U.S. v. Damon

• Decision Date: 18 February 2010
• Docket Number: No. 09-1705.,09-1705.
• Parties: UNITED STATES, Appellee, v. James DAMON, Defendant, Appellant.
• Court: U.S. Court of Appeals — First Circuit

595 F.3d 395

UNITED STATES, Appellee, v. James DAMON, Defendant, Appellant.

No. 09-1705.

United States Court of Appeals, First Circuit.

Heard January 6, 2010.

Decided February 18, 2010.

Virginia G. Villa, Assistant Public Defender, for appellant.

Margaret D. McGaughey, Appellate Chief with whom Paula D. Silsby, United States Attorney, was on brief for appellee.

Before LYNCH, Chief Judge, SOUTER, Associate Justice,^* and SELYA, Circuit Judge.

LYNCH, Chief Judge.

Defendant James Damon pleaded guilty to the underlying offense of felon firearm possession in violation of a provision of the Armed Career Criminal Act ("ACCA"), 18 U.S.C. § 922(g)(1). He appeals his sentence of seventy months' imprisonment and three years of supervised release. Damon received two sentencing enhancements under U.S.S.G. § 2K2.1, the sentencing guideline applicable to firearm offenses. The district court held that under U.S.S.G. § 2K2.1(a)(1), Damon had two prior felony convictions for either controlled substance offenses or crimes of violence. Damon received another enhancement under U.S.S.G. § 2K2.1(a)(1) because his offense involved three or more firearms. He challenges both enhancements. We affirm the sentence.

As to the first enhancement, Damon argues that when the Sentencing Commission used the phrase "punishable by imprisonment by a term of one year or more" to define the Sentencing Guidelines terms "felony conviction" and "controlled substance offense," U.S.S.G. § 2K2.1 cmt. n. 1, it intended to incorporate the definition of that phrase in 18 U.S.C. § 921(a)(20)(B), a provision of the ACCA. The ACCA definition excludes state convictions that the state classifies as misdemeanors if they are punishable by less than two years' imprisonment. Had the ACCA definition applied, Damon would have only been sentenced based on a single prior felony conviction for a crime of violence. We hold that the Commission did not intend to use the ACCA's definition and that Damon's second conviction was clearly a "felony conviction" for a "controlled substance offense" based on the definitions of those terms the Commission adopted.

As to the second enhancement, Damon argues that his offense did not "involve" three or more firearms, as U.S.S.G. § 2K2.1(b)(1)(A) requires, because he "possessed" only the firearm that a proxy purchased for him. He did not "possess" the other two firearms the proxy obtained for his associates, he says, because he only handled those guns briefly while he considered which gun he wanted the proxy to buy. He claims that this kind of fleeting contact does not meet the definition of "possession" under the Guideline. That, however, is the wrong question, since this enhancement does not merely apply to possession. The relevant question under the Guideline is whether, on the basis of Damon's own actions and other relevant conduct, his offense involved efforts to unlawfully obtain, distribute, or possess other firearms. Damon's involvement in his associates' simultaneous attempts to obtain the other two guns from the same pawnbroker, at the same time, and through the same proxy, is relevant conduct. We hold that Damon's offense "involved" these other two guns as well as the one he sought to obtain for himself and that the enhancement therefore applied.

I.

The uncontested facts are as follows. On October 11, 2007, Damon and two male associates, Christopher Riley and Levar Carey, all residents of Massachusetts, traveled to Frati the Pawnbrokers, a pawnshop in Bangor, Maine, to look at guns. All three men arrived at the same time, along with Katrina Wickett, a Maine resident, and another woman. The store videotape showed that Damon handled at least three guns himself, including a Springfield Armory .45 caliber pistol, an Israel Military Industries Desert Eagle 9mm caliber pistol, and a Glock .45 caliber pistol. The three men talked with one another frequently as they considered the guns and passed them around to each other. Damon and Riley had also handled firearms on a previous trip the two had made to Frati the Pawnbrokers in September 2007.

Katrina Wickett then purchased all three pistols for the men. She filled out the relevant forms while the three men looked on and paid with $400 that Damon gave her for the Springfield pistol, money from the other men, and an additional sum that Riley gave her inside the shop when the total bill exceeded the cash she had on hand. The plan was for Wickett and the men to return to her house in separate cars. Wickett kept the guns in her car. The pawnbroker, suspicious of the sale, asked Wickett to come back in forty-five minutes, saying that she would need to address a paperwork issue before she could take the guns with her. Wickett then left the store with Damon, Riley, Carey, and the other woman. The pawnbroker called a U.S. Bureau of Alcohol, Tobacco, Firearms and Explosives ("ATF") Task Force officer, who arrived at the pawnshop in time to conduct surveillance of the store when Wickett returned, this time with only the other female accompanying her. The pawnbroker handed Wickett the three guns and she left; the ATF officer then approached and interviewed her at her home. Wickett turned the guns over to the officer and explained to both the officer and police that Damon and his two associates had arranged for her to buy these three guns for them.

