Date: Mar 12, 2026

Guidelines Enhancements Need Not Be Charged in the Indictment; §2K2.1 Stolen-Firearm Enhancement Is Strict-Liability; Within-Guidelines Sentence Affirmed (Sixth Circuit)

I. Introduction

In United States v. Zachary Taylor Bush (6th Cir. Mar. 10, 2026) (not recommended for publication), the Sixth Circuit affirmed a within-Guidelines 84-month sentence for a felon-in-possession conviction under 18 U.S.C. § 922(g)(1). After a roadside confrontation in Grand Rapids, Michigan, Bush allegedly pointed a laser-equipped handgun at another driver; police later found a loaded handgun, a loaded shotgun, and nearly 200 rounds of ammunition. Bush pled guilty and sought a downward departure/variance largely based on mental health and diminished capacity.

The appeal raised two central issues: (1) whether the district court procedurally erred by applying two Guidelines enhancements—U.S.S.G. § 2K2.1(b)(4)(A) (stolen firearm) and U.S.S.G. § 2K2.1(b)(7)(B) (use/possession in connection with another felony)—and (2) whether the district court inadequately addressed departure/variance arguments and mitigating mental-health evidence under 18 U.S.C. § 3553(a).

II. Summary of the Opinion

The court held Bush forfeited his objections to the enhancements by not objecting to the presentence report (PSR), triggering plain-error review, and he could not show any error—let alone plain error—in applying either enhancement.
The court rejected Bush’s argument that the enhancement facts had to be charged in the indictment, explaining that Guidelines factfinding that affects only the advisory range (and not statutory minimums/maximums) need not be pleaded.
The court held the § 2K2.1(b)(7)(B) enhancement properly applied because Bush’s illegal possession was distinct from his later assaultive use of the gun.
The court reaffirmed that the § 2K2.1(b)(4)(A) stolen-firearm enhancement has no knowledge requirement and does not violate due process.
On procedural and substantive reasonableness, the court found the district judge ruled on the departure request, adequately explained the sentence, and permissibly emphasized public safety and the seriousness of the conduct in denying a variance.

III. Analysis

A. Precedents Cited

1. Standards of review: waiver/invited error/forfeiture and plain error

United States v. Cabbage, 91 F.4th 1228 (6th Cir. 2024): Provided the framework distinguishing waiver (no review), invited error (review only to prevent manifest injustice), and forfeiture (plain-error review). Bush’s case ultimately proceeded on forfeiture/plain error.
United States v. Montgomery, 998 F.3d 693 (6th Cir. 2021): Supported the panel’s conclusion that failing to object to PSR enhancements constitutes forfeiture, triggering plain-error review.
United States v. Vonner, 516 F.3d 382 (6th Cir. 2008) (en banc): Supplied the four-part plain-error test and also informed the court’s deferential posture toward district-court sentencing explanations and within-Guidelines sentences.
United States v. Potts, 947 F.3d 357 (6th Cir. 2020): Cited for procedural reasonableness (proper calculation of the Guidelines range) and for the principle that an explanation is adequate if it “shows its work” enough for meaningful appellate review.

2. Charging requirements and judicial factfinding at sentencing

United States v. Cotton, 535 U.S. 625 (2002): Cited for the proposition that indictment requirements attach to facts that alter statutory penalties, not to facts affecting only advisory guideline calculations.
United States v. Powell, 847 F.3d 760 (6th Cir. 2017), and United States v. Ely, 750 F. App'x 411 (6th Cir. 2018): Reinforced the key distinction the panel relied on: judicial factfinding that affects the Guidelines range is permissible, while factfinding that increases statutory penalties triggers constitutional constraints.

3. Reliance on PSR facts absent objection

United States v. Geerken, 506 F.3d 461 (6th Cir. 2007): Controlled the court’s rejection of Bush’s “insufficient evidence” argument. Because Bush accepted the PSR facts and offered no contrary evidence, the district court was entitled to rely on the PSR’s account that he pointed the gun at the other driver.

