In U.S. v. Williams, No. 05-11318 (Nov. 30, 2005), the Court (Anderson, Carnes, Black) approved an enhancement for use of a firearm which caused was discharged and caused serious bodily injury, even though the defendant, though charged with being a felon in possession of a fiream was not charged or convicted of possessing a firearm used in a separate assault, but another firearm. The Court concluded that the Guideline encompassed "any" fireram, which "covers any fireram that is used in connection with the commission of another offense which is within the relevant conduct of the charged offense."
The Court noted a circuit split on the meaning of the Guideline cross-reference, but concluded that the term "any firearm" as used in the Guideline can apply to firearms not named in the indictment.
The Court also noted a circuit split on whether the other offenses which can be encompassed with a Guideline cross-reference must also be part of "relevant conduct." The Court concluded that conduct must be part of "relevant conduct" in order to be a basis for enhancement under the USSG § 2K2.1(c)(1) cross-reference.
The Court noted that the Government had argued that the assault in which another firearm was used should be considered part of "relevant conduct" because it was conduct that should be "grouped" under § 3D1.2(d). However, the government’s argument was misplaced, because the Guidelines specifically exclude "assault" from grouping analysis. Because this was the only rationale for the enhancement, the Court vacated the sentence and remanded for resentencing, at which the district court could examine whether other Guideline provisions allow assault to be considered "relevant conduct" for a firearm possession offense.