                                                                                                                           Opinions of the United
2007 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


2-14-2007

USA v. Navarro
Precedential or Non-Precedential: Precedential

Docket No. 05-4102




Follow this and additional works at: http://digitalcommons.law.villanova.edu/thirdcircuit_2007

Recommended Citation
"USA v. Navarro" (2007). 2007 Decisions. Paper 1546.
http://digitalcommons.law.villanova.edu/thirdcircuit_2007/1546


This decision is brought to you for free and open access by the Opinions of the United States Court of Appeals for the Third Circuit at Villanova
University School of Law Digital Repository. It has been accepted for inclusion in 2007 Decisions by an authorized administrator of Villanova
University School of Law Digital Repository. For more information, please contact Benjamin.Carlson@law.villanova.edu.
                                         PRECEDENTIAL

          UNITED STATES COURT OF APPEALS
               FOR THE THIRD CIRCUIT


                       No. 05-4102


            UNITED STATES OF AMERICA

                             v.

                 CHARLES NAVARRO,

                            Appellant


      On Appeal from the United States District Court
          for the Eastern District of Pennsylvania
                   (D.C. No. 04-cr-00189)
       District Judge: Honorable R. Barclay Surrick


             Argued September 11, 2006
Before: FUENTES, FISHER and BRIGHT,* Circuit Judges.

                (Filed: February 14, 2007 )



      *
       The Honorable Myron H. Bright, United States Circuit
Judge for the Eighth Circuit, sitting by designation.
David L. McColgin (Argued)
Defender Association of Philadelphia
Federal Court Division
Suite 540, The Curtis Center
601 Walnut Street
Philadelphia, PA 19106
       Attorney for Appellant

Robert A. Zauzmer (Argued)
Julie M. Hess
Office of United States Attorney
615 Chestnut Street
Philadelphia, PA 19106
       Attorneys for Appellee



                 OPINION OF THE COURT


FISHER, Circuit Judge.
       After entering an “open” plea to one count of possession
of a firearm by a convicted felon, and two counts of simple
possession of controlled substances, Charles Navarro was
sentenced to 108 months imprisonment on August 19, 2005.
Navarro appeals his sentence claiming that the District Court
erred by applying an enhancement under the United States




                              2
Sentencing Guidelines (“Guidelines”) section 2K2.1(b)(5)1 in
calculating the sentence. For the reasons that follow, we will
affirm the District Court’s sentence.
                        I. Background
        On April 15, 2003, a police officer noticed Navarro
driving a Jeep in West Chester, Pennsylvania. Navarro was
wanted on state charges of aggravated assault, and the officer
attempted to effect a stop of Navarro’s Jeep. But, Navarro did
not comply. Instead, a pursuit ensued which ended with
Navarro losing control of and flipping his Jeep. The Jeep came
to a rest on its roof. Navarro then exited the Jeep, fled on foot,
and managed to escape capture.2




       1
        Section 2K2.1(b)(5) was renumbered in November 2006,
and is now section 2K2.1(b)(6). See U.S. Sentencing Guidelines
Manual § 2K2.1. Because this case is based on the Guidelines
as they existed before November 2006, we use the numbering
that existed prior to the change.
       2
        In February 2003, an officer effected a traffic stop of
Navarro’s vehicle, intending to cite him for driving without a
valid license. Navarro waited until the officer’s vehicle was
stopped, and then sped away. A few weeks later, an officer
approached Navarro’s Jeep, opened the door, and grabbed
Navarro by the arm. Navarro refused to submit, and began to
drive forward dragging the officer for approximately ten feet.
This latter incident was the basis of the aggravated assault
charge that predicated the most recent traffic pursuit.

