USA v. Richard Norris, No. 13-6508 (6th Cir. 2014)
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NOT RECOMMENDED FOR FULL-TEXT PUBLICATION File Name: 14a0772n.06 FILED Case No. 13-6508 UNITED STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT UNITED STATES OF AMERICA, Plaintiff-Appellee, v. RICHARD CHESTER NORRIS, Defendant-Appellant. ) ) ) ) ) ) ) ) ) ) Oct 09, 2014 DEBORAH S. HUNT, Clerk ON APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF TENNESSEE MEMORANDUM OPINION BEFORE: McKEAGUE and GRIFFIN, Circuit Judges; and POLSTER, District Judge.ï ª PER CURIAM. Defendant Richard Chester Norris pled guilty to knowingly selling a firearm to a person prohibited from possessing a firearm, in violation of 18 U.S.C. § 922(d)(1). On November 5, 2013, he was sentenced to 24 months imprisonment. On appeal, Norris challenges the sentence as procedurally unreasonable. He contends the district court improperly applied a sentence enhancement under U.S.S.G. § 2K2.1(b)(6)(B), based on the finding that he used the firearm in connection with another felony. Although the government originally opposed Norris s claim of error, following oral arguments in this appeal, the government has acknowledged that Norris did not use the firearm. That is, the government has conceded that defendant did not carry out any purpose or action by means of the firearm when he told [Ronnie] ï ª Honorable Dan Aaron Polster, United States District Judge for the Northern District of Ohio, sitting by designation. Case No. 13-6508 United States v. Norris Mutter to dispose of it . . . but only sought Mutter s cooperation as to another felony which involved the firearm. Based on this concession, the government has joined with Norris in moving the court to vacate the sentence and remand for resentencing. We find the motion well taken. Merely instructing the presumed owner of the firearm to get rid of it because it was evidence in a pending murder investigation where Norris exercised no authority or influence over Mutter, where Mutter did not in fact own or possess the firearm, and where the instruction did not result in the desired impact on the firearm is not use of the firearm in connection with another felony. Accordingly, notwithstanding the due deference owed to the district court s sentencing determination, see United States v. Stafford, 721 F.3d 380, 400 01 (6th Cir. 2013), we find the sentence enhancement improper. We therefore VACATE the sentence and REMAND for resentencing.1 1 Our ruling should not be construed as precluding the district court s consideration of Norris s communication with Mutter in fashioning an appropriate sentence. We hold simply that enhancement under § 2K2.1(b)(6)(B) is not appropriate on the facts of record. -2-
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