                                                                                                                           Opinions of the United
2003 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


5-20-2003

USA v. Stepp
Precedential or Non-Precedential: Non-Precedential

Docket 02-4415




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                                                             NOT PRECEDENTIAL

                       UNITED STATES COURT OF APPEALS
                            FOR THE THIRD CIRCUIT
                                  __________

                                  Case No: 02-4415
                                    __________

                           UNITED STATES OF AMERICA


                                            v.

                                  JOHN LEE STEPP,
                                  a/k/a John L. Stapp,
                                     a/k/a Speedy,

                                           Appellant


                 On Appeal From The United States District Court
                      For The Western District of Pennsylvania
                             (Crim. No. 01- CR-0040E)
                District Judge: The Honorable Maurice B. Cohill, Jr.
                                    __________

                       Submitted Under Third Circuit LAR 34.1(a)
                                    May 16, 2003
                                     __________

             Before: RENDELL, SMITH and ALDISERT, Circuit Judges

                             (Opinion Filed: May 20, 2003)
                                     ___________

                                      OPINION
                                    ____________
SMITH, Circuit Judge

                                           I.
       Stepp alleges that the District Court erred in applying a four-level enhancement

pursuant to U.S. Sentencing Guidelines Manual § 2K2.1(b)(5). For the reasons that

follow, we will affirm.

                                            II.

       On November 5, 2001, appellant John Lee Stepp, Lamar Thomas and Robert

Tarver were standing in the vicinity of East 22nd Street in Erie, Pennsylvania. Stepp gave

Tarver a quarter ounce of crack cocaine to break down for further distribution. Suddenly,

a man known as Twin Beason came by, grabbed the cocaine from Tarver and fled.

       Thomas gave a handgun to Stepp, who then went in search of Beason who he

wished to scare in retaliation for stealing the cocaine. Officers apprehended Stepp,

Thomas and Tarver before they found Beason. At the time of the arrest, the handgun was

back in the possession of Thomas.

       Stepp pled guilty to one count of being a felon in possession of a firearm in

violation of 18 U.S.C. 922(g)(1). Stepp’s Presentence Investigation Report (“PSR”)

recommended that the base offense level be increased by four points, pursuant to U.S.

Sentencing Guidelines Manual § 2K2.1(b)(5), because the gun was possessed “in

connection with” a drug transaction. PSR ¶ 17. Stepp objected to this increase, but

Judge Cohill denied his objection and sentenced him to 90 months imprisonment.

       The District Court had jurisdiction over the sentencing pursuant to 18 U.S.C. §

3231, and we have jurisdiction over the appeal pursuant to 28 U.S.C. § 1291 and 18



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U.S.C. § 3742.

                                            III.

       The facts are not in dispute. Our review of the District Court’s interpretation and

application of the Sentencing Guidelines phrase “in connection with” is plenary. See

United States v. Cicirello, 301 F.3d 135, 137 (3d Cir. 2002); United States v. Titchell, 261

F.3d 348, 353 (3d Cir. 2001).

       U.S. Sentencing Guidelines Manual § 2K2.1(b)(5) states: “[i]f the defendant used

or possessed any firearm or ammunition in connection with another felony offense . . .

increase by 4 levels.” Stepp argues that it was not possible for him to possess the

handgun “in connection with” the drug transaction because he had not obtained the

weapon from Thomas until after he handed the cocaine to Tarver.

       The language “‘in connection with’ is notable for its ‘vagueness and pliability’”

and the phrase “‘should be interpreted broadly.’” United States v. Loney, 219 F.3d 281,

283-84 (3d Cir. 2000) (internal citations omitted). Connection “can encompass any

‘casual or logical relation or sequence.’” Id. at 284 (quoting Webster’s Ninth New

Collegiate Dictionary 278 (1990)); see also United States v. Brannan, 74 F.3d 448, 453

(3d Cir. 1996). But, it requires “more than just that the person committed a felony

offense and at some point in time and in some place possessed a gun.” Loney, 219 F.3d at

286. Based on this broad definition, when gun possession arises as a result of a felony,

such possession is “in connection with” that felony. Here, Stepp obtained the gun


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specifically to scare Beason and get the cocaine back from him. This was “in connection

with” Stepp’s drug transaction with Tarver. Had it not been for the drug transaction,

Stepp would not have pursued Beason with the gun.

       Although Stepp did not have the gun during his drug transaction, we have

implicitly rejected the argument that a gun must be possessed during a felony to be

possessed “in connection” with that felony. Cf. Loney, 219 F.3d at 287 (noting that the

Supreme Court’s interpretation of what constitutes carrying a gun “in relation to” a drug

trafficking offense in violation of 18 U.S.C. § 924(c)(1) may shed light on the meaning of

“in connection to,” but that the “during” requirement of § 924(c)(1) is inapplicable).

Moreover, the fact that Congress chose not to use the ‘“in connection with the

commission or attempted commission of another offense” language from U.S.S.G. §

2K2.1(c), suggests that § 2K2.1(b)(5) does not require that the gun be possessed during

the commission of the felony.   Therefore, Stepp possessed a gun “in connection with”

the drug transaction, even though he obtained it after the drug transaction was completed.

       We will affirm the sentence imposed by the District Court.

                     ______________________________________

TO THE CLERK:

       Please file the foregoing Opinion.

                                              /s/   D. Brooks Smith
                                            Circuit Judge
Date: May 20, 2003


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