                                3
        Navarro left behind some incriminating evidence.
Officers discovered a loaded, semiautomatic handgun on the
roof of the Jeep, above the driver’s seat. The day after the crash,
a local resident provided the police with a jacket that was found
near the scene of the crash. The jacket contained a quantity of
marijuana (weighing 3.9 grams), and several packets of cocaine
(weighing .31 grams).
       Navarro was subsequently arrested and, after waiving his
Miranda rights, gave a statement to officers. He admitted that
he had been driving the Jeep during the pursuit and that the
handgun and drugs found at the scene belonged to him. He also
confessed to another crime, previously unknown to the officers.
Navarro informed the police that he had obtained the gun in
2002 through a drug exchange. He had given an unknown
person “three rocks” of crack and had received the gun in return.
According to Navarro, he wanted the gun only for emergencies,
and usually kept it buried in the ground. He had retrieved the
gun the day before the pursuit with the intention of getting rid of
it.
       Navarro was initially charged by state authorities with
two counts of possession of a controlled substance, but these
charges were subsequently dismissed in favor of federal
prosecution. A federal indictment, filed in the District Court for
the Eastern District of Pennsylvania, charged Navarro with one
count of possession of a firearm by a convicted felon, see 18
U.S.C. § 922(g), and two counts of simple possession of
controlled substances (cocaine and marijuana), see 21 U.S.C.
§ 844(a). He was not, however, charged with possession of
crack or possession with intent to distribute.



                                4
       Navarro entered an “open” plea of guilty to the
indictment, and therefore there was no plea agreement. He
admitted during a plea colloquy that he had possessed both the
firearm and the controlled substances found at the scene of the
crash. He also acknowledged that he had given a statement to
officers following his arrest, but he denied telling them how he
had obtained the gun or admitting that he had engaged in a drug
transaction. The District Court accepted the plea with this
qualification.
       A pre-sentence report recommended that Navarro’s
sentencing range be enhanced by four levels under section
2K2.1(b)(5) of the Guidelines, because the firearm had been
possessed “in connection with another felony offense.” See U.S.
Sentencing Guidelines Manual § 2K2.1(b)(5). The predicate
offense for the enhancement, according to the report, was simple
possession of cocaine and marijuana. Defense counsel objected,
arguing that the enhancement could not apply because the
predicate offense, simple possession of a controlled substance,
see 21 U.S.C. § 844(a), is not a felony. The Government
conceded this point.3 However, the Government asserted that


       3
        It appears that the Government’s concession of this point
was unnecessary, and that the pre-sentence report’s conclusion
that the simple possession charges constituted “another felony
offense” was correct. Simple possession is not a felony under
21 U.S.C. § 844(a) when there are no prior drug convictions
because it is not punishable by more than one year in prison.
See U.S. Sentencing Guidelines § 2K2.1 cmt. n.4. However, if
a defendant has prior drug convictions, state or federal, simple
possession is a felony because the defendant can be sentenced

                               5
the enhancement should nevertheless apply based on the felony
offense of drug distribution, see 21 U.S.C. § 841, to which
Navarro had confessed in his statement to the police.
        A sentencing hearing was held in August 2005. The
officer who had taken Navarro’s statement at the police station
testified that Navarro admitted that the handgun was obtained
through a drug transaction. A recording and transcript of the
statement introduced into the record confirmed the officer’s
recollection. Defense counsel argued that the evidence was
insufficient to prove that the drug transaction had occurred.
Additionally, defense counsel argued, notwithstanding the
evidentiary deficiency, the offense could not support the
enhancement under section 2K2.1(b)(5) because the firearm had
been obtained as a direct result of the drug transaction.
Essentially, the argument was that the offense was not
sufficiently distinct from the firearms possession crime to
qualify as “another felony offense” for purposes of section
2K2.1(b)(5).
      The District Court overruled the objection. It concluded
that Navarro’s statement, made after he had been given his


to more than one year in prison. See 21 U.S.C. § 844(a).
Navarro was convicted under Pennsylvania law of possession of
a controlled substance with intent to deliver in 1996. Therefore,
Navarro had a prior drug conviction and could be sentenced to
more than one year in jail for the 2004 charges of simple
possession of marijuana and cocaine. See 21 U.S.C. § 844(a);
U.S. Sentencing Guidelines § 2K2.1 cmt. 4. Regardless,
because the government conceded this argument we must
analyze the case as it stands before us.

                               6
Miranda rights, was sufficient to prove that the drug transaction
had in fact occurred.4 Without directly addressing defense
counsel’s argument that the drug transaction could not qualify
as “another felony offense,” the District Court held that section
2K2.1(b)(5) should be applied.
       The final Guidelines range, with the enhancement and
based on an offense level of twenty-three and a criminal history
category of VI, was 92 to 115 months.5 The District Court, after
hearing argument on the remaining factors under 18 U.S.C.



