U.S. v. Berens, s. 89-2342
| Decision Date | 10 January 1991 |
| Docket Number | 89-2343,Nos. 89-2342,s. 89-2342 |
| Citation | 922 F.2d 842 |
| Parties | Unpublished Disposition NOTICE: Sixth Circuit Rule 24(c) states that citation of unpublished dispositions is disfavored except for establishing res judicata, estoppel, or the law of the case and requires service of copies of cited unpublished dispositions of the Sixth Circuit. UNITED STATES of America, Plaintiff-Appellee, v. Rodney BERENS, Douglas Ray Nyenhuis, and Jody Lee Rus, Defendant-Appellants. |
| Court | U.S. Court of Appeals — Sixth Circuit |
Before WELLFORD and SUHRHEINRICH, Circuit Judges, and HOLSCHUH, District Judge *.
Defendants appeal their sentences arising out of a pipe bombing incident in which they caused extensive damage to a car, pickup truck and motor home, and minor damage to a private residence. Counts 4 and 5 of the federal indictment charged defendants with receipt and possession of an unregistered firearm (a pipe bomb) in violation of 26 U.S.C. Sec. 5861(d) which provides:
It shall be unlawful for any person--
(d) to receive or possess a firearm which is not registered to him in the national firearms registration and transfer record;
Defendants pled guilty after discussing the application of the sentencing guidelines with the Assistant United States Attorney. Thereafter, the court utilized Sentencing Guidelines Sec. 2K2.2 to cross-reference to Guideline Sec. 2K1.4, which resulted in a Guideline Range of 33-41 months. 1 Defendant Nyenhuis was sentenced to 36 months and defendant Rus was sentenced to 30 months. On appeal, we AFFIRM the cross-referencing to Guideline Sec. 2K2.4. In reaching this result, however, my analysis differs from that of Judge Holschuh who concurs with me in the majority opinion.
Guideline Sec. 2K2.2 contains a "cross-reference" in subsection (c) which directs the court to apply a different section if the defendants used the pipe bombs to commit "another offense". Specifically, the guideline provides:
Sec. 2K2.2 Receipt, Possession, or Transportation of Firearms and Other Weapons in Violation of National Firearms Act.
(1) If the firearm was stolen or had an altered or obliterated serial number, increase by 1 level.
(2) If the firearm was a silencer, increase by 4 levels.
(3) If the defendant obtained or possessed the firearm solely for sport, recreation or collection, decrease by 6 levels.
(1) If the defendant used the firearm in committing or attempting another offense, apply the guideline for such other offense or Sec. 2X1.1 (Attempt or Conspiracy), if the resulting offense level is higher than that determined above. (Emphasis supplied).
The main issue at the sentencing hearing was whether, as the government contended, there was some "other offense" which was appropriate for cross-referencing purposes under Sec. 2K2.2(c)(1). The government argued initially at the October 24, 1989 Sentencing Hearing that defendants' offense should be cross-referenced to 18 U.S.C. Sec. 844(i) which provides in pertinent part:
(i) Whoever maliciously damages or destroys or attempts to damage or destroy, by means of fire or an explosive, any building, vehicle or other real or personal property used in interstate or foreign commerce or in any activity affecting interstate or foreign commerce shall be imprisoned for not more than 10 years....
However, on November 1, 1989, the government altered its position when it filed a Supplemental Report to the Presentence Report which raised the possibility of cross-referencing to a different federal offense, 18 U.S.C. Sec. 844(h). That statute provides in pertinent part:
(h) Whoever--
(1) uses fire or an explosive to commit any felony which may be prosecuted in a Court of the United States, or
(2) carries an explosive during the commission of any felony which may be prosecuted in a Court of the United States,
including a felony which provides for an enhanced punishment if committed by the use of a deadly or dangerous weapon or device shall, in addition to the punishment provided for such felony, be sentenced to imprisonment for 5 years....
On November 15, 1989, the district court accepted the government's second position and cross-referenced to Guideline Sec. 2K1.4 2 based on conduct violative of 18 U.S.C. Sec. 844(h) to sentence defendants. On appeal, the government argues that, even if cross-referencing to Sec. 844(h) was improper, the sentences should be sustained because cross-referencing to Sec. 844(i) would have created the same result. If the lower court reaches the correct legal result for an unstated or even inappropriate reason, the reviewing court need not reverse. Lundy v. Campbell, 888 F.2d 467, 476 (6th Cir.1989) (). Unlike Judge Holschuh, I agree with the government that application of Guideline Sec. 2K1.4 was correct because cross-referencing to Sec. 844(i) would have been proper. As explained in his concurring opinion, Judge Holschuh believes that application of Guideline Sec. 2K1.4 was correct on the view that Guideline Sec. 2K2.1(c) allows cross-referencing to a state offense.
