                   NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
                              File Name: 19a0470n.06

                                                Case No. 18-4215

                               UNITED STATES COURT OF APPEALS
                                    FOR THE SIXTH CIRCUIT
                                                                                                         FILED
                                                                                                 Sep 09, 2019
UNITED STATES OF AMERICA,                                        )                           DEBORAH S. HUNT, Clerk
                                                                 )
         Plaintiff-Appellant,                                    )
                                                                 )          ON APPEAL FROM THE
v.                                                               )          UNITED STATES DISTRICT
                                                                 )          COURT FOR THE SOUTHERN
ROBERT SCHEIBLICH,                                               )          DISTRICT OF OHIO
                                                                 )
         Defendant-Appellee.                                     )
                                                                                                     OPINION


BEFORE: McKEAGUE, KETHLEDGE, and MURPHY, Circuit Judges.

         McKEAGUE, Circuit Judge.

         The federal government charged Robert Scheiblich as being a felon in possession of a

firearm, in violation of 18 U.S.C. § 922(g). At sentencing, the district judge held that a cross-

reference under U.S.S.G. § 2K2.1(c) did not apply. We conclude that the district court erred in

finding the § 2K2.1(c) cross-reference did not apply and reverse and remand for resentencing.


                                                   I. Background

         Robert Scheiblich1 and his son, Dillon Scheiblich, sold cocaine to a man named Jesse

James. The three of them started using the cocaine at the Scheiblichs’ house. Arguments between




1
  The defendant Robert Scheiblich is referred to as “Scheiblich,” while his son Dillon Scheiblich is referred to by
first and last name. Collectively, Robert and Dillon are noted as the “Scheiblichs.”
Case No. 18-4215, United States v. Scheiblich


the Scheiblichs and James eventually led the Scheiblichs to tie James to a chair, beat him with a

baseball bat, and torture him. The events at the house, however, are not at issue on appeal.

         Following the events at the Scheiblich residence, the Scheiblichs took James in their car, a

black Cadillac Escalade, and forced him out to the side of the road. According to the government,

Dillon Scheiblich fired a shot, using a .357 caliber revolver, close to James’s head. And Dillon

Scheiblich then allegedly pistol whipped James in the back of the head. The Scheiblichs left James

on the side of the road for dead. Law enforcement received 911 calls about shots fired and

eventually found James lying on the side of the road. James was bleeding profusely from the back

of his head and was in serious but stable condition. James even told law enforcement, “they shot

me in the back of the head.” James was transported to a nearby hospital, but he eventually left

without being discharged and was later found dead in a car. A coroner report stated the cause of

death was hypothermia, but the report also noted the blunt-force injuries to James’s head.

         Approximately ninety minutes after the 911 calls, law enforcement located the Scheiblichs

in the black Cadillac. Law enforcement took the Scheiblichs into custody on December 24 and

impounded the vehicle. After obtaining a search warrant, a subsequent search of the vehicle

revealed a stolen Ruger GP100 .357 caliber revolver, one spent casing, and six hollow-point .357

cartridges in the vehicle. The gun was in the center console next to Scheiblich’s wallet and a cell

phone.

         Scheiblich ultimately pled guilty to the charge of being a felon in possession of a firearm.

In the plea agreement, Scheiblich agreed to the following facts:

            •   The search of Scheiblich’s vehicle revealed a Ruger GP100 .357 caliber
                revolver, located in the center console.
            •   DNA comparison showed the following: (1) Both Robert and Dillon, his
                son, were contributors to the DNA sample recovered from the gun; and
                (2) The likelihood of selecting an unrelated individual at random who


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Case No. 18-4215, United States v. Scheiblich


               could be included as a possible contributor to the DNA sample from the
               gun is rarer than 1 in 1 trillion.
          •    Further examination of the revolver determined it was operable.
          •    Robert Scheiblich knowingly possessed a firearm.

In the plea agreement, the parties reserved the right to argue regarding guidelines adjustments,

“including but not limited to application of the cross-reference provision from U.S.S.G.

§ 2K2.1(c).”

       Based on the above, the presentence report (PSR) recommended application of the cross-

reference under U.S.S.G. § 2K2.1(c)(1), finding Scheiblich used the .357 caliber revolver to

commit the other offense of attempted murder. The PSR ultimately arrived at a guideline range

between 235 and 293 months but reduced the recommended sentence to the 10-year maximum

term authorized by the statute for the § 922(g) charge. Scheiblich objected to the government’s

use of facts outside of the statement of facts attached to the plea agreement.


