United States v. Wynn

191 F. App'x 393
CourtCourt of Appeals for the Sixth Circuit
DecidedJuly 31, 2006
Docket05-3563
StatusUnpublished
Cited by2 cases

This text of 191 F. App'x 393 (United States v. Wynn) is published on Counsel Stack Legal Research, covering Court of Appeals for the Sixth 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. Wynn, 191 F. App'x 393 (6th Cir. 2006).

Opinion

*394 RONALD LEE GILMAN, Circuit Judge.

Demetrius Wynn appeals his sentence after pleading guilty to being a felon in possession of a firearm, in violation of 18 U.S.C. § 922(g)(1), and to possessing an unregistered sawed-off shotgun, in violation of 26 U.S.C. § 5861(d). The district court enhanced Wynn’s advisory Sentencing Guidelines range by two levels after determining that the sawed-off shotgun was a destructive device, and it sentenced Wynn to 100 months of imprisonment. For the reasons set forth below, we AFFIRM the judgment of the district court.

I. ANALYSIS

On May 2, 2002, police officers observed Wynn discard a sawed-off shotgun during a high-speed vehicle chase. Wynn subsequently pled guilty to being a felon in possession of a firearm and to possessing an unregistered sawed-off shotgun. As part of his plea agreement, Wynn “admitted that the sawed-off shotgun was a firearm as defined in 26 U.S.C. § 5845(a)(1) and (2).” United States v. Wynn, 365 F.3d 546, 547 (6th Cir.2004), vacated on other grounds, 543 U.S. 1102, 125 S.Ct. 1026, 160 L.Ed.2d 1010 (2005). The probation officer prepared a Presentence Report (PSR), which stated that Wynn’s base offense level was 26. It also recommended a two-level enhancement, pursuant to United States Sentencing Guideline (USSG) § 2K2.1, cmt. n. 11, because the offense involved a firearm that qualified as a destructive device.

Wynn’s attorney objected at sentencing to the two-level enhancement, but the district court applied the enhancement to Wynn’s base offense level after concluding that the sawed-off shotgun qualified as a destructive device. The court then allowed a three-level downward departure for Wynn’s acceptance of responsibility. Wynn’s net offense level was therefore set at 25 and his criminal history category was determined to be V. He was sentenced to 115 months of imprisonment on each of the two counts, to be served concurrently.

Wynn appealed to this court, again arguing that the sawed-off shotgun did not qualify as a destructive device, and that the sentence enhancement was therefore not warranted. We considered the issue and found that

the only types of firearms that are not considered destructive devices for the purposes of U.S. Sentencing Guidelines § 2K2.1 are those that are used “solely for sporting, recreational, or cultural purposes,” 18 U.S.C. § 921(a)(4) and 26 U.S.C. § 5845(f)(3), or, by necessary inference, ones that have a bore of one-half inch or less in diameter. 18 U.S.C. § 921(a)(4)(B) and 26 U.S.C. § 5845(f)(2).

Wynn, 365 F.3d at 552. We therefore affirmed the district court’s judgment. Id.

Subsequently, Wynn filed a petition for a writ of certiorari to the United States Supreme Court. The Supreme Court granted certiorari, stating as follows: “The judgment is vacated and the case is remanded to the United States Court of Appeals for the Sixth Circuit, for further consideration in light of United States v. Booker....” Wynn, 125 S.Ct. at 1026. In doing so, the Supreme Court did not reach the merits of Wynn’s claim regarding the sawed-off shotgun.

We then remanded the case to the district court for resentencing pursuant to the Supreme Court’s opinion. The district court held a resentencing hearing, during which the following exchange occurred:

MR. FLEMING [DEFENSE COUNSEL]: For the sake of preservation, in light of the fact the Supreme Court didn’t address the issue, I would renew *395 our objection to the determination that a sawed-off shotgun is a destructive device. However, I understand the Sixth Circuit issued an opinion that a sawed-off shotgun would constitute a destructive device.

THE COURT: I will overrule that for the reasons before, and the law requires me to follow the Sixth Circuit’s ruling on that.

MR. FLEMING: I understand, your Honor.

The district court then stated that the base offense level was 26, that a two-level enhancement was warranted because the shotgun was a destructive device, that Wynn was entitled to a three-level downward departure for acceptance of responsibility, and that his net offense score was again 25. Further, his criminal history category was once more determined to be V. Wynn’s Guidelines range was therefore 100 to 125 months of imprisonment. The district court then considered the factors set forth in 18 U.S.C. § 3553(a) to determine what an appropriate sentence should be in Wynn’s case. Wynn was resentenced to 100 months of imprisonment, which is 15 months less than his original sentence.

He has now filed a timely appeal of his new sentence. The sole issue raised in his brief is as follows: “Did the district court impose an unreasonable sentence by improperly applying an enhancement for possession of a destructive device under USSG § 2K2.1(b)(3)?”

When reviewing sentencing decisions, a district court’s factual findings will not be set aside unless clearly erroneous, but its conclusions of law are reviewed de novo. United States v. Hazelwood, 398 F.3d 792, 795 (6th Cir.2005). The issue raised by Wynn can be broken down into two parts: (1) whether the district court improperly applied the enhancement for possession of a destructive device under USSG § 2K2.1(b)(3); and (2) whether the sentence imposed is reasonable.

As for the first part concerning whether the enhancement for possessing a destructive device was proper, we review the district court’s decision de novo because it involves the “district court’s interpretation of the Sentencing Guidelines.” United States v. Gibson, 409 F.3d 325, 338 (6th Cir.2005). Wynn argues that because the Supreme Court vacated this court’s decision in Wynn, 365 F.3d at 546, the district court improperly stated that it was required to follow our prior ruling on the destructive-device issue.

Although Wynn is correct in this assertion, the district court also stated during the sentencing rehearing that the defendant’s objection was overruled based on the reasons the district court had set forth in the original sentencing hearing.

Free access — add to your briefcase to read the full text and ask questions with AI

Related

United States v. Earnest Adams
560 F. App'x 552 (Sixth Circuit, 2014)

Cite This Page — Counsel Stack

Bluebook (online)
191 F. App'x 393, Counsel Stack Legal Research, https://law.counselstack.com/opinion/united-states-v-wynn-ca6-2006.