July 21, 2019

Tenth Circuit: Possession of a Firearm Facilitated the Felony Offense of Tampering with the Firearm Evidence

The Tenth Circuit Court of Appeals issued its opinion in United States v. Marrufo on Tuesday, October 18, 2011.

The Tenth Circuit affirmed the district court’s sentence. In separate prosecutions arising from the same event, Petitioner was convicted in federal court of being a felon in possession of a firearm and in state court of tampering with evidence by hiding the same firearm. The U.S. Sentencing Guidelines adds four offense levels to a sentence calculation when the defendant used or possessed a firearm in connection with another felony offense. Petitioner argues on appeal that the federal district court should not have applied this sentence enhancement to him because his possession of the firearm did not facilitate his tampering with the firearm.

The Court disagreed. Section 2K2.1(b)(6) of the Sentencing Guidelines contains three elements: the defendant must 1) use or possess a firearm 2) in connection with 3) another felony offense. There is no dispute that Petitioner possessed a firearm and that he committed the felony offense of tampering with evidence. And, “in connection with” means to “facilitate” or make easier. Applying the plain meaning of “facilitate,” the Court concluded that Petitioner’s “possession of the firearm was ‘in connection with’ the other felony offense—tampering with evidence. Possessing physical evidence makes it easier to tamper with it.”

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