U.S. Emerson
| Citation | 432 F.Supp.2d 128 |
| Decision Date | 11 May 2006 |
| Docket Number | No. CR-06-1-B-W.,CR-06-1-B-W. |
| Parties | UNITED STATES of America v. Joshua L. EMERSON. |
| Court | U.S. District Court — District of Maine |
James M. Moore, Office of the U.S. Attorney, Bangor, ME, for United States of America.
David W. Bate, Law Office of David W. Bate, Bangor, ME, for Joshua L. Emerson.
SENTENCING ORDER
Having pleaded guilty to possession of stolen firearms and the manufacture of a sawed-off shotgun, Defendant Joshua L. Emerson challenges the Probation Office's calculation of his offense level under the federal Sentencing Guidelines. This Court concludes he is subject to a base offense level of eighteen under § 2K2.1(a)(5), because his juvenile conviction is not countable under § 2K2.1(a)(3) or (4), a two-level "destructive device" enhancement under § 2K2.1(b)(3)(B) because a short-barreled shotgun is a destructive device, and a four-level enhancement under § 2K2.1(b)(5) because he used a firearm in connection with another felony offense by cutting the barrel of a shotgun he had earlier stolen.
On January 6, 2006, Defendant Joshua L. Emerson pleaded guilty to two counts of possession of stolen firearms in violation of 18 U.S.C. § 922(j) and one count of manufacturing an illegal firearm in violation 26 U.S.C. §§ 5822 and 5861(f). In its Presentence Investigation Report (PSR), the Probation Office (Probation) identified a prior juvenile conviction for Mr. Emerson. On April 10, 2001, when he was 17, the Bangor Juvenile Court adjudicated Mr. Emerson as having committed a juvenile crime, which if charged as an adult would have been Robbery, Class A. PSR ¶ 25. The Juvenile Court committed him to the Maine Youth Center until his 19th birthday. Id. Concluding that the juvenile conviction should count as a "felony conviction of ... a crime of violence," Probation recommended a base offense level of twenty-two under U.S.S.G. § 2K2.1(a)(3). PSR ¶ 13.
Probation also recommended upward adjustments to Mr. Emerson's offense level including: (1) a two-level adjustment pursuant to U.S.S.G. § 2K2.1(b)(3)(B) because the illegal firearm (a sawed-off shotgun) constitutes a "destructive device" within the meaning of 26 U.S.C. § 5845(0(2); and, (2) a four-level adjustment pursuant to U.S.S.G. § 2K2.1(b)(5) because Mr. Emerson "possessed [a] Sears and Roebuck 12-Gauge ... as it was made into an illegal... firearm." PSR ¶¶ 15-16.
Mr. Emerson objects. He contends that § 2K2.1(a)(3) is inapplicable because his April 10, 2001 juvenile adjudication does not constitute a "felony conviction" of a crime of violence under the Guidelines, that a sawed-off shotgun is not a "destructive device" under § 2K2.1(b)(3)(B), and that § 2K2.1(b)(5) does not apply since he possessed the firearm in connection with the illegal alteration of that same firearm. Def's Sent. Mem at 1-8 (Docket # 24).
Section 2K2.1(a)(3) provides a base offense level of twenty-two, "if ... the defendant committed any part of the instant offense subsequent to sustaining one felony conviction of either a crime of violence or a controlled substance offense. ..."1 The commentary to § 2K2.1 sheds light on the meaning of a "felony conviction":
[A] prior adult federal or state conviction for an offense punishable by death or imprisonment for a term exceeding one year, regardless of whether such offense is specifically designated as a felony and regardless of the actual sentence imposed. A conviction for an offense committed at age eighteen years or older is an adult conviction. A conviction for an offense committed prior to age eighteen years is an adult conviction if it is classified as an adult conviction under the laws of the jurisdiction in which the defendant was convicted (e.g., a federal conviction for an offense committed prior to the defendant's eighteenth birthday if the defendant was expressly proceeded against as an adult).
U.S.S.G. § 2K2.1 application note 1.
Under Maine law, "[a]n adjudication of the commission of a juvenile crime shall not be deemed a conviction of a crime." 15 M.R.S.A. § 3310(6). Maine law establishes a process by which a court may treat as an adult a juvenile who commits a crime, which "would be murder or a Class A, B or C crime if committed by an adult." 15 M.R.S.A. § 3101(4). Under this provision, Mr. Emerson could have been treated as an adult, but there is no evidence he was. To the contrary, Mr. Emerson was found to have committed a juvenile crime in Maine Juvenile Court, and was committed to the Maine Youth Center. See PSR ¶ 25. As Mr. Emerson's April 10, 2001 adjudication was not "classified as an adult conviction" under Maine law, § 2K2.1(a)(3) should not apply.
