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United States Court of Appeals
Fifth Circuit
F I L E D
October 20, 2003
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
Charles R. Fulbruge III

Clerk
No. 02-51149

UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
EDWARD LEE OUTLEY, III, also known as Edward Lee Outley,
Defendant-Appellant.
____________________
Appeal from the United States District Court
for the Western District of Texas
_____________________
Before HIGGINBOTHAM, STEWART, and PRADO, Circuit Judges.
PER CURIAM:
A jury convicted Edward Lee Outley, III, of being a felon in
possession of a firearm and ammunition. The probation officer
recommended that Outley's offense level be increased by four
under section 2K2.1(b)(5) of the United States Sentencing
Guidelines (the Guidelines) because Outley possessed a firearm or
ammunition in connection with another crime; specifically, "the
King shooting." Testimony at the sentencing hearing linked
Outley and the ammunition to the King shooting. Over Outley's
objections, the district court increased Outley's sentence based
on his having possessed or used a firearm or ammunition in
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connection with "another felony offense" under section
2K2.1(b)(5) of the Guidelines. Outley appeals and argues that
the other felony offense in his case was too far removed in time
and too different in type to be considered "relevant conduct"
with regard to his crime of conviction.
Section 2K2.1(b)(5) provides that if the defendant used "any
firearm or ammunition in connection with another felony offense"
the Guidelines offense level must be increased by four levels.
U.S.S.G. § 2K2.1(b)(5) (Nov. 2001). Section 1B1.3 generally
limits certain acts that may be used to increase a sentence to
those that constitute "relevant conduct" with respect to the
crime of conviction. See U.S.S.G. § 1B1.3 & comment. Section
1B1.3 applies in cross reference to Chapter Two of the Guidelines
unless specified otherwise. U.S.S.G. § 1B1.3(a). Although this
Court has not directly addressed whether "another felony offense"
under section 2K2.1(b)(5) is limited to "relevant conduct" by
virtue of the application of section 1B1.3, this Court previously
considered the same question about the application of section
2K2.1(c)(1).
In United States v. Gonzales, this Court determined that
section 1B1.3 does not restrict the application of section
2K2.1(c)(1). See United States v. Gonzales, 996 F.2d 88, 91-92
(5th Cir. 1993). While section 2K2.1(b)(5) provides for a four-
level increase in the offense level, section 2K2.1(c)(1) provides
that, when a firearm or ammunition is used or possessed in
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connection with "the commission or attempted commission of
another offense," the offense level is increased by application
of other, specified, guidelines provisions. See U.S.S.G.
§ 2K2.1(c)(1). In Gonzales, this Court reasoned that section
2K2.1(c)'s "unlimited references to `another offense,' indicates
that it is not restricted to offenses which would be relevant
conduct but embraces all illegal conduct performed or intended by
defendant concerning a firearm involved in the charged offense."
Gonzales, 996 F.2d at 92.
Although section 2K2.1(b)(5) requires that the other offense
be a "felony," it is otherwise indistinguishable from section
2K2.1(c)'s "another offense" language. No dispute exists in the
present case that the King shooting was a felony. As a result,
no logical basis exists for applying the relevant-conduct
restriction to section 2K2.1(b)(5) when the restriction does not
apply to section 2K2.1(c).
Moreover, this Court previously analyzed the "in connection
with" language of section 2K2.1(b)(5) and determined that
"§ 2K2.1(b)(5) mandates an enhancement even if the defendant only
possesses a firearm in connection with any other felony."
United States v. Condren, 18 F.3d 1190, 1196 (5th Cir. 1994).
Although the application of section 1B1.3 was not at issue, this
Court plainly indicated that "another felony offense" should be
given a very broad reading. Condren,18 F.3d at 1196. Based on
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this reasoning, this Court concludes that section 1B1.3, the
relevant-conduct guideline, does not apply to the enhancements
prescribed for the use or possession of a firearm or ammunition
in connection with other offenses under section 2K2.1.
Because section 1B1.3's relevant-conduct limits do not apply
to other offenses under section 2K2.1, Outley's relevant-conduct
analysis is irrelevant, and this Court need not consider whether
the King shooting could be considered "relevant conduct" with
regard to the crime of conviction. Consequently, this Court
affirms the judgment of the district court.
AFFIRMED.
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