Lack of Findings from District Court to Support Sentencing Enhancement Was Plainly Erroneous

US v. Franklin: Franklin was a postal employee who stole checks from the mail with the intent to forge them into ones he could cash himself (he only completed one – his actually loss was $3947 versus an intended loss of over $767,000). He was the subject of a pair of traffic stops, one of which produced a firearm in a backpack with one of the stolen checks (the others were elsewhere in the car). At sentencing, the district court imposed a two-level enhancement for possession of a firearm in connection with his offense (with no objection). Franklin was sentenced to 48 months in prison, just above the 46-month bottom of the advisory Guideline range.

On appeal, a divided Fourth Circuit vacated Franklin’s sentence and remanded for resentencing. Applying plain error review, informed by the recent observation in Henderson that district courts have an independent obligation to properly calculating the advisory Guideline range, the court found error that was plain in the district court’s failure to make a finding that the firearm had facilitated the offense. The court also concluded there was prejudice, because it could not determine from the record whether the district court would have imposed the same sentence in absence of the error.

Judge Agee dissented, arguing that the record made it obvious that the firearm facilitated Franklin’s offense, given the presence of the firearm in the backpack with one of the stolen checks.