     Case: 12-10315       Document: 00512231283         Page: 1     Date Filed: 05/06/2013




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT  United States Court of Appeals
                                                    Fifth Circuit

                                                                            FILED
                                                                            May 6, 2013

                                       No. 12-10315                        Lyle W. Cayce
                                                                                Clerk

UNITED STATES OF AMERICA,

                                                  Plaintiff–Appellee,
v.

TOD DEWAYNE PIMPTON, JR.,

                                                  Defendant–Appellant.



                   Appeal from the United States District Court
                        for the Northern District of Texas
                                No. 1:11-CR-00032


Before REAVLEY, PRADO, and ELROD, Circuit Judges.
PRADO, Circuit Judge:*
       Tod Dewayne Pimpton, Jr. was charged with being a dangerous felon in
possession of body armor and being a convicted felon in possession of a firearm
after police found body armor and a loaded pistol in the trunk of a car he was
driving.     Pimpton agreed to plead guilty to firearm possession, and the
government voluntarily dismissed the body armor charge. At sentencing, a four-
level enhancement was applied because Pimpton possessed the firearm in
connection with another felony, namely, being a violent felon in possession of

       *
         Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.
R. 47.5.4.
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                                      No. 12-10315

body armor. Pimpton appeals the application of the enhancement. As explained
below, we vacate Pimpton’s sentence and remand for resentencing because the
district court relied on the incorrect standard in interpreting the sentencing
enhancement and the error was not harmless.
                                             I
       During the course of a traffic stop on March 1, 2011, a police dog alerted
to the presence of drugs in a car being driven by Tod Dewayne Pimpton, Jr.
(“Pimpton”).     The car was searched, and police recovered a loaded nine-
millimeter pistol and body armor from the trunk of the car. The gun was inside
of a purse along with a pair of men’s gloves. The body armor was in a black
plastic bag underneath the purse. At the time, Pimpton admitted that the body
armor belonged to him, but denied knowing that the gun was in the vehicle; he
also denied ownership of it. Pimpton had been previously convicted of a felony
in 2005.
       Pimpton was then indicted on two counts: (1) violent felon in possession
of body armor; and (2) convicted felon in possession of a firearm. On December
15, 2011, Pimpton agreed to a guilty plea on the second count. The first count,
charging Pimpton with unlawful possession of body armor, was dismissed after
he pleaded guilty to the firearm charge. At sentencing, the probation officer
recommended a four-level enhancement pursuant to U.S. Sentencing
Commission Guidelines Manual § 2K2.1(b)(6)(B) because Pimpton was found in
possession of a firearm in connection with another felony offense, being a violent
felon in possession of body armor.1 Pimpton objected, arguing that his firearm
possession did not facilitate or have the potential to facilitate his possession of


       1
         The full text of § 2K2.1(b)(6)(B) provides that a defendant receives a four-level
increase if the defendant “used or possessed any firearm or ammunition in connection with
another felony offense; or possessed or transferred any firearm or ammunition with
knowledge, intent, or reason to believe that it would be used or possessed in connection with
another felony offense[.]” U.S. Sentencing Guidelines Manual § 2K2.1(b)(6)(B).

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                                  No. 12-10315

body armor. The court overruled his objection and sentenced him to seventy-
eight months of incarceration.       Pimpton filed a timely notice of appeal
challenging the enhancement he received.
                                        II
      As this is a direct appeal from the final decision of a district court, this
Court has jurisdiction pursuant to 28 U.S.C. § 1291.
                                        III
                                         A
      “The district court’s interpretation or application of the Sentencing
Guidelines is reviewed de novo, while its factual findings are reviewed for clear
error.” United States v. Hernandez–Galvan, 632 F.3d 192, 196 (5th Cir. 2011)
(internal quotation marks omitted). “In determining whether a Guidelines
enhancement applies, the district court is allowed to draw reasonable inferences
from the facts, and these inferences are fact findings reviewed for clear error.
The district court’s determination of the relationship between [a] firearm and
another offense is a factual finding.” United States v. Coleman, 609 F.3d 699,
708 (5th Cir. 2010) (internal citation omitted). “A factual finding is clearly
erroneous when the reviewing court on the entire evidence is left with the
definite and firm conviction that a mistake has been committed.” Id. “[T]his
court ‘may affirm the district court’s judgment on any basis supported by the
record.’” United States v. Le, 512 F.3d 128, 134 (5th Cir. 2007) (quoting United
States v. Clay, 408 F.3d 214, 218 n.7 (5th Cir. 2005)).
                                         B
      At Pimpton’s sentencing, it was recommended that Pimpton receive a four-
level enhancement pursuant to § 2K2.1(b)(6)(B), which provides for an
enhancement if the defendant “possessed any firearm . . . in connection with
another felony offense; or possessed . . . any firearm . . . with knowledge, intent,
or reason to believe that it would be used or possessed in connection with