                                          II. Sentencing Hearing

       To support its sentencing position, the government presented witness interviews, jail cell

calls, physical evidence, and documentary evidence.

       911 Phone Calls & First Responders. Law enforcement responded to several 911 calls

reporting shots fired and a man yelling from the side of the road. First responders picked up James

on the roadside at the identified location from the 911 calls, and James was bleeding severely from

the back of his skull. James told first responders that the Scheiblichs had forced him into a black

Cadillac Escalade after holding him in their home against his will. James said they had “shot” him

in the back of the head on the roadside, had earlier robbed him of drugs and money, and had beat

him with a baseball bat at their house.




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       Location of the Gun. The search of the vehicle revealed a stolen .357 revolver in the

console, next to Scheiblich’s wallet and a cell phone. There was one spent casing in the revolver.

And there were six live rounds of hollow-point ammunition.

       Blood and DNA Evidence. The coroner report identified the cause of James’s death as

hypothermia but also noted blunt-force injuries and lacerations to the head, trunk, and extremities.

DNA reports showed the blood from the kitchen and basement matched James. And the DNA on

the .357 revolver matched Dillon and Robert Scheiblich. Further, law enforcement found James

on the roadside, lying in a pool of his own blood and bleeding profusely from a spot on the back

of his head. However, there were no blood marks in the car. This suggests that the injuries inflicted

upon James at the house did not cause the bleeding. The district court noted that the fact there was

“no blood in the car is not inconsistent with the narrative . . . [James] could have just been not

bleeding and then gotten out—because something happened after he got out of the car and before

he was found.”

       Recorded Interviews. The government also presented a series of recorded interviews that

largely corroborated each other. First, the government presented a recorded video interview with

Gregory Spradlin, who was present at the house during the incident with James and who later met

up with the Scheiblichs after the roadside incident. According to Spradlin, James and the

Scheiblichs were using cocaine, and eventually, Scheiblich “start[ed] wailing on Jesse” with a

baseball bat. Scheiblich mentioned at one point that he was going to give James a “hot shot” of

drugs to make it look like that was the cause of death. Later that day, the Scheiblichs went to

Spradlin’s home to take him to the store. Dillon commented that “he had taken care of it . . . [s]aid

he had shot him in the back of the head.” Spradlin saw the .357 revolver in the vehicle during that

time. Spradlin said that “Robert pulled the gun out and showed me and said, ‘we’ve taken care of



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Case No. 18-4215, United States v. Scheiblich


it.’” Next, the government presented an audio-recorded interview with Penny Scheiblich, wife of

Scheiblich. Penny was present during the house incident. And her story aligns with the other

interviews. Finally, the government presented an audio-recorded interview with Franklin Thomas

Gabriel, who shared a holding cell with Scheiblich. Scheiblich told Gabriel that he and Dillon had

James in the basement and beat him, robbing him of $3,000 and drugs. Scheiblich also said that

after they robbed and beat James, they “went to go get rid of him.” Scheiblich said they meant to

shoot James, but instead shot “up in the air right behind his head.” And, finally, Scheiblich claimed

to have given James a “hot shot” of drugs, before they “left him for dead.”

       The district court ultimately did not apply the cross-reference under § 2K2.1(c), finding

Scheiblich did not use the gun to pistol whip James and finding the government did not present

any evidence above mere possession of the gun that would warrant application of § 2K2.1(c). The

government appeals Scheiblich’s sentence, arguing that the district court (1) erred as a matter of

law in holding that “mere possession” of a gun could not support an application of § 2K2.1(c) and

(2) clearly erred in finding Scheiblich did not use or possess the gun to support an application of

§ 2K2.1(c).


                                             III. Analysis

       Sentences are reviewed for reasonableness under an abuse of discretion standard. Gall v.

United States, 552 U.S. 38, 51 (2007).         A “district court’s interpretation of the advisory

[sentencing] Guidelines is reviewed de novo, and its findings of fact are reviewed for clear error.”

