U.S. v. Brannan, 95-3108

• Citation: 74 F.3d 448
• Decision Date: 12 January 1996
• Docket Number: No. 95-3108,95-3108
• Parties: UNITED STATES of America, Appellee, v. David George BRANNAN, Appellant.
• Court: U.S. Court of Appeals — Third Circuit

Page 448

74 F.3d 448

UNITED STATES of America, Appellee, v. David George BRANNAN, Appellant.

No. 95-3108.

United States Court of Appeals Third Circuit.

Argued Sept. 13, 1995.

Decided Jan. 12, 1996.

Thomas S. White, Federal Public Defender, Karen Sirianni Gerlach (Argued), Assistant Federal Public Defender, Pittsburgh, Pennsylvania, for Appellant.

Frederick W. Thieman, United States Attorney, Bonnie R. Schlueter (Argued), Assistant United States Attorney, Pittsburgh, Pennsylvania, for Appellee.

Before: SLOVITER, Chief Judge, ALITO, Circuit Judge, and RENDELL, District Judge. ^*

RENDELL, District Judge:

This appeal is from a judgment of sentence imposed after defendant David George Brannan pled guilty to one count of being a felon in possession of a firearm in violation of 18 U.S.C. Sec. 922(g)(1). Brannan raises two grounds in his appeal. First, he argues that the district court improperly enhanced the offense level by four levels under Sec. 2K2.1(b)(5) of the United States Sentencing Guidelines for the use, possession or transfer of a firearm in connection with another felony. See United States Sentencing Commission, Guidelines Manual Secs. 2K2.1(b)(5) (1994) (hereinafter "U.S.S.G."). ¹ Second, he contends that the district court failed to properly apply Sec. 5G1.3 of the United States Sentencing Guidelines so as to have his federal sentence run concurrently with a state court sentence he was serving. See U.S.S.G. Sec. 5G1.3(c) (Policy Statement) (hereinafter "U.S.S.G. Sec. 5G1.3(c)"). We find the second ground for attack to be valid, and, accordingly, we will remand for resentencing consistent with this opinion. ²

The events giving rise to the instant offense involved the accidental discharge of a gun while it was being removed from the trunk of a car in western Pennsylvania. Brannan testified that he was interested in selling the gun; he and a friend, Peter Andrulat, traveled on Friday evening, September 11, 1992, to a neighboring town because Andrulat believed that his friend, Richard Hopkins, would be interested in purchasing it. ³ Brannan indicated that the three men met briefly at a restaurant and then went out to Andrulat's car to show Hopkins the gun; as the gun was being removed from the trunk, it accidentally discharged, and the bullet struck Hopkins in the upper thigh area, severing his femoral artery and causing him to bleed to death.

Brannan pled guilty to involuntary manslaughter in the Court of Common Pleas of Washington County and was sentenced to 18-60 months, less one day, of imprisonment, which he began to serve on June 6, 1994. On August 30, 1994, nearly two years after the underlying incident occurred, Brannan was indicted in federal court for having been a felon in possession of a firearm. He pled guilty on October 31 and was sentenced on February 10, 1995. At the time of his sentencing, Brannan was serving the sentence for involuntary manslaughter.

The presentence report prepared for sentencing Brannan recommended a four-level enhancement pursuant to U.S.S.G. Sec. 2K2.1(b)(5), which provides for such an enhancement where the defendant "used or possessed any firearm ... in connection with another felony offense." The probation officer During the course of the instant offense, the firearm that the defendant possessed discharged, striking Mr. Hopkins and killing him. This resulted in the defendant's conviction of Involuntary Manslaughter.

gave the following reason to justify the enhancement:

Brannan filed two objections to the presentence report prior to sentencing. First, he objected to the four-level enhancement of his offense level under Sec. 2K2.1(b)(5). Second, he argued that he should have been given credit for the time he had spent incarcerated in Washington County on the manslaughter conviction under U.S.S.G. Sec. 5G1.3, which would have reduced his sentence for the federal offense by several months.

In addition to objecting to the presentence report, Brannan also requested a downward departure based on his family ties, his employment history, and his employment prospects, relying upon U.S.S.G. Secs. 5K2.0, 5H1.5, and 5H1.6. The government, in turn, requested an upward departure under U.S.S.G. Sec. 4A1.3, arguing that Brannan's criminal history category under-represented the seriousness of his criminal history.

