U.S. v. Kuban, 95-50712

• Decision Date: 29 August 1996
• Docket Number: No. 95-50712,95-50712
• Citation: 94 F.3d 971
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Gregory Alan KUBAN, Defendant-Appellant.
• Court: U.S. Court of Appeals — Fifth Circuit

Page 971

94 F.3d 971

UNITED STATES of America, Plaintiff-Appellee, v. Gregory Alan KUBAN, Defendant-Appellant.

No. 95-50712.

United States Court of Appeals, Fifth Circuit.

Aug. 29, 1996.

Richard L. Durbin, Jr., Asst. U.S. Attorney, Office of the United States Attorney, San Antonio, TX, for U.S.

Charles O. Grigson, Austin, TX, for defendant-appellant.

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

Before REAVLEY, GARWOOD and DeMOSS, Circuit Judges.

GARWOOD, Circuit Judge:

Defendant-appellant Gregory Kuban (Kuban), a convicted felon, pleaded guilty to a charge of knowingly possessing firearms that had been shipped or transported in interstate commerce, in violation of 18 U.S.C. § 922(g)(1). Prior to entering his plea, Kuban filed a motion to dismiss the indictment, challenging the constitutionality of section 922(g)(1). Kuban's plea was conditioned on his right to appeal the district court's denial of this motion to dismiss the indictment. On appeal, Kuban challenges both the constitutionality of section 922(g)(1) and the district court's interpretation and application of the guidelines in computing his sentence.

Facts and Proceedings Below

On the evening of July 1, 1994, Kuban went searching for his fourteen-year-old daughter, Jennifer Kuban. During his search, he came upon a friend of his daughter, sixteen-year-old Kenan Ozen (Ozen), parked in his car with Justin Neelley (Neelley). Kuban pulled his car alongside that of Ozen, pointed a 9mm pistol at Ozen's head, cocked the hammer and demanded that Ozen tell him the whereabouts of his daughter. Kuban was acquainted with Ozen as Ozen had previously worked for him, providing maintenance at Kuban's automobile detail and window tinting business. Directing his litany of threats and questions at Ozen, Kuban apparently left Neelley alone. Ozen and Neelley accordingly led Kuban to his daughter.

When they arrived at the residence where Jennifer Kuban was staying, Ozen and Neelley went inside and told the occupants what had happened. They locked the door and stayed in the house while Kuban sat outside in his car, honking his horn and yelling. Fearing that Kuban would eventually attempt to enter the residence, the occupants called the police, but Kuban departed before the police arrived.

After obtaining a warrant for Kuban's arrest, law enforcement officers proceeded to Kuban's residence and observed him get into his car as if to depart. As five officers ran to Kuban's car, Kuban was seen leaning into the passenger area of his vehicle. One of the officers reported that he then saw a handgun on the front passenger floor. Kuban was instructed to raise his hands and exit the vehicle; when he refused to do so, Kuban was forcibly removed from his car and handcuffed. A subsequent investigation of the car resulted in the recovery of a loaded Browning 9mm pistol (manufactured in Belgium) from the front passenger seat, a loaded Ruger Redhawk .41 caliber magnum pistol (manufactured in Connecticut) from the front passenger floor area, and a small quantity of marihuana on the passenger seat. ¹ Kuban was arrested for aggravated assault with a deadly weapon, possession of a firearm by a felon ², and possession of marihuana. Kuban made bond on these state charges and was released.

In Texas state court, Kuban was charged with aggravated assault with a deadly weapon, in violation of Texas Penal Code §§ 22.01(a)(2), 22.02(a)(2), and felon in possession of a firearm, in violation of Texas Penal Code § 46.04(a)(1). On November 11, 1994, a federal indictment against Kuban was also returned, charging him with felon in possession of a firearm, in violation of 18 U.S.C. § 922(g)(1).

Kuban filed a motion to dismiss the federal indictment, arguing that section 922(g)(1) is an unconstitutional exercise of the government's power to regulate commerce. The district court overruled this motion, and Kuban subsequently entered a conditional guilty plea, reserving his right to appeal the district court's adverse determination of his motion to dismiss.

The presentence investigation report (PSR) recommended: a four-level increase to Kuban's base offense level for Kuban's "use[ ] or possess[ion of] any firearm or ammunition in connection with another felony offense", pursuant to U.S.S.G. § 2K2.1(b)(5) ³; a two-level "vulnerable victim" increase pursuant to U.S.S.G. § 3A1.1; and a three-level downward departure in recognition of Kuban's acceptance of responsibility, pursuant to U.S.S.G. § 3E1.1(a). Kuban objected to the PSR's recommendations for increases in offense level, but the district court overruled his objections and adopted the recommendations. The district court sentenced Kuban to 108 months imprisonment, a three-year term of supervised release, a fine of $12,500, and a special assessment of $50. Kuban appeals.