The starting point for determining defendants' sentences is Guideline Sec. 2K2.2(c)(1), which allows cross-referencing to other guidelines sections and increased offense levels if defendants "used the firearm in committing or attempting another offense." I agree with defendants' argument that cross-referencing to 18 U.S.C. Sec. 844(h) is impermissible under Sec. 2K2.2(c)(1) because violation of Sec. 844(h) does not constitute "another offense" separate from their violation of 26 U.S.C. Sec. 5681(d). The government argues that Sec. 844(h) constitutes "another offense" because Sec. 5681(d) makes it unlawful to "receive or possess" a firearm. The government therefore concludes that, because the defendants not only received and possessed unregistered pipe bombs, but also carried and used them several weeks later, their offense under Sec. 844(h) is separate and distinct from their offense under Sec. 5861(d).
I disagree with the government's analysis because Sec. 844(h) does not prohibit the mere use or carrying of an explosive but, more narrowly, prohibits the use of an explosive to commit any federal felony or the carrying of an explosive during the commission of any federal felony. In this case, although defendants clearly used and carried an explosive, they were not thereby committing any federal felony other than violating 28 U.S.C. Sec. 5861(d). It would be plainly illogical to allow cross-referencing under Guideline Sec. 2K2.2(c)(1) to "another offense" which is, in effect, the same offense for which that Guideline was originally invoked. Furthermore, even if I were to accept the government's position that such circular cross-referencing is permissible, I would be left with the untenable argument that a violation of Sec. 844(h) occurred because defendants "used" an explosive to "receive or possess a firearm" under subsection (1) of Sec. 844(h), or "carried" an explosive during the commission of the felony of "receiving or possessing a firearm" under subsection (2) of Sec. 844(h). I feel constrained to reject such a construction of Sec. 844(h).
Nonetheless, I believe that application of Guideline Sec. 2K1.4 was proper through cross-referencing from Guideline Sec. 2K2.2(c)(1) to 18 U.S.C. Sec. 844(i). At the evidentiary hearing prior to the government's abandonment of its position that Sec. 844(i) was the proper cross-reference offense, the government attempted to show that the property damaged by the defendants "affected" interstate commerce. The government showed such an affect by eliciting evidence that the motor vehicles were used to:
(a) Travel from Michigan to Yellowstone National Park, and to Colorado, Arizona and California in the United States as well as to Canada; and
(b) Drive on interstate highways; and
(c) Drive to buy gas, food and other incidentals in various other states while travelling on vacation and to local distributors of such things as coffee and orange juice not grown in Michigan; and
(d) Drive to work where the owners held positions that dealt with goods moving in interstate commerce. Given the evidence, I would hold, sua sponte that the government's abandoned position was correct because the motor home, if not the car and pickup truck, was clearly a "vehicle" which was "used" in an activity that "affected interstate commerce" for purposes of Sec. 844(i).
Even the defendants conceded that only a de minimus connection between the damaged/destroyed property and interstate commerce is necessary to support a cross-reference under Sec. 844(i). (Defendants' Reply to Government's Response to Presentence Report, page 4). See also United States v. Andrini, 685 F.2d 1094, 1096 (9th Cir.1982). In Russell v. United States, 471 U.S. 858, 862 (1985), the Supreme Court upheld the conviction under Sec. 844(i) of an individual who owned and rented an apartment building after he unsuccessfully attempted to set fire to the building, explaining that "the legislative history suggests that Congress at least intended to protect all business property, as well as some additional property that might not fit that description, but perhaps not every private home." The language which refers to "additional property that might not fit that description" of business property supports my position that the damage/destruction of the motor home violated Sec. 844(i). At the same time, I recognize that if defendants had caused damage to the private residence alone, a cross-reference to Sec. 844(i) would probably not lie.
Likewise, I recognize that Sec. 844(i) might well not apply if defendants had damaged or destroyed only the automible and/or pickup truck, because there is no evidence that the automobile or pickup truck were for business purposes or otherwise affected...
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