U.S. v. Bush, 94-2025

• Decision Date: 22 May 1995
• Docket Number: No. 94-2025,94-2025
• Citation: 56 F.3d 536
• Parties: UNITED STATES of America v. Theresa J. BUSH, Theresa Bush, Appellant. . Submitted under Third Circuit LAR 34.1(a)
• Court: U.S. Court of Appeals — Third Circuit

Page 536

56 F.3d 536

UNITED STATES of America v. Theresa J. BUSH, Theresa Bush, Appellant.

No. 94-2025.

United States Court of Appeals, Third Circuit.

Submitted under Third Circuit LAR 34.1(a)

May 22, 1995.

Decided June 12, 1995.

David L. McColgin, Asst. Federal Defender, Elaine De Masse, Sr. Appellate Counsel, Maureen Kearney Rowley, Chief Federal Defender, Defender Ass'n of Philadelphia, Federal Court Div., Philadelphia, PA, for appellant.

Michael R. Stiles, U.S. Atty., Walter S. Batty, Jr., Ronald H. Levine, Asst. U.S. Attys., Philadelphia, PA, for appellee.

Before: GREENBERG, ROTH, and ALDISERT, Circuit Judges.

OPINION OF THE COURT

GREENBERG, Circuit Judge.

I. Introduction

On April 26, 1994, a federal grand jury returned a multi-count indictment charging Theresa J. Bush with five counts of making false statements in connection with the acquisition of a firearm in violation of 18 U.S.C. Sec. 922(a)(6) (the false statement counts), and five counts of possession of a firearm by a convicted felon in violation of 18 U.S.C. Sec. 922(g)(1) (the possession counts). On July 13, 1994, Bush pled guilty to one false statement count and one possession count. However, Bush stipulated to having committing the other eight charged offenses, and "agree[d] that, for the purpose of determining [her] Sentencing Guidelines range, ... these additional offenses shall be treated as if the [she] had been convicted of additional counts charging these offenses." App. 14.

The prosecutor and the defense attorney submitted sentencing memorandums addressing two issues to the district court: (1) which Sentencing Guidelines Manual applies to Bush's sentence; and (2) how the multiple counts should be grouped. At the October 14, 1994, sentencing hearing the prosecutor conceded that because of potential ex post facto problems, the 1990 Guidelines Manual should apply. See, e.g., United States v. Bertoli, 40 F.3d 1384, 1403 (3d Cir.1994) (although "[g]enerally, the sentencing court must apply the Guidelines Manual in effect at the time of sentencing ... '[w]here such retroactivity results in harsher penalties, Ex Post Facto Clause problems arise, and courts must apply the earlier version.' ") (citation omitted). ¹ The district court then divided the offense conduct into three separate groups, and, pursuant to U.S.S.G. Sec. 3D1.4, computed Bush's offense level to be 13. ²

The district court thereupon sentenced Bush to concurrent 16-month custodial terms, to be followed by concurrent 3-year terms of supervised release. On October 21, 1994, Bush filed a timely notice of appeal of her sentence. We have jurisdiction pursuant to 28 U.S.C. Sec. 1291 and 18 U.S.C. Sec. 3742(a). The district court had jurisdiction pursuant to 18 U.S.C. Sec. 3231. We will affirm.

II. Discussion

The sole issue on this appeal is whether the district court erred in dividing the offense conduct into three groups. "This contention requires a construction of the guidelines so that our scope of review ... is plenary." United States v. Riviere, 924 F.2d 1289, 1304 (3d Cir.1991). Of course, we review the district court's findings of fact leading to its grouping determination only for clear error.

Section 3D1.1(a) of the Sentencing Guidelines directs courts to combine multiple counts of conviction into " 'distinct Groups of Closely Related Counts' " when certain criteria are met. United States v. Bertoli, 40 F.3d at 1401 (quoting U.S.S.G. Sec. 3D1.1(a)). This practice of "grouping," as it has come to be called, was designed "to prevent multiple punishment for substantially identical offense conduct, while still ensuring incremental punishment for significant additional criminal conduct." United States v. Wessells, 936 F.2d 165, 168 (4th Cir.1991). In accommodating these concerns, courts must distinguish between occasions when increasing the punishment for an additional count would punish the defendant for conduct taken into account in another count and those occasions when the added counts reflect additional criminal culpability. The guidelines provide in this regard that "[a]ll counts involving substantially the same harm shall be grouped together into a single Group", U.S.S.G. Sec. 3D1.2, and define "substantially the same harm" as follows:

(a) When counts involve the same victim and the same act or transaction.