4. “In connection with another felony” under § 2K2.1(b)(7)(B): separateness and distinctness

United States v. King, 341 F.3d 503 (6th Cir. 2003): The key comparator. King articulates the governing test: to apply the enhancement, there must be a separation of time and a distinction of conduct between the offense of conviction (possession) and the other felony. The panel applied King’s logic—Bush first possessed the firearm unlawfully and then used it to commit an assault—making the enhancement proper.
United States v. Kilgore, 749 F.3d 463 (6th Cir. 2014): Distinguished. Kilgore barred the enhancement where the “other felony” (stealing firearms) was not separate from the possession offense because possession was inevitable upon completion of the theft. In Bush, by contrast, assault was not inevitable once possession occurred; he “could have refrained” from using the gun to assault.

5. Stolen-firearm enhancement under § 2K2.1(b)(4)(A): no mens rea; due process

United States v. Palos, 978 F.3d 373 (6th Cir. 2020), and United States v. Webb, 403 F.3d 373 (6th Cir. 2005): Established that § 2K2.1(b)(4)(A) contains no knowledge requirement; the enhancement applies “even absent evidence” that the defendant knew (or should have known) the firearm was stolen.
United States v. Seuell, 135 F.4th 480 (6th Cir. 2025): Used to rebut Bush’s constitutional argument by holding that the lack of a knowledge requirement in a sentencing enhancement does not violate due process.

6. Procedural and substantive reasonableness; weighing § 3553(a); mental health

United States v. Hymes, 19 F.4th 928 (6th Cir. 2021): Provided the general abuse-of-discretion standard for procedural and substantive reasonableness.
Gall v. United States, 552 U.S. 38 (2007): Supplied the baseline definition of significant procedural error, including failing to adequately explain the chosen sentence.
United States v. Rayyan, 885 F.3d 436 (6th Cir. 2018): Clarified that a substantive-reasonableness challenge is essentially a claim that the sentence is too long.
United States v. Sexton, 512 F.3d 326 (6th Cir. 2008): Used for the criteria of substantive unreasonableness and to emphasize that appellate review does not reweigh the § 3553(a) factors as if sentencing anew.
United States v. Owen, 940 F.3d 308 (6th Cir. 2019); United States v. Tolbert, 459 F. App'x 541 (6th Cir. 2012); United States v. Mills, 364 F. App'x 217 (6th Cir. 2010): Supported the court’s point that mental health is not automatically mitigating, particularly where it is linked to dangerousness or public-safety concerns.
United States v. Simmons, 587 F.3d 348 (6th Cir. 2009), and United States v. Madden, 515 F.3d 601 (6th Cir. 2008): Underwrote the presumption of reasonableness for within-Guidelines sentences, raising the bar for Bush’s substantive challenge.

B. Legal Reasoning

1. Forfeiture and the failure to object: why plain-error review governed

Bush expressly declined to object to the PSR’s Guideline calculations in writing and at the hearing. The panel treated this as forfeiture under United States v. Montgomery. Bush attempted to salvage “preservation” by pointing to his late statement—“I never had a gun”—but the court found it addressed a different incident (2022), not the 2023 gun-pointing conduct relevant to the enhancements.

2. Indictment need not plead facts supporting advisory enhancements

Bush’s core legal claim—that the indictment’s failure to allege stolen-firearm and in-connection facts precluded the enhancements—was rejected under United States v. Cotton, United States v. Powell, and United States v. Ely. Because neither enhancement changed statutory boundaries (the felon-in-possession maximum was 15 years under 18 U.S.C. § 924(a)(8)), the Constitution did not require the government to plead and prove those facts to a jury beyond a reasonable doubt.

3. Application of § 2K2.1(b)(7)(B): “separate and distinct” felony conduct

The panel applied United States v. King’s separateness test and treated the felon-in-possession (possession status offense) as distinct from the later aggravated assault (use of gun to threaten). Because Bush could have possessed without assaulting, the enhancement was proper. United States v. Kilgore did not apply because theft-of-guns cases involve “inevitable possession” at the moment of theft, collapsing the two into one course of conduct.

4. Application of § 2K2.1(b)(4)(A): strict-liability stolen firearm

Relying on United States v. Palos and United States v. Webb, the panel reaffirmed that knowledge is irrelevant for the stolen-firearm enhancement. The court then used United States v. Seuell to dispose of the due-process challenge to that strict-liability structure.

