                                                                           FILED
                           NOT FOR PUBLICATION                              JUL 27 2012

                                                                        MOLLY C. DWYER, CLERK
                    UNITED STATES COURT OF APPEALS                       U .S. C O U R T OF APPE ALS




                            FOR THE NINTH CIRCUIT



UNITED STATES OF AMERICA,                        No. 11-30173

              Plaintiff - Appellee,              D.C. No. 3:11-cr-00025-HRH-1

  v.
                                                 MEMORANDUM *
JIMMY LEE COFFIN,

              Defendant - Appellant.



                   Appeal from the United States District Court
                            for the District of Alaska
                H. Russel Holland, Senior District Judge, Presiding

                        Argued and Submitted June 26, 2012
                                Anchorage, Alaska

Before: GOODWIN, W. FLETCHER, and M. SMITH, Circuit Judges.

       Jimmy Lee Coffin appeals his sentence for being a felon in possession of a

firearm in violation of 18 U.S.C. §§ 922(g)(1) and 924(a)(2). Coffin was convicted

on a single count stemming from his actions during a late night confrontation with a

village peace officer in Noorvik, Alaska that resulted in Coffin attacking the officer



        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
with his fists and taking the keys to the officer’s four-wheeler while carrying a rifle.

We have jurisdiction pursuant to 28 U.S.C. § 1291, and we vacate and remand for

resentencing.

      Section 2K2.1(b)(6) of the United States Sentencing Guidelines provides for

a four-level enhancement to the base offense level, “[i]f the defendant used or

possessed any firearm . . . in connection with another felony offense.” U.S.S.G. §

2K2.1(b)(6) (2010). Coffin challenges application of the four-level enhancement to

his sentence for two reasons: (1) the government did not prove that the firearm was

used “in connection with” the theft of the four-wheeler, and (2) the government did

not prove the existence of “another felony.” Both reasons support vacating Coffin’s

sentence and remanding for resentencing.

      First, based on the district court’s reference during the sentencing hearing to the

mere presence of the .30-06 rifle during the taking of the four-wheeler, it is unclear

whether the district court applied the correct legal standard for determining “in

connection with.” Application note 14 to § 2K2.1(b)(6) defines “[i]n connection

with” as use of a firearm that “facilitated, or had the potential of facilitating, another

felony offense.” Id. cmt. n.14. Mere possession of a gun during commission of an

offense is not enough to prove that the gun was used in connection with another

offense. United States v. Routon, 25 F.3d 815, 819 (9th Cir. 1994).


                                            2
      Second, the record does not reflect sufficient evidence supporting the existence

of “another felony offense.”    The district court found by clear and convincing

evidence that a “felony theft” occurred; however, the district court did not elicit

testimony about or take judicial notice of the various Alaska theft laws. Moreover,

the record reflects no evidence regarding any felonious intent regarding Coffin’s

taking of the four-wheeler, and reflects a somewhat opaque, general discussion of the

four-wheeler’s value.

      Therefore, we conclude that the four-level enhancement under § 2K2.1(b)(6)

was erroneous because it was based on an incorrect legal standard and was not

supported by sufficient factual findings. See id. at 819; United States v. Luca, 183

F.3d 1018, 1026 (9th Cir. 1999).

VACATED AND REMANDED.




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