United States of America v. Lougary Eddington, a/k/a Lougary Marquin Edditington

Defendant Lougary Eddington appeals the 84-month sentence he received after

pleading guilty to one count of being a felon in possession of ammunition in violation of

18 U.S.C. § 922(g)(1)—a sentence at the bottom of the 84–105-month Guidelines range,

as calculated by the United States District Court for the District of Colorado. Eddington

contends that the district court erred in imposing this sentence because it (1) improperly

applied a four-level enhancement to his base offense level for possessing ammunition "in

connection with another felony offense” under U.S.S.G. § 2K2.1(b)(6)(B), and (2) failed

to adequately consider the need to avoid sentencing disparities between Eddington and

one of his codefendants.



Exercising jurisdiction pursuant to 28 U.S.C. § 1291, we conclude that Eddington

waived his challenge to the district court's consideration of sentencing disparities, but

that the district court procedurally erred when it applied a four-level enhancement.

Accordingly, we vacate Eddington's sentence and remand for resentencing.



I. BACKGROUND



A. Factual Background



On July 1, 2020, outside of a liquor store in Denver, Colorado, Eddington and

Zyaire Williams were involved in a shootout which resulted in their fellow gang member,

Daniel Epperson, being shot and killed. All three men were members of the Eastside

Crips street gang. The shootout was the result of their encounter with Roy Fernandez,

who was a Westwood HUD gang member.



Video footage from multiple angles inside the liquor store prior to the shooting

shows Fernandez at the checkout counter as Eddington and Williams enter through the

front door. Williams and Fernandez look each other over and briefly exchange words as

Williams walks towards the counter and Fernandez walks towards the front door. When

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Fernandez reaches the front door, he and Eddington similarly look each other over.

Eddington, who had removed a beverage from a cooler near the front door, then joins

Williams at the counter, and Fernandez walks just out of the front door but remains

facing inward.



Moments later, Fernandez reenters the store, approaches Eddington and Williams,

and becomes animated, making hand movements and facial expressions while talking

directly to Williams. Walking backwards and still talking to Williams, Fernandez again

exits the store through the front door. Williams turns to talk to Eddington and then

follows Fernandez and pulls his hoodie over his head as he leaves the store. According to

Eddington, Williams asked him something to the effect of "Bro, is you on this?,”

meaning "open your eyes” or, as interpreted by the interviewing officer to mean: "it's

about to go down.” Video Exhibit Interview at 17:19:55. Eddington, who is still in the

store, returns his beverage to the cooler and then proceeds toward the front door but does

not fully exit.



Outside, Fernandez walks left out of the door towards the store's parking lot on

the side of the store, and Williams walks out onto the sidewalk, takes a few steps in the

opposite direction of Fernandez, and then walks towards a white vehicle parked along the

curb directly in front of the store. At the same time, Epperson exits from the passenger

door of the white vehicle. Together, Williams and Epperson move towards Fernandez,

and, at that point, they exchange gunfire. All the while, Eddington is either inside the

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store or standing behind the store's ajar front door (he later states that he could see

Fernandez to his left from around the door).



Epperson is struck by a bullet as he is discharging his firearm, and he falls to the

ground in the middle of the sidewalk, between the white vehicle and the front door of the

store. Williams runs behind another parked car on the street. Eddington runs fully back

into the store. The shooting pauses.



Moments later, Eddington runs out of the store with a gun in his hand, crouches

facing the direction of Fernandez (although, at this point, Fernandez was out of view),

and then runs in the opposite direction of Fernandez. He loses his cap on the ground near

Epperson, gets behind a parked car (at which point Fernandez comes back into his view),

and he and Fernandez exchange gunfire. Eddington then runs back to where Epperson is

lying and grabs his cap.



After a failed attempt to load Epperson into the white vehicle, Eddington and

Williams drive away. Paramedics arrived shortly thereafter and transported Epperson to a

local hospital, where he died from his injuries.



