                     United States Court of Appeals
                         FOR THE EIGHTH CIRCUIT

                                   ___________

                                   No. 02-3249
                                   ___________

United States of America,              *
                                       *
            Plaintiff - Appellee,      *
                                       * Appeal from the United States
      v.                               * District Court for the Western
                                       * District of Missouri.
William Martinez, also known as        *
William T. Melvin,                     *
                                       *
            Defendant - Appellant.     *
                                       *
                                  __________

                            Submitted: April 15, 2003
                                Filed: August 12, 2003
                                 ___________

Before MORRIS SHEPPARD ARNOLD, BEAM, and MELLOY, Circuit Judges.
                         ___________

MELLOY, Circuit Judge.

       William Martinez pled guilty to being an unlawful user of a controlled
substance and a felon in possession of firearms, in violation of 18 U.S.C. §§
922(g)(1), (3), and 924(a)(2). Over Martinez’s objections, the district court imposed
a two-level specific-offense enhancement under U.S.S.G. § 2K2.1(b)(4) because one
of the two firearms was stolen, and a four-level specific-offense enhancement under
U.S.S.G. § 2K2.1(b)(5) because the firearms were used in connection with another
felony offense. Martinez was sentenced to 100 months, with three years supervised
release.
       On appeal, Martinez alleges three points of error: (1) that imposition of the §
2K2.1(b)(4) enhancement in Martinez’s case violated his Fifth Amendment due
process rights because the government did not establish that he knew the firearm at
issue was stolen; (2) that the government failed to establish a factual predicate for the
§ 2K2.1(b)(5) enhancement; and (3) that the district court impermissibly double-
counted when it imposed enhancements under both U.S.S.G. § 2K2.1(b)(4) and §
2K2.1(b)(5). We affirm in part and reverse in part.


                                           I.


       In a superseding indictment, the government charged Martinez with two counts
of being an unlawful user of a controlled substance and a felon in possession of
firearms, in violation of 18 U.S.C. §§ 922(g)(1), (3), and 924(a)(2). Martinez pled
guilty to Count 2, which relates to Martinez’s conduct and arrest on October 18,
2001. The government dismissed Count 1, which involved a subsequent run-in with
authorities on January 21, 2002, wherein Martinez was arrested while attempting to
steal a car. The district court calculated Martinez’s sentence based solely on Count
2, and our factual recitation of the relevant offense conduct is drawn from the
presentence report.


       On October 18, 2001, a citizen reported to police that she had found a black
bag on a road near her residence in Rogersville, Missouri. An officer responded to
the call, and, on opening the bag, discovered two credit cards in the name of Carla D.
Wingo, a .22 caliber pistol, and a 9 millimeter pistol. Also in the bag were a social
security card belonging to William T. Martinez, a scrap book, and miscellaneous
papers from the Missouri Department of Corrections belonging to Martinez.


      Not far from where the bag was located, the officer found Martinez standing
alongside his truck. During the ensuing conversation, Martinez told the officer that

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he was missing a bag that contained his papers, identification, and a scrapbook. The
officer noticed clothing and tools in Martinez’s truck. The officer contacted the local
sheriff’s office and was told that Carla Wingo’s residence had recently been
burglarized and that a number of the items in Martinez’s truck, as well as the credit
cards and the .22 caliber pistol, had been stolen during the burglary. As a result,
Martinez was arrested for possession of stolen property.


      The district court calculated Martinez’s total offense level at 23, including the
two- and four-level specific offense enhancements challenged in this appeal. This
score, combined with Martinez’s Category VI criminal history, resulted in a
sentencing range of 92 to 115 months. The district court sentenced Martinez to 100
months in prison, and three years supervised release. This appeal timely followed.


                                          II.


       We review the district court’s factual findings for clear error and its legal
conclusions concerning the application of the sentencing guidelines de novo. United
States v. Scolaro, 299 F.3d 956, 957 (8th Cir. 2002); United States v. Rohwedder, 243
F.3d 423, 425 (8th Cir. 2001). Martinez’s constitutional claim is reviewed de novo.
United States v. Johnson, 56 F.3d 947, 953 (8th Cir. 1995).


