Possession As Relevant Conduct
Fernando Lopez pleaded guilty to possession of a firearm and ammunition by a felon. He challenged his sentence, arguing the district court’s imposition of a four-level enhancement for use or possession of a firearm in connection with another felony offense was error. The linchpin of the case was whether his repeated instances of being a felon in possession of a firearm were relevant conduct, justifying the enhancement. The Fifth Circuit affirmed.
In October 2019, DPS troopers stopped Lopez while he was driving a Mercedes and found a firearm on the driver’s side floorboard of the car in plain view. Lopez had several felony convictions at the time, including a 2013 Texas conviction for robbery for which he was sentenced to five years of imprisonment.
In March 2021, he was federally charged for the October 2019 offense. Officers found a loaded .45 caliber Smith & Wesson in his work vehicle as they made the arrest. Soon thereafter, a victim reported that he had been assaulted by Lopez in January 2021. Lopez allegedly had hit the victim in the head with his gun.
The issue in the case was whether U.S.S.G. 2K2.1(b)(6)(B) applied, which provides for a four-level enhancement if, in this case, the October 2019 possession was “in connection with” another felony, namely, possession of the other firearms. The district court determined the October 2019 and March 2021 firearm possessions were part of the same course of conduct via the relevant-conduct standard, which required the district court to weigh three factors to determine if the two possessions were sufficiently related: (1) the degree of similarity between the offenses; (2) the regularity of the offenses, and (3) the time interval between the offenses. The court concluded that the evidence established the two possessions were relevant conduct and therefore part of the same course of conduct, thus supporting the enhancement.
The Fifth Circuit looked to U.S.S.G. § 2K2.1, cmt. n. 14(E) and noted that the relationship between the offense of conviction and the other felony offense must be considered “consistent with relevant conduct principles.” Also, the enhancement applies even if the firearm used for the increase is not the same firearm used in the offense. Lopez argued that the mere commission of the offense of illegal possession of a firearm on two disconnected, temporally distant occasions was insufficient to satisfy the similarity factor. The Government responded that the offenses were similar because Lopez, a felon, was twice found to be in possession of stolen, loaded pistols in his vehicle. The Fifth Circuit held that the district court had adequately analyzed the three factors for relevant conduct and concluded that the similarity and regularity factors weighed in favor of the enhancement despite a lack of temporal proximity. It affirmed the application of the enhancement.