U.S. v. Smith, 89-2346

• Decision Date: 06 August 1990
• Docket Number: No. 89-2346,89-2346
• Parties: UNITED STATES of America, Plaintiff-Appellant, v. David Leon SMITH, Defendant-Appellee.
• Court: U.S. Court of Appeals — Sixth Circuit

Page 326

910 F.2d 326

UNITED STATES of America, Plaintiff-Appellant, v. David Leon SMITH, Defendant-Appellee.

No. 89-2346.

United States Court of Appeals Sixth Circuit.

Argued May 11, 1990.

Decided Aug. 6, 1990.

David Debold (argued), Amy B. Hartmann, Office of the U.S. Atty., Detroit, Mich., for plaintiff-appellant.

Jill L. Price (argued), Rafael C. Villarruel, Federal Public Defenders Office, Detroit, Mich., for defendant-appellee.

Before WELLFORD and BOGGS, Circuit Judges, and DOWD ^*, District Judge.

PER CURIAM.

Plaintiff-Appellant United States of America ("the government") appeals from a sentence imposed pursuant to the Sentencing Guidelines ("the guidelines") following the conviction of defendant David Leon Smith ("Smith") for violating 26 U.S.C. Sec. 5861(d), possession of an unregistered sawed-off rifle. 18 U.S.C. Sec. 3742(b), and in particular Sec. 3742(b)(2), authorizes the United States to prosecute an appeal from a sentence imposed in a criminal case upon the claim that the district court incorrectly applied the guidelines. ¹ In this appeal, the government contends that the district court failed to determine correctly the offense level arising from the defendant's conviction for possession of an unregistered sawed-off rifle. For the following reasons, Smith's sentence is vacated and we remand this matter for a redetermination of Smith's sentence.

I.

A threshold question was presented by the absence of any showing in the record at the time of oral argument that either the Attorney General or the Solicitor General had given personal approval to the government's appeal in this case as required by 18 U.S.C. Sec. 3742(b). ² Another panel of this court has indicated in dicta that the government is required to file perhaps with its notice of appeal, a document demonstrating such personal approval. See United States v. Hays, 899 F.2d 515, 517 n. 1 (6th Cir.1990). Two unpublished decisions by panels of this court have declared that the court lacks appellate jurisdiction when no written authorization of the Solicitor General or Attorney General is filed. United States v. Bogas, No. 90-3228, slip op. at 1 (6th Cir. April 12, 1990) [899 F.2d 1222 (table) ]; United States v. Gomez, Nos. 89-1464/1465, slip op. at 4 n. 1 (6th Cir. May 2, 1990) [902 F.2d 1570 (table) ].

In United States v. Gurgiolo, 894 F.2d 56 (3rd Cir.1990), a contrary position on the issue of jurisdiction has surfaced. The Third Circuit likened failure to document the personal approval requirement to an error in the caption of the pleadings on appeal, from which "an appeal shall not be dismissed for informality of form or title of the notice of appeal." Gurgiolo, at 57 n. 1, citing Fed.R.App.P. 3(c).

The legislative history of the Comprehensive Crime Control Act of 1984 ³ demonstrates the firm belief that the provision for government appeals from guideline sentencing was imperative to reduce the specter of unwarranted sentencing disparity. S.Rep. No. 98-225, 98th Cong., 1st Sess. 151 (1983), reprinted in 1984 U.S.Code Cong. & Admin.News 3334. Although the government's right to appeal was considered essential, the government must obtain the personal approval of the Attorney General or the Solicitor General to file an appeal "in order to assure that appeals by the government would not be routinely filed for every sentence below the guidelines." S.Rep.No. 98-225, 98th Cong., 1st Sess. 154 (1983), reprinted in 1984 U.S.Code Cong. & Admin.News 3337.

Section 3742(b) does not require the personal approval of the Attorney General or Solicitor General to be in writing or that the approval be filed in the Court of Appeals. However, it is undisputed that Congress intended that such permission be obtained.

It is the view of this panel that proof of the personal approval is not of jurisdictional dimensions in the sense that a timely notice of appeal in a criminal case is jurisdictional. See Fed.R.App.P. 4; Gurgiolo, supra. However, in the absence of statutory or rule pronouncements, this court will impose by the exercise of its supervisory authority, prospectively, the requirement that written proof of the personal approval of either the Attorney General or Solicitor General be provided no later than the filing of the government's appellate brief and that the personal approval be dated no later than the day on which the notice of appeal was filed by the government.

II.

