United States v. Irvin

Opinion

Opinions of the United

2004 Decisions States Court of Appeals for the Third Circuit

5-25-2004

USA v. Irvin Precedential or Non-Precedential: Precedential

Docket No. 03-1862

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Research & Writing Specialist PRECEDENTIAL Federal Court Division Defender Association of Philadelphia Suite 540 West - Curtis Center IN THE UNITED STATES COURT OF Independence Square West APPEALS

Philadelphia, PA 19106

FOR THE THIRD CIRCUIT

______________

Attorneys for Appellant

No. 03-1862 _______________ PATRICK L. MEEHAN United States Attorney

UNITED STATES OF AMERICA LAURIE MAGID Deputy United States Attorney For Policy and Appeals

v. ROBER A. ZAUZMER Assistant United States Attorney KYLE IRVIN, Senior Appellate Counsel FRANK R. COSTELLO, JR. (Argued)

Appellant

Assistant United States Attorney

_____________________________

615 Chestnut Street Suite 1250

On Appeal from the United States Philadelphia, PA 19106

District Court

for the Eastern District of Pennsylvania Attorneys for Appellee

Criminal No. 99-cr-00566

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District Judge: Honorable Stewart Dalzell

OPINION OF THE COURT

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Argued March 26, 2004 BECKER, Circuit Judge.

Before: AMBRO, CHERTOFF and BECKER, Circuit Judges This is an appeal by Kyle Irvin from (Filed May 25, 2004 ) a judgment in a criminal case entered pursuant to a plea of guilty to two counts MAUREEN KEARNEY ROWLEY of being a previously convicted felon in Chief Federal Defender possession of a firearm in violation of 18 DAVID L. MCCOLGIN U.S.C. § 922(g). Irvin was sentenced to Assistant Federal Defender seventy-two months in prison. The appeal, Supervising Appellate Attorney which presents three sentencing issues, DINA CHAVAR (Argued) arises out of the tragic accidental shooting

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of Irvin’s three-year-old son, Daequan, on I. June 9, 1998, at the home of Irvin’s The District Court enhanced Irvin’s mother, Dollie Irvin, where Irvin and offense le vel un der U.S .S.G . § Daequan were living. While playing, 2K2.1(b)(1)(B) for possessing eight Daequan found a .40 caliber Smith & firearms, and, because Irvin denied Wesson pistol that Irvin kept in their room, possession of those firearms, refused to and accidentally shot himself with it.

grant a reduction under U.S.S.G. § 3E1.1 Daequan died four days later in the for acceptance of responsibility. Irvin hospital. Police recovered the gun that contends that this was error in view of the Daequan accidentally fired after Irvin told lack of direct proof that he exercised them where it could be found.

dominion and control over all of the Irvin was prosecuted by the firearms. In our view, however, neither Commonwealth of Pennsylvania for the District Court’s finding that Irvin endangering the welfare of children and constructively possessed the other six guns involuntary manslaughter, and by the charged in count II, nor its finding that federal government on the felon-in- Irvin was not entitled to an adjustment for possession charge. He entered guilty pleas acceptance of responsibility, was clearly in both cases. The issues on appeal pertain erroneous.2 to sentencing determinations made by the A.

District Court regarding the number of weapons Irvin had in his possession On the day of the shooting Irvin (which bears on his Sentencing Guidelines advised the first officer on the scene that range); whether he accepted responsibility; his son found his gun and accidentally and whether inclusion of the state offenses fired it, that he did not have a license for in his criminal history calculation was the gun, and that he had thrown the gun plain error. We reject Irvin’s first two out the back bedroom window. He was assignments of error, but conclude that the District Court plainly erred in including the state offenses in the criminal history timely, and we have jurisdiction under 28 calculation. We will therefore vacate the U.S.C. § 1291 and 18 U.S.C. § 3742(a). judgment of the District Court and remand

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for resentencing.1 We exercise plenary review over a district court’s legal interpretation of the Sentencing Guidelines, but our review of 1 The judgment of the District Court the factual findings supporting a district was originally entered on June 12, 2000, court’s application of the Guidelines is but on M arch 19, 2003, the District Court only for clear error. See United States v. denied Irvin’s motion under 28 U.S.C. § Fenton, 309 F.3d 825, 827 n.2 (3d Cir. 2255 for resentencing. Irvin’s notice of 2002) (citing United States v. Butch, 256 appeal on March 26, 2003, was therefore F.3d 171 (3d Cir. 2001)).

