U.S. v. Arnold

• Decision Date: 13 July 1995
• Docket Number: No. 94-6176,94-6176
• Citation: 58 F.3d 1117
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Jerry F. ARNOLD, Defendant-Appellant.
• Court: U.S. Court of Appeals — Sixth Circuit

Page 1117

58 F.3d 1117

UNITED STATES of America, Plaintiff-Appellee, v. Jerry F. ARNOLD, Defendant-Appellant.

No. 94-6176.

United States Court of Appeals, Sixth Circuit.

Argued May 18, 1995.

Decided July 13, 1995.

Mercedes C. Maynor-Faulcon, Asst. U.S. Atty. (briefed), William M. Cohen (argued), Office of U.S. Atty., Nashville, TN, for plaintiff-appellee.

C. Douglas Thoresen, Asst. Federal Public Defender, Nashville, TN (argued and briefed), for defendant-appellant.

Before: MILBURN and SILER, Circuit Judges; COOK, Chief District Judge. ^*

MILBURN, Circuit Judge.

Defendant Jerry F. Arnold appeals the sentence imposed by the district court following his guilty plea to one count of being a felon in possession of a firearm in violation of 18 U.S.C. Secs. 922(g)(1) and 924(a)(2). On appeal, the issue is whether the district court erred in concluding that defendant's prior conviction for assault with intent to commit sexual battery constituted a crime of violence under United States Sentencing Guidelines ("U.S.S.G.") Sec. 4B1.2(1) and thus improperly failed to use the lower base offense level authorized in U.S.S.G. Sec. 2K2.1(b)(2) for possession of firearms for lawful sporting purposes. For the reasons that follow, we reverse and remand.

I.

A.

On February 23, 1993, agents of the United States Bureau of Alcohol, Tobacco and Firearms ("ATF") conducted an interview with Teresa Marie Lambardo, a resident of defendant Jerry Arnold's home, at defendant's home, regarding defendant's possession of firearms. The interview was prompted by the ATF's receipt of information that defendant might have been responsible for the shooting of an American bald eagle in Humphreys County, Tennessee. During the interview, ATF agents observed, in plain view, a gun cabinet that they later discovered contained four firearms and assorted ammunition. Defendant arrived at his home during the interview and was questioned by the ATF agents. He signed a form consenting to the search of his home and provided a key to unlock the gun cabinet. Defendant informed the ATF agents that he hunted with all of the weapons in his possession except a .22 caliber rifle. ¹ He also stated that he was a member and president of the Professional Mechanics and Carpenters Hunting Club.

In an affidavit, defendant admitted that he had possessed firearms since the time of his prior felony conviction in 1985. He stated that he used the firearms primarily for hunting deer and squirrel. He also stated that he had purchased at least one gun since the time of his prior conviction.

B.

On March 30, 1994, a federal grand jury returned a one-count indictment against defendant, charging him with being a previously-convicted felon knowingly in possession of a firearm in violation of 18 U.S.C. Secs. 922(g)(1) and 924(a)(2). Defendant was arrested on April 5, 1994. On June 7, 1994, defendant entered a guilty plea to the charge in the indictment. Pursuant to the plea agreement, the government recommended that the district court use the lower one-third of the guideline range and that the district court depart downward three levels for acceptance of responsibility, and, further, the government acknowledged that defendant possessed the firearms for lawful sporting purposes.

The presentence investigation report included a determination that defendant did not qualify for the lower offense level provided in Sec. 2K2.1(b)(2), which applies when a defendant is in possession of firearms solely for lawful sporting purposes. The report found Sec. 2K2.1(b)(2) inapplicable because defendant had previously been convicted in Tennessee of assault with intent to commit sexual battery. ² According to the report, this offense constituted a crime of violence under Sec. 4B1.2(1)(i), thereby precluding application of Sec. 2K2.1(b)(2). Defendant objected to this conclusion, arguing that the use of force, which is one of the requirements for an offense to qualify as a crime of violence, could not be determined from the statutory elements of the offense of which he was convicted. The government responded that because force was one possible means of establishing assault with intent to commit sexual battery, the offense qualified as a crime of violence.

