United States v. Nelson

644 F. App'x 979
CourtCourt of Appeals for the Eleventh Circuit
DecidedMarch 4, 2016
DocketNo. 15-12682
StatusPublished

This text of 644 F. App'x 979 (United States v. Nelson) is published on Counsel Stack Legal Research, covering Court of Appeals for the Eleventh 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. Nelson, 644 F. App'x 979 (11th Cir. 2016).

Opinion

PER CURIAM:

After pleading guilty, Dennis Nelson appeals his 60-month sentence for possession of a firearm by a convicted felon, in violation of 18 U.S.C. § 922(g)(1). On appeal, Nelson argues that the district court erred in imposing an upward departure, pursuant to U.S.S.G. § 5K2.2, because his offense resulted in significant physical injury. Alternatively, Nelson argues that his 60-month sentence is substantively unreasonable. After review, we conclude that the district court did not impose a § 5K2.2 departure, but rather an upward variance pursuant to 18 U.S.C. § 3553(a), and affirm Nelson’s sentence.

I. FACTUAL BACKGROUND

A. Offense Conduct

In October 2014, Nelson, a convicted felon, brought a semi-automatic pistol to a restaurant bar. Nelson removed the pistol from his waistband to show it to an acquaintance who was considering buying it. As Nelson did so, the pistol accidentally discharged, shooting a nearby bartender in the abdomen. In a post-arrest statement, Nelson admitted he had been drinking at the bar when he accidentally shot the victim.

B. Presentence Investigation Report

The presentence investigation report (“PSI”) assigned a base offense level of 14 under U.S.S.G. § 2K2.1(a)(6), and applied a two-level reduction for acceptance of responsibility, under § 3El.l(a),'for a total offense level of 12. Nelson’s criminal history category of III and offense level of 12 yielded an advisory guidelines range of 15 to 21 months’ imprisonment. The PSI noted, however, that an upward departure under § 5K2.2 might be warranted if significant injury resulted from the offense conduct. In an addendum, the PSI noted that Nelson acknowledged he suffered from alcohol addiction and needed treatment.

Nelson objected to the PSI’s suggestion that an upward departure may be appropriate, arguing that there was no legal victim of his firearm possession offense and the injury was accidental. The government filed a request for- an upward departure pursuant to § 5K2.2. The government argued that although Nelson did not intend to shoot the victim, he “knowingly created [a] risk” of harm by bringing the firearm to a bar where he was drinking and then recklessly pulling the firearm from his pants.

C.Sentencing

At the May 2015 sentencing hearing, the district court confirmed with the parties that the only outstanding issue was the government’s departure motion. The district court asked the prosecutor whether the government sought an upward departure under the Guidelines or a variance under 18 U.S.C. § 3553(a). The prosecutor responded that the motion was for a departure under U.S.S.G. § 5K2.2, but agreed with the district court that the facts about the victim’s injuries would also help the court individualize the sentence under the § 3553(a) factors.

The government called the victim to testify about the shooting and her injuries. The victim bartender testified that Nelson, who was a regular customer, was already drinking when she arrived at work. Shortly before the shooting, she served Nelson some vodka, and he appeared to be [981]*981intoxicated. The victim said that as she walked down a hallway by the bar, Nelson’s “hand went out,” she saw a flash, and heard a noise. The victim agreed that Nelson did not see her or mean to shoot her. The bullet pierced the victim’s abdomen and fractured her hip.

After she was shot, the victim was airlifted to the hospital, where she was placed in the intensive care unit for two days, stayed for a total of twenty days, and underwent several procedures. The victim developed abscesses in her hip area where the bullet had exited and lost parts of her small intestine, liver and colon. She has a seven inch scar on her stomach, and still experiences pain. Her medical bills totaled over $152,000. The victim also suffers from depression and PTSD, takes medication, and receives weekly psychological counseling to help her deal with the emotional trauma. She has been unable to return to work.

After the victim’s testimony, the district court heard argument from both parties about the propriety of a § 5K2.2 departure. The government argued that the court should depart upward to a 60-month sentence because the applicable guidelines provision did not have a specific-offense-level increase for physical injury and Nelson’s conduct was reckless and culpably negligent. Nelson argued that no § 5K2.2 departure was warranted because the shooting was accidental. Alternatively, Nelson asked the court to impose a departure equal to a four-level increase in his offense level, or within the range of 27 to 33 months.

After hearing argument, the district court said it “intend[ed] to grant the government’s motion,” but would reserve ruling on the extent of the departure. The district court stressed, however, that it was dealing with facts and circumstances that had “not been taken into consideration by the guidelines,” and that “crie[d] out for some consideration.” The district court then stated it “want[ed] to hear further” and was “going to reserve judgment.”

The district court calculated a total offense level of 12 and a criminal history category of HI, which yielded an advisory guidelines range of 15 to 21 months’ imprisonment. The parties confirmed that this was the correctly calculated range “without attaching a change based on the government’s motion for an upward departure.” Nelson personally addressed the district court, apologized, said that what happened was not intentional, and asked for leniency.

Both defense and government counsel argued extensively over the mitigating and aggravating factors. Afterward, the district court stated, “I’ve indicated that I intended to grant the government’s motion that was made within the guidelines, that is, to adjust the guidelines upward because I don’t think they adequately took into consideration a very important factor in this case and, that is a consequence of the act and tied directly to it.” Without ruling on the motion, however, the district court stated that it had considered the advisory guidelines and that it was now “obligated to turn to another statute,” and consider the 18 U.S.C. § 3553(a) factors.

The district court found credible the victim’s testimony that Nelson “was feeling the effects of the alcohol” at the time of the shooting. The district court agreed that the shooting was not an intentional act. The district court described Nelson’s case as a “stark example of the horrible consequences that can come even from an unintentional act,” but also stressed that the relevant intentional acts included Nelson’s possessing the firearm, taking the firearm into a bar, “having it with him at a time when he was consuming alcohol, [and] [982]*982the decision to display it to show it to the other person.” The district court stated that it believed Nelson had a drinking problem, which was reflected in his criminal history of driving under the influence, driving on a suspended license, and restraining orders.

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Bluebook (online)
644 F. App'x 979, Counsel Stack Legal Research, https://law.counselstack.com/opinion/united-states-v-nelson-ca11-2016.