United States v. Unger, 915 F.2d 759 (1st Cir.1990), may direct a different result. In Unger, the First Circuit addressed whether prior juvenile convictions should count in calculating criminal history under U.S.S.G. § 4A1.2(d).2 Unger concluded that a prior juvenile conviction for receiving stolen property was countable:
The assessment was premised on U.S.S.G. § 4A1.2(d)(2)(A), which instructs the reader to "add 2 points under § 4A1.1(b) for each adult or juvenile sentence of confinement of at least sixty days if the defendant was released from such confinement with [sic] five years of his commencement of the instant offense." Because Unger's immurement at the Training School exceeded sixty days and occurred less than five years before the events underlying the crime charged in this case, section 4A1.2(d)(2)(A) applies on its face. See United States v. Williams, 891 F.2d 212, 215-16 (9th Cir.1989) (), cert. denied, 494 U.S. 1037, 110 S.Ct. 1496, 108 L.Ed.2d 631 (1990).
Id. at 761 n. 3 (emphasis supplied); see also United States v. Turner, 438 F.3d 67 (1st Cir.2006) ().
Relying on U.S.S.G. § 4A1.2(c)(2), which directs that previous sentences for juvenile "status offenses" cannot be counted for purposes of a defendant's criminal history score, the defendant next contended that his juvenile convictions for waywardness should be characterized as "status offenses" within the meaning of the guideline. Id. at 762. In response, Unger wrote that "the guidelines themselves strongly suggest that a state's taxonomy should not be given controlling effect." Id. at 763. It explained that if state law controlled, the "primary purpose of the Sentencing Reform Act, namely, to `provide certainty and fairness in meeting the purposes of sentencing, avoiding unwarranted sentencing disparities among defendants with similar records,' 28 U.S.C. § 991(b)(1)(B) (1988), would be severely undermined." Id. at 762-63. Instead, the First Circuit looked to the substance of the underlying state offenses to determine whether they were "status offenses" within the meaning of § 4A1.2(c)(2). Id. at 763. Because the conduct underlying the three juvenile adjudications consisted of "(1) breaking and entering with intent to commit larceny, (2) receiving stolen goods, and (3) assault and battery," Unger determined that the wrongful acts were not "status offenses" and were countable. Id.
The narrow issue is whether the Unger analysis of § 4A1.2 applies to § 2K2.1(a)(3). This Court concludes it does not, because the language of § 2K2.1(a)(3) dictates a different result. Unlike § 4A1.2, § 2K2.1(a)(3) defines a "felony conviction" as "a prior adult federal or state conviction for an offense punishable by death or imprisonment for a term exceeding one year...." U.S.S.G. § 2K2.1 application note 1 (emphasis supplied). Under § 2K2. 1(a)(3), a conviction for an offense committed prior to age eighteen is "an adult conviction if it is classified as an adult conviction under the laws of the jurisdiction in which the defendant was convicted." Id. The example in the application note is where "the defendant was expressly proceeded against as an adult." Id. As opposed to § 4A1.2(d), § 2K2.1 incorporates the state classification of the juvenile offense into the determination as to whether to count the offense under § 2K2.1(a)(3).3 As Mr. Emerson's juvenile adjudication was not classified as an adult conviction under Maine law and Maine did not proceed against him as an adult, Unger does not apply.4
As § 2K2.1(a)(3) does not apply, the next question is whether Mr. Emerson's base offense level should be calculated under § 2K2.1(a)(4)(B):
(a) Base Offense Level (Apply the Greatest):
(4) 20, if—(B) the offense involved a firearm described in 26 U.S.C. § 5845(a) . . .; and the defendant (i) was a prohibited person at the time the defendant committed the instant offense; or (ii) is convicted under 18 U.S.C. § 922(d). . . .5
The commentary to § 2K2.1 defines "prohibited person" as "any person described in 18 U.S.C. § 922(g) or § 922(n)." U.S.S.G. § 2K2.1 application note 3. The only potentially applicable statutory provision is § 922(g)(1), which prohibits anyone "who has been convicted in any court of... a crime punishable by imprisonment for a term exceeding one year" from possessing a firearm. 18 U.S.C. § 922(g)(1) (emphasis supplied).
Mr. Emerson argues that Maine law determines whether a Maine juvenile adjudication constitutes a "conviction" as required by § 922(g)(1). This Court agrees. See 18 U.S.C. § 921(a)(20) (); Caron v. United States, 524 U.S. 308, 313, 118 S.Ct. 2007, 141 L.Ed.2d 303 (1998); United States v....
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