                    United States Court of Appeals
                            FOR THE EIGHTH CIRCUIT
                                  ___________

                                  No. 02-3477
                                  ___________

United States of America,              *
                                       *
            Appellee,                  *
                                       * Appeal from the United States
      v.                               * District Court for the Eastern
                                       * District of Missouri.
Kenyo Williams,                        *
                                       *        [UNPUBLISHED]
            Appellant.                 *
                                  ___________

                         Submitted: April 1, 2003

                              Filed: October 23, 2003
                                   ___________

Before MORRIS SHEPPARD ARNOLD, BYE, and RILEY.
                         ___________

PER CURIAM.

      Kenyo Williams challenges the district court’s application of a 4-level
enhancement for possessing a firearm in connection with another felony. We reverse
and remand.

       Police officers arrested Mr. Williams after observing him driving a stolen
vehicle. The vehicle’s steering column was broken. During the search incident to
arrest, police found a loaded pistol in Mr. Williams’s waistband. Computer checks
revealed that the pistol was stolen. Mr. Williams, who had two Missouri convictions
for second-degree burglary, pleaded guilty to one count of being a felon in possession
of a firearm, in violation of 18 U.S.C. § 922(g)(1).

       At sentencing, the presentence report recommended a 4-level enhancement
under U.S.S.G. § 2K2.1(b)(5), as Mr. Williams had “used or possessed any firearm
or ammunition in connection with another felony offense.” Mr. Williams objected,
denying that he was driving the stolen vehicle, and arguing that the loaded pistol was
not used in connection with the stolen-vehicle felony; he contended that possession
of the firearm was merely coincidental. The government countered that possessing
the firearm emboldened Mr. Williams to tamper with the stolen vehicle.

       The district court found that Mr. Williams had tampered with (i.e., driven) a
vehicle which he knew was stolen, a Missouri felony, and that he had possessed a
firearm while committing that felony. Admitting that it was a “very close case,” and
that the evidence did not show the firearm actually facilitated the tampering offense,
the court found that it was “not clearly improbable” the firearm had the potential to
facilitate the tampering. The district court thus overruled Mr. Williams’s objection,
stating that “[t]he ‘not clearly improbable’ standard strongly favor[ed] the
government, and that standard [was] the basis for the Court’s ruling.” The court
sentenced Mr. Williams to 100 months imprisonment and 2 years supervised release.

       In Guidelines cases, we review the district court’s findings of fact for clear
error and its conclusions of law de novo. See United States v. Mack, No. 02-3491,
2003 WL 22097477, at *5 (8th Cir. Sept. 11, 2003). The sentencing court must apply
a 4-level enhancement “[i]f the defendant used or possessed any firearm in connection
with another felony offense.” See U.S.S.G. § 2K2.1(b)(5). “Felony offense” refers
to “any offense (federal, state, or local) punishable by imprisonment for a term
exceeding one year, whether or not a criminal charge was brought, or conviction
obtained.” U.S.S.G. § 2K2.1, comment. (n.7). Section 2K2.1(b)(5) does not require
proof that the firearm was used in the commission of the felony; rather, the

                                         -2-
government need prove only that the firearm was used or possessed in connection
with the underlying felony. See United States v. Scolaro, 299 F.3d 956, 957 (8th Cir.
2002), cert. denied, 123 S. Ct. 1774 (2003).

       Mr. Williams does not dispute that tampering with the stolen vehicle
constitutes another felony offense; rather, he argues on appeal that the government
did not present any evidence that possessing the firearm emboldened him to take or
drive the stolen vehicle, and that the “not clearly improbable” standard should be
applied only when the other felony offense involves drugs.

       We agree with Mr. Williams that the district court erred in applying the “not
clearly improbable” standard from commentary to U.S.S.G. § 2D1.1(b)(1), which
increases a defendant’s drug-trafficking sentencing range by 2 levels for possessing
a dangerous weapon while committing a drug offense. See United States v. Routon,
25 F.3d 815, 819 (9th Cir. 1994) (stating that § 2D1.1(b)(1) is “an inappropriate guide
for applying” § 2K2.1(b)(5) because government’s burden of proof is more
demanding under § 2K2.1(b)(5)); cf. U.S.S.G. § 2D1.1 & comment. (n.3)
(enhancement for weapons possession reflects increased risk of violence when drug
traffickers possess weapons). On remand, the district court should determine, without
reference to the “not clearly probable” standard, whether Mr. Williams used or
possessed the handgun “in connection with” his tampering felony offense. See Mack,
2003 WL 22097477, at *6.

      Accordingly, we vacate Mr. Williams’s sentence and remand for further
proceedings on the section 2K2.1(b)(5) enhancement, consistent with this opinion.
                      ______________________________




                                          -3-
