United States v. Hodges

Opinion

IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT

_____________________

No. 98-30614 _____________________

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

JAMES KEVIN HODGES,

Defendant-Appellant. _________________________________________________________________

Appeal from the United States District Court for the Western District of Louisiana (98-CR-30003-ALL) _________________________________________________________________

July 20, 1999

Before POLITZ, JOLLY, and DUHÉ, Circuit Judges.

PER CURIAM:*

In this criminal appeal, the appellant, Kevin James Hodges,

challenges the district court’s calculation of his sentence under

the United States Sentencing Guidelines. Hodges was sentenced to

63 months of imprisonment for one count of possession of firearms

by a convicted felon. For the following reasons, we affirm.

I

A

On August 18, 1997, James Kelvin Hodges was transferred to the

City of Faith Community Corrections Center in Monroe, Louisiana.1

* Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR. R. 47.5.4. 1 On March 27, 1996, Hodges pleaded guilty to assault in As a condition of his confinement, Hodges was permitted to leave

the facility during the day. He could also maintain employment.

On December 20, 1997, Hodges failed to return to the Corrections

Center. The Bureau of Prisons placed him on “escape status.”

On December 31, 1997, the local police of Ennis, Texas,

spotted Hodges in an area of the city known for drug trafficking.

When the police approached Hodges’s vehicle he attempted to flee

the scene. A twenty-mile, high-speed chase ensued. Hodges was

apprehended after the authorities used road spikes to deflate his

tires.

Shortly before his December 20, 1997 escape from the

Corrections Center, Hodges made several unlawful firearm

transactions. On December 9, 1997, Hodges sold a Marlin, Model

60.22 caliber rifle and an Ithaca 12 gauge pump shotgun to a Monroe

pawnshop. Mark Hodges, the defendant’s brother, had previously

reported the firearms stolen. On December 15, 1997, Hodges sold a

Hawkin .54 muzzle loader, a Browning 12 gauge shotgun, and a Marlin

.30-.30 lever action rifle to three of his co-workers. Samuel

Hodges, the defendant’s cousin, reported these weapons stolen from

his home in Rosefield, Louisiana.

B

violation of 18 U.S.C. § 113(a). He was sentenced to 27 months imprisonment and fined $10,000.00.

2 On January 29, 1998, Hodges was indicted on one count of

unlawful escape from the custody of the Attorney General2 and one

count of possession of firearms by a convicted felon,3

specifically, the Marlin 60.22 rifle and the Ithaca pump shotgun.

Hodges entered into a plea agreement, and the government dismissed

the escape charge. Hodges pleaded guilty to the possession count,

and on June 2, 1998, the district court sentenced him to 63 months

of imprisonment for the crime. In calculating Hodges’s sentence,

the district court initially increased Hodges’s base offense level

by two under U.S.S.G. § 2K2.1(b)(1)(B) (1997), based on his

possession of the five firearms: the Marlin 60.22 rifle; the Ithaca

shotgun; the Browning shotgun; the Marlin .30-.30 rifle; and the

Hawkin .54 muzzle loader. At the presentence hearing, Hodges

objected to the district court’s application of the two-level

enhancement, on the grounds that the Hawkin .54 muzzle loader was

an antique replica and that it was not unlawful for a convicted

felon to possess the weapon. The district court agreed and

consequently added a one-level enhancement to Hodges’s base offense

level under U.S.S.G. § 2K2.1(b)(1)(A) (1997), based on his

possession of the remaining four firearms only. Next, the district

court added a two-level enhancement to Hodges’s offense level under

U.S.S.G. 2K2.1(b)(4) (1997) because the firearms were stolen.

2 18 U.S.C.§ 751(a). 3 18 U.S.C. § (g)(1).

3 Finally, the district court increased Hodges’s offense level by two

under U.S.S.G. § 3C1.2 (1997), based on his reckless conduct during

his flight from the Ennis, Texas police. Hodges timely appealed

the sentence.

II

Hodges first argues that the district court erred in

increasing his base offense level by one under § 2K2.1(b)(1)(A),

based on his possession of four firearms. Hodges contends that

application of the enhancement was improper because he pleaded

guilty to only possessing the Marlin 60.22 rifle and the Ithaca

shotgun, and, thus, his possession of the Browning shotgun and the

Marlin .30-.30 rifle six days after the charged offense does not

constitute “relevant conduct.” Second, Hodges complains that the

district court’s application of the two-level enhancement under

U.S.S.G. 2K2.1(b)(4) is improper because he had no knowledge that

the firearms underlying his § 922(g)(1) convictions were stolen.

Finally, Hodges contends that the district court erred in applying

the two-level enhancement under U.S.S.G. § 3C1.2, as there exists

no nexus between his crimes of conviction and his flight from law

enforcement. Hodges argues that the police pursued him only

because they suspected that he had engaged in an illegal drug

transaction.

4 This court accords great deference to the district court's

application of the sentencing guidelines. United States v.

