U.S. v. O'Flanagan

• Citation: 339 F.3d 1229
• Decision Date: 15 August 2003
• Docket Number: No. 02-8014.,02-8014.
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Thomas J. O'FLANAGAN, Defendant-Appellant.
• Court: United States Courts of Appeals. United States Court of Appeals (10th Circuit)

339 F.3d 1229

UNITED STATES of America, Plaintiff-Appellee, v. Thomas J. O'FLANAGAN, Defendant-Appellant.

No. 02-8014.

United States Court of Appeals, Tenth Circuit.

August 15, 2003.

James H. Barrett, Assistant Federal Defender, Cheyenne, WY, for the defendant-appellant.

David A. Kubichek, Assistant United States Attorney, Casper, WY (Matthew H. Mead, United States Attorney, with him on the brief), for the plaintiff-appellee.

Before KELLY, PORFILIO, and BRISCOE, Circuit Judges.

BRISCOE, Circuit Judge.

Defendant Thomas O'Flanagan appeals his sentence imposed following his pleas of guilty to burglary and aiding and abetting burglary, in violation of 18 U.S.C. §§ 13 and 2, transportation of a stolen firearm in interstate commerce and aiding and abetting transportation of a stolen firearm in interstate commerce, in violation of 18 U.S.C. §§ 922(i) and 2,¹ and interstate transportation of a stolen motor vehicle and aiding and abetting interstate transportation of a stolen motor vehicle, in violation of 18 U.S.C. §§ 2312 and 2. He contends his sentence was illegally enhanced by the district court's cross-reference from U.S.S.G. § 2K2.1(c)(1)(A) to U.S.S.G. § 2X1.1, which resulted in the improper use of § 2B3.1(a) (robbery guideline) to calculate his concurrent sentences of 120 months. O'Flanagan argues the district court should not have used the robbery guideline to calculate a higher offense level because he had not been convicted of robbery. We affirm.

I.

On or about September 4, 2001, O'Flanagan and Patrick Engelbrecht burglarized several homes in Wisconsin and took several items, including a Ruger Blackhawk.357 pistol and a Chevrolet Cavalier. They drove the Cavalier until it broke down in New Brighton, Minnesota. The men approached the home of an elderly couple, Edmund and Eleanor Stich, and asked to use their telephone. After a few unsuccessful calls, the men declined Mr. Stich's offer of assistance and left the house. Ten minutes later, they returned and again asked to use the phone. Mr. Stich invited the men into the house. As he turned toward the phone, Mr. Stich felt something in his back and heard one of the men say "keep moving." The men ordered the Stiches to lie down and then violently attacked them, rendering them both unconscious. The men took the Stiches' truck and drove it to Yellowstone National Park.

On September 7, 2001, a park ranger stopped the truck and, upon checking, learned that the truck was stolen and that the suspects were probably armed. The men attempted to flee by driving away in the truck. The ranger chased the truck into a parking area where the men escaped on foot. After a twelve-hour manhunt, the men were captured and arrested. Authorities found the stolen .357 pistol near the area where the men were captured. While evading capture, the men committed other criminal acts that are not relevant here.

II.

O'Flanagan contends on appeal that the district court erred when it applied the cross-reference to U.S.S.G. § 2X1.1 found in U.S.S.G. § 2K2.1(c)(1)(A) to calculate his offense level pursuant to the robbery guideline found in U.S.S.G. § 2B3.1. The parties agree the district court properly began its analysis with § 2K2.1, which applies to firearm offenses where the defendant has been convicted of unlawfully receiving, possessing, or transporting firearms and/or ammunition. Section 2K2.1 is separated into three subsections: subsection (a) assigns the base offense level for the firearms offense; subsection (b) lists specific offense characteristics that, if present, may increase or decrease the base offense level calculated under subsection (a); and subsection (c) is a "cross-reference" provision that provides an alternative to subsections (a) and (b) by assigning a potentially higher base offense level when the defendant uses or possesses a firearm in connection with the commission or attempted commission of another crime. See United States v. Drew, 200 F.3d 871, 877 (D.C.Cir.2000). O'Flanagan argues the district court should have applied § 2K2.1(b)(5), which provides for an increase in offense level if the defendant "used or possessed any firearm ... in connection with another felony offense," and that the court erred when it proceeded to the cross-reference provision of subsection (c).

Accepting the recommendation contained in the presentence report, the district court applied § 2K2.1(c), which provides:

(c) Cross Reference (1) If the defendant used or possessed any firearm or ammunition in connection with the commission or attempted commission of another offense, or possessed or transferred a firearm or ammunition with knowledge or intent that it would be used or possessed in connection with another offense, apply —

(A) § 2X1.1 (Attempt, Solicitation, or Conspiracy) in respect to that other offense, if the resulting offense level is greater than that determined above; or

(B) if death resulted, the most analogous offense guideline from Chapter Two, Part A, Subpart 1 (Homicide), if the resulting offense level is greater than that determined above.

