Sixth Circuit (Unpublished) Clarifies “Same Course of Conduct” for §1B1.3: Post-Indictment Drug-and-Gun Incident Nine Months Later Counts Toward §2K2.1(b)(1)(A) Firearms Enhancement

Introduction

In United States v. George Wm. Henry (6th Cir. Oct. 10, 2025) (not recommended for publication), the Sixth Circuit affirmed a two-level enhancement under USSG §2K2.1(b)(1)(A) for offenses “involv[ing] three or more firearms,” where the third firearm came from an incident nine months after the offense of conviction and after indictment. The court held that the later incident qualified as “relevant conduct” under USSG §1B1.3(a)(2) because it was part of the “same course of conduct” as the January offense, applying the familiar three-factor test—similarity, regularity, and temporal proximity—on a sliding scale.

The case involves a year-long sequence of drug-and-gun events surrounding defendant George William Henry: a January 2023 search of his home (yielding cocaine base, drug paraphernalia, and two loaded firearms), an August 2023 vehicle encounter (yielding distribution quantities of cocaine base and a handgun behind Henry’s seat, though the district court ultimately did not find he possessed that handgun), and a November 2023 traffic stop (yielding multiple bindles of cocaine and a loaded 9mm handgun linked via NIBIN to violent offenses). Henry pleaded guilty to the January felon-in-possession count (18 U.S.C. §922(g)(1)) and the §924(c) count tied to the same date; the government dismissed the other counts.

On appeal, Henry’s narrow challenge was procedural: he argued the district court erroneously treated the November 2023 incident as relevant conduct when applying the §2K2.1(b)(1)(A) enhancement. The Sixth Circuit disagreed and affirmed.

Summary of the Opinion

The Sixth Circuit affirmed the district court’s application of the two-level “three or more firearms” enhancement under USSG §2K2.1(b)(1)(A). The court:

Reviewed de novo the district court’s relevant-conduct determination insofar as it involved applying law to facts, while reviewing underlying factual findings for clear error.
Applied the USSG §1B1.3(a)(2) “same course of conduct” test—examining similarity, regularity, and temporal proximity on a sliding scale.
Found meaningful similarity between the January and November incidents: both involved distribution quantities of drugs packaged for sale and a loaded 9mm handgun.
Found sufficient regularity across three 2023 episodes (January, August, November), emphasizing that the November possession occurred after the January arrest and indictment—a factor that suggests ongoing conduct rather than an isolated event.
Concluded that a nine-month-and-ten-day interval did not defeat temporal proximity in this context, especially when considered alongside strong similarity and indications of regularity.
Distinguished defense cases (Amerson, Bowens, Hill) on the ground that those lacked one or more of the three factors entirely or shared only the bare fact of unlawful possession.
Rejected out-of-circuit authorities (Hahn, Mullins) as non-binding and factually distinguishable, noting that even those decisions recognized that substantial similarity can compensate for weaker temporal proximity.

Bottom line: the November incident was relevant conduct; adding its 9mm handgun to the two loaded firearms from January yielded three qualifying firearms, and the enhancement stood. The sentence—46 months on the §922(g) count plus the mandatory 60 months consecutive on the §924(c) count—was affirmed.

Analysis

Precedents Cited and Their Influence

The court’s framework rests on well-established Sixth Circuit authority governing relevant conduct and standards of review:

Standard of review:
- United States v. Tripplet, 112 F.4th 428 (6th Cir. 2024): Treats a challenge to a Guidelines enhancement as a procedural reasonableness challenge.
- United States v. Shafer, 199 F.3d 826 (6th Cir. 1999): De novo review when a district court’s relevant-conduct ruling involves application of law to facts; underlying factual findings are reviewed for clear error (see also West, Benton, Donadeo).
- United States v. Donadeo, 910 F.3d 886 (6th Cir. 2018): Confirms the clear-error standard for factual findings within the relevant-conduct inquiry.
Relevant conduct—“same course of conduct”:
- USSG §1B1.3(a)(2) and commentary (cmt. 9(B) in prior numbering): Adopt the three-factor test of similarity, regularity, and temporal proximity, to be applied on a sliding scale.
- United States v. Hill, 79 F.3d 1477 (6th Cir. 1996): Articulates the sliding scale—no bright line; stronger showings on one factor can compensate for weaker showings on another.
- United States v. Phillips, 516 F.3d 479 (6th Cir. 2008): Recognizes that post-indictment possession can support a finding of regularity because it suggests an ongoing pattern notwithstanding law-enforcement intervention.
- United States v. Amerson, 886 F.3d 568 (6th Cir. 2018): Warns that mere repetition of unlawful possession, without more, is insufficient; there must be meaningful similarity “beyond the act of unlawfully possessing a gun.”
- United States v. Bowens, 938 F.3d 790 (6th Cir. 2019): Finds no regularity where there are only two instances and no meaningful similarity beyond both being unlawful possession.
Out-of-circuit comparators:
- United States v. Hahn, 960 F.2d 903 (9th Cir. 1992), and United States v. Mullins, 971 F.2d 1138 (4th Cir. 1992): Cited by Henry; the panel notes they are non-binding and, even on their own terms, acknowledge that strong similarity can overcome weaker temporal proximity—consistent with Hill’s sliding scale approach.

