U.S. v. Lloyd

• Decision Date: 17 March 2004
• Docket Number: No. 03-1287.,03-1287.
• Citation: U.S. v. Lloyd, 361 F.3d 197 (3rd Cir. 2004)
• Parties: UNITED STATES of America v. Benjamin J. LLOYD, Appellant.
• Court: U.S. Court of Appeals — Third Circuit

361 F.3d 197

UNITED STATES of America v. Benjamin J. LLOYD, Appellant.

No. 03-1287.

United States Court of Appeals, Third Circuit.

Argued October 22, 2003.

March 17, 2004.

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Mark A. Sindler (Argued), Pittsburgh, Wilmington, for Appellant.

Mary Beth Buchanan, Bonnie R. Schlueter, Kelly R. Labby (Argued), Post Office and Courthouse, Pittsburgh, for Appellee.

Before ALITO, FUENTES, and ROSENN, Circuit Judges.

OPINION OF THE COURT

ALITO, Circuit Judge.

Benjamin J. Lloyd appeals a judgment of conviction and sentence. He argues that his offense level was improperly adjusted upward under U.S.S.G. § 2K2.1(b)(5) as that provision was interpreted in United States v. Fenton, 309 F.3d 825 (3d Cir.2002). Because we hold that his offense level was correctly determined, we affirm.

I.

Lloyd was alleged to be part of a drug ring headed by Armando Spataro. On July 1, 2001, Spataro was involved in a dispute with a man named Thomas Learn, whom he accused of "hitting on" a woman whom Spataro had been dating. Several days later, Lloyd, Spataro, and other members of the drug ring conferred about how best to get even with Learn. Some members of the group had apparently started dabbling in bombmaking (with the aid of instructions downloaded from the Internet), and it was decided that a bomb should be built and placed under the fuel tank of Learn's truck.

Spataro and another member of the ring (not Lloyd) accordingly set out to purchase materials and construct the bomb. On the morning of July 4, 2001, Spataro gave the completed bomb to Lloyd and some others, with instructions to position the bomb as planned and to detonate it. Upon arriving at Learn's residence, Lloyd, acting alone, placed the device under the fuel tank of Learn's car, lit the fuse (which consisted of a cigarette), and fled the scene with his companions. Lloyd was later paid $100 for this act.

Contrary to the wishes of Spataro and friends, the scheme did not succeed. Later that day, as Learn was about to enter the truck, his dog alerted him to the presence of the undetonated device under the vehicle. Learn contacted the authorities, who disassembled and examined the bomb. The authorities concluded that the bomb was "capable of exploding" and would have exploded had it not been for the "malfunction of the cigarette."

Learn informed the police that he suspected that Spataro might have been behind the failed plot. Lloyd, Spataro, and several of their companions were subsequently apprehended and indicted by a grand jury sitting in the Western District of Pennsylvania. Lloyd was charged under two counts: possession of an unregistered destructive device, in violation of 26 U.S.C. § 5861(d), and conspiracy to violate that provision, in violation of 18 U.S.C. § 371. Lloyd pled guilty to both counts.

In the process of calculating Lloyd's sentence, the presentence report recommended that the District Court add four points to Lloyd's base offense level pursuant to U.S.S.G. § 2K2.1(b)(5), which provides for such an adjustment when it is found that a defendant "used or possessed any firearm ... in connection with another felony offense; or possessed or transferred any firearm ... with knowledge, intent, or reason to believe that it would be used or possessed in connection with another felony offense...."

Lloyd objected to the proposed adjustment, contending that the allegedly felonious conduct on which the proposed adjustment was based was essentially the same conduct that formed the basis for the underlying counts to which he had pled guilty. This, he argued, was contrary to this Court's decision in United States v. Fenton, 309 F.3d 825 (3d Cir.2002), which held that § 2K2.1(b)(5) requires "another felony offense," separate and apart from the base offense. Id. at 828 (emphasis added). The District Court, however, found that the act of placing the bomb and igniting it was sufficiently different from the acts of conspiracy and possession so as to distinguish this case from Fenton. The District Court accordingly applied the four-point adjustment prescribed under § 2K2.1(b)(5). Lloyd now disputes that holding on appeal.

II.

A.

Section 2K2 of the Sentencing Guidelines governs sentence determinations for convictions based on violations of federal firearms laws. In particular, § 2K2.1(b)(5) of the Sentencing Guidelines provides for a four-offense-level adjustment for a firearms offense if the defendant used or possessed any firearm "in connection with another felony offense" or "with reason to believe that it would be used or possessed in connection with another felony offense."