B. Procedural History



Eddington, Williams, and Fernandez were charged in a single indictment. Without

entering into a plea agreement with the government, Eddington pleaded guilty to the sole

charge against him, i.e., being a felon in possession of ammunition in violation of

18 U.S.C. § 922(g)(1). The presentence investigation report (the PSR) calculated his base

offense level at 20 and included a four-level enhancement pursuant to U.S.S.G

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§ 2K2.1(b)(6)(B) for having "possessed . . . ammunition in connection with another

felony offense,” which the PSR identified as attempted second-degree assault under

Colorado Revised Statute § 18-3-203(1)(b) and (1)(d). ROA Vol. II at 9–10 (emphasis

added). The PSR also applied a three-level decrease for acceptance of responsibility, and

it arrived at a total offense level of 21. With a calculated criminal-history category of VI,

the PSR settled on a Guidelines sentencing range of 77–96 months' imprisonment.

Eddington objected to these calculations.



First, Eddington objected to the offense-level computation in the PSR. In a written

objection to the PSR, he argued that the four-level enhancement should not apply

"because he acted in self-defense and defense of others,” which is an affirmative defense

to attempted second-degree assault under Colorado law.1

ROA Vol. I at 48–49. Thus, he

argued, U.S.S.G § 2K2.1(b)(6)(B) was inapplicable and "the appropriate total offense

level [was] 17.” Id. at 49. The government disagreed, arguing that Eddington did not act



in self-defense but was a mutual combatant.

The district court overruled Eddington's objection to the four-level enhancement.

At the sentencing hearing, the district court concluded that Eddington reasonably feared

for his own life. Nonetheless, the court concluded that Eddington qualified as a mutual

combatant and then determined that the four-level enhancement applied because



1



It appears that Eddington has dropped his pursuit of "defense of others”

argument, as he offers no discussion about it on appeal.

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Eddington "kn[e]w what was going on, he was part of the people who started this fight,

and it seems to me that self-defense isn't available to a person who entered into mutual

combat.” ROA Vol. IV at 53. In addition, the district court sua sponte concluded that

there was "an additional potential reason that that enhancement should apply,” namely

that Eddington possessed ammunition (the federal offense at issue) in connection with

illegally possessing a firearm in violation of Colorado law.2 Id. at 32. Eddington's

counsel responded to the district court's sua sponte consideration of this state offense as

satisfying the "in connection with” requirement largely by requesting additional time to

brief this new rationale.



Second, through counsel during his sentencing hearing, Eddington argued that the

four-level enhancement would create a "disparate sentence” because Williams did not

also receive the enhancement. See 18 U.S.C. § 3553(a)(6); ROA Vol. IV at 51. The

district court agreed that it did not make sense for Eddington to have a longer sentence

than Williams. See ROA Vol. IV at 52 ("[I]t seems potentially a disparate sentencing

issue to apply self-defense in other circumstances but not to Mr. Eddington and to end up

him having potentially . . . a higher sentence than Mr. Williams, who obviously is the one



2



The government charged Eddington with illegally possessing ammunition—not a

firearm—because it "did not recover his gun” and, therefore, "could not prove the

interstate nexus needed to charge Eddington with being a felon in possession of a firearm

at the federal level.” Aple. Br. at 18. The state never charged Eddington with being a

felon in possession of a firearm either. However, the video footage clearly shows

Eddington in possession of a firearm.



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who sort of followed Mr. Fernandez out and maybe made things worse.”); see also id. at

66 ("I in a lot of ways agree . . . that it doesn't make sense for Mr. Eddington to have a

longer sentence, for example, than Mr. Williams.”). The court determined, however, that

"the place probably to take that disparity into account is in the sentencing rather than in

the calculation of the guidelines.” Id. at 52.



Ultimately, the district court opted to apply the four-level enhancement and

determined that Eddington's advisory Guidelines range was 84–1053

months'



incarceration. Then, considering the factors in § 3553(a), it imposed a sentence at the

bottom of that range: 84 months. The district court noted that the Guidelines provided for

a "long” and "significant” sentence, "especially given [the district court's] decision on

the self-defense” argument. Id. at 83. The district court concluded that an 84-month

sentence was justified after considering the factors outlined in 18 U.S.C. § 3553(a). The

parties indicated that they had nothing further to address, and the district court entered

judgment. Eddington timely appealed.



