USCA1 Opinion
December 18, 1992
UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT
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No. 92-1940
UNITED STATES,
Appellee,
v.
STEVEN H. SANDERS,
Defendant, Appellant.
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APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW HAMPSHIRE
[Hon. Shane Devine, U.S. District Judge]
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Before
Selya, Cyr and Boudin,
Circuit Judges.
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Ray Raimo and Raimo & Murphy on brief for appellant.
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Jeffrey R. Howard, United States Attorney, and Peter E. Papps,
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First Assistant United States Attorney, on Motion for Summary
Disposition.
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Per Curiam. Defendant, who pled guilty to (1)
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being a felon in possession of firearms, 18 U.S.C.
922(g)(1), and (2) using or carrying a firearm during and in
relation to a drug trafficking crime, 18 U.S.C. 924(c)(1),
appeals from his sentence. He contends that the conduct
underlying the second count was unfairly counted three times
in computing his sentence and that the district court
improperly departed upwards under U.S.S.G. 5K2.2 (physical
injury) upon finding that defendant had used a firearm
different from any of those listed in the indictment to shoot
his girlfriend. Finding no error, we affirm.
I
_
We first address defendant's triple counting
argument. As defendant concedes, he was properly sentenced
as an armed career offender, 18 U.S.C. 924(e), for the
felon in possession count. In these circumstances,
defendant's guilty plea to using or carrying a firearm during
and in relation to a drug trafficking crime, 18 U.S.C.
924(c)(1), had three effects on defendant's overall sentence.
First, defendant's guilty plea to the count two
offense of using or carrying firearms in connection with drug
trafficking required a minimum mandatory five-year sentence
to be added consecutively to the count 1 sentence. 18 U.S.C.
924(c)(1) ("Whoever, during and in relation to any . . .
drug trafficking crime . . . for which he may be prosecuted
in a court of the United States, uses or carries a firearm,
shall . . . be sentenced to imprisonment for five years . .
.. [T]he term of imprisonment imposed under this section
[shall not] run concurrently with any other term of
imprisonment . . .."); U.S.S.G. 2K2.4(a) (term of
imprisonment for defendant convicted under 18 U.S.C. 924(c)
is that provided by statute).
Second, the guilty plea to the count two offense
affected the base offense level for the count one felon in
possession offense, raising it from 33 to 34. The relevant
guideline follows:
4B1.4 Armed Career Criminal
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. . .
(b) The offense level for an armed career criminal
is the greatest of:
. . .
(3) (A) 34, if the defendant used or
possessed the firearm . . . in
connection with a crime of violence
or controlled substance offense . .
.
(B) 33, otherwise.
The district court chose subsection (3)(A), with a base
offense level of 34, on the ground that, the firearms listed
in counts one and two being identical, defendant's guilty
plea to using or carrying firearms in connection with drug
trafficking established that the firearms had been used or
possessed in connection with a controlled substance offense.
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Third, the count two offense raised the criminal
history category on count one (felon in possession) from IV
to VI. The relevant provision follows:
(c) The criminal history category for an armed
career criminal is the greatest of:
. . .
(2) Category VI, if the defendant used or
possessed the firearm . . . in connection
with a crime of violence or controlled
substance offense . . .
U.S.S.G. 4B1.4(c). Defendant had nine criminal history
points which, absent section 4B1.4(c), would have placed him
in criminal history category IV, rather than VI.
A
_
Turning first to the second (the selection of BOL
34 rather than 33) and the third (criminal history category)
increases, we see no impermissible double counting. The very
same guideline, U.S.S.G. 4B1.4, plainly directs both of
these increases. An armed career criminal who unlawfully
uses or carries a firearm in connection with a drug
trafficking offense will have both his base offense level
(under subsection (b)(3)(A)) and his criminal history
category (under subsection (c)(2)) augmented. This is not a
circumstance where, through cross-referencing, it might be
thought that double counting unintentionally resulted, but
rather the case of one guideline expressly directing that a
single factor -- possession of a firearm in connection with a
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controlled substance offense --be considered in two ways.
The district court correctly followed the plain language of
the guideline in selecting BOL 34 and criminal history
category VI.
B
_
Next is defendant's contention that the count two
offense conduct (using or carrying a firearm during and in
relation to drug trafficking) was unfairly counted twice in
first raising his offense level on the felon in possession
count from 33 to 34 and in then adding a minimum five-year
sentence to the felon in possession sentence.
