United States v. Sanford

• Court: Court of Appeals for the Fifth Circuit
• Decided: October 11, 1995
• Docket: 95-10091
• Status: Unpublished

Opinion

IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT __________________

No. 95-10091 Conference Calendar __________________

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

PHILLIP DWAYNE SANFORD,

Defendant-Appellant.

- - - - - - - - - - Appeal from the United States District Court for the Northern District of Texas USDC No. 3:94CR00212 - - - - - - - - - - (October 17, 1995) Before POLITZ, Chief Judge, and REAVLEY and SMITH, Circuit Judges.

PER CURIAM:*

Phillip Sanford appeals his sentence following his

conviction of making a false statement to a firearms dealer in

connection with the acquisition of a firearm.

The district court did not err by including the short-

barreled shotgun in its calculation of Sanford's base offense

level. First, the term "instant offense" in the Sentencing

Guidelines includes relevant conduct. See United States v.

Harris, 932 F.2d 1529, 1538-39 (5th Cir. 1991), cert. denied, 502

U.S. 897 & 917 (1991), and cert. denied, 502 U.S. 1049 (1992);

* Local Rule 47.5 provides: "The publication of opinions that have no precedential value and merely decide particular cases on the basis of well-settled principles of law imposes needless expense on the public and burdens on the legal profession." Pursuant to that Rule, the court has determined that this opinion should not be published. No. 95-10091 -2-

U.S.S.G. § 1B1.3, comment. (backg'd.) Second, the relevant

guideline provides for an offense level of 22 "if the defendant

had one prior felony conviction of either a crime of violence or

a controlled substance offense, and the instant offense involved

a firearm listed in 26 U.S.C. § 5854(a)[.]" § 2K2.1(a)(3).

Sanford's shotgun satisfies the definition of a firearm in 26

U.S.C. § 5845(a).

Sanford's offense is subject to grouping under the

guidelines. § 3D1.2. Conduct that is relevant to an offense

subject to grouping includes those acts "that were part of the

same course of conduct or common scheme or plan as the offense of

conviction." § 1B1.3(a)(2).

Sanford purchased the 9mm. pistol on January 23. Police saw

several firearms at Sanford's residence on January 27 and seized

the short-barreled shotgun from the residence on January 31.

Sanford possessed the pistol and the shotgun simultaneously.

Because he was a convicted felon, Sanford was prohibited from

possessing any firearm or ammunition. 18 U.S.C.

§ 922(g)(1). Sanford's simultaneous possession of the pistol and

shotgun are sufficiently related for the possession of the

shotgun to be relevant to Sanford's conviction for making a false

statement on the BATF form.

Next, the guidelines do not prohibit double-counting "`where

a single act is relevant to two dimensions of the Guideline

analysis.'" United States v. Kings, 981 F.2d 790, 796 (5th Cir.

1993)(citation omitted), cert. denied, 113 S. Ct. 1323 (1993). A

previous conviction may be relevant to determine both a No. 95-10091 -3-

defendant's offense level and his criminal history score. Id. at

796-97. Sanford's robbery conviction was relevant to his base

offense level, which was based in part on his status as a

convicted felon. See § 2K2.1(a)(3). The conviction also was

relevant to Sanford's criminal history score. See § 4A1.1(a).

The double-counting of Sanford's robbery conviction was

permissible under the guidelines.

Additionally, "[r]eview of sentences imposed under the

guidelines is limited to a determination whether the sentence was

imposed in violation of law, as a result of an incorrect

application of the sentencing guidelines, or was outside of the

applicable guideline range and was unreasonable." United States

v. Matovsky, 935 F.2d 719, 721 (5th Cir. 1991). A district court

need not provide any reason for sentencing a defendant to a

particular point within the applicable guideline range if the

spread of that range is less than 24 months. Id. Sanford's

guideline sentencing range was 46 to 57 months, an 11-month

spread. See § 5A, Sentencing Table. Sanford's 57-month sentence

was within the applicable guideline range. The district court

need not have provided any reason for selecting that penalty.

The reason offered by the district court, Sanford's criminal

past, was not an illegal consideration or a misapplication of the

guidelines. See United States v. Webb, 950 F.2d 226, 231-32 (5th

Cir. 1991), cert. denied, 504 U.S. 961 (1992).

AFFIRMED.