United States v. Brown, 579 F.3d 672, 677 (6th Cir. 2009) (citing United States v. Kosinski, 480

F.3d 769, 774 (6th Cir. 2007)). Clear error exists when the reviewing court is “left with the definite

and firm conviction that a mistake has been committed.” United States v. McGee, 494 F.3d 551,

554 (6th Cir. 2007) (internal quotation marks and citation omitted). And clear error is not present


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simply when there are “two permissible views of the evidence.” United States v. Jeross, 521 F.3d

562, 570 (6th Cir. 2008). In the specific context of the cross-reference in § 2K2.1(c), we apply a

deferential standard to the district court’s “fact-bound legal determinations.” United States v.

Harris, 552 F. App’x 432, 439 n.2 (6th Cir. 2014). Under that standard, which also applies to the

similarly worded enhancement in § 2K2.1(b)(6), we “accord due deference to the district court’s

determination that the firearm was [or was not] used or possessed in connection with” another

offense. See United States v. Shanklin, 924 F.3d 905, 919 (6th Cir. 2019) (citation omitted).

Where, however, the question concerning this provision is “strictly [one] of law,” de novo review

applies. United States v. Taylor, 648 F.3d 417, 431 (6th Cir. 2011) (citation omitted).

       As for evidence available for sentencing guidelines application, it is undisputed that a

district court may look to evidence outside of the plea agreement for sentencing purposes, so long

as those facts are proved by a preponderance of the evidence. See United States v. Watts, 519 U.S.

148, 156 (1997) (per curiam). The evidence need not be based on charged conduct if the sentence

is not greater than the statutory maximum for the underlying offense. See United States v. James,

575 F. App’x 588, 593-95 (6th Cir. 2014). And while the sentencing guidelines are advisory, a

district court still may not abuse its discretion in the application of the guidelines. Otherwise, the

guidelines would be rendered meaningless.

       The cross-reference in § 2K2.1(c) applies where “the defendant used or possessed any

firearm or ammunition cited in the offense of conviction in connection with the commission or

attempted commission of another offense.” U.S.S.G. § 2K2.1(c)(1). Here, for purposes of

§ 2K2.1(c)(1), the government must show by a preponderance of the evidence that Scheiblich

“used or possessed” the specific gun at issue—the .357 caliber revolver referenced in the illegal

possession crime—“in connection with the commission or attempted commission of another



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offense.” U.S.S.G. § 2K2.1(c)(1); see U.S.S.G. § 6A1.3 cmt.; see also Watts, 519 U.S. at 156.

The government alleges that the other offense here is either attempted murder or, alternatively,

kidnapping. On appeal, the government narrowly focuses on the conduct at the roadside to

constitute the attempted murder or kidnapping and does not rely on the conduct at the house.

       First, the district court erred as a matter of law when interpreting § 2K2.1(c) to impose too

stringent of a requirement for what is required of “use or possession” of the gun. The plain text of

§ 2K2.1(c)(1) requires only that the defendant “used or possessed any firearm” cited in the offense

in connection with the commission or attempt of another crime. U.S.S.G. § 2K2.1(c) (emphasis

added). Actual use of the gun is not required. Further, the commentary to § 2K2.1(c) makes clear

that the cross-reference applies if the firearm “facilitated, or had the potential of facilitating”

another offense. U.S.S.G. § 2K2.1 cmt. n.14(A) (emphasis added). According to Webster’s

dictionary, “facilitate” means “to make easier or less difficult.” Webster’s Third New International

Dictionary (1986).

       Section 2K2.1 and the accompanying comments do not define the phrase “in connection

with,” but cases analyzing similar language in § 2K2.1(b) are instructive. An enhancement under

§ 2K2.1(b)(6) applies where “any firearm” is “used or possessed . . . in connection with another

felony offense,” instead of the firearm cited in the charged offense. U.S.S.G. § 2K2.1(b)(6)(B).

Section 2K2.1(b) contains the identical phrase “used or possessed any firearm . . . in connection

with.” And it “is axiomatic that identical words used in different parts of the same act are intended

to have the same meaning.” United States v. Howse, 478 F.3d 729, 733 (6th Cir. 2007) (quoting

Sale v. Haitian Ctrs. Council, Inc., 509 U.S. 155, 203 n.12 (1993)). Courts interpreting the

language of § 2K2.1(b) have found that a firearm facilitates the commission of an offense if it

makes it “easier or less difficult” or serves “some emboldening role in [a] defendant’s felonious



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conduct.” United States v. Coleman, 627 F.3d 205, 212 (6th Cir. 2010) (internal quotation marks

and citation omitted) (finding ammunition that was easily accessible emboldened defendant in

knowledge he was one step closer to having a fully-loaded firearm to protect himself and his illegal

drugs). The firearm “need not be actively used” in the other offense so long as it has “the potential

to promote” the offense. United States v. Angel, 576 F.3d 318, 320 (6th Cir. 2009) (internal

quotation marks and citation omitted).       Further, the government need only show a “non-

coincidental nexus existed between the gun and the” offense. United States v. McWhorter, 445 F.

