U.S. v. Borer

• Decision Date: 22 June 2005
• Docket Number: No. 03-2903.,03-2903.
• Citation: 412 F.3d 987
• Parties: UNITED STATES of America, Appellee, v. Shane L. BORER, Appellant.
• Court: U.S. Court of Appeals — Eighth Circuit

412 F.3d 987

UNITED STATES of America, Appellee, v. Shane L. BORER, Appellant.

No. 03-2903.

United States Court of Appeals, Eighth Circuit.

Submitted: June 15, 2004.

Filed: June 22, 2005.

COPYRIGHT MATERIAL OMITTED

Jennifer L. Gilg, AFPD, argued, Omaha, NE, for appellant.

Michael D. Wellman, AUSA, argued, Omaha, NE, for appellee.

Before SMITH, BEAM, and COLLOTON, Circuit Judges.

COLLOTON, Circuit Judge.

Shane Borer pled guilty to possession of firearms while subject to one or more domestic-violence protection orders, in violation of 18 U.S.C. § 922(g)(8). The firearms were discovered at Borer's home on July 26, 2002, after a fire at his residence. At that time, Borer was subject to two protection orders. Borer pled guilty to the charge on April 10, 2003.

At Borer's sentencing hearing on July 2, 2003, the district court calculated the base offense level under the United States Sentencing Guidelines at 14, see USSG § 2K2.1(a)(6)(A), and then added two levels for the number of firearms involved. See USSG § 2K2.1(b)(1)(A). The court then granted a two-level reduction for acceptance of responsibility, see USSG § 3E1.1, resulting in a total offense level of 14. The court found that Borer's criminal history category was III, and that the applicable sentencing range was 21 to 27 months. The court sentenced Borer to 24 months imprisonment and three years of supervised release.

On appeal, Borer asserts several errors in the calculation of his sentence. He contends that the district court erred in denying a three-level reduction for acceptance of responsibility under USSG § 3E1.1(b), assessing one criminal history point for a prior criminal mischief conviction, and denying a six-level reduction under USSG § 2K2.1(b)(2) for possessing the firearms solely for sporting purposes or collection. Borer further argues that the government breached a plea agreement by failing to recommend a sentence in the middle of the guideline range. Finally, Borer argues that his trial counsel was ineffective because he did not object to the court's failure to grant Borer an additional level for acceptance of responsibility and to the government's alleged breach of the plea agreement. We affirm in part, reverse in part, and remand for resentencing.

I.

The Presentence Investigation Report ("PSR") prepared by the United States Probation Office did not recommend a reduction to Borer's sentence for acceptance of responsibility, and Borer properly objected. At the sentencing hearing, the district court found that Borer had accepted responsibility and reduced his offense level by two levels under USSG § 3E1.1(a). On appeal, Borer contends that the district court committed clear error by not awarding a three-level reduction under § 3E1.1(b), as it existed at the time of his offense,¹ because he "timely notif[ied] authorities of his intention to enter a plea of guilty, thereby permitting the government to avoid preparing for trial and permitting the court to allocate its resources efficiently." USSG § 3E1.1(b)(2) (Nov. 1, 2002).

The government concedes that Borer timely notified authorities of his intention to enter a plea of guilty, and thereby permitted the government to avoid preparing for trial. The district court gave no reason for denying a third level reduction under § 3E1.1(b)(2), and we find nothing in the record to support a finding that although the notification was timely for purposes of the government, it was somehow untimely with respect to the court. Accordingly, we conclude that the district court's denial of a decrease of one additional level under § 3E1.1(b)(2) was clearly erroneous.

At oral argument, the government asserted that Borer was ineligible for a three-level reduction under § 3E1.1(b), because under the guideline as amended by the PROTECT Act in April 2003,² the third level reduction is available only upon motion of the government, and no such motion was filed at Borer's sentencing hearing. Borer argues that retrospective application of the new motion requirement would violate the Ex Post Facto Clause of the Constitution, and that the guidelines in effect at the time of his offense should be applicable. See USSG § 1B1.11(b). We have located only one precedent concerning application of the new motion requirement of § 3E1.1(b) to offenses committed prior to April 30, 2003. United States v. Briceno, No. 01 CR.943 LTS, 2003 WL 22025870, at *6 n. 6 (S.D.N.Y. Aug.29, 2003) (unpublished) (declining to apply PROTECT Act amendment to § 3E1.1(b), because "application of the amended Guideline would result in a harsher sentence than would application of the Guideline in effect at the time of the offense conduct"). We suspect that may be due to a policy of the United States not to seek retrospective application of the amendment for constitutional reasons.³ But despite conceding that Borer satisfied the timely notice requirement of § 3E1.1(b), the government in this case nonetheless insists that a three-level reduction is not permissible, because the United States Attorney did not file a motion under amended § 3E1.1(b).