Citing to U.S.S.G. 2K2.4, application note 2, as
well as to several cases, defendant argues that this double
counting is improper. Application note 2 to U.S.S.G. 2K2.4
applies to defendants sentenced for both an 18 U.S.C.
924(c) (using a firearm during and in relation to a crime of
violence or drug trafficking crime) offense and the offense
underlying the 924(c) offense. It directs that increases
in the base offense level for the underlying offense not be
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made for possession or use of a firearm in certain
circumstances:
Where a sentence under this section is
imposed in conjunction with a sentence
for an underlying offense, any specific
offense characteristic for the
possession, use, or discharge of a
firearm (e.g., 2B3.1(b)(2)(A)-(F)
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(Robbery)), is not to be applied in
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respect to the guideline for the
underlying offense.
U.S.S.G. 2K2.4, application note 2. The note then states
an exception to the exception, which we need not address
since we conclude application note 2 is not applicable.
This application note does not apply to defendant's
count 1 (felon in possession) offense. First, it is unclear
whether the felon in possession offense is an "underlying
offense," within the meaning of application note 2, of the
using or carrying a firearm during and in relation to a drug
trafficking offense count. Rather, it is a drug trafficking
offense which would most clearly be a relevant underlying
offense. Defendant, however, has not been sentenced for the
drug offense underlying the using or carrying of a firearm
during and in relation to a drug trafficking offense, and
hence no occasion arises to apply application note 2. (Had
defendant been separately charged with the underlying drug
offense, the application note would have directed that
defendant's use of a weapon not be considered in calculating
the offense level for the drug offense.)
Second, even if the felon in possession charge were
viewed as an offense underlying the using or carrying of a
firearm during and in relation to a drug trafficking crime
offense, the literal application of note 2 would not help
defendant. The note directs that any "specific offense
characteristic" for the underlying offense not be utilized in
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calculating the guideline range for the underlying offense.
Unlike, for example, the guidelines for aggravated assault (
2A2.2), kidnapping ( 2A4.1), or drug trafficking ( 2D1.1)
which list use or possession of a firearm as a "specific
offense characteristic" raising the offense level, the felon
in possession guidelines ( 2K2.1, 4B1.4) do not designate
possession or use of a single weapon as a "specific offense
characteristic" raising the offense level.1 Rather,
possession of a weapon is an element of the crime. And
section 4B1.4(b)(3)(A) where use is considered is not
denominated a "specific offense characteristic."
Consequently, application note 2 does not assist defendant.
Even if application note 2 can not be literally
applied to help defendant, defendant contends that the
guidelines as a whole and case law prohibit double counting.
The strongest case on which defendant relies for
his contention that unforseen or unintended double counting
occurs when use of a firearm during and in relation to a drug
trafficking offense is used both in calculating the offense
level for a felon in possession count and in adding a five-
year consecutive sentence is United States v. Bell, 716 F.
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Supp. 1207 (D. Minn. 1989). There, a defendant sentenced for
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1. Possession of three or more weapons can raise the offense
level of persons sentenced pursuant to 2K2.1(b)(1).
Defendant's offense level was not calculated pursuant to
2K2.1(b)(1), but rather under 4B1.4.
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prison escape objected to the application of U.S.S.G.
4A1.1(d), which called for a two-point addition to the
criminal history score when an offense was committed while
under any criminal justice sentence. Defendant argued that
an escape offense could only be committed while under a
criminal justice sentence, so the offender's incarcerated
status was necessarily already included in the base offense
level. Consequently, considering it again under 4A1.1(d)
was improper double counting. After reviewing various places
throughout the guidelines where provisions are made to avoid
double counting, the district court substantially agreed with
defendant, reasoning as follows:
The underlying principle is that if one
provision of the guidelines accounts for
an element of the offense or a specific
offense characteristic, another provision
designed to account for the same factor
should not apply.
All courts of appeals confronted with the situation
in Bell have disagreed with Bell and have applied the plain
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language of the guidelines. See, e.g., United States v.
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Thomas, 930 F.2d 12, 13-14 (8th Cir. 1991) (collecting
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cases). Nevertheless, there are other situations in which
courts of appeals have refused to apply the guidelines
literally when it seemed to them that a single factor had
been used twice, even though the plain language of the
guidelines called for the double enhancement. See, e.g.,
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United States v. Hudson, 972 F.2d 504 (2d Cir. 1992)
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(impermissible double counting where the use of a non-
inherently dangerous weapon (car) both made the assault an
aggravated one and resulted in a specific offense
characteristic 4 level increase for use of a dangerous
weapon); United States v. Romano, 970 F.2d 164, 167 (6th Cir.