App’x 835, 837 (6th Cir. 2011). And this nexus exists where the gun has the “potential of

facilitating” the offense. Id. It is enough that a defendant possessed the gun in connection with a

felony, and possession can be actual or constructive. United States v. Hardin, 248 F.3d 489, 498

(6th Cir. 2001).

       The district court found uncompelling the government’s argument that mere possession of

the gun emboldened Scheiblich to participate in the alleged attempted murder or kidnapping,

concluding that, “the law simply does not support it.” Not so. Possession of a gun that emboldens

a defendant in the commission of another crime is a factor to consider in an analysis under

§ 2K2.1(b) or (c). The district court found that the government’s so-called “fortress theory” was

limited to drug trafficking offenses. Again, this is wrong as a matter of law. Close or mere

“proximity” is limited to drug trafficking offenses. See U.S.S.G. § 2K2.1, cmt. n.14(B) (“close

proximity to drugs” warrants application of § 2K2.1(b)(6)(B) or (c)(1) when the other offense is a

drug trafficking offense); United States v. Shields, 664 F.3d 1040, 1045 (6th Cir. 2011) (finding

the enhancement under § 2K2.1(b) did not apply because the government did not establish the gun

emboldened the defendant and finding “close proximity” alone not enough for a non-drug

trafficking related offense). But the emboldening role of a firearm, which goes beyond close



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proximity, is not limited to drug-related offenses under § 2K2.1. See United States v. Jones, 470

F. App’x 477, 480 (6th Cir. 2012) (facilitated resisting arrest); United States v. Burke, 345 F.3d

416, 427-28 (6th Cir. 2003) (guns could have protected illegal VIN-flipping operation); United

States v. Bullock, 526 F.3d 312, 318 (6th Cir. 2001) (“undoubtedly emboldened” defendant to

make threatening phone calls to congressman), abrogated on other grounds by Taylor, 648 F.3d

at 431. While these cases apply § 2K2.1(b), that is beside the point. Section 2K2.1(b)(6) contains

the same language as § 2K2.1(c)(1) and should therefore be interpreted the same. Howse, 478

F.3d at 733. So, the district court was wrong to find the “law does not support” a theory that the

emboldening role of a gun is enough. Possession is explicitly included in the plain text of

§ 2K2.1(c)(1) and the cross-reference may apply if that possession potentially facilitates—e.g.,

emboldens—a defendant to commit another crime.

       Second, the district court found that under either of the government’s theories—(a) that

Scheiblich pistol whipped James or (b) that the gun emboldened Scheiblich in the commission of

another offense—the government did not produce enough evidence to support application of

§ 2K2.1(c). Here, we review the district court’s factual findings for clear error and give due

deference to the district court in its application of the guidelines. We need not reach the pistol-

whipping issue because we find that § 2K2.1(c) applies due to Scheiblich’s possession of the gun.

The district court clearly erred in finding that possession of the gun did not facilitate the

commission of another offense against James. The district court gave “no weight” to two pieces

of crucial evidence: the 911 calls of shots fired, and the fact law enforcement found the

.357 caliber revolver in the center console. The district court did not take issue with the reliability

of those facts, but summarily dismissed them as inapplicable to its analysis. Completely ignoring

the significance of those two facts, the district court found the government did not produce any



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relevant evidence, other than mere proximity. This was clear error. There can be no doubt that

shots fired and the fact the gun was found in the center console of the vehicle—located right next

to Scheiblich’s wallet and found only 90 minutes after the 911 calls—are pieces of evidence that

are relevant above and beyond mere proximity. Even with giving due deference to the district

court, there is no doubt these facts establish a sufficient nexus between the gun and the alleged

other offenses, as our precedent shows.