Defendant's sentencing hearing was held on August 25, 1994. At the hearing, defense counsel continued to argue that defendant's prior conviction should not be considered a crime of violence that would preclude a decreased offense level under Sec. 2K2.1(b)(2) for possession of firearms for lawful sporting purposes. However, the district court rejected defendant's argument, taking into consideration both the statute under which defendant was convicted and factual information contained in the presentence investigation report, and proceeded to sentence defendant pursuant to U.S.S.G. Sec. 2K2.1(a)(4). Defendant was sentenced to 30 months imprisonment and two years of supervised release. In addition, the district court imposed a special assessment of $50 and ordered defendant to participate in an alcohol abuse program under the supervision of the United States Probation Office. ³ This timely appeal followed.

II.

Defendant argues that the district court erred in failing to sentence him pursuant to Sec. 2K2.1(b)(2), which authorizes a lower base offense level when a defendant possesses firearms solely for lawful sporting purposes. Defendant acknowledges that a person with a prior conviction for a crime of violence, as defined in Sec. 4B1.2(1), cannot receive the benefit of this provision, but he argues that the district court erred in finding that his prior conviction for assault with intent to commit sexual battery constituted such an offense. "As an interpretation of the Guidelines, the district court's determination ... is a question of law subject to de novo review." United States v. Garza, 999 F.2d 1048, 1051 (6th Cir.1993); United States v. Bondurant, 39 F.3d 665, 667 (6th Cir.1994); see also United States v. Parson, 955 F.2d 858, 863 (3d Cir.1992) (applying a de novo standard of review to the determination of the proper construction of the term "crime of violence" under the Guidelines).

Pursuant to Sec. 2K2.1(b)(2), a defendant "other than a defendant subject to subsection (a)(1), (a)(2), (a)(3), (a)(4), or (a)(5)," who "possessed all ammunition and firearms solely for lawful sporting purposes ... and did not unlawfully discharge or otherwise unlawfully use such firearms or ammunition," is entitled to a decrease in his offense level to six. However, Sec. 2K2.1(a)(4) provides that the base offense level for a defendant with "one prior felony conviction of ... a crime of violence" is 20. Thus, if defendant's prior conviction for assault with intent to commit sexual battery constitutes a crime of violence, defendant is not entitled to rely on the provisions of Sec. 2K2.1(b)(2) to reduce his base offense level. Accordingly, before we can determine whether defendant was entitled to receive the benefit of Sec. 2K2.1(b)(2), we must determine whether the district court erred in finding that defendant's prior conviction for assault with intent to commit sexual battery constituted a crime of violence under the Guidelines.

The term "crime of violence" is defined in the Guidelines as

any offense under federal law 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.

U.S.S.G. Sec. 4B1.2(1). The application notes following this section clarify this definition. The second note states:

"Crime of violence" includes murder, manslaughter, kidnapping, aggravated assault, forcible sex offenses, robbery, arson, extortion, extortionate extension of credit, and burglary of a dwelling. Other offenses are included where (A) that offense has as an element the use, attempted use, or threatened use of physical force against the person of another, or (B) the conduct set forth (i.e., expressly charged) in the count of which the defendant was convicted involved use of explosives (including any explosive material or destructive device) or, by its very nature, presented a serious potential risk of physical injury to another. Under this section, the conduct of which the defendant was convicted is the focus of inquiry.

U.S.S.G. Sec. 4B1.2 commentary (application note 2).

[T]he Sentencing Commission essentially envisioned three independent ways by which a prior conviction will be considered a "crime of violence": (1) the prior conviction is for a crime that is among those specifically enumerated ...; (2) the prior conviction is for a crime that, although not specifically enumerated, has as an element of the offense the use, attempted use, or threatened use of physical force; or (3) the prior conviction is for a crime that, although neither specifically enumerated nor involving physical force as an element of the offense, involves conduct posing a serious potential risk of physical injury to another.

United States v. John, 936 F.2d 764, 767 (3d Cir.1991). Defendant's prior conviction for assault with intent to commit sexual battery clearly does not involve one of the offenses specifically enumerated in the commentary. Therefore, we turn our attention to the remaining methods for determining if defendant's prior offense constituted a crime of violence.

The district court in this case found that defendant's prior conviction was for a crime of violence, in light of both the statutory elements of the offense and the factual description of the conduct underlying the conviction included in the presentence investigation report. Defendant argues, however, that pursuant to Taylor v. United States, 495 U.S. 575, 110 S.Ct. 2143, 109 L.Ed.2d 607 (1990), and United States v....