3



While the PSR indicated that Eddington would receive a three-level deduction

for acceptance of responsibility, as the district court noted, "[t]he government did not

grant a one-level decrease for acceptance of responsibility pursuant to §3E1.1(b).” ROA

Vol. III at 3; see also ROA Vol. IV at 56–57 (the government discussing its decision to

not give Eddington a third acceptance of responsibility level). Accordingly, Eddington

received only a two-level deduction for acceptance of responsibility, and his Guidelines

range was, therefore, higher than that stated in the PSR.

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II. STANDARD OF REVIEW



We review challenges to a district court's sentencing decision in two steps. United

States v. Sanchez-Leon, 764 F.3d 1248, 1261 (10th Cir. 2014). First, we "ensure that the

district court committed no significant procedural error.” Id. (quoting Gall v. United

States, 552 U.S. 38, 51 (2007)). Second, "[i]f there is no reversible procedural error, we

then 'consider the substantive reasonableness of the sentence.'” Id. (quoting Gall, 552

U.S. at 51). Here, Eddington raises only procedural challenges to his sentence.

"Our review of procedural reasonableness 'focuses on the manner in which the

sentence was calculated.'” Id. (quoting United States v. Masek, 588 F.3d 1283, 1290

(10th Cir. 2009)). Procedural errors include "failing to calculate (or improperly

calculating) the Guidelines range,” "failing to consider the § 3553(a) factors,” and

"failing to adequately explain the chosen sentence.” Id. (quoting Gall, 552 U.S. at 51).

When a defendant has preserved his procedural challenge in district court, "we

generally review the procedural reasonableness of that defendant's sentence using the

familiar abuse-of-discretion standard of review.” Id. at 1262 (internal quotation marks

and citation omitted). Under the abuse-of-discretion standard, "we review de novo the

district court's legal conclusions regarding the [G]uidelines and review its factual

findings for clear error.” Id. (citation omitted). "An error of law is per se an abuse of

discretion.” Id. (citation omitted). But, when a procedural challenge was not preserved, it

is reviewed for plain error. United States v. Chavez, 723 F.3d 1226, 1232 (10th Cir.

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2013). "[F]ailure to argue plain error on appeal waives the argument.” United States v.

Isabella, 918 F.3d 816, 845 (10th Cir. 2019) (citation omitted).



III. DISCUSSION



On appeal, Eddington raises two procedural challenges to the district court's

sentencing decision. First, he argues that the district court improperly applied the

four-level enhancement to his base offense level. See U.S.S.G. § 2K2.1(b)(6)(B). Second,

he argues that the district court failed to adequately account for "the need to avoid

unwarranted sentence disparities among defendants with similar records who have been

found guilty of similar conduct” when it imposed the four-level enhancement to his base

offense level but the same enhancement was not applied when Williams was sentenced

by a different judge. See 18 U.S.C. § 3553(a)(6).



We conclude that the district court committed procedural error by applying the

four-level enhancement, but that Eddington waived his argument that the district court

erred in not considering the disparate-sentencing factor. Finally, because the government

does not argue that any procedural error was harmless, we conclude that Eddington was

prejudiced by the district court's application of the four-level enhancement. Accordingly,

we vacate Eddington's sentence and remand for resentencing.



A. Application of the Four-Level Sentencing Enhancement,

U.S.S.G. § 2K2.1(b)(6)(B)



Eddington first argues that his sentence is procedurally unreasonable because the

district court incorrectly applied the four-level sentencing enhancement under

U.S.S.G. § 2K2.1(b)(6)(B). Under the Guidelines, "[i]f the defendant . . . used or

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possessed any firearm or ammunition in connection with another felony offense,” the

offense level is to be "increase[d] by 4 levels.” U.S.S.G. § 2K2.1(b)(6)(B). The "in

connection with” requirement means that "the firearm or ammunition facilitated, or had

the potential of facilitating, another felony offense or another offense.” Id. cmt. 14(A).

"'Another felony offense', for purposes of subsection (b)(6)(B), means any federal, state,

or local offense, other than the explosive or firearms possession or trafficking offense,

punishable by imprisonment for a term exceeding one year, regardless of whether a

criminal charge was brought, or a conviction obtained.” Id. cmt. 14(C).

The district court applied the four-level enhancement based on Eddington's

possession of ammunition "in connection with” (1) attempted second-degree assault

under Colorado law, and (2) possession of a firearm by a prohibited person (i.e., a felon)

under Colorado law. We conclude that neither rationale provides support for the

four-level enhancement.