The panel’s synthesis favors a holistic assessment: similarity plus indications of ongoing behavior can carry the day even when time gaps are not ideal.

Legal Reasoning in Detail

The decisive question was whether the November 2023 stop—where Henry alone occupied a vehicle containing multiple bindles of cocaine and a loaded 9mm handgun—was “relevant conduct” to the January 2023 offense of conviction for §2K2.1 purposes. The court applied the §1B1.3(a)(2) “same course of conduct” test.

Similarity. The panel found “meaningful” similarity beyond the bare fact of firearm possession. Both January and November incidents combined distributor-level drug evidence—quantities packaged for individual sale—with a loaded 9mm. This “guns plus distribution-ready drugs” pairing mattered: under Amerson, something more than the tautology of illegal possession is needed. Here, the shared packaging and dealer quantities linked the events substantively, not just formally.

Regularity. The panel acknowledged that regularity is sometimes difficult to infer from two incidents alone (see Bowens). But it emphasized three points:

There were three relevant episodes in 2023: January (home), August (vehicle), and November (vehicle). Even though the district court ultimately did not attribute the August handgun to Henry, that episode still supplied “middle-of-the-year” distribution evidence (individually packaged cocaine base) that helped show ongoing drug activity of the same character.
The November event occurred after Henry’s January arrest and federal indictment. Citing Phillips, the panel treated post-indictment possession as indicative of continuity rather than coincidence—ongoing behavior despite heightened legal jeopardy.
Across all three episodes, the distinctive drug-distribution packaging and the persistent presence of 9mm handguns create a pattern more probative than a pair of isolated unlawful possessions.

Temporal proximity. At nine months and ten days, the interval was “just a hair” beyond the nine-month timeframe that Sixth Circuit cases have previously treated as sufficient in firearm-possession contexts. The court contrasted far longer gaps (such as nineteen months in Hill) and emphasized that temporal proximity is not dispositive; it is one variable on a sliding scale. Strong similarity—and the added regularity inference from post-indictment conduct—ameliorated any marginal temporal weakness.

Sliding scale applied. Bringing these threads together, the court concluded that all three factors were satisfied to a sufficient degree. The similarity was robust; regularity was supported by three 2023 events and by the critical fact that the November incident occurred after indictment; and temporal proximity, while not perfect, was close enough to be overcome by the strength of the other factors. Accordingly, the November handgun counted as relevant conduct, producing at least three firearms: the two loaded firearms from January (AR-15–style rifle with bump stock and drum magazine; 9mm handgun) plus the November 9mm.

Distinguishing contrary authority. The panel addressed Henry’s reliance on Amerson, Bowens, and Hill. In Amerson, the government failed to demonstrate similarity beyond unlawful possession; in Bowens, the two events shared only the generic nature of the offense; in Hill, the drug sales were nineteen months apart and lacked other connective tissue. By contrast, Henry’s facts presented a specific, repeated pairing of distribution-ready narcotics and a loaded 9mm. As to out-of-circuit cases (Hahn, Mullins), the panel noted both their non-binding status and their recognition that strong similarities can overcome weaker temporal proximity—precisely the Sixth Circuit’s sliding-scale approach.

