United States v. Johnny Arnold Halliburton (95-5648) and Nancy Jane Welborn (95-5649)

73 F.3d 110, 1996 U.S. App. LEXIS 467, 1996 WL 14279

• Court: Court of Appeals for the Sixth Circuit
• Decided: January 17, 1996
• Docket: 95-5648, 95-5649
• Status: Published

Opinions

NELSON, J., delivered the opinion of the court, in which McKAY, J., joined. RYAN, J. (pp. 114-117), delivered a separate. dissenting opinion.

DAVID A. NELSON, Circuit Judge.

On November 30, 1993, Congress adopted legislation making it a federal crime to steal a firearm from a licensed firearms dealer. See 18 U.S.C. § 922(u), enacted by Pub.L. No. 103-159, § 302(c). About a year after the law was passed the defendants pleaded guilty to having committed such a crime. They were sentenced in April of 1995 under the most recent edition of the United States Sentencing Commission’s Guidelines Manual, an edition issued on November 1, 1994.

The Sentencing Commission had not cited the new statute in either the Statutory Index set forth as Appendix A of the manual or in any of the lists of statutory provisions set forth under individual offense guidelines in Chapter Two of the manual. Noting the omission of any such citation, and after searching Chapter Two for the “most analogous” guideline, the district court decided to apply U.S.S.G. § 2K2.1 — the guideline that covers, among other things, “Unlawful Receipt, Possession, or Transportation of Firearms or Ammunition.” Sentences of imprisonment were imposed on that basis.

The defendants contend here, as they did before the district court, that the applicable guideline is not 2K2.1 but 2B1.1. The latter guideline specifically addresses, among other things, “Larceny ... and Other Forms of Theft,” and it specifically mandates an offense level increase for taking a firearm.

We agree with the defendants that the guideline currently applicable to the offense of which they were convicted is 2B1.1.¹ We shall therefore vacate the sentences and remand the cases for resentencing.

I

The statute under which defendants were convicted, 18 U.S.C. § 922(u), proscribes the theft from a licensed firearm dealer of a firearm that has been shipped in commerce:

“It shall be unlawful for a person to steal or unlawfully take or carry away from the person or the premises of a person who is licensed to engage in the business of importing, manufacturing, or dealing in firearms, any firearm in the licensee’s business inventory that has been shipped or transported in interstate or foreign commerce.”

In November of 1994 the defendants, Johnny Arnold Halliburton and Nancy Jane Welborn, were indicted under this statute with a third person, Nathan D. Farmer. The indictment charged that Mr. Farmer, aided and abetted by Mr. Halliburton and Ms. Wel-born, stole seven handguns from the premises of Homestead Hardware, a store that held a firearms dealer’s license issued by the Bureau of Alcohol, Tobacco and Firearms.

Mr. Halliburton and Ms. Welborn subsequently pleaded guilty to the single count of the indictment. The pleas were entered pursuant to unwritten plea agreements in which the government stipulated that it would not oppose sentences at the lowest end of the appropriate guideline range. It was agreed that the range would be calculated on the basis of a reduction in the offense level by reason of the defendants’ acceptance of responsibility. See U.S.S.G. § 3E1.1. The plea agreements did not, however, address the issue of which Chapter Two guideline would be used.

A probation officer prepared presentence investigation reports that recommended using U.S.S.G. § 2K2.1. Under this reeom-mendation, the defendants’ final adjusted offense level would be 12. The defendants objected that the probation officer should have used U.S.S.G. § 2B1.1. Under that guideline, the final offense level (adjusted downward to reflect acceptance of responsibility and adjusted upward to reflect the magnitude of the loss and the fact that a firearm was taken) would be 6.

The district court ruled at the time of sentencing that “guideline 2K2.1 is the most analogous guideline in this situation.” In calculating the defendants’ guideline sentence range, therefore, the court used an adjusted offense level of 12. Mr. Halliburton was placed in Criminal History Category III, while Ms. Welborn was placed in Criminal History Category I. Under the manual’s sentencing table these coordinates produced guideline ranges of imprisonment for 15-21 months in Mr. Halliburton’s case and 10-16 months in Ms. Welborn’s case. The ranges would have been 2-8 months for Mr. Halliburton and 0-6 months for Ms. Welborn if the lower offense levels had been used.