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arrested and taken into custody. Later that were not his. same day at the station house, Irvin told The District Court discredited officers that, in fact, the gun could be Irvin’s tes ti m ony concerning his found in the back bedroom underneath the knowledge, possession, and ownership of mattress with some other guns. When a the other six firearms and set forth the search of M rs. Irvin’s home was conducted reasons for its findings. The Court pursuant to a warrant, six guns were concentrated on (1) Irvin’s initial lie to the recovered from her house in addition to the police (he told them that he had thrown the .40 caliber Smith & Wesson pistol. Just as gun out the window); (2) the fact that he had told the police, Irvin’s pistol was rather than get medical help for his son, found in the upstairs back bedroom Irvin first hid the gun and spent shell, underneath the mattress. Two other guns because he knew he could not legally have were also under the mattress, and two possession of a gun; and (3) its conclusion more were under the bed. A sixth gun was that Irvin’s testimony that it was his found in the closet of that same bedroom.

“instinct” to put the gun in the back A seventh gun was found in the living bedroom and that “I don’t know why I had room of the home.

a gun” was unworthy of belief. The Court There was in fact no direct evidence ultimately determined that Irvin possessed (e.g., fingerprints, purchase receipts) that a total of eight firearms.3 It then Irvin had dominion and control over the concluded that Irvin was not entitled to a other guns—five of which were found in reduction in his offense level for the back bedroom, which was where acceptance of responsibility because he Irvin’s cousin Lucius Joe resided, and one had offered false testimony, stating that “a of which was found in the common area defendant who has . . . presented living room. Irvin testified that he kept the absolutely fantastic testimony . . . is not gun his son used in the middle bedroom one who has shown acceptance of where they slept; that after the tragedy he responsibility.” “instinctively” hid the gun used by his son B.

under the mattress in the back bedroom; that he did not know the other two guns The government had the burden to were under the mattress until he saw them prove, by a preponderance of the evidence, while hiding the gun; that he was unaware of the presence of any of the other four

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weapons found in the house (one of which The foregoing catalog only lists seven was found in the open in the living room); firearms. The eighth was recovered by that Lucius Joe had previously showed him police following a separate incident three of the guns that were found in the almost a year before in a consent search back bedroom on June 9, 1998; and that of Irvin’s residence at the time. This the six other guns found on June 9, 1998 incident was charged in a separate count of the indictment.

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see United States v. Evans, 155 F.3d 245, originally been purchased in. While the 253 (3d Cir. 1998), that Irvin knew of the question is quite close, at least with respect guns’ presence and had control or the to the gun found in the closet in Lucius power and intention to exercise control Joe’s bedroom, which there is no evidence over them, see United States v. Iafelice, Irvin ever saw, we think that this evidence 978 F.2d 92, 96 (3d Cir. 1992). Some of was sufficient so that the District Court’s our cases involving possession of findings were not clearly erroneous.4 controlled substances have held that mere We also find no merit in Irvin’s evidence of presence in a house where contention that the District Court drugs were found, proximity to the drugs improperly shifted the burden of proof by (and knowledge that they were there), and requiring him to disprove that he association with other residents are not possessed the six firearms at issue and enough to establish dominion and control.

failed to make the “required findings”

See United States v. Jenkins, 90 F.3d 814 concerning the issue of possession. This (3d Cir. 1996); United States v. Brown, 3 simply did not happen. We defer to the F.3d 673 (3d Cir. 1993).

District Court’s discrediting of Irvin’s In this case, however, there was denial of possession of the disputed six more: Irvin hid the gun his son had used guns, and its concomitant denial of the right next to two other handguns, in the a dj u s tm e n t f o r a c c e p t a n c e o f same room that a shotgun and two other responsibility. See United States v. rifles were discovered. Further, he initially Cianscewski, 894 F.2d 74, 83 (3d Cir. lied to the police about the location of the 1990) (determination that defendant did gun his son had used, saying that he had not accept responsibility will be reversed thrown it out the window. Additionally, only if “clearly erroneous”). At all events, Irvin had a prior firearms possession, as we agree that when a defendant denies reflected by the predicate conviction for relevant conduct that the district court the felon-in-possession charge—a 1995 subsequently determines to be true, a state conviction for carrying a firearm in a district court may properly deny a public place and carrying firearms without downward adjustment for acceptance of a license. See United States v. Jernigan, responsibility. See U.S.S.G. § 3E1.1 341 F.3d 1273, 1281-82 (11th Cir. 2003) Application Note 1(a). (prior convictions involving knowledge of presence of gun); United States v. Cassell,

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292 F.3d 788, 793 (D.C. Cir. 2002); Reversing the District Court’s finding United States v. Moorehead, 57 F.3d 875, regarding Irvin’s possession on any one 878 (9th Cir. 1995). With respect to the of the six disputed guns would not be gun found in the living room, it was out in harmless because U.S.S.G. § the open, and found in the very box that 2K2.1(b)(1)(B), under which Irvin’s the gun Irvin admittedly possessed had sentence was enhanced, requires a minimum of eight firearms.