Impact and Practical Implications

Although unpublished and therefore not precedential within the Sixth Circuit, Henry is a useful data point—and persuasive authority—for several reasons:

Reinforcement of the sliding-scale framework. The opinion concretely illustrates how strong, specific similarities (drug distribution packaging plus a loaded 9mm) and post-indictment conduct can outweigh a borderline time gap. Practitioners can expect district courts to give significant weight to “guns plus dealer-quantity drugs” as a unifying theme.
Use of “non-counted” episodes to show regularity. Even where a firearm cannot be definitively attributed to the defendant in a middle incident (here, August), the surrounding drug-distribution evidence may still support regularity in a course-of-conduct analysis. Defense counsel should not assume that excluding a single item (e.g., a disputed handgun) moots the episode for §1B1.3 purposes.
Post-indictment conduct matters. The panel’s reliance on Phillips underscores that post-arrest or post-indictment conduct can significantly bolster regularity, suggesting continuity rather than episodic misfortune. Defendants who continue similar conduct after indictment risk having later events folded into the Guidelines calculus.
Temporal proximity remains flexible. A roughly nine-month interval can be sufficient when joined with strong indicia of similarity and some evidence of regularity. This flexibility will matter in split-year timelines—particularly common in narcotics distribution and firearm-possession contexts.
Implications for §2K2.1(b)(1) computations. The case highlights how the number-of-firearms enhancement can turn on relevant conduct extending beyond the offense of conviction. Here, two firearms from the charged January event combined with a later 9mm from the November stop to reach the “three or more firearms” threshold.
Plea dynamics and PSR strategy. Even when counts are dismissed, conduct from other incidents can re-enter through the relevant-conduct door. Defense counsel must aggressively litigate PSR narratives and the similarity/regularity/temporal facts that enable §1B1.3 aggregation.

The opinion also provides a clear roadmap for distinguishing defense-favorable precedents: show that the government’s proof lacks meaningful similarity beyond “illegal possession,” demonstrate real breaks in time or conduct, or undermine the notion of a consistent, ongoing pattern (especially post-indictment).

Complex Concepts Simplified

Relevant conduct (USSG §1B1.3): Facts not charged or not part of the offense of conviction can still affect the Guidelines if they are sufficiently connected to the offense—either as part of the same course of conduct or a common scheme or plan.
Same course of conduct vs. common scheme or plan: “Same course of conduct” looks to similarity, regularity, and time; “common scheme or plan” usually requires more direct linkage (e.g., common victims, common methods, or mutual facilitation). The court here used “same course of conduct.”
Sliding scale (Hill): No single factor decides. Strong similarity can compensate for weaker temporal proximity, and vice versa. Courts balance all three factors.
§2K2.1(b)(1)(A) firearms-count enhancement: Adds two levels if the offense “involved three or more firearms.” Firearms from “relevant conduct” can be counted, not just those in the charged offense.
Standard of review: Appellate courts often review application-of-law-to-fact determinations de novo (fresh look), but they defer to the district court’s factual findings unless clearly erroneous.
Post-indictment conduct as regularity evidence: Continuing similar criminal conduct after arrest/indictment is an indicator that the behavior is part of an ongoing pattern.
Unpublished decision: “Not recommended for publication” means the opinion is not binding precedent in the Sixth Circuit, though it may be cited for persuasive value depending on local rules.
NIBIN linkage: A ballistic network match can tie a gun to other crimes. In this case, those linkages were noted in the PSR but not essential to the relevant-conduct ruling; the key similarity was the drug-and-gun pairing and packaging for distribution.

Conclusion

United States v. Henry reinforces a practical and flexible approach to USSG §1B1.3’s “same course of conduct” inquiry. The Sixth Circuit affirmed that a later, post-indictment drug-and-gun incident occurring about nine months after the offense of conviction can be relevant conduct where there is concrete similarity (distribution-ready drugs plus a loaded 9mm) and indicators of regularity across the year’s events. Distinguishing cases where the record showed only generic unlawful possession, the court leaned on the sliding scale: strong similarity and post-indictment continuity overcame marginal temporal distance.

For practitioners, Henry underscores the importance of fact-specific arguments about packaging, quantities, weapon type and condition, timing, and post-indictment behavior. Even in an unpublished disposition, the opinion offers a clear template for how the Sixth Circuit evaluates similarity, regularity, and time in the §1B1.3 analysis and how those findings can drive a §2K2.1(b)(1) enhancement. The take-away is straightforward: where later incidents mirror the drug-and-gun profile of the offense of conviction and occur in a sequence suggesting ongoing activity, courts will likely treat them as part of the same course of conduct for Guidelines purposes.