United States v. Lloyd

Opinion

Opinions of the United

2004 Decisions States Court of Appeals for the Third Circuit

3-17-2004

USA v. Lloyd Precedential or Non-Precedential: Precedential

Docket No. 03-1287

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PRECEDENTIAL MARY BETH BUCHANAN BONNIE R. SCHLUETER

UNITED STATES COURT OF KELLY R. LABBY (Argued)

APPEALS Post Office and Courthouse FOR THE THIRD CIRCUIT 700 Grant Street, Suite 400 Pittsburgh, PA 15219

___________ Counsel for Appellee

No. 03-1287 ____________ ____________________

UNITED STATES OF AMERICA OPINION OF THE COURT

____________________

v.

ALITO, Circuit Judge:

BENJAMIN J. LLOYD, Appellant Benjamin J. Lloyd appeals a ____________________ judgment of conviction and sentence. He argues that his offense level was ON APPEAL FROM THE UNITED improperly adjusted upward under STATES DISTRICT COURT U.S.S.G. § 2K2.1(b)(5) as that provision FOR THE WESTERN DISTRICT OF was interpreted in United States v.

PENNSYLVANIA Fenton, 309 F.3d 825 (3d Cir. 2002).

Because we hold that his offense level District Court Judge: Honorable Maurice was correctly determined, we affirm.

B. Cohill, Jr. (No. 02-CR-139) I.

____________________

Lloyd was alleged to be part of a Argued: October 22, 2003 drug ring headed by Armando Spataro.

On July 1, 2001, Spataro was involved in Before: ALITO, FUENTES, and a dispute with a man named Thomas ROSENN, Circuit Judges Learn, whom he accused of “hitting on”

a woman whom Spataro had been dating.

(Opinion Filed: March 17, 2004 ) Several days later, Lloyd, Spataro, and other members of the drug ring conferred MARK A. SINDLER (Argued) about how best to get even with Learn. 429 Forbes Avenue, Suite 450 Some members of the group had Pittsburgh, PA 15219 apparently started dabbling in bomb- Wilmington, DE 19801 making (with the aid of instructions Counsel for Appellant downloaded from the Internet), and it was decided that a bomb should be built

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and placed under the fuel tank of Learn’s violation of 26 U.S.C. § 5861(d), and truck. conspiracy to violate that provision, in violation of 18 U.S.C. § 371. Lloyd pled Spataro and another member of guilty to both counts.

the ring (not Lloyd) accordingly set out to purchase materials and construct the In the process of calculating bomb. On the morning of July 4, 2001, Lloyd’s sentence, the presentence report Spataro gave the completed bomb to recommended that the District Court add Lloyd and some others, with instructions four points to Lloyd’s base offense level to position the bomb as planned and to pursuant to U.S.S.G. § 2K2.1(b)(5), detonate it. Upon arriving at Learn’s which provides for such an adjustment residence, Lloyd, acting alone, placed the when it is found that a defendant “used device under the fuel tank of Learn’s car, or possessed any firearm . . . in lit the fuse (which consisted of a connection with another felony offense; cigarette), and fled the scene with his or possessed or transferred any firearm . . companions. Lloyd was later paid $100 . with knowledge, intent, or reason to for this act. believe that it would be used or possessed in connection with another Contrary to the wishes of Spataro felony offense . . . .”

and friends, the scheme did not succeed. Later that day, as Learn was about to Lloyd objected to the proposed enter the truck, his dog alerted him to the adjustment, contending that the allegedly presence of the undetonated device under felonious conduct on which the proposed the vehicle. Learn contacted the adjustment was based was essentially the authorities, who disassembled and same conduct that formed the basis for examined the bomb. The authorities the underlying counts to which he had concluded that the bomb was “capable of pled guilty. This, he argued, was exploding” and would have exploded had contrary to this Court’s decision in it not been for the “malfunction of the United States v. Fenton, 309 F.3d 825 cigarette.” (3d Cir. 2002), which held that § 2K2.1(b)(5) requires “another felony Learn informed the police that he offense,” separate and apart from the suspected that Spataro might have been base offense. Id. at 828 (emphasis behind the failed plot. Lloyd, Spataro, added). The District Court, however, and several of their companions were found that the act of placing the bomb subsequently apprehended and indicted and igniting it was sufficiently different by a grand jury sitting in the Western from the acts of conspiracy and District of Pennsylvania. Lloyd was possession so as to distinguish this case charged under two counts: possession of from Fenton. The District Court an unregistered destructive device, in accordingly applied the four-point