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II. endangering charge.

We turn to the last issue on On September 14, 1999, Irvin was appeal—whether Irvin’s criminal history indicted in the District Court on two score erroneously included one point for counts of being a felon in possession of a the sentence he received for the firearm in violation of 18 U.S.C. § involuntary manslaughter conviction in 922(g)(1). Count II of the indictment state court. Irvin contends that that charged Irvin with possession of the .40 offense conduct was part of the same caliber Smith & Wesson pistol that course of conduct as the instant offense, Daequan accidentally fired on June 9, and therefore should not have counted as a 1998.5 This gun was recovered by prior sentence pursuant to U.S.S.G. § Philadelphia police that same day and 4A1.2(a)(1). We agree. formed the basis for the state involuntary manslaughter charge. Irvin entered into a A.

plea agreement which provided that he Shortly after Daequan’s death, the would plead guilty to both counts.

Commonwealth of Pennsylvania charged However, on the second count, which Irvin with endangering the welfare of listed the seven guns recovered from his children, involuntary manslaughter, and mother’s home, Irvin agreed only to related offenses. It is not disputed that the possessing the gun listed first in that conduct that was the subject of these count—the .40 caliber Smith & Wesson charges was Irvin’s leaving the pistol in a pistol that he told police on June 9, 1998, place where his three-year-old son could belonged to him. The plea agreement also easily reach the firearm. On November included stipulations that Irvin would 10, 1998, Irvin pleaded guilty to the receive a two point reduction for endangering and manslaughter charges acceptance of responsibility under before Court of Common Pleas Judge U.S.S.G. § 3E1.1(a), and an additional one Carolyn Temin. During the guilty plea point reduction for timely notifying the colloquy, Judge Temin advised Irvin that government of his intention to plead guilty in order for the Commonwealth to prove under U.S.S.G. § 3E1.1(b). involuntary manslaughter, it would have to At sentencing, the District Court prove that Irvin “did something . . . in a adopted the criminal history calculation in highly negligent manner, and in this case the presentence report, which added one that would involve leaving a gun that point to Irvin’s criminal history score could be fired in a place where a small under U.S.S.G. § 4A1.1(c) for the state child could pick it up and fire it.” On December 22, 1998, Judge Temin sentenced Irvin to seven years’ probation

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on the involuntary manslaughter charge Count I of the indictment was the a n d suspended sentence on th e earlier and unrelated possession offense alluded to supra note 3.

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sentence that Irvin had received on the instant offense.” Such was the case here: involuntary manslaughter charge resulting The conduct constituting the instant from the accidental shooting that occurred offense (i.e., the felon-in-possession on June 9, 1998. The Court did so even conviction) occurred, per the indictment, though U.S.S.G. § 4A1.2(a)(1), and on June 9, 1998; sentencing for the instant Application Note 1 thereto, direct that only offense occurred on June 13, 2000; but prior sentences involving conduct that was sentencing on the state manslaughter not part of the instant offense are counted conviction occurred prior thereto, on for criminal history purposes. Irvin argues December 22, 1998. that the state manslaughter conviction Application Note 1 further explains should not have been included in his that “[c]onduct that is part of the instant criminal history calculation because it was offense means conduct that is relevant predicated on conduct that was part of the conduct to the instant offense under the instant offense. Without the inclusion of provisions of § 1B1.3 (Relevant the one point he received for the state Conduct).” Thus, if the conduct leading to manslaughter conviction, Irvin would have the manslaughter conviction would be been placed in criminal history category I.

relevant conduct under § 1B1.3, then the Instead, Irvin was sentenced within the manslaughter conviction cannot be guideline range for a criminal history counted towards Irvin’s criminal history category II offender. Correcting this error score. The government conceded this in reduces Irvin’s guidelines range from its papers filed in connection with Irvin’s sixty-three to seventy-eight months to 28 U.S.C. § 2255 hearing, see supra note fifty-seven to seventy-one months.