       4
        Specifically, the District Court stated:

       The statement given by [Navarro] to the
       authorities which has been offered into evidence,
       indicates that [Navarro], in fact, purchased this
       gun in a drug transaction. He gave someone
       crack cocaine in return for the gun. That
       statement was given after [Navarro] was
       Mirandized. There was no reason to believe that
       he wasn’t being truthful with the officers, and I
       am satisfied that [Navarro] under the
       circumstances possessed a firearm in connection
       with this drug transaction and, therefore, the four
       level enhancement is appropriate.
       5
        Navarro contends that without the four-level
enhancement the Guideline range would have been 63 to 78
months based on a total offense level of nineteen and a criminal
history category of VI.

                                7
§ 3553(a), imposed a term of imprisonment of 108 months.6
Navarro timely filed this appeal.
                         II. Discussion
        The sole question raised on appeal is the propriety of the
four-level enhancement under section 2K2.1(b)(5).7 We have
jurisdiction pursuant to 18 U.S.C. § 3742(a) and 28 U.S.C.
§ 1291. See United States v. Batista De La Cruz, 460 F.3d 466,
468 (3d Cir. 2006). We review de novo a district court’s
interpretation of the Guidelines. Id. (citing United States v.
Urban, 140 F.3d 229, 234 (3d Cir. 1998)). Our review of a
district court’s finding of facts is for clear error. Batista De La
Cruz, 460 F.3d at 468 (citing United States v. Lennon, 372 F.2d
535, 538 (3d Cir. 2004)).
       It is relatively rare for a firearms offense to be
unaccompanied by other illegal conduct. Possession of a gun is
often a practical prerequisite for the sale of controlled
substances or commission of other violent acts. Many
defendants charged with unlawful possession of a firearm are


         6
        The District Court sentenced Navarro to 108 months
imprisonment for the violation of 18 U.S.C. § 922(g)(1). On the
two counts in violation of 21 U.S.C. § 844(a), the District Court
sentenced Navarro to 12 months of imprisonment for each of the
violations to run concurrently with the 108 month sentence.
Additionally, the District Court ordered three years of
supervised release and a $300 special assessment.
         7
          Navarro did not appeal the sufficiency of the evidence
issue.

                                8
also guilty of, although sometimes not charged with, separate
state or federal crimes.8 See, e.g., United States v. Loney, 219
F.3d 281, 285-86 (3d Cir. 2000); cf. United States v. Regans,
125 F.3d 685, 686 (8th Cir. 1997) (“[A] firearm is a ‘tool of the
trade’ for drug dealers . . . .”).
        To ensure that the final sentence reflects the defendant’s
culpability for these other offenses, the Guidelines provide for
an increase in the base sentencing range when the firearm is
possessed in connection with “another felony offense.” See
Loney, 219 F.3d at 287-88; see also United States v. McDonald,
165 F.3d 1032, 1037 (6th Cir. 1999) (explaining that section
2K2.1(b)(5) “was created in response to a concern about the
increased risk of violence when firearms are used or possessed
during the commission of another felony”) (emphasis omitted).
Section 2K2.1(b)(5) of the Guidelines states, in pertinent part,
as follows:



       8
         See, e.g., Bureau of Justice Statistics, U.S. Dep’t of
Justice, Federal Firearms Offenders, 1992-1998 (2000),
available at http://www.ojp.usdoj.gov/bjs/pub/pdf/ffo98.pdf;
Bureau of Justice Statistics, U.S. Dep’t of Justice,
Firearm Use by Offenders (2001), available at
http://www.ojp.usdoj.gov/bjs/pub/pdf/fuo.pdf; Bureau of Justice
Statistics, U.S. Dep’t of Justice, Guns and Crime: Handgun
Victimization, Firearm Self-Defense, and Firearm Theft (1994),
available at http://www.ojp.usdoj.gov/bjs/pub/ascii/hvfsdaft.txt;
Bureau of Justice Statistics, U.S. Dep’t of Justice, Firearm
Injury and Death from Crime, 1993-97 (2000), available at
http://www.ojp.usdoj.gov/bjs/pub/pdf/fidc9397.pdf.

