     Case: 13-10804       Document: 00512819383         Page: 1     Date Filed: 10/29/2014




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT


                                       No. 13-10804                       United States Court of Appeals
                                                                                   Fifth Circuit

                                                                                 FILED
UNITED STATES OF AMERICA,                                                  October 29, 2014
                                                                            Lyle W. Cayce
               Plaintiff - Appellee,                                             Clerk

v.

TOD DEWAYNE PIMPTON, JR.,

               Defendant - Appellant.




                   Appeal from the United States District Court
                        for the Northern District of Texas
                             USDC No. 1:11-CR-32-1


Before DAVIS, DeMOSS, and ELROD, Circuit Judges.
PER CURIAM:*
       This case presents the issue of whether the district court erred in
applying a United States Sentencing Guidelines enhancement for possession
of a firearm “in connection with” the separate felony offense of possession of
body armor. We hold that it did, and the error was not harmless. Thus, we
vacate and remand the case for resentencing.




       * Pursuant to 5th Cir. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5th Cir.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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                                        I.
      This is our second opportunity to review Pimpton’s sentence.             As
described in detail in our May 6, 2013 opinion, during a routine traffic stop,
police discovered a nine-millimeter pistol and body armor in the trunk of a car
being driven by Tod Dewayne Pimpton, Jr. (Pimpton). The firearm was inside
a purse along with a pair of men’s gloves, and the purse was lying on top of a
black plastic bag containing the body armor. Pimpton admitted he owned the
body armor, but denied ownership of the firearm. Because of a prior conviction,
Pimpton was not permitted to possess either item. Pimpton was indicted on
two counts: (1) violent felon in possession of body armor; and (2) convicted felon
in possession of a firearm. Pimpton eventually pled guilty to the firearm
possession charge, and the Government dismissed the body armor possession
charge.
      At sentencing, the probation officer recommended a four-level
enhancement pursuant to United States Sentencing Guidelines Manual
(USSG) § 2k2.1(b)(6)(B), which increases a firearms possession offense level if
the firearm was possessed “in connection with” another felony offense. Id. The
Government sought the enhancement based on Pimpton’s possession of the
body armor. Pimpton objected to the enhancement, claiming that his firearm
possession was not “in connection with” his possession of body armor. The
district court overruled the objection and applied the increase, relying on our
interpretation of “in connection with” from United States v. Villegas. See 404
F.3d 355, 363 (5th Cir. 2005) (interpreting “in connection with” to require that
“the presence of a firearm facilitate[], and ma[k]e inherently more dangerous,
another crime.”) (emphasis added).
      Pimpton appealed to this court. We vacated the sentence because the
USSG was amended in 2006 to include a definition of “in connection with” that
contradicted Villegas’s interpretation. See USSG § 2k2.1, cmt. n.14(A). Under
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the new definition, the increase applies if “the firearm . . . facilitated, or had
the potential of facilitating, another felony offense.” Id. Because this definition
excludes the “ma[k]e inherently more dangerous” standard, the amendment
abrogated Villegas. United States v. Pimpton, 558 F. App’x 335, 337–38 (5th
Cir. 2013). We found error to the extent the district court relied on the “ma[k]e
inherently more dangerous” language in Villegas, and we remanded the case
for resentencing.
      On remand, the district court applied the correct standard and imposed
the same sentence, including the enhancement under § 2k2.1(b)(6)(B).
Pimpton appealed the new sentence, again, specifically challenging the
enhancement on the grounds that it was unsupported by the evidence.
Pimpton also requests that, if we remand the case to the district court, we
assign it to a different judge because “the interests of justice so require.”
                                        II.
      “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).
“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) (citing United States v. Condren, 18 F.3d 1190, 1199–1200
(5th Cir. 1994)). Clear error exists “when the reviewing court on the entire
evidence is left with the definite and firm conviction that a mistake has been
committed.” United States v. Cooper, 274 F.3d 230, 238 (5th Cir. 2001). In
other words, “[a] factual finding is not clearly erroneous if it is plausible in
light of the record as a whole.” Coleman, 609 F.3d at 708.
                                       III.
      The central question in this case is whether Pimpton’s possession of a
firearm was “in connection with” his illegal possession of body armor. USSG §
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2k2.1(b)(6)(B). The USSG instructs courts to apply the “in connection with”
enhancement if possession of a firearm “facilitated . . . or had the potential of
facilitating” another felony offense.       USSG § 2k2.1, cmt. n.14(A).        The
Government must establish this requisite connection by a preponderance of
the evidence, and the issue is one of fact for the district court. Coleman, 609