Smith entered a plea of guilty to the charge of possession of a sawed-off rifle and was sentenced to a term of sixteen months following the district court's ruling that the adjusted offense level was ten and the criminal history category was III providing a sentencing range of ten to sixteen months. ⁴

The parties agree that the base offense level as established by U.S.S.G. Sec. 2K2.2(a) is twelve. The government contends that Sec. 2K2.2(a) is not the correct guideline to be applied to Smith and that Smith's base offense level should be increased to level fifteen because Smith allegedly engaged in aggravated assault, contemporaneously with his possession of the sawed-off rifle, by striking a Dennis Scott with the rifle and then firing several shots as Scott fled from Smith. ⁵

In arguing that aggravated assault is the correct guideline offense, the government relies upon the cross reference to Sec. 2K2.2(a) found at Sec. 2K2.2(c), which provides that where the defendant used the firearm in committing another offense, the court should apply the guideline for the other offense if the resulting offense level is higher. The government contended that as the offense level for aggravated assault (U.S.S.G. Sec. 2A2.2) is fifteen, the base offense level should have been increased to fifteen rather than remaining at twelve.

The district court rejected the enhancement argument of the government with the observation that the cross reference provisions of Sec. 2K2.2 apply only to a federal offense of aggravated assault and not to a state offense of aggravated assault. We disagree.

Congress intended that the guidelines would bring honesty, uniformity and proportionality to sentencing in the federal system. To achieve the goal of proportionality, the guidelines require consideration and application of relevant conduct. U.S.S.G. Sec. 1B1.3 provides, in substance, that the base offense level, adjustments required by specific offense characteristics and any cross reference to Chapter Two shall be determined by considering:

All acts and omissions committed by ... the defendant ... that occurred during the commission of the offense.

The guidelines, as promulgated, are supplemented by commentary. U.S.S.G. Sec. 1B1.7, entitled Significance of Commentary, states in part:

The Commentary that accompanies the guideline sections may serve a number of purposes. First, it may interpret the guideline or explain how it is to be applied. Failure to follow such commentary could constitute an incorrect application of the guidelines, subjecting the sentence to possible reversal on appeal. See 18 U.S.C. Sec. 3742.

The commentary that follows Sec. 1B1.7 states:

In stating that failure to follow certain commentary "could constitute an incorrect application of the guidelines," the Commission simply means that in seeking to understand the meaning of the guidelines courts likely will look to the commentary for guidance as an indication of the intent of those who wrote them. In such instances, the courts will treat the commentary much like legislative history or other legal material that helps determine the intent of a drafter.

Against that background, we turn to an examination of the applicable guidelines within Chapter Two which deal with offense conduct as it relates to Smith's conviction and sentence.

At the time the district court sentenced Smith, U.S.S.G. Sec. 2K2.2 provided the applicable range for possession of an unregistered short-barrel rifle in violation of 26 U.S.C. Sec. 5861(d). ⁶ Section 2K2.2(a) specified a base offense level of twelve for possession of firearms in violation of the National Firearms Act. In this case, none of the specific offense characteristics is applicable, but the cross reference, Sec. 2K2.2(c) directs that if the defendant used a firearm in committing or attempting to commit another offense, the guideline for such offense is to be followed if the guideline for such other offense calls for a greater offense level. The guidelines for offense conduct include aggravated assault (Sec. 2A2.2) and impose a base offense level of fifteen, citing as statutory examples, 18 U.S.C. Secs. 111, 112, 113(b), 113(c), 113(f), 114, 115(a), 115(b)(1), 351(e) and 1751(e). The commentary for Sec. 2A2.2 defines "aggravated assault" as "a felonious assault that involved (a) a dangerous weapon with intent to do bodily harm (i.e., not merely to frighten), or (b) serious bodily injury, or (c) an intent to commit another felony."

The commentary to Sec. 2K2.1 is relevant on the issue of whether the "other offense" designation in Sec. 2K2.2(c)(1) must be a federal offense as held by the district court. The commentary also deals with the commission of firearm offenses and states in part:

The firearm statutes often are used as a device to enable the federal court to exercise jurisdiction over offenses that otherwise could be prosecuted only under state law. For example, a convicted felon may be prosecuted for possessing a firearm if he used the firearm to rob a gasoline station. Such prosecutions result in high sentences because of the true nature of the underlying conduct. The cross reference at Sec. 2K2.1(c) deals with such cases.

Although the commentary to Sec. 2K2.2 does not make specific reference to state offenses as contained in the Sec. 2K2.1 commentary, it does state that the cross reference subsection 2K2.2(c)(1) "refers to any situation in which the defendant possessed a firearm to facilitate another offense that he committed or attempted."

An aggravated assault enhancement of a...