A.    U.S.S.G. § 2K2.1(b)(4):
       We affirm the district court’s imposition of the two-level enhancement under
§ 2K2.1(b)(4),1 and reject Martinez’s constitutional challenge. The application notes
to § 2K2.1 explain that the enhancement under subsection (b)(4) for a stolen firearm
“applies whether or not the defendant knew or had reason to believe that the firearm


      1
        U.S.S.G. § 2K2.1(b)(4) states, “If any firearm was stolen, . . . increase by 2
levels.”).

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was stolen . . . .” U.S. Sentencing Guidelines Manual § 2K2.1, cmt. n.19 (2002).
Martinez contends that imposition of this type of strict liability enhancement violated
his Fifth Amendment due process rights, and that the government was constitutionally
required to prove that he knew the firearm was stolen. Although we have held on
several occasions that § 2K2.1(b)(4) does not include a knowledge requirement, we
have never explicitly resolved the issue on constitutional grounds. See United States
v. Hernandez, 972 F.2d 885, 888 (8th Cir. 1992) (affirming enhancement without
reference to constitutional question); United States v. Amerson-Bey, 898 F.2d 681,
683 (1990) (affirming enhancement but expressly declining to reach constitutional
question because the defendant had not raised his constitutional claim before the
district court); United States v. Anderson, 886 F.2d 215, 216 (8th Cir. 1989)
(affirming enhancement without reference to constitutional question).


       We now join every other circuit to have addressed the issue and explicitly hold
that § 2K2.1(b)(4) does not violate the constitution.2 We agree that no due process
concerns are implicated by the lack of a scienter requirement because “the upward
adjustment for possession of a stolen firearm does not stand alone as an independent
crime but is part of a sentencing court’s quest to formulate a proper sentence.”
Singleton, 946 F.2d at 26, quoted in Murphy, 96 F.3d at 849. See also Sanders, 990
F.2d at 584 (distinguishing between strict liability crimes and strict liability
enhancements). As such, the enhancement does not alter the statutory maximum
penalty, negate the presumption of innocence or alter the burden of proof for the
underlying offense. Goodell, 990 F.2d at 499-500. “Further, the government has a
legitimate interest in punishing possession of a stolen firearm and placing the burden

      2
        See United States v. Murphy, 96 F.3d 846, 848-49 (6th Cir. 1996); United
States v. Griffiths, 41 F.3d 844, 845-46 (2d Cir. 1994); United States v. Richardson,
8 F.3d 769, 770 (11th Cir. 1993); United States v. Sanders, 990 F.2d 582, 584 (10th
Cir. 1993); United States v. Goodell, 990 F.2d 497, 499-501 (9th Cir. 1993); United
States v. Schnell, 982 F.2d 216, 219 (7th Cir. 1992); United States v. Mobley, 956
F.2d 450, 452, 459 (3d Cir. 1992); United States v. Singleton, 946 F.2d 23, 27 (5th
Cir. 1991); United States v. Taylor, 937 F.2d 676, 682 (D.C. Cir. 1991).

                                         -4-
upon one who receives a firearm to ensure that the possession is lawful.” Griffiths,
41 F.3d at 845 (citation omitted).


B.    U.S.S.G. § 2K2.1(b)(5):
      U.S.S.G. § 2K2.1(b)(5) provides for a four-level enhancement if the defendant
used or possessed any firearm “in connection with another felony offense.” Martinez
argues that the enhancement is not warranted in his case because the government has
not demonstrated that the firearms at issue, the .22 caliber and 9 millimeter pistols,
were used or possessed in connection with any other felony. We agree that the
government has failed to meet its burden on this issue.


       In the plea agreement, the government stipulated that it did “not have any
evidence that Defendant was committing another felony offense at the time of his
apprehension on October 18, 2001, during which he possessed the firearms in
question other than receipt/possession of stolen property.” The government contends
that Martinez’s possession of stolen credit cards (which were in the abandoned bag
along with Martinez’s identification papers) and other stolen items on his person and
in his truck at the time of his arrest satisfies the “other felony” requirement of §
2K2.1(b)(5). Under Missouri law, however, possession of stolen property is a class
A misdemeanor unless the property involved has a value of one hundred fifty3 dollars
or more, in which case it is a class C felony. Mo. Ann. Stat. § 570.080 (2002).


       The government concedes that neither the plea agreement, the presentence
report, nor the transcript of the sentencing hearing enumerates, or values, the
allegedly stolen items in Martinez’s possession at the time of his arrest. The
government argues, however, that possession of stolen credit cards is, in itself, a

      3
         In 2002, the threshold amount for felony classification was raised to five
hundred dollars. Martinez’s charged conduct occurred on October 18, 2001, prior to
the statutory amendment.

