On Appeal from the United States District Court for the Eastern District of Pennsylvania (Criminal Action No. 02-CR-00073-01) District Judge: Hon. Anita B. Brody
Before: McKEE, Barry and Weis, Circuit Judges.
The opinion of the court was delivered by: McKEE, Circuit Judge
We are asked to determine if the district court correctly determined that the defendant possessed a gun "in connection with" his offense of conviction as defined in U.S.S.G. § 2B5.1(b)(4). The district court imposed the threelevel sentencing enhancement set forth in that guideline after the defendant pled guilty to violating 18 U.S.C. § 472 (passing or attempting to pass counterfeit currency). It is undisputed that Gregory had a gun on his person when he committed the crime he pled guilty to. For the reasons that follow, we will remand for further proceedings consistent with this opinion.
Edward Gregory was arrested along with an associate after Gregory passed counterfeit currency at Caesar's Palace in Atlantic City, New Jersey. His co-defendant had purportedly called him and suggested that they go to Atlantic City to gamble with counterfeit money the co-defendant had. Gregory agreed.
Gregory wore a jacket into the casino and used the counterfeit money to purchase chips. However, after handing the counterfeit money to a teller, he was instructed to step into a back room. Police were called, and a state trooper subsequently entered the room where Gregory was waiting. The trooper advised Gregory that he wanted to question Gregory about counterfeit currency. He then asked if Gregory possessed any weapons. According to statements Gregory made at the ensuing change of plea colloquy, Gregory then realized for the first time that he had a gun in the pocket of his jacket. He immediately told the trooper about the gun, and he was placed under arrest. When asked why he was carrying a gun to the casino, Gregory explained that he had put it in his jacket for protection on an earlier date and simply forgot that he was carrying it when he entered the casino that evening.
Gregory subsequently pled guilty to violating 18 U.S.C. § 472. As we noted at the outset, the district court imposed a three-level enhancement under U.S.S.G. § 2B5.1(b)(4) after accepting Gregory's change of plea and reviewing the presentence report. U.S.S.G. § 2B5.1(b)(4) provides: "If a dangerous weapon (including a firearm) was possessed in connection with the offense, increase by 2 levels. If the resulting offense level is less than level 13, increase to level 13."
Gregory's base offense level before this enhancement was 10, so the court raised it to 13 pursuant to this weapons enhancement. The court then granted a two-level decrease for acceptance of responsibility under U.S.S.G. § 3E1.1(a), making Gregory's base level 11 and resulting in a sentencing range of 8 to 14 months. The district court then imposed a sentence of four months of imprisonment and four months of house arrest.
The parties do not agree on the district court's basis for imposing the U.S.S.G. § 2B5.1(b)(4) enhancement. Gregory argues that it was imposed as a matter of law, and the government insists that it is based on a finding of fact. According to Gregory, the court erroneously concluded that the enhancement automatically applied because he had a gun in his possession when arrested. According to the government, the court concluded from the evidence that Gregory did actually possess the gun "in connection with" counterfeit currency and therefore the enhancement was proper. Inasmuch as our analysis turns on the basis for the enhancement, we will begin by determining why the district court applied U.S.S.G. § 2B5.1(b)(4).
More precisely, Gregory argues that the district court expressly stated that it was not resolving the factual dispute about whether or not he possessed the firearm "in connection with" the underlying offense. Instead, he argues that the district court found that United States v. Loney, 219 F.3d 281 (3d Cir. 2000), mandates an enhancement under § 2B5.1 for possessing a gun "in connection with" a crime whenever a defendant possesses a gun during an "inperson transaction" such as this counterfeit money offense. Because the district court ...