U.S. v. Farnsworth

• Decision Date: 06 August 1996
• Docket Number: No. 94-4238,94-4238
• Citation: 92 F.3d 1001
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Charles Verdel FARNSWORTH, Defendant-Appellant.
• Court: U.S. Court of Appeals — Tenth Circuit

Page 1001

92 F.3d 1001

UNITED STATES of America, Plaintiff-Appellee, v. Charles Verdel FARNSWORTH, Defendant-Appellant.

No. 94-4238.

United States Court of Appeals Tenth Circuit.

Aug. 6, 1996.

David Schwendiman, Assistant United States Attorney, Salt Lake City, Utah (Scott M. Matheson, Jr., United States Attorney Salt Lake City, Utah, and Brooke C. Wells, Assistant United States Attorney, with him on the brief), for Plaintiff-Appellee.

Vicki Mandell-King, Assistant Public Defender, Denver, Colorado (Michael G. Katz, Federal Public Defender, Denver, Colorado, with her on the brief), for Plaintiff for Defendant-Appellant.

Before BALDOCK, EBEL and BRISCOE, Circuit Judges.

EBEL, Circuit Judge.

Charles Verdel Farnsworth was convicted under 18 U.S.C. § 922(g)(1) of being a felon in possession of a firearm. The district court enhanced Farnsworth's sentence based on its findings that: (1) Farnsworth previously had been convicted of two crimes of violence; (2) the possession of a firearm was in connection with another felony; and (3) Farnsworth was guilty of obstruction of justice. Farnsworth appeals his conviction on the grounds that § 922(g) is unconstitutional. He also appeals his sentence. We AFFIRM Farnsworth's conviction, but REMAND his case for resentencing.

I.

On November 8, 1993, Officer James Washington responded to a call that a fight involving a gun was in progress at an apartment building in Salt Lake City. Upon arriving at the location, Officer Washington was told by the complainant, Janet Elliot, that defendant Farnsworth had confronted her in the parking lot and had threatened her with a gun. ¹ Elliot told Officer Washington that Farnsworth had left in a red truck with another woman, who was later identified as Marlene Porter.

Officer Washington broadcast an "attempt to locate" the truck. The truck was spotted at a grocery store three blocks away, where Porter and Farnsworth were taken into custody. Officer Washington conducted a pat-down search of Farnsworth. He discovered a knife in Farnsworth's front waistband, a loaded .25 caliber pistol in Farnsworth's right rear pocket, and additional ammunition in his front pocket. Farnsworth was charged with being a felon in possession of a firearm in violation of 18 U.S.C. § 922(g)(1). ²

At trial, Farnsworth stipulated that he previously had been convicted of vehicular manslaughter, a felony under California law, and that the gun found in his possession was a "firearm" within the meaning of 18 U.S.C. § 921(a)(3). However, he asserted a justification defense. Farnsworth testified that before the night in question, he had encountered Janet Elliot's husband, Cheyenne Boyer, in the same parking lot. According to Farnsworth, Boyer had menacingly waved a gun at Farnsworth, Marlene Porter and a third individual. John Hardiwell, an acquaintance of Farnsworth who claimed to have witnessed the encounter, corroborated this account. Farnsworth testified that on November 8, the night he was arrested, he was in an apartment in the building when he saw Boyer's car pull into the parking lot. He was unable to tell who was in the car. He testified that he saw the car stop and the passenger window come down, and feared that someone would start shooting into the apartment. He asserted that he therefore started out to confront Boyer, arming himself with the knife. Farnsworth testified that he took the gun only at the urging of Marlene Porter, and denied threatening Elliot with the gun or even taking the gun out of his pocket. ³ Marlene Porter, however, testified that Cheyenne Boyer had never pointed a gun at her, and denied seeing Boyer threaten Farnsworth. Porter also testified that when she visited Farnsworth in jail, he "wanted me to say that I gave him the gun. I did not give him the gun." The jury convicted Farnsworth of violating § 922(g)(1).

Farnsworth's presentence report identified two prior "crimes of violence": his convictions for vehicular manslaughter and for possession of an unregistered destructive device. The report also stated that Farnsworth qualified for a four-level enhancement for possessing a firearm in connection with another felony offense; namely, aggravated assault on Janet Elliot. Finally, the report recommended a two-level upward adjustment for obstruction of justice based on Farnsworth's alleged attempt to persuade Porter to change her testimony. Farnsworth timely objected to each of these proposed sentencing enhancements, and renewed these objections at sentencing. The district court adopted the findings in the presentence report, and imposed the statutory maximum of 120 months imprisonment. ⁴ Farnsworth appeals his conviction and his sentence.

II.