1. Attempted Second-Degree Assault



First, the district court applied the four-level enhancement because it determined

that Eddington's possession of ammunition was "in connection with” the state felony

offense of attempted second-degree assault. See Colo. Rev. Stat. § 18-3-203(1)(b), (1)(d)

(2022). The parties do not dispute that Eddington's actions meet Colorado's definition of

attempted second-degree assault, nor do they dispute that, if a defendant acts in

self-defense, culpability for that offense is negated. See People v. Gross, 287 P.3d 105,

111, as modified on denial of reh'g (Nov. 5, 2012) ("Self-defense is an affirmative

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defense to second-degree assault.”). Instead, their argument focuses on whether the

district court properly determined that Eddington was a mutual combatant and, thereby,

was precluded from invoking self-defense under Colorado law. We conclude that the

district court committed procedural error by failing to correctly analyze the question

under Colorado law.



a. Preservation and Standard of Review



The government does not argue that Eddington failed to preserve the

self-defense/mutual-combatant issue. We conclude that Eddington did preserve the issue.

Accordingly, we review for abuse of discretion.



b. Analysis



Under Colorado law, a person is not justified in using deadly force for self-defense

if "[t]he physical force involved is the product of a combat by agreement not specifically

authorized by law.” Colo. Rev. Stat. § 18-1-704 (2022). The affirmative defense of

self-defense is unavailable to a defendant if the "mutual combatant” or "mutual combat”

exception applies. To come within this exception to self-defense, the government must

"prove that an agreement to fight existed between the parties, and that the parties entered

into the agreement before beginning combat.” Kaufman v. People, 202 P.3d 542, 561

(Colo. 2009). The Colorado Supreme Court has concluded that, "[u]nless a clear

agreement to fight can be gleaned from the facts presented, the [trial] court should not

instruct the jury on the mutual combat exception to self-defense.” Id. at 562. In other

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words, in the absence of a clear prior agreement between the combatants, the affirmative

defense of self-defense is available to a defendant.



During Eddington's sentencing, the district court found determinative "that

[Eddington] went out knowing there was combat going on. And maybe he didn't know

for sure there was going to be continuous shooting, but he stepped into a gunfight with

his own gun and didn't just happen to get caught up in this but was part of it.” ROA Vol.

IV at 37; see also id. at 65 ("He knew what was going on, and once it started he joined in

. . . . And that is mutual—if you want to call it mutual combat, whatever you want to call

it, he was—part of the cause for the danger was his own involvement.”). This standard

for mutual combat—one which focuses on whether Eddington knew about an altercation

and intended to join it—sets a lower standard for rejecting the affirmative defense of

self-defense than the applicable standard under Colorado law, which requires an

agreement between parties to engage in mutual combat before combat commences. The

district court's conclusion that Eddington knowingly joined an ongoing fight does not

equate to Eddington having entered into an agreement with Fernandez to fight before the

fight began. See Kaufman, 202 P.3d at 562. In other words, the district court's finding

that Eddington knowingly joined an ongoing fight does not preclude Eddington from

asserting the affirmative defense of self-defense.



In its briefing on appeal, the government argues that "[t]here was plenty of

evidence from which the district court could infer that an agreement to fight had been

reached before the violent shootout,” Aple. Br. at 9 (emphasis added), and "[t]he court

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could fairly infer that the conversation between Williams and Fernandez inside the liquor

store involved an agreement to fight, which Eddington joined,” id. at 13 (emphasis

added). However, as Eddington notes, even if the evidence could support an inference

that he and Fernandez agreed to engage in mutual combat, "the fact of the matter is the

district court did not draw such an inference.” 4 Reply at 4. Nowhere in the record did the

district court make a factual finding that Eddington and Fernandez entered into an

agreement to fight before the fight commenced, as is required under Colorado law. In

fact, it does not appear that the district court was aware that it needed to make such a

finding. The court cited cases provided by the government to decide the self-defense

issue, United States v. Wooten, 696 F. App'x 337 (10th Cir. 2017), United States v.

Mayberry, 567 F. App'x 643 (10th Cir. 2014), and United States v. Kupfer, 68 F. App'x

927 (10th Cir. 2003). But these cases do not deal with Colorado law, and the government

now concedes that "little is offered by [them],” Aple. Br. at 13 n.1.



