U.S. v. Covert, 95-2360
| Citation | 117 F.3d 940 |
| Decision Date | 15 April 1997 |
| Docket Number | No. 95-2360,95-2360 |
| Parties | UNITED STATES of America, Plaintiff-Appellee, v. Lelynn Allen COVERT, Defendant-Appellant. |
| Court | U.S. Court of Appeals — Sixth Circuit |
Kathleen Moro Nesi, Asst. U.S. Attorney (argued and briefed), Office of the U.S. Attorney, Detroit, Michigan, for Appellee.
John A. Shea (argued and briefed), Ann Arbor, Michigan, for Appellant.
Before: CONTIE, RYAN, and BOGGS, Circuit Judges.
After pleading guilty to a charge of being a felon in possession of a firearm, defendant Lelynn Allen Covert was sentenced to 96 months in prison. The district court further ordered that Covert's sentence be served consecutively to his undischarged state sentence. On appeal, Covert argues that the district court erred in imposing a consecutive sentence because the court failed to use the appropriate version of the sentencing guidelines and failed to apply the methodology set forth in USSG § 5G1.3(c). He also argues on appeal that the district court erred in enhancing the base offense level by four levels pursuant to USSG § 2K2.1(b)(5) for possession of a firearm in connection with the underlying offense. Because we find no error in the district court's sentencing of Covert, we affirm.
On December 16, 1994, a grand jury returned an indictment charging Covert with possession of marijuana with the intent to distribute, in violation of 21 U.S.C. § 841(a)(1), being a felon in possession of a firearm, in violation of 18 U.S.C. § 922(g)(1), and using a firearm in relation to a drug trafficking crime, in violation of 18 U.S.C. § 924(c)(1). On July 21, 1995, he pled guilty, pursuant to a Rule 11 plea agreement, to the count of being a felon in possession of a firearm. The plea agreement provided that the maximum term of imprisonment would be 96 months. The plea agreement also provided that the parties agreed to the guideline calculations in the worksheets attached to the agreement, with the exception of the application of USSG § 2K2.1(b)(5). 1
At the sentencing hearing, Covert argued that his sentence should run concurrently to the sentence he was serving in Michigan for the state offense of carrying a concealed weapon. 2 The term of imprisonment for that sentence was 5-10 years. The PSR recommended that the sentence run concurrently to the undischarged state sentence because "the suggested grouping methodology, pursuant to 5G1.3(c), results in a pseudoguideline range, which is identical to the actual sentencing guideline range." PSR at 10. 3
On November 29, 1995, Judge Gadola sentenced defendant to 96 months in prison to be served consecutively to his undischarged state sentence. The government argued at the sentencing hearing that the federal sentence should not be concurrent because the defendant was not deterred by the threat of incarceration since "the state sentence [was] based on the defendant's possession of a handgun five months after the federal search warrant was executed at his house where the marijuana and the loaded handgun were found." In response, Covert's counsel argued:
[A decision to impose a consecutive sentence] would create a great disparity between persons who are convicted of multiple federal counts, multiple federal crimes sentenced at one time, and persons convicted of a federal crime after being convicted of a state crime. If Mr. Covert had been--had committed--or had been charged and convicted of the state offense for which he's presently serving time, if he had been--if he had been charged federally in that case, and had also been charged federally obviously in this case, then his--the term of imprisonment ordered by this Court would be in the same guideline range as that computed by the Probation Department in this case and would run concurrent. That's how it would work.
And the policy says, sentence the defendant before you subject to an undischarged state term as if both offense had been federal offenses for which he was sentenced at the same time. If the Court follows that policy statement, that means that as of March the 1st, 1994, this Court assumes that Mr. Covert is not only convicted of the state offense, but he's also convicted of the federal offense on that day and is sentenced accordingly.
After hearing counsels' arguments and reviewing Covert's lengthy criminal record, the court imposed a consecutive sentence:
[T]he Court in imposing sentence takes a number of things into consideration. They include the nature and circumstances of your offense, your own personal history and characteristics, the need for the sentence imposed to reflect the seriousness of the offense and to promote respect for the law and to provide just punishment for the offense. The need for the sentence to afford adequate deterrents to criminal conduct and to protect the public from further crimes and to provide you with needed correctional treatment in the most effective manner.
