     Case: 17-10461      Document: 00514415686         Page: 1    Date Filed: 04/04/2018




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT
                                                                     United States Court of Appeals

                                      No. 17-10461
                                                                              Fifth Circuit

                                                                            FILED
                                                                         April 4, 2018

UNITED STATES OF AMERICA,                                              Lyle W. Cayce
                                                                            Clerk
              Plaintiff - Appellee

v.

LEEROY WILBERT ROGERS,

              Defendant - Appellant




                   Appeal from the United States District Court
                        for the Northern District of Texas
                             USDC No. 3:16-CR-365-1


Before ELROD, COSTA, and HO, Circuit Judges.
PER CURIAM:*
       Leeroy Wilbert Rogers was convicted of being a felon in possession of a
firearm. His appeal challenges the application of a cross-reference provision
to his sentence that held him responsible for possessing the gun “with
knowledge or intent that it would be used or possessed in connection with” a
robbery. U.S.S.G. § 2K2.1.




       * Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH
CIR. R. 47.5.4.
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                                      No. 17-10461
                                            I.
      On the morning of March 31, 2016, Kenneth Moore and Reshon
McCullough robbed a hotel, threatening the manager at gunpoint. Rogers
drove the getaway car. The following day, police officers found Rogers driving
the same car with Moore and McCullough as his passengers. Officers stopped
the car and found a gun later identified as the gun used in the robbery on the
driver’s side floorboard. All three were arrested.
      When questioned by a detective, Rogers denied involvement in the
robbery. 1 He asserted that the gun belonged to Moore but admitted that he
had handled it “the day before on March 31.” Rogers explained that “Moore or
another of the ‘homeboys’ had the firearm, and Rogers asked to see it.” Because
of Rogers’s criminal history, he was charged with being a felon in possession of
a firearm. See 18 U.S.C. § 922(g)(1). Rogers pleaded guilty.
      The presentence report (PSR) summarized the facts of the hotel robbery,
including Rogers’s admission that he handled the firearm the day of the
robbery. It also determined that Rogers was the getaway driver. Based on
Rogers’s admission and a comparison of the seized firearm to what can be seen
in the surveillance video of the robbery, the PSR concluded that the firearm
Rogers possessed at the time of his arrest was the same one Moore used during
the robbery.
      Based on these findings, the PSR applied the section 2K2.1(c)(1)(A)
cross-reference provision. The PSR stated that the cross reference applies “[i]f
the defendant used or possessed any firearm . . . with . . . intent that it would
be used in connection with another offense.” U.S.S.G. § 2K2.1(c). It concluded
that standard was met and that “the substantive offense is Aggravated
Robbery; therefore USSG § 2B3.1 Robbery becomes the applicable guideline.”


      1   Rogers was charged with aggravated robbery in state court.
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                                 No. 17-10461
Application of the cross reference resulted in an advisory range of 70 to 87
months.
      Rogers objected. He argued that the PSR improperly applied the cross
reference because there was insufficient evidence both that he possessed the
firearm before the robbery and that he possessed it with knowledge or intent
that it would be used in the robbery.       Without the cross reference, the
Guidelines range would be 51 to 63 months.
      In her response to the objection, the probation officer maintained that
applying the cross reference was appropriate. The officer contended that there
was sufficient, reliable evidence that the gun Rogers possessed when he was
arrested was the same gun that was used in the robbery, thereby “establishing
relevant conduct to the instant offense, by way of the same course of conduct.”
She explained that to apply the cross reference “the court must consider the
relationship between the instant offense and the other offense, consistent with
relevant conduct principles, as well as if the firearm used in the other offense
was the firearm cited in the offense of conviction.” The officer concluded that
these factors were satisfied.
      At the sentencing hearing, an ATF agent testified that the gun found in
the car Rogers was driving was the gun used in the robbery because they both
“have a loop on the hammer.” Rogers’s counsel then argued that the cross
reference should not apply because the evidence was insufficient to show that
Rogers possessed the gun before the robbery and that he possessed it with
knowledge or intent that it would be used in the robbery. The district court
overruled the objection “based on the testimony which [it] credit[ed] and the
contents of the PSR and the addendum.” The court then sentenced Rogers to
78 months in prison, which was reduced to 73 months to account for time
Rogers spent in state custody prior to his transfer to federal custody.


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                                 No. 17-10461
                                      II.
      The Guidelines section that generates the offense level for unlawful
possession of a firearm contains a number of provisions focused on features of
the firearms themselves—what type, how many, are they stolen? See U.S.S.G.
§ 2K2.1. But if the defendant unlawfully possessed the firearm in connection
with another offense or “possessed or transferred” it “with knowledge or intent
that it would be used or possessed in connection with another offense,” then
the Guidelines will incorporate the offense level applicable to that other
offense. Id. § 2K2.1(c)(1).
      Rogers challenges the use of that provision to substitute the offense level
governing robbery for that of unlawful possession of a firearm. He argues that
the district court applied the incorrect legal standard. The district court did
not announce the standard it was applying. The PSR that it adopted sends
mixed signals. On the one hand, the PSR recited the relevant cross-reference
standard in stating it applies if “the defendant possessed any firearm with
intent that it would be used in connection with another offense.”        But in
responding to Rogers’s objection, the addendum invoked “relevant conduct
principles.”
      Although the two inquiries may sometimes overlap, the cross reference
requires more than a finding of relevant conduct would. United States v.
Johnston, 559 F.3d 292, 294 n.2 (5th Cir. 2009). Relevant conduct for jointly
undertaken criminal activity is largely about foreseeability.      See U.S.S.G.
§ 1B1.3(a)(1)(B)(iii). But the section 2K2.1(c)(1) cross reference requires that
the defendant possess the firearm with actual knowledge or intent that it will
be used or possessed in connection with the other offense. Johnston, 559 F.3d
at 295–96. On these facts, the difference is largely one of timing. Did Rogers
possess the firearm on the morning of March 31 before the robbery occurred?
Or did he only come to possess Moore’s gun during the getaway after the
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                                  No. 17-10461
robbery was complete? Neither the PSR nor the district court at sentencing
made a finding that Rogers was in possession of his confederate’s firearm
before the hotel was robbed. Resolution of this question is not apparent from
the record as competing inferences can be drawn from the facts. Because the
unresolved timing question is critical for application of the cross reference that
substantially increased Rogers’s Guidelines exposure, remand is appropriate
to allow the factfinder to make that assessment in the first instance. Id. at 296
(remanding when the section 2K2.1(c)(1) cross reference was improperly
applied based on a finding that the defendant “should have known” that
providing the firearm to another would result in its use in a crime); United
States v. Jiminez, 582 F. App’x 378, 382–84 (5th Cir. 2014) (also remanding
when a court applied the wrong standard in applying the cross reference).
                                   ***
      We therefore VACATE the sentence and REMAND for resentencing
consistent with this opinion.




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