                                9
       If the defendant used or possessed any firearm or
       ammunition in connection with another felony
       offense . . . increase by 4 levels.
U.S. Sentencing Guidelines Manual § 2K2.1(b)(5). The
commentary to the section explains that “[a]s used in
subsection[] (b)(5) . . . ‘another felony offense’ . . . refer[s] to
offenses other than explosives or firearms possession or
trafficking offenses.” Id. § 2K2.1 cmt. n.15. In other words, the
enhancement should apply only when the predicate offense is
distinct from the firearms possession crime of which the
defendant was convicted.
       The enhancement is most often applied in circumstances
in which the firearm was employed during a drug transaction or
violent crime, either to protect the defendant or to threaten or
harm a victim. See, e.g., Loney, 219 F.3d at 287. This case is
atypical in this respect. The firearm here was neither used nor
intended as a means of intimidation or protection, but rather was
proffered as an item of trade. It was given to Navarro in
exchange for the drugs, but it did not otherwise facilitate the
drug distribution offense.
        Navarro seizes on this distinction. He argues that,
because possession of the firearm constituted an integral aspect
of the drug distribution offense, that offense must be considered
part of the underlying firearms possession crime – not “another
felony offense” – and cannot support the enhancement under
section 2K2.1(b)(5). He also claims that, even if the drug
distribution qualifies as “another felony offense,” the firearm
was not possessed “in connection with” the drug distribution
because it was not brandished or otherwise used to facilitate the
offense.

                                10
A.     “Another Felony Offense”
       The primary argument Navarro raises against the
enhancement is that the drug distribution in this case does not
qualify as “another felony offense,” separate from the firearms
possession crime, because possession of the firearm formed an
integral aspect of that offense. We have addressed similar
arguments in two previous cases: United States v. Fenton, 309
F.3d 825 (3d Cir. 2002), and United States v. Lloyd, 361 F.3d
197 (3d Cir. 2004). The reason that these cases were resolved
differently – Fenton against application of the enhancement and
Lloyd in favor of it – guides the resolution of this case.
       1.     Fenton
        The predicate offense in Fenton was burglary. 309 F.3d
at 826-27. The defendant had broken into a sporting goods store
and stolen several firearms, and he was later convicted of
unlawful possession of those firearms. Id. In calculating the
recommended sentencing range, the district court found that the
burglary constituted “another felony offense” and that the
firearms had been possessed “in connection with” that offense.
Id. It therefore applied, over an objection by defense counsel,
the enhancement under section 2K2.1(b)(5). Id.
        We reversed the district court’s judgment of sentence.
We held that the phrase “another felony offense,” as used in
section 2K2.1, requires a “distinction in time or conduct”
between the predicate offense and the firearms possession crime.
Id. at 827-28. Specifically, possession of the firearm cannot
constitute an integral aspect of the predicate offense; if it does,
then the two offenses must be considered one and the same, and
the predicate offense cannot be deemed “another felony offense”

                                11
for purposes of section 2K2.1(b)(5). Id. Possession of the
firearm was an integral aspect of the predicate offense because
Fenton possessed the guns because he had stolen them. Id. at
826-27. We summarized the holding in a single sentence: “[A]
state law crime, identical and coterminous with the federal
crime, cannot be considered as ‘another felony offense’ within
the meaning of the Sentencing Guidelines.” Id. at 826.
        Of particular concern to this Court was the possibility of
double-counting. The theft of the firearms in Fenton had
already been used to establish the base sentencing range for the
substantive offense (unlawful possession of a firearm) and to
support an enhancement for possession of a “stolen” firearm.
Id. at 827-28. To use the same conduct to support yet another
enhancement, for possession of the firearm in connection with
“another felony offense,” seemed fundamentally unfair. See
also id. at 828 (“[W]e are troubled by the fact that almost every
federal weapons offense could be prosecuted simultaneously
under state law.”).
       We noted that this interpretation accorded with the plain
language of the provision, the presumption of lenity in the
interpretation of criminal statutes, and the decisions of the
Courts of Appeals for the Sixth and Seventh Circuits. Id. at
827-28; see United States v. Sanders, 162 F.3d 396, 399-400
(6th Cir. 1998) (concluding that enhancement for stealing
firearms during burglary of pawn shop was improper because
there was no separation of time or conduct); United States v.
Szakacs, 212 F.3d 344, 351 (7th Cir. 2000) (holding that
conspiracy to steal firearms was not sufficiently distinct from
firearms possession to be considered “another felony offense”
for purposes of section 2K2.1(b)(5)). We rejected contrary