The district court's self-defense/mutual-combatant ruling is inconsistent with

Colorado law and constitutes an abuse of discretion. See Sanchez-Leon, 764 F.3d at 1264

("Following an incorrect legal standard to decide a sentence is per se an abuse of

discretion.” (internal quotation marks and citation omitted)). Accordingly, we conclude



4



The government's factual arguments appear to imply that our review of the

record could supply the needed support for the enhancement. But, "it is not [our] role to

make the factual findings necessary to support a sentencing calculation; that is the task of

the district court.” United States v. Williams, 48 F.4th 1125, 1136 (10th Cir. 2022)

(quoting United States v. Roberts, 14 F.3d 502, 523 (10th Cir. 1993)).

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that the district court erred in applying the four-level enhancement based on Eddington's

attempted second-degree assault.5



2. Felon In Possession of a Firearm



Second, the district court ruled, sua sponte, that it had an additional basis to

support a four-level enhancement. The district court concluded the four-level

enhancement was also justified because Eddington possessed ammunition "in connection

with” the state felony offense of being a felon in possession of a firearm under Colorado

law. See Colo. Rev. Stat. § 18-12-108 (2022).6



On appeal, the parties do not dispute that

Eddington was a felon, nor that he was illegally in possession of a firearm under

Colorado law. Instead, they dispute whether the district court properly determined that

the state felon-in-possession-of-a-firearm violation satisfies the "in connection with”

requirement of U.S.S.G. § 2K2.1(b)(6)(B). We conclude that the district court committed

procedural error by ruling that the state felon-in-possession violation could serve as a

basis for applying the four-level enhancement.



5



At oral argument, the government offered that because Williams and Fernandez

mutually agreed to engage in combat, and because Eddington agreed to "aid and abet”

Williams in his combat with Fernandez, Eddington can be presumed to have agreed to

engage in mutual combat with Fernandez. The government introduced this argument for

the first time at oral argument. We will not consider this related argument. See United

States v. Anthony, 22 F.4th 943, 952 (10th Cir. 2022) ("Issues raised for the first time at

oral argument are considered waived.” (citation omitted)).



6



The district court never cited the state law on which it relied. Eddington points to

Colorado Revised Statute § 18-12-108 (2022), "[p]ossession of weapons by previous

offenders,” as the state law on which the district court was likely relying.

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a. Preservation and Standard of Review



During the sentencing hearing, the district court, sua sponte, raised the state felony

as an additional basis for applying the four-level enhancement. Prior to the hearing,

neither party had briefed this issue nor had the PSR cited the state felony as an additional

basis for the enhancement. After the district court raised the state felony as additional

support for the four-level enhancement, Eddington's counsel requested that "if the Court

is considering the four-level increase on that issue alone, I would ask for time to brief on

that issue.” ROA Vol. IV at 60. Then, in an on-the-spot response, defense counsel

focused on whether there was sufficient evidence to support a state felon-in-possession

charge. On appeal, Eddington does not raise this sufficiency-of-the-evidence challenge to

the state firearm possession offense but, instead, makes the argument that the state felonin-possession violation cannot legally satisfy the "in connection with another felony

offense” requirement of U.S.S.G. § 2K2.1(b)(6)(B). The government argues that the court

should treat this issue as unpreserved and waived.



"As a general rule, when a defendant fails to preserve an objection to the

procedural reasonableness of his sentence, we review only for plain error.” United States

v. Martinez-Barragan, 545 F.3d 894, 899 (10th Cir. 2008). And, where a defendant does

not request plain-error review, we consider the procedural challenge waived. Isabella,

918 F.3d at 845. However, "a defendant is not required to object when the sentencing

court commits an error that the defendant cannot be expected to anticipate.”