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adjustment prescribed under Nevertheless, while it is clear that § 2K2.1(b)(5). Lloyd now disputes that a felony conviction leading to a sentence holding on appeal. cannot be bootstrapped to enhance itself II. under § 2K2.1(b)(5), it is equally clear that the guideline was not intended to A. exclude only the technical offense of conviction from the scope of “another Section 2K2 of the Sentencing felony offense.” In this regard, it is Guidelines governs sentence instructive to note that the Supreme determinations for convictions based on Court has held that where two crimes violations of federal firearms laws. In each require proof of some element that particular, § 2K2.1(b)(5) of the the other does not, they may be Sentencing Guidelines provides for a considered effectively distinct in a four-offense-level adjustment for a variety of contexts: in determining firearms offense if the defendant used or whether there has been a violation of the possessed any firearm “in connection Fifth Amendment prohibition against with another felony offense” or “with double jeopardy, Brown v. Ohio, 432 reason to believe that it would be used or U.S. 161, 164-166 (1977); in identifying possessed in connection with another the offenses to which the Sixth felony offense.” Amendment right to counsel attaches, Texas v. Cobb, 532 U.S. 162 (2001); and The use in § 2K2.1(b)(5) of the in deciding as a matter of statutory phrase “another felony offense” — as interpretation when Congress intended to opposed to “any felony offense” — affix multiple punishments to the same represents an attempt by the drafters of conduct, Blockburger v. United States, the Sentencing Guidelines to avoid the 284 U.S. 299 (1932). Analogizing from “double counting” of certain elements of this line of cases, at least one court of criminal activity already incorporated appeals has explicitly employed the into the base offense level. For example, “Blockburger” element-based analysis in if a defendant is convicted of the crime the context of § 2K2.1(b)(5) for the of being a fugitive in possession of a purposes of determining when a crime is firearm (a felony under 18 U.S.C. “another felony offense.” United States § 922(g)(2)), it would make little sense to v. Blount, 337 F.3d 404 (4th Cir. 2003); adjust the defendant’s offense level see id. at 409 (noting that Blockburger is upward because he possessed the firearm easier to apply than any “vague iterations in connection with the very felony of his of the ‘closely related to’ or ‘inextricably conviction (that is, fugitive possession of intertwined with’ test,” citing Cobb, 532 a firearm). The word “another” avoids U.S. at 173). Although we have not just such an absurd result. heretofore applied Blockburger in connection with § 2K2.1(b)(5), we

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believe that the “distinction in time or Instrumentalities) may be conduct” test set forth in Fenton requires warranted. that a felony offense must at least satisfy Blockburger before it may be used to U.S.S.G § 2K2.1, cmt. n.18 (emphasis adjust a sentence upward under added).1 In other words, regardless of § 2K2.1(b)(5). the interpretation given to the word “another” in 2K2.1(b)(5), “firearms On the other hand, we also possession or trafficking offenses” are explained in Fenton that Application categorically removed from the set of Note 18 to U.S.S.G. § 2K2.1 (“Note 18”) crimes that may constitute “another suggests, at least with respect to a certain felony offense.” 2 category of cases, a slightly narrower understanding of the phrase “another Thus, in United States v. felony offense” — an understanding that Boumelhem, 339 F.3d 414 (6th Cir. yields a more limited scope for 2003), the Sixth Circuit held that the § 2K2.1(b)(5) than would result from a offense level of a man convicted of a strict application of Blockburger across firearms possession felony could not be the board. Note 18 explicitly elaborates adjusted under § 2K2.1(b)(5) on the basis on the meaning of “another felony of a conspiracy to violate 18 U.S.C. offense”: § 922(e) (delivery of a firearm or

