U.S. v. Gacnik, s. 94-1126

• Decision Date: 13 March 1995
• Docket Number: 94-1135 and 94-1140,Nos. 94-1126,s. 94-1126
• Citation: 50 F.3d 848
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Blue GACNIK, Defendant-Appellant. UNITED STATES of America, Plaintiff-Appellee, v. Steven Carroll GADE, Defendant-Appellant. UNITED STATES of America, Plaintiff-Appellee, v. Antonio Estevan SANDOVAL, Defendant-Appellant
• Court: U.S. Court of Appeals — Tenth Circuit

Page 848

50 F.3d 848

UNITED STATES of America, Plaintiff-Appellee, v. Blue GACNIK, Defendant-Appellant.

UNITED STATES of America, Plaintiff-Appellee, v. Steven Carroll GADE, Defendant-Appellant.

UNITED STATES of America, Plaintiff-Appellee, v. Antonio Estevan SANDOVAL, Defendant-Appellant

Nos. 94-1126, 94-1135 and 94-1140.

United States Court of Appeals, Tenth Circuit.

March 13, 1995.

Philip W. Ogden, Colorado Springs, CO, for defendant-appellant Blue Gacnik (submitted on the briefs).

Donald G. Paulson, Paulson & Paulson, Colorado Springs, CO, for defendant-appellant Steven Carroll Gade.

Janine Yunker, Asst. Federal Public Defender (Michael G. Katz, Federal Public Defender, with her on the brief), Denver, CO, for defendant-appellant Antonio Estevan Sandoval (submitted on the briefs).

Gregory C. Graf, Asst. U.S. Atty., Denver, CO (Henry L. Solano, U.S. Atty., with him on the brief), for plaintiff-appellee.

Before KELLY and HENRY, Circuit Judges, and BURCIAGA, District Judge. ^d

PAUL KELLY, Jr., Circuit Judge.

Defendants-appellants Blue Gacnik, Steven Carroll Gade, and Antonio Estevan Sandoval appeal the district court's application of the Sentencing Guidelines after each, in accordance with Fed.R.Crim.P. 11(a)(2), entered a plea to conspiracy to manufacture explosive materials without a license, 18 U.S.C. Sec. 371. Our jurisdiction arises under 28 U.S.C. Sec. 1291 and 18 U.S.C. Sec. 3742(a). We affirm Messrs. Gade's and Sandoval's sentences, but remand Ms. Gacnik's case for resentencing.

Background

In May 1993, Mr. Gade acquired a copy of a book entitled "The Anarchist's Cookbook," which details, inter alia, how to manufacture explosives. Among the many inviting recipes contained therein appeared one for aluminum flash powder, a highly explosive material considerably more dangerous and volatile than either dynamite or plastic explosives. Necessary ingredients were ordered, and sizable batches of highly explosive aluminum flash powder were mixed and packaged for distribution. Messrs. Gade and Sandoval then sold devices containing the explosives at parties, and included juveniles among their satisfied customers.

On June 26, 1993, Pueblo police responded to a call reporting that Mr. Gade had fired shots outside his apartment during an altercation with members of a group known as "Skinheads Against Racial Prejudice" (SHARPS). Ms. Gacnik, who was dating Mr. Gade at the time, called the police. When the police arrived, they took Mr. Gade into custody. Upon returning to the station, officers received an anonymous phone call informing them that Mr. Gade was manufacturing explosive devices. With Mr. Gade's consent, the police returned to the apartment, accompanied by him, to search for explosives.

Between the time that Mr. Gade was taken into custody and the police returned to search, Mr. Sandoval and Ms. Gacnik gathered up the explosive materials in the apartment and hid them in the basement of the building behind the stairs. At the time of their actions, the two were aware only of the police investigation into the shooting incident, and not of any investigation in connection with the manufacture of the explosives. Not surprisingly, upon their arrival at Mr. Gade's, the police initially failed to find any explosive materials. When Ms. Gacnik was questioned regarding the whereabouts of these materials, she denied any knowledge, until prompted by Mr. Gade to admit their location.

Police ultimately recovered 2.2 pounds of aluminum flash powder stored in a jar, 60 explosive devices containing a total of 1.7 pounds of flash powder, and two pipe bombs from the basement.

On appeal, the Defendants challenge the sentences meted out to them as a result of these activities.

Discussion

A. Obstruction of Justice

Ms. Gacnik contends that the district court erred in assessing her a two-level upward sentence adjustment for obstruction of justice pursuant to U.S.S.G. Sec. 3C1.1 (Nov. 1994). This Sentencing Guideline provision mandates a two-level offense increase "[i]f the defendant willfully obstructed or impeded, or attempted to obstruct or impede the administration of justice during the investigation, prosecution, or sentencing of the instant offense." She raises two legal arguments. First, she contends that Sec. 3C1.1 should not be read to encompass conduct that is itself part of the crime. Next, Ms. Gacnik argues that this Guideline adjustment should not apply to obstructive conduct occurring prior to the commencement of an official investigation into the ultimate offense of conviction.

