U.S. v. Guerrero, 92-8358

• Decision Date: 18 October 1993
• Docket Number: No. 92-8358,92-8358
• Citation: 5 F.3d 868
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Benny GUERRERO, Defendant-Appellant.
• Court: U.S. Court of Appeals — Fifth Circuit

Page 868

5 F.3d 868

UNITED STATES of America, Plaintiff-Appellee, v. Benny GUERRERO, Defendant-Appellant.

No. 92-8358.

United States Court of Appeals, Fifth Circuit.

Oct. 18, 1993.

Mari C. Haley, Hewitt, TX (Court-appointed), for defendant-appellant.

Diane D. Kirstein, Richard L. Durbin, Jr., Asst. U.S. Attys., James DeAtley, U.S. Atty., San Antonio, TX, for plaintiff-appellee.

Appeal from the United States District Court for the Western District of Texas.

Before GARWOOD, DAVIS and SMITH, Circuit Judges.

GARWOOD, Circuit Judge:

Defendant-appellant Benny Guerrero (Guerrero) was convicted, pursuant to his plea of guilty, of possession of a firearm by a felon in violation of 18 U.S.C. Secs. 922(g)(1) and 924(a) (count one), and of possession of a stolen firearm in violation of 18 U.S.C. Secs. 922(j) and 924(a)(2) (count two). At the same time, he pleaded "true" to the government's previously filed sentencing enhancement information alleging three prior violent felony convictions. Guerrero was determined to be an armed career criminal and was sentenced to concurrent terms of 240 months in prison as to count one and 120 months in prison as to count two. Guerrero now appeals the district court's application of the Sentencing Guidelines, although he failed to raise any such objection at his sentencing. Finding no plain error, we affirm.

Facts and Proceedings Below

On January 22, 1992, Guerrero and Louis Beltran (Beltran), both convicted felons, burglarized two residences in Bell County, Texas. Both individuals entered the first home and removed a television set. Guerrero claimed that he waited in the car as a lookout while Beltran broke into the second residence and removed several items including a Winchester 30-30 caliber rifle and four shotguns. ¹ Guerrero and Beltran transported the stolen firearms to the residence of their main "fence," Moses Resendez. On January 23, investigators from the McLennan County Sheriff's Department and the Waco Police Department observed Guerrero and Beltran at the Resendez residence. Resendez admitted they had placed stolen property in his residence and voluntarily signed a consent to search the premises and his car. Law enforcement officials found the five stolen firearms in the trunk of the car. On March 3, 1992, the Bureau of Alcohol, Tobacco and Firearms test-fired the weapons and found each to function properly.

The Presentence Investigation Report (PSI) indicated that, prior to January 1992, Guerrero had been convicted of several violent felonies in McLennan County, Texas, including: robbery on September 6, 1984; burglary of a building on January 7, 1988; burglary of a habitation on October 11, 1989; and burglary of a building on October 11, 1989. The PSI also listed several other charges that were either dismissed or pending. In addition, the PSI indicated that Guerrero was on parole until June 3, 2014, for his sentences in the October 11, 1989, burglaries and that he committed the instant offenses within six months of his release from the Texas Department of Corrections on August 29, 1991. Based on his prior convictions and parole status, Guerrero's criminal history category was VI. ²

The PSI determined Guerrero's base offense level to be thirty-four according to the armed career criminal guideline, U.S.S.G. Sec. 4B1.4(b)(3)(A). Guerrero received a two-point reduction in offense level for acceptance of responsibility, leaving a total offense level of thirty-two. ³ The imprisonment range for a defendant with a criminal history category of VI and a total offense level of thirty-two is 210-262 months. See U.S.S.G., Ch. 5, Part A. The district court sentenced Guerrero to 240 months in prison as to count one and 120 months as to count two, both sentences to run concurrently. Guerrero appeals only the application of the Sentencing Guidelines.

Discussion

The sole issue raised on appeal is whether the district court erred in imposing a base offense level of thirty-four under U.S.S.G. Sec. 4B1.4(b)(3)(A) based on its finding that Guerrero possessed the firearms in connection with a crime of violence, burglary of a habitation. Guerrero did not object to this finding below. ⁴ Thus, since the issue is raised for the first time on appeal, we will only review the district court's actions for plain error. United States v. Hoster, 988 F.2d 1374, 1380 (5th Cir.1993); United States v. Navejar, 963 F.2d 732, 734 (5th Cir.1992); United States v. Lopez, 923 F.2d 47, 49 (5th Cir.) (per curiam), cert. denied, --- U.S. ----, 111 S.Ct. 2032, 114 L.Ed.2d 117 (1991). "Plain error is error so obvious that [this Court's] failure to notice it would seriously affect the fairness, integrity, or public reputation of [the] judicial proceeding...." Hoster, 988 F.2d at 1380 (internal quotations omitted). Given the limited scope of our review, we consider all evidence in the record supporting the enhancements and will uphold the sentence "if the record as a whole demonstrates that the adjustments did not result in a miscarriage of justice." United States v. Pattan, 931 F.2d 1035, 1043 (5th Cir.1991), cert. denied, --- U.S. ----, 112 S.Ct. 2308, 119 L.Ed.2d 229 (1992). We conclude that the district court did not plainly err in finding that Guerrero possessed the firearms in connection with a crime of violence.

