HARDIMAN, Circuit Judge.
This appeal requires us to interpret § 2K2.1(b)(6) of the United States Sentencing Guidelines (USSG), which increases a defendant's offense level by four points when he "used or possessed any firearm or ammunition in connection with another felony offense." In a trio of cases over the past decade, we crafted a test for district courts to use in deciding when to apply USSG § 2K2.1(b)(6). We held that for an offense to count as "another felony offense," it must be distinguished from the firearms offense of conviction in two ways: the offense conduct must (1) be distinct in time or conduct, and (2) require proof of an additional element. This appeal requires us to consider whether Amendment 691 to the Sentencing Guidelines vitiates our precedents holding that USSG § 2K2.1(b)(6) does not apply when the predicate offense is burglary of the firearms that are the subject of the conviction.
In 2007, Jason Keller and two others tried to burglarize three gun shops in Western Pennsylvania, succeeding in one of the attempts. Their modus operandi involved stealing a vehicle and using it to break into a store that sold firearms. That plan proved to be easier said than done. On their first try, they fastened straps to both the vehicle and the doors of Kaufman's Antique and Gun Shop in Aliquippa and attempted to rip the door from its hinges, but their straps broke. Almost two weeks later, Keller and his cohorts tried to burglarize Gander Mountain in Coraopolis by ramming its doors with a van. This time, the transmission failed before the doors did. Approximately two weeks later, Keller and his co-conspirators drove a vehicle through the front doors of Fazi's Firearms in Plum Boro and absconded with thirty firearms. After his apprehension, Keller confessed that he sold about eighteen of the firearms to "Adrian" in Maryland for $2,000.
The Probation Office prepared a Presentence Investigation Report, calculating Keller's total offense level as 27 and his criminal history category as I, resulting in an advisory Guidelines range of 70 to 87 months imprisonment. The offense level included a four-point enhancement pursuant to USSG § 2K2.1(b)(6), which must be applied "[i]f the defendant used or possessed any firearm or ammunition in connection with another felony offense; or possessed or transferred any firearm or ammunition with knowledge, intent, or reason to believe that it would be used or possessed in connection with another felony offense."
The District Court exercised jurisdiction pursuant to 18 U.S.C. § 3231. We have jurisdiction under 28 U.S.C. § 1291 and 18 U.S.C. § 3742(b).
The sole issue in this appeal concerns the District Court's interpretation of the Sentencing Guidelines, which we review de novo. United States v. Grier, 585 F.3d 138, 141 (3d Cir.2009); see Gall v. United States, 552 U.S. 38, 51, 128 S.Ct. 586, 169 L.Ed.2d 445 (2007).
Section 2K2.1(b)(6) of the 2010 Sentencing Guidelines Manual was previously found at § 2K2.1(b)(5). Interpreting that provision, we were confronted more than once with a case involving a defendant, like Keller here, who had possessed or stolen one or more firearms in the course of a single criminal act, and was thereafter convicted of a federal firearms offense. For example, in United States v. Fenton, the defendant broke into a sporting goods store, stole several firearms, and received the enhancement.
We revised the Fenton rule in United States v. Lloyd, 361 F.3d 197 (3d Cir.2004). In that case, Lloyd placed a bomb under the car of a man who had pursued a woman who was dating one of Lloyd's criminal associates. Id. at 199. The District Court enhanced Lloyd's Guidelines range over an objection based on Fenton that the enhancement was inappropriate because he had committed only one criminal act. Id. at 199-200. We again observed that "[t]he word `another' avoids ... [the] absurd result" of automatic enhancement based on the offense of conviction, and we noted "it is equally clear that the guideline was not intended to exclude only the technical offense of conviction from the scope of `another felony offense.'" Id. at 200. To assist in distinguishing between cases involving impermissible double counting and permissible enhancement for other felonies, we imported the same-elements test pronounced in Blockburger v. United States, 284 U.S. 299, 52 S.Ct. 180, 76 L.Ed. 306 (1932), which is used in the double jeopardy context. Id. Accordingly, we held that "the `distinction in time or conduct' test set forth in Fenton requires that a felony offense must at least satisfy Blockburger before it may be used to adjust a sentence upward under § 2K2.1(b)(5)." Id. at 200-01. We explained that because thefts and burglaries of firearms are species of possession offenses, they are not "other" offenses. Id. at 201-02. Stating that we would not "read too much into [Fenton's] `distinction of time or conduct' requirement," and relying on the fact that Lloyd had committed no mere theft or burglary, we held that his range was properly enhanced. Id. at 203-05.
