U.S. v. Hargrove

• Decision Date: 23 February 2007
• Docket Number: No. 06-4018.,06-4018.
• Citation: 478 F.3d 195
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Keith A. HARGROVE, Defendant-Appellant.
• Court: U.S. Court of Appeals — Fourth Circuit

478 F.3d 195

UNITED STATES of America, Plaintiff-Appellee, v. Keith A. HARGROVE, Defendant-Appellant.

No. 06-4018.

United States Court of Appeals, Fourth Circuit.

Argued October 27, 2006.

Decided February 23, 2007.

ARGUED: Mary Elizabeth Maguire, Assistant Federal Public Defender, Office of the Federal Public Defender, Richmond, Virginia, for Appellant. Michael S. Day, Office of the United States Attorney, Richmond, Virginia, for Appellee.

ON BRIEF: Michael S. Nachmanoff, Acting Federal Public Defender, Richmond, Virginia, for Appellant. Chuck Rosenberg, United States Attorney, Peter S. Duffey, Assistant United States Attorney, Office of the United States Attorney, Richmond, Virginia, for Appellee.

Before WILKINS, Chief Judge, and WIDENER and MOTZ, Circuit Judges.

Affirmed in part and vacated and remanded in part by published opinion. Judge MOTZ wrote the opinion, in which Judge WIDENER joined. Chief Judge WILKINS wrote a separate opinion concurring in part and dissenting in part.

OPINION

DIANA GRIBBON MOTZ, Circuit Judge:

Keith Hargrove pleaded guilty to three drug counts and was then tried and convicted of possession of a firearm in furtherance of drug trafficking in violation of 18 U.S.C. § 924(c) (2000). In calculating his guidelines sentence, the district court denied Hargrove a two-level reduction in offense level for the drug counts for acceptance of responsibility. Hargrove appeals, asserting that he was entitled to the reduction.¹ Although the guidelines are no longer mandatory, United States v. Booker, 543 U.S. 220, 125 S.Ct. 738, 160 L.Ed.2d 621 (2005), sentencing courts must still calculate the correct guidelines range in order to fashion a reasonable sentence. See United States v. Moreland, 437 F.3d 424, 432 (4th Cir.2006). When calculating the guidelines range in this case, the district court erred in believing that it had no legal authority to grant the reduction with respect to the drug offenses after Hargrove went to trial on the 924(c) firearm charge. As explained within, although the guidelines certainly do not require a court to grant Hargrove the reduction, they do permit it. Accordingly, we vacate his sentence and remand for resentencing consistent with this opinion.

I.

On December 11, 2004, Richmond police officers Allen, Hewlett, and Lambert, riding in a marked police car in a high-crime area, observed Hargrove and another individual on the sidewalk, with their backs to the police car. As the car got closer, Hargrove's companion began to run. The police turned on a spotlight, and Officer Allen observed Hargrove pull a gun from his waistband and drop it on the ground. Officer Lambert saw Hargrove grab an object, and Officer Hewlett saw Hargrove's hand in motion. The officers tackled Hargrove and watched him release a bag of crack cocaine. The officers recovered two magazines for a pistol from Hargrove's jacket, but no bullets that would fit the .357 revolver were found on the ground.

On April 11, 2005, Alcohol, Tobacco and Firearms (ATF) Agent Oakley arrested Hargrove on the basis of a federal indictment charging him with the events of December 11, 2004. At the time of this arrest, Hargrove possessed crack cocaine packaged for distribution, but he did not have a firearm. Hargrove admitted to Agent Oakley that he had possessed crack cocaine on December 11, 2004, but denied knowledge of the .357 revolver that the police recovered from the ground. When Agent Oakley told Hargrove that he believed his fingerprints would be found on the revolver, Hargrove replied, "I'm pretty sure my prints ain't on it." In fact, none of Hargrove's fingerprints were found on the revolver.

A federal grand jury filed a seven count superseding indictment against Hargrove charging him with: (1) possession with intent to distribute crack cocaine, in violation of 21 U.S.C. § 841 (2000); (2) possession of cocaine base, in violation of 21 U.S.C. § 844 (2000); (3) possession of a firearm in furtherance of a drug trafficking crime, in violation of 18 U.S.C. § 924(c)(2000); (4) possession of a firearm and ammunition by a convicted felon, in violation of 18 U.S.C. § 922(g)(1)(2000); (5) possession of ammunition, in violation of 18 U.S.C. § 922(g)(1); (6) possession with intent to distribute cocaine base, in violation of 21 U.S.C. § 841; and (7) possession of cocaine base, in violation of 21 U.S.C. § 844. The first four counts arose from the events of December 11, 2004; the last three from those on the date of arrest, April 11, 2005. Hargrove entered pleas of guilty to counts one, five, and six, and in exchange the Government agreed to dismiss counts two, four, and seven. Hargrove went forward with a jury trial on count three, possession of a firearm in furtherance of a drug trafficking crime. After a one-day trial, the jury returned a verdict of guilty.