Guerrero pleaded guilty to a violation of 18 U.S.C. Sec. 922(g)(1), which prohibits any person who has been convicted of a crime punishable by imprisonment for a term exceeding one year to transport, possess, or receive any firearm that is in or affects interstate commerce. A defendant convicted under section 922(g) who has three previous convictions for violent felonies is subject to sentence enhancement under 18 U.S.C. Sec. 924(e), ⁵ and is deemed an "armed career criminal" under U.S.S.G. Sec. 4B1.4(a). As an armed career criminal, Guerrero's offense level is increased to thirty-four if he "used or possessed the firearm ... in connection with a crime of violence," or thirty-three otherwise. U.S.S.G. Sec. 4B1.4(b)(3). Guerrero does not dispute that he committed a burglary of a habitation, or that burglary of a habitation is a crime of violence as defined by U.S.S.G. Sec. 4B1.2(1)(ii). He contends, however, that he did not possess the stolen firearms "in connection with" the burglary.

Guerrero argues that he could not have possessed the firearms in connection with the burglary because he remained outside the house as a lookout, and, therefore, his accomplice completed the burglary before he gained possession. ⁶ We reject this contention for two reasons. First, Beltran's version of the burglary was that Guerrero did not wait in the car but rather actively participated by prying open the back door and breaking into the gun cabinet. Questions of fact "capable of resolution by the district court upon proper objection at sentencing can never constitute plain error." Lopez, 923 F.2d at 50. Next, even if we assume Guerrero remained outside the residence, he could still be responsible for the criminal acts of his confederate. Specifically, the Guidelines hold a defendant accountable for "all acts ... committed, aided, abetted, counseled, commanded, induced, procured, or willfully caused by the defendant ... that occurred during the commission of the offense of conviction, in preparation for that offense, or in the course of attempting to avoid detection or responsibility for that offense." Section 1B1.3(a)(1)(A). ⁷ Participation as a lookout and assistance in carrying the stolen firearms to the car facilitated the commission of the burglary and helped the burglars avoid detection. Thus, it would not be plain error to hold Guerrero accountable for the possession of the firearms by Beltran. See United States v. Raborn, 872 F.2d 589, 595-96 (5th Cir.1989).

Section 4B1.4(b)(3)(A) does not define possession "in connection with" a crime of violence. The government submits that we should give the term "in connection with" a straightforward and literal interpretation, and should accordingly apply the enhancement because Guerrero did, in fact, physically possess firearms during the commission of a burglary. In the absence of any statutory definition, we construe this phrase according to its ordinary and natural meaning. Smith v. United States, --- U.S. ----, ----, 113 S.Ct. 2050, 2054, 124 L.Ed.2d 138 (1993); Perrin v. United States, 444 U.S. 37, 43, 100 S.Ct. 311, 314, 62 L.Ed.2d 199 (1979). The Supreme Court reads terms such as "used or possessed" quite expansively in the context of firearms. For instance, in order to prove a criminal defendant "use[d] a firearm ...' during and in relation to any crime of violence or drug trafficking crime,' " for purposes of 18 U.S.C. Sec. 924(c)(1), the government need not show the firearm was even "use[d] as a weapon." Smith, --- U.S. at ---- - ----, 113 S.Ct. at 2053-54. In Smith, the Court held that a defendant who traded a firearm for cocaine used the firearm in relation to a drug offense even though he did not "use it for its intended purpose." ⁸ Id. --- U.S. at ---- - ----, 113 S.Ct. at 2054-55. The Court admitted that using a machine gun as a medium for exchange is not the expected manner of use but determined that section "924(c)(1)'s language sweeps broadly, punishing any 'us[e]' of a firearm, so long as the use is 'during and in relation to' a drug trafficking offense." Id. --- U.S. at ----, 113 S.Ct. at 2054. As the Court explained:

"It is one thing to say that the ordinary meaning of 'uses a firearm' includes using a firearm as a weapon, since that is the intended purpose of a firearm and the example of 'use' that most immediately comes to mind. But it is quite another to conclude that, as a result, the phrase also excludes any other use. Certainly that conclusion does not follow from the phrase 'uses ... a firearm' itself." Id. --- U.S. at ----, 113 S.Ct. at 2055.

When determining the ordinary meaning of section 4B1.4(b)(3)(A)'s phrase "possessed...