                    United States Court of Appeals
                            FOR THE EIGHTH CIRCUIT
                                   ___________

                                   No. 08-1911
                                   ___________

United States of America,               *
                                        *
             Appellee,                  * Appeal from the United
                                        * States District Court
      v.                                * for the District of Nebraska.
                                        *
Warren Blankenship,                     *
                                        *
             Appellant.                 *
                                   ___________

                             Submitted: September 25, 2008
                                Filed: January 13, 2009
                                 ___________

Before BYE, BEAM, and SHEPHERD, Circuit Judges.
                           ___________

BEAM, Circuit Judge.

       Warren Blankenship appeals his forty-six month sentence for possessing an
unregistered firearm while being a methamphetamine user. Because the district court
failed to make a required finding concerning an upward adjustment, we reverse and
remand to the district court for further proceedings.

I.    BACKGROUND

      Blankenship was pulled over in Aurora, Nebraska, for a traffic violation.
During the traffic stop, the officer asked to search the vehicle. Blankenship granted
permission, and the search uncovered a loaded automatic rifle, baggies with
methamphetamine residue inside the grip of the gun and elsewhere in the car, a
methamphetamine pipe, and several other weapon parts. The officer discovered that
the gun was not registered, contrary to law. Blankenship was arrested and pleaded
guilty, without the benefit of a plea agreement, to possessing an unregistered firearm
while being a methamphetamine user.

       Blankenship's base offense level was twenty, and the Presentence Investigation
Report (PSR) suggested two upward adjustments. The first was for possessing three
or more firearms (based on the theory that two of the firearm parts found in the car
constituted separately countable firearms). The second was for possessing a firearm
in connection with another felony–possession of methamphetamine. Blankenship's
resulting guidelines' range was 46-57 months after an adjustment for acceptance of
responsibility. Blankenship contested the two adjustments, and at a sentencing
hearing, both the government and Blankenship presented evidence. Ultimately, the
district court agreed with the government that the gun parts constituted separate
firearms for guidelines' purposes, and that the "in connection with" adjustment was
necessitated by the fact that the firearms and methamphetamine were both possessed
by Blankenship. The district court rejected defense counsel's plea for a below-
guidelines' variance, sentencing Blankenship to forty-six months' imprisonment.

II.   DISCUSSION

       We review the district court's sentencing decision for an abuse of discretion,
and our review is limited to determining whether the sentence is unreasonable. United
States v. Charles, 531 F.3d 637, 640 (8th Cir. 2008). We consider both the procedural
and substantive reasonableness of the sentence. United States v. Abdullahi, 520 F.3d
890, 893 (8th Cir.), cert. denied, 129 S. Ct. 307 (2008). We review the district court’s
factual findings for clear error, and its application of the guidelines de novo. United
States v. Green, 225 F.3d 955, 958 (8th Cir. 2000).



                                          -2-
       Blankenship challenges the procedural reasonableness of the sentence, arguing
that the district court erred in applying the recommended upward adjustments. We
agree that Blankenship's sentence is procedurally unreasonable with regard to the "in
connection with" adjustment of United States Sentencing Guideline § 2K2.1(b)(6),
which increases a defendant's base offense level "[i]f the defendant used or possessed
any firearm or ammunition in connection with another felony offense." Blankenship's
other felony offense was, as indicated, possession of methamphetamine.1

       Application Note 14(A) to § 2K2.1(b)(6) provides that the "in connection with"
adjustment will apply "if the firearm . . . facilitated, or had the potential of facilitating,
another felony offense." U.S.S.G. § 2K2.1(b)(6) cmt. n.14(A). This application note
was added in 2006. Prior to that time, the guidelines were silent on the definition of
"in connection with," and our case law routinely upheld the adjustment when weapons
and drugs were in the same vicinity, regardless of whether the underlying drug offense
was for possession or trafficking. E.g., United States v. Linson, 276 F.3d 1017, 1018-
19 (8th Cir. 2002). However, with the addition of Application Note 14, the
Sentencing Commission decided to make a distinction between the factual
circumstances of when the other felony was a drug trafficking offense, or
alternatively, a simple drug possession offense. If the felony is for drug trafficking,
Application Note 14(B) mandates application of the adjustment if guns and drugs are
in the same location. U.S.S.G. § 2K2.1(b)(6) cmt. n.14(B). See United States v.
Fuentes Torres, 529 F.3d 825, 827 (8th Cir. 2008) (discussing the new application
notes to U.S.S.G. § 2K2.1(b)(6) and noting that the Commission treated drug
possession and trafficking offenses differently).




