U.S. v. Kirvan, 678
| Decision Date | 18 June 1996 |
| Docket Number | D,No. 678,678 |
| Parties | UNITED STATES of America, Appellee, v. Gary L. KIRVAN, Defendant-Appellant. ocket 95-1251. |
| Court | U.S. Court of Appeals — Second Circuit |
Robert A. Napier, Rochester, New York, for Appellant.
Christopher V. Taffe, Assistant United States Attorney, Western District of New York, Rochester, New York (Patrick H. NeMoyer, United States Attorney, Western District of New York, Elizabeth E. Nam, Law Clerk, Rochester, New York, of counsel), for Appellee.
Before NEWMAN, Chief Judge, FEINBERG and CARDAMONE, Circuit Judges.
Friday, February 7, 1992 was a busy day for the Central Trust Co., a Rochester, New York bank. At 10:45 a.m. Mary Ellen Boone, an experienced teller, had just completed a business transaction with a customer when, looking up, she suddenly saw a man, later identified as defendant Gary L. Kirvan, pointing a shiny black gun at her. The parties describe this gun as a .44 caliber black powder revolver, a replica of an antique. Defendant placed the gun, together with a note, on the counter before her. The note demanded all her cash and Kirvan ordered her to "[d]o what the note says or you're dead." She handed him all her 100s, 50s, and 20s and, upon his waving the gun at her and telling her to "[k]eep going," she gave him, in addition, all the 10s, 5s, and singles in her top drawer. After the defendant stuffed this cash amounting to $2,527 in his pockets, he fled. Later, he was apprehended while committing another armed bank robbery in Lebanon, Tennessee.
Following a trial, a jury found defendant guilty of the armed bank robbery in Rochester. He received a 30 month sentence, consecutive to the undischarged portion of his sentence for the Tennessee robbery. Defendant now appeals, raising as the sole issue the propriety of a five-level sentence enhancement for the use of a firearm in the course of the robbery, rather than a three-level enhancement for the brandishing of a dangerous weapon.
An indictment dated April 30, 1992 charged Kirvan and two others with various offenses for their involvement in the crime committed in Rochester. Kirvan was charged with committing bank robbery in violation of 18 U.S.C. § 2113(a), bank larceny in violation of 18 U.S.C. § 2113(b), armed bank robbery in violation of 18 U.S.C. § 2113(d), and with carrying or using a firearm in connection with a crime of violence, in violation of 18 U.S.C. § 924(c). He was tried separately before a jury in the United States District Court for the Western District of New York (Telesca, C.J.). Before trial the government moved, in the interest of justice, to dismiss the charge of carrying or using a firearm in a crime of violence because § 924(c) does not At the sentencing hearing, the trial court noted that the bank robbery and armed bank robbery convictions merged, and it sentenced defendant only for the latter conviction. The probation department recommended a five-level upward adjustment under § 2B3.1(b)(2)(C) of the United States Sentencing Guidelines (U.S.S.G. or Guidelines), which applies to robberies during which the defendant "brandished, displayed, or possessed" a firearm. The defendant objected to the upward adjustment, contending that the weapon used in the robbery was not a "firearm" for purposes of § 2B3.1(b)(2)(C) because it was an "antique." Instead, defendant contended, the use of the weapon warranted only the three-level upward adjustment for use of a dangerous weapon specified in U.S.S.G. § 2B3.1(b)(2)(E).
This appeal requires us to decide whether an antique gun is a "firearm" for purposes of the five-level enhancement set forth in U.S.S.G. § 2B3.1(b)(2)(C). We analyze this provision of the Guidelines in light of what is an allegedly contrary provision contained in the Gun Control Act of 1968, Pub.L. No. 90-618, § 101, 82 Stat. 1213 (1968) (codified at 18 U.S.C. § 921(a)(3) (1994)) (Gun Control Act or Act), a statute passed by Congress.
The Sentencing Commission, created under the Sentencing Reform Act of 1984, Pub.L. No. 98-473, § 217(a), 98 Stat.2017-26 (1984) (codified at 28 U.S.C. §§ 991-98 (1994)), promulgates the Guidelines under an express delegation of rulemaking authority from Congress. See 28 U.S.C. § 994(a)(1). The Guidelines "are the equivalent of legislative rules adopted by federal agencies." Stinson v. United States, 508 U.S. 36, 45, 113 S.Ct. 1913, 1919, 123 L.Ed.2d 598 (1993). Because they determine what sentences individual defendants receive, the Guidelines have the force and effect of law. Congress was empowered to revoke or amend any Guidelines within the 180-day waiting period established by § 235(a)(1)(B)(ii)(III) of the Sentencing Reform Act, 98 Stat.2031-32, or, for that matter, at any time. See Mistretta v. United States, 488 U.S. 361, 393-94, 109 S.Ct. 647, 666, 102 L.Ed.2d 714 (1989); cf. 28 U.S.C. § 994(p) (). Hence, the Commission's Guidelines may be trumped by an Act of Congress. For example, when a sentence is fixed by statute, a contrary Guideline would be ineffective. See Stinson, 508 U.S. at 47, 113 S.Ct. at 1920 ().
