U.S. v. Armstead

• Decision Date: 02 June 1997
• Docket Number: Nos. 96-40539,96-40560,s. 96-40539
• Citation: 114 F.3d 504
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Steven Lakeith ARMSTEAD, Defendant-Appellant. UNITED STATES of America, Plaintiff-Appellee, v. Leroy Graham ARMSTEAD, Defendant-Appellant
• Court: U.S. Court of Appeals — Fifth Circuit

Page 504

114 F.3d 504

UNITED STATES of America, Plaintiff-Appellee, v. Steven Lakeith ARMSTEAD, Defendant-Appellant.

UNITED STATES of America, Plaintiff-Appellee, v. Leroy Graham ARMSTEAD, Defendant-Appellant.

Nos. 96-40539, 96-40560.

United States Court of Appeals Fifth Circuit

June 2, 1997.

Tracey M. Batson, Asst. U.S. Atty., Beaumont, TX, for Plaintiff-Appellee.

Linda Cheryl Cansler, Beaumont, TX, for Steven Lakeith Armstead, Defendant-Appellant.

Douglas C. Sikes, Provost & Umphrey, Port Arthur, TX, for Leroy Graham Armstead, Defendant-Appellant.

Appeal from the United States District Court for the Eastern District of Texas.

Before GARWOOD, WIENER and DeMOSS, Circuit Judges.

DeMOSS, Circuit Judge:

Before the Court are two consolidated appeals brought by brothers Steven Lakeith Armstead and Leroy Graham Armstead ("the Armsteads") challenging the validity of the sentences imposed following their guilty pleas. The Armsteads pleaded guilty to stealing firearms from a licensed firearms dealer, a violation of 18 U.S.C. § 922(u). At sentencing, the district court used the 1995 Guidelines and enhanced the Armsteads' base offense level by four levels pursuant to United States Sentencing Guidelines (U.S.S.G.) § 2K2.1(b)(5) on the ground that they possessed firearms in connection with "another felony offense," the state law crime of burglary of a building. The Armsteads argue that the enhancement was improperly applied because there was not "another felony offense" in addition to the conduct underlying the firearms-burglary offense. Finding no error, we affirm the decision of district court to enhance the Armsteads' sentence under § 2K2.1(b)(5). Leroy Armstead also argues that the district court improperly enhanced his base offense level by two levels for possessing stolen firearms under U.S.S.G. § 2K2.1(b)(4). The application of the two level enhancement under the 1995 Edition of § 2K2.1(b)(4) violates the ex post facto clause of the Constitution and, as such, we vacate Leroy Armstead's sentence and remand for resentencing.

BACKGROUND

On August 22, 1995, at approximately 3:45 a.m., the Jasper Police Department received a call indicating that an alarm had been sounded at the Phillips Pawn Shop, a licensed firearms dealer. When officers arrived, they realized that the pawn shop had been broken into and that a number of firearms had been stolen. The manager reported that, in fact, 19 guns had been stolen, two of which were recovered outside the building.

Later that day, the police received a call from a confidential informant ("CI") who told the officers that the suspects were in Houston selling the stolen guns. The CI identified the suspects as "Bellini" (Terry Bellini Barlow), "Speed Buggy" (Michael D. White), "Worm" (Steven Smith, a/k/a Steven Armstead), and "Worm's brother" (Leroy Armstead). The officers then set up surveillance at several locations frequented by the suspects.

Upon apprehending the perpetrators, the officers learned that 13 of the guns had been sold in Houston. They recovered the remaining four firearms from the automobile used during the defendants' Houston trip. All of the defendants admitted their roles in this crime except Barlow. No other firearms were found in addition to those stolen from the pawn shop.

In December 1995, a federal grand jury returned a four-count indictment against the four defendants. The Armsteads were both named in Counts I and II of the indictment. Count I charged the Armsteads with conspiracy to steal firearms from a licensed firearms dealer, in violation of 18 U.S.C. § 371. Count II charged them with stealing the firearms from a licensed dealer in violation of 18 U.S.C. § 922(u). Leroy Armstead was charged with an additional count, Count IV, felon in possession of firearms, in violation of 18 U.S.C. § 922(g)(1).

In March 1996, the Armsteads entered a plea agreement with the United States Attorney's Office and pleaded guilty to Count II. In return, the government dismissed the conspiracy charge under Count I. The government also dismissed Count IV, the felon in possession charge, against Leroy Armstead.