We think it evident that the government's position is inconsistent with the Ex Post Facto Clause. The addition of the motion requirement changes the operation of the guideline to Borer's detriment after his commission of the offense. The PROTECT Act amendment made it materially more difficult for Borer to earn a reduction for acceptance of responsibility by adding a requirement that the government authorize the court to grant a third level reduction. As a result, the statute was "retrospective and more onerous than the law in effect on the date of the offense." Weaver v. Graham, 450 U.S. 24, 30-31, 101 S.Ct. 960, 67 L.Ed.2d 17 (1981). The amended guideline would result in a substantial disadvantage to Borer because he would receive a longer sentence for the same conduct simply because he did not receive a motion from the government. See Miller v. Florida, 482 U.S. 423, 431-33, 107 S.Ct. 2446, 96 L.Ed.2d 351 (1987) (defendant was "substantially disadvantaged" by change in calculation of primary offense points under sentencing guidelines which altered his presumptive sentence from 3½ —4½ years to 5½ — 7 years); Weaver, 450 U.S. at 33, 101 S.Ct. 960 (statute reducing the amount of "gain-time" credits a prisoner could receive was unconstitutional as an ex post facto law); Lindsey v. Washington, 301 U.S. 397, 400-01, 57 S.Ct. 797, 81 L.Ed. 1182 (1937) (change in punishment from a range of years with a maximum of 15 years to a mandatory sentence of 15 years violated the Ex Post Facto Clause); cf. Carmell v. Texas, 529 U.S. 513, 530, 120 S.Ct. 1620, 146 L.Ed.2d 577 (2000) (change in rule of evidence that decreased burden on government to prove crime violated the Ex Post Facto Clause when applied to a defendant's case retrospectively). Accordingly, we hold that the version of § 3E1.1(b) in effect at the time of Borer's offense should be applied, and that Borer is entitled to an additional one-level reduction under § 3E1.1(b)(2).⁴

II.

Borer contends that the district court improperly assessed one criminal history point based on a conviction in November 2002 for criminal mischief under Nebraska law. The conviction arose out of an incident during which Borer became upset with his estranged wife when he was picking up his children, grabbed a cell phone from one of his children, and broke the phone by throwing it on the ground. He was sentenced to six months probation and required to pay $80 in restitution. Borer argues that this misdemeanor offense is "similar to" the offenses of disorderly conduct and disturbing the peace, which are excluded from counting under USSG § 4A1.2(c)(1), and that the district court should have refrained from assessing a criminal history point on that basis. We review de novo the district court's construction and interpretation of the criminal history provisions of the sentencing guidelines, and we review for clear error the district court's application of the guidelines to the facts. United States v. Jones, 87 F.3d 247, 248 (8th Cir.1996).

Under USSG § 4A1.2(c)(1), an offense that is "similar to" disorderly conduct or disturbing the peace would not be counted in Borer's case unless the sentence was a term of probation of at least one year or a term of imprisonment of at least thirty days. We have held previously that the offense of "Assault and Criminal Damage to Property" is not similar to the offenses of disorderly conduct or disturbing the peace for purposes of § 4A1.2(c)(1). United States v. Russell, 913 F.2d 1288, 1294 (8th Cir.1990). We now reach the same conclusion regarding the offense of criminal mischief under Nebraska law.

To determine whether two crimes are "similar" for purposes of § 4A1.2(c), we have endeavored to "compare the resemblance and character of the offenses." United States v. Webb, 218 F.3d 877, 881 (8th Cir.2000); see also United States v. Mitchell, 941 F.2d 690, 691 (8th Cir.1991) ("similar to" must be given its normal meaning, i.e., "nearly corresponding; resembling in many respects") (internal quotation omitted). This approach places us in the camp of those circuits that have opted to compare the "elements" or "essential characteristics" of the subject offenses to determine whether they have the requisite similarity. See United States v. Perez de Dios, 237 F.3d 1192, 1198 (10th Cir.2001) (favorably citing Mitchell in adopting an "essential characteristics" approach); United States v. Elmore, 108 F.3d 23, 27 (3d Cir.1997) (elements); United States v. Harris, 128 F.3d 850, 854-55 (4th Cir.1997) (same); United States v. Unger, 915 F.2d 759, 763 (1st Cir.1990) (same). We continue to believe that this approach is in keeping with the overall purpose of the Sentencing Reform Act to achieve consistency in sentencing and to reduce disparities in sentencing among similarly situated offenders. We thus decline Borer's suggestion that we adopt a multi-factor approach...