[DO NOT PUBLISH]

                IN THE UNITED STATES COURT OF APPEALS

                        FOR THE ELEVENTH CIRCUIT
                         ________________________                        FILED
                                                                U.S. COURT OF APPEALS
                                No. 10-13650                      ELEVENTH CIRCUIT
                            Non-Argument Calendar                  FEBRUARY 16, 2011
                          ________________________                     JOHN LEY
                                                                        CLERK
                   D.C. Docket No. 6:10-cr-00005-BAE-GRS-3

UNITED STATES OF AMERICA,

                                   llllllllllllllllllllllllllllllllllllllllPlaintiff-Appellee,

                                       versus

JAMES TYRONE WRICE,

                                 llllllllllllllllllllllllllllllllllllllllDefendant-Appellant.

                          ________________________

                   Appeal from the United States District Court
                      for the Southern District of Georgia
                         ________________________

                               (February 16, 2011)

Before CARNES, WILSON and KRAVITCH, Circuit Judges.

PER CURIAM:

      James Tyrone Wrice appeals his 87-month sentence, imposed after he

pleaded guilty and was convicted of theft of firearms from a federal firearms
licensee, in violation of 18 U.S.C. § 922(u).1 Wrice contends that a four-level

U.S.S.G. § 2K2.1(b)(6) enhancement does not apply to him because there was no

evidence that he, instead of one of his codefendants, found or took a firearm in

connection with the burglary of Brantley’s Marine and Gun. He argues that he

should not be held accountable under § 1B1.3 for the acts of his codefendants.

       According to the undisputed facts as set forth in the presentence

investigation report, Brantley’s Marine and Gun, a federally licensed firearms

dealer in Georgia, was burglarized in the early morning hours of December 11,

2009. Police officers responded to an alarm at Brantley’s, saw that a concrete

block had been thrown through the window, and later determined that eight

firearms had been stolen. Four days after the burglary, law enforcement used a

confidential informant to purchase a pistol from Wrice at his home. After the

transaction, officers searched Wrice’s home, found cocaine base, and arrested

Wrice. Two days after that, Wrice told two officers during an interview that just

before the burglary he dropped off Nicholas Carwell and Justin Mosely at Wal-

Mart, a few blocks from Brantley’s, and that Carwell and Mosely broke into

       1
        That provision makes it a crime: “to steal or unlawfully take or carry away from the
person or the premises of a person who is licensed to engage in the business of importing,
manufacturing, or dealing in firearms, any firearm in the licensee’s business inventory that has
been shipped or transported in interstate or foreign commerce.” 18 U.S.C. § 922(u).



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Brantley’s and stole some firearms. Wrice picked them up after the burglary at a

Holiday Inn Express near Brantley’s. When the three men arrived at Wrice’s

residence, Carwell and Mosely gave him one of the pistols, which he later sold to

the informant, and they took the rest of the firearms. Wrice later admitted that he

knew Mosely and Carwell were planning to steal guns before the burglary

occurred.

      We review de novo a district court’s application and interpretation of the

sentencing guidelines. United States v. Rhind, 

, 693 (11th Cir.

2002). Section 2K2.1 of the guidelines applies to the “Unlawful Receipt,

Possession, or Transportation of Firearms or Ammunition.” U.S.S.G. § 2K2.1. It

includes a four-level enhancement based on a specific offense characteristic “[i]f

the defendant used or possessed any firearm or ammunition in connection with

another felony offense.” U.S.S.G. § 2K2.1(b)(6).

      The application notes for subsection (b)(6) explain that if burglary is the

other felony offense connected with the firearm use or possession, § 2K2.1(b)(6)

applies to “a defendant who, during the course of [the] burglary, finds and takes a

firearm, even if the defendant did not engage in any other conduct with that

firearm during the course of the burglary.” U.S.S.G. § 2K2.1 cmt. n.14(B). That

application note goes on to explain that “application of subsection[ ] (b)(6) . . . is

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warranted because the presence of the firearm has the potential of facilitating

another felony offense.”2 

that the application note about

burglary is fact specific, and § 2K2.1(b)(6) cannot be extended to him based on it

because there is no evidence that he was the “defendant” who found or took a

firearm during the course of the burglary.