Martinez-Barragan, 545 F.3d at 899 (citing United States v. Begay, 470 F.3d 964, 976

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(10th Cir. 2006), rev'd on other grounds, 553 U.S. 137 (2008)). Eddington could not

have anticipated the district court's sua sponte invocation of the state felon-in-possession

felony as an alternative basis for applying the four-level enhancement, and his counsel

immediately sought the opportunity to brief the question before the district court entered

judgment. Given the sua sponte action by the district court, defense counsel's response

was sufficient to preserve the issue on appeal. We review Eddington's appeal on this

issue for abuse of discretion.



b. Analysis



As noted, U.S.S.G. § 2K2.1(b)(6) instructs that "[i]f the defendant . . . used or

possessed any firearm or ammunition in connection with another felony offense[,] . . .

increase [the base offense level] by 4 levels.” U.S.S.G. § 2K2.1(b)(6). Application Note

14, titled "In Connection With,” states that the four-level enhancement applies "if the

firearm or ammunition facilitated, or had the potential of facilitating, another felony

offense or another offense.” U.S.S.G. § 2K2.1(b)(6) cmt. 14(A). To determine whether

the district court abused its discretion, some historical background on the definition of

"another felony offense” is useful.



Prior to 2006, Application Note 15 provided that "'another felony' . . . refer[s] to

offenses other than explosives or firearms possession or trafficking offenses.” United

States v. Jones, 528 F. App'x 627, 631 (7th Cir. 2013) (quoting U.S.S.G. § 2 K2.1(b)(6)

cmt. n.15 (2005)) (emphasis added in original). At the time, this definition "was

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understood to create a categorical exclusion for firearms and explosives offenses.” Id. at

631–32 (collecting cases).



Then, the Guidelines were amended to remove Application Note 15 and to insert

Application Note 14(C), which presently reads as follows:

"Another felony offense”, for purposes of subsection

(b)(6)(B), means any federal, state, or local offense, other

than the explosive or firearms possession or trafficking

offense, punishable by imprisonment for a term exceeding

one year, regardless of whether a criminal charge was

brought, or a conviction obtained.



U.S.S.G. § 2K2.1(b)(6) cmt. 14(C) (emphasis added). At least three of our sister circuits

have concluded that "[t]he addition of the word 'the' in the amendment indicates the

Sentencing Commission's intention to no longer exclude all explosive or firearms

possession or trafficking offenses from the definition of 'another felony offense' under

§ 2K2.1(b)(6).” United States v. Juarez, 626 F.3d 246, 254 (5th Cir. 2010); see also

Jones, 528 F. App'x at 632 ("[L]ike the Fifth Circuit we conclude that the addition was

meant to end the categorical exclusion of firearms and explosives offenses from the

definition of 'another felony offense.'”); United States v. Jackson, 633 F.3d 703, 705–06

(8th Cir. 2011) ("[A]pplication note 14(C) does not exclude 'any,' 'an,' or 'a' firearms

possession offense. The word 'the' is a definite article commonly employed to refer to

something specific.”). Those courts have concluded that Application Note 14(C) "now

excludes from the definition of 'another felony offense' only the possession or trafficking

offense that serves as the basis for the defendant's conviction.” Juarez, 626 F.3d at 255.

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On appeal, Eddington argues that, while there is no longer a categorical exclusion

on firearm possession serving as the basis for a four-level enhancement under

§ 2K2.1(b)(6)(B), "there is no authority holding that the enhancement can be based on a

firearm possession offense (under state law) that is identical, in terms of the underlying

conduct, to the firearm possession offense of conviction (under federal law).” Aplt. Br. at

18. In other words, Eddington maintains that the conduct underlying his federal offense

(possession of ammunition) involves that same conduct as his alleged state offense

(possession of a firearm), and, therefore, they are not separate felony offenses for

purposes of the Guidelines. We need not resolve this question as Eddington prevails on

his alternative argument that possession of ammunition does not "facilitate” or make it

easier to commit the offense of possession of a firearm in violation of state law.

As Eddington discusses, the Guidelines provide that § 2K2.1(b)(6)(B) applies "if

the firearm or ammunition facilitated, or had the potential of facilitating, another felony

offense or another offense.” U.S.S.G. § 2K2.1(b)(6) cmt. 14(A) (emphasis added). We

have previously stated that "[t]he plain and commonly understood meaning of 'facilitate'

is to make easier.” United States v. Marrufo, 661 F.3d 1204, 1207 (10th Cir. 2011); see

also United States v. Justice, 679 F.3d 1251, 1255 (10th Cir. 2012) ("[P]ossession of a

firearm may facilitate an offense by emboldening the possessor to commit the offense.”).