At sentencing, Hargrove requested that the district court grant him a two-point reduction for acceptance of responsibility pursuant to U.S.S.G. § 3E1.1 on the drug counts for which he had entered pleas of guilty. In calculating the guidelines range, the district court held that because Hargrove went to trial on the 924(c) gun count, the court had no legal authority to grant the § 3E1.1 reduction for acceptance of responsibility on the drug offenses. Accordingly, the district court refused to consider a guidelines reduction for acceptance of responsibility and sentenced Hargrove to 175 months imprisonment and a term of three years of supervised release on each of the counts to run concurrently. Hargrove appeals.

If the district court had recognized that it had the legal authority to grant Hargrove the reduction and had, in exercising that authority, denied the reduction, we would review its factual determination for clear error. See, e.g., United States v. Kise, 369 F.3d 766, 771 (4th Cir.2004). Because, however, the court believed it had no legal authority to grant Hargrove the reduction, we review this legal conclusion de novo. Cf. United States v. Hall, 977 F.2d 861, 863 (4th Cir.1992) (holding, pre-Booker, that although a district court's refusal to grant a discretionary departure from the guidelines range was "not reviewable on appeal," its "refusal to depart" because of a "perceived lack of legal authority to do so" is subject to review de novo).

II.

Hargrove argues that proceeding to trial on the 924(c) charge should not automatically preclude him from obtaining the reduction in his guidelines sentence for acceptance of responsibility, and further contends that he is, in fact, entitled to the reduction. We consider these claims in turn.

A.

In certain limited situations, for example when a statute requires a consecutive minimum sentence for an offense, a district court cannot reduce a defendant's sentence for acceptance of responsibility. See, e.g., United States v. Davis, 380 F.3d 183, 195 (4th Cir.2004). However, even prior to Booker, we have repeatedly reiterated that in most cases district courts are uniquely qualified to evaluate whether to grant or deny a sentence reduction for acceptance of responsibility. See, e.g., Elliott v. United States, 332 F.3d 753, 766 (4th Cir.2003); United States v. Castner, 50 F.3d 1267, 1279 (4th Cir.1995).

Our case law properly follows from the guidelines themselves. Section 3E1.1 of the guidelines provides that "[i]f the defendant clearly demonstrates acceptance of responsibility for his offense, decrease the offense level by 2 levels." U.S.S.G. § 3E1.1 (2005). Hargrove argues that in his case, the "offense" to which § 3E1.1 applies consists of the grouped drug counts to which he pleaded guilty, because the remaining charge—the 924(c) gun charge—carries a statutory minimum sentence and is thus not a guidelines offense and can never provide the basis for a § 3E1.1 reduction. Brief of Appellant at 15. He contends that he accepted responsibility for the drug offenses and so should be considered for receipt of the benefit of § 3E1.1 in calculating the guidelines sentence for these counts. Hargrove's argument finds strong support in the guidelines.

First, the commentary to § 3E1.1 carefully distinguishes between the "offense of conviction" and "relevant conduct." An "appropriate consideration[ ]" for the sentencing judge in evaluating a defendant's demonstration of acceptance of responsibility is his "truthfully admitting the conduct comprising the offense(s) of conviction, and truthfully admitting or not falsely denying any additional relevant conduct for which the defendant is accountable under § 1B1.3 (Relevant Conduct)." U.S.S.G. § 3E1.1 cmt. n. 1(a) (emphasis added). Elsewhere, the commentary states that "[e]ntry of a plea of guilty prior to the commencement of trial combined with truthfully admitting the conduct comprising the offense of conviction, and truthfully admitting or not falsely denying any additional relevant conduct . . . will constitute significant evidence of acceptance of responsibility . . . ." Id. at cmt. n. 3 (emphasis added). Thus, for the purposes of § 3E1.1, "offense" is not synonymous with "relevant conduct."²

Moreover, the guidelines instruct sentencing courts initially to group similar counts together into a single "offense." See U.S.S.G. § 3D1.1 introductory cmt. (2005). Counts with statutory minimum sentences that are to be imposed consecutively—including those under § 924(c)— are specifically "[e]xclude[d]" from grouping. U.S.S.G. § 3D1.1 cmt. n. 1. Pursuant to the procedure prescribed by the guidelines, once a court groups appropriate counts and determines the initial combined offense level for the grouped counts, it then decides whether any adjustments to the offense level—including that for acceptance of responsibility—should be made for the grouped offense. U.S.S.G. § 3D1.1 cmt. background. It is only after that determination and the subsequent calculation of the sentence flowing from the (possibly adjusted) offense level of the grouped counts that the punishment for counts...