U.S.S.G. § 2K2.1(c) (emphasis added). Relying upon this section, the district court next referred to § 2X1.1 which provides the base offense level is to be calculated "from the guideline for the substantive offense, plus any adjustments from such guideline for any intended offense conduct that can be established with reasonable certainty." U.S.S.G. § 2X1.1(a). Concluding that the robbery of the Stiches' home constituted a "substantive offense," the court calculated O'Flanagan's base offense level from the robbery guideline. After taking into consideration all of the relevant circumstances under § 2B3.1 and various other factors, the district court sentenced O'Flanagan to a term of imprisonment of 120 months, the statutory maximum for a violation of 18 U.S.C. § 922(i).² See 18 U.S.C. § 924(a)(2).

O'Flanagan contends the district court erred in applying §§ 2K2.1 and 2X1.1 to calculate his base offense level under § 2B3.1(a). Specifically, he argues the robbery at the Stiches' house was not a "substantive offense," as defined in the commentary to § 2X1.1, because, at the time he was sentenced, he had not yet been convicted of that crime. We review O'Flanagan's legal challenge de novo. See Drew, 200 F.3d at 878 ("The district court's interpretation of sections 2K2.1 and 2X1.1 involves a question of law that we review de novo."); see also United States v. Spencer, 178 F.3d 1365, 1367 (10th Cir.1999) (applying de novo review).

O'Flanagan concedes that his position is contrary to this circuit's precedent as well as precedent from other jurisdictions. In United States v. Willis, 925 F.2d 359 (10th Cir.1991), we interpreted § 2X1.1 to permit the sentencing court's consideration of other offense conduct even though defendant was only convicted of being a felon in possession of a firearm and possessing an unregistered firearm. In Willis, the district court applied the pre-November 1, 1989, guidelines cross-reference provision of § 2K2.2(c)(1), and applied § 2X1.1 in sentencing the defendant under the aggravated assault provision because there was evidence he had used the firearm in a drive-by shooting. On appeal, defendant argued the court had misapplied the guidelines to enhance his sentence. We agreed with the defendant that the guidelines that became effective November 1, 1989, applied since the crime, indictment, and sentencing occurred after that date. However, we concluded both versions of the guidelines required cross-reference to § 2X1.1 and through that section the sentencing court was directed to § 2A2.2 (aggravated assault). Specifically, we held:

Although the defendant was not convicted, and is not here being sentenced, for aggravated assault, § 2K2.1(c)(2) requires that he be sentenced for his firearm convictions by application of the sentence that would have been imposed for whatever underlying offense conduct he committed with the illegal firearm if that would lead to a greater sentence.

Willis, 925 F.2d at 360. Accordingly, we affirmed the district court's application of the aggravated assault guideline in light of uncontroverted evidence that the gun defendant unlawfully possessed was used to commit the aggravated assault. See id. at 361.³

Our decision in Willis is consistent with rulings from other circuits. In Drew, defendant was convicted of possessing a firearm while subject to a court order. At sentencing, the district court relied on § 2K2.1(c) which cross-referenced § 2K1.1 and directed the court to the "base offense level for attempted first degree murder." 200 F.3d at 876. On appeal, defendant argued that § 2X1.1 and the definition of "substantive offense" in Application Note 2 required that the underlying conduct result in a conviction before the sentencing court could consider the conduct in computing the base offense level. The court expressly rejected this contention and concluded the definition of "substantive offense" does not apply when § 2X1.1 is cross-referenced by § 2K2.1 and that § 2X1.1 permits the sentencing court to consider underlying conduct for which the defendant has not been convicted. Id. at 879 (citing United States v. Branch, 91 F.3d 699, 743 (5th Cir.1996), and United States v. Fleming, 8 F.3d 1264, 1266 (8th Cir.1993)).

Prior to its ruling in Fleming, the Eighth Circuit had reached the same conclusion in United States v. Smith, 997 F.2d 396 (8th Cir.1993) (per curiam), which was cited with approval in Drew, Branch, and Fleming. In Smith, defendant was convicted of being a felon in possession of a firearm. The district court took into consideration that defendant had shot and wounded a man with the firearm he was convicted of possessing and sentenced him under the applicable guideline for aggravated assault. On appeal, defendant argued the district court erred in using § 2X1.1 and the aggravated assault guideline because he had not been convicted of aggravated assault. The...