Discussion

I. Constitutionality of 18 U.S.C. § 922(g)(1)

Kuban's challenges to the constitutionality of section 922(g)(1) as applied to him have been resolved adversely to his contentions by our recent decision in United States v. Rawls, 85 F.3d 240 (5th Cir.1996), which is binding on this panel. ⁴ See also United States v. Segeada, No. 95-40430, 74 F.3d 1237 (5th Cir. Nov. 30, 1995) (unpublished) (upholding constitutionality of section 922(g)(1)). We accordingly reject this claim of error.

II. Application of the Sentencing Guidelines

We review de novo the district court's "interpretation of the requirements" of the sentencing guidelines. United States v. Lara-Velasquez, 919 F.2d 946, 953 (5th Cir.1990). However, where the district court has correctly interpreted the relevant guideline provisions, we review the district court's application of the guidelines to the particular facts and circumstances of the case before it for abuse of discretion. See Koon v. United States, --- U.S. ----, 116 S.Ct. 2035, 135 L.Ed.2d 392 (1996).

A. "Unusually Vulnerable Victim" Enhancement

The PSR recommended a two-level increase to Kuban's base offense level because Kuban knew or should have known that Ozen was "unusually vulnerable due to age, physical or mental condition, or that [Ozen] was otherwise particularly susceptible to the criminal conduct." U.S.S.G. § 3A1.1. Specifically, the PSR stated that Kuban verbally and physically threatened to kill sixteen-year-old Ozen with a cocked, loaded pistol. The PSR also noted that Ozen had worked for Kuban at Kuban's business. Finally, the PSR observed that Kuban is a fairly large and imposing individual.

The district court adopted the PSR's recommendation. After considering defense counsel's arguments on this point, the district court concluded that Ozen was unusually vulnerable because of his age--"unusually vulnerable, because he's being faced by a fellow who is, perhaps, bigger, certainly older, more experienced, more knowledgeable, more mature, supposedly, as to what he might be able to do to him or with him."

Kuban challenges this adjustment on two grounds: First, Kuban contends that the offense of conviction, felon in possession of a firearm, is a victimless crime; second, Kuban argues that, even assuming arguendo that there could be a victim of his offense of conviction, Ozen was not "unusually vulnerable" within the meaning of section 3A1.1.

Reviewing Kuban's first contention de novo, we hold that the district court did not err by characterizing Ozen as a "victim" of Kuban's conduct. In United States v. Roberson, 872 F.2d 597 (5th Cir.), cert. denied, 493 U.S. 861, 110 S.Ct. 175, 107 L.Ed.2d 131 (1989), this Court held that, in the present context, "[T]he [Sentencing] Commission has chosen not to require a nexus between the offense of conviction and the victim." Id. at 608. This Court reached this conclusion after observing that the commentary to section 3A1.1 did not require the vulnerable victim to be a victim of the offense of conviction: "[W]hen the Commission has wished to require a link between the offense of conviction and a factor the court could consider in sentencing, it has expressly included that requirement in the Guidelines." Id. At the time that this Court decided Roberson, the commentary to section 3A1.1 explained that the vulnerable victim enhancement "applie[d] to any offense where the victim's vulnerability played any part in the defendant's decision to commit the offense." Id. Based on this language, this Court held in Roberson that the (deceased) individual whose credit card had been used by the defendant after the card owner's death in order to commit the charged "credit card fraud"--the offense of conviction--was a "victim" under section 3A1.1, particularly in that the decedent "certainly suffered indignity in having his corpse abused and his good name brought into this whole sordid affair." Id. at 609. ⁵ Within this analytical framework, Ozen must be viewed as a "victim" of Kuban's conduct, as well. We are bound by Roberson. ⁶

Next, Kuban contends that, even if Ozen were a "victim" within the meaning of section 3A1.1, the district court erred in finding that Ozen was an "unusually vulnerable" victim. "The determination of 'vulnerability is a complex fact dependent upon a number of characteristics which a trial court could not possibly articulate completely' ..." United States v. Scurlock, 52 F.3d 531, 542 (5th Cir.1995) (footnote omitted). "Accordingly, we give the finding of vulnerability due deference." United States v. Box, 50 F.3d 345, 358-59 (5th Cir.), cert. denied, --- U.S. ----, 116 S.Ct. 309, 133 L.Ed.2d 213 (1995). See also Koon v. United States, --- U.S. ----, ---- - ----, 116 S.Ct. 2035, 2045-46, 135 L.Ed.2d 392 (1996) (recognizing the statutory requirement "that courts of appeals 'give due deference to the district court's application of the guidelines to the facts' "). ⁷ Additionally, we accord due deference to the finding of "what the defendant knew or should have known in this respect." United States v. Brown, 7 F.3d 1155, 1160 (5th Cir.1993). Finally, we...