The court sentenced Mr. Halliburton to imprisonment for 15 months, to be followed by a three-year term of supervised release. Ms. Welborn was sentenced to imprisonment for five months, to be followed by a term of supervised release of which the first five months would be in home detention. The defendants perfected timely appeals of their sentences.

II

The first of the application instructions in the manual, § lBl.l(a), directs the sentencing court to “[djetermine the applicable offense guideline section from Chapter Two.” The instruction goes on to note that “[t]he Statutory Index (Appendix A) provides a listing to assist in this determination.”

The index in Appendix A lists several hundred statutory offenses and provides a reference to one or more of the offense guideline sections in Chapter Two for each of the listed crimes. As mentioned above, the index does not yet list the statutory provision with which we are concerned here, 18 U.S.C. § 922(u). But as the Court of Appeals for the Ninth Circuit observed in United States v. Cambra, 933 F.2d 752, 755 (9th Cir.1991), the Statutory Index in Appendix A is only “an interpretive aid.”

“Rather than establishing immutably the exclusive list of available guidelines for given offenses, the Index merely points the court in the right direction. Its suggestions are advisory; what ultimately controls is the ‘most applicable guideline.’” Id. (Emphasis supplied).

“For those offenses not listed in this index,” the introduction to Appendix A says, “the most analogous guideline is to be applied.” The reader is referred in this connection to U.S.S.G. § 2X5.1, a catch-all offense guideline at the end of Chapter Two.

Section 2X5.1, a guideline for offenses as to which no other guideline has been expressly promulgated, directs the court to apply “the most analogous offense guideline,” assuming that “a sufficiently analogous guideline” exists. There is no need to resort to § 2X5.1 (or to the Statutory Index, for that matter) where the court is satisfied that one of the other guidelines in Chapter Two expressly applies to the offense of which a particular defendant has been convicted.

And applicability admits of degree, in the world created by the Sentencing Commission. U.S.S.G. § 1B1.2 — a section to which a cross-reference is provided in § lBl.l(a)— directs the court to determine the offense guideline section in Chapter Two that is “most applicable” to the offense of which the defendant was convicted. Application Note 1 in the Commentary accompanying § 1B1.2 reiterates that as a general rule, at least, “the court is to use the guideline section from Chapter Two most applicable to the offense of conviction.” (Emphasis supplied.)

U.S.S.G. § 2K2.1, the offense guideline section used by the district court in the case at bar, is not directly applicable to the offense of which Mr. Halliburton and Ms. Welborn were convicted. Section 2K2.1 deals with the “Unlawful Receipt, Possession, or Transportation of Firearms,” and with certain “Prohibited Transactions Involving Firearms.” The statutory provisions cited in the Commentary to § 2K2.1 indicate that the “Prohibited Transactions” in question involve such crimes as engaging in a firearms business without having paid the special occupation tax prescribed by 26 U.S.C. § 5801. See 26 U.S.C. 5861(a). A crime of theft is simply not among the crimes to which U.S.S.G. § 2K2.1, by its terms, applies.

Section 2B1.1, on the other hand, specifically applies to larceny and other forms of theft. Establishing a base offense level that is to be increased in accordance with the dollar amount of the loss, this guideline goes on to mandate a further increase in the offense level if “a firearm, destructive device, or controlled substance was taken.” (Emphasis supplied.) In our view, therefore, 2B1.1 is the guideline “most applicable” here.

Like 2K2.1, 2B1.1 expressly addresses crimes involving firearms. Unlike 2K2.1, however, 2B1.1 also addresses, expressly, the type of crime committed by the defendants here — the crime of theft.² This circumstance, in our view, makes 2B1.1 more clearly applicable here than 2K2.1.

