U.S. v. Goines

• Citation: 357 F.3d 469
• Decision Date: 28 January 2004
• Docket Number: No. 01-7500.,01-7500.
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Anthony GOINES, Defendant-Appellant.
• Court: United States Courts of Appeals. United States Court of Appeals (4th Circuit)

357 F.3d 469

UNITED STATES of America, Plaintiff-Appellee, v. Anthony GOINES, Defendant-Appellant.

No. 01-7500.

United States Court of Appeals, Fourth Circuit.

Argued: May 9, 2003.

Decided: January 28, 2004.

COPYRIGHT MATERIAL OMITTED

ARGUED: Justin Sanjeeve Antonipillai, Arnold & Porter, Washington, D.C., for Appellant. Eric Matthew Hurt, Assistant United States Attorney, Abingdon, Virginia, for Appellee. ON BRIEF: John L. Brownlee, United States Attorney, Abingdon, Virginia, for Appellee.

Before WILKINS, Chief Judge, and WILKINSON and LUTTIG, Circuit Judges.

Vacated and remanded by published opinion. Chief Judge WILKINS wrote the majority opinion, in which Judge WILKINSON joins. Judge LUTTIG wrote a dissenting opinion.

OPINION

WILLIAM W. WILKINS, Chief Judge:

Anthony Goines appeals the denial of his motion to reduce his sentence pursuant to 18 U.S.C.A. § 3582(c)(2) (West 2000). We vacate and remand for further proceedings.

I.

In January 2000, Goines pled guilty to carrying a firearm during and in relation to a drug trafficking crime, see 18 U.S.C.A. § 924(c) (West 2000), and being an unlawful drug user in possession of a firearm, see 18 U.S.C.A. § 922(g)(3) (West 2000). These convictions arose from Goines' possession of a firearm while he was selling and using illegal drugs.

The district court sentenced Goines to 60 months imprisonment for the § 924(c) offense and a consecutive term of 24 months for the § 922(g) offense. These terms were the product of separate analyses under the sentencing guidelines because § 924(c) requires a consecutive sentence. See 18 U.S.C.A. § 924(c)(1)(D)(ii); U.S. Sentencing Guidelines Manual § 5G1.2(a) (1998).¹ With respect to the § 922(g) conviction, the district court, following the cross-references in U.S.S.G. § 2K2.1(c)(1)(A) and U.S.S.G. § 2X1.1(a), applied the guideline for drug trafficking, U.S.S.G. § 2D1.1. The court ultimately arrived at an adjusted offense level of 17, which included a two-level enhancement based on Goines' possession of a firearm during his drug transactions. See U.S.S.G. § 2D1.1(b)(1). This offense level, combined with Goines' criminal history category of I, yielded a sentencing range of 24 to 30 months. The court sentenced Goines at the bottom of this range. Goines did not appeal.

After the district court entered its judgment, the Sentencing Commission adopted Amendment 599. This amendment modifies Application Note 2 ("Note 2") to U.S.S.G. § 2K2.4, which governs sentencing for § 924(c) offenses. As is relevant here, Amendment 599 modified Note 2 to include the following language:

If a sentence under this guideline is imposed in conjunction with a sentence for an underlying offense, do not apply any specific offense characteristic for possession, brandishing, use, or discharge of an explosive or firearm when determining the sentence for the underlying offense. A sentence under this guideline accounts for any explosive or weapon enhancement for the underlying offense of conviction, including any such enhancement that would apply based on conduct for which the defendant is accountable under § 1B1.3 (Relevant Conduct)....

If the explosive or weapon that was possessed ... in the course of the underlying offense also results in a conviction that would subject the defendant to an enhancement under ... § 2K2.1(b)(5) (pertaining to possession of any firearm or ammunition in connection with another felony offense), do not apply that enhancement. A sentence under this guideline accounts for the conduct covered by th[at] enhancement[] because of the relatedness of that conduct to the conduct that forms the basis for the conviction under ... § 924(c).... For example, if in addition to a conviction for an underlying offense of armed bank robbery, the defendant was convicted of being a felon in possession under 18 U.S.C. § 922(g), the enhancement under § 2K2.1(b)(5) would not apply.

U.S.S.G.App. C, amend. 599 (internal quotation marks omitted).² In restricting the application of certain enhancements, the Commission sought "to avoid the duplicative punishment that results when sentences are increased under both the statutes and the guidelines for substantially the same harm." Id. (Reason for Amendment).

Relying on Amendment 599, Goines filed a § 3582(c)(2) motion asserting that his sentence should be recalculated without the § 2D1.1(b)(1) enhancement. In response, the Government conceded that Goines was legally eligible for a sentence reduction but urged that his motion be denied based on other considerations that are relevant under § 3582(c)(2). The district court, however, refused to accept the Government's concession and ruled that there was no legal basis for reducing Goines' sentence. The court reasoned that the restrictions enacted by Amendment 599 do not apply to Goines because the offense for which he received a weapons enhancement — a violation of § 922(g) — was not the offense underlying his § 924(c) conviction.

