U.S. v. Holbert

• Decision Date: 05 April 2002
• Docket Number: No. 00-4068.,00-4068.
• Citation: 285 F.3d 1257
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Richard Leroy HOLBERT, Defendant-Appellant.
• Court: U.S. Court of Appeals — Tenth Circuit

285 F.3d 1257

UNITED STATES of America, Plaintiff-Appellee, v. Richard Leroy HOLBERT, Defendant-Appellant.

No. 00-4068.

United States Court of Appeals, Tenth Circuit.

April 5, 2002.

Barbara Bearnson, Assistant United States Attorney (Paul M. Warner, United States Attorney, with her on the brief), Salt Lake City, UT, for Plaintiff-Appellee.

Randall C. Allen, Parry, Jensen, Graff & Barnes, LLP, Cedar City, UT, for Defendant-Appellant.

Before EBEL, BALDOCK, and KELLY, Circuit Judges.

PAUL KELLY, Jr., Circuit Judge.

Defendant-Appellant Richard Leroy Holbert pled guilty to the second count of a two-count indictment, charging possession of a firearm following conviction for a misdemeanor crime involving domestic violence in violation of 18 U.S.C. § 922(g)(9). Mr. Holbert was sentenced to 46 months imprisonment and three years supervised release. He now appeals the district court's application of the 1998 Sentencing Guidelines. Our jurisdiction arises under 28 U.S.C. § 1291 and 18 U.S.C. § 3742(a). We affirm.

Background

In June 1999, Mr. Holbert pled guilty in Utah state court to misdemeanor assault involving domestic violence and was sentenced to 90 days imprisonment. The jail time was suspended upon payment of a $250 fine and successful completion of both 18 months probation and a domestic violence counseling program. When Mr. Holbert failed to pay the fine, a warrant issued for his arrest.

On August 12, 1999, while the warrant remained outstanding, Mr. Holbert allegedly entered the home of his estranged wife, locked her in a bedroom, and threatened her with a firearm. Mr. Holbert escaped before police arrived. On September 27, 1999, Mr. Holbert was arrested by an officer acting on the outstanding warrant. During the arrest, the officer discovered a Strum Ruger .357 handgun in Mr. Holbert's possession. A Utah state court revoked Mr. Holbert's probation on September 28, 1999, and ordered Mr. Holbert to serve 90 days in jail, "with credit for time served and two for one."

On October 13, 1999, Mr. Holbert was charged in federal court with two counts of possession of a firearm following a misdemeanor conviction for domestic violence in violation of 18 U.S.C. § 922(g)(9). Count I related to the August 12 incident involving Holbert's wife and Count II covered the firearm possession at the time of his arrest. Mr. Holbert pled guilty to Count II and waived his appeal rights.¹ In exchange, the government dropped Count I and agreed to recommend an offense level reduction for acceptance of responsibility under U.S.S.G. § 3E1.1. Mr. Holbert admitted no guilt in the August 12, 1999 encounter with his wife, but understood that the government would provide evidence of that incident, which could be considered "relevant conduct" at sentencing.

At sentencing, the district court calculated an initial base offense level as prescribed by U.S.S.G. § 2K2.1(a)(6). After finding that Mr. Holbert had possessed a firearm in connection with another felony offense (the August 12 incident), the court added a four-level increase under U.S.S.G. § 2K2.1(b)(5). The court added another two points under U.S.S.G. § 3A1.3, after determining that on August 12, 1999, Mr. Holbert had physically restrained a victim — his wife — "in the course of the offense." Mr. Holbert objected, arguing that his actions more than six weeks prior to the offense of conviction were not "in the course of the [September 27] offense." The district court also added two criminal history points, pursuant to U.S.S.G. § 4A1.1 (b), for the 90-day sentence "two for one" that Mr. Holbert had received for the state conviction. Mr. Holbert again objected, arguing that the "two for one" provision meant he had received a sentence of 45 days, which warranted only one, not two, criminal history points under U.S.S.G. § 4A1.1(c).²

After applying the victim restraint enhancement under § 3A1.1 and criminal history points for the 90-day sentence under § 4A1.1(b), the district court sentenced Mr. Holbert to 46 months imprisonment, followed by three years supervised release.

A. Application of U.S.S.G. § 3A1.3

Mr. Holbert challenges the district court conclusion that he restrained his wife "in the course of the offense," and the consequent two-level enhancement pursuant to U.S.S.G. § 3A1.3. We review de novo a district court's legal interpretations of the Sentencing Guidelines. United States v. Arevalo, 242 F.3d 925, 927 (10th Cir.2001).