F.3d at 708. Furthermore, whether or not a defendant is charged with or
convicted of the related offense is irrelevant for purposes of the enhancement.
United States v. Perez, 585 F.3d 880, 886 (5th Cir. 2009).
      At Pimpton’s resentencing hearing, the district court found that:
      [T]he definition of “in connection with,” as defined by the
      Sentencing Guidelines, does require this 4-level enhancement to
      be applied. The firearm potentially did facilitate the possession of
      the body armor, or it had the potential of facilitating the possession
      of the body armor, which was another felony offense. Given all the
      facts and circumstances of this case, I believe that the 4-level
      enhancement is justified.
The district court did not offer further explanation, but adopted as its findings
“those matters as set forth in the presentence report and the addendum, not
only as it relates to the background data and information, but also the analysis
made under the sentencing guidelines.”
      Pimpton argues that the “in connection with” finding was clear error. He
notes that the evidence in this case shows only that the two items—his firearm
and body armor—were at the same place at the same time, nothing more.
Relying on our statements in Pimpton, he argues that mere proximity of the
two items is legally insufficient to support an “in connection with” finding. 558
F. App’x at 338 n.3 (“[I]t is not immediately clear that mere proximity, without
more, triggers [the enhancement].”) (citing United States v. Jeffries, 587 F.3d
690, 693–94 (5th Cir. 2009)). Furthermore, he cites Smith v. United States,
508 U.S. 223 (1993), which served as the basis for the “facilitated or had the
potential of facilitating” language adopted by the USSG. USSG App. C, Vol.
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III, Amendment 691 at 177. Smith suggested that a firearm “facilitates” an
offense when it “provid[es] a means of protection or intimidation.” 508 U.S. at
238. In Pimpton’s view, a gun does not serve as a means of protection or
intimidation in the act of possessing body armor, unlike the possession of a gun
during a robbery or burglary, or in proximity with valuable drugs that may
need protection from a thief.
      Citing cases from our sister circuits, the Government argues that
proximity is enough if the evidence also shows that the defendant intentionally
possessed the items together, rather than it happening by accident. See, e.g.,
United States v. Blankenship, 552 F.3d 703, 705–06 (8th Cir. 2009). The
Government further argues that the record here shows much more than mere
proximity. It points us to the following additional facts: Pimpton “had a prior
conviction for possessing a firearm in furtherance of a drug-trafficking crime;
he was on federal supervised release when discovered with the firearm and
body armor; he was stopped in a high crime area at about 9:30 at night with
the items; he was accompanied by a convicted felon who had a crack pipe.” In
the Government’s view, the proximity of the gun and body armor “takes on
additional meaning” when these other facts are considered. It argues that body
armor, like drugs, “has considerable value, particularly among criminals who
cannot as easily purchase it through legitimate channels.” Since Pimpton
could have used the firearm to protect the body armor from a thief or to resist
police arrest relating to his possession of the armor, the Government argues
that the firearm had the potential to facilitate his possession of the body armor.
      We agree with Pimpton that the district court’s finding was clear error.
To begin with, we have already held that mere simultaneous possession of a
firearm and another item—possession of which constitutes a separate
offense—is not enough to satisfy the “in connection with” requirement under
USSG § 2k2.1(b)(6)(B). Jeffries, 587 F.3d at 693. Jeffries involved a prior felon
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                                       No. 13-10804
who got into a fight at a bar and took a gun off of his fellow combatant. He left
the scene and drove away in his car, which contained a single rock of crack-
cocaine. Shortly thereafter, the police stopped the felon and found both the
gun and drugs in his vehicle. The district court, as here, adopted the PSR
without change and imposed the sentence increase without explanation. We
vacated the sentence in Jeffries on the grounds that the evidence did not
support a finding that the defendant possessed his firearm “in connection with”
his possession of drugs. Jeffries, 587 F.3d at 694–95.
       For guidance, we looked at the Application Notes in the USSG. 1
Compare USSG § 2k2.1, cmt. n.14(A) with id. n.14(B). Note 14(B) instructs
courts to apply the enhancement based on mere proximity if the related offense
is burglary or drug trafficking. Jeffries, 587 F.3d at 692. For all other offenses,
including drug possession, the court must find that the firearm “facilitated, or
had the potential of facilitating” the related offense. Jeffries, 587 F.3d at 692–
93. Put another way, the record must show some evidence that the firearm
“emboldened” the defendant to engage in the other possession crime or would
be used to protect the other item. Jeffries, 587 F.3d at 695. We explained that
drug possession cases in which the enhancement was upheld often include
record evidence that the defendant was a seller or distributor of drugs. Id. at
693 (citing e.g., Condren, 18 F.3d at 1197–98). In those cases, the firearm
served a protective purpose that facilitated the possession of drugs likely
intended for sale. 2      In concluding, we adopted the rule that when a case