II.

We initially consider whether Goines' § 2D1.1(b)(1) enhancement was proper under Amendment 599. Although the district court held that it was, both Goines and the Government maintain that this was error. We agree with the parties.

As is relevant here, federal law provides three ways to penalize a defendant who unlawfully possessed a firearm and used or carried it during a drug trafficking offense. First, the defendant may be convicted and sentenced under § 924(c). Second, if the defendant is convicted of a drug trafficking offense (or sentenced under the drug trafficking guideline as the result of a cross-reference), U.S.S.G. § 2D1.1(b)(1) provides for a two-level enhancement "[i]f a dangerous weapon (including a firearm) was possessed." And third, if the defendant is convicted of unlawful possession of a firearm, his sentence may be enhanced for using the firearm "in connection with another felony offense." U.S.S.G. § 2K2.1(b)(5).

Note 2 addresses the circumstances in which more than one of these penalties may apply. Even before it was modified by Amendment 599, Note 2 provided that a defendant who had been convicted of a drug trafficking offense and a § 924(c) violation could not receive a § 2D1.1(b)(1) enhancement in addition to a sentence for the § 924(c) conviction. See U.S.S.G. § 2K2.4, comment. (n.2) ("Where a sentence under this section is imposed in conjunction with a sentence for an underlying offense, any specific offense characteristic for the possession, use, or discharge of an explosive or firearm ... is not to be applied in respect to the guideline for the underlying offense."). Amendment 599 makes clear that it is also improper to impose a § 2K2.1(b)(5) enhancement on a defendant who has been convicted of a firearms offense along with a § 924(c) violation. See U.S.S.G.App. C, amend. 599.

Goines' case falls within a gap between these restrictions. He was convicted of a firearms possession offense, not the drug trafficking offense "underlying" his § 924(c) conviction, but his sentence for that conviction was computed pursuant to the drug trafficking guideline (§ 2D1.1), rather than the firearms possession guideline (§ 2K2.1). Nevertheless, Amendment 599 applies.

It appears that the Commission adopted the relevant portion of Amendment 599 in response to the decision of the Eleventh Circuit in United States v. Flennory, 145 F.3d 1264 (11th Cir.1998). In Flennory, as in this case, the defendant pled guilty to violations of § 922(g) and § 924(c), and the district court computed the § 922(g) sentence by cross-referencing § 2D1.1. See id. at 1266-67. The Eleventh Circuit upheld this sentence, rejecting the defendant's claim that his sentence was unlawful under Note 2. See id. at 1269.

The commentary to Amendment 599 contrasts Flennory with United States v. Smith, 196 F.3d 676 (6th Cir.1999), which expressly rejected Flennory in order to avoid imposing multiple enhancements based on the same conduct. See U.S.S.G.App. C, amend. 599 (Reason for Amendment) (citing Smith, 196 F.3d at 679-82). The paragraph of commentary following these citations explains that the purpose of the amendment is to avoid duplicative punishments. See id. The best inference from this juxtaposition of citations and commentary is that, in adopting Amendment 599, the Sentencing Commission intended to repudiate Flennory and provide that a sentence for a § 922(g) offense may not be enhanced based on conduct that also resulted in a § 924(c) conviction. Indeed, the Eleventh Circuit has held that Amendment 599 overrules its decision in Flennory. See United States v. Brown, 332 F.3d 1341, 1345-46, 1345 n. 6 (11th Cir.2003). We agree and conclude that if Goines had been sentenced after Amendment 599 was adopted, he would not have been subject to a § 2D1.1(b)(1) enhancement.

III.

Although Goines' § 2D1.1(b)(1) enhancement was not proper under Amendment 599, this does not necessarily mean that he is eligible for relief under § 3582(c)(2). Section 3582(c)(2) authorizes the district court to reduce the sentence imposed on "a defendant who has been sentenced to a term of imprisonment based on a sentencing range that has subsequently been lowered by the Sentencing Commission pursuant to 28 U.S.C. § 994(o), ... if such a reduction is consistent with applicable policy statements issued by the Sentencing Commission."

The applicable policy statement, U.S.S.G. § 1B1.10, expressly provides that Amendment 599 may be applied retroactively in a § 3582(c)(2) proceeding. See U.S.S.G.App. C, amend. 607 (adding Amendment 599 to the list of retroactive guideline amendments in § 1B1.10(c)). Our precedent suggests that nothing more is required in order for Amendment 599 to be a proper basis for a § 3582(c)(2) motion. See United States v. Fletcher, 74 F.3d 49, 56 (4th Cir.1996) (stating that, because the amendment relied on by the movant was listed in § 1B1.10, "a sentence reduction is authorized ... pursuant to 18 U.S.C. § 3582(c)(2)"). Fletcher, however, did not...