           RECOMMENDED FOR FULL-TEXT PUBLICATION
                Pursuant to Sixth Circuit Rule 206                        2    United States v. King                      No. 02-1128
        ELECTRONIC CITATION: 2003 FED App. 0301P (6th Cir.)
                    File Name: 03a0301p.06                                UNITED STATES ATTORNEY, Grand Rapids, Michigan,
                                                                          for Appellee. ON BRIEF: Lawrence J. Phelan, HAEHNEL
                                                                          & PHELAN, Grand Rapids, Michigan, for Appellant. Mark
UNITED STATES COURT OF APPEALS                                            V. Courtade, UNITED STATES ATTORNEY, Grand Rapids,
                                                                          Michigan, for Appellee.
                  FOR THE SIXTH CIRCUIT
                    _________________                                                        _________________

 UNITED STATES OF AMERICA , X                                                                    OPINION
            Plaintiff-Appellee, -                                                            _________________
                                  -
                                  -   No. 02-1128                           CLELAND, District Judge. Appellant/Defendant Brent
           v.                     -                                       King challenges the sentence imposed by the district court.
                                   >                                      Specifically, he asserts that the court was in error when it
                                  ,                                       applied an enhancement pursuant to U.S.S.G. § 2K2.1(b)(5).
 BRENT W. KING,                   -
          Defendant-Appellant. -                                          For the reasons set forth below, we AFFIRM the judgment of
                                                                          the district court.
                                 N
       Appeal from the United States District Court                             I. FACTS AND PROCEDURAL HISTORY
  for the Western District of Michigan at Grand Rapids.
     No. 01-00173—Gordon J. Quist, District Judge.                          On May 13, 2001, Battle Creek police officers responded
                                                                          to a complaint that a man was seen pointing a shotgun and
                      Argued: May 1, 2003                                 threatening an individual at 47 South 22nd Street. When the
                                                                          police arrived at the above address, they witnessed Appellant
             Decided and Filed: August 25, 2003                           pointing a pump-action shotgun at an individual named Billy
                                                                          Sisler. The officers noted that the shotgun was pointed at Mr.
         Before: CLAY and GIBBONS, Circuit Judges;                        Sisler’s face and chest. Upon discovering that the police had
                  CLELAND, District Judge.*                               arrived, Appellant attempted to hide the gun in his sweatshirt
                                                                          and walk away. The police, however, ordered Appellant to
                      _________________                                   drop the gun. When Appellant raised his hands in the air, the
                                                                          shotgun fell to the ground. The officers apprehended
                            COUNSEL                                       Appellant and recovered the gun--a Mossberg 12-gauge,
                                                                          pump-action shotgun loaded with five rounds of ammunition.
ARGUED: Lawrence J. Phelan, HAEHNEL & PHELAN,
Grand Rapids, Michigan, for Appellant. Timothy P. VerHey,                   On July 26, 2001, an indictment was filed with the United
                                                                          States District Court for the Western District of Michigan.
                                                                          The indictment charged Appellant with one count of being a
                                                                          Felon in Possession of a Firearm in violation of 18 U.S.C.
    *
     The Ho norable Robert H. Cleland, United States District Judge for
the Eastern District of Michigan, sitting by designation.

                                  1
No. 02-1128                              United States v. King            3    4       United States v. King                              No. 02-1128

