                     United States Court of Appeals
                            FOR THE EIGHTH CIRCUIT
                                   ___________

                                   No. 01-1548
                                   ___________

United States of America,                 *
                                          *
             Appellee,                    *
                                          * Appeal from the United States
      v.                                  * District Court for the Southern
                                          * District of Iowa.
Jose Angel Chavarria-Cabrera,             *
                                          *
             Appellant.                   *

                                   ___________

                             Submitted: September 11, 2001

                                  Filed: December 6, 2001
                                   ___________

Before McMILLIAN, BEAM, and HANSEN, Circuit Judges.
                           ___________

BEAM, Circuit Judge.

       This case comes before us on appeal from the district court's1 application of a
four-level sentencing enhancement under U.S.S.G. § 2K2.1(b)(5), for appellant's use
or possession of a firearm in connection with another felony offense. We affirm.




      1
      The Honorable Ronald E. Longstaff, United States District Judge for the
Southern District of Iowa.
I.    BACKGROUND

       On August 10, 1999, appellant Jose Angel Chavarria-Cabrera was drinking
beer at a house with his friends Mauricio Izquierdo, Santos Garcia-Perez, and Jorge
Villalobos. At some point Chavarria-Cabrera pulled a gun out of his belt and fired
two shots into the ceiling. The other three men calmed appellant down, and shortly
thereafter the appellant and Villalobos went into one of the bedrooms and shut the
door. Izquierdo and Garcia-Perez testified in state court that they then heard a
gunshot, and Villalobos emerged from the bedroom, bleeding profusely from his
chest. Appellant followed Villalobos out of the bedroom with the gun still in his
hand. He then threatened Izquierdo and Garcia-Perez, who left the house and called
the police. Villalobos died, and appellant was charged with first-degree murder,
though a jury found him guilty of involuntary manslaughter.

       Following state court proceedings, appellant pled guilty to illegal reentry of a
deported alien, pursuant to 8 U.S.C. § 1326(a) and (b)(2); and illegal alien and felon
in possession of a firearm, pursuant to 18 U.S.C. § 922(g)(1) and (5). The district
court sentenced appellant to a total of 113 months' imprisonment, followed by three
years supervised release, and a $200.00 special assessment. As part of this sentence,
the district court applied the four-level enhancement under U.S.S.G. § 2K2.1(b)(5)
for using or possessing a firearm in connection with another felony offense.

      Appellant contends that the district court erred in applying the four-level
enhancement for two reasons. First, appellant argues that a state law offense which
occurred contemporaneously with the § 922(g) violation does not constitute "another
offense" as that phrase is used in § 2K2.1(b)(5). Second, appellant argues that the
contemporaneous use of a firearm in an unintentional killing does not satisfy the "in
connection with" requirement for the enhancement. We think these arguments miss
the mark.



                                         -2-
II.   DISCUSSION

      We review a district court's legal conclusion concerning the application of a
sentencing enhancement de novo. United States v. Otto, 64 F.3d 367, 370 (8th Cir.
1995). We review a district court's factual findings concerning the purpose
underlying the possession of a firearm for clear error. United States v. Regans, 125
F.3d 685, 686 (8th Cir. 1997).

       Section 2K2.1(b)(5) provides for a four-level sentencing enhancement "if the
defendant used or possessed any firearm or ammunition in connection with another
felony offense." Appellant argues that his possession of the firearm occurred
simultaneously with the shooting of Villalobos, and as a result the shooting cannot
constitute "another felony offense," because there was no separation in time or place,
or distinction of conduct between the shooting and the possession of the gun. See
United States v. Sanders, 162 F.3d 396, 400 (6th Cir. 1998) (determining that §
2K2.1(b)(5) requires a finding of a separation of time between the offense of
conviction and the other felony offense, or a distinction of conduct between that
occurring in the offense of conviction and the other felony offense); accord United
States v. Szakacs, 212 F.3d 344, 348-49 (7th Cir. 2000). But see United States v.
Armstead, 114 F.3d 504, 513 (5th Cir. 1997) (rejecting the separation of time or
distinction of conduct test for the § 2K2.1(b)(5) enhancement).

