                            In the
 United States Court of Appeals
              For the Seventh Circuit
                         ____________

No. 06-3462
UNITED STATES OF AMERICA,
                                               Plaintiff-Appellee,
                                v.

DARRYL FRANKLIN,
                                           Defendant-Appellant.
                         ____________
           Appeal from the United States District Court
      for the Northern District of Illinois, Eastern Division.
      No. 05 CR 848—James F. Holderman, Chief Judge.
                         ____________
     ARGUED APRIL 6, 2007—DECIDED APRIL 30, 2007
                     ____________


  Before POSNER, FLAUM, and EVANS, Circuit Judges.
  FLAUM, Circuit Judge. Darryl Franklin pleaded guilty
to two counts of using a telephone in the commission of a
drug crime, in violation of 21 U.S.C. § 843(b). The district
court sentenced Franklin to 84 months of imprisonment
applying the dangerous weapon enhancement under
Sentencing Guideline § 2D1.1(b)(1). Franklin appeals the
district court’s decision to enhance his sentence. For the
following reasons, we reverse the district court’s deci-
sion and remand for re-sentencing.
2                                               No. 06-3462

                     I. BACKGROUND
  On June 10, 2004, Franklin arranged to buy four ounces
of cocaine from his drug supplier, Rafael Hardy. Two days
later, on June 12, 2004, Franklin and his fiancée drove
from Minnesota to Chicago and purchased 4.5 ounces of
powder cocaine from Hardy for $2500. Before Franklin
left Chicago, he and Hardy cooked one-eighth of an ounce
of the powder cocaine into crack cocaine. On the return
trip, Franklin sat in the front passenger seat of his van
while his fiancée drove. Chicago police officers Donald Hill
and Ziad Hamideh, who were investigating Franklin as
part of a larger drug conspiracy, stopped the van. As the
officers approached the van, they observed a knife in a
leather sheath in plain view by Franklin’s foot. They also
saw a razor blade covered in a white powdery substance
in the front console ashtray. To keep the drug investiga-
tion covert, the officers told Franklin and the driver that
there was a stabbing in Elgin—an event that never
occurred—and that the assailants were in a van matching
the description of Franklin’s vehicle. Franklin and his
fiancée consented to a search of the van. During the
search, the officers found 118.2 grams of powder cocaine
inside the car’s interior wall behind the driver’s seat. They
kept the drugs but released Franklin and his fiancée. The
officers did not confiscate the knife.
  On June 13, 2004, police intercepted a call between
Franklin and Hardy, during which Franklin told Hardy
about the officers’ search. Franklin informed Hardy that
the officers had taken the powder cocaine, but did not
find the crack cocaine. Franklin also relayed the officers’
story about the basis for the stop and expressed concern
because he had a knife in his van. He asked Hardy, “you
know the knife I keep on the side of my seat . . . . You ain’t
never seen that?”
 On October 12, 2005, a grand jury indicted Franklin and
numerous other individuals, including Hardy, for con-
No. 06-3462                                                3

spiracy to possess with intent to distribute controlled
substances. On April 5, 2006, the government filed a
superceding information charging Franklin with two
counts of using a telephone in the commission of a drug
crime in violation of 21 U.S.C. § 843(b). On April 6, 2006,
Franklin pleaded guilty to both counts. The probation
office prepared a pre-sentence investigation report (“PSR”)
that recommended a two-level dangerous weapon enhance-
ment under U.S.S.G. § 2D1.1(b)(1) because of the knife
in Franklin’s van. Franklin filed a sentencing memoran-
dum objecting to the dangerous weapon enhancement. The
government did not file a response.
  On August 24, 2006, the district court held a sentencing
hearing at which Franklin reiterated his objection to the
dangerous weapon enhancement. Franklin testified that
he “bought [the knife] from a flea market, because I was
using it as a tool because I am an electrician. It was just
something that I had in the car. And it was in a little case,
and it was the kind you put on the side of your belt. The
main purpose was I strip wires with it.” He described the
knife as “a little pocket knife” in a little leather case and
stated that the knife was on the console “right between the
seats of the van.” The government did not contest Frank-
lin’s assertion that he was an electrician or that electri-
cians use such a knife in their trade. After hearing Frank-
lin’s testimony, the district court stated, “I believe that
the enhancement should not apply.”
  The district court then reviewed an FBI report regard-
ing the stop and noted two discrepancies between Frank-
lin’s testimony and the report. First, although Franklin
testified that the knife was on the console, the report
indicated that the officers saw it by Franklin’s foot.
Second, the district court noted that the report described
the knife as being in a leather sheath while Franklin
testified that the knife was in a case. The court then
4                                             No. 06-3462