§ 922(g)(1).1 On October 3, 2001, pursuant to a six-page plea                                   II. STANDARD OF REVIEW
agreement, Appellant pleaded guilty to the charged offense.
                                                                                 Appellant concedes that because he objected only to the
  Appellant’s presentence report recommended that his                          presentence report’s factual findings and not the report’s legal
offense level be increased by four points pursuant to U.S.S.G.                 conclusion regarding the sentencing enhancement, the court
§ 2K2.1(b)(5) because Appellant used the firearm in                            must review his current claim for plain error. See United
connection with another felony offense, namely Assault With                    States v. Koeberlein, 161 F.3d 946, 949 (6th Cir. 1998)
a Dangerous Weapon (Felonious Assault), when he pointed                        (holding that the defendant’s failure to object to sentencing
the firearm at the victim’s chest and face. Although                           decision in the district court does not preclude appellate
Appellant had been charged with Assault With a Dangerous                       review of the sentence for plain error under Federal Rule of
Weapon (Felonious Assault) and Felony Firearm in state                         Civil Procedure 52(b)). To establish plain error, Appellant
court, these charges were later dismissed on an order of nolle                 must show “(1) that an error occurred in the district court;
prosequi because Appellant was being prosecuted in federal                     (2) that the error was plain, i.e., obvious or clear; (3) that the
court. On January 2, 2002, Appellant objected to the                           error affected [Appellant’s] substantial rights; and (4) that this
proposed enhancement. The court overruled Appellant’s                          adverse impact seriously affected the fairness, integrity or
objection and held that the § 2K2.1(b)(5) applied.2 On                         public reputation of the judicial proceedings.” Koeberlein,
January 14, 2002, Appellant was sentenced to serve 77                          161 F.3d at 949. Finally, the court reviews de novo the
months imprisonment. Appellant now argues that the district                    district court’s legal conclusions regarding the application of
court erred when applying § 2K21.(b)(5), asserting that the                    the Sentencing Guidelines. United States v. Humphrey, 279
conduct upon which he was convicted (Felon in Possession)                      F.3d 372, 379 (6th Cir. 2002).3
was the same conduct the court used to enhance his sentence
(Felonious Assault).                                                                                    III. DISCUSSION
                                                                                 United States Sentencing Guideline § 2K2.1(b)(5) provides
                                                                               that “if the defendant used or possessed any firearm or
                                                                               ammunition in connection with another felony offense . . .
    1                                                                          increase [the sentence] by four levels.”          U.S.S.G.
     At the time of the offense, Appellant had two prior felony
convictions: (1) a M arch 3 0, 1995 conviction for A ttempting to Carry a
                                                                               § 2K2.1(b)(5).     Appellant argues that the four-level
Concealed Wea pon, and (2) a June 20, 1996 conviction for Attempted
Hom e Invasion.
                                                                                   3
    2
                                                                                     In certain circumstance s, the court reviews guideline decisions under
      An evidentiary hearing was conducted to address Appe llant’s             a more deferential standard . See United States v. Ennenga, 263 F.3d 499,
objection, which asserted that Appellant had never pointed the shotgun at      502 (6th Cir. 2001). Such review has been held appropriate when the
anyone when the incident occurred. The governm ent presented the               legal decisio n is closely intertwined with the factual conclusions reached
testimony of the officer who observed Ap pellant on the night of the arrest.   by the district court. In this case, the dispute is purely a legal issue:
Appellant presented three witnesses on his behalf. The trial court             Assuming App ellant co mmitted a felo nious assault when he p ointed his
“[found] by a preponderance of the evidence that [the officer] was telling     firearm at the victim, does the sentencing enhancement for “us[ing] or
the truth when he testified that the defendant po inted the gun at B illy      possess[ing] any firearm or ammunition in connection with another felony
Sisler.” (Sentencing Hr’g Tr. at 52.) Thus, the trial court applied the        offense,” U.S.S.G. § 2K 2.1(b)(5), apply where Appellant is convicted for
§ 2K2.1(b)(5) enhancement. The trial court’s factual findings are not at       being a Felon in Possession of a Firearm? Thus, the district court’s legal
issue on app eal.                                                              determination will be reviewed de novo.
No. 02-1128                              United States v. King            5    6       United States v. King                               No. 02-1128