       1
      Blankenship was not actually charged with possession of methamphetamine,
but under the guidelines, the adjustment can apply whether or not charges were
brought, or a conviction obtained. U.S.S.G. § 2K2.1(b)(6) cmt. n.14(C).

                                             -3-
        If the underlying drug offense is for simple possession, the district court may
still apply the adjustment, but only after making a finding that the firearm facilitated
the drug offense. Id. at 827-28 n.2 (holding that when the "in connection with"
offense is a drug possession offense, the district court "must make the 'in connection
with' finding, applying the 'facilitate' standard" from application note 14(A) to
guideline § 2K2.1(b)(6)) (emphasis added). In other words, when the defendant
subject to a 2K2.1(b)(6) adjustment possesses a "user" amount of drugs and is not a
trafficker, instead of automatically applying the adjustment when both drugs and
weapons are involved in the offense, the district court must affirmatively make a
finding that the weapon or weapons facilitated the drug offense before applying the
adjustment.

        At sentencing, the district court stated that simply possessing drugs and guns
in the same proximity subjected Blankenship to the adjustment, saying: "the drugs and
the guns don't have to be connected under the guidelines. You just have to possess the
drugs . . . ." Because Blankenship's other felony was for drug possession, and not
trafficking, this statement was contrary to Application Note 14(A).

       We have on recent occasion construed Application Note 14(A) in the context
of a drug possession, as opposed to trafficking, case. In United States v. Smith, 535
F.3d 883, 885 (8th Cir. 2008), we reversed the district court's application of the
2K2.1(b)(6) adjustment, holding that there was no evidence the firearm and the
methamphetamine possessed were connected. The Smith defendant, who pleaded
guilty to being a possessor of methamphetamine residue while also having firearms,
was not a drug trafficker, but simply a user of methamphetamine. In fact, the police
only found methamphetamine residue in Smith's house when Smith was arrested. The
district court had concluded that since the risk of violence was increased by the use
of drugs and possession of firearms, the adjustment should apply. Citing Application
Note 14(A), we reversed, holding that in this unusual case, the evidence was
insufficient to show that the firearms facilitated Smith's possession of

                                          -4-
methamphetamine. Id. One important factor was that Smith possessed the guns and
drug residue in his own home, making it more likely that it was just coincidence that
he possessed both simultaneously in the relative expanse of a residence. Id. at 885-86;
see also United States v. Almeida-Perez, Nos. 07-2602, 07-2635, 2008 WL 5214949
(8th Cir. Dec. 16, 2008) (remanding for required 2K2.1(b)(6) finding).

        Blankenship possessed a "user" amount of methamphetamine in his automobile,
and there is no evidence or allegation that he is a drug trafficker. Therefore Fuentes
Torres and Application Note 14(A) indicate that the adjustment only be applied if the
district court makes a finding that the firearms facilitated the drug possession offense.
Fuentes Torres, 529 F.3d at 827-28 n.2. Blankenship's sentencing court did not make
this finding.2

III.   CONCLUSION

       Accordingly, we reverse and remand for the district court to make this finding.
We have considered Blankenship's remaining arguments and find them to be without
merit.

Bye, Circuit Judge, concurring in part and dissenting in part.

       I concur in the decision to remand because the district court failed to make a
required finding of fact to support application of the four-level enhancement for
possessing a firearm "in connection with another felony offense." I dissent, however,
because the district court also failed to make a required finding of fact to support
application of the two-level enhancement for an offense involving three or more
firearms.


       2
       We recognize that the district court did not have the benefit of our Fuentes
Torres or Smith decisions at the time of sentencing.

                                          -5-
       Section 2K2.1(b)(1) of the U.S. Sentencing Guidelines Manual ("U.S.S.G.")
provides a two-level increase in a defendant's base offense level if the offense involves
three or more firearms. U.S.S.G. § 2K2.1(b)(1). A "firearm" is defined with reference
to 18 U.S.C. § 921(a)(3), which provides:

      The term "firearm" means (A) any weapon (including a starter gun)
      which will or is designed to or may readily be converted to expel a
      projectile by the action of an explosive; (B) the frame or receiver of any
      such weapon; (C) any firearm muffler or firearm silencer; or (D) any
      destructive device.

18 U.S.C. § 921(a)(3); see also U.S.S.G. § 2K2.1 cmt. n.1 ("'Firearm' has the meaning
given that term in 18 U.S.C. § 921(a)(3)").