       1 Commentary in the “application notes is authoritative unless it violates the
Constitution or a federal statute, or is inconsistent with, or a plainly erroneous reading of,
that [G]uideline.” See United States v. Miller, 607 F.3d 144, 148 n.2 (internal quotation
marks omitted).

       2 See e.g., United States v. Alcantar, 733 F.3d 143, 147 (5th Cir. 2013) (involving a
related offense of possession of cocaine with intent to deliver); United States v. Jenkins, 566
F.3d 160, 164 (4th Cir. 2009) (involving a defendant who had a loaded firearm and drugs on
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                                       No. 13-10804
involves possession only of a “user quantity of drugs,” there is no presumption
of trafficking and the record must contain evidence that the firearm
emboldened the defendant to possess or provided protection for the items.
Jeffries, 587 F.3d at 694–95.
       The Government argues that Pimpton’s case includes such additional
evidence. In the Government’s view, possessing body armor is like possessing
a marketable and valuable quantity of drugs, because body armor may be sold
at a high price in certain markets.            Thus, a firearm has the potential of
facilitating possession of body armor by serving a protective purpose. We agree
with the Government that it is conceivable that a firearm could be used to
protect a marketable piece of body armor from a thief, but the mere fact that
such a scenario is conceivable is not enough to satisfy § 2k2.1(b)(6)(B). See
Jeffries, 587 F.3d at 694–695, & n.9 (noting that the potential of facilitating
“will usually be found,” but the nexus cannot simply be presumed). There must
be some affirmative evidence that this scenario is plausible. Pimpton, 558 F.
App’x at 338 n.3 (“Hypothetical uses for body armor have no bearing on the
specific offense of possessing body armor.”). To be clear, there must be some
evidence that Pimpton planned to use his firearm to protect the body armor.
That the body armor could be used to protect his person or facilitate his use of
a firearm to commit a related offense is irrelevant under the Guideline.
       The district court gave no explanation of how Pimpton’s firearm
plausibly facilitated (or had the potential of facilitating) his possession of the
body armor, it only concluded that it was so based on the record as a whole.
There was no evidence of a potential buyer or that Pimpton was planning a
sale. There was no evidence that Pimpton feared theft, especially given that


his person while standing on a public street, late at night, and near where a gun had recently
been fired); United States v. Anderson, 559 F.3d 348, 357–58 (5th Cir. 2009) (involving a
defendant carrying a firearm on his person while delivering drug paraphernalia).
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his firearm was hidden away in his trunk and not readily accessible. The
record reflects only that Pimpton had both items in the trunk of his car while
driving at night in a high-crime area. Without some evidence that Pimpton
was a seller or distributer of body armor or had some other specific reason to
protect the body armor, the mere proximity of the items is not enough to
support the enhancement. We view this case like the “user quantity” drug
possession in Jeffries and see nothing in the record to support the district
court’s conclusion.
      The Government, to no avail, relies on cases from our sister circuits. It
argues that other circuits look for whether a defendant intentionally possesses
a firearm with another item of contraband (as opposed to possession being
coincidental). See United States v. Blankenship, 552 F.3d 703, 705 (8th Cir.
2009) (“One important factor was that [defendant] 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.”)
(analyzing United States v. Smith, 535 F.3d 883, 885–86 (8th Cir. 2008)); see
also United States v. Jenkins, 566 F.3d 160, 164 (4th Cir. 2009) (suggesting
that the enhancement is inapplicable if the firearm’s presence was mere
coincidence). However, none of the cases cited by the Government actually
relied on this intentional/accidental dichotomy to apply an enhancement. The
cases only support the negative proposition that accidental or coincidental
possession is insufficient for the enhancement.          In fact, in the above
“accidental” cases, the defendants knew full well that they simultaneously
possessed both a firearm and other contraband. But, mere simultaneous,
intentional possession was not enough. Even in those circuits, there must be
a connection between the two items such that the firearm facilitates possession




