U.S. v. Palmer

• Citation: 68 F.3d 52
• Decision Date: 27 December 1995
• Docket Number: No. 1517,D,1517
• Parties: UNITED STATES of America, Appellee, v. Scott PALMER, Defendant-Appellant. ocket 94-1501.
• Court: U.S. Court of Appeals — Second Circuit

Page 52

68 F.3d 52

UNITED STATES of America, Appellee, v. Scott PALMER, Defendant-Appellant.

No. 1517, Docket 94-1501.

United States Court of Appeals Second Circuit.

Argued May 18, 1995.

Decided Oct. 16, 1995.

As Amended on Rehearing Dec. 27, 1995.

Anthony E. Kaplan, Assistant United States Attorney for the District of Connecticut, New Haven, Connecticut (Christopher F. Droney, United States Attorney, John H. Durham, Deputy United States Attorney, New Haven, Connecticut, of counsel), for Appellee.

Richard S. Cramer, Wethersfield, Connecticut, for Defendant-Appellant.

Before: LUMBARD, ALTIMARI, and MAHONEY, Circuit Judges.

MAHONEY, Circuit Judge:

Defendant-appellant Scott Palmer appeals from the sentence imposed by a judgment entered September 15, 1994 in the United States District Court for the District of Connecticut, T.F. Gilroy Daly, Judge, after a jury found Palmer guilty of knowingly possessing a firearm and ammunition as a felon in violation of 18 U.S.C. Sec. 922(g)(1). Palmer had previously pleaded nolo contendere to a Connecticut state criminal charge of intimidation based on bigotry or bias, a class D felony, in violation of Conn.Gen.Stat. Sec. 53a-181b. ¹ Palmer contends on appeal that because his Connecticut offense did not constitute a "crime of violence" within the meaning of USSG Sec. 4B1.2(1), the 63-month sentence imposed upon him as a result of the USSG Sec. 2K2.1(a)(4)(A) enhancement for committing a "crime of violence" is unlawful.

We affirm.

Background

Palmer's conviction arises out of an investigation conducted by federal, state, and local authorities of members of the Klu Klux Klan ("KKK") and skinhead groups in Connecticut due to the rising incidence of hate crimes committed in the Wallingford, Connecticut area. In the course of this investigation, authorities arrested Palmer, allegedly the "Great Titan" of the KKK, several times for crimes directed at various minority groups. On September 5, 1993, he was arrested for the violation of Sec. 53a-181b that is at issue on this appeal. He was convicted of that crime on a plea of nolo contendere, ² and of two misdemeanors to which he pled guilty, on January 13, 1994. He was given a four-year suspended sentence, required to serve three years probation, and fined $1,200.

With respect to the Sec. 53a-181b violation, the prosecuting attorney stated at the January 13, 1994 plea proceeding that on

August fourteenth nineteen ninety-three, Officers received a report and assist was dispatched to Choices cafe located at eight North Turnpike Road in the town of Wallingford. On arrival they were informed by the complainant that this defendant along with a co-defendant had come into a parking lot close to the closing of the bar. Along with some exchanges of profanity and identifying themselves as members of the Ku Klux Klan and a Natzi [sic] group the defendant punched the complainant in the face and the back of the head and the complainant in this matter was assaulted simply because this defendant had placed him in a category based on his sexual orientation which is covered under the statute.

The court then inquired whether Palmer had "heard the [foregoing] facts that were read by the prosecutor" and agreed that he was entering his plea of nolo contendere thereto, and Palmer answered affirmatively. The court thereupon found "the exist[ence] of [a] factual basis for the plea" of nolo contendere, and accepted the plea.

Palmer's presentence report ("PSR") in this case also addressed the state court conviction at issue on this appeal. According to the PSR, on August 14, 1993, Palmer accosted a patron at the Choices Cafe in Wallingford, Connecticut, identified himself as a member of the KKK and a Nazi group, and punched that patron in the face and the back of the head. Palmer then reportedly stated that he would return the next day to "smash some [expletive deleted] heads." The PSR noted that when Palmer was interviewed by police officers later that evening, he claimed to have acted in self defense. In a sentencing memorandum submitted to the district court, Palmer conceded that he had on this occasion "made derogatory and inflammatory remarks towards some people whom he believed were homosexuals," but repeated the assertion that he had acted in self defense, and stated that in any event he had inflicted no serious injury upon anyone.

Less than one week after Palmer's conviction on January 13, 1994, a cooperating witness recorded a telephone conversation between Palmer and himself. In that conversation, Palmer indicated that he planned to retain possession of an Intertec Model TEC-9 9mm semiautomatic pistol that he owned, even though he was aware that such retention would violate conditions of the probation for his felony conviction. The cooperating witness observed the TEC-9 pistol at Palmer's house later that same day. A federal search warrant was executed on January 21, 1994, and authorities seized the TEC-9 pistol along with 9mm ammunition. Palmer was charged under 18 U.S.C. Sec. 922(g)(1) in two counts with knowingly possessing firearms and ammunition in interstate commerce as a felon. After a two-day trial, the jury returned a verdict on June 21, 1994 finding Palmer guilty under both counts of the indictment.