Eddington convincingly notes that "it is difficult to understand how [his] possession of

ammunition can be said to 'facilitate' or make it 'easier' to commit the offense of

illegally possessing a firearm under Colorado law.” Reply at 9. Indeed, one's possession

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of ammunition in violation of federal law does not "facilitate,” "make easier,” or

"embolden” one's possession of a firearm in violation of state law.

The government responds that "the ammunition possession facilitates the illegal

firearm possession by making a firearm more than simply a well-functioning club.” Aple.

Br. at 21. But Eddington's federal offense and alleged state offense concern possession—

not use. It is unclear how possession of ammunition facilitates possession of a firearm.7

We conclude that the district court erred in applying the four-level enhancement based on

Eddington's alleged possession of a firearm in violation of state law.



B. Consideration of the Need to Avoid Sentencing Disparities, 18 U.S.C.



§ 3553(a)(6)

Eddington next argues that the district court committed procedural error by not

adequately "account[ing] for” or "consider[ing]” disparities in sentencing between

Eddington and Williams. Aplt. Br. at 25; see 18 U.S.C. § 3553(a)(6) ("The court, in

determining the particular sentence to be imposed, shall consider . . . the need to avoid



7



At oral argument, the government introduced an additional theory—that

possession of ammunition facilitates possession of a firearm because the presence of

ammunition assists the possessor of the firearm in maintaining his possession of the

firearm. The government likened the present case to those where we concluded that the

possession of a firearm facilitated possession of drugs. But the government provides no

case to support this proposed holding, and without the benefit of briefing, the comparison

between the possession of a firearm emboldening the possession of drugs versus the

possession of ammunition emboldening the possession of a firearm is not self-evident.

We decline to adopt the government's new theory, which was introduced for the first

time at oral argument. See Anthony, 22 F.4th at 952 ("Issues raised for the first time at

oral argument are considered waived.” (citation omitted)).



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unwarranted sentence disparities among defendants with similar records who have been

found guilty of similar conduct.”). Specifically, Eddington states that the district court

failed to explain why Williams, unlike Eddington, did not receive the four-level

enhancement to his base offense level despite being more culpable. The parties dispute

whether Eddington preserved this challenge. We conclude that he did not.



During the sentencing hearing, Eddington argued that applying the four-level

enhancement would create sentencing disparities between him and his codefendant,

Williams. On appeal, Eddington argues that the district court failed to consider and

explain sentencing disparities in its analysis. While these arguments are related, they are

different. Eddington's desire to have the district court apply the factor in his favor differs

from his contention that the district court did not adequately explain its decision on the

factor at sentencing.



In Chavez, we had opportunity to consider a similar preservation issue. 723 F.3d at

1231–32. There, at sentencing, the defendant "argued that the district court should not

impose a consecutive sentence.” Id. at 1232. On appeal, however, the defendant argued

"that the [district] court did not sufficiently explain why it chose a consecutive sentence.”

Id. We concluded that these were "different argument[s]” and that "[t]he claim [on appeal

was] therefore unpreserved.” Id.



In his briefing, Eddington does not address preservation of this challenge in light

of Chavez, and we conclude that Eddington failed to preserve this issue on appeal.

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Further, because Eddington has not argued for plain-error review, we treat the argument

as waived. Isabella, 918 F.3d at 845.



C. Harmless Error



Once a defendant meets "the initial burden of showing that the district court

erred,” "resentencing is required only if the error was not harmless.” Sanchez-Leon, 764

F.3d at 1262 (internal quotation marks and citations omitted). "Procedural error is

harmless if the record viewed as a whole clearly indicates the district court would have

imposed the same sentence had it not relied on the procedural miscue(s).” Id. (internal

quotation marks and citations omitted). "Harmlessness must be proven by a

preponderance of the evidence, and the burden of making this showing falls on the

beneficiary of the error,” in the present case, the government. Id. at 1262–63 (internal

quotation marks and citations omitted). Here, the government makes no argument

regarding the harmlessness of the enhancement error. Thus, we conclude that the

government has not met its burden and that the sentence must be vacated and the case

remanded for resentencing.

IV. CONCLUSION

The district court committed procedural error by applying the four-level

enhancement under U.S.S.G. § 2K2.1(b)(6)(B). Accordingly, we VACATE Eddington’s

sentence and REMAND for resentencing.

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