United States v. Navarro, 476 F.3d 188 (3d Cir.2007), served as a capstone for Fenton and Lloyd. Navarro confessed to drug distribution, which was used as the predicate "[]other felony offense" to enhance his sentence for possessing a firearm as a convicted felon. Id. at 190-91. We explained that "a two-part standard may be distilled" from Fenton and Lloyd:
Id. at 196 (citations and footnote omitted).
In 2006, the Sentencing Commission proposed an amendment to USSG § 2K2.1, which was eventually adopted as Amendment 691 and incorporated into the Guidelines. See USSG supp. app. C amend. 691, at 170-77. In addition to adding a subsection (5), which bumped the guideline at issue here to subsection (6), and other changes not relevant here, the Commission removed Application Note 15, which stated that "`another felony offense' ... refer[s] to offenses other than explosives or firearms possession or trafficking offenses," and inserted a new Application Note 14, which states in relevant part:
USSG supp. app. C amend. 691, at 171-72, 174-75 (emphasis added); see USSG § 2K2.1 cmt. n. 14. Explaining the basis for the Amendment, the Sentencing Commission wrote:
USSG supp. app. C amend. 691, at 177. Thus, subsection (B) of Application Note 14 sets forth the Commission's view of the correct application of subsection (A)—the facilitation requirement—in the special cases of burglary and drug trafficking offenses.
In Stinson v. United States, the Supreme Court considered "the legal force of commentary" to the Guidelines. 508 U.S. 36, 43, 113 S.Ct. 1913, 123 L.Ed.2d 598 (1993). A unanimous Court rejected the analogy that commentary is to a guideline as a regulation is to a statute, because commentary "is not the product of delegated authority for rulemaking." Id. at 44, 113 S.Ct. 1913. Instead, "the guidelines are the equivalent of legislative rules adopted by federal agencies," and the "commentary ... assist[s] in the interpretation and application of those rules."
As our discussion of Stinson demonstrates, we are bound by the commentary to USSG § 2K2.1(b)(6). Although we held in Fenton that the offense of burglary to steal firearms could not serve as the predicate for a USSG § 2K2.1(b)(6) enhancement, the Commission sided with those courts of appeals that had held to the contrary. Accordingly, the rule we stated in Fenton and reaffirmed in Lloyd and Navarro is no longer valid to the extent it was applied to the burglary and drug trafficking offenses referenced in Application Note 14(B).
Keller is left to argue under Stinson either that Application Note 14 conflicts with a statute or the Constitution, or that it is "plainly erroneous" or inconsistent with USSG § 2K2.1(b)(6). See Stinson, 508 U.S. at 47, 113 S.Ct. 1913. Keller does not suggest a statutory or constitutional conflict (and we find none), but he asserts that it is plainly erroneous to treat burglary
We see no plain error or inconsistency for three reasons. First, Note 14 is entirely consistent with the plain language of the guideline. The meaning of USSG § 2K2.1(b)(6) is ambiguous in cases where the purported other felony is very closely related to the firearms offense. The Commission resolved that ambiguity with respect to cases, like this case and Fenton, in which a burglary is committed for the purpose of obtaining firearms. Second, the fact that Amendment 691 resolved a circuit split evidences sufficient difference of opinion to belie the claims of plain error and inconsistency. The breadth of opinion among appellate judges suggests that the guideline is subject to different interpretations.
Therefore, we are satisfied that Amendment 691, which clarified that a burglary of firearms counts as "another felony offense," is not plainly erroneous or inconsistent with USSG § 2K2.1(b)(6).
The District Court erred procedurally when it relied on Fenton to calculate Keller's Guidelines range. Accordingly, we will vacate the judgment and remand so the District Court can recalculate Keller's Guidelines range by applying the fourpoint enhancement in USSG § 2K2.1(b)(6) before considering the 18 U.S.C. § 3553(a) factors and imposing a new judgment of sentence.