                               12
decisions from the Courts of Appeals for the Fifth and Eighth
Circuits. Fenton, 309 at 827-28; see United States v. Luna, 165
F.3d 316, 323-24 (5th Cir. 1999) (holding that enhancement
could apply when firearm was obtained as a result of burglary);
United States v. Kenney, 283 F.3d 934, 938-39 (8th Cir. 2002)
(concluding that enhancement could apply when firearm was
obtained as result of theft). Additionally, the majority in Fenton
rejected the dissent’s argument that the majority’s concerns over
double-counting were unfounded because possession of a
firearm – even if it forms an integral aspect of the predicate
offense – always has the independent potential to facilitate the
predicate offense, warranting an additional enhancement in the
sentence, see Fenton, 309 F.3d at 282-30 (Roth, J., dissenting).
See id. at 827-28.
       2.     Lloyd
        Fenton was revisited and revised in Lloyd. The
defendant in Lloyd admitted to having placed a bomb under the
car of an intended victim and pleaded guilty to unlawful
possession of a destructive device in violation of 26 U.S.C.
§ 5861(d), and conspiracy to violate that provision in violation
of 18 U.S.C. § 371. 361 F.3d at 199. The district court found
that the defendant had possessed the firearm9 in connection with
the felony offense of criminal mischief, see 18 Pa. Cons. Stat.
§ 3304, and applied the enhancement under section 2K2.1(b)(5).
Lloyd, 361 F.3d at 199-200. It overruled the defendant’s

       9
        A destructive device is considered a “firearm” under
federal law. See, e.g., 18 U.S.C. § 921(a)(3), cited in U.S.
Sentencing Guidelines Manual § 2K2.1 cmt. n.1; see also 26
U.S.C. § 5845(a).

                               13
objection that, under Fenton, the enhancement could not apply
because possession of the firearm was an integral part of the
offense. Id.
       This Court affirmed. We implicitly acknowledged that
a broad reading of Fenton might support the defendant’s view:
possession of the firearm constituted an integral part of the
criminal mischief and therefore the latter offense should
arguably not be considered “another felony offense” under the
reasoning of Fenton. Id. at 200-02. However, the Court in
Lloyd rejected this view in favor of a new, broader analysis of
section 2K2.1(b)(5).
        We held that a predicate offense can be considered
“another felony offense” under section 2K2.1(b)(5) if it satisfies
the test announced in Blockburger v. United States, 284 U.S.
299 (1932). Lloyd, 361 F.3d at 200-01. Under the Blockburger
test, punishment may be imposed under two criminal statutes
based on the same conduct if each of the two crimes requires
proof of an element that the other does not. 284 U.S. at 304.
The Court in Lloyd imported this analysis to section
2K2.1(b)(5), stating that an offense can be deemed “another
felony offense” only if that offense and the firearms possession
crime each have one element that the other does not. 361 F.3d
at 200-01.
        This definition, if taken alone, conflicts with Fenton.
The offense in Fenton was burglary, and burglary and firearms
possession each require proof of an element that the other does
not. Compare 18 Pa. Cons. Stat. § 3502(a) (requiring proof of
entry in a building, but not possession of a firearm, to establish
burglary), with 18 U.S.C. § 922(I) (requiring proof of possession
of a firearm, but not entry into a building, to establish unlawful

                               14
possession of a stolen firearm). Under the pure Blockburger
test, and contrary to Fenton, burglary would be considered
“another felony offense” and would support an enhancement
under section 2K2.1(b)(5), no matter the particular
circumstances of the offense. See Lloyd, 361 F.3d at 200-02.
        The Court in Lloyd reconciled this potential conflict by
interpreting Fenton as imposing an additional, factual layer of
analysis over the Blockburger test. Id. It found support for this
interpretation in the application notes to section 2K2.1, which
excepts from the definition of “another felony offense” those
crimes that constitute “explosives or firearms possession or
trafficking offenses.” U.S. Sentencing Guidelines Manual
§ 2K2.1 cmt. n.15. This exception, the Court held, reflected an
intent to exclude from the definition of “another felony offense”
those crimes that are so closely linked to firearms possession
that they may themselves be deemed “firearms possession
offenses.” Lloyd, 361 F.3d at 200-01. If mere possession of the
firearm was an integral aspect of the predicate offense, then that
offense must be deemed the functional equivalent of a “firearms
possession offense,” meaning that the enhancement cannot
apply. Id.
       The decision in Fenton reflected this understanding. The
defendant in Fenton had committed burglary by entering the
sporting goods store with the intent to commit a crime therein.
The crime at issue, the theft of the firearms, involved only the
possession of the firearms; they were not brandished or
otherwise used to facilitate the burglary. Possession of the
firearms served no purpose other than satisfaction of an essential
legal element of the offense. Under these circumstances,
burglary was properly considered a “firearms possession