changed its position and ruled that the dangerous
weapon enhancement applied.
  When calculating Franklin’s applicable Guidelines
range, the district found that the appropriate base offense
level was 26. It then applied the two-level dangerous
weapon enhancement, and reduced the offense level by
three for acceptance of responsibility. Because Franklin’s
criminal history category was IV, the district court found
that the corresponding Guidelines range was 84 to 105
months, with a statutory maximum of 96 months. The
district court sentenced Franklin to 84 months in prison.


                      II. ANALYSIS
  Franklin argues that the district court erred by apply-
ing the § 2D1.1(b)(1) enhancement for possession of a
dangerous weapon. This Court reviews the district court’s
factual determination to enhance a sentence under
§ 2D1.1(b)(1) for clear error. United States v. Bothun, 424
F.3d 582, 586 (7th Cir. 2005).
  Section 2D1.1(b)(1) provides for a two-level increase in
the base offense level “if a dangerous weapon (including
a firearm) was possessed.” The Guidelines define “danger-
ous weapon” as “an instrument capable of inflicting
death or serious bodily injury.” U.S.S.G. § 2D1.1(b)(1).
Application Note 3 to the commentary states that “[t]he
enhancement for weapon possession reflects the in-
creased danger of violence when drug traffickers possess
weapons. The adjustment should be applied if the weapon
was present, unless it is clearly improbable that the
weapon was connected with the offense.” Id. Franklin
concedes that he had possession of the knife during the
commission of his crime and bears the burden of showing
that it was clearly improbable that the knife was con-
nected to his offense. Bothun, 424 F.3d at 586.
No. 06-3462                                              5

  The district court decided to apply the dangerous
weapon enhancement after noting two discrepancies
between Franklin’s testimony and an FBI report about
the search of Franklin’s van. It first noted that the FBI
report stated that the knife was located by Franklin’s
foot and not on the console. Although the district court
was free to credit the FBI report over Franklin’s testi-
mony, the district court did not explain why the knife’s
location made it more likely that it was used in connection
with Franklin’s offense. Arguably, the knife would have
been more accessible on the console, between the front
seats in the van, than on the floor by Franklin’s foot.
Because the government agreed that Franklin did not
attempt to hide the knife, the district court’s conclusion
is particularly problematic.
  The district court was also troubled by the fact that
Franklin said he possessed a pocket knife even though the
FBI report stated that Officer Hamideh observed the
knife in a leather sheath. The district court made this
point during the following exchange with Franklin:
   Court:      Now, you say this was a pocket knife, but
               there was a leather sheath—
   Franklin:   Yeah, it was a—
   Court:      —for the blade?
   Franklin:   It was inside a leather case, uh-huh. It was
               inside a leather case, and it was like a
               little pocket knife, ’cause I do electrical,
               Your Honor.
   Court:      A pocket knife folds up.
   Franklin:   Yeah, and it was inside a case, sir. Be-
               cause, you know, when you doing like—
   Court:      A case is different than a sheath. A sheath
               covers the blade.
6                                               No. 06-3462