At sentencing on September 9, 1994, the district court found that the "Connecticut conviction for intimidation based on bigotry or bias is a crime of violence as defined in Guideline section 4B1[.]2." Therefore, Palmer's base offense level was enhanced from 12, the unenhanced level under USSG Sec. 2K2.1(a)(7), to 20 pursuant to Sec. 2K2.1(a)(4)(A), which applies if a defendant has "one prior felony conviction of ... a crime of violence." The district court further enhanced Palmer's offense level two points for obstruction of justice, and assigned Palmer to a criminal history category of III. This yielded a sentencing range of 51-63 months, and the court sentenced Palmer to 63 months incarceration, a $7,500 fine, three years of supervised release, and a $100 special assessment.

This appeal followed.

Discussion

Palmer argues that the district court incorrectly applied the Guidelines, resulting in an increase in his base offense level from 12 to 20. See USSG Secs. 2K2.1(a)(4)(A), (a)(7). We review a district court's interpretation and application of the Sentencing Guidelines de novo. See United States v. Studley, 47 F.3d 569, 573 (2d Cir.1995); United States v. Loeb, 45 F.3d 719, 722 (2d Cir.), cert. denied, --- U.S. ----, 115 S.Ct. 2017, 131 L.Ed.2d 1015 (1995).

USSG Sec. 2K2.1, comment. n. 5 cross-references from Sec. 2K2.1(a)(4)(A) to Sec. 4B1.2(1) for the definition of "crime of violence." Section 4B1.2(1) provides:

The term "crime of violence" means any offense under federal or state law punishable by imprisonment for a term exceeding one year that--

(i) has as an element the use, attempted use, or threatened use of physical force against the person of another, or

(ii) 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. ³

The Supreme Court considered a closely analogous question in Taylor v. United States, 495 U.S. 575, 110 S.Ct. 2143, 109 L.Ed.2d 607 (1990). That case involved 18 U.S.C. Sec. 924(e)(1), which provides a sentence enhancement for violation of 18 U.S.C. Sec. 922(g) by "a person who ... has three previous convictions ... for a violent felony or a serious drug offense, or both." Sec. 924(e)(1) (emphasis added). The term "violent felony" is in turn defined by Sec. 924(e)(2)(B) in terms that are substantially identical to the definition of "crime of violence" in USSG Sec. 4B1.2(1). See USSG App. C, amendment no. 268 ("The definition of crime of violence used in [Sec. 4B1.2(1) ] is derived from 18 U.S.C. Sec. 924(e)."). Thus, Taylor provides highly germane authority for the resolution of the issue presented by this appeal. See United States v. Winter, 22 F.3d 15, 18 n. 3 (1st Cir.1994) ("Given the substantial similarity between the Armed Career Criminal Act's definition of 'violent felony,' 18 U.S.C. Sec. 924(e)(2)(B), and the Sentencing Commission's definition of 'crime of violence,' U.S.S.G. Sec. 4B1.2(1), authority interpreting one phrase frequently is found to be persuasive in interpreting the other phrase.").

The precise issue presented for decision in Taylor was the meaning of the term "burglary" in Sec. 924(e)(2)(B)(ii), and the Court held that "an offense constitutes 'burglary' for purposes of a Sec. 924(e) sentence enhancement if either its statutory definition substantially corresponds to 'generic' burglary, or the charging paper and jury instructions actually required the jury to find all the elements of generic burglary in order to convict the defendant." Taylor, 495 U.S. at 602, 110 S.Ct. at 2160 (emphasis added). In reaching this conclusion, the court opted for a "formal categorical approach" to the issue, id. at 600, 110 S.Ct. at 2159, that "requires the trial court to look only to the fact of conviction and the statutory definition of the prior offense," id. at 602, 110 S.Ct. at 2160, but allows "the sentencing court to go beyond the mere fact of conviction in a narrow range of cases where a jury was actually required to find all the elements of generic burglary," id., and thus to consult "the indictment or information and jury instructions." Id. The Court emphasized the "practical difficulties and potential unfairness" of "an approach that would require the sentencing court to engage in an elaborate factfinding process regarding the defendant's prior offenses." Id. at 601, 110 S.Ct. at 2159.

In other words, if any conviction under a statute must necessarily be imposed for conduct that constitutes a "violent felony" (in the case of 18 U.S.C. Sec. 924(e)(2)(B)) or a "crime of violence" (in the case of USSG Sec. 4B1.2(1)) because of the terms of the statute, then the fact...