                               15
offense,” precluding application of the enhancement.            Id.
(discussing Fenton).
        However, the Court in Lloyd stressed that “the
characterization of theft or burglary of a firearm as a ‘firearms
possession offense’ without a doubt marks the extreme outer
limits of that category.” It noted that “the fact patterns of cases
such as Sanders, Szakacs, and Fenton are practically sui generis
in terms of the inapplicability of [section] 2K2.1(b)(5).” Id. at
204 n.5.
       The predicate offense in Lloyd, criminal mischief, easily
passed muster under the refined standard. It satisfied
Blockburger because the two offenses each require an element
that the other does not: criminal mischief requires proof of
danger to third parties but not possession of a firearm whereas
firearms possession requires proof of possession of a firearm but
not danger to third parties. Id. at 204-05. It also satisfied
Fenton because, as a factual matter, “the manner in which [the
defendant] used the bomb extended far beyond simple
possession.” Id. The defendant’s offense had involved not
merely simple possession of the bomb but affirmative use of the
device in an attempt to destroy property. It therefore could not
be considered the functional equivalent of a “firearms
possession offense.” Id.
       The Court cited with approval the decisions from the
Sixth and Seventh Circuits in United States v. King, 341 F.3d
503 (6th Cir. 2003), and United States v. Purifoy, 326 F.3d 879
(7th Cir. 2003). Lloyd, 361 F.3d at 203-05; see King, 341 F.3d
at 506-07 (holding that offense of assault, when committed with
firearm, could be considered “another felony offense” for
purposes of section 2K2.1(b)(5)); Purifoy, 326 F.3d at 880-81

                                16
(same). In these cases, as in Lloyd, the firearm was not merely
possessed, but was actually used by the defendant to threaten or
attempt to harm the victim. We concluded that “[t]he criminal
mischief alleged here is more similar to the crime of assault (as
in King and Purifoy) than it is to the crimes of burglary or theft
that result in possession of firearms (as in Sanders, Szakacs, and
Fenton).”10 Id.
       3.     The Standard of Lloyd and Fenton
        From Lloyd and Fenton a two-part standard may be
distilled for determining whether an offense committed in
connection with possession of a firearm may support an
enhancement under section 2K2.1(b)(5). The first part of the
test, from Blockburger, is legal in nature and asks whether the
predicate offense and the firearms possession crime each have
an element that is not shared by the other. Lloyd, 361 F.3d at

       10
         In Lloyd we rejected the government’s invitation to
adopt a broader reading of section 2K2.1(b)(5), under which a
crime would be considered “another felony offense” whenever
the completion of that crime is temporally separate from
possession of the firearm. 361 F.3d at 203. This approach
would preclude application of the enhancement only in those
cases in which possession of the firearm occurred at the same
time as commission of the other offense. Id. Adoption of this
standard would arguably contravene Fenton, since the offense
of burglary was completed when the defendant entered the
building with the intent to commit a felony (whether or not he
actually committed that felony) and therefore the possession of
the firearms was temporally separate from that crime. Id. at 203,
205.

                               17
204-05; see also Blockburger, 284 U.S. at 304. The second part
of the test, from Fenton, is essentially factual in nature and asks
whether more than mere possession of the firearm –
brandishment or other use – was an integral aspect of the
predicate offense.11 Lloyd, 361 F.3d at 204-05; see also Fenton,
309 F.3d at 827-28. If these two questions are answered in the
affirmative, then the four-level enhancement under section
2K2.1(b)(5) should apply. See id.
       Judged by this standard, it is clear that the District Court
properly applied the enhancement under section 2K2.1(b)(5).
The predicate offense in this case was drug distribution under 21
U.S.C. § 841(a), a “felony offense” under the Guidelines. See
21 U.S.C. § 841(b)(1)(C); U.S. Sentencing Guidelines § 2K2.1
cmt. n.4.
        The offenses of drug distribution and firearms possession
satisfy the first part of the Lloyd standard, the Blockburger test.
Dispensation of a controlled substance is an element of drug
distribution but not of firearms possession; possession of a
firearm is an element of firearms possession but not of drug

       11
          Although not directly relevant to resolution of this
case, it should be noted that the application notes of section
2K2.1 of the Guidelines have been amended, and the
amendments became effective in November 2006. See U.S.
Sentencing Guidelines Manual § 2K2.1 cmt. n.14 (providing for
broader interpretation of “another felony offense,” covering
even those offenses that involve only simple possession of a
firearm). We recognize that the amendments call into question
our decision in Fenton for defendants who are sentenced under
the current Guidelines and application notes.

