Sentencing Guidelines Enhancement.

• Position: United States of America v. Michael Price

Byline: Derek Hawkins

7th Circuit Court of Appeals

Case Name: United States of America v. Michael Price

Case No.: 20-2490

Officials: EASTERBROOK, ROVNER, and WOOD, Circuit Judges.

Focus: Sentencing Guidelines Enhancement

Believing that Carissa Sammons had stolen some of his girlfriend's jewelry, Michael Price called the house in Indianapolis where Sammons was staying and announced that he was coming to get the jewelry backby force, if necessary. When Price tried to gain entrance, Brian Butler closed the front door. Price fired a revolver several times through the door, hitting Edwin Smith in the leg. Price dropped the revolver and fled. When police caught up with his truck, they found a Taurus pistol. Price has pleaded guilty to the crime of possessing a gun, which his felony record made unlawful. 18 U.S.C. 922(g)(1). Although the indictment does not identify the gun or guns that Price unlawfully possessed, the factual basis proffered in support of the plea identifies possessing the Taurus pistol as the crime of conviction. The court sentenced Price to 110 months in prison.

The presentence report recommended that the judge add four offense levels under U.S.S.G. 2K2.1(b)(6)(B), which applies when the defendant "used or possessed any firearm or ammunition in connection with another felony offense". The PSR observed that shooting into an occupied house amounts to the state offense of criminal recklessness, Ind. Code 35-42- 2-2(b)(1)(A), if not something more serious. Unfortunately, the report did not quote 2K2.1(b)(6)(B) accurately. Instead it paraphrased the rule as one that adds four levels if "[t]he defendant possessed the firearm while committing another felony offense."

At sentencing the judge quoted from that paraphrase rather than from 2K2.1(b)(6)(B). Yet the two concepts differ. An enhancement for a felony committed "while possessing" a firearm would apply if Price had left the Taurus in a bank...