Third Circuit Rules that Federal Sentencing Enhancement for Possessing a Firearm While Committing A Felony Applies – Even When the Felony is the Burglary of the Same Firearm

In United States v. Keller, 666 F.3d 103 (3d Cir. 2011), the prosecution appealed a decision of the United States District Court for the Western District of Pennsylvania, which found that a sentencing enhancement under U.S. Sentencing Guidelines Manual § 2K2.1(b)(6) did not apply to defendant’s conduct. This enhancement increases a defendant’s offense level by four points when he “used or possessed any firearm or ammunition in connection with another felony offense.”

In 2007, Defendant Jason Keller and two others burglarized a gun shop in Western Pennsylvania. Keller and his co-conspirators drove a vehicle through the front doors of Fazi’s Firearms in Plum Boro and absconded with thirty firearms. After his apprehension, Keller confessed that he sold about eighteen of the firearms to “Adrian” in Maryland for $2,000.

A grand jury of the United States District Court for the Western District of Pennsylvania indicted Keller for conspiracy to commit an offense against the United States in violation of 18 U.S.C. § 371, and stealing firearms from a federally licensed firearms dealer in violation of 18 U.S.C. § 922(u). The Government subsequently filed an information against Keller, charging him with possessing an unregistered firearm in violation of 26 U.S.C. § 5861(d). Keller pleaded guilty to all three offenses.

The probation office which prepared Keller’s presentence investigation report concluded that his burglary was “another felony offense” justifying application of the enhancement under § 2K2.1(b)(6), which, inter alia, had to be applied if the defendant used or possessed any firearm or ammunition in connection with another felony offense. The district court held that the enhancement did not apply. On appeal, the United States Court of Appeals for the Third Circuit held that Amendment 691 to the Sentencing Guidelines, U.S. Sentencing Guidelines Manual app. C, amend. 691, essentially overruled its precedents holding that § 2K2.1(b)(6) did not apply when the predicate offense was burglary of the firearms that were the subject of the conviction.

The court vacated the judgment and remanded so the district court could recalculate defendant’s guidelines range by applying the four-point enhancement in § 2K2.1(b)(6) before considering the 18 U.S.C.S. § 3553(a) factors and imposing a new judgment of sentence.

All persons charged with crimes are entitled to the protections afforded by the United States Constitution. An experienced criminal defense attorney helps to ensure that a defendant’s rights are protected before, during and after a trial. If you have been charged with or convicted of a criminal offense, you should consult with a criminal defense attorney immediately. For a confidential consultation, contact the Law Offices of Marc Neff at (215) 563-9800 or via email at marc@nefflawoffices.com.