                                18
distribution. Compare 21 U.S.C. § 841(a) with 18 U.S.C.
§ 922(g). The two offenses each have an element not shared by
the other and therefore should be viewed as separate offenses for
purposes of section 2K2.1(b)(5).
       The offenses also satisfy the second part of the Lloyd
standard, the Fenton test. The offense of drug distribution
involves only the dispensation of a controlled substance; it does
not require an exchange of something of value. See, e.g., United
States v. Coady, 809 F.2d 119, 124 (1st Cir. 1987). Navarro’s
possession of the firearm was therefore not an integral aspect of
the offense. Because the offense did not involve mere
possession of the firearm, it cannot be deemed the functional
equivalent of a “firearms possession offense.” The enhancement
under section 2K2.1(b)(5) can apply.
       Notwithstanding the relative simplicity of this analysis,
the parties have engaged in an extensive debate over the
meaning of Lloyd and its effect on Fenton. These discussions
are almost wholly unnecessary because, even under a broad
reading of Fenton, the enhancement in this case would be
applicable.
        The problem can be traced to a minor misunderstanding
of what constituted the “other” felony offense in this case. The
“other” offense in the case is described by the parties in various
ways including drug trafficking, drug dealing, trading drugs for
a gun, and drug distribution. In reality, the offense is drug
“distribution.” See 21 U.S.C. § 841. “Distribution” involves
only dispensation, without the necessity of something being
provided in return. See id. at 508; see also, e.g., Coady, 809
F.2d at 124. Because receipt of something of value is not an
essential element of drug distribution, Navarro’s possession of

                               19
the firearm was not an integral aspect of the offense.12 The
offense therefore cannot be considered the functional equivalent
of a “firearms possession offense.”
B.     “In Connection With”
      Having determined that drug distribution qualifies as
“another felony offense” for purposes of section 2K2.1(b)(5),
the only remaining question is whether the firearm was
possessed “in connection with” that offense. This is easily
answered in the affirmative.
       The Supreme Court held, in Smith v. United States, 508
U.S. 223 (1993), that a defendant who trades a firearm for drugs
is properly found to have “use[d]” the firearm “during and in
relation to” the offense of drug distribution, warranting
application of the mandatory minimum sentence of 18 U.S.C.
§ 924(c)(1). Smith, 508 U.S. at 241. The Court held that this
provision requires, at a minimum, that the presence of the
firearm “facilitat[es], or ha[s] the potential of facilitating,” the
offense. Smith, 508 U.S. at 238. The standard is clearly met
when the defendant trades a firearm for drugs, the Court
concluded, because without the firearm “the deal would not [be]
possible.” Id.; see also United States v. Sumler, 294 F.3d 579,
580 (3d Cir. 2002); United States v. Cotto, 456 F.3d 25, 28 (1st
Cir. 2006).
       We adopted the same standard for determining whether
a firearm is possessed “in connection with” another felony

       12
         We recognize that if an element of the felony offense of
drug distribution required the receipt of something of value that
under Fenton this would constitute mere possession.

                                20
offense for purposes of section 2K2.1 of the Guidelines. In
United States v. Loney, we held that the enhancement should
apply when possession of the firearm “facilitat[es], or ha[s] the
potential of facilitating,” the other offense. See id. at 287
(quoting Smith, 508 U.S. at 238). The enhancement was
properly applied in Loney because the defendant had possessed
a loaded firearm for protection during a drug transaction,
demonstrating that the presence of the firearm facilitated the
deal. Id. at 288.
       Under this standard, there can be no doubt that Navarro’s
possession of the firearm during the drug transaction facilitated
the offense. Navarro dispensed the drugs only so that he could
secure the firearm in return; in other words, the drug distribution
would not have occurred if Navarro had not possessed the
firearm. The reasoning of Smith, adopted in Loney, is directly
applicable here: the possession of a firearm facilitates a drug
transaction when that firearm serves as an item of trade. See
Smith, 508 U.S. at 238. The enhancement under section
2K2.1(b)(5) is thus applicable. See Loney, 219 F.3d at 287; see
also United States v. Garnett, 243 F.3d 824, 829 (4th Cir. 2001)
(holding that “trading a firearm for drugs” can support an
enhancement under section 2K2.1) (citation omitted).
                        III. Conclusion
       The enhancement of section 2K2.1(b)(5) is properly
applied when the defendant obtains a prohibited firearm through
a drug trade. In such cases, possession of the firearm facilitates
the offense of drug distribution but does not constitute an
integral aspect of that offense. The District Court in this case
properly found that, by exchanging drugs for the firearm, the
defendant had possessed the firearm “in connection with another