As used in subsection[] 1 (b)(5) . . . “another felony Commentary to the Sentencing offense” . . . refers to Guidelines is authoritative unless it offenses other than . . . violates the Constitution or a federal firearms possession or statute or is clearly inconsistent with the trafficking offenses. text of the Guidelines. Stinson v. United However, where the States, 508 U.S. 36, 40-48 (1993). defendant used or 2 While some criminal defendants have possessed a firearm or attempted to argue that the term explosive to facilitate “trafficking offenses” should be read as another firearms or referring only to drug trafficking explosives offense (e.g., offenses, courts have uniformly rejected the defendant used or such arguments. See, e.g., United States possessed a firearm to v. Gomez-Arrellano, 5 F.3d 464, 466 protect the delivery of an (10th Cir. 1993) (“[The phrase]

unlawful shipment of ‘trafficking offenses’ as used in . . . Note explosives), an upward 18 refers only to weapons trafficking departure under § 5K2.6 offenses, and not to drug trafficking (Weapons and Dangerous offenses.”).

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ammunition to a common carrier for the term “firearms possession . . . shipment without written notice to the offense.” For example, the Eighth carrier). The defendant argued that the Circuit has held that “a firearms offense § 922(e) charge was not “another felony is necessarily an offense which contains, offense” for the purposes of as an element, the presence of a firearm.” § 2K2.1(b)(5), since the “conspiracy to English, 329 F.3d at 618. Under this ship or transport firearms and view, felony crimes of theft or burglary ammunition in foreign commerce [was] a are not considered firearms possession ‘firearms trafficking offense’ as that offenses, even if the objects taken phrase is used in [Note 18].” Id. at 427. happened to be firearms. United States The Court agreed, and the sentence was v. Kenney, 283 F.3d 934, 937-38 (8th vacated and remanded for Cir. 2002) (“[B]ecause [the defendant's] reconsideration. In order to understand burglary offense is not specifically this decision, it is important to note that, excluded from consideration [under Note while § 922(g) and § 922(e) clearly 18], it constitutes ‘another felony constitute distinct felonies under offense’ in addition to the firearms Blockburger (since each requires proof possession offense.”); see also English, of an element that the other does not), 329 F.3d at 618 (“The Kenney Court Note 18 operated nonetheless to take the read [Note 18] narrowly . . . .”). conspiracy to violate § 922(e) outside the Likewise, the felony of “possession of scope of the term “another felony stolen property,” while undoubtedly a offense.” Similarly, in United States v. possession offense, would not be a English, 329 F.3d 615 (8th Cir. 2003), firearms possession offense, and so where a defendant’s sentence for felony would fall outside the scope of Note 18. firearm possession had been enhanced English, 329 F.3d at 619 (“[T]he gist of because the defendant had sold the guns [Iowa Code § 714.1(4)] is the knowing associated with the possession offense, possession of property of a certain value, the Eighth Circuit pointed out that the whether or not that property happens to sale of firearms constituted “trafficking” be a gun.”). under Note 18, and that, accordingly, the sale could not be counted as “another By contrast, our Court and the felony offense.” Id. at 617. Sixth and Seventh Circuits have taken a broader view of what constitutes a While it is thus clear that a firearms possession offense. For “firearms possession or trafficking example, in United States v. Szakacs, offense” cannot be “another felony 212 F.3d 344 (7th Cir. 2000), the offense” under § 2K2.1(b)(5), it is Seventh Circuit, while noting that the equally clear that there is some narrow language of Note 18 was somewhat disagreement among the courts of “equivocal,” ultimately held that the fact appeals regarding the precise scope of that the burglary in that case involved the

