United States v. Hart, Jason

324 F.3d 740, 355 U.S. App. D.C. 360, 2003 U.S. App. LEXIS 6983, 2003 WL 1859809
CourtCourt of Appeals for the D.C. Circuit
DecidedApril 11, 2003
Docket02-3020
StatusPublished
Cited by19 cases

This text of 324 F.3d 740 (United States v. Hart, Jason) is published on Counsel Stack Legal Research, covering Court of Appeals for the D.C. Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
United States v. Hart, Jason, 324 F.3d 740, 355 U.S. App. D.C. 360, 2003 U.S. App. LEXIS 6983, 2003 WL 1859809 (D.C. Cir. 2003).

Opinions

Opinion for the court filed by Circuit Judge KAREN LeCRAFT HENDERSON.

Concurring opinion filed by Circuit Judge SENTELLE.

KAREN LeCRAFT HENDERSON, Circuit Judge:

The appellant, Jason Hart, seeks reversal and remand of the district court’s January 2002 judgment sentencing him to 82 months in prison. See App. of Appellant at 50-56; Sentencing Tr. at 131-39. He contends that the court: (1) erred as a matter of law in interpreting section 2K2.1(b)(5) of the United States Sentencing Guidelines (U.S.S.G. or Guidelines) to apply to a “felony offense” neither temporally nor factually related to the offense of conviction, see Br. of Appellant at 14-20; (2) admitted unreliable hearsay evidence and placed an impermissible burden on him to demonstrate the hearsay declar-ant’s lack of bias against him, see id. at 28-33; and (3) failed to make clear the specific factual basis on which it rested its conclusion that a four-level enhancement was appropriate under section 2K2.1(b)(5), see id. at 20-28. Although Hart’s first two challenges are unavailing, the third has merit. Accordingly, and for the reasons set forth in Part II.C, infra, we reverse and remand the case for resentencing with instructions to resolve the ambiguities in the sentencing court’s application of section 2K2.1(b)(5).

I.

Hart was arrested in April 2001 while in possession of a .32 caliber Colt semiautomatic handgun and a .38 caliber Colt special revolver. In June a grand jury indicted him on one count of unlawful possession of a firearm and ammunition by a felon, in violation of 18 U.S.C. § 922(g)(1). See App. of Appellant at 6. Hart pleaded guilty. At sentencing the government sought an upward adjustment in his Guidelines offense level pursuant to U.S.S.G. § 2K2.1(b)(5), which provides for a four-level enhancement

[i]f the defendant used or possessed any firearm or ammunition in connection with another felony offense; or possessed or transferred any firearm or ammunition with knowledge, intent, or reason to believe that it would be used or possessed in connection with another felony offense....

U.S.S.G. § 2K2.1(b)(5). The government asserted that Hart “used or possessed” the .32 caliber gun “in connection with” the February 25, 2001 homicide of one David Jones.1 See App. of Appellant at 41-44; [742]*742see also Br. of Appellee at 10. The district court conducted an evidentiary hearing in January 2002 to determine whether there was a factual basis for the four-level enhancement.

A.

At the hearing, the government offered the testimony of four police officers — Todd Gray, Nicholas Viggiani, Kerry Jernigan and Jeffrey Eckrich — from the Washington, D.C. Metropolitan Police Department and the Prince George’s County Police Department. It also introduced a hearsay statement by Theodore Scott, who allegedly sold Hart the .32 Colt in January 2001, and several ballistics reports indicating that the gun was used in a number of shootings that took place in January and February 2001. The evidence can be summarized as follows:

First, Detective Viggiani investigated the January 18, 2001 shooting of Danielle Duncan and he arrested and interviewed Scott in connection therewith. See Sentencing Tr. at 31-40 (Det. Viggiani). During Viggiani’s questioning, Scott admitted that he shot Duncan — with a .32 Colt — but claimed it was an accident. See id. at 38 (Det. Viggiani); see also id. at 42-43 (ballistics report confirming a .32 caliber handgun used). He told Viggiani that he sold the gun to Hart a day or two after the Duncan shooting:

Q: Who did you give it to?
A: A dude named Jay Rock. I think somebody called him Jason. His brother is Antoine Hart. I worked at the Palm Tree Café with him. Their little brother Justin got killed in DC and I don’t know who did it. He was like 17 years old. I heard when the DC police had went to Jason’s house he ran out with the guns or something and he got locked up.
Q: What did you get in return for the .32 from Jason?
A: $50.
Q: Did Jason tell you that DC police got the .32?
A: No, I never talked to him. I just heard he got locked up with two guns. He may have even gotten rid of the .32. I don’t know.
Q: So did Jason have the gun, the .32, from about January 19th to the 20th, 2001, until April 18th, 2001?
A: I don’t know. I guess he did, but he could have gotten rid of it.
Q: Can you describe Jason?
A: Black male about 20, 21 years old, about five foot ten to six one. Skinny, light brown skin. He wears his hair all kinds of ways; probably a bush. Has facial hair.

Id. at 36-37 (Det. Viggiani). When Viggia-ni showed Scott a photograph of Hart, Scott stated “That’s Jay Rock. That’s the one I gave the gun to. So that’s Jason Hart, Jay Rock.” Id. at 39-40 (Det. Vig-giani).

Second, in early 2001 Hart lived in a section of Washington, D.C. known as Riggs Road and associated with a group of people from the same area. See id. at 19-22 (Det. Gray), At that time there was an ongoing dispute between the Riggs Road group and a group from the Fleetwood Village section of nearby Hyattsville, Maryland. See id. (Det. Gray). The dispute, or “beef,” between the Riggs Road group and the Fleetwood Village group manifested itself through several violent incidents. Id. at 20 (Det. Gray); see id. at 71-72 (Det. Jernigan). For instance, on February 21, 2001 Ricardo Seldon — a friend of Hart and a member of the Riggs Road group — was shot in the abdomen, apparently by members of the Fleetwood Village group. See id. at 14-15 (Det. Gray). The next day Anthony Grissett and Larry Lucey, two members of the Riggs Road group, allegedly robbed Gregory Wallace and Willie [743]*743Smith at gunpoint. See id. at 15-18 (Det. Gray). Wallace was associated with the Fleetwood Village group but was Mends with certain members of the Riggs Road group as well. See id. at 18 (Det. Gray); id. at 132-33.

Third, on February 25 two men shot and killed David Jones while Jones and his girlfriend were entering a vehicle. See id. at 65 (Det. Jernigan). Jones was in the Fleetwood Village area at the time but was not a member of the Fleetwood Village group. See id. at 132. Jones’s girlfriend was unable to identify the shooters from a lineup but gave the police a general description of the two men. See id. at 65-68 (Det. Jernigan). Her description of one resembled Michael Freeman, another of Hart’s friends and a member of the Riggs Road group. See id. at 67-68 (Det. Jerni-gan). The police recovered .32 caliber and .38 caliber shell casings from the scene of the homicide. See id. at 68-70 (Det. Jerni-gan). A ballistics analysis confirmed that the casings from the .32 caliber gun “matched” the .32 Colt that was in Hart’s possession when he was arrested. Id. at 70 (Det. Jernigan).

Fourth, on February 26 Gregory Wallace was shot in Hyattsville.

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Bluebook (online)
324 F.3d 740, 355 U.S. App. D.C. 360, 2003 U.S. App. LEXIS 6983, 2003 WL 1859809, Counsel Stack Legal Research, https://law.counselstack.com/opinion/united-states-v-hart-jason-cadc-2003.