enhancement he received pursuant to this section was                           in the offense of conviction and the other felony offense.” Id.
improper because the state law crime, felonious assault,                       Appellant admitted to the probation officer that, on the night
occurred simultaneously with the offense of conviction and                     of the incident, he had an argument with individuals at the
thus cannot constitute “another felony.” Appellant relies on                   residence next to his girlfriend’s home. He reported that he
United States v. Sanders, 162 F.3d 396, 400 (6th Cir. 1998),                   returned to his girlfriend’s residence and retrieved his shotgun
wherein this Court held that the district court erred in                       from the bedroom closet. He loaded the shotgun and
applying § 2K2.1(b)(5) where the conduct that led to                           concealed it beneath his shirt before returning to the
defendant’s conviction for being a felon in possession of a                    neighbor’s driveway. It reportedly took two minutes to
firearm--the burglary of a pawnshop where guns were among                      retrieve the gun, load it with ammunition, and return to the
the items taken--was the same conduct utilized to apply the                    driveway. According to the officers that arrived at the scene
four-level enhancement. The reasoning underpinning the                         shortly thereafter, Appellant was pointing the gun at Sisler’s
Sanders decision, however, does not apply to the facts of this                 face and chest. It is quite clear that Appellant possessed the
case. Further, more recent, albeit unpublished, case law from                  gun well before he used it to assault Sisler. Upon storage of
this circuit supports the district court’s application of                      and then retrieval of the gun from his girlfriend’s apartment,
§ 2K2.1(b)(5).                                                                 he was committing the crime of being a felon in possession of
                                                                               a firearm. Beyond mere possession, he took the further step
   In Sanders, the defendants burglarized a pawn shop, taking                  of committing a felonious assault with the firearm. Because
firearms, electronics, and other items. They were eventually                   of this distinction in conduct, it cannot be said that Appellant
convicted for being felons in possession of firearms in                        was convicted and had his sentence enhanced based upon the
violation of 18 U.S.C. §§ 922(g)(1) and 924(a)(2). See                         same conduct. Appellant first possessed the gun (offense of
Sanders, 162 F.3d at 397-98. The defendants did not use                        conviction) and then used the gun (enhancement conduct).5
firearms during the course of the burglary. “Beyond the
contemporaneous burglary . . ., there was not ‘another felony                    The key distinction between this case and Sanders is that
offense,’ and that burglary was the basis for the federal                      the conduct giving rise to the enhancement here was not
firearms offenses charged.” Id. at 401. This Court found that                  inevitable upon completion of the underlying offense. After
the enhancement under § 2K2.1(b)(5) was improperly applied
by the district court because there was no separation of time
or distinction in conduct between the offense that led to the                      5
                                                                                     In Sanders, the court was concerned that allowing the enhancement
conviction and the conduct considered for the enhancement.4                    to stand in that case wo uld lead to “the autom atic application of this
Id. at 400.                                                                    significant 4 level Guid eline enhancement in almo st every fed eral gun
                                                                               theft case.” Sanders, 162 F.3d at 400. There is no risk o f autom atic
  In this case, unlike Sanders, there is “a separation of time                 application of the enhancement in this case . If Appellant had not pointed
between the offense of conviction and the other felony                         the gun towards Sisler, the enhancement would not apply. “Rather, the
                                                                               firearm was used to commit the assault, which is precisely the type of
offense, [and] a distinction of conduct between that occurring                 conduct that the Sentencing Comm ission intended to reach with the
                                                                               enhancem ent.” United States v. Parker, 234 F.3d 1270, 2000 WL
                                                                               1647922, *2 (6th Cir. O ct. 23, 200 0); see also U nited States v. McDona ld,
    4
                                                                               165 F.3d 1032, 1037 (6th Cir. 1999) (Section 2K2.1(b)(5) “is a sentencing
      The court also based its decision on the language of Application         enhancement provision that was created in response to a concern about
No te 18, which states, “‘another felony offense’ . . . refer[s] to offenses   the increased risk of violence when firearms are used or possessed during
other than . . . firearm s possession or trafficking offenses.”                the commission of another felony.”).
No. 02-1128                        United States v. King       7

Appellant retrieved the firearm, he could have refrained from
using the weapon to commit assault. In other words, the
enhancement conduct was not unavoidable once the
underlying offense took place; Appellant chose to point the
weapon at Sisler. Conversely, the defendants in Sanders
inevitably possessed firearms upon completion of the
burglary because the firearms were among the items taken
during the burglary.
   United States v. Parker, an unpublished decision from this
circuit, directly addresses the issue presented in this case. In
that case, the defendant made the same argument as Appellant
is asserting in this case. This Court stated:
  The incredulity of this argument renders it wholly
  unpersuasive. As a matter of logic, in order for Parker to
  shoot at his wife with the firearm, the firearm must have
  first come into his possession. The possession of the
  firearm and the ensuing assault are two independent acts,
  therefore, the felonious assault can be used to enhance
  the firearms conviction under U.S.S.G. § 2K2.1(b)(5).
Parker, 234 F.3d 1270, 2000 WL 1647922, *2 (6th Cir.
Oct. 23, 2000). This Court found the Sanders holding
inapplicable and held that the district court did not err in
using the felonious assault to enhance the defendant’s offense
level pursuant to U.S.S.G. § 2K2.1(b)(5). This case is no
different. Accordingly, Appellant’s position is without merit.
                    IV. CONCLUSION
 We find that the district court did not err in enhancing
Appellant’s sentence pursuant to U.S.S.G. § 2K2.1(b)(5).
Accordingly, the judgment of the district court is
AFFIRMED.
