Broad “In Connection With” Application of U.S.S.G. § 2K2.1(c)(1)(A) and Mid-Range Bodily-Injury Enhancement for Multi-Gunshot Victims

I. Introduction

Case: United States v. Barber, No. 25-30430 (5th Cir. July 10, 2026) (per curiam) (unpublished).
Parties: United States (Appellee) v. Tristan Barber (Appellant).
Context: Barber, a convicted felon, pled guilty in federal court to being a felon in possession of a firearm (18 U.S.C. § 922(g)(1)) and illegal possession of a machinegun (18 U.S.C. § 922(o)). The federal plea did not include attempted murder, but the sentencing court applied guideline enhancements based on a gang-related drive-up shooting that seriously wounded two victims.

Core issues on appeal:

  • Whether the district court properly applied the U.S.S.G. § 2K2.1(c)(1)(A) cross-reference by finding Barber used the charged firearm “in connection with” another offense (attempted murder).
  • Whether the court correctly applied a three-level injury enhancement under U.S.S.G. § 2A2.1(b)(1)(C) (injury between “serious bodily injury” and “permanent or life-threatening bodily injury”).

Although unpublished and therefore non-precedential under Fifth Circuit rules, the opinion is a useful synthesis of how the Fifth Circuit approaches (1) circumstantial proof and PSR-based factfinding at sentencing, (2) the breadth of “in connection with” under § 2K2.1(c)(1)(A), and (3) gradations of bodily injury under § 2A2.1(b)(1).

II. Summary of the Opinion

The Fifth Circuit affirmed Barber’s sentence. It held:

  • The district court did not clearly err in finding, by a preponderance of the evidence, that Barber used the Glock 22 (a machinegun) in connection with the attempted murder of the two victims, warranting the § 2K2.1(c)(1)(A) cross-reference and the attempted-murder base offense level.
  • The district court did not clearly err in applying a three-level injury enhancement where both victims suffered multiple gunshot wounds, required transfer to a trauma facility and multi-day hospitalization, and one required surgery—injuries worse than “serious bodily injury” but not proven “permanent or life-threatening.”

III. Analysis

A. Precedents Cited and Their Role

1. Standards of review and burden of proof

  • United States v. Nash, 729 F.3d 400, 403 (5th Cir. 2013): The court relies on Nash for the familiar bifurcated review—de novo for guideline interpretation and clear error for factual findings.
  • United States v. Juarez, 626 F.3d 246, 251 (5th Cir. 2010): Cited for the rule that the government must prove sentencing enhancements by a preponderance of the evidence.
  • United States v. Caldwell, 448 F.3d 287, 290 (5th Cir. 2006): Used to emphasize deference to district-court inferences from circumstantial evidence; such inferences are also reviewed for clear error and upheld if plausible in light of the whole record.

2. Circumstantial evidence and “common-sense inferences”

  • United States v. Robinson, 654 F.3d 558, 562 (5th Cir. 2011): The opinion leans heavily on Robinson to reject Barber’s “no direct evidence” argument. The Fifth Circuit reiterates that sentencing courts may draw common-sense inferences from circumstantial evidence to meet the preponderance standard.

3. PSR reliability and the defendant’s rebuttal burden

  • United States v. Harris, 702 F.3d 226, 230 (5th Cir. 2012): Cited for the proposition that a PSR generally has sufficient indicia of reliability to support findings under the preponderance standard.
  • United States v. Fields, 932 F.3d 316, 320 (5th Cir. 2019): Reinforces that when a PSR draws on police investigations (reports, interviews), a sentencing court may find it sufficiently reliable.
  • United States v. Ford, 558 F.3d 371, 377 (5th Cir. 2009) (per curiam): Establishes that the defendant bears the burden to show PSR information is materially unreliable.
  • United States v. Parker, 133 F.3d 322, 329 (5th Cir. 1998): Provides the key procedural point applied here: mere objections are not evidence and do not rebut a PSR.
  • United States v. Rodriguez, 602 F.3d 346, 363 (5th Cir. 2010): Supplies the consequence: absent rebuttal evidence, the district court may adopt the PSR’s findings without additional inquiry or explanation.

4. Breadth of the § 2K2.1(c)(1) cross-reference (“in connection with”)

  • United States v. Gonzales, 996 F.2d 88, 92 (5th Cir. 1993): Central to the opinion’s “course-of-conduct” logic. The court invokes Gonzales to construe § 2K2.1(c)(1)’s “broad language” and “unlimited reference[] to ‘another offense’” as capturing “all illegal conduct performed or intended” by the defendant concerning a firearm involved in the charged offense—undercutting Barber’s temporal/geographic “disconnect” argument.

5. Mens rea / intent-to-kill review posture

  • United States v. Sanchez-Arvizu, 893 F.3d 312, 315 (5th Cir. 2018) (per curiam): Supplies the doctrinal gate: because Barber raised intent-to-kill for the first time on appeal, review is for plain error.
  • United States v. James, No. 25-50144, 2026 WL 1552729, at *5 (5th Cir. June 2, 2026): Cited to show that intent is typically proven circumstantially; state of mind is rarely direct-evidence territory.

6. Bodily injury severity as a factual question; distinguishing a comparator

  • United States v. Davis, 19 F.3d 166, 171 (5th Cir. 1994): Used for the rule that injury severity determinations are factual findings reviewed for clear error.
  • United States v. Jackson, 662 F. App’x 310 (5th Cir. 2016) (per curiam): Barber’s main comparison case. The panel distinguishes it: Jackson vacated a four-level enhancement due to insufficient proof that injuries were life-threatening or permanent; here the district court applied only the middle (three-level) enhancement, supported by transfer, hospitalization, multiple wounds, and surgery, while also finding no permanent or life-threatening showing.