Condren, 18 F.3d 1190, 1193 (5th Cir.), cert. denied, 513 U.S. 856

(1994). We review the district court’s application of the

sentencing guidelines de novo, and its factual findings for clear

error. United States v. Mitchell, 166 F.3d 748, 751 (5th Cir.

1999). We find no error in the district court’s calculation of

Hodges’s sentences.

First, for the purposes of calculating Hodges’s base offense

level under U.S.S.G. § 2K2.1(b)(1)(a), it is of no legal

consequence that Hodges did not plead guilty to the possession of

the Browning shotgun and the Marlin .30-.30 rifle. U.S.S.G.

§ 2K2.1(b)(1)(a) instructs that if the offense involved three to

four firearms, increase by one level. In applying the guideline,

the district court concluded that Hodges’s possession of the Marlin

60.22 rifle and the Ithaca shotgun was part of the offense of

conviction, while his possession of the Browning shotgun and the

Marlin .30-.30 rifle six days later constituted “relevant conduct.”

We have previously held that the district court is permitted to

consider non-adjudicated offenses (offenses for which the defendant

has neither been charged nor convicted) that occur after the

offense of conviction, provided they constitute "relevant conduct”

under U.S.S.G. § 1B1.3. United States v. Vital, 68 F.3d 114, 118

(5th Cir. 1995). “Relevant conduct” has been defined to include

those offenses that are “part of the same course of conduct or

5 common scheme or plan as the offense of conviction.” Id.; U.S.S.G.

§ 1B1.3(a)(2). The commentary to U.S.S.G. § 1B1.3(a)(2) further

provides that “offenses qualify as part of the same course of

conduct if they are sufficiently connected or related to each other

as to warrant the conclusion that they are part of a single

criminal episode, spree, or ongoing series of offenses.” U.S.S.G.

§ 1B1.3(a)(2), comment. (n.9(B)). The determining factors are the

degree of similarity between the offenses, the regularity of the

offenses, and time interval between the offenses. Id. Applying

these standards, the record shows that Hodges possessed and sold

the Marlin 60.22 rifle and the Ithaca shotgun on December 9, 1997,

and the Browning shotgun and the Marlin .30-.30 rifle on

December 15, 1997. Each of the four firearms had been stolen from

Hodges’s relatives and sold to unwitting buyers. The district

court concluded that Hodges acquired and sold the four firearms

days prior to his December 20, 1997 escape from the Corrections

Center in preparation for his disappearance. In the light of this

record, we agree that Hodges’s possession of the Browning shotgun

and the Marlin .30-.30 rifle was sufficiently similar and closely

related in time to the offense of conviction so as to constitute

relevant conduct.

With respect to Hodges’s second attack on his sentence, the

commentary to U.S.S.G. § 2K2.1(b)(4) makes clear that “the two-

level enhancement under U.S.S.G. § 2K2.1(b)(4) applies whether or

not the defendant knew or had reason to believe that the firearm

6 was stolen.”4 U.S.S.G. § 2K2.1(b)(4), comment. (n.19). (Emphasis

added). See also United States v. Fry, 51 F.3d 543, 546 (5th Cir.

1995) (citing United States v. Singleton, 946 F.2d 23 (5th Cir.),

cert. denied, 502 U.S. 1117 (1992)).

Finally, in response to Hodges’s third challenge to his

sentence, the plain language of U.S.S.G. § 3C1.2 seems not to

require a direct nexus between the crime of conviction and the

defendant’s acts of reckless endangerment.5 Nor can we glean from

a literal reading of the guideline’s commentary the sentencing

commission’s intent to limit application of the enhancement in such

a manner. Cf. U.S.S.G. § 3C1.2, comment. (n.3) (noting “during

flight” is to be construed broadly). Even if we assume, as did the

Ninth Circuit, that U.S.S.G. § 3C1.2 requires a nexus between the

crime of conviction and the defendant’s reckless conduct, United

States v. Duran, 37 F.3d 557, 559-60 (9th Cir. 1994), we find that

a sufficient nexus exists on the record before us. Hodges had

escaped recently from the Corrections Center, where he had

knowingly and illegally possessed and sold firearms only a few

4 Commentary to the sentencing guidelines is accorded the same weight as legislative rules adopted by federal agencies. United States v. Powell, 124 F.3d 655, 665 (5th Cir.), cert. denied, 118 S.Ct. 1082 (1998). 5 U.S.S.G. § 3C1.2 provides “if the defendant recklessly created a substantial risk of death or serious bodily injury to another person in the course of fleeing from a law enforcement officer, increase by 2 levels.”

7 weeks earlier, probably to finance his escape. He was evading the

authorities in connection with these crimes when the high-speed

chase began. That this chase–-and hence Hodges’s acts of reckless

endangerment–-occurred so that he could avoid apprehension for the

firearm offenses is clearly convincing in the light of the record

as a whole. The dispositive factor here is the defendant’s state

of mind, not the police’s motives for pursuing him. See id. at

560.

In sum, we find no error in the district court’s application

of the sentencing guidelines. We therefore affirm the judgment of

sentence imposed by the district court.

A F F I R M E D.