U.S. v. Ellsworth

• Decision Date: 09 August 2006
• Docket Number: No. 05-10365.,05-10365.
• Citation: 456 F.3d 1146
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Robert Dean ELLSWORTH, Defendant-Appellant.
• Court: U.S. Court of Appeals — Ninth Circuit

456 F.3d 1146

UNITED STATES of America, Plaintiff-Appellee, v. Robert Dean ELLSWORTH, Defendant-Appellant.

No. 05-10365.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted April 6, 2006.

Filed August 9, 2006.

Cynthia S. Hahn, Assistant Federal Public Defender, Reno, NV, for the defendant-appellant.

Robert Don Gifford, Assistant United States Attorney, Reno, NV, for the plaintiff-appellee.

Appeal from the United States District Court for the District of Nevada; Larry R. Hicks, District Judge, Presiding. D.C. No. CR-04-00035-LRH.

Before: GOODWIN, B.FLETCHER and FISHER, Circuit Judges.

FISHER, Circuit Judge:

Robert Dean Ellsworth was convicted of robbery and first degree murder and sentenced to life imprisonment with the possibility of parole by a Nevada state court in 1988. He was paroled after serving 16 years. One year and one day after his release, he was arrested while in the possession of a loaded nine millimeter semiautomatic handgun. A subsequent search of his car and room uncovered additional ammunition and a shoulder holster for the weapon. Ellsworth pled guilty to being a felon in possession of a firearm in violation of 18 U.S.C. § 922(g)(1).

At the sentencing hearing and over Ellsworth's objection, the district court applied a two-level offense enhancement in accordance with the advisory Sentencing Guidelines because the firearm he possessed was stolen. See U.S.S.G. § 2K2.1(b)(4) (2003). The government admitted that it could not prove Ellsworth knew that the gun was stolen, but according to the terms of this particular Guideline, knowledge is not necessary for this offense enhancement to apply. See id.; see also id. cmt. n. 19 ("The enhancement under subsection (b)(4) for a stolen firearm ... applies whether or not the defendant knew or had reason to believe that the firearm was stolen ...."). The district court also increased Ellsworth's criminal history score by two categories because the court found that the Guidelines' criminal history calculation significantly underrepresented the seriousness of Ellsworth's prior offenses. Accordingly, the district court imposed a 78-month sentence — roughly double the length the probation office had recommended in its presentence report but well within the 10-year statutory maximum for a § 922(g)(1) offense. See 18 U.S.C. § 924(a)(2).

Ellsworth appeals the two-level offense enhancement for the stolen gun, arguing that the absence of a scienter requirement for stolen weapons is unconstitutionally irrational given that knowledge is required for possession of stolen explosives. He also challenges the two-category increase in his criminal history score and the overall reasonableness of his sentence. We have jurisdiction under 28 U.S.C. § 1291, and we affirm.

I. Standard of Review

We review the constitutionality of a Sentencing Guideline de novo. See United States v. Marcial-Santiago, 447 F.3d 715, 717 (9th Cir.2006). Further, we "review[ ] the district court's interpretation of the Sentencing Guidelines de novo, the district court's application of the Sentencing Guidelines to the facts of this case for abuse of discretion, and the district court's factual findings for clear error." United States v. Kimbrew, 406 F.3d 1149, 1151 (9th Cir.2005). "Even though the Guidelines are no longer mandatory after ... United States v. Booker, the district court should still consult them for advice as to the appropriate sentence, and we therefore address the merits of" challenges to the district court's interpretation and application of the Guidelines. Id. at 1152 (internal citations omitted). "In the absence of Guidelines application error, ... we will then proceed to address challenges to the reasonableness of the sentence." United States v. Cantrell, 433 F.3d 1269, 1280 (9th Cir.2006).

II. Knowledge that the Firearm Was Stolen

Ellsworth contends that the Sentencing Guidelines violate his Fifth Amendment right to equal protection by treating supposedly similarly situated felons differently without a rational basis. Specifically, the Guidelines impose a two-level sentencing enhancement for possession of a stolen firearm regardless of knowledge that the firearm was stolen, see U.S.S.G. § 2K2.1(b)(4) (2003), whereas the two-level enhancement for possession of stolen explosives applies only when "the defendant knew or had reason to believe" the explosives were stolen, see id. § 2K1.3(b)(2). Ellsworth argues that the relatively harsher treatment of felons in possession of stolen firearms is irrational because "stolen explosives ... are far more dangerous" than stolen firearms. We disagree, and hold that the Guidelines' different scienter requirements for stolen firearms and stolen explosives are rationally related to a legitimate government interest and thus there is no equal protection violation.