1, stating that “the death of defendant’s B. son could have been included as relevant conduct, see Sections 2K2.1(c)(1)(B) and The key section before us is 2A1.4(a)(1) of the Guidelines, [but] it U.S.S.G. § 4A1.2. Subsection (a) defines would not have increased the defendant’s “prior sentences” for the purposes of offense level.” App. 147a.

determining which sentences should be included in a defendant’s criminal history As we see it, the essence of both score: “The term ‘prior sentence’ means offenses was Irvin’s criminal possession of any sentence previously imposed upon the .40 caliber Smith & Wesson pistol. He adjudication of guilt . . . for conduct not was convicted of the involuntary part of the instant offense.” Application manslaughter of his son as a result of his Note 1 to § 4A1.2 elaborates that “[a] criminally negligent conduct in leaving sentence imposed after the defendant’s within reach of his son the pistol which his commencement of the instant offense, but son accidentally fired. The present offense prior to sentencing on the instant offense, involves the federal prosecution for Irvin’s is a prior sentence if it was for conduct illegal possession of that same gun. We do other than conduct that was part of the not see how one can separate the prior

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state offense from the instant offense. In reaching our decision, we noted that the conduct underlying the two There is no perfectly analogous offenses was connected in that the case. The most apposite is our decision in defendant “could not have forged a check United States v. Hallman, 23 F.3d 821 (3d until he had stolen the checks.” Id. Just as Cir. 1994). The defendant there was Hallman could not have forged the check arrested for passing a stolen check at a until he had stolen it, Irvin could not have hotel. A search of his car uncovered exercised criminally negligent control over checks and credit cards stolen from the his Smith & Wesson pistol on June 9, 1998 mail. Id. at 823. It was apparent that the unless he was in possession of it on the stolen check passed at the hotel had been same date. Following Hallman, the stolen from the mail. Id. at 826. The conduct underlying Irvin’s manslaughter defendant pled guilty to the state forgery conviction was relevant conduct for the charge based on passing the stolen check, instant offense, and thus the manslaughter and was sentenced. He later pled guilty to conviction should not have been included a federal indictment charging possession in his criminal history.

of stolen mail. At the sentencing on the federal charge, the state sentence on the The government urges, however, forgery charge was included in defendant’s that we approach the case by determining criminal history score as a prior sentence. whether the conduct of the present offense W e reversed an d remanded f o r is “severable” from that of the prior resentencing, holding that the forgery was offense, in which case the prior offense “related” to the mail fraud in that it was may be considered in the criminal history part of the same plan or scheme—thus calculation. It cites United States v. making it “relevant conduct,” and Banashefski, 928 F.2d 349, 352-53 (10th excluding it from the criminal history Cir. 1991), which concluded that it was computation.6

on the same occasion, (B) were part of a 6 We put “related” in quotation marks single common scheme or plan, or (C)

to distinguish its usage here from its were consolidated for trial or usage as a term of art in the Guidelines’ sentencing.” Id. Application Note 3. In similar, but distinct, concept of a “related Hallman, the Court explicitly stated that case.” Under U.S.S.G. § 4A1.2(a)(2) there was no Application Note 3 “related two (or more) related cases are counted cases” argument to be made because the as only one prior offense for purposes of defendant had only one prior sentence. computing an offender’s criminal history 23 F.3d at 825. Here, it is undisputed score. Unless the offenses were that Irvin’s manslaughter conviction and separated by an intervening arrest, “prior his endangering conviction were related sentences are considered related if they cases; the issue we address is their resulted from offenses that (A) occurred relationship to Irvin’s federal conviction.

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proper to include a state conviction for contrast, in count II the government did possession of a stolen car in the criminal not indict Irvin for, nor did it at any time history score for sentencing on a felon-in- adduce evidence of, Irvin’s possession of possession offense, even though the a firearm at any time other than June 9, firearm in question was found in the car at 1998. Moreover, as a legal matter, we time of the defendant’s arrest for driving have not adopted the severability test; the stolen car. The government asserts indeed in Hallman we declined to adopt it. that factors that should be considered in The government also relies on this analysis include temporal and United States v. Oser, 107 F.3d 1080 (3d geographical proximity, the identity of the Cir. 1997), for the proposition that where victims, and the applicable societal harms.

a defendant’s prior offense played no part It also relies on another Tenth Circuit case, in the determination of his sentence on the United States v. Browning, 252 F.3d 1153, instant offense, the conduct for which he 1159 (10th Cir. 2001), where the Court was previously sentenced was not applied this test and held that because the “relevant conduct” for guidelines defendant unlawfully possessed a firearm purposes, and that the prior sentence before, as well as during and in therefore need not be excluded from the conjunction with, the commission of a calculation of his criminal history state drug trafficking offense, the state category. The defendant in Oser was offense was not part of the firearm convicted of a drug conspiracy and money offense, and thus was properly considered laundering, and argued that his prior as a prior conviction.

