Sentencing; Application of a four-point enhancement for using or possessing a firearm in connection with another felony offense (USSG § 2K2.1(b)(6)(B)); § 2K2.1 cmt. n.14(A) & (C); Whether the state-court indictment by itself was sufficient evidence of “another felony”; § 6A1.3(a); United States v. Crowell; United States v. Maxon (Unpub. 6th Cir.); United States v. Lester (Unpub. 6th Cir.); Enhancement for “reckless endangerment during flight”; § 3C1.2; United States v. Dial; United States v. Brooks (Unpub. 6th Cir.); United States v. Howard (Unpub. 6th Cir.); United States v. May (Unpub. 6th Cir.); United States v. Stafford; United States v. Farrow (Unpub. 6th Cir.); United States v. Carter (Unpub. 6th Cir.); Sentence reduction for “acceptance of responsibility”; § 3E1.1

The court held that the district court erred by applying a four-point enhancement for using or possessing a firearm in connection with another felony offense, and a two-point enhancement for reckless endangerment during flight, in sentencing defendant-Mukes. It also instructed the district court on remand to consider whether he was entitled to the two-point sentence reduction for acceptance of responsibility. He pled guilty to FIP and was sentenced to 120 months. He argued that the district court improperly calculated his guidelines range. He first challenged its application of § 2K2.1(b)(6)(B), which was based on a charge of reckless endangerment with a firearm in state court. He argued that the government failed to establish “another felony offense,” and the court agreed. It held that it was error for the district court to rely on the state court indictment alone to support the enhancement. There must be some evidence besides the allegations in an indictment to support it. The court also concluded that Mukes was not actually guilty of the state court offense where the offense required more than simply firing a gun into the air. Thus, the § 2K2.1(b)(6)(B) enhancement was applied in error. It also held that the district court erred by applying the two-point enhancement under § 3C1.2. To support this enhancement, the government was required to “‘link a specific aspect of the flight . . . with a specific risk.’” The district court was offered three different scenarios as to whether Mukes was in possession of the gun when he fled from police, but it did not determine where or when the gun was dropped in applying the enhancement. Further, the record was insufficient to establish that his dropping the gun presented a risk of it discharging. It was also insufficient to support the theory that “running away from a gun discarded in a public place created a substantial risk to another person.” Thus, the court held that the § 3C1.2 enhancement was improperly applied. In addition, it held that on remand, the government may not “‘get a second bite at the apple’” to try to support the enhancements, but the district court should consider whether Mukes was entitled to the reduction under § 3E1.1. The court vacated his sentence and remanded for resentencing on the existing record.