any firearm” controls, and not whether possession of the Glock constituted relevant conduct. Thus, I would affirm following the Eighth Circuit’s statutory interpretation, without reaching the question of whether U.S.S.G. § lB1.3(a)(2) serves as an alternative to the application of section 2K2.1(b)(5).

“If the language of a guideline is unambiguous, its plain meaning controls.” United States v. Gonzalez, 262 F.3d 867, 869 (9th Cir.2001). The guideline states that a defendant’s use or possession of “any firearm ... in connection with another felony offense” is grounds for enhancement. U.S.S.G. § 2K2.1(b)(5) (2005) (emphasis added). Reading the phrase “any firearm” as meaning “a firearm mentioned in the indictment” contravenes the plain meaning of the statute.

In United States v. Mann, 315 F.3d 1054, 1056-57 (8th Cir.2003), the Eighth Circuit considered and rejected the…