                            UNPUBLISHED

                   UNITED STATES COURT OF APPEALS
                       FOR THE FOURTH CIRCUIT


                            No. 07-4809



UNITED STATES OF AMERICA,

                                              Plaintiff - Appellee,

          versus


GREGORY LASHAWN MOFFITT,

                                              Defendant - Appellant.



Appeal from the United States District Court for the Western
District of North Carolina, at Charlotte.   Frank D. Whitney,
District Judge. (3:06-cr-00066-FDW)


Submitted:   January 24, 2008             Decided:   March 28, 2008


Before TRAXLER, GREGORY, and DUNCAN, Circuit Judges.


Remanded by unpublished per curiam opinion.


Claire J. Rauscher, Executive Director, Peter Adolf, Emily
Marroquin, FEDERAL DEFENDERS OF WESTERN NORTH CAROLINA, INC.,
Charlotte, North Carolina, for Appellant. Gretchen C. F. Shappert,
United States Attorney, Adam Morris, Assistant United States
Attorney, Charlotte, North Carolina, for Appellee.


Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:

           Gregory Lashawn Moffitt appeals the 102-month sentence

imposed after he pled guilty to one count of possession of a

firearm after having been convicted of a crime punishable by more

than one year of imprisonment, in violation of 18 U.S.C. § 922(g)

(2000).   In the presentence report (PSR), the probation officer

recommended a two-level enhancement pursuant to U.S. Sentencing

Guidelines Manual (USSG) § 2K2.1(b)(4) (2006) because the firearm

was   stolen,   and   a   four-level    enhancement   pursuant   to     USSG

§ 2K2.1(b)(6) because the firearm was used in connection with

another   felony   offense.     After     a   three-level   reduction    for

acceptance of responsibility, Moffitt’s total offense level was

twenty-seven, and his prior criminal conduct placed him in criminal

history category IV. The resulting sentencing range was 100 to 120

months.

           Moffitt filed several objections to the PSR. Among other

arguments, he contested the enhancement for use of the firearm in

connection with another felony.        He argued that the assault that

originated police involvement in his case was not a felony but a

simple assault under North Carolina law, and he did not possess the

firearm in connection with the assault because he did not exhibit

the firearm until after the assault had ended.        At sentencing, the

district court concluded that Moffitt’s conduct at his girlfriend’s

house prior to his arrest satisfied the elements of 18 U.S.C.


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§ 113(a)(3) (2000), which prohibits, as a felony offense, assault

with a deadly weapon in the special maritime and territorial

jurisdiction.*       The district court also found that the firearm was

used in connection with Moffitt’s assault on his girlfriend,

overruled   his   objection,     and     sentenced     him    to   102    months    of

imprisonment.

            On appeal, among other arguments, Moffitt asserts that

the district court erred in enhancing his offense level for using

the   firearm   in    connection     with    another   felony      offense.        The

Government responds, urging affirmance.              Because we conclude that

the district court’s basis for imposing this enhancement is legally

insufficient, we remand for the court to consider whether the

record provides any other grounds for imposing this enhancement.

            This court reviews a district court’s factual findings at

sentencing for clear error and its legal determinations de novo.

United States v. Daughtrey, 874 F.2d 213, 217-18 (4th Cir. 1989).

A   determination     that   there    are    sufficient      facts   to    impose    a

§   2K2.1(b)(6)   enhancement      is    a   factual   finding.          See   United

States v. Garnett, 243 F.3d 824, 828 (4th Cir. 2001) (government

has burden of proving facts to support § 2K2.1(b)(5) enhancement by

preponderance of the evidence and district court’s fact finding is

reviewed for clear error); United States v. Nale, 101 F.3d 1000,



      *
      The Government does not dispute that Moffitt’s conduct at his
girlfriend’s residence is not a felony under North Carolina law.

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1004 & n.3 (4th Cir. 1996).        This deferential standard of review

requires reversal only if this court is “left with the definite and

firm   conviction   that   a   mistake   has   been   committed.”   United

States v. Stevenson, 396 F.3d 538, 542 (4th Cir. 2005) (quoting

Anderson v. Bessemer City, 470 U.S. 564, 573 (1985)).

           Section 2K2.1(b)(6) provides for a four-level enhancement

if the defendant used or possessed any firearm or ammunition in

connection with another felony offense.         This finding encompasses

two requirements:     that the defendant committed “another felony”

and that he possessed the firearm “in connection with” the other

felony.    United States v. Blount, 337 F.3d 404, 410 (4th Cir.

2003).    “‘Another felony offense’, for purposes of subsection

(b)(6), means any federal, state, or local offense, other than the

explosive or firearms possession or trafficking offense, punishable

by imprisonment for a term exceeding one year, regardless of

whether a criminal charge was brought, or a conviction obtained.”

USSG § 2K2.1, comment. (n.14(C)). The district court may find that

“a firearm is ‘used in connection with’ another felony offense if

it facilitates or has a tendency to facilitate the felony offense.”

Garnett, 243 F.3d at 829 (citing Smith v. United States, 508 U.S.

223, 237 (1993)); USSG § 2K2.1, comment. (n.14(A)).

           In this case, the district court applied the enhancement

based on its conclusion that the other felony offense was assault

with a deadly weapon in violation of 18 U.S.C. § 113(a)(3).            We


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conclude that this finding is clearly erroneous.       The question of

whether a particular place is within the special maritime and

territorial jurisdiction of the United States is an element of a

§ 113(a) offense.   United States v. Bello, 194 F.3d 18, 22-23 (1st

Cir. 1999).   In this case, the parties do not dispute, and the

district court recognized, that the assault committed by Moffitt on

his girlfriend did not occur in an area of federal jurisdiction.

We therefore conclude that, even if Moffitt’s actions constituted

an aggravated assault as described in § 113(a)(3), such actions do

not constitute an offense that is punishable as a felony under

federal law because there is no federal jurisdiction to prosecute

Moffitt for those actions.

          Our review of the record indicates that there may be an

alternate basis for imposing the § 2K2.1(b)(6) enhancement.           See

United States v. Navarro, 476 F.3d 188, 190 & n.3 (3d Cir. 2007)

(finding that, although Government conceded the point, appellant’s

simple possession combined with prior drug conviction established

another felony offense under § 2K2.1(b)(5)).       Because the PSR did

not address this possible basis and the parties have not had an

opportunity to assert any objections, we conclude that a remand to

allow the district court to reconsider the enhancement is proper.

          Accordingly,    we   remand    for   reconsideration   of   the

§ 2K2.1(b)(6) enhancement.     We decline to address Moffitt’s other

arguments at this time.    Upon completion of the district court’s


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reconsideration, the record will be returned to this court for

further review.



                                                      REMANDED




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