Damon was arrested on August 15, 2008. He, Carey, and Riley were charged together with various firearms offenses.¹ All three men were felons. At this point, Damon had two relevant prior convictions. In 2005, he had been convicted in Massachusetts of possessing a Class D controlled substance with intent to distribute, which carried a potential sentence of two years' imprisonment under Massachusetts law. In 2006, he had also been convicted of assault and battery, which carried a potential sentence of thirty months' imprisonment under Massachusetts law.

On December 1, 2008, Damon pleaded guilty to felon firearm possession. The pre-sentence report (PSR) used the 2008 version of the Guidelines and recommended a base offense level of 24 by applying U.S.S.G. § 2K2.1(a)(2), the guideline applicable to defendants who already have at least two previous felony convictions involving either a crime of violence or a controlled substance. The PSR also recommended a two-level enhancement under U.S.S.G. § 2K2.1(b)(1)(A), for offenses involving between three and seven firearms. The PSR then applied a two-level downward adjustment for acceptance of responsibility and an additional one-level downward adjustment at the government's request. The PSR recommended a total offense level of 23, which, in conjunction with Damon's criminal history category, corresponded to a Guidelines sentencing range of seventy to eighty-seven months' imprisonment.

The district court adopted these recommendations at sentencing and sentenced Damon to seventy months' imprisonment, the lowest Guidelines sentence, and three years' supervised release.

II.

We review questions regarding the legal interpretation of the Guidelines de novo and review challenges to the application of the Guidelines based on a sliding scale. United States v. Sicher, 576 F.3d 64, 70 n. 6 (1st Cir.2009). The Government must show the facts supporting an enhancement by a preponderance of the evidence. Id. at 70.

A. Sentencing under U.S.S.G. § 2K2.1(a)(1) for Commission of the Offense Following Two Prior Felony Convictions

Section 2K2.1(a)(2) of the Guidelines applies if "the defendant committed any part of the instant offense subsequent to sustaining at least two felony convictions of either a crime of violence or a controlled substance offense." U.S.S.G. § 2K2.1(a)(2). Application Note 1 defines a "felony conviction" as a "prior adult federal or state conviction for an offense punishable by death or imprisonment for a term exceeding one year, regardless of whether such offense is specifically designated as a felony and regardless of the actual sentence imposed." U.S.S.G. § 2K2.1 cmt. n. 1. It also defines a "controlled substance offense" as "an offense under federal or state law, punishable by imprisonment for a term exceeding one year, that prohibits," inter alia, "the possession of a controlled substance . . . with intent to . . . distribute." Id. (giving this term its definition under U.S.S.G. § 4B1.2(b)). The meaning of this guideline is a question of law, and our review is de novo.

Damon argues that the Sentencing Commission deliberately used the term "offense punishable by imprisonment for a term exceeding one year" in the commentary to incorporate the statutory definition of that term in 18 U.S.C. § 921(a)(20)(B), a provision of the ACCA.² Section 921(a)(20)(B) defines that term to exclude "any State offense classified by the laws of the State as a misdemeanor and punishable by a term of imprisonment of two years or less." 18 U.S.C. § 921(a)(20)(B). Damon's 2005 conviction for possessing a Class D controlled substance with intent to distribute was a misdemeanor with a maximum two-year sentence under Massachusetts law. Under Damon's interpretation of U.S.S.G. § 2K2.1(a)(2), this conviction would not count as a felony.

We reject this argument. Congress has not required the Commission to adopt the ACCA's definition of an offense "punishable by imprisonment for a term exceeding one year" for purposes of defining a "felony conviction" or a "controlled substance offense" in U.S.S.G. § 2K2.1, nor does Damon so argue. The plain language, context, and history of this guideline demonstrate that the Commission did not intend to adopt the ACCA definition. Rather, the Commission used the phrase "punishable by imprisonment for a term exceeding one year" without any hidden limitations when defining a "felony conviction" and a "controlled substance offense" in the commentary to U.S.S.G. § 2K2.1. The Commission had no intention to so limit these categories of offenses; when it did intend limits, it said so...