A two-level enhancement is permitted under § 3A1.3 "[i]f a victim was physically restrained in the course of the offense." Mr. Holbert does not dispute the court's factual finding that he physically restrained his wife on August 12, but he argues that its occurrence six weeks prior to the offense of conviction was not "in the course of the offense." The district court nevertheless applied the enhancement because it found that there was a "continuation" between the restraint on August 12 and the firearm possession on September 27, "proximity" between the two events, and that the restraint constituted "relevant conduct." III R. 37-38.

This case presents a situation where a Defendant committed an offense in addition to the offense of conviction, but charges for the additional offense have been dropped as part of a negotiated plea. The Defendant's actions during the additional offense are the subject of a specific offense characteristic adjustment, in this case, the victim restraint adjustment of § 3A1.3. Nothing about the Defendant's conduct during the offense of conviction warrants the adjustment.

The first question raised by this scenario is whether all relevant conduct may be considered in the application of the particular adjustment guideline. More specifically, does the application of § 3A1.3 require that the restraint of the victim occur during the offense of conviction, or does restraint of a victim in relation to any relevant conduct suffice?

We interpret the Sentencing Guidelines as though they were a statute or court rule, with ordinary rules of statutory construction. United States v. Tagore, 158 F.3d 1124, 1128 (10th Cir.1998). Where the language of the Guidelines is clear and unambiguous, it must be followed "except in the most extraordinary situation where [it] leads to an absurd result contrary to clear legislative intent." Id. (quotations omitted).

Mr. Holbert argues that "in the course of the offense," as used in § 3A1.3, does not encompass all relevant conduct. Rather, he believes that "in the course of the offense" actually means "in the course of the offense of conviction." The Guidelines do not provide a definition of the phrase "in the course of the offense," and the question has not been addressed in Tenth Circuit case law. However, the Ninth and Sixth Circuits both concluded that if the act of restraint can be properly characterized as "relevant conduct" under U.S.S.G. § 1B1.3, then the restraint occurred "in the course of the offense" under § 3A1.3. See United States v. Johnson, 187 F.3d 1129, 1133 (9th Cir.1999); United States v. Cross, 121 F.3d 234, 237 (6th Cir.1997).

At the outset, we note that the relevant conduct provision of the Guidelines, U.S.S.G. § 1B1.3, commands that "[u]nless otherwise specified, ... adjustments in Chapter Three [including the victim restraint provision in § 3A1.3], shall be determined on the basis of" the various categories of relevant conduct. U.S.S.G. § 1B1.3 (emphasis added). This section creates a presumption that, unless § 3A1.3 otherwise specifies, we will consider relevant conduct in its application.

§ 3A1.3 does not "otherwise specify" a different meaning, but instead reinforces the instructions in § 1B1.3 to consider relevant conduct. The Guidelines do not define the phrase "in the course of the offense," but they define the term "offense" as "the offense of conviction and all relevant conduct under § 1B1.3 (Relevant Conduct) unless a different meaning is specified or is otherwise clear from the context." U.S.S.G. § 1B1.1, cmt. n.l(l); United States v. Wilkinson, 169 F.3d 1236, 1238 (10th Cir.1999) (construing "offense" in accordance with § 1B1.1, cmt. n.l(l)). A different meaning of "offense" is not specified in § 3A1.3, so Mr. Holbert is left to argue only that the context in which the word "offense" appears in § 3A1.3 clearly gives that word a different meaning than the definition supplied in § 1B1.1.

Mr. Holbert makes two points about the context of the term "offense" within § 3A1.3. First, he compares § 3A1.3 with the hate crimes and vulnerable victim enhancement governed by § 3A1.1. The commentary to § 3A1.1 states that, for the purpose of the subsection (b), "`vulnerable victim' means a person who is a victim of the offense of conviction and any conduct for which the defendant is accountable under § 1B1.3 (Relevant Conduct) ..." § 3A1.1. cmt. n.2. No similarly explicit instruction to consider relevant conduct is found within the victim restraint enhancement.

Mr. Holbert concludes from this comparison that sentencing judges were not meant to consider all relevant conduct when applying § 3A1.3. He reasons that when the Sentencing Commission wanted consideration of relevant conduct, they added specific instructions to do so as they did for § 3A1.1. Because § 3A1.3 did not include explicit instructions, Holbert argues that "in the course of the offense," should be understood as the equivalent of "in the course of the offense of conviction,"³ and relevant conduct should not be considered.

However, our examination of § 3A1.1 leads us to an opposite conclusion. A judge applying the hate crime enhancement under § 3A1.1(a) must consider the defendant's motivation as to victims or property that were the object only of the "offense of conviction." U.S.S.G. § 3A1.1(a) (emphasis added). Explicitly restricting application of this enhancement to the offense of conviction raises an inference at odds with that proposed by Mr. Holbert; that if the Guidelines authors wanted to limit...