       The government sought to impose the enhancement based on three separate
items found in Blankenship's car: (1) a machine gun; (2) an AR-15 lower receiver; and
(3) an AR-15 upper receiver. Blankenship stipulated the machine gun was a firearm,
but he contested whether the other two items were firearms. The government argued
the AR-15 lower receiver was a firearm because it was a "receiver" within the
meaning of § 921(a)(3)(B). It argued the AR-15 upper receiver was a firearm because
it was a "silencer" within the meaning of § 921(a)(3)(C).

        At the sentencing hearing, the district court heard testimony concerning the AR-
15 parts. The government's primary witness was Darren Hampton, a special agent for
the Bureau of Alcohol, Tobacco, Firearms, and Explosives ("ATF"). Agent Hampton
testified that while the AR-15 lower receiver was not fully functional in its current
condition, it could become fully functional with the addition of other parts. In support
of classifying the AR-15 upper receiver as a silencer, the government introduced a
report prepared by the ATF. According to the report, the AR-15 upper receiver had
holes drilled into it, which reduced the sound of the report of the firearm by 3.97
decibels. The report concluded the upper receiver "by design, construction, and


                                          -6-
function is a device for silencing or diminishing the report of a firearm." Blankenship
testified he bought the upper receiver at a gun show "just to change the upper receiver
look," not with the intent of using it as a silencer. He stated he never fired the weapon
with the upper receiver attached.

        The district court imposed the two-level enhancement. The court concluded the
AR-15 lower receiver qualified as a receiver and the AR-15 upper receiver qualified
as a silencer. Although it determined the silencing effect of the upper receiver was de
minimis, the court found the part forms "a method of reducing the sound of the report
of what would normally be an AR-15 report." The district court stated the real
question for it was "whether the device is intended to or designed to reduce the sound
of the report of the firearm." The court concluded it was.

       In addition to his other arguments on appeal, Blankenship challenges the district
court's determination that both the AR-15 upper and lower receivers count as separate
firearms for purposes of the § 2K2.1(b)(1) enhancement. We review the district
court's legal conclusions concerning this enhancement de novo and its factual findings
for clear error. United States v. Goldman, 447 F.3d 1094, 1096 (8th Cir. 2006).

       Though I agree the AR-15 lower receiver counts as a firearm because it is a
receiver, I find error in the district court's imposition of the enhancement based on the
AR-15 upper receiver. A silencer is defined in the statute as "any device for silencing,
muffling, or diminishing the report of a portable firearm, including any combination
of parts, designed or redesigned, and intended for use in assembling or fabricating a
firearm silencer or firearm muffler, and any part intended only for use in such
assembly or fabrication." 18 U.S.C.A. § 921(24). The upper receiver qualifies as a
silencer because the district court concluded the item was designed to function as a
silencer, which is a factual finding that is not clearly erroneous.




                                          -7-
        The problem with the district court's analysis, however, is that it never
determined whether Blankenship knew the item possessed the properties that qualified
it as a silencer. The § 2K2.1(b)(1) enhancement counts "only those firearm that were
unlawfully sought to be obtained, unlawfully possessed, or unlawfully distributed . . . ."
U.S.S.G. § 2K2.1 cmt. n.5 (emphases added). We have previously held that
possession of an unregistered silencer is not unlawful under 28 U.S.C. § 5861(d)
unless the government proves the defendant knew the item was a device for silencing,
muffling, or diminishing the report of a firearm. United States v. Dukes, 432 F.3d
910, 915-16 (8th Cir. 2006); United States v. Hall, 171 F.3d 1133, 1151-52 (8th Cir.
1999). Although we are considering the upper receiver for the purpose of a
sentencing enhancement and not a conviction, the same scienter requirement applies,
just with a lower burden of proof. See United States v. Corso, 20 F.3d 521, 525 (2d
Cir. 1994). This is because the words "unlawfully possessed" in the Application
Notes refer to the same scienter requirement existing in the statute. Id. Notably, the
government concedes it had to prove Blankenship knew the AR-15 upper receiver
could act as a silencer.

       The government, and apparently the majority, believe the district court
implicitly made this finding by hearing testimony and imposing the enhancement. See
United States v. Dortch, 923 F.2d 629, 633 (8th Cir. 1991) (holding remand for
specific findings unnecessary where it is implicit in the sentence imposed the district
court made the necessary findings). This argument fails, however, because it is not
apparent from the sentencing transcript the district court implicitly found Blankenship
possessed the silencer with the required scienter. A close reading of the transcript
reveals the district court was only concerned with whether the upper receiver was a
silencer, not with whether Blankenship knew the item could function as a silencer.
It is not clear the district court understood it was required to find Blankenship
possessed the silencer with scienter. Instead, the district court repeatedly stated, "The
real question for me is whether the device is intended to or designed to reduce the
sound of the report of the firearm." It imposed the enhancement after finding the

                                           -8-
upper receiver "by design, construction, and function is a device for silencing or
diminishing the report of a firearm." This is not the same as determining whether
Blankenship knew the item could function as a silencer or was designed to function
as a silencer. Based on the complete absence of any discussion concerning
Blankenship's knowledge, it appears the district court was not even aware it had to
determine Blankenship had this knowledge.