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theft of weapons “arguably [made] the F.3d 503, 507 (“[T]he defendants in burglary a ‘possession or trafficking Sanders inevitably possessed firearms offense’ in the general sense that [Note upon completion of the burglary because 18] uses the phrase.” Szakacs, 212 F.3d the firearms were among the items taken at 350. The Szakacs court found that the during the burglary.”). phrase “possession and trafficking offenses” suggested “a level of generality We read Fenton (as well as . . . to indicate that breaking into and Sanders and Szakacs, upon which Fenton entering a building to steal weapons relied) as standing for the proposition would be one of the ‘possession and that, where a defendant is convicted for trafficking offenses’ excluded from possession of firearms resulting from a ‘another felony offense.’” Id.; see also theft of those same firearms, that theft is United States v. Scolaro, 299 F.3d 956, effectively a “firearms possession . . . 961 n.6 (8th Cir. 2002) (Bright, J., offense” under Note 18, since that crime dissenting) (criticizing Kenney’s analysis necessarily involves a taking and of Note 18, comparing Application Note carrying away of the firearms involved. 12 to § 2K2.1 and noting the relatively Accordingly, under Fenton, sentences broad, unspecific language used in Note resulting from such convictions may not 18 to describe the offenses excluded be adjusted upwards under under § 2K2.1(b)(5)). § 2K2.1(b)(5), because there does not exist “another felony offense.” 3 The Sixth Circuit and our Court have similarly found that the theft or B. burglary of firearms is effectively a firearms possession offense. See United Our reading of Fenton must also States v. Sanders, 162 F.3d 396, 399 (6th be understood as rejecting an approach Cir 1998) (“[Note 18] states that ‘another that would read too much into its felony offense’ refers to offenses other “distinction of time or conduct” than the firearms possession or requirement. In fact, the Sixth and trafficking offenses. In this case there Seventh Circuits, from which we was one offense — the burglary of the originally borrowed the “distinction of pawnshop — which resulted in Defendant’s possession of the instant firearms.”); Fenton, 309 F.3d at 827 3 Of course, Note 18 acknowledges (“[Note 18] refers to offenses other than that where firearms are used to facilitate the firearms possession offense. In this a firearms possession or trafficking case, there was no other offense. . . .

offense, the sentence may still be Fenton’s conduct was essentially stealing adjusted upwards in appropriate cases objects from the sporting goods store . . .

under § 5K2.6 (Weapons and Dangerous .”); see also United States v. King, 341 Instrumentalities).

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time or conduct” language, have both fairly summarily, finding a distinction in since implicitly disavowed any conduct despite the practical understanding of that language that contemporaneity of the possession and would so limit the scope of § 2K2.1(b)(5) the assault. Id. at 881. as to contravene the intent of the drafters of the Guidelines. See King, 341 F.3d at We agree with the common-sense 503; United States v. Purifoy, 326 F.3d outcomes of King and Purifoy, although 879 (7th Cir. 2003). For example, in not necessarily with all of the reasoning King, the defendant (King) had gotten used to arrive at those outcomes. For into a heated argument with a neighbor, example, the King court, in and the argument culminated in King’s distinguishing Sanders, emphasized the going home, obtaining a shotgun, and temporal sequence and separability of returning to the neighbor’s driveway, King’s actions: “Appellant first where he proceeded to point the gun possessed the gun (offense of conviction) threateningly at the neighbor’s face and and then used the gun (enhancement chest until the police arrived. King, 341 conduct).” King, 341 F.3d at 506 F.3d at 506. King argued that it was (emphasis in original). But King did not improper to apply § 2K2.1(b)(5) in his explain why this same analysis would not case, because the “conduct upon which just as easily have barred application of he was convicted (felon in possession) § 2K2.1(b)(5) in Sanders, as well. After was the same conduct the court used to all, it could be argued that the Sanders enhance his sentence.” Id. at 505. The defendant first broke into the pawn shop Sixth Circuit found that “[t]he incredulity with the intent to commit a felony of [King’s] argument renders it wholly (enhancement conduct) and then took unpersuasive.” Id. at 507. and possessed the gun (offense of conviction). Under Sanders, it would Similarly, in Purifoy, the seem that the mere fact that a criminal defendant (Purifoy), who had been episode may be broken down into a surprised by the sudden entry of police series of separate actions would not officers to execute a search warrant, ran necessarily be enough to create a into a bedroom, grabbed a loaded gun, “distinction in time or conduct.” and pointed it at one of the officers for 15 seconds before ultimately dropping it. With respect to Purifoy, there is Purifoy argued that the “aggravated some suggestion that the Court was assault was not ‘another crime’ for willing to find a distinction between the purposes of § 2K2.1(b)(5) because it firearm possession and the assault simply occurred simultaneously with his federal because of “the increased danger created offense of possession of a firearm by a by [the assault].” Purifoy, 326 F.3d at felon.” Purifoy, 326 F.3d at 880. The 881. While that increased danger would Seventh Circuit rejected this argument no doubt “justif[y]” an increased

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sentence as a matter of policy, id., it is crime of assault involves a sufficient clear that § 2K2.1(b)(5) does not, by its “distinction . . . in conduct” from the own terms, apply only when the “other” crime of possession so as to constitute felony poses some threshold risk of “another felony offense” for the purposes physical harm.4 of § 2K2.1(b)(5).