                                         -5-
felony offense. The government reasons that because Missouri makes it a felony to
steal a credit card, Mo. Ann. Stat. § 570.030.3(3)(c), we can conclude that it is a
felony to possess a stolen credit card despite the statute’s omission of language to that
effect. We decline to read language into Missouri’s criminal code that was not clearly
intended by its legislature. Cf. e.g., N.Y. Penal Law § 165.45 (2003) (felony
possession of stolen property applies where the value of the property exceeds one
thousand dollars or, inter alia, the property consists of a credit card); Ohio Rev. Code
Ann. § 2913.71 (elevating possession of stolen property to a felony where the
property involved is a credit card); N.M. Stat. Ann. § 30-16-27 (2002) (establishing
a distinct offense of possession/retention of a stolen credit card).


       Missouri’s theft and possession of stolen property statutes are not drafted with
parallel construction and we will not force a parallel interpretation on the two
provisions. Compare Mo. Ann. Stat. § 570.030 with Mo. Ann. Stat. § 570.080.
Although the theft statute, like the possession statute, includes a one hundred fifty
dollar felony threshold, the theft statute, in addition, enumerates more than a dozen
specific items, the theft of which merits felony status regardless of value. See Mo.
Ann. Stats. § 570.030. These include the theft of any credit card; any “horse, mule,
ass, cattle, swine, sheep, or goat; any United States national flag; or any “pleading,
notice judgment or any other [judicial] record.” See id. There are many reasons why
the legislature may have determined that theft of these items should be punished more
severely than others, and those reasons do not necessarily apply where all that is at
issue is possession of the stolen items.


       The government has directed us to nothing in the Missouri criminal code or
legislative history to suggest that Missouri considers theft of property and possession
of stolen property inherently equivalent crimes. Nor has the government
demonstrated that under Missouri law crimes involving credit cards are categorically
treated as felonies. To the contrary, the use of a stolen credit card to obtain services
or property is a class A misdemeanor unless the value of the property or services at

                                          -6-
issue exceeds one hundred fifty dollars. Mo. Stat. Ann. § 570.130; see also Mo. Stat.
Ann. § 570.135 (fraudulent procurement of a credit card or procurement of personal
identifying information of another person used to fraudulently obtain a credit card is
a class A misdemeanor). Given this, we cannot conclude that the legislature intended
to implicitly confer felony status to possession of a stolen credit card.


       For imposition of U.S.S.G. § 2K2.1(b)(5), the government was required to
demonstrate that Martinez possessed the firearms charged in Count 1 in connection
with another felony offense. Here, the alleged other felony offense was possession
of stolen property. There is nothing in the record to establish that the stolen property
in Martinez’s possession on October 18, 2001 exceeded Missouri’s statutory felony
threshold, and thus the four-level enhancement should not have been imposed.4


       Finally, we briefly address, and reject, the government’s suggestion at oral
argument that we recalculate Martinez’s sentence using relevant conduct from Count
1, the dismissed count, and that in so doing we could reach the same sentence. The
government posits that consideration of Count 1 would be appropriate because the
defendant did not object to the offense conduct on that count as set out in the
presentence report. We decline to take this approach. Although we may affirm the
district court on any basis supported by the record, it is clear in this case that, with
regard to sentencing, both parties, and the district court, were focused on the conduct
recited in Count 2, the October 18, 2001 incident. There is no mention of the facts
underlying Count 1 in either the plea agreement or the sentencing transcript. Cf.
United States v. Juan Martinez, 258 F.3d 760, 761 (8th Cir. 2001) (noting that the
plea agreement provided that the defendant “would plead guilty to Count 1 and that
Counts 2, 3, 4, and 5 would be considered relevant conduct”). Under these
circumstances, we will not recalculate Martinez’s sentence based on factors not
considered relevant by the court or parties at the trial level.


      4
       Given our conclusion that § 2K2.1(b)(5) was inapplicable in this case, we
need not address Martinez’s double counting challenge.

                                          -7-
                                        III.


       In sum, we affirm the district court’s imposition of the two-level enhancement
under U.S.S.G. § 2K2.1(b)(4), and reverse with regard to imposition of the four-level
enhancement under U.S.S.G. § 2K2.1(b)(5). The case is remanded to the district
court for re-sentencing without the U.S.S.G. § 2K2.1(b)(5) four-level enhancement.


      A true copy.


             Attest:


                     U.S. COURT OF APPEALS, EIGHTH CIRCUIT.




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