In support of her first argument, Ms. Gacnik contends that her concealment of the explosive materials was an element of the conspiracy to manufacture these materials without a license, the crime of which she was convicted. She raises this challenge for the first time on appeal. Her failure to raise this matter below severely limits the scope of our review. "Normally, failure to alert the trial court to an error precludes review of that same issue by this court." United States v. Frederick, 897 F.2d 490, 494 (10th Cir.), cert. denied, 498 U.S. 863, 111 S.Ct. 171, 112 L.Ed.2d 135 (1990). However, "[p]lain errors or defects affecting substantial rights may be noticed although they were not brought to the attention of the court." United States v. Saucedo, 950 F.2d 1508, 1511 (10th Cir.1991) (quoting Fed.R.Crim.P. 52(b)), cert. denied, --- U.S. ----, 113 S.Ct. 1343, 122 L.Ed.2d 725 (1993). Therefore, unless the district court's findings in this regard constitute plain error, we may not consider the merits of Ms. Gacnik's claim. Id.

The plain-error exception is not a tool to be routinely employed, but rather "is to be 'used sparingly, solely in those circumstances in which a miscarriage of justice would otherwise result.' " United States v. Young, 470 U.S. 1, 15, 105 S.Ct. 1038, 1046, 84 L.Ed.2d 1 (1985) (quoting United States v. Frady, 456 U.S. 152, 163 n. 14, 102 S.Ct. 1584, 1592 n. 14, 71 L.Ed.2d 816 (1982)). To invoke this exception, the district court's error must be " 'particularly egregious,' " id. (quoting Frady, 456 U.S. at 163, 102 S.Ct. at 1592) as well as " 'obvious and substantial.' " Saucedo, 950 F.2d at 1511 (quoting United States v. Jefferson, 925 F.2d 1242, 1254 (10th Cir.), cert. denied, 502 U.S. 884, 112 S.Ct. 239, 116 L.Ed.2d 194 (1991)).

We find that no such error was committed in regard to Ms. Gacnik's first legal challenge. Her claim that an act of concealment is an element of the crime of conspiracy to manufacture explosive materials without a license is incorrect. For purposes of 18 U.S.C. Sec. 371, the crime of conspiracy consists of (1) an agreement; (2) to break the law; (3) accompanied by an overt act; (4) furthering the conspiracy's object; (5) and that the defendant willfully entered the conspiracy. United States v. Hanson, 41 F.3d 580, 582 (10th Cir.1994). This crime does not encompass any element of fraud, deceit, or concealment. While the act of concealment may be taken as evidence of a conspiracy, it is not by itself an element of the crime as defined under the law. Moreover, the act of concealment is not incorporated in U.S.S.G. Sec. 2K1.3, the guideline provision applied to the offense to which Ms. Gacnik pleaded, and so there is no danger of punishing her twice for the same conduct. See United States v. Flinn, 18 F.3d 826, 829 (10th Cir.1994) ("impermissible cumulative sentencing occurs when the same conduct on the part of the defendant is used to support separate increases under separate enhancement provisions ...").

Ms. Gacnik did raise her second legal argument with the district court, that the reach of Sec. 3C1.1 does not include obstructive conduct occurring prior to the commencement of an official investigation into the offense of conviction. Given that, resolution of this question mandates an examination of the district court's interpretation and application of the Sentencing Guidelines; our review is de novo. See United States v. Hershberger, 962 F.2d 1548, 1550 (10th Cir.1992).

We find Ms. Gacnik's argument persuasive. A plain reading of U.S.S.G. Sec. 3C1.1 compels the conclusion that this provision should be read only to cover willful conduct that obstructs or attempts to obstruct "the investigation ... of the instant offense." (emphasis added).

The Sentencing Guidelines are to be interpreted as if they were a statute, meaning that we must follow the "clear, unambiguous language if there is no manifestation of contrary intent[,]" United States v. Goldbaum, 879 F.2d 811, 813 (10th Cir.1989) (citing Mistretta v. United States, 488 U.S. 361, 391, 109 S.Ct. 647, 664-65, 102 L.Ed.2d 714 (1989)), "giving the words used their ordinary meaning." Moskal v. United States, 498 U.S. 103, 108, 111 S.Ct. 461, 465, 112 L.Ed.2d 449 (1990) (internal citation and quotations omitted). To our mind, the clear language of Sec. 3C1.1 enunciates a nexus requirement that must be met to warrant an adjustment. This requirement is that the obstructive conduct, which must relate to the offense of conviction, must be undertaken during the investigation, prosecution, or sentencing. Obstructive conduct undertaken prior to an investigation, prosecution, or sentencing; prior to any indication of an impending investigation, prosecution, or sentencing; or as regards a completely unrelated offense, does not fulfill this nexus requirement. See United States v. Levy, 992 F.2d 1081, 1083 (10th Cir.1993) (finding nexus requirement between obstructive conduct and offense of conviction).

In so holding, we must respectfully disagree with the Eighth Circuit, which has read Sec. 3C1.1 in broader terms regarding the precise issue before us. In United States v. Dortch, 923 F.2d 629 (8th Cir.1991), the Eighth Circuit reasoned quite properly that the offense of conviction may not be what initially attracts police attention, but then, in our opinion, wrongly assumed that this truism had been incorporated into Sec. 3C1.1, such...