United States v. Eric Carmouche

138 F.3d 1014, 1998 WL 172603

• Court: Court of Appeals for the Fifth Circuit
• Decided: April 14, 1998
• Docket: 97-30130
• Status: Published

Opinions

PER CURIAM:

Eric Carmouche pleaded guilty to unlawful possession of a short barrel shotgun in violation of 26 U.S.C. § 5861(d). Carmouche was sentenced to 27 months imprisonment to be followed by a 24 month period of supervised release. Carmouche appeals his sentence. We affirm.

BACKGROUND

■Police searched Carmouche’s rural property after receiving a tip that Carmouche was involved in the disappearance of a cow. Two separate searches uncovered, not only the remains of the dead cow, but also a-United States Army blasting machine, a .45 caliber automatic handgun, a sawed off shotgun ac-eompanied by an extra barrel less than 18 inches in length, a .223 caliber rifle accompanied by parts to make it fully automatic, bomb detonation cords, a blasting cap, and numerous boxes of small ammunition and gun powder. Carmouche was subsequently charged with unlawful possession of: (1) a machine gun; (2) a short barrel shotgun; and (3) an explosive device.

Carmouche agreed to plead guilty to count 2, which alleged unlawful possession of a short barrel shotgun, as defined in 26 U.S.C. § 5845(a)(1) and (d) and in violation of 26 U.S.C. § 5861(d). Counts 1 and 3 were dismissed pursuant to Carmouche’s plea agreement. Carmouche was sentenced using a base offense level of 18 because his offense involved a firearm defined in 26 U.S.C.. § 5845(a). See U.S.S.G. § 2K2.1(a)(5). The district court imposed a one-level increase because the offense involved three weapons, see U.S.S.G. § 2K2.1(b)(l)(A), and a two-level increase because the offense involved a “destructive device,” see U.S.S.G. § 2K2.1(b)(3). The district court also granted a three-level reduction for acceptance of responsibility. Thus, Carmouche was sentenced using a net base offense level of 18. On November 12, 1996, the district court entered judgment against Carmouche.

Six days later, on November 18, 1997, Car-mouehe filed a pleading entitled “Motion to Correct Sentence Pursuant to Rule 35(c) Fed.R.Crim.P. and for Evidentiary Hearing.” Carmouche argued that the district court erred by: (1) imposing sentence for possession of a shotgun barrel, rather than a shotgun; (2) applying the 1995 version of the sentencing guidelines; (3) imposing a three-level adjustment for the possession of other firearms and explosive devices; and (4) refusing to depart downward. More than sixty days later, on January 22, 1997, the district court entered an order denying Carmouche’s November 18 motion. The following day, Carmouche filed a notice appealing his sentence and the district court’s January 22 order denying the November 18 motion to correct his sentence.

On appeal, Carmouche urges again the arguments presented in the November 18 motion to correct his sentence. The government responds that this Court is without jurisdiction because Carmouche failed to file a timely notice of appeal. Prior to oral argument, the government also filed a motion to dismiss for lack of jurisdiction, which has been carried with the case.

DISCUSSION

1. Appellate Jurisdiction

The threshold issue in this case, and one that is determinative of our jurisdiction, is whether Carmouche’s November 18 motion to correct his sentence suspended the ten-day time period for filing an appeal. See Fed. R.App. P. 4(b). We conclude that it did and that we therefore have jurisdiction to entertain Carmouehe’s appeal. See United States v. Moya, No. 94-10907, 66 F.3d 319 (5th Cir. July 25,1995)(unpublished), and 5th Cir. R. 47.5.3.

Moya construed a motion labelled as a Rule 35(c) motion as “one of the species of motions for reconsideration” which suspend the running of the 10-day period of FRAP 4(b). See Moya, No. 94-10907, at 3-4. Although unpublished, Moya is binding precedent in this Circuit because it was issued before January 1, 1996. See 5th Cir. R. 47.5.3. Carmouche filed his November 18 motion, captioned as authorized by Federal Rule of Criminal Procedure 35(c), six days after the court entered judgment and thus within the time period allowed for filing an appeal. Once filed, that motion prevented the running of the 4(b) period, and extended the time for filing an appeal until the district court disposed of that motion on January 22, 1997. Therefore, Carmouche’s notice of appeal, which was filed one day after the district court denied his motion, was timely. We have jurisdiction to consider the merits of Carmouche’s appeal.

2. The Shotgun Barrel

Carmouche pleaded guilty to count 2, which charged possession of a short barrel shotgun, as defined in 26 U.S.C. § 5845(a)(1) and (d) and in violation of 26 U.S.C. § 5861(d). Carmouche was sentenced using sentencing guideline § 2K2.1, the guideline applicable when the firearm is one defined by § 5845(a). Carmouche argues on appeal that his conviction for violation of § 5861(d) is invalid because the detached barrel found at his house does not meet the technical definítion given for a short barrel shotgun in 18 U.S.C. § 5845(a)(1) and (d). As a result, Carmouche contends that the district court’s application of guideline § 2K2.1(a)(5) was error.

By disputing the district court’s decision that Carmouche’s offense involved a § 5845(a) firearm, and the district court’s subsequent reliance upon guideline § 2K2.1(a)(5), Carmouche hopes to reap the benefit of § 2K2.1(b)(2). Section 2K2.1(b)(2) specifies a total base offense level of six when the firearm is possessed solely for lawful sporting purposes or collection. The favorable offense level provided in § 2K2.1(b)(2) is made expressly unavailable when the offense involves a firearm defined in § 5845(a). U.S.S.G. § 2K2.1 application note 10.