B. Legal Reasoning

1. Applying the § 2K2.1(c)(1)(A) cross-reference to attempted murder

The cross-reference applies when a defendant used or possessed a firearm “cited in the offense of conviction” in connection with another offense, and the resulting offense level is higher. The district court concluded Barber used the same Glock 22 that was charged federally to commit an attempted murder; ballistics linked that Glock to 19 of 27 casings at the shooting.

The Fifth Circuit’s reasoning proceeds in three steps:

  1. Factual linkage via PSR-supported circumstantial evidence: The court emphasizes corroborated strands of proof—ballistics, geolocation, surveillance video, texts, and post-offense social media/lyrics—finding the district court’s inference “plausible in light of the record as a whole.”
  2. Procedural sufficiency of PSR reliance: Because Barber offered objections but no rebuttal evidence, the district court was entitled to adopt the PSR’s account.
  3. Rejecting “disconnect” arguments through breadth of “in connection with”: Invoking Gonzales and guideline commentary, the panel treats the “in connection with” language as expansive, not defeated by an 18-day gap or 40-mile distance between shooting and arrest, especially where the firearm is tied to the relevant “course of conduct.”

2. Intent to kill (malice aforethought) for attempted murder

Barber’s intent argument failed both procedurally and substantively. Procedurally, it was raised first on appeal, triggering plain-error review. Substantively, the court found ample circumstantial evidence of intent: approaching an occupied vehicle of rivals and firing 19 rounds at close range with an automatic Glock. In the panel’s view, this is the paradigmatic fact pattern from which intent to kill may be inferred.

3. The three-level injury enhancement under § 2A2.1(b)(1)(C)

The injury enhancement in § 2A2.1(b)(1) is tiered: two levels (serious bodily injury), four levels (permanent or life-threatening), and three levels for injuries in between. The district court placed these victims in the middle category: multiple gunshot wounds, trauma transfer, multi-day hospitalization, and surgery for one victim, but no record evidence of permanent impairment, disfigurement, or substantial risk of death.

The Fifth Circuit underscores that the middle tier exists precisely to capture “worse than serious” injuries that do not satisfy the life-threatening/permanent standard. By distinguishing Jackson, the panel implicitly affirms that the same general type of injury (gunshot wounds) can fall into different tiers depending on the evidentiary showing of permanence or life-threatening risk.

C. Impact

  • Sentencing practice (practical impact): The opinion reinforces that, in the Fifth Circuit, defendants who do not present rebuttal evidence face an uphill climb when challenging PSR-based enhancements—especially where multiple independent data sources corroborate the PSR narrative (ballistics + digital forensics + geolocation + video).
  • Scope of “in connection with” (doctrinal emphasis): By pairing Gonzales with the guideline’s own commentary example, the decision signals that temporal/geographic separation between the underlying violent conduct and later possession/arrest will not necessarily defeat § 2K2.1(c)(1)(A) when the firearm is demonstrably the same and part of a single course of criminal conduct.
  • Injury tiering under § 2A2.1(b)(1): The case is a fact-driven illustration of how courts may justify the three-level “between” enhancement using hospitalization, transfer to higher care, and surgery—while stopping short of “life-threatening” absent proof of substantial risk of death or lasting impairment.
  • Precedential status: Because the opinion is unpublished, it does not establish binding circuit precedent, but it may be cited as persuasive authority and as a roadmap for how panels evaluate similar guideline disputes.

IV. Complex Concepts Simplified

  • PSR (Presentence Report): A probation-prepared report summarizing offense conduct and guideline calculations. Courts may rely on it if it has “sufficient indicia of reliability,” especially where it is grounded in police investigations. If the defendant only objects but offers no evidence, courts may adopt the PSR.
  • Preponderance of the evidence: The government’s sentencing burden—more likely than not—lower than “beyond a reasonable doubt.”
  • Clear error review: A highly deferential appellate standard for factual findings; the appellate court affirms if the finding is plausible in light of the record as a whole.
  • Plain error review: Even more defendant-unfriendly; applies to arguments not preserved below. The appellant must show an obvious error affecting substantial rights, and that the appellate court should correct it.
  • Guideline “cross-reference” (§ 2K2.1(c)(1)(A)): A rule that can replace the ordinary firearm guideline calculation with the guideline for a different offense (here, attempted murder) if the firearm was used “in connection with” that offense and yields a higher offense level.
  • “In connection with” / “course of conduct”: A broad linkage concept. The firearm need not be discovered at the scene of the other offense; it is enough that the same firearm is tied to the other offense as part of a related course of criminal behavior.
  • Serious vs. permanent/life-threatening injury: “Serious” can be shown by hospitalization or surgery; “permanent/life-threatening” requires proof of substantial risk of death or likely permanent loss/impairment/disfigurement. The guidelines allow a middle category for injuries that are worse than serious but not proven permanent or life-threatening.

V. Conclusion

United States v. Barber affirms two recurring sentencing principles in violent-firearm cases: (1) § 2K2.1(c)(1)(A) can substantially increase exposure when circumstantial, PSR-supported evidence ties the charged firearm to a violent “other offense,” even where arrest occurs days later and miles away; and (2) § 2A2.1(b)(1)’s three-level “between” enhancement is a workable doctrinal tool for multi-gunshot injuries involving significant treatment (transfer, hospitalization, surgery) without proof of permanence or life-threatening risk.