Submitted: April 19, 2019
from United States District Court for the Western District of
Missouri - Kansas City
COLLOTON, GRUENDER, and ERICKSON, Circuit Judges.
COLLOTON, Circuit Judge.
Paul appeals a 48-month sentence imposed by the district
court after Paul pleaded guilty to unlawful
possession of a firearm while under felony indictment in
state court. See 18 U.S.C. §§ 922(n),
924(a)(1)(D). We reject Paul's claim that the court made
a procedural error in calculating the advisory sentencing
guideline range, and we affirm the judgment.
dispute concerns a four-level increase under USSG §
2K2.1(b)(6) for using or possessing a firearm "in
connection with another felony offense." Paul's
conviction arose from his possession of a firearm on May 9,
2017, when bail bondsmen tracked him down to execute an
outstanding warrant for domestic abuse. At sentencing, the
district court found that Paul had used a firearm in
connection with other felonies in January and March 2017, and
applied the four-level increase on that basis. Paul complains
that the court improperly considered these earlier incidents.
We review the district court's construction and
application of the sentencing guidelines de novo,
and we review its factual findings for clear error.
United States v. Houston, 920 F.3d 1168, 1174 (8th
legal framework that governs the issue is set forth in the
guideline on firearms offenses, § 2K2.1, and the
"relevant conduct" guideline, § 1B1.3.
Commentary to § 2K2.1 provides that in determining
whether the four-level increase applies, "the court must
consider the relationship between the instant offense and the
other offense, consistent with relevant conduct
principles." USSG § 2K2.1, comment. (n.14(E)).
Those principles provide that a firearms defendant is
accountable for his "acts and omissions . . . that were
part of the same course of conduct or common scheme or plan
as the offense of conviction." Id. §
1B1.3(a)(2). Thus, the commentary to the firearms guideline
specifies that "the threshold question for the court is
whether the two unlawful possession offenses . . . were
'part of the same course of conduct or common scheme or
plan.'" Id. § 2K2.1, comment.
(n.14(E)(ii)) (quoting id. § 1B1.3(a)(2)). This
commentary post-dates our decision in United States v.
Davis, 360 F.3d 901 (8th Cir. 2004), and explains the
guideline provision in § 2K2.1 that Davis
considered through the lens of § 1B1.3(a)(4), but
accords with Davis's holding that the four-level
increase may apply based on "a felony offense that
occurred at a time and place distinct from the offense of
conviction." Id. at 903.
relevant facts involve two domestic assaults that Paul
committed against separate women with whom Paul had fathered
children. In January 2017, while awaiting trial on state
felony charges in Missouri, Paul threatened the mother of one
of his children while holding a black gun. During the
incident, Paul held the gun in the air and told the woman:
"You don't want this problem. You don't know
what I'll do." Just over two months later, while
carrying a silver handgun, Paul broke into the home of
another woman, pushed her to the floor, screamed, and
demanded that she give him their child. Displaying a firearm
in an angry or threatening manner in the presence of another
person constitutes a felony under Missouri law. See
Mo. Rev. Stat. §§ 571.030.1(4), .8(1).
sentencing, the district court found that the two incidents
were "an integral part of the course of conduct that
relates to Mr. Paul's unlawful possession of the firearm
while under indictment." On that basis, the court found
that Paul used a firearm "in connection with another
felony offense," and increased his offense level by four
levels under § 2K2.1(b)(6).
maintains that the incidents in January and March were not
part of the "same course of conduct" as his
unlawful possession of a firearm in May. In deciding whether
offenses are part of the same course of conduct, we consider
"the degree of similarity of the offenses, the
regularity (repetitions) of the offenses, and the time
interval between the offenses. When one of the above factors
is absent, a stronger presence of at least one of the other
factors is required." USSG § 1B1.3, comment.
conclude that there was no error. The three offenses
established a pattern of regularity, occurred within a
four-month period, and similarly involved unlawful possession
of a firearm while under indictment. Paul argues that his
instant offense was dissimilar to the previous incidents
because he did not display the firearm in an angry or
threatening manner when arrested in May. But the three
offenses need not be identical to establish a course of
conduct, and they were sufficiently similar to warrant the
enhancement in light of the regularity of the offenses and
the short time intervals between them.
judgment of the district court is affirmed.
The Honorable Gary A. Fenner, United
States District Judge for the Western District of