This Court is also to consider the kinds of sentences available and the sentencing range established for the category of offense committed by yourself and as committed by the category of defendant to which you belong, all as set forth in the guidelines, sentencing guidelines. Also the Court considers the pertinent policy statements issued by the sentencing commission and the commentary of the sentencing commission. All the other matters that the Court is directed to consider under the statutes involved here and the Court Rules. And as I say the sentencing guidelines and the policy statements and commentary under those guidelines.
....
It just seems to the Court that under all the circumstances here, the Court's responsibility really is to protect the public. Because I don't see anything in your record or in your background that indicates that you would be otherwise than a repeat offender. I think you're a career criminal. You've demonstrated that over the years, for half your life....
....
... [U]nder your circumstances, I find no reason at all to provide that your sentence be concurrent with your state sentence. To do that really would negate the penalty that's imposed here to a great extent--would negate to a great extent the--this sentence....
Joint Appendix at 155-60. In imposing the sentence, the district court also increased the base offense level by four levels, pursuant to USSG § 2K2.1(b)(5), for possession of a firearm in connection with the felony of possessing marijuana with the intent to distribute.
Covert argues on appeal that the district court erred both in imposing a consecutive sentence and in enhancing the base offense level pursuant to § 2K2.1(b)(5).
Covert makes two arguments against the district court's application of USSG § 5G1.3. First, he argues that application of the November 1, 1995 version of § 5G1.3 to his sentence, instead of the November 1, 1992 version, violates the Ex Post Facto Clause of the Constitution. Second, he argues that the court erred by not actually applying the methodology set forth in the 1992 guideline and its comments. Both arguments lack merit.
We find no merit whatever in Covert's argument that the court's use of the 1995 version of § 5G1.3 violates the Ex Post Facto Clause of the Constitution. 4 The sentencing guidelines require the district court to use the sentencing guidelines manual that is in effect on the date that the defendant is sentenced unless the court determines that the use of that manual would violate the Ex Post Facto Clause of the Constitution. When that happens, the court is to use the manual in effect on the date that the offense of the conviction was committed. See USSG § 1B1.11(a) and (b).
Initially, we note no ex post facto violation would have occurred even were the 1995 version to have been used. This court has recently determined that application of the 1995 version of § 5G1.3(c) does not violate the Ex Post Facto Clause because it does not "increase the punishment to which [the defendant] is subject or criminalize activity that was legal at an earlier date." United States v. Jackson, No. 95-6530, 1997 WL 7516, * 3 (6th Cir. Jan.8, 1997) (unpublished). Rather, it "merely refines the process of determining the 'reasonable punishment' to be imposed upon a defendant subject to an undischarged term of imprisonment." Ibid.
Moreover, nothing in the record supports Covert's contention that the district court used the 1995 version of the guidelines. Rather, it appears that the court used the 1994 version of the guidelines, wherein § 5G1.3(c) was identical to the 1992 version. Covert argues that the 1995 version of the guidelines was used, based simply on the fact that he was sentenced on November 29, 1995. 5 However, this reasoning does not comport with the record. First, the PSR used the November 1994 version of the guidelines because Covert had originally been scheduled to be sentenced on October 24, 1995. Second, there is no indication in the record that the district court departed from the version used in the PSR. Rather, the arguments by counsel at the sentencing hearing suggest that the court in fact used the 1994 version: counsels' arguments centered on the methodology in the pre-amendment version of § 5G1.3, a methodology that, as discussed above, was abandoned in the 1995 version. Had the court been sentencing Covert under the 1995 version of the guidelines, it would not have entertained arguments based only on the earlier version.
Finally, Covert never objected to, or questioned in any manner, the version of the guidelines that the court applied. Thus, any error could only be reviewed for plain error. See United States v. Sherrod, 33 F.3d 723, 724 (6th Cir.1994), cert. denied, 514 U.S. 1005, 115 S.Ct. 1317, 131 L.Ed.2d 198 (1995). It is clear from the record that the court's use of either the 1994 or 1995 version did not constitute plain error.
Covert's next assignment of error is also without merit. Basically, he argues that the...
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