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                                        No. 12-10315

another felony offense[.]” U.S. Sentencing Guidelines Manual (hereinafter
“USSG”) § 2K2.1(b)(6)(B). Pimpton objected, claiming that his firearm was not
possessed “in connection with” his possession of body armor because the two
items were possessed independent of each other; they were merely found in the
same place at the same time. The government responded by claiming that guns
and body armor “go hand in hand[,]” each making the other more dangerous.
The district court overruled Pimpton’s objection and sentenced him to seventy-
eight months of incarceration.
      Under the operative language in § 2K2.1(b)(6)(B), in order to warrant a
four-level enhancement, the defendant must have possessed a firearm “in
connection with” another felony. USSG § 2K2.1(b)(6)(B). However, until 2006,
the Guidelines did not define “in connection with.” To address this shortcoming,
in 2005, the Fifth Circuit interpreted the phrase “in connection with” from
§ 2K2.1(b)(6)(B)2 as requiring that “the presence of a firearm facilitated, and
made inherently more dangerous, another crime.” Villegas, 404 F.3d at 363.
Our precedent notwithstanding, in 2006, the Guidelines were amended to
provide a definition of “in connection with.” According to that definition, a
firearm is possessed “in connection with” another felony “if the firearm . . .
facilitated, or had the potential of facilitating, another felony offense or another
offense, respectively.” USSG § 2K2.1(b)(6) cmt. n.14. The Fifth Circuit has
stated that this sentencing enhancement applies, for example, if the firearm
“emboldened” the second offense or if it served to protect other contraband.
United States v. Jeffries, 587 F.3d 690, 694–95 (5th Cir. 2009) (discussing
possible ways to find the requisite connection under § 2K2.1(b)(6)(B)).
      At sentencing, the court relied on both Villegas and commentary note
fourteen to argue for the application of the enhancement. As explained below,


      2
          In 2005, this provision was listed in the Guidelines as § 2K2.1(b)(5).

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                                  No. 12-10315

Villegas was effectively abrogated when the Guidelines were amended to define
“in connection with.” It was thus improper to rely on the conception of “in
connection with” provided in Villegas. Moreover, given the content of the record
on appeal, it is not clear that the district court would have applied
§ 2K2.1(b)(6)(B) without Villegas. Accordingly, we vacate Pimpton’s sentence
and remand for resentencing.
      The conception of “in connection with” put forth in Villegas was effectively
abrogated by the Guidelines when the Guidelines were amended to define that
phrase. Compare Villegas, 404 F.3d at 363 (noting that the Guidelines do not
define “in connection with” and attempting to “give this language its ordinary
and natural meaning”), with USSG § 2K2.1(b)(6) cmt. n.14 (providing a
definition of “in connection with”). But cf. United States v. Anderson, 559 F.3d
348, 357 (5th Cir. 2009) (stating that commentary note fourteen “reinforces this
court’s prior practice”). As discussed earlier, Villegas sought to elucidate a
definition of “in connection with” in the Guidelines at a time when the
Guidelines did not define the term. 404 F.3d at 363. The court determined that
a firearm was possessed “in connection with” another felony when “the presence
of a firearm facilitated, and made inherently more dangerous, another crime.”
Id. The Guidelines now specifically state that, except in the case of burglary and
drug trafficking offenses, a firearm is possessed “in connection with” another
offense when the firearm “facilitated, or had the potential of facilitating, another
felony offense or another offense, respectively.” USSG § 2K2.1(b)(6) cmt. n.14.
In other words, the definition proffered in Villegas was an attempt to address a
problem that no longer exists. Thus, the district court erred to the extent it
relied on Villegas in interpreting and applying the § 2K2.1(b)(6)(B)
enhancement.
      While this Court may affirm a sentence based on any finding supported by
the record, United States v. Le, 512 F.3d 128, 134 (5th Cir. 2007), it is not clear

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                                       No. 12-10315

that the district court would have applied § 2K2.1(b)(6)(B) using the standard
set forth in commentary note fourteen.3 At sentencing, the government relied
extensively on Villegas and the notion that firearms and body armor “go hand
in hand,” each making the other more dangerous. The district court in turn
accepted the government’s arguments, without elaborating further.4                        The
application of § 2K2.1(b)(6)(B) is a fact-dependent inquiry. Given the district
court’s familiarity with the evidence, we are reluctant to substitute our
judgment. Instead, vacating Pimpton’s sentence and remanding for resentencing
will provide the district court an opportunity to evaluate the parties’ arguments
in light of the standard provided by commentary note fourteen.
                                             IV
       Therefore, Pimpton’s sentence is VACATED and the case is REMANDED
for resentencing in accordance with this opinion.




       3
         As an initial matter, it is not immediately clear that mere proximity, without more,
triggers § 2K2.1(b)(6)(B). See Jeffries, 587 F.3d at 693–94. Moreover, it bears emphasizing
that, for purposes of this case, § 2K2.1(b)(6)(B) is concerned with the firearm facilitating a
possession offense specifically. That is, under the terms of § 2K2.1(b)(6)(B), the enhancement
only applies to Pimpton if the firearm he possessed facilitated the possession of body armor.
Hypothetical uses for body armor have no bearing on the specific offense of possessing body
armor.
       4
         In its soliloquy, the court stated, “All right. The court, having considered the
objections of the defense to the presentence report, is of the opinion the objections should be
overruled for the reasons as set forth in the addendums to the presentence report and as
argued by government's counsel this morning.”

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