We believe the better (and C.

simpler) approach to cases like King and Purifoy would proceed by following the Armed with this understanding of analysis of § 2K2.1(b)(5) that we § 2K2.1(b)(5) and Fenton, we find that outlined above. First, there can be no this case quite clearly presents “another doubt that “possession of firearms by a felony offense” as that term from the felon” and “assault” are separate offenses Guidelines is to be properly understood. under Blockburger, since each crime The felony offense alleged here is that of requires proof of at least one element that criminal mischief under Pennsylvania the other does not. Second, it is clear state law.6 The government alleges that that, whatever the precise scope of the term “firearms possession and trafficking offenses” in Note 18, it cannot seriously consistent with the Note 18 analysis that be read as including the felony of assault disallows enhancement under with a firearm; otherwise, the Note 18 § 2K2.1(b)(5) for firearms possession or “exception” would effectively swallow trafficking offenses, but not for offences the § 2K2.1(b)(5) rule.5 Accordingly, the involving other uses of a firearm (such as assault).

4 Indeed, even if that were the case, it We note that the characterization would not explain why a crime like of theft or burglary of a firearm as a burglary could not meet that threshold. “firearms possession offense” without a doubt marks the extreme outer limits of 5 There are, in fact, hints of this line of that category. In this sense, the fact reasoning in the King and Purifoy cases, patterns of cases such as Sanders, both of which distinguished their Szakacs, and Fenton are practically sui predecessors (Sanders and Szakacs) by generis in terms of the inapplicability of stressing that those earlier cases involved § 2K2.1(b)(5). only possession, rather than “use,” of the

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firearms at issue. See King, 341 F.3d at The government also argues that 506 (stating that King’s use of gun went Lloyd committed reckless endangerment beyond “mere possession”); Purifoy, 326 in placing and lighting the bomb. See 18 F.3d at 881 (“[Purifoy’s] offense of Pa.C.S. § 2705. Because we find the conviction . . . involved mere possession criminal mischief theory sufficient to of the firearm.”). Such an emphasis is sustain the sentence enhancement, we

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Lloyd possessed the homemade bomb possession offense” under Note 18. The with “knowledge, intent, or reason to criminal mischief alleged here is more believe that it would be used . . . in similar to the crime of assault (as in King connection with” an explosion causing at and Purifoy) than it is to the crimes of least $1,000 damage to property burglary or theft that result in possession belonging to another. See U.S.S.G. of firearms (as in Sanders, Szakacs, and § 2K2.1(b)(5); 18 Pa. C.S.A. § 3304. Fenton). As with the firearms in King Criminal mischief is a second-degree and Purifoy, the manner in which Lloyd misdemeanor punishable by up to two used the bomb extended far beyond years of incarceration when it involves simple possession or trafficking. over $1,000 of damage, and that is Accordingly, we hold that the sufficient to constitute a “felony” under Pennsylvania second-degree Application Note 7 to § 2K2.1. See misdemeanor of criminal mischief U.S.S.G. § 2K2.1, cmt. n.7 (defining constitutes “another felony offense” “felony offense” as “any offense (federal, distinct from the felony of possession of state, or local) punishable by an unregistered destructive device. imprisonment for a term exceeding one year, whether or not a criminal charge Although we decide this appeal in was brought, or conviction obtained”); favor of the government, we decline to 18 Pa. C.S.A. § 106(b)(7) (second-degree adopt the line of reasoning set forth in its misdemeanor punishable by “term of brief, which is similar to that advanced imprisonment . . . not more than two by the Sixth Circuit in King: “At a years”); 18 Pa. C.S.A. § 3304(b). distinct point . . . Lloyd moved beyond mere possession when he took the bomb There is no question that criminal and strategically positioned it under the mischief is a crime distinct from the fuel tank of Learn’s truck and lit it. At crime of possession of unregistered that point, Lloyd committed ‘another explosives under Blockburger. The felony offense’ . . . .” Appellee Br. at 22. former requires proof of damage or While this focus on the temporal endangerment to person or property, separation of the events comprising the which is not required for the latter; the larger criminal episode has a certain latter requires proof of nonregistration of appeal, it is quite clearly not the a firearm or destructive device in the approach taken in Fenton, where the National Firearms Registration and Court declined to similarly separate for Transfer Record, which is not required analytic purposes the breaking and for the former. Moreover, criminal entering (burglary) from the taking of the mischief is clearly not a “firearm firearms (possession). Fenton binds this panel, and we believe that our approach, which relies instead on Blockburger and Note 18, is ultimately more faithful to need not reach this alternative argument.

