UNITED STATES of America, v. Freddie FENTON, a/k/a Fred Fox; a/k/a Fred Barrett, Freddie Fenton, Appellant, 309 F.3d 825

OPINION OF THE COURT NYGAARD, Circuit Judge. Appellant Freddie Fenton pleaded guilty to five counts of a criminal information charging (1) conspiracy to commit crimes against the United States; (2) conspiracy to possess with intent to distribute controlled substances; (3) pharmacy burglary; (4) bank burglary; and (5) possession of a firearm by a convicted felon. The District Court sentenced Fenton to a term of imprisonment of 240 months.

Fenton raises two allegations of error: (1) that the District Court erred by denying his motion to withdraw his guilty plea. and (2) that the District Court erred by imposing a four-level enhancement for being a felon in possession of a firearm, pursuant to U.S.S.G. § 2k2.1(b)(5). Courts of Appeals are split on the question of whether a single act that violates both a state law and a federal law, may be both the offense of conviction and “another felony offense” within the purview of U.S.S.G. § 2K2.1(b)(5).

We hold that a state law crime, identical and coterminous with the federal crime, cannot be considered as “another felony offense” within the meaning of the Sentencing Guidelines. We will vacate appellant’s sentence and remand for re-sentencing. In the first six months of 1997, Fenton committed three separate offenses, and was charged with several crimes. First, he broke into a pharmacy with an accomplice and stole cash and drugs that were later sold. This burglary was the subject of counts two and three of the information.

Next, Fenton broke into another pharmacy with two different accomplices and tried to break into an automated teller machine. Fenton got no money from the ATM, but he did cause approximately $17,000 in damage to the machine. This offense was addressed in counts one and four of the information. Finally, the three accomplices broke into a sporting goods store — a federally licensed firearms dealer — and stole a number of handguns. A few hours after the sporting goods store job, one of the accomplices returned to the store with Fenton and stole rifles and shotguns, which they later sold.

Fen-ton had a number of felony convictions and was therefore prohibited from possessing any firearm. This offense was addressed in counts one and five of the information. Fenton pleaded guilty to the theft of firearms from the sporting goods store, which theft made him a felon in possession of a firearm, in contravention of 18 U.S.C. 922(g). The District Court imposed a two-level upward adjustment pursuant to § 2K2.1(b)(4) because the firearms involved in the offense were stolen. The District Court then enhanced Fenton’s sentence four more levels pursuant to U.S.S.G. § 2K2.1(b)(5).

This provision states: “If the defendant used or possessed any firearms or ammunition in connection with another felony offense ... increase by 4 levels.” U.S.S.G. § 2K2.1(b)(5). The District Court considered the sporting goods store burglary to be “another felony offense.” Fenton contends that because his only conduct was stealing firearms from the sporting goods store, the District Court’s

interpretation of “another felony offense” would punish him twice for the same underlying conduct. The first issue then is: when felonious conduct violates a state law and a federal weapons law, does the state law crime qualify as “another felony offense” for purposes of the enhancement under § 2K2.1(b)(5)? In other words, may the Court use the same conduct to support the base offense level for the substantive offense, and thereafter, as “another felony offense” to enhance the sentence?

Although Courts of Appeals are divided on this issue, we now hold that “another felony offense” means a felony or act other than the one the sentencing court used to calculate the base offense level. In reaching our conclusion that “another felony offense” cannot apply to the same felonious conduct for which the criminal defendant is being sentenced, we elect to join the Seventh and Sixth Circuit Courts of Appeals. United States v. Szakacs, 212 F.3d 344, 348-52 (7th Cir.2000); United States v. McDonald, 165 F.3d 1032, 1037 (6th Cir.1999) (relying on United States v. Sanders, 162 F.3d 396, 399-401 (6th Cir.1998)).