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1992) ("if certain conduct is used to enhance a defendant's
sentence under one enhancement provision, the defendant
should not be penalized for that same conduct again under a
separate provision whether or not the Guidelines expressly
prohibit taking the same conduct into consideration under two
separate provisions"; separate enhancements for being an
organizer or manager and more than minimal planning improper
as more than minimal planning is required to qualify as an
organizer).
Other courts, however, when faced with situations
in which a single factor has been used twice under the
guidelines to compute a sentence have rejected claims of
unfair double counting and have concluded that the guidelines
should be applied as written. See, e.g., United States v.
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Ellen, 961 F.2d 462, 468 (4th Cir. 1992) (rejecting argument
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that a defendant convicted of filling wetlands without a
permit should not receive upward adjustments for ongoing
discharge and discharge without a permit even if those
factors were elements of the offense; "[b]ecause 'the
Guidelines are explicit when double counting is forbidden, .
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. . [a]n adjustment that clearly applies to the conduct of an
offense must be imposed unless the Guidelines expressly
exclude its applicability'"), cert. denied, 113 S. Ct. 217
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(1992); United States v. Williams, 954 F.2d 204 (4th Cir.
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1992) (acknowledging that the use of a metal chair to commit
an assault was counted twice -- first, in selecting the base
offense level and second in adding four levels for use of a
dangerous weapon -- but concluding that as the guidelines
have been explicit where double counting is to be avoided, an
exception should not be created where none is stated); United
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States v. Goolsby, 908 F.2d 861 (11th Cir. 1990) (even though
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enhancement factors are required elements of the crime itself
(escape from custody) court will not create an exception
where the Commission has not); United States v. Vickers, 891
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F.2d 86, 88 (5th Cir. 1989) (same).
We do not think we should fashion an exception in
this case where the Commission has not. That a defendant
might be convicted of both being a felon in possession of a
firearm and using or carrying the firearm during and in
relation to drug trafficking does not seem such an unusual
circumstance as to escape the Commission's attention. It is
not our place to rewrite the Guidelines.
II
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With the deduction of two levels for acceptance of
responsibility, defendant's offense level was 32 which, at
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criminal history category VI, called for a sentence of 210 to
262 months for the armed career criminal felon in possession
offense. The district court did not sentence defendant on
the felon in possession count within this guideline range,
but rather departed upwards under U.S.S.G. 5K2.2 to 300
months, 38 months above the maximum guideline range. The
departure was based on U.S.S.G. 5K2.2, which reads in
material part as follows:
Physical Injury (Policy Statement)
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If significant physical injury resulted,
the court may increase the sentence above
the authorized guideline range. The
extent of the increase ordinarily should
depend on the extent of the injury, the
degree to which it may prove permanent,
and the extent to which the injury was
intended or knowingly risked. When the
victim suffers a major, permanent
disability and when such injury was
intentionally inflicted, a substantial
departure may be appropriate. . . .
Defendant challenges this departure. We turn to the evidence
of physical injury.
Defendant's girlfriend was shot in the head early
on October 19, 1991 in her apartment. After residents of the
victim's building implicated defendant in the shooting,
defendant's apartment was searched pursuant to a warrant.
Uncovered in a closet were the three firearms (a Beretta .22
caliber pistol, a Raven Arms .25 caliber pistol, a Marlin .22
caliber rifle) which underlay both counts of the indictment.
There is no evidence that any of those firearms were used in
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the shooting. The bullet remains lodged beyond the victim's
left eye, and the only evidence concerning the assault weapon
was a doctor's opinion that it was an approximately .30
caliber one.
There was uncontradicted evidence that the victim
is in a permanent vegetative state as a result of the
shooting. After hearing eighteen witnesses at the sentencing
hearing, the court found "by a preponderance of the evidence
that defendant shot [victim] and that the shooting was not an
accident. . . . "
Defendant does not argue that the court's finding
that defendant intentionally shot the victim is clearly
erroneous. Nor would there be any basis for such an argument
as the evidence in support of the court's findings was ample.
Rather, defendant contends that his sentence can not properly
be enhanced on the basis of uncharged conduct taking place at
a different location (the girlfriend's apartment) from the
circumstances (possession of three guns in a closet at
defendnt's apartment) underlying the felon in possession
count.
Defendant argues that because he was not indicted
for possession of the weapon used to shoot the victim, that
shooting is an unrelated, separate, uncharged offense which
can not properly be considered as a basis for an upward
departure. We disagree.