       While a finding that the upper receiver is designed to be a silencer could
support a determination that Blankenship knew the item functioned as a silencer, the
district court did not make this finding in that context. The court made this finding
for the purpose of concluding the upper receiver was in fact a silencer, not that
Blankenship knew it was a silencer. This is because the court stated "a firearm as
defined under the statute is a device that reduces the sound or is designed to reduce
the sound of the report of the weapon." In light of the court's conclusion that the
actual silencing effect of the part was de minimis, the court considered the item's
intended design to determine whether to classify the part as a silencer, not to
determine whether Blankenship possessed the silencer with the required scienter. As
such, this is not a case where it is clear the district court understood the requirements
of the enhancement—but just failed to make specific findings—such that we can
presume the required factual determinations were implicit in the court's application
of the enhancement.

        Additionally, this is not a case where the record is unequivocal on the issue so
that remanding to the district court would be a waste of time. See, e.g., United States
v. Boesen, 541 F.3d 838, 851 (8th Cir. 2008) (affirming obstruction of justice
sentencing enhancement despite district court's failure to make specific findings
concerning scienter where "evidence of the defendant's willfulness was unequivocal
and the record left no doubt . . . ."). The record is, at best, inconclusive concerning
whether Blankenship knew the upper receiver functioned as a silencer. Blankenship
testified he bought the upper receiver because he wanted to change the weapon's

                                          -9-
appearance and he never fired the weapon with the upper receiver attached. Even if
he had fired the weapon with the upper receiver attached, the part is extremely
ineffective as a silencer. In fact, no one asked Blankenship whether he knew the item
could silence, or was designed to silence, the report of a firearm. Although the upper
receiver was designed to be a silencer and Blankenship attends gun shows and is
familiar with gun parts, this does not conclusively establish Blankenship's knowledge
of the item's silencing properties. Therefore, I cannot say based on this record that had
the district court been aware of the scienter requirement, it would have found the
government carried its burden. While the record may support a determination in favor
of either party, the evidence is far from unequivocal. Thus, it was the district court's
duty to consider this conflicting evidence and determine whether Blankenship
possessed the silencer with the required scienter.

       The government also argues that even if the upper receiver could not qualify as
a silencer because the court failed to determine scienter, the item qualifies as a firearm
because it "is designed to or may readily be converted to expel a projectile by the
action of an explosive." 18 U.S.C. § 921(a)(3)(A). The government relies on Agent
Hampton's testimony that the upper receiver could fire an explosive when attached to
a fully functional lower receiver, citing our cases holding the standard for what may
"readily be converted" is quite low. See United States v. Mullins, 446 F.3d 750, 756
(8th Cir. 2006); United States v. Smith, 477 F.2d 399, 400 (8th Cir. 1973) (holding
weapon was readily convertible even when it would take an eight-hour working day
to accomplish the conversion) The government's argument is absurd, however,
because it would subsume every part that could be attached to a receiver or other part
of a weapon to eventually form one complete weapon. Our cases applying §
921(a)(3)(A) involve counting as one firearm a weapon that is missing some
individual parts, not counting as separate firearms individual parts of one weapon. To
hold otherwise would allow the government to count every piece of one complete
weapon as a separate firearm, which runs contrary to common sense and principles of
fairness. My own research has not discovered a single case in which courts have

                                          -10-
considered a part of a weapon a firearm under § 921(a)(3)(A) simply because it could
be attached to other parts that are also being counted as firearms to make one
complete weapon. Therefore, I do not believe the government can count the AR-15
upper receiver as a firearm under § 921(a)(3)(A) for the purpose of the § 2K2.1(b)(1)
sentencing enhancement simply because it can be attached to a lower receiver also
being counted as a firearm.

      The district court erred in applying the § 2K2.1(b)(1) enhancement without
determining, explicitly or implicitly, Blankenship possessed the silencer with
knowledge it could, or was intended to, function as a silencer. I dissent from any
conclusion otherwise.
                       ______________________________




                                        -11-
