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United States v. Sanford

United States District Court, D. Kansas

July 20, 2017

JAMES T. SANFORD, Defendant.



         This matter comes before the Court on Defendant James T. Sanford's Objection Number One to the Presentence Investigation Report (“PSR”) (Doc. 32). Defendant objects to Paragraph 24 of the PSR, which adds a four-level enhancement to his base offense level pursuant to United States Sentencing Guidelines (“USSG”) § 2K2.1(b)(6)(B). Defendant argues that his total offense level should be twelve because the Government does not prove the enhancement by a preponderance of the evidence. At Defendant's July 11, 2017 sentencing hearing, the Court heard argument on Defendant's Objection, at which time the Court took the Objection under advisement. After considering the Objection, the Government's response, and the parties' arguments at the July 11 hearing, the Court is prepared to rule. For the reasons stated below, the Court sustains Defendant's Objection Number One.

         I. Background

         Plaintiff pleaded guilty on April 16, 2017, to knowingly and unlawfully possessing, as a felon, a firearm that had been transported in interstate commerce, in violation of 18 U.S.C.§§ 922(g)(1) and 924(a)(2).[1] Prior to Defendant's sentencing hearing, the United States Probation Office filed a PSR, in which it calculated Defendant's base offense level as fourteen pursuant to USSG § 2K2.1(a)(6)(A).[2] The report adds an offense enhancement pursuant to Section 2K2.1(b)(6)(B), because Defendant possessed the gun while driving a stolen vehicle. This enhancement increases Defendant's total offense level to fifteen from twelve.[3]

         The parties stipulated to the following facts regarding the alleged theft of the stolen vehicle.[4] The stolen vehicle belonged to Carrie Goodwin. Goodwin loaned the vehicle to her boyfriend, Kevin Free, on June 25, 2016. Free drove her to work that morning and told her that he would pick her up that evening. Free never returned to pick her up and would not answer her phone calls. After the car had been missing for two days and she had not heard from Free, Goodwin reported the car stolen on June 27, 2016.[5] On August 3, 2016, police found Defendant in possession of the stolen vehicle. Goodwin did not know Defendant or give him permission to drive the vehicle.

         The PSR also states that on August 3, the Kansas City, Kansas Police Department Violent Crimes Task Force received notice that officers observed the vehicle in the area. The Air Unit located it at a residence. Police responded to the residence and detained the driver of the vehicle, James Sanford, and two passengers, Janay Cunningham and her seven-month-old son, who were in the back seat. Officers found a Big Saucer gun case containing a firearm in the front seat of the car. Cunningham told police that the firearm belonged to her and that they were going to a pawnshop to sell it. The firearm was, in fact, registered to Cunningham. While in custody at Correction Corporation of America in Leavenworth, Defendant called a female and told her that he planned on pawning the gun. After making that statement, he “corrected himself and said he was taking Cunningham to pawn the gun so he could get some money.”[6]

         Based on the specific offense characteristic of possessing a firearm and ammunition in connection with another felony offense, i.e. driving a stolen automobile, the PSR calculated Defendant's total offense level as fifteen. Defendant argues that the report contains insufficient factual support to justify this enhancement, and that therefore his total offense level should be twelve.

         II. Discussion

         USSG § 2K2.1(b)(6)(B) describes the applicable sentence enhancements for offenses under § 922(g)(1) and provides for a four-level enhancement if the defendant:

Used or possessed any firearm or ammunition in connection with another felony offense; or possessed or transferred any firearm or ammunition with knowledge, intent, or reason to believe that it would be used or possessed in connection with another felony offense.[7]

         “Another felony offense” can be a federal, local, or state offense “punishable by a term exceeding one year, regardless of whether a criminal charge was brought, or a conviction obtained.”[8] Because this sentence enhancement does not increase the sentencing range prescribed by 18 U.S.C. §§ 922(g)(1) and 924(a)(2), the Government has the burden to prove the connected felony offense by a preponderance of the evidence.[9]

         The Government argues that the connected felony offense was a theft pursuant to K.S.A.§ 21-5801. The statute defines theft, in relevant part, as:

any of the following acts done with intent to permanently deprive the owner of the possession, use or benefit of the owner's property or services:(1) Obtaining or exerting unauthorized control over property or services;(2) obtaining control over property or services, by deception; (3) obtaining control over property or services, by threat; or (4) obtaining control over stolen property or services knowing the property or services to have been stolen by another . . .[10]

         The Government argued that Defendant committed a felony theft pursuant to this statute in two ways. First, it argued Defendant exerted unauthorized control over the vehicle. Second, it argued Defendant should have known or had reasonable suspicion that the vehicle was stolen. Though the Government never clarified which subsection of the statute Defendant violated, “exerting unauthorized control” over the vehicle would be a theft pursuant to K.S.A. § 21-5801(1) (“subsection (1)”) and ...

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