The use in § 2K2.1(b)(5) of the phrase "another felony offense" — as opposed to "any felony offense" — represents an attempt by the drafters of the Sentencing Guidelines to avoid the "double counting" of certain elements of criminal activity already incorporated into the base offense level. For example, if a defendant is convicted of the crime of being a fugitive in possession of a firearm (a felony under 18 U.S.C. § 922(g)(2)), it would make little sense to adjust the defendant's offense level upward because he possessed the firearm in connection with the very felony of his conviction (that is, fugitive possession of a firearm). The word "another" avoids just such an absurd result.

Nevertheless, while it is clear that a felony conviction leading to a sentence cannot be bootstrapped to enhance itself under § 2K2.1(b)(5), it is equally clear that the guideline was not intended to exclude only the technical offense of conviction from the scope of "another felony offense." In this regard, it is instructive to note that the Supreme Court has held that where two crimes each require proof of some element that the other does not, they may be considered effectively distinct in a variety of contexts: in determining whether there has been a violation of the Fifth Amendment prohibition against double jeopardy, Brown v. Ohio, 432 U.S. 161, 164-166, 97 S.Ct. 2221, 53 L.Ed.2d 187 (1977); in identifying the offenses to which the Sixth Amendment right to counsel attaches, Texas v. Cobb, 532 U.S. 162, 121 S.Ct. 1335, 149 L.Ed.2d 321 (2001); and in deciding as a matter of statutory interpretation when Congress intended to affix multiple punishments to the same conduct, Blockburger v. United States, 284 U.S. 299, 52 S.Ct. 180, 76 L.Ed. 306 (1932). Analogizing from this line of cases, at least one court of appeals has explicitly employed the "Blockburger" element-based analysis in the context of § 2K2.1(b)(5) for the purposes of determining when a crime is "another felony offense." United States v. Blount, 337 F.3d 404 (4th Cir.2003); see id. at 409 (noting that Blockburger is easier to apply than any "vague iterations of the `closely related to' or `inextricably intertwined with' test," citing Cobb, 532 U.S. at 173, 121 S.Ct. 1335). Although we have not heretofore applied Blockburger in connection with § 2K2.1(b)(5), we believe that the "distinction in time or conduct" test set forth in Fenton requires that a felony offense must at least satisfy Blockburger before it may be used to adjust a sentence upward under § 2K2.1(b)(5).

On the other hand, we also explained in Fenton that Application Note 18 to U.S.S.G. § 2K2.1 ("Note 18") suggests, at least with respect to a certain category of cases, a slightly narrower understanding of the phrase "another felony offense" — an understanding that yields a more limited scope for § 2K2.1(b)(5) than would result from a strict application of Blockburger across the board. Note 18 explicitly elaborates on the meaning of "another felony offense":

As used in subsection[] (b)(5) ... "another felony offense" ... refers to offenses other than ... firearms possession or trafficking offenses. However, where the defendant used or possessed a firearm or explosive to facilitate another firearms or explosives offense (e.g., the defendant used or possessed a firearm to protect the delivery of an unlawful shipment of explosives), an upward departure under § 5K2.6 (Weapons and Dangerous Instrumentalities) may be warranted.

U.S.S.G § 2K2.1, cmt. n.18 (emphasis added).¹ In other words, regardless of the interpretation given to the word "another" in 2K2.1(b)(5), "firearms possession or trafficking offenses" are categorically removed from the set of crimes that may constitute "another felony offense."²

Thus, in United States v. Boumelhem, 339 F.3d 414 (6th Cir.2003), the Sixth Circuit held that the offense level of a man convicted of a firearms possession felony could not be adjusted under § 2K2.1(b)(5) on the basis of a conspiracy to violate 18 U.S.C. § 922(e) (delivery of a firearm or ammunition to a common carrier for shipment without written notice to the carrier). The defendant argued that the § 922(e) charge was not "another felony offense" for the purposes of § 2K2.1(b)(5), since the "conspiracy to ship or transport firearms and ammunition in foreign commerce [was] a `firearms trafficking offense' as that phrase is used in [Note 18]." Id. at 427. The Court agreed, and the sentence was vacated and remanded for reconsideration. In order to understand this decision, it is important to note that, while § 922(g) and § 922(e) clearly constitute distinct felonies under Blockburger (since each requires proof of an element that the other does not), Note 18 operated nonetheless to take the conspiracy to violate § 922(e) outside the scope of the term "another felony offense." Similarly, in United States v. English, 329 F.3d 615 (8th Cir.2003), where a defendant's sentence for felony firearm possession had been enhanced because the defendant had sold the guns associated with the possession offense, the Eighth Circuit pointed out that the sale of firearms constituted "trafficking" under Note 18, and that, accordingly, the sale could not be counted as "another felony offense." Id. at 617.

While it is thus clear that a "firearms possession or trafficking offense" cannot...