       In Burke, we found that guns were possessed in connection with another felony offense

when three guns were located across the driveway from the defendant’s illegal operation, some of

the weapons were loaded, and one had been discharged. 345 F.3d at 427. Proximity and ready

access were enough to show a sufficient nexus by a preponderance of the evidence. So too here.

The .357 caliber revolver was positioned in the center console of the vehicle, next to Scheiblich’s

wallet. Additionally, there were six live rounds of hollow-point ammunition in the vehicle. The

fact the gun was in the center console, operable, and readily-accessible shows, at the very least,

that the gun potentially facilitated the attempted murder or kidnapping. Moreover, the 911 calls

indicate the gun did not stay in the center console for the entirety of the roadside incident. The

district court clearly erred in giving “no weight” to these two facts. Indeed, there is even more

evidence that shows the .357 revolver’s nexus to the other offenses: James himself told the police

he was shot, Spradlin identifies the .357 revolver’s connection to the roadside incident, and the

Gabriel interview notes the .357 revolver’s significance. All that is needed is a showing that the

.357 caliber revolver had the potential to facilitate the other crime. Certainly, the .357 revolver’s

location and operability facilitated the commission of another offense. The district court clearly

erred in finding no connection between the .357 revolver and another offense to support an

application of the § 2K2.1(c) cross-reference.



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Case No. 18-4215, United States v. Scheiblich


        Finally, the cross-reference applies if a court finds, by a preponderance of the evidence,

that a defendant committed another offense. And “‘another offense,’ for purposes of subsection

(c)(1), means any federal, state, or local offense, other than the explosive or firearms possession

or trafficking offense, regardless of whether a criminal charge was brought, or a conviction

obtained.” U.S.S.G. § 2k2.1 cmt. n.14(C), § 2K2.1(c). Here, the government cites to two other

possible offenses: kidnapping and attempted murder. The defendant need not be charged with the

other offense at state court.

        Section 2K2.1(c)(1)(A) provides a cross-reference to § 2X1.1, the guidelines applicable to

attempt, solicitation, and conspiracy. Section 2X1.1 in turn calculates the applicable base offense

level by reference to the guidelines for the relevant substantive crime. Where attempt, solicitation,

and conspiracy are expressly covered by another offense guideline, that guideline is applied

directly. Attempted murder is expressly covered in § 2A2.1, and kidnapping is expressly covered

in § 2A4.1. Attempted murder carries a slightly higher offense level than that of kidnapping.

Compare § 2A2.1 with § 2A4.1.

        On this record there can be no doubt that, by a preponderance of the evidence, James was

forcibly transported to the roadside, which resulted in physical harm to James. Under Ohio law,

“[n]o person, by force, threat, or deception . . . shall knowingly do any of the following, under

circumstances that create a substantial risk of serious physical harm to the victim . . . (1) [r]emove

another from the place where the other person is found; (2) [r]estrain another of the other person’s

liberty.” Ohio Rev. Code Ann. § 2905.01(B). It is undisputed that the Scheiblichs transported

James from the Scheiblich residence to the roadside and James suffered significant injuries. The

district court found that James’s “injuries were extensive and not all caused by hypothermia.”




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Scheiblich’s possession of the gun and the gun’s operability facilitated, or, at the very least, had

the potential to facilitate, the kidnapping offense.

         As for the attempted murder, the district court never reached the issue of whether

Scheiblich had the requisite mental state. Federal law requires malice aforethought, 18 U.S.C.

§ 1111.2 And the district court must reach this issue first.


                                                    IV. Conclusion

         For these reasons we reverse the district court opinion and remand to apply the § 2K2.1(c)

cross-reference for the kidnapping offense under § 2A4.1. On remand, we instruct the district

court to determine whether the government can establish by a preponderance of the evidence the

elements of attempted murder. If the district court finds an attempted murder occurred, then

§ 2K2.1(c) would apply for the attempted murder offense under § 2A2.1.




2
 Section 2A2.1 expressly covers attempted murder and provides for a base offense level of 33 “if the object of the
offense would have constituted first degree murder” or a base offense level of 27 “otherwise.” U.S.S.G. § 2A2.1(a).
First degree murder is defined as “conduct that, if committed within the special maritime and territorial jurisdiction
of the United States, would constitute first degree murder under 18 U.S.C. § 1111.” U.S.S.G. § 2A2.1 cmt. n.1. We
need not consider other attempted homicide offenses given those offenses carry a lower base offense level than that
of kidnapping.

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