United States v. Brent Howard

In United States v. Howard, No. 24-40033 (5th Cir. Oct. 9, 2024) (unpublished), the Fifth Circuit affirmed the defendant’s conviction and sentence for being a felon in possession of a firearm under 18 U.S.C. § 922(g)(1). In part, the court held that Howard’s possession of a second firearm six months after his arrest was “relevant conduct” and “part of the same course of conduct,” which justified a higher Sentencing Guidelines range.

Foreclosed Challenges: First, the Fifth Circuit rejected Howard’s argument that § 922(g)(1) is unconstitutional under the Second Amendment because that argument is foreclosed. See United States v. Jones, 88 F.4th 571, 573–74 (5th Cir. 2023), cert. denied, 144 S. Ct. 1081 (2024). Similarly, it rejected as foreclosed his Equal Protection and Commerce Clause challenges to the statute.

Main Issue: Did the district court err by applying USSG § 2K2.1(a)(4)(B)(i)(I) based on its finding that Howard’s conduct on July 20, 2021, and January 28, 2022, were part of the same course of conduct? No, the Fifth Circuit found no clear error in that determination.

Under § 2K2.1(a)(4)(B)(i)(I), a defendant receives an increased base offense level under the Sentencing Guidelines if his offense involved a “semiautomatic firearm that is capable of accepting a large capacity magazine.” Here, Howard possessed the semiautomatic firearm on January 28, 2022, but he was convicted of possessing a different firearm on July 20, 2021. The crux of the issue was this: was the January 28 arrest part of the “relevant conduct” for Howard’s July 20 crime?

The Guidelines define “relevant conduct” as including “all acts and omissions . . . that were part of the same course of conduct.” USSG § 1B1.3(a)(2). The Fifth Circuit looks at three factors to evaluate “same course of conduct”: (1) ‘the degree of similarity of the offenses,’ (2) ‘the regularity (repetitions) of the offense,’ and (3) ‘the time interval between the offenses.’” United States v. Lopez, 70 F.4th 325, 329 (5th Cir. 2023) (quoting USSG § 1B1.3, cmt. n.5(B)(ii)).

The Fifth Circuit decided here that the district court did not clearly err in finding that Howard’s possession of a gun on January 28, 2022, was “part of a single episode, spree, or ongoing series of offense",” USSG § 1B1.3, cmt. n.5(B)(ii), related to his July 20, 2021, possession of a different firearm. First, for felon-in-possession cases, “a felon’s mere possession of a firearm satisfies the similarity factor.” Lopez, 70 F.4th at 330. Second, the regularity factor was “a closer call,” but the weakness of this factor was outweighed by the strength of the other two factors. Third, the events were only six months apart, and the Fifth Circuit “typically uses one year as the benchmark” for this analysis. Lopez, 70 F.4th at 329.