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of the other contraband. 3 See, e.g., Jenkins, 566 F.3d at 162 (“[T]he firearm
[must have] some purpose or effect with respect to the other offense, including
if the firearm was present for protection or to embolden the actor.”) (internal
citations and quotation marks omitted); Blankenship, 552 F.3d at 706
(“[Defendant] possessed a ‘user’ amount of methamphetamine in his
automobile, and there is no evidence or allegation that he is a drug trafficker.”).
Moreover, even if the Government were correct that other circuits rely on the
intentional/accidental dichotomy, we are bound by our own precedent in
deciding the issue, and our precedent requires more than mere intentional,
simultaneous possession.
       The district court committed procedural error when it improperly
applied the § 2k2.1(b)(6)(B) enhancement, increasing Pimpton’s advisory
guidelines range. Gall v. United States, 552 U.S. 38, 51 (2006). When a
significant procedural error occurs at sentencing, remand for resentencing is
required unless the error was harmless. United States v. Delgado-Martinez,
564 F.3d 750, 752–53 (5th Cir. 2009).                Harmless error exists where the
proponent of the sentence demonstrates that the sentence would have been the
same absent the error. United States v. Johnson, 648 F.3d 273, 278 (5th Cir.
2011). Here, the Government does not argue that, absent the error, the district
court would have imposed the same sentence. Nor could it given that the
enhancement rests on the error and Pimpton’s offense level would have been
four points lower without the enhancement. The lower offense level would




       3  The Third Circuit follows this same approach. Relying on the Fourth, Fifth, and
Eighth Circuits, it has held that mere drug possession is insufficient to show facilitation. See
United States v. West, 643 F.3d 102, 113–14, 116 (3d Cir. 2011) (The facts do not support the
conclusion that “possession of the .38 revolver located in a backpack in the trunk of
[defendant’s] car emboldened him to engage in the crime of marijuana possession, or served
to protect the marijuana in his glove compartment.” Id. at 116) (citing United States v.
Jeffries, 587 F.3d at 695).
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have placed his sentence within a guidelines range of 41–51 months, rather
than 63–78 months. Therefore, the record does not reflect that the district
court would have imposed the same 78-month sentence using the lower
guidelines range. The error was not harmless. See Johnson, 648 F.3d at 278–
80.
                                         IV.
        Pimpton requests that on remand we assign this case to a different
district court judge because the interests of justice so require. Without the
presence of personal bias under 28 U.S.C. § 455, we typically reassign a case
only on the narrow basis that the initial judge cannot “make a decision in
regard to [the] defendant with the impartiality required of all who sit in
judgment.” United States v. Long, 656 F.2d 1162, 1165 (5th Cir. 1981); see also
Johnson v. Mississippi, 403 U.S. 212, 216 (1971) (per curiam) (“Trial before an
unbiased judge is essential to due process.” (internal quotation marks
omitted)). A defendant can satisfy this standard by identifying comments
made by the judge that indicate he had “foreclosed meaningful consideration”
of the evidence he was required to consider. Long, 656 F.2d at 1165 (noting
that the trial judge “stated twice on the record that no presentence report could
change his mind”).
        Pimpton has identified no such comments. His request is based on his
conjecture that the initial judge will have “substantial difficulty in putting out
of his or her mind previously-expressed views or findings determined to be
erroneous.” See Simon v. City of Clute, Tex., 825 F.2d 940, 943–44 (5th Cir.
1987). We see no basis for such conjecture.
                                         V.
        Therefore,     Pimpton’s   sentence    is   VACATED     and   the   case   is
REMANDED for resentencing in accordance with this opinion.


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