United States v. Henry

In United States v. Henry, —- F.4th —-, No. 23-30589 (5th Cir. Oct. 17, 2024), the Fifth Circuit affirmed Henry’s conviction for being a felon in possession of a firearm in violation of 18 U.S.C. § 922(g)(1), but the court vacated his sentence because he did not possess the firearm “in connection with” another crime, as required by USSG § 2K2.1(b)(6)(B).

Background: Henry had been arrested after getting out of a stolen vehicle and attempting to flee on foot. While he was fleeing, Henry threw a pistol to the ground, and after he was arrested, Henry was charged for unlawfully possessing that firearm.

Months later, after Henry pled guilty, the Government argued that he should receive a 4-level Sentencing Guidelines enhancement because he had possessed that pistol “in connection with another felony offense.” § 2K2.1(b)(6)(B). Under the Guidelines, a firearm is possessed “in connection with” another felony if the firearm “facilitated, or had the potential of facilitating” the other felony. USSG § 2K2.1, cmt. n.14(A).

Henry disagreed with the Government and argued that no information showed he knew that car was stolen, and he had possessed the gun to protect himself, not to protect a stolen car. The district court rejected Henry’s argument and enhanced his Sentencing Guidelines for possessing a firearm in connection with another felony.

Holding: On these facts, it was error for the district court to apply the Guidelines enhancement for possessing a firearm in connection with another felony offense.

If a party seeks an adjustment to the defendant’s base offense level under the Guidelines, that party bears the burden of “establishing the factual predicate ‘by a preponderance of the relevant and sufficiently reliable evidence.’” United States v. Aguilar-Alonzo, 944 F.3d 544, 549 (5th Cir. 2019) (quoting United States v. Richardson, 781 F.3d 237, 249 (5th Cir. 2015)).

The Government argued that it had met that burden and that the district court had reasonably inferred that Henry knew the car was stolen because he fled from the scene. At sentencing, however, Henry had introduced a competing inference: he fled because he knew he was a felon in possession of a firearm. On appeal, the Fifth Circuit agreed with the Government that a district court does not commit clear error when it merely chooses between plausible competing inferences.

The Government lost, however, on another point that proved dispositive. The Fifth Circuit held that the Government had failed to prove that Henry’s pistol “facilitated or had the potential of facilitating” possession of a stolen vehicle.

For drug-trafficking crimes, mere proximity of a gun to drugs can create a presumption that the gun “facilitated” the possession of drugs. See United States v. Jeffries, 587 F.3d 690, 692 (5th Cir. 2009). But for all other types of crime, there is no such presumption.

Here, the Government not only failed to meet its burden of proof, but it affirmatively argued against the holding of Jeffries. At sentencing, the Government analogized to drug trafficking, even though the Jeffries court had sharply distinguished drug crimes from all other crimes. Moreover, the district court failed to make any finding that Henry’s pistol facilitated his possession of a stolen vehicle.

“Given the lack of a finding of facilitation connecting Henry’s possession of the gun to his possession of the car, and, oppositely, the government’s reliance on a legal theory that [the Fifth Circuit] rejected in published case law,” the court vacated Henry’s sentence and remanded for resentencing.