In United States v. Petrushkin, --- F.4th ---, No. 23-572 (9th Cir. 2025), the Court vacated the sentence imposed on Vincent Petrushkin in a case in which Petrushkin pled guilty to possession of a firearm as a felon in violation of 18 U.S.C. §§ 922(g)(1) and 924(a)(2), and remanded for resentencing.
The question presented in this case is whether mere possession of a firearm is sufficient to trigger the application of United States Sentencing Guideline (“U.S.S.G.”) § 2K2.1(c)(1). We hold that it is not, and we vacate and remand for resentencing.To begin, we must determine whether Petrushkin waived his right to appeal the district court’s application of the (c)(1) enhancement when calculating his Guidelines range. Petrushkin’s plea agreement included an appeal waiver that allowed him to “appeal only the reasonableness of his sentence.”First, the calculation of a defendant’s Guidelines range implicates both procedural and substantive reasonableness.Second, even if the correct application of the Guidelines were strictly a matter of procedural reasonableness, the government’s argument would fail because Petrushkin’s plea agreement allows him to appeal the “reasonableness” of his sentence without any express limitation. That is, the plea agreement does not say that Petrushkin may appeal only the substantive reasonableness of his sentence, nor does it delineate between procedural and substantive review. The reference to “reasonableness,” without limitation, plainly incorporates both the procedural and substantive aspects of reasonableness. And even if the scope of the carve-out in the appeal waiver were ambiguous, we would construe that ambiguity against the government.Section 2K2.1(c)(1) is a cross-reference provision: it allows a defendant charged with one crime to be sentenced under the Guideline for a different crime under specified circumstances. Here, Petrushkin was charged with unlawful possession of a firearm. Under § 2K2.1(c)(1), a defendant can be sentenced according to the Guidelines framework for another offense (instead of possession), if he either 1) possessed the firearm “in connection with the commission or attempted commission of another offense,” or 2) possessed the firearm “with knowledge or intent that it would be used or possessed in connection with another offense.”The first clause of U.S.S.G. § 2K2.1(c)(1)[] requires that when a defendant “use[s] or possesse[s] any firearm or ammunition cited in the offense of conviction in connection with the commission or attempted commission of another offense,” the government must show that the defendant possessed the firearm in a manner that potentially emboldened or facilitated the other offense.In sum, we hold that both clauses of U.S.S.G. § 2K2.1(c)(1) require the government to show that a defendant possessed a firearm in a manner that potentially emboldened or facilitated another offense.[T]he government argues that the district court did not err because Petrushkin, in his plea agreement, agreed to recommend the application of the (b)(6)(B) enhancement. The government urges us to interpret that stipulation as a factual stipulation that Petrushkin’s possession potentially emboldened or facilitated Holmes’s robbery. We reject this argument for two reasons. First, the district court has “an independent obligation to ensure that [its] sentence [is] supported by sufficient reliable evidence.” United States v. Garcia-Sanchez, 189 F.3d 1143, 1149 (9th Cir. 1999). Factual stipulations by the parties should “set forth with meaningful specificity the reasons why the sentencing range resulting from the proposed agreement is appropriate.” U.S.S.G. § 6B1.4(a)(3).Second, a defendant may argue that the district court erroneously applied a Guideline even when he initially agreed to its application at sentencing, particularly when “the record, reasonably read, reflects no knowledge of contrary law—let alone strategic maneuvering.”The § 2K2.1(c)(1) enhancement applies when a defendant possesses a firearm “in a manner that permits an inference that it facilitated or potentially facilitated . . . felonious conduct.” Routon, 25 F.3d at 819. The district court did not make a finding that Petrushkin possessed a firearm in a manner that potentially emboldened or facilitated his codefendant’s robbery, and the facts in the record do not permit the necessary inference. We therefore vacate the 48-month sentence and remand for resentencing consistent with this opinion.