       Relevant conduct plays a role in the application of a specific offense

characteristic enhancement like the one in § 2K2.1(b)(6). See U.S.S.G.

§ 1B1.3(a)(1)(A)–(B). Section 1B1.3 of the guidelines is titled “Relevant Conduct

(Factors that Determine the Guideline Range).” It provides that “[u]nless

otherwise specified . . . specific offense characteristics . . . shall be determined on

the basis of . . . all acts and omissions committed, aided, abetted, counseled,

commanded, induced, procured, or willfully caused by the defendant.” U.S.S.G.

§ 1B1.3(a)(1)(A). For “jointly undertaken criminal activity,” like the burglary in

the present case, a specific offense characteristic enhancement is based on “all

reasonably foreseeable acts and omissions of others in furtherance” of that

activity. U.S.S.G. § 1B1.3(a)(1)(B). In the context of § 1B1.3(a)(1)(B), a “jointly



       2
        “[W]e must interpret the text of the Guidelines in light of the corresponding
Commentary and Application Notes, which are binding on the courts unless they contradict the
plain meaning of the text of the Guidelines.” United States v. Kinard, 

, 1297 (11th
Cir. 2006) (quotation marks omitted).

                                               4
undertaken criminal activity” is “a criminal plan, scheme, endeavor, or enterprise

undertaken by the defendant in concert with others, whether or not charged as a

conspiracy.” 

§ 2K2.1(b)(6) suggests that the relevant conduct rules under

U.S.S.G. § 1B1.3(a)(1) do not apply. See U.S.S.G. § 2K2.1(b)(6). While

application note 14(B) to § 2K2.1 clarifies that subsection (b)(6) applies when a

defendant, during the course of a burglary, “finds and takes a firearm,” nothing in

that note requires the conclusion that § 2K2.1(b)(6) applies only when the

defendant himself finds and takes a firearm during the burglary. U.S.S.G. § 2K2.1

cmt. n.14(B). Where the Sentencing Commission has intended to limit the

relevant conduct that applies to a defendant, it has expressly done that. See

U.S.S.G § 2K2.1 cmt. n.13(B) (explaining that in applying subsection (b)(5) of

U.S.S.G. § 2K2.1 “[t]he term ‘defendant,’ consistent with § 1B1.3 (Relevant

Conduct), limits the accountability of the defendant to the defendant’s own

conduct and conduct that the defendant aided or abetted, counseled, commanded,

induced, procured, or willfully caused”); see also U.S.S.G. § 2K2.6 cmt. n.1(A)

(explaining that in applying subsection (b)(1) of § 2K2.6 “[c]onsistent with §

1B1.3 (Relevant Conduct), the term ‘defendant’ . . . limits the accountability of the

defendant to the defendant’s own conduct and conduct that the defendant aided or

                                          5
abetted, counseled, commanded, induced, procured, or willfully caused”). If the

Sentencing Commission had intended to limit the relevant conduct that applies to

a defendant for purposes of a § 2K2.1(b)(6) enhancement, it would have expressly

included a limitation. See United States v. Saunders, 

, 1264 (11th

Cir. 2003) (interpreting a sentencing guideline in light of the rule of statutory

construction that “where Congress includes particular language in one section of a

statute but omits it in another section of the same Act, it is generally presumed that

Congress acts intentionally and purposely in the disparate inclusion or exclusion”)

(quotation marks and alterations omitted).

      The relevant conduct rules in U.S.S.G. § 1B1.3(a)(1)(B) apply to

§ 2K2.1(b)(6) under the facts of this case. It was reasonably foreseeable that

Wrice’s codefendants, in the course of burglarizing a gun store with the intention

of stealing guns, would find and take a firearm. Because Wrice is accountable for

“all reasonably foreseeable acts and omissions of others in furtherance” of their

jointly undertaken criminal activity, he was properly held accountable for the

finding and taking of a firearm in connection with the burglary of the gun store.

The district court did not err by applying the four-level enhancement under

§ 2K2.1(b)(6).

      AFFIRMED.

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