Carmouehe’s plea is supported by a sufficient factual basis. The parties’ joint Rule 11(f) factual stipulation recites that the police found the shotgun and the shotgun barrel, which was “made to fit the shotgun” and was less than thirteen inches long, “[i]n close proximity.” The PSR reports that Car-mouehe knowingly, intentionally and unlawfully possessed a shotgun with a barrel length of twelve and one-half inches. Car-mouche received a three-level reduction in his base offense level because he accepted responsibility for the relevant conduct described in the PSR. Of equal importance, Carmouche pleaded guilty to the indictment as charged and has not formally challenged his plea, either in the district court or in this Court, where his notice of appeal is limited to sentencing issues. The district court did not err by applying § 2K2.1(a)(5), the guideline applicable to Carmouehe’s offense, or by refusing to apply § 2K2.1(b)(2) to. reduce Car-mouche’s sentence.

3. The Applicable Guidelines

Carmouche next contends that the district court erred by applying the 1995 version of the sentencing guidelines instead of the 1993 version, which the plea agreement stated would be used to derive Car-mouche’s sentence. Carmouche did not object to the district court’s application of the 1995 version until he filed his motion for reconsideration of sentence.

The district court’s application of the 1995 guidelines was not reversible error. Although the plea agreement recites that the 1993 guidelines will be used, not every breach of a plea agreement requires reversal. United States v. Hooten, 942 F.2d 878, 884 (5th Cir.1991). The guidelines in effect at the time of sentencing are to be used unless application of the current guidelines would implicate the ex post facto clause. U.S.S.G. § 1B1.11. Carmouche claims that the ex post facto clause is implicated here because § 2K2.1(b)(2), providing a base offense level of six when firearms are possessed for hunting or collection purposes, was deleted from the guidelines in 1994. Carmouche is incorrect. Section 2K2.1(b)(2) appears in identical form in both the 1993 and 1995 version of the guidelines. Indeed, an examination of the 1993 and 1995 versions of the guidelines yields the conclusion that the provisions are substantively identical for all purposes relevant to this appeal. There are, therefore, no ex post facto concerns requiring application of the 1993 guidelines. In addition, because Carmouche was not prejudiced by the district court’s application of the 1995 guidelines, any error was also harmless.

4. Failure to Hold Evidentiary Hearing

The district court increased Car-mouche’s base offense level by two levels because the offense involved “destructive devices” seized from Carmouche’s house. See U.S.S.G. § 2K2.1(b)(3). The guidelines define destructive devices as including any of a variety of destructive or explosive items, and any firearm that will, or can be readily converted to, “expel a projectile by the action of an explosive or other propellant,” or any combination of parts designed or intended for converting a device into a destructive device. U.S.S.G. § 2K2.1 application note 4. On appeal, Carmouche argues that the district court erred by failing to grant an evi-dentiary hearing to explore Carmouehe’s contention that the explosive devices seized from his home belonged to another person, who was storing the items at Carmouehe’s house.

An assortment of firearms and explosive materials were found at Carmouche’s residence, including explosive RDX, explosive FFGg black powder, Hercules Red Dot double base explosive shotgun powder, Winchester Western explosive double base powder, and a section of explosive detonating cord .20 inches in diameter containing explosive PETN. Even if some of these items belonged to another individual, the subject offense is possession and there is no dispute that the items were found in Carmouche’s possession at his rural residence, where he lived alone. Additionally, Carmouche was required to accept responsibility for all relevant conduct, including possession of the additional firearms and explosive devices, in order to receive a three level reduction for acceptance of responsibility. Having reviewed the record, we cannot conclude that the district court erroneously failed to conduct an evi-dentiary hearing to consider whether Car-mouche had both title and possession of these dangerous destructive devices.

5. Failure to Depart

Carmouche contends that the district court erred by refusing to depart downward because this case falls outside the heartland of those offenses contemplated by § 2K2.1. See U.S.S.G., Ch. 1, Pt. A, 4(b).

A district court’s refusal to grant a downward departure is not reviewable on appeal unless the refusal is a violation of law. United States v. Palmer, 122 F.3d 215, 222 (5th Cir.1997). We have previously, held that a refusal to depart violates the law when the district court’s refusal is based upon the mistaken belief that the court is without authority to depart. Id. at 222. We have no jurisdiction, however, when the district court’s refusal to depart is based upon the determination that departure is not warranted on the facts of the case. Id.

The district court concluded the sentencing hearing with the remark that it did not consider Carmouche to be a menace, but that it had “no choice” with respect to Carmouehe’s sentence because the government had not filed a motion requesting departure. Thus, Carmouche maintains that the district court failed to recognize its authority to depart on the theory that Carmouche’s conduct was outside the heartland defined by the applicable guidelines.

We disagree. The district court’s concluding remarks were not directed to any particular objection or argument of the defendant. With respect to Carmouehe’s “heartland” argument, the district expressly found that there was “no reason to depart from the sentence called for by the application of the guidelines inasmuch as the facts as found are of a kind contemplated by the Sentencing Commission.” We have' no jurisdiction to review the district court’s determination that a departure was not warranted on the facts of Carmouche’s case. Id.

For the foregoing reasons, the government’s motion to dismiss is DENIED and the district court is in all respects AFFIRMED.