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Fenton’s spirit. felony offense.”

III. The preponderance of the evidence in this case demonstrates that Lloyd presents one final argument Lloyd intended or had reason to believe on appeal. He alleges that, even that his actions in connection with the assuming that the government has bomb would result in at least $1,000 of properly alleged “another felony damage to Learn’s truck. Lloyd’s claim offense,” there are still “insufficient facts that the record contains “no reference to by which to find that [he] intended to the capability of [the] bomb” is plainly commit” criminal mischief. Appellee Br. incorrect. The facts disclosed in Lloyd’s at 9. The basis of this argument appears Presentence Report (which the District to be that the District Court never made Court adopted in full, see App. 20) any explicit finding that the possible or indicate that (1) Spataro and an associate expected damage to Learn’s truck would had constructed and successfully have exceeded $1,000 if the bomb had detonated a bomb prior to the properly detonated. If satisfaction of the construction of the bomb that was placed $1,000 threshold cannot be proved, under Learn’s truck, PSR ¶ 11, (2) the argues Lloyd, then the criminal mischief second bomb, like the first, contained a offense would have been of a lower number of M-80-type explosive devices grade, would not have been punishable filled with a “perchlorate explosive by at least a year of incarceration, and mixture,” PSR ¶¶ 7, 10, (3) the second hence would not constitute a felony bomb also contained “a quantity of under Application Note 7 to § 2K2.1. ammonium nitrate prills, and a number of shotgun shells,” PSR ¶ 7, and (4) “[i]n As Lloyd acknowledges, the the opinion of the laboratory expert, the government is required to prove facts device would have exploded had it been underlying a sentence enhancement only properly lit,” PSR ¶ 7. Indeed, at his by a preponderance of the evidence. change-of-plea proceedings held on United States v. Givan, 320 F.3d 452 (3d September 24, 2002, Lloyd explicitly Cir. 2003). Moreover, the text of acknowledged that the bomb was § 2K2.1(b)(5) of the Guidelines makes “capable of exploding.” App. 43. clear that a defendant need not have actually committed “another felony Nevertheless, Lloyd contends that offense” to be eligible for an if the bomb had detonated it would have enhancement thereunder; rather, it is caused little damage to the truck “by sufficient if the defendant “possessed . . . virtue of most of the heat and/or energy any firearm . . . with knowledge, intent, following paths of least resistance: to any or reason to believe that it would be used of the sides of [the] explosive device.” or possessed in connection with another App. 62. We are not readily convinced

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by this argument, especially given the placement of the bomb under the fuel tank, PSR ¶ 13, the newness of the vehicle (a 2001 Chevrolet Silverado) at the time of the failed stunt (July 4, 2001), PSR ¶ 6, and the relatively low $1,000 threshold required under the criminal mischief statute. Moreover, even assuming, arguendo, that the bomb would not have caused $1,000 of damage had it exploded, what matters for the purposes of this case is how much damage Lloyd intended to cause or believed would be caused by the bomb. Simply put, we cannot believe that Lloyd and Spataro would have chosen a bomb as their instrument of revenge had they intended to cause only minor harm to Learn’s vehicle. Nor would Lloyd have deliberately placed the bomb under the fuel tank had he not hoped that the bomb would ignite the gasoline in the tank. The obvious point of the entire scheme was to cause significant destruction; it defies reason to think that Lloyd could honestly have believed or intended that the detonation of the bomb beneath the fuel tank of Learn’s recent-model truck would result in something less than $1,000 of damage. The government satisfied its burden of proof here.

IV.

Because the District Court properly applied § 2K2.1(b)(5) in determining Lloyd’s sentence, we affirm.