5. Procedural reasonableness: departure ruling and explanation of mental health

The panel rejected the claim that the district court failed to rule on a departure request: the judge specifically addressed (then-existing) U.S.S.G. § 5K2.13 (later repealed effective Nov. 1, 2025), identified disqualifying exceptions (including serious threat of violence and public-protection concerns), and concluded: “I will not depart.”

On explanation, the panel found sufficient “show your work” reasoning under United States v. Potts and Gall v. United States: the court treated Bush’s mental health as potentially mitigating in the abstract but concluded it heightened risk because it contributed to antagonizing strangers and because he historically resisted treatment, creating “a danger to the public.”

6. Substantive reasonableness: deference, presumption, and public safety

Because the sentence fell at the low end of the Guideline range (84–105 months), the panel applied the within-Guidelines presumption of reasonableness recognized in United States v. Simmons and United States v. Madden. The court held that emphasizing “seriousness of the offense and protection of the public” was a permissible weighting choice under United States v. Sexton. Bush’s disagreement amounted to an impermissible invitation for the appellate court to re-balance the § 3553(a) factors.

C. Impact

Pleading vs. sentencing factfinding: The decision reinforces (in routine but practically important fashion) that most Guidelines enhancements—so long as they do not alter statutory maximums/minimums—can be found by the judge and need not be charged in the indictment.
PSR practice and appellate posture: The opinion underscores the high cost of not objecting to the PSR: it generally relegates defendants to plain-error review, which is rarely satisfied when the record supports the enhancement and the law is settled.
§ 2K2.1(b)(7)(B) application line: The case illustrates the Sixth Circuit’s continued reliance on United States v. King to distinguish “separate-and-distinct” conduct (possession then assault) from United States v. Kilgore-type conduct where the “other felony” is effectively the same act as possession (theft of the firearm).
Strict-liability stolen firearm enhancement: The panel’s reliance on United States v. Palos, United States v. Webb, and United States v. Seuell signals continued doctrinal stability: arguments for a knowledge requirement are unlikely to succeed absent an en banc or Supreme Court shift or an amendment to the Guidelines.
Mental health mitigation: The decision highlights a recurring sentencing theme: mental health may mitigate, but it may also aggravate if the court links it to dangerousness and public protection, especially when coupled with violent conduct and treatment noncompliance.

IV. Complex Concepts Simplified

Procedural vs. substantive reasonableness: Procedural asks whether the judge followed the right steps (correct Guideline calculation, considered § 3553(a), explained the sentence). Substantive asks whether the final length is unreasonably long given the reasons and factors.
Waiver vs. forfeiture vs. invited error: Waiver is an intentional relinquishment (usually no appellate review). Forfeiture is a failure to timely raise an issue (reviewed only for plain error). Invited error occurs when a party affirmatively causes the alleged mistake (reviewed only to prevent manifest injustice).
Plain-error review: A demanding standard requiring a clear legal mistake that affected the outcome and harmed the integrity or fairness of the proceedings (as stated in United States v. Vonner).
Guidelines enhancements vs. statutory penalties: Statutory minimums/maximums come from Congress and set the legal boundaries. The Guidelines are advisory and help judges choose a sentence within those boundaries. Many enhancement facts can be found by the judge if they do not change statutory limits.
“In connection with another felony”: Under the Sixth Circuit’s approach (e.g., United States v. King), the enhancement applies when the gun possession is distinct from a separate felony (like an assault committed using the gun), rather than being the same act as the possession itself.
Strict-liability enhancement (stolen firearm): “Strict liability” here means the enhancement applies if the gun was stolen, whether or not the defendant knew it—confirmed by United States v. Webb and United States v. Palos.

V. Conclusion

United States v. Zachary Taylor Bush is a consolidation of several settled but frequently litigated sentencing rules in the Sixth Circuit: unobjected-to PSR enhancements are reviewed (at best) for plain error; indictment pleading requirements generally do not extend to advisory Guidelines enhancements; § 2K2.1(b)(7)(B) turns on whether the “other felony” is truly separate from possession under United States v. King; and the § 2K2.1(b)(4)(A) stolen-firearm enhancement is strict-liability under United States v. Webb, United States v. Palos, and United States v. Seuell. On the reasonableness front, the opinion illustrates how district courts may treat mental health as aggravating—rather than mitigating—when tied to dangerous behavior and public protection, and how difficult it is to overturn a low-end, within-Guidelines sentence on appeal.