The probation officer's presentence report (PSR), applying the 1995 Edition of the Guidelines Manual, fixed Steven Armstead's base offense level at 12, pursuant to U.S.S.G. § 2K2.1(a)(7). The probation officer, using U.S.S.G. § 2K2.1(b)(1)(D), then added four points because more than 12 firearms were involved in the offense. Four more points were added pursuant to U.S.S.G. § 2K2.1(b)(5). The probation officer interpreted § 2K2.1(b)(5) to require that additional points should be added to Steven Armstead's base offense level because he used or possessed the stolen firearms in connection with another felony offense, the state law crime of burglary of a building. Steven Armstead then received a three point reduction for acceptance of responsibility which resulted in a total base offense level calculation of 17. With a base offense level of 17 and a criminal history category of IV, Steven Armstead's guideline sentencing range was 37 to 46 months.

The probation officer relied on similar reasoning in calculating Leroy Armstead's base offense level. However, Leroy Armstead received a substantially greater sentence due to his extensive criminal history. The probation officer first arrived at a base offense level of 20 pursuant to U.S.S.G. § 2K2.1(a)(4)(A). Four points were added because the total number of firearms involved exceeded 12 and an additional four points were applied under U.S.S.G. § 2K2.1(b)(5) because Leroy Armstead used or possessed these firearms in connection with another felony offense. Two additional points were added to Leroy Armstead's base offense level under U.S.S.G. § 2K2.1(b)(4) due to the fact that the firearms at issue were stolen. After applying the three level reduction for acceptance of responsibility, Leroy Armstead's base offense level was 27. With a criminal history category of VI, Leroy Armstead's guideline sentencing range was 130-162 months. Because the statutory maximum sentence of 120 months was less than the applicable guideline range, Leroy Armstead's sentence was limited to 120 months.

The Armsteads filed timely objections to the PSR's four-level enhancement under U.S.S.G. § 2K2.1(b)(5). Leroy Armstead also objected to the two level enhancement from U.S.S.G. § 2K2.1(b)(4). The district court overruled both objections and adopted the PSR. The district court then sentenced Steven Armstead to 46 months imprisonment and three years supervised release. Leroy Armstead was sentenced to 120 months imprisonment and three years supervised release. The Armsteads filed timely appeals from the sentences imposed by the district court.

ANALYSIS

A district court's sentencing decision will be upheld unless it was imposed in violation of the law, is a result of an incorrect application of the guidelines, or the district court unreasonably departed from the applicable guideline range. United States v. Guadardo, 40 F.3d 102, 103 (5th Cir.1994). The district court's fact findings at sentencing are reviewed for clear error, and any interpretation of the Guidelines is subject to de novo review. United States v. Kuban, 94 F.3d 971, 973 (5th Cir.1996), cert. denied, --- U.S. ----, 117 S.Ct. 716, 136 L.Ed.2d 635 (1997).

1. Ex Post Facto Concerns

We begin our analysis with the question of whether the correct edition of the Guidelines Manual was used in calculating the Armsteads' sentences. The district court used the 1995 Edition of the Guidelines Manual. Pursuant to U.S.S.G. §§ 1B1.11(a) and 1B1.11(b)(1), a district court should apply the edition of the Guidelines Manual in effect on the date the defendant is sentenced, unless the application of such Guideline Manual would violate the ex post facto clause of the Constitution, in which event, the Guidelines in effect on the date of the offense should be used.

In this case, sentencing occurred after the effective date of the 1995 Edition. However, in August 1995, when the Armsteads violated 18 U.S.C. § 922(u), the 1994 Edition of the Guidelines Manual was in effect. The 1994 Edition did not contain any reference to § 922(u) nor did it specify which Guideline should be used to calculate a base offense level for such violations. This circumstance developed because the effective date of Public Law 103-159, which inserted the new subsection "(u)" in 18 U.S.C. § 922, was November 30, 1993. Obviously, the Sentencing Commission did not have adequate time to prepare and file amendments to the 1994 Edition of the Guidelines referencing this new statute.

After ordering supplemental briefing from the parties on this issue and reviewing the applicability of both the 1994 Edition and the 1995 Edition of the Guidelines Manual to this case, we are convinced that no ex post facto violation occurred as to the application of § 2K2.1, except as later specified. In reaching this conclusion, we were required to make two judgment calls. First, given that the 1994 Guidelines do not refer to § 922(u), we had to determine what would be the proper guideline to use for this offense under the 1994 Guidelines. Second, once we determined the appropriate guideline to apply, we asked whether the application of the 1995 Guidelines increases the defendants' sentences when compared with the application of the same guideline under the 1994 Edition. We address each decision now in more detail.

First, to ascertain the applicable guideline using the 1994 Edition, we found that no provision exists in that edition for violations of 18 U.S.C. § 922(u). Appendix A of the 1994 Guidelines Manual directs us to U.S.S.G. § 2X5.1 to calculate the guideline range for offenses not listed in the index, in this case, § 922(u) offenses. See U.S.S.G. § 2K2.1 App. A. Section 2X5.1 states:

If the offense is a felony or Class A misdemeanor for which no guideline expressly has been promulgated, apply the most analogous offense guideline. If...