(b) When counts involve the same victim and two or more acts or transactions connected by a common criminal objective or constituting part of a common scheme or plan.

(c) When one of the counts embodies conduct that is treated as a specific offense characteristic in, or other adjustment to, the guideline applicable to another of the counts.

(d) When the offense level is determined largely on the basis of the total amount of harm or loss, the quantity of a substance involved, or some other measure of aggregate harm, or if the offense behavior is ongoing or continuous in nature and the offense guideline is written to cover such behavior.

U.S.S.G. Sec. 3D1.2. While section 3D1.2 contains lists of specific offenses that should and should not be grouped, firearm offenses fall into neither category. Therefore, in firearms cases "a case by case determination must be made based upon the facts of the case and the applicable guidelines (including specific offense characteristics and other adjustments) used to determine the offense level." Section 3D1.2(d). We previously have noted the relevance of application note 2 to firearms offenses, which provides that when crimes involve "indirect or secondary victims 'the grouping decision must be based primarily upon the nature of the interest invaded by each offense.' " United States v. Riviere, 924 F.2d at 1304 (citing U.S.S.G. Sec. 3D1.2).

The parties do not dispute the facts constituting the offense conduct: On ten occasions between September 29, 1990, and November 29, 1990, Bush travelled to Lou's Loan of Upper Darby, Pennsylvania, a licensed gun dealer. On five of those trips she applied to buy various handguns, and in so doing, failed to acknowledge a prior felony conviction. On the other five trips she purchased the guns for which she had applied.

The district court grouped each false statement count with its corresponding possession count; after that grouping, the district court chronicled Bush's actions as follows:

10/04/90: Bush purchases her first handgun, a .32 New England revolver.

10/12/90: Bush purchases her second handgun, a .380 caliber Davis semi-automatic;

10/13/90 Bush purchases her third handgun, a 9mm caliber Taurus semi-automatic;

11/01/90 Bush purchases her fourth handgun, a .380 caliber Beretta semi-automatic;

11/29/90 Bush purchases three .380 caliber Davis semi-automatic handguns and one 9 mm caliber Tanfoglio semi-automatic handgun.

Then the court analyzed which of the offenses were distinct and which were coextensive and therefore involved substantially the same harm. Beginning with the premise that if Bush bought the guns for different purposes then different harms were involved, the court reviewed the record and determined that she had given inconsistent explanations for the purchases. On December 4, 1992 she informed agents of the Bureau of Alcohol Tobacco and Firearms (ATF) that she bought the guns because she and her husband liked to target shoot at "Colosimo's range," see PSR at 2 p 7. ³ But she told the probation officer during the presentence investigation that she bought the guns as protection for her mother and sisters. See PSR at 2 p 10. The district court partially believed Bush's explanations, but concluded that "these lawful purposes only account for four of the guns. They cannot plausibly explain the purchase of four additional semi-automatic weapons on November 29, 1990." Op. at 6, 1994 WL 570169. The court thus inferred that there was a third "mystery motive" for the purchases.

Additionally, relying on the chart quoted above, the court characterized Bush's gun-purchasing activity as naturally dividing into three time frames: October 4 through October 13, 1990; November 1, 1990; and November 29, 1990. Reasoning that while in a broad sense Bush's purchases could be considered "ongoing, ... their temporal separation cannot fairly be regarded as continuous," op. at 7, the court concluded that "[t]he timing and manner of Bush's purchases confirms our creation of three groups." Op. at 6. The district court found still further support for its grouping decision in its observation that "the handguns ... are of three different calibers and from five different manufacturers." Op. at 6.

Bush first argues that the general thrust of the guidelines supports a single group. In this regard, she points to the application note to U.S.S.G. Sec. 3D1.2 for the proposition that firearms offenses presumptively should be grouped together. That application note states:

Subsection (d) likely will be used with the greatest frequency. It provides that most property crimes ..., firearms offenses, and other crimes where the guidelines are based primarily on quantity or contemplate continuing behavior are to be grouped together. The list of instances in which this subsection should be applied is not exhaustive.

U.S.S.G. Sec. 3D1.2 application note 6.

Bush's reliance is misplaced. Immediately following the application note, the guideline contains examples of when grouping is appropriate which shed light on the point the Sentencing Commission was making in the application note. The pertinent example states that if "[t]he defendant is convicted of three counts of unlicensed dealing in firearms ... [a]ll three counts are to be grouped together." Suppose, for example, a defendant, unlicensed to deal in firearms, owns a pawn shop and has three guns for sale. It might be unfair to increase the punishment for each additional gun, because the shopowner really was running a single business and engaged in a single continuous course of conduct. Dividing the crime into three subdivisions artificially...