The question we must answer is whether, as defendant maintains, the Gun Control Act overrides the Sentencing Guidelines' definition of a firearm. In resolving this question we examine the Guideline and statute in question with some particularity. And, in so doing, we are guided by the notion that the Guidelines, having the force and effect of law, are to be construed as if they were a statute, giving the words used their common meaning, absent a clearly expressed manifestation of contrary intent. See United States v. Turkette, 452 U.S. 576, 580, 101 S.Ct. 2524, 2527, 69 L.Ed.2d 246 (1981).
Such an approach has been adopted by a number of our sister Circuits. See United States v. Gacnik, 50 F.3d 848, 852 (10th Cir.1995); United States v. Rocha, 916 F.2d 219, 243 (5th Cir.1990), cert. denied, 500 U.S. 934, 111 S.Ct. 2057, 114 L.Ed.2d 462 (1991); United States v. Lewis, 900 F.2d 877, 880 (6th Cir.), cert. denied, 498 U.S. 840, 111 S.Ct. 117, 112 L.Ed.2d 86 (1990); United States v. Donley, 878 F.2d 735, 741 (3d Cir.1989), cert. denied, 494 U.S. 1058, 110 S.Ct. 1528, 108 L.Ed.2d 767 (1990). We have recognized the soundness of these principles. See United States v. Correa-Vargas, 860 F.2d 35, 38 (2d Cir.1988) (). Because this challenge to the application of the Guidelines involves a purely legal question, we review the district court's decision de novo. See United States v. Vazzano, 906 F.2d 879, 883 (2d Cir.1990).
Keeping in mind this general background of what the Guidelines are and how they are to be construed, we turn first to the provision found in § 2B3.1 of the Guidelines, which is the section used to determine the base offense level for a defendant who has committed a robbery. Section 2B3.1(b)(2) enhances the offense level by seven levels if during the commission of a robbery a firearm is discharged, six levels if a firearm is "otherwise used," five levels if a firearm is "brandished The specific provision at issue on this appeal, § 2B3.1(b)(2)(C), states: "if a firearm was brandished, displayed, or possessed, increase by 5 levels." The commentary accompanying § 2B3.1 makes clear that the term "firearm" is defined "in the Commentary to § 1B1.1 (Application Instructions)." That definition reads:
displayed or possessed," four levels if a dangerous weapon was "otherwise used," three levels if a dangerous weapon was "brandished, displayed or possessed," or two levels if an express threat of death was made.
"Firearm" means (i) any weapon (including a starter gun) which will or is designed to or may readily be converted to expel a projectile by the action of an explosive; (ii) the frame or receiver of any such weapon; (iii) any firearm muffler or silencer; or (iv) any destructive device. A weapon, commonly known as a "BB" or pellet gun, that uses air or carbon dioxide pressure to expel a projectile is a dangerous weapon but not a firearm.
U.S.S.G. § 1B1.1 Application Note 1(e).
The gun concededly used by the defendant falls squarely within the plain language of this definition of "firearm." The district court adopted the probation department's finding that defendant used an antique .44 caliber black powder revolver to commit the crime. This type of weapon uses gun powder to propel a bullet. Defendant does not assert that the gun was in some way inoperable and does not otherwise dispute the probation department's finding. Rather, he relies exclusively on the argument that an antique firearm does not trigger the five-level upward adjustment under § 2B3.1(b)(2)(C).
Although defendant indicated at the sentencing hearing that the pistol was not loaded when the robbery was...
To continue reading
Request your trial
-
U.S. v. Savin
...a statute, giving the words used their common meaning, absent a clearly expressed manifestation of contrary intent." United States v. Kirvan, 86 F.3d 309, 311 (2d Cir.1996); see also United States v. SKW Metals & Alloys, Inc., 195 F.3d 83, 90 (2d Cir.1999) (noting that when a term is "not d......
-
U.S. v. Stewart
...Cir.2008). We interpret the Guidelines as though they were a statute, giving the words used their common meaning. United States v. Kirvan, 86 F.3d 309, 311 (2d Cir.1996). Section 3A1.4, the so-called "terrorism enhancement," (a) If the offense is a felony that involved, or was intended to p......
-
U.S.A. v. Ferrarini
...as CPF. Because these arguments raise purely legal questions, we review the district court's ruling de novo. See United States v. Kirvan, 86 F.3d 309, 311 (2d Cir. 1996). Defendants' first argument has some merit, but not enough to carry the day. In 1989, in the wake of the savings and loan......
-
U.S. v. Lewis
...A. Review of Language and Commentary Interpretation of the Guidelines is similar to statutory construction. See United States v. Kirvan, 86 F.3d 309, 311 (2d Cir.1996). We begin with the language of U.S.S.G. § 2T1.1, which provides the sentencing rules for tax-evasion offenses. After explai......