                                21
felony offense,” warranting application of the enhancement
under section 2K2.1(b)(5). For the foregoing reasons, we will
affirm the District Court’s judgment of sentence.


BRIGHT, Circuit Judge, dissenting.
       I respectfully dissent. In my judgment, this case rests on
reading a guideline rule, U.S.S.G. § 2K2.1(b)(5), and its
exception as set forth in Note 15, and determining whether
Navarro’s drugs for gun exchange falls within the exception.
Note 15 explains that “another felony offense” in U.S.S.G.
§ 2K2.1(b)(5) “refer[s] to offenses other than explosives or
firearms possession or trafficking offenses.” U.S.S.G. § 2K2.1,
cmt. n.15 (2004); see United States v. Lloyd, 361 F.3d 197, 201
(3d Cir. 2004) (Note 15 (then Note 18) categorically excludes
firearm possession and trafficking offenses from definition of
another felony offense). I agree with Navarro’s contention in
this case that his bartering drugs for a gun constitutes a means
of possessing a firearm such that the enhancement cannot apply
under Note 15.
        In United States v. Fenton, 309 F.3d 825, 828 (3d Cir.
2002), this court refused to apply the same enhancement when
the defendant acquired the firearms he was convicted of
possessing by stealing them. Then Judge Alito explained in
Lloyd that Fenton stands “for the proposition that, where a
defendant is convicted for possession of firearms resulting from
a theft of those same firearms, that theft is effectively a ‘firearms
possession . . . offense’ . . . since that crime necessarily involves
a taking and carrying away of the firearms involved.” Lloyd,
361 F.3d at 202; see also United States v. Szakacs, 212 F.3d

                                 22
344, 350 (7th Cir. 1999) (declining to apply enhancement to
burglary when items stolen are firearms); United States v.
Sanders, 162 F.3d 396, 399 (6th Cir. 1998) (same). Just as the
defendant in Fenton stole the firearms he was convicted of
possessing, Navarro purchased with drugs the firearm he was
convicted of possessing. The illegal means by which both men
came into possession of the firearms cannot be separated from
the possession itself; both crimes necessarily involve possession
and taking and carrying away of the gun.13 In light of such
precedent, in my view, it is incorrect for the majority to hold
that buying a gun through illegal means justified the
enhancement, when, as in Fenton, stealing a gun did not.
        Application of the exception in Note 15 to the present
case is also consistent with this court’s decision in Lloyd. In that
case, the defendant placed a bomb under a car and ignited it
(without causing an explosion because of a malfunction). Lloyd,
361 F.3d at 199. The court determined that possession of the
homemade bomb warranted enhancement under § 2K2.1(b)(5).
Id. at 205. Although the defendant in that case possessed the
explosive device while he placed it under a car and ignited it, it
was not, as here and as in Fenton, the means through which he
came into possession of the bomb. See Lloyd, 361 F.3d at 199.
       Here, the majority stresses that the elements of the
offense of drug “distribution” does not require an exchange of

       13
         As explained in Szakacs, although neither of these
crimes in generic form necessarily include possession of a
firearm, the crimes as they occurred in these cases necessarily
included the possession or trafficking of a firearm. See 212 F.3d
at 350.

                                23
something of value, rather than focusing on the facts as they
occurred in this case. In this case, firearm possession was
integral to Navarro’s drugs for guns exchange – the exchange
was the means through which he came into possession of the
gun. There is no indication that Navarro brandished the gun,
threatened anyone with it, or otherwise engaged in any behavior
beyond mere possession.
       For these reasons, I respectfully dissent and would
reverse the District Court’s application of the enhancement
under U.S.S.G. § 2K2.1(b)(5).




                              24