    Franklin:   No, it wasn’t the kind that stays out. You
                flick it open, a pocket like, a pocket knife.
This exchange suggests that the district court miscon-
strued the definition of “sheath.” It stated that a case
is different than a sheath because a sheath covers the
blade, but that is not always true. One definition of sheath
is “a case or covering for the blade of a sword, dagger, or
the like.” A second definition, however, is “any similar
close-fitting covering or case.” Webster’s Collegiate Dictio-
nary 1145 (11th ed. 2003). The district court seems to
have inferred that the knife was larger than Franklin
alleged because it believed that a sheath was different
from a case and only covered the knife’s blade. The district
court’s interpretation is of concern because Franklin
tried to clear up the confusion by stating that this was
not “the kind of knife that stays out.”
   Another fact that heavily counsels in favor of reversal is
that the police officers who stopped Franklin in his van
saw the knife, made note of it, and did not confiscate
it. The officers had been investigating Franklin as part of
a vast drug conspiracy and found drugs in his possession
that day, yet they did not take any action with regard to
the knife. This decision indicates that the officers believed
that the knife was not relevant to Franklin’s offense.
Likewise, the government executed a plea agreement
with Franklin and did not seek a § 2D1.1(b)(1) enhance-
ment as part of the calculations. Even at sentencing, the
government stated that its “position would be that [the
knife] [wa]s connected to his business and that, therefore,
on those facts, then it [wa]s clearly improbable that it
was connected to his drug-dealing activities.”
  On appeal, the government cites United States v. Alston,
No. 97-1626, 1994 WL 269586, *7 (6th Cir. June 17, 1994)
in support of its argument that the district court did not
clearly err by applying the enhancement. In Alston, the
No. 06-3462                                              7

defendant, convicted of drug trafficking, challenged the
district court’s application of the dangerous weapon
enhancement for his possession of a knife. The defendant
argued that the knife he possessed was not dangerous, but
the court, which made the knife a part of the record on
appeal, held that the knife was “no mere pocket knife.” Id.
It noted that the knife was a single-bladed device measur-
ing eight inches long and had a locking mechanism to
prevent the blade from collapsing while in use. The court
held that “there is no doubt that the knife could be used
to inflict death or serious bodily injury.” Id. The defen-
dant next argued that it was clearly improbable that
the knife was connected to his drug-trafficking offense
because he had been acquitted on a weapons charge for
firearms that had also been found during his arrest. The
court rejected this argument as well. Id. Despite the
government’s claim, this case is distinguishable from
Alston because Franklin does not contend that his pocket
knife was not a dangerous weapon. Nor does Franklin
contend that the enhancement should not apply because
of a separate acquittal.
  The government also maintains that the district court
properly could have found that Franklin’s knife had two
purposes. The government contends that because Franklin
testified that the “main purpose” of his knife was for
electrical work, one could assume that the knife also had
a second, nefarious purpose. This is an inaccurate charac-
terization of Franklin’s testimony, which was that he
used the knife as a tool and that its “main purpose” was to
strip wires.
  The government next argues that the knife may have
had a non-work-related purpose because Franklin did not
testify that he was performing any electrical work on the
day the officers stopped his van. We reject this argument
as well. There was ample evidence that Franklin kept
the knife in the van on a permanent basis. Indeed, his
8                                             No. 06-3462

wiretapped conversation with Hardy supports this testi-
mony because he asked Hardy, “you know the knife I keep
on the side of my seat?”
  After reviewing the record, we conclude that the district
court clearly erred by applying the dangerous weapon
enhancement.


                    III. CONCLUSION
  For the above reasons, we REVERSE the district court’s
application of the § 2D1.1(b)(1) enhancement and REMAND
for re-sentencing.

A true Copy:
      Teste:

                       ________________________________
                       Clerk of the United States Court of
                         Appeals for the Seventh Circuit




                  USCA-02-C-0072—4-30-07