At the time of sentencing, Brannan argued that U.S.S.G. Sec. 2K2.1(b)(5) requires a showing of his intent to use a firearm in order for the enhancement to be applicable. Section 2K2.1(b)(5) provides that if a defendant used or possessed a firearm in connection with another felony or if a defendant possessed or transferred a firearm with knowledge or intent that it would be used or possessed in connection with another felony, the offense level should be increased by four levels.

He argued that the knowledge and intent element in the second clause should be interpreted to apply to the concept of "used or possessed" in the first clause. Under Brannan's interpretation, the alleged negligent handling of the firearm involved in the instant set of facts should not have given rise to the four-level increase in offense level.

The sentencing judge indicated his concern with applying the four-level enhancement under Sec. 2K2.1(b)(5) to the negligent use of a firearm involved in this set of facts. In applying the section as written, however, he found that no element of intent was necessary under the Guidelines, and he found no alternative other than to impose the four-level enhancement.

Brannan next argued that U.S.S.G. Sec. 5G1.3(c) gave the court the authority to impose a sentence to run concurrently with his state court sentence from the date when the state sentence was imposed, giving credit for time served. Section 5G1.3(c) addresses the situation in which a defendant who is serving an undischarged term of imprisonment is being sentenced for another crime. This section, together with the accompanying Commentary and Application Notes, sets forth a methodology the court should follow in determining the extent to which the second sentence should run concurrently with, or consecutive to, the sentence already being served. The government argued that he should serve his Guideline sentence for the instant offense concurrently with the remainder of the unexpired term of imprisonment for this state conviction.

The sentencing court determined that the applicable offense level of 25 and criminal history category of V for the weapon possession offense gave rise to a Guideline sentencing range of 100 to 120 months. The court acknowledged that the issue was governed by Sec. 5G1.3(c) but framed this issue as a choice of either a consecutive or a concurrent sentence, with a related question as to whether "credit" could be given for time already served on the state sentence.

The court appears to have read Sec. 5G1.3(c) as indicating that if the court felt an incremental punishment was required, then the sentence should run consecutively, otherwise it should be concurrent. See Appendix, pp. 118-20. The court could find no authority whereby it could "give credit" for the state sentence. ⁴ See Appendix, pp. 124-25. It Brannan also argued that the two-year delay in bringing the charges should be taken into account and also presented evidence as to the innocent nature of this incident and his character as an employed and responsible family man as grounds for a departure. The court rejected these considerations as not sufficient to warrant any relief for Brannan under the Guidelines. ⁵

concluded therefore that the sentence it would give--the minimum it believed it could give, namely, 100 months--would be concurrent with the remainder of the state sentence. See Appendix, pp. 119, 120, 125. In making its ruling, the court did not refer to the Commentary to the Guidelines, or the sentencing methodology under Sec. 5G1.3(c) described in Application Note 3 thereof, nor did it have the benefit of this court's opinion in United States v. Holifield, 53 F.3d 11 (3d Cir.1995), as to how that methodology can or should be applied.

As indicated above, on appeal Brannan presses the need for a finding of intent as a prerequisite for the four-level enhancement under Sec. 2K2.1(b)(5) and raises the implications of Holifield on the sentencing in this case. The government counters that the plain meaning of the Guidelines supports the enhancement. Further, the government focuses its opposition to Brannan's argument under Sec. 5G1.3(c) on his failure at sentencing to request a "downward departure" for time served in prison and its view that the sentencing court properly applied Sec. 5G1.3(c).

DISCUSSION

I.

The district court's interpretation of the Guidelines and the extent of its power to depart downward are legal questions subject to plenary review. See United States v. Holifield, 53 F.3d 11, 12-13 (3d Cir.1995); United States v. Higgins, 967 F.2d 841, 844 (3d Cir.1992). However, if a defendant has failed to request a departure and first raises the issue on appeal, our review of the record is limited to a determination of whether plain error had been committed. See United States v. Pardo, 25 F.3d 1187, 1193 (3d Cir.1994).

The government argues that we should apply the "plain error" standard of review to the issue raised under Sec. 5G1.3(c), arguing that Brannan did not specifically request a "downward departure" before the district court under that Guideline, and the issue is being raised for the first time on appeal. The government does concede, however, that Brannan requested application of Sec. 5G1.3(c) to grant him 18 months' credit for time served. See Appendix, pp. 121-23.

We find Brannan's request that his existing sentence and time served be taken into account was sufficient to preserve this issue on appeal. We will not require recitation of magic words, or specific request for departure, in connection with Sec. 5G1.3, especially because, as is discussed more fully below, the ability...