Both before and after United States v. Booker, 543 U.S. 220, 125 S.Ct. 738, 160 L.Ed.2d 621 (2005), we have applied the rational basis standard of review to equal protection challenges to the Sentencing Guidelines based on a comparison of allegedly disparate sentences. See Marcial-Santiago, 447 F.3d at 719 (applying rational basis review to equal protection challenge comparing length of sentences in jurisdictions that had adopted "fast-track" sentencing programs to those in jurisdictions that had not); United States v. Harding, 971 F.2d 410, 412 (9th Cir.1992) (holding that differences in sentences between crack and powder cocaine offenses "implicate[] neither a suspect class nor a fundamental right" and therefore rational basis scrutiny is appropriate); United States v. Fine, 975 F.2d 596, 604 (9th Cir.1992) (applying rational basis review to distinction between which offenses are groupable under U.S.S.G. § 3D1.2(d) and which are not, and recognizing that "[t]he Due Process Clause of the Fifth Amendment precludes the imposition of punishment based on arbitrary distinctions, and, in the sentencing context, `essentially duplicates' an argument based on equal protection") (quoting Chapman v. United States, 500 U.S. 453, 465, 111 S.Ct. 1919, 114 L.Ed.2d 524 (1991)).

Under rational basis review, the distinction for sentencing purposes between felons in possession of stolen firearms and those in possession of stolen explosives "must be upheld against equal protection challenge if there is any reasonably conceivable state of facts that could provide a rational basis for the classification." FCC v. Beach Commc'ns, 508 U.S. 307, 313, 113 S.Ct. 2096, 124 L.Ed.2d 211 (1993) (emphasis added). It is reasonably conceivable that although explosives are in theory more deadly than firearms when compared on an individualized basis, stolen firearms are more readily obtainable by felons and therefore more deadly than stolen explosives in the aggregate. "Or so the legislature may think." Williamson v. Lee Optical of Okla., Inc., 348 U.S. 483, 489, 75 S.Ct. 461, 99 L.Ed. 563 (1955); see also id. at 487-88, 75 S.Ct. 461 (upholding an Oklahoma law under equal protection rational basis review by positing numerous hypothetical justifications for the law without considering whether or not the legislature actually considered such justifications).

Two other circuits have expressly noted the "great dangers" posed by ex-felons in possession of stolen firearms and reasoned that the absence of a scienter requirement in § 2K2.1(b)(4) "reflects this heightened danger." United States v. Schnell, 982 F.2d 216, 221 (7th Cir.1992) (citing United States v. Mobley, 956 F.2d 450, 454 (3d Cir.1992)). Relying on Mobley and Schnell, we have recognized that the two-level enhancement for stolen firearms in § 2K2.1(b)(4) "was promulgated on the premise that stolen firearms are used disproportionately in the commission of crimes" and that "an ex-felon who obtains a stolen firearm is more culpable than one who legally obtains a firearm." United States v. Goodell, 990 F.2d 497, 499 (9th Cir.1993) (relying on rational basis review to uphold § 2K2.1(b)(4) against a due process challenge).¹

Further, a "legislature must be allowed leeway to approach a perceived problem incrementally" without violating the Equal Protection Clause. Beach Communications, 508 U.S. at 316, 113 S.Ct. 2096 (relying on Williamson, 348 U.S. at 489, 75 S.Ct. 461). In the late 1980s, the Sentencing Commission decided to remove the scienter requirement from § 2K2.1(b)(4). "[B]oth the structure and the history of the guidelines clearly show that the Sentencing Commission intended to omit the element of mens rea in § 2K2.1(b)(4)." Schnell, 982 F.2d at 220 (emphasis added). The Commission took no such steps to revise § 2K1.3(b)(2), the analogous Guideline enhancement applicable to stolen explosives. The Commission's revision of § 2K2.1(b)(4) and inaction with respect to § 2K1.3(b)(2) may reflect a rational, but incremental, reform of a number of Guidelines concerned with dangerous stolen items in the possession of felons.

Lastly, Ellsworth argues that the Sentencing Commission has failed to "bow to the specific directives of Congress" with respect to § 2K2.1(b)(4). United States v. LaBonte, 520 U.S. 751, 757, 117 S.Ct. 1673, 137 L.Ed.2d 1001 (1997). More specifically, he contends that the Commission's decision to remove scienter from § 2K2.1(b)(4) "is at odds with [Congress'] plain language," id. at 757, 117 S.Ct. 1673, as expressed in 18 U.S.C. § 922(j), a statute that criminalizes the possession of a stolen firearm by "any person" who "know[s] or ha[s] reasonable cause to believe that the firearm or ammunition was stolen." But unlike the conflict addressed in LaBonte between the Sentencing Commission's commentary and Congress' intent, here there is no conflict between the lack of a scienter requirement in the § 2K2.1(b)(4) sentencing enhancement and the scienter requirement in 18 U.S.C. § 922(j).

Although superficially similar to the statutory offense in § 922(j), § 2K2.1(b)(4) is only a Guideline enhancement and not an independent...