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Even if the weapon which wounded defendant's
girlfriend was not one of those listed in the indictment,
defendant's possession of it was relevant conduct, under
U.S.S.G. 1B1.3(2), to the felon in possession charge.
Section 1B1.3(2) directs a defendant's offense level to be
determined as follows:
(2) solely with respect to offenses of a
character for which 3D1.2(d) would
require grouping of multiple counts, all
such acts and omissions that were part of
the same course of conduct or common
scheme or plan as the offense of
conviction . . .
This section is applicable since felon in possession charges
are subject to grouping under Section 3D1.2(d).
Consequently, so long as defendant's possession of the
firearm used on his girlfriend was part of the "same course
of conduct" as the possession of the three firearms listed in
the indictment, it is relevant conduct properly considered in
setting defendant's sentence.
"The 'same course of conduct' concept . . . looks
to whether the defendant repeats the same type of criminal
activity over time. It does not require that acts be
'connected together' by common participants or by an overall
scheme." United States v. Perdomo, 927 F.2d 111, 115 (2d
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Cir. 1991). Here, defendant did repeat the same type of
criminal activity -- he illegally possessed three or four
separate firearms when victim was shot. We have no
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difficulty viewing the illegal possession of the four weapons
as all part of the same course of conduct.
The next question is whether uncharged conduct
(here, illegal possession of, arguably, a fourth firearm used
to shoot victim) which constitutes relevant conduct under
U.S.S.G. 1B1.3 may properly be considered as a basis for an
upwards departure.
It is true that the relevant conduct guideline
specifically says that relevant conduct is to be used in
determining the base offense level and adjustments (in
chapter 3) to base offense level; it does not expressly
direct whether relevant conduct may be a basis for an upward
departure. U.S.S.G. 1B1.3. Nevertheless, we and other
courts have approved upward departures based on relevant
uncharged conduct. See, e.g., United States v. Figaro, 935
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F.2d 4 (1st Cir. 1991) (upward departure based in part on
circumstance that defendant, charged with illegal entry, had
been attempting to smuggle aliens at the time of the illegal
entry, a separate and more serious -- but uncharged --
crime). United States v. Kim, 896 F.2d 678, 684 (2d Cir.
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1990) ("We conclude that, with respect to acts of misconduct
not resulting in conviction, the Commission intended to
preclude departures for acts bearing no relationship to the
offense of conviction, but to permit departure for acts that
relate in some way to the offense of conviction, even though
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not technically covered by the definition of relevant
conduct."); United States v. Shields, 939 F.2d 780, 782 (9th
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Cir. 1991) (departure based on relevant conduct not part of
counts of conviction). The principles of these cases amply
cover and support a departure here on the basis of uncharged,
relevant conduct.
Defendant argues that sentencing him on the basis,
in part, of an uncharged shooting is unconstitutional. He
contends he is being punished for the shooting without a jury
having determined beyond a reasonable doubt that he shot
victim or the other procedural protections which would apply
had defendant been indicted and tried for the shooting. We
have rejected similar arguments and adhere to that position.
United States v. Wright, 873 F.2d 437, 441-42 (1st Cir. 1989)
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(government need not prove facts used in sentencing beyond a
reasonable doubt). See also United States v. Galloway, 976
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F.2d 414 (8th Cir. 1992) (sentencing by considering relevant,
uncharged conduct under U.S.S.G. 1B1.3(a)(2) does not
violate the constitutional rights to indictment, jury trial,
and proof beyond a reasonable doubt); McMillan v.
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Pennsylvania, 477 U.S. 79 (1986) (factors used to raise a
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minimum sentence below the statutory maximum need not be
proved beyond a reasonable doubt; preponderance standard
satisfies due process and right to jury trial is not
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implicated).2 Defendant has not received a sentence beyond
the statutory maximum.
Last, defendant asserts, without much elaboration,
that the degree of departure was unreasonable. The court
departed thirty-eight months above the top of the guideline
range. The policy statement expressly advised that a
"substantial" departure may be warranted for an intentionally
inflicted major, permanent disability. Here, the victim is
in a permanent vegetative state. A worse disability is
difficult to imagine. A thirty-eight month departure for
intentionally causing such a grievous injury is not
unreasonable.
The government's motion for summary disposition is
granted and the judgment is affirmed.
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2. We note further that there is no possibility that
defendant will be unfairly punished twice for shooting the
girlfriend. As acknowledged in the plea agreement, the
Attorney General of New Hampshire agreed that defendant's
federal guilty plea would "satisfy any state criminal
liability in regard to the defendant's involvement in the
shooting of [victim]. . . . "
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