Farnsworth initially argued on appeal that 18 U.S.C. § 922(g) is unconstitutional as beyond Congress' authority to regulate interstate commerce. His claim was based on United States v. Lopez, 514 U.S. 549, 115 S.Ct. 1624, 131 L.Ed.2d 626 (1995), in which the Supreme Court held that Congress in enacting the Gun-Free School Zone Act had exceeded its interstate commerce powers. Farnsworth concedes, however, that such an argument has been foreclosed by this Circuit's decision in United States v. Bolton, 68 F.3d 396, 400 (10th Cir.1995), cert. denied, --- U.S. ----, 116 S.Ct. 966, 133 L.Ed.2d 887 (1996), which upheld § 922(g) against an identical Lopez challenge. We, of course, cannot overrule the decision of another panel. United States v. Zapata, 997 F.2d 751, 759 n. 6 (10th Cir.1993) (citation omitted).

Nonetheless, Farnsworth maintains that even if Section 922(g) is facially valid, the statute was unconstitutionally applied to him. He posits that for a defendant constitutionally to be convicted under the statute after Lopez, it must be shown that the individual defendant's activity had a "substantial effect" on interstate commerce; a mere "minimal nexus" is no longer sufficient. This argument, too, has been rejected. In Bolton, the appellant challenged his conviction under the Hobbs Act on the ground that, under Lopez, the government was required to show that his actions had a substantial effect on interstate commerce. We responded:

Lopez did not ... require the government to show that individual instances of the regulated activity substantially affect commerce to pass constitutional muster under the Commerce Clause. Rather, the Court recognized that if a statute regulates an activity which, through repetition, in aggregate has a substantial affect on interstate commerce, "the de minimis character of individual instances arising under that statute is of no consequence."

Id. at 399 (citations omitted)(emphasis in original). We thus concluded that "under Lopez, all the government need show is a de minimis effect on interstate commerce in order to support a conviction under the [Hobbs] Act." Id. See also United States v. Grey, 56 F.3d 1219, 1225-26 (10th Cir.1995) (recognizing after Lopez that a minimal effect on interstate commerce is sufficient to establish federal jurisdiction under the money laundering statute). Here, the government presented expert testimony that Farnsworth's gun had been manufactured in a different state from that in which it was found. "Section 922(g)'s requirement that the firearm have been, at some time, in interstate commerce is sufficient to establish its constitutionality under the Commerce Clause," Bolton, 68 F.3d at 400 (citation omitted), and the de minimis effect of Farnsworth's own actions on interstate commerce does not invalidate his conviction. We therefore affirm Farnsworth's conviction under section 922(g).

III.

Farnsworth also raises a number of challenges to his sentence. We review questions of law regarding the application of the Sentencing Guidelines de novo. United States v. Wacker, 72 F.3d 1453, 1476 (10th Cir.1995), cert. denied, --- U.S. ----, 117 S.Ct. 136, 136 L.Ed.2d 84(1996). However, if an objection is not raised at the sentencing hearing, the challenged interpretation is reviewed only for plain error. United States v. Nelson, 36 F.3d 1001, 1003 (10th Cir.1994).

A. Prior Crimes of Violence

Farnsworth first contests the district court's enhancement of his sentence based on two prior felony convictions for crimes of violence. In calculating Farnsworth's sentence, the district court applied U.S.S.G. § 2K2.1(a)(2). That Guideline mandates an enhanced base offense level of 24 "if the defendant had at least two prior felony convictions of ... a crime of violence." The district court, relying on the presentence report, found two such prior crimes of violence: (1) a 1972 conviction for possession of an unregistered destructive device; and (2) a 1984 conviction for vehicular manslaughter. On appeal, Farnsworth asserts that the 1972 conviction for possession of an unregistered destructive device was too ancient to be counted under the Guideline. We agree.

The Commentary to § 2K2.1(a)(2) directs that when determining the number of prior convictions under that subsection, the court is to count "any such prior conviction that receives any points under § 4A1.1 (Criminal History Category)." U.S.S.G. § 2K2.1, comment., n. 5. The definitions for purposes of computing criminal history under § 4A1.1 are contained in Section 4A1.2(e), which provides that "[a]ny prior sentence of imprisonment exceeding one year and one month that was imposed within fifteen years of the defendant's commencement of the instant offense is counted," as well as any sentence of the requisite length "that resulted in the defendant being incarcerated during any part of such fifteen-year period." (emphasis added). Farnsworth's sentence for possession of an unregistered destructive device was imposed on December 18, 1972, and his sentence expired in 1976. The government concedes that, according to the commentary to § 2K2.1, the 1972 conviction should not have been counted because it was outside the fifteen-year period for receiving criminal history points under § 4A1.1. Indeed,...