conviction for underreporting of currency We find these cases both should not have been included in his distinguishable on their facts and at odds criminal history computation because the with our jurisprudence. The Court of conduct underlying the underreporting-of- Appeals in both Banashefski and Browning currency conviction was relevant conduct made clear that, as a factual matter, there to the drug conspiracy and money was evidence that the defendant possessed laundering. the firearm in question at a time before Irvin argues that Oser is commission of the offense that the distinguishable. In Irvin’s submission, the government sought to include in the reasoning of Oser depended on the factual defendant’s criminal history score. See determination that no connection was Browning, 252 F.3d at 1159 (“[Browning]

shown between the underreporting of admitted to getting the gun in Arizona currency and the drug conspiracy / money before he [engaged in illegal drug laundering offense. Because this activity].”); Banashefski, 928 F.2d at 352 connection was absent, the conduct (explaining that Banashefski’s felon-inunderlying the underreporting-of-currency possession offense “was complete before offense was not relevant conduct to Oser’s he approached the car [that he stole]”). In instant offense, and so the sentence for

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underreporting of currency could be have already noted in distinguishing counted as a prior sentence for purposes of Banashefski and Browning, the federal calculating Oser’s criminal history score. indictment does not so allege, nor was any In contrast, Irvin points out, his criminally proof offered to that effect, so that negligent control of the Smith & Wesson argument fails. “occurred during the commission” of his C.

illegal possession of that firearm, U.S.S.G. § 1B1.3(a)(1), and hence the state sentence In sum, Irvin’s sentence on the state on the involuntary manslaughter charge manslaughter conviction should not have was relevant conduct. We agree; the been included in his criminal history offense committed by Irvin, as charged in computation. But for this error, Irvin both the state and federal indictments, would have been sentenced as a criminal centered on the passive act of possessing a history category I offender, with a firearm on June 9, 1998. correspondingly lower guideline range. As noted above, we review for plain error. To Mo reover, the government’s establish plain error, a defendant must characterization of Oser misreads that case prove that there is “(1) ‘error,’ (2) that is and Application Note 1 to U.S.S.G. § ‘plain,’ and (3) that ‘affects substantial 4A1.2. The test is not whether a separate rights.’ If all three conditions are met, an offense “played [a] part” in determining appellate court may then exercise its the offense level (presumably in the sense discretion to notice a forfeited error, but of arithmetically altering the offense only if (4) the error ‘seriously affects the level), but rather whether the underlying fairness, integrity, or public reputation of conduct was “relevant conduct.” Even judicial proceedings.’” Johnson v. United though not all relevant conduct affects the States, 520 U.S. 461, 467 (1997) (citations ultimate offense level, Application Note 1 omitted). With respect to this final step, excludes from the criminal history we have held that we will generally computation sentences based on relevant exercise our discretion to recognize a plain conduct. In essence, the government error in the (mis)application of the argues that it should be able to elect to Sentencing Guidelines. See United States treat, at its option, certain activity either as v. Knight, 266 F.3d 203, 206 n.7 (3d Cir.

relevant conduct, or as a prior offense.

2001) (“[A] sentence resulting from a This “heads I win, tails you lose” gambit plainly erroneous misapplication of the simply has no basis in the regime of the Guidelines gives rise to at least a Sentencing Guidelines.

presumptively appropriate occasion for The government’s final argument is exercise of our discretionary power to that the federal crime differs from the state correct the error.”). crime because Irvin possessed the weapon As we have shown, there was error before June 9, 1998, but after his 1995 here. It was also plain. We have predicate felony conviction. But as we

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explained that this prong of the test “is met if the error is ‘obvious’ or ‘clear under current law.’” United States v. Vazquez, 271 F.3d 93, 100 (3d Cir. 2001) (en banc) (quoting United States v. Olano, 507 U.S. 725, 734 (1993)). Coupled with the relative clarity of the Sentencing Guidelines, our decision in Hallman is sufficiently on-point to satisfy the requirement that error be “plain.” Finally, the error affected Irvin’s substantial rights: Without the addition of the criminal history point for the manslaughter conviction, Irvin now falls in the guideline range for category I, offense level 25, which is fifty-seven to seventy-one months. Irvin received a seventy-two month sentence, and so was prejudiced by the Court’s error as his sentence exceeded the guideline range which should have been applied. See United States v. Knobloch, 131 F.3d 366, 373 (3d Cir. 1997) (plain error affected defendant’s “substantial right to suffer no greater an imposition on his liberty than the Guidelines allow” when error resulted in higher sentencing range).

Accordingly, the judgment of sentence will be vacated and the case remanded for resentencing.