       While appellant correctly identifies a circuit split regarding the definition of
"another felony offense," it is a split that we need not weigh in on in this case. The
circuit split cited above consists of a narrow dispute concerning the proper
application of § 2K2.1(b)(5) when the "other felony offense" consists of a weapons
charge, but could also be characterized as a non-firearm offense. Application Note
18 to § 2K2.1(b)(5) states, "'another felony offense' and 'another offense' refer to
offenses other than explosive or firearms possession or trafficking offenses." For
instance, in Szakacs, the defendants were convicted of conspiracy to steal firearms

                                         -3-
from a licensed dealer. Szakacs reasoned that Application Note 18 to § 2K2.1(b)(5)
directs a court to refrain from enhancing that type of federal weapons charge. The
government argued that the conduct that supported the conspiracy to steal firearms
charge also supported a state law charge of conspiracy to commit burglary. Szakacs,
212 F.3d at 349. The government asserted that characterizing the other felony as a
state law burglary crime took it out of the purview of Application Note 18, because
burglary is not a "firearms possession or trafficking offense." Id. at 348-49. Szakacs
rejected the government's attempt to utilize a state crime characterization as the "other
felony offense," because there was no separation of time or distinction of conduct
between the federal charge of conspiracy to steal firearms and the state charge of
conspiracy to commit burglary. Id. at 351. Szakacs and Sanders both noted the
potential for double counting on the sentence if district courts could use §
2K2.1(b)(5) to enhance a weapons charge when the other felony offense was
presented as a state crime, rather than as a federal firearm possession or trafficking
offense. Id.; Sanders, 162 F.3d at 400. Appellant urges us to side with these two
cases and reverse the district court's enhancement.

       It is not necessary for us to endorse or reject the Sanders-Szakacs line of
reasoning in this case. Here, the other felony offense at issue is not merely another
weapons charge, recast as a state law crime, but is instead a conviction for
involuntary manslaughter. The involuntary manslaughter conviction consists of
conduct that is wholly distinct from a weapons possession or trafficking offense, so
there is no risk of double counting, and the involuntary manslaughter charge is not
being used here to circumvent Application Note 18. In fact, the Szakacs court
recognized that on facts similar to the ones at issue in this case, the Sanders reasoning
would not foreclose an enhancement:

      The Sixth Circuit did not close the door on all enhancements based on
      purported state law crimes, only crimes that truly constituted double
      counting.    The court held that state law crimes that occur


                                          -4-
      contemporaneously to federal weapons crimes could support
      enhancements under § 2K2.1(b)(5) if there was "a finding of a
      separation of time between the offense of conviction and the other
      felony offense, or a distinction of conduct between that occurring in the
      offense of conviction and the other felony offense." Sanders, 162 F.3d
      at 400. Thus, a defendant who steals a firearm and then engages in a
      shootout with police, robs the liquor store down the street or files the
      serial number off the firearm, could receive an enhancement for "another
      felony" because the conduct violates either a state or federal law.

Szakacs, 212 F.3d at 351. When appellant shot Villalobos, his conduct was
analytically distinct from simple possession or trafficking of a firearm.

      In sum, there is no question that involuntary manslaughter is "another felony
offense" and the district court properly applied the enhancement.

      Appellant also argues that he did not use or possess a firearm "in connection
with" another felony offense, because when he killed Villalobos it was done
unintentionally and the "in connection with" provision requires proof that possession
of the firearm facilitated the commission of the other offense and dangerously
emboldened the offender. See Regans, 125 F.3d at 687.

       While appellant cites the correct case, nothing in Regans supports the insertion
of a mens rea requirement for the other felony offense as a prerequisite for a §
2K2.1(b)(5) enhancement. Regans held that an enhancement is appropriate when the
weapon can facilitate the other offense. Regans, 125 F.3d at 687. Here, the weapon
not only facilitated the other offense of involuntary manslaughter, the firearm was the
only thing that enabled the reckless felony to occur. The other offense could not have
been committed without the appellant's possession, and use, of the firearm. The
firearm did more than facilitate the other offense, it was the cause of the other



                                         -5-
offense. It is difficult to think of a more obvious instance of "in connection with"
then the facts presented here.

III.   CONCLUSION

      For the reasons stated, we affirm the district court's sentence, including its
application of the § 2K2.1(b)(5) enhancement.

       A true copy.

             Attest:

                CLERK, U.S. COURT OF APPEALS, EIGHTH CIRCUIT.




                                        -6-
