United States v. Timothy Eugene Kelly

545 F. App'x 951
CourtCourt of Appeals for the Eleventh Circuit
DecidedDecember 3, 2013
Docket10-11395
StatusUnpublished

This text of 545 F. App'x 951 (United States v. Timothy Eugene Kelly) 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. Timothy Eugene Kelly, 545 F. App'x 951 (11th Cir. 2013).

Opinion

PER CURIAM:

Timothy Kelly appeals his 240-month sentence, imposed below the advisory guideline range, after pleading guilty to one count of being a felon in possession of a destructive device (pipe bomb), in violation of 18 U.S.C. §§ 922(g)(1) and 924(e). On appeal, Kelly argues that the district court incorrectly sentenced him as a career offender because his conviction was not a crime of violence. Specifically, he argues that (1) mere possession of a pipe bomb is not a crime of violence under the Sentencing Guidelines, and (2) the government did not sufficiently prove that the pipe bomb in this case was a “destructive device.” After careful review, we affirm.

I.

We review de novo whether a conviction qualifies as “crime of violence” under the Sentencing Guidelines. United States v. Hall, 714 F.3d 1270, 1271 (11th Cir.2013). Where a defendant raises a sentencing error for the first time on appeal, we review for plain error. United States v. Aguillard, 217 F.3d 1319, 1320 (11th Cir.2000). “To demonstrate plain error, [the defendant] has the burden of establishing that (1) there is an error; (2) that is plain or obvious; (3) affecting his substantial rights in that it was prejudicial and not harmless; and (4) that seriously affects the fairness, integrity, or public reputation of the judicial proceedings.” United States v. Beckles, 565 F.3d 832, 842 (11th Cir.2009) (internal quotation marks and brackets omitted).

“The burden of proof for establishing that a sentence enhancement is warranted lies with the prosecution and it is the duty of the district court to insure that the prosecution carries its burden of proof.” United States v. Hernandez, 145 F.3d 1433, 1440 (11th Cir.1998). The district court may base factual findings for purposes of sentencing on undisputed statements in the presentence investigation report (“PSI”). Beckles, 565 F.3d at 843. The facts in a PSI are undisputed and deemed admitted unless a party objects to them before the sentencing court “with specificity and clarity.” Id. at 844 (internal quotation marks omitted). A failure to object admits facts in the PSI for sentencing purposes and “ ‘precludes the argument that there was error in them.’ ” Id. (citation omitted). Additionally, “ ‘[a] plea of guilty knowingly and understandingly made is an admission of all facts alleged in the indictment.’ ” United States v. Covington, 565 F.3d 1336, 1345 (11th Cir.2009) (citation omitted).

The career offender guideline provides that

A defendant is a career offender if (1) the defendant was at least eighteen years old at the time the defendant committed the instant offense of conviction; (2) the instant offense of conviction is a felony that is either a crime of violence or a controlled substance offense; and *953 (3) the defendant has at least two prior felony convictions of either a crime of violence or a controlled substance offense.

U.S.S.G. § 4Bl.l(a). “Crime of violence” is then defined as

any offense under federal or state law, punishable by imprisonment for a term exceeding one year, that—
(1) has as an element the use, attempted use, or threatened use of physical force against the person of another, or
(2) is burglary of a dwelling, arson, or extortion, involves use of explosives, or otherwise involves conduct that presents a serious potential risk of physical injury to another.

Id. § 4B1.2(a). The commentary to § 4B1.2 explains that “crime of violence” does not include the offense of unlawful possession of a firearm by a felon, except that “[ujnlawfully possessing a firearm described in 26 U.S.C. § 5845(a) (e.g., a sawed-off shotgun or sawed-off rifle, silencer, bomb, or machine gun) is a ‘crime of violence.’ ” Id. § 4B1.2, comment, (n.l).

The Supreme Court has made clear that “commentary in the Guidelines Manual that interprets or explains a guideline is authoritative unless it violates the Constitution or a federal statute, or is inconsistent with, or a plainly erroneous reading of, that guideline.” Stinson v. United States, 508 U.S. 36, 38, 113 S.Ct. 1913, 1915, 123 L.Ed.2d 598 (1993). Accordingly, where there is an “explicit statement” in the guideline commentary, absent one of the limited exceptions discussed in Stin-son, we are bound by that statement. See Hall, 714 F.3d at 1274. We have determined that the § 4B1.2 commentary note discussed above does not violate the Constitution or a federal statute, and is not inconsistent with, or a plainly erroneous reading of, the guideline text. Id.

Section 922(g)(1) of Title 18 of the U.S.Code makes it a crime for a felon to possess a firearm. 18 U.S.C. § 922(g)(1) (2006). Included within the definition of firearm is “any destructive device.” Id. § 921(a)(3). The definition of “destructive device” includes “any explosive, incendiary, or poison gas ... bomb ... not including] any device which is neither designed nor redesigned for use as a weapon.” Id. § 921(a)(4). Section 5845(a) of Title 26 defines, among other terms, “firearm” for purposes of the registration requirements of the Internal Revenue Code. 26 U.S.C. § 5845(a) (2006). The definition of “firearm” in 26 U.S.C. § 5845(a) includes “a destructive device,” which is defined under 26 U.S.C. § 5845(f) identically to the definition of “destructive device” in 18 U.S.C. § 921(a)(4). Compare 18 U.S.C. § 921(a)(3)-(4), with 26 U.S.C. § 5845(a), (f) (2006).

In United States v. Hammond, we explained that for an explosive device to qualify as a “destructive device” under 26 U.S.C. §

Related

United States v. Hernandez
145 F.3d 1433 (Eleventh Circuit, 1998)
United States v. Jennifer Aguillard
217 F.3d 1319 (Eleventh Circuit, 2000)
United States v. Alan S. Hammond
371 F.3d 776 (Eleventh Circuit, 2004)
United States v. Covington
565 F.3d 1336 (Eleventh Circuit, 2009)
United States v. Beckles
565 F.3d 832 (Eleventh Circuit, 2009)
United States v. Tagg
572 F.3d 1320 (Eleventh Circuit, 2009)
Stinson v. United States
508 U.S. 36 (Supreme Court, 1993)
United States v. Derrick Dajuan Hall
714 F.3d 1270 (Eleventh Circuit, 2013)

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545 F. App'x 951, Counsel Stack Legal Research, https://law.counselstack.com/opinion/united-states-v-timothy-eugene-kelly-ca11-2013.