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10th Circuit Reverses Guidelines Enhancement Because Possession of Ammo Does Not Facilitate Possession of a Firearm

by Anthony W. Accurso

The U.S. Court of Appeals for the Tenth Circuit vacated a defendant’s sentence where the U.S. District Court for the District of Colorado improperly applied a Guidelines enhancement under U.S.S.G. § 2K2.1(b)(6)(B) based on a mistaken application of Colorado law.

Lougary Eddington was involved in a gang-related shootout outside of a Denver liquor store on July 1, 2020. He was with two other members of the Eastside Crips gang when they ran into Roy Fernandez, a Westwood HUD gang member.

After a brief verbal exchange, Fernandez exited the store, followed by Zaire Williams, a Crip. Once in the parking lot, a shootout ensued. During a lull in the shooting, Eddington, who had remained in the store during the first exchange of gunfire, ran out of the store, gun in hand, and took cover behind a vehicle. He eventually exchanged gunfire with Fernandez and left the scene in a vehicle with Williams.

The Government charged Eddington with being a felon in possession of ammunition, in violation of 18 U.S.C. § 922(g)(1). At sentencing, the District Court applied a 4-point enhancement for “having … possessed ammunition in connection with another offense.” § 2K2.1(b)(6)(B). The court based this on two possible felonies: “(1) attempted second-degree assault under Colorado law, and (2) possession of a firearm by a prohibited person, a felony under Colorado law.” The second possible felony was added sua sponte by the court at sentencing after Eddington raised the affirmative defense to the charge of assault by claiming he was acting in self-defense. In addition to adding a second possible felony, the District Court claimed self-defense was not an available defense to a “person who entered into mutual combat.”

The District Court sentenced Eddington to 84 months in prison. He timely appealed, arguing that his sentence is procedurally unreasonable because the court improperly applied the four-level enhancement under § 2K2.1(b)(6)(B).

The Court began its analysis by noting “the review of procedural reasonableness ‘focuses on the manner in which the sentence was calculated’” and that “failing to calculate or improperly calculating the guidelines range is a procedural error.” United States v. Masek, 588 F.3d 1283 (10th Cir. 2009). Procedural errors include “failing to calculate (or improperly calculating) the Guidelines range … failing to consider the § 3553(a) factors … [and] failing to adequately explain the chosen sentence.” Id.

The resolution of the issue presented depends on whether the District Court correctly applied Colorado law, according to the Court. “If the defendant … used or possessed any firearm or ammunition in connection with another felony offense, the offense level is to be increased by four levels.” § 2k2.1(b)(6)(B). Colo. Rev. Stat § 18-3-203(1)(b), (1)(d) (2022) criminalizes attempted second-degree assault. Both parties on appeal stipulated that Eddington’s claim of self-defense would negate culpability for that offense. However, the Government claimed that “self-defense is unavailable to a defendant if the ‘mutual combatant’ or ‘mutual combat’ exception applies.” See Colo. Rev. Stat § 18-1-704 (2022).

The Court noted, however, “[t]o come within this exception to self-defense the government must prove that an agreement to fight existed between the parties, and that the parties entered into the agreement before beginning combat.” Kaufman v. People, 202 P.3d 542, (Colo. 2009). The Colorado Supreme Court concluded in Kaufman that, “[u]nless a clear agreement to fight can be gleaned from the facts presented, the [trial] court should not instruct the jury on the mutual combat exception to self-defense.”

The Court stated that nowhere “in the record did the district court make a factual finding that Eddington and Fernandez agreed to engage in mutual combat.” The Government relied on the judge’s statement at sentencing as follows: “[Eddington] went out knowing there was combat going on. And maybe he didn’t know for sure there was going to be continuous shooting, but he stepped into a gunfight with his own gun and didn’t just happen to get caught up in this but was part of it…. And that is mutual – if you want to call it mutual combat, whatever you want to call it, he was – part of the cause for the danger was his own involvement.”

The Court rejected this reasoning because it “focuses on whether Eddington knew about an altercation and intended to join it,” which “sets a lower standard for rejecting the affirmative defense of self-defense than the applicable standard under Colorado law.”

Finding the mutual combat exception to Eddington’s self-defense claim was inapplicable, the Court turned to the second possible felony, possession of a firearm in violation of state law.

Neither party disputed that Eddington was a felon nor that the store’s security camera clearly showed him in possession of a firearm. The question was whether his federal charge – criminal possession of ammunition – satisfies the “in connection with requirement” of the § 2K2.1(b)(6)(B) enhancement.

First, the Court reiterated that the Guidelines Application Note 14(C) to § 2K1.1(b)(6) “now excludes from the definition of ‘another felony offense’ only the possession or trafficking offense that serves as the basis for the defendant’s conviction.” United States v. Juarez, 626 F.3d 246 (5th Cir. 2010). Thus, his federal charge for criminal possession of ammo – even construed as a state offense – cannot be used to sustain the enhancement, the Court explained.

Second, § 2K2.1(b)(6) cmt. 14(A) states that the enhancement under § 2K2.1(b)(6)(B) applies only “if the firearm or ammunition facilitated, or had the potential of facilitating, another felony offense or another offense.”

The Government argued that “the ammunition possession facilitates the illegal firearm possession by making a firearm more than simply a well-functioning club.” But the Court rejected this argument, reasoning “Eddington’s federal offense and alleged state offense concerned possession – not use. It is unclear how possession of ammunition facilitates possession of a firearm.”

Thus, the Court concluded that the District Court lacked an adequate basis, under either proffered justification, to apply the four-level enhancement under § 2K2.1(b)(6) and doing so constituted procedural error.

Accordingly, the Court vacated the sentence and remanded for resentencing. See: United States v. Eddington, 65 F.4th 1231 (10th Cir. 2023).  

Editor’s note: Prior to 2006, it was understood that Application Note 15 to U.S.S.G. § 2K2.1(b)(6) created a “categorial exclusion for firearms and explosives offenses” for purposes of “another felony” under § 2K2.1(b)(6). United States v. Jones, 528 F. App’x 627 (7th Cir. 2013). However, after Application Note 14(C) replaced Application Note 15, the Fifth, Seventh, and Eight Circuits concluded that Application Note 14(C) eliminated the categorical exclusion and narrowed the exclusion as to what constitutes “another felony” to “only the possession or trafficking offense that serves as the basis for the defendant’s conviction.” United States v. Juarez, 626 F.3d 246 (5th Cir. 201); see also Jones; United States v. Jackson, 633 F.3d 703 (8th Cir. 2011).

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