The crime committed by Mr. Halliburton and Ms. Welbom is closely analogous to some of the crimes to which § 2B1.1 unquestionably applies. Among the statutory provisions listed in the Commentary to § 2B1.1, for example, is 18 U.S.C. § 641. That statute makes it a federal offense to steal property from the United States. If the defendants in this case had stolen seven handguns from the Bureau of Alcohol, Tobacco and Firearms and had been prosecuted and convicted under 18 U.S.C. § 641, it is clear that their offense levels would have been governed by U.S.S.G. § 2B1.1. It makes little sense to us that a harsher guideline, 2K2.1, should be applied where the handguns were stolen from a hardware store that was not an instrumentality of the United States, but was merely licensed by ATF. And, again, the defendants admittedly having committed a theft, it makes little sense to apply a guideline that does not deal with theft in preference to a guideline that does deal with theft.

The government argues that Congress was concerned with the integrity of the federal firearm licensing system, rather than with theft generally, when it passed 18 U.S.C. § 922(u). And the government notes that the next edition of the Guidelines Manual, scheduled to take effect on November 1, 1995, will apply § 2K2.1 to the theft of a firearm if the resulting offense level would be higher than that under § 2B1.1. See 60 Fed.Reg. 25074, 25075, 25089 (May 10, 1995). It is not suggested that this is the type of “clarifying” amendment that can appropriately be given retroactive effect; the suggestion, rather, is that the amendment provides anecdotal support for the proposition that guideline 2K2.1 was the appropriate guideline to apply here.

We think that the amendment provides at least as much support for the proposition that the offense guideline currently applicable to the theft of firearms is 2B1.1. The commentary to the proposed amendment notes that “[t]his amendment addresses an inconsistency in guideline penalties between theft offenses involving the taking of firearms ... that are sentenced under § 2B1.1,” on the one hand, and offenses sentenced under § 2K2.1, inter al., on the other hand. 60 Fed.Reg. at 25075. The amendment appears to be designed to make a substantive change in the current guidelines.

As to the argument that 18 U.S.C. § 922(u) was not so much concerned with theft, per se, as with protection of the system under which the firearms trade is regulated, we would simply point out that there cannot be a violation of § 922(u) unless a person “steal[s] or unlawfully take[s] or carries] away” a firearm. The indictment charged that the defendants “did steal, unlawfully take, and carry away from the premises of Homestead Hardware seven firearms.” The operative verbs of this charge correspond directly to the type of offense conduct covered by guideline 2B1.1. The offense level enhancement mandated by 2Bl.l(b)(2) applies where “a firearm ... was taken.” Firearms were taken by the defendants here, which is why the defendants were convicted; they were not convicted for unlawfully receiving or possessing or transporting firearms, which would have been the type of offense conduct covered by guideline 2K2.1.

The sentences are VACATED, and the cases are REMANDED for resentencing in a manner not inconsistent with this opinion.

1 . This opinion was prepared and circulated to the panel prior to November 1, 1995. In May of 1995, as noted infra, the Sentencing Commission proposed an amendment to the Guidelines Manual which, under circumstances such as those presented here, would make U.S.S.G. § 2K2.1 applicable to the offense of which the defendants were convicted. See 60 Fed.Reg. 25074, 25075, 25089 (May 10, 1995). The amendment became effective on November 1, 1995. What effect the amendment may have on the case at bar is an issue on which the panel is divided, for reasons explained herein and in the dissenting opinion.

2 . Section 2B1.1 does not refer to interstate commerce or theft from a federally licensed dealer, to be sure, but "a guideline need not address every aspect of charged conduct." United States v. Lambert, 994 F.2d 1088, 1092 n.3 (4th Cir.1993). Section 2K2.1 does not address these aspects either, of course.

What § 2B1.1 does address, clearly and explicitly, is the stealing of firearms. That made the guidelines "applicable" in a way that § 2K2.1 is not. The present case differs in this respect from United States v. Smertneck, 954 F.2d 264 (5th Cir.1992), cert. denied, 506 U.S. 833, 113 S.Ct. 101, 121 L.Ed.2d 61 (1992), a case cited in the dissent. In Smertneck there was no guideline section that could properly be said to be "applicable." Here there is.

The dissent suggests that the distinction between guideline sections that are directly applicable and guideline sections that are merely analogous is "abstract.” We agree. The Sentencing Commission having drawn the distinction, however, we must do our best to make sense of it.