We decline to follow decisions in the Fifth and Eighth Circuits. See United States v. Luna, 165 F.3d 316, 323 (5th Cir.1999) (upholding the application of both the (b)(4) and (b)(5) enhancements when a convicted felon was prosecuted in federal court for possession of firearms which were obtained through a burglary); United States v. Kenney, 283 F.3d 934, 938 (8th Cir.2002) (holding that the Commission intended to allow both the (b)(4) and (b)(5) enhancements to apply to the same conduct).

To evaluate the phrase “another felony offense,” we must look to the language and structure of § 2K2.1, as well as an application note to the Guidelines, U.S.S.G. § 2K2.1, cmt. n. 18. First, a plain reading of the Guideline clearly suggests that there must be a second crime committed by the defendant before imposing the enhancement. The Guideline does not allow enhancement for “any” felony offense; it specifically requires “another” offense. Also, the application note to the Guideline is helpful.

Application note 18 states: As used in subsections (b)(5) and (c)(1), “another felony offense” ... refers to offenses other than ... firearms possession or trafficking offenses. However, where the defendant used or possessed a firearm or explosive to facilitate another firearms or explosives offense (e.g., the defendant used or possessed a firearm to protect the delivery of an unlawful shipment of explosives), and upward departure under § 5K2.6 (Weapons and Dangerous Instrumentalities) may be warranted. U.S.S.G. § 2K2.1, cmt. n. 18. This commentary refers to offenses other than the firearms possession offense.

In this case, there was no other offense: there was no allegation that Fenton possessed any firearms when he entered the sporting goods store, nor was there any allegation that Fenton used the stolen firearms to commit any crimes after the theft. Fenton’s conduct was essentially stealing objects from the sporting goods store, and those objects included both firearms and non-firearms. In addition, we are troubled by the fact that almost every federal weapons offense could be prosecuted simultaneously under state law.

Therefore, deciding this issue as the Courts of Appeals for the Fifth and Eighth Circuits have would require enhancement for almost every weapons offense. Interpreting the Guideline “to allow a state law offense based on the exact same offense conduct to count as ‘another felony offense’ renders ‘the word “another” ... superfluous, and of no significance to the application of that provision.’ ” Szakacs, 212 F.3d at 350 (quoting Sanders, 162 F.3d at 400).

We agree with the Courts of Appeals for the Sixth and Seventh Circuits that “since almost all federal crimes can also be characterized as state crimes, the government’s reading of ‘another felony offense’ would permit the ‘automatic application of this significant 4 level Guideline enhancement.’ ” Id. It is only intuitive, then, that the phrase “another felony offense” requires a distinction in time or conduct from the offense of conviction. We therefore conclude that the District Court erred by applying § 2K2.1(b)(5) to enhance Fenton’s offense level by four levels.

We will vacate Fenton’s sentence and remand the case to the District Court for it to recalculate a sentence not inconsistent with this opinion. .

Fenton argues that the District Court should have permitted him to withdraw his plea of guilty because (1) he is innocent as one of his alleged co-defendants did not receive or purchase any pills and therefore the government could not prove that the drugs were taken for the purposes of distribution; (2) his guideline sentences are substantially greater than those of co-defendants with greater culpability; and (3) his counsel misled him regarding the potential guideline sentence range. His arguments are meritless. We have reviewed the record and find that each of his allegations of error are refuted.

We see no abuse in the District Court's considerable discretion in denying Fenton’s request to withdraw his guilty plea, and affirm as to this issue. . We review the District Court's

interpretation of the phrase "another felony offense" de novo. E.g., United States v. Butch, 256 F.3d 171 (3d Cir.2001) (holding that we review de novo district court's

interpretation and application of Sentencing Guidelines, but review for clear error district court's findings of fact supporting application of Guidelines). . Although we do not think that the phrase "another felony offense” is open to two readings, we note that where, as here, tire Guidelines do not clearly call for enhancement, the rule of lenity should prevent the application of a significantly increased sentence. McNally v. U.S., 483 U.S. 350, 359-60, 107 S.Ct. 2875, 97 L.Ed.2d 292 (1987) ("when there are two rational readings of a criminal statute, one harsher than the other, we are to choose the harsher only when Congress has spoken in clear and definite language”).