U.S. v. Lykes

• Decision Date: 24 August 1993
• Docket Number: No. 92-1775,92-1775
• Citation: 999 F.2d 1144
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Lester C. LYKES, Defendant-Appellant.
• Court: U.S. Court of Appeals — Seventh Circuit

Page 1144

999 F.2d 1144

UNITED STATES of America, Plaintiff-Appellee, v. Lester C. LYKES, Defendant-Appellant.

No. 92-1775.

United States Court of Appeals Seventh Circuit.

Argued Jan. 7, 1993.

Decided July 21, 1993.

Rehearing and Suggestion for Rehearing In Banc Denied Aug. 24, 1993.

K. Tate Chambers, Bradley W. Murphy (argued), Asst. U.S. Attys., for plaintiff-appellee.

Roy P. Amatore, Chicago, IL (argued), for defendant-appellant.

Before CUMMINGS and KANNE, Circuit Judges, and EVANS, Chief District Judge. ^*

KANNE, Circuit Judge.

The defendant, Lester C. Lykes, was convicted of possessing a gun after having been convicted of a felony, in violation of 18 U.S.C. § 922(g), and the district judge sentenced him to ten years imprisonment. The United States Sentencing Guidelines dealing with the defendant's offense were amended between the date he committed the crime and the date he was sentenced. Without objection from the parties, the district judge apparently applied the Guidelines in effect at the time of the commission of the offense rather than those in effect at the time of sentencing, as required by 18 U.S.C. § 3553(a)(4). Finding this misapplication of the Guidelines was not plain error and the defendant's other challenges meritless, we affirm the sentence imposed by the district court.

I.

In the early morning hours of January 29, 1990, Roger Hightower visited the home of Catha Irby, his ex-girlfriend and the mother of his two children. While Hightower was at Irby's home, Irby's current boyfriend, the defendant, arrived. An argument arose between Hightower and the defendant, resulting in the defendant's leaving the house to retrieve a shotgun. Upon his return, the defendant pointed the shotgun at Hightower, who got in his car and drove away. Shortly thereafter, Hightower returned to the area and stopped his car near Irby's house. With the defendant still brandishing the shotgun and Hightower seated in his car, a second shouting match broke out between the two men. A shot was fired.

Hightower sped away, and the defendant ran to the home of one of Irby's neighbors. The defendant gave the neighbors the shotgun and instructed them not to give it to anyone. While still in the neighbors' home, he called 911 and reported a shooting in the area. When he left the home, the police were waiting outside.

After questioning the defendant and the neighbors, the police arrested the defendant. The shotgun was recovered from behind a television set in the neighbors' home, along with three live rounds of ammunition. An examination of the double-barrelled shotgun revealed that it contained one expended shell and one live round. Upon his return to the scene, Hightower was also questioned and his car examined. The police found a gunshot hole in the roof of his car, although firearms experts later could not definitively state that a shotgun slug lodged in the car had been fired from the seized shotgun. The defendant was subsequently indicted and convicted in a bench trial of knowingly possessing a gun as a convicted felon, in violation of § 922(g).

II.

The central issue in this appeal revolves around the fact, noted earlier, that the Guidelines were amended between the time the defendant committed the offense in 1990 and his sentencing in 1992. The Guidelines in effect at the time of the offense were those containing amendments effective November 1, 1989 (1989 Guidelines). Under the 1989 Guidelines, § 2K2.1(a)(2) provides that the defendant's § 922(g) offense receive a base offense level of 12. More importantly, the defendant is classified as a career offender under § 4B1.1 of the 1989 Guidelines, due to his prior criminal record and current conviction.

Career offender status under § 4B1.1 requires that the defendant i) be over 18 years of age, ii) have been previously convicted of two crimes of violence or controlled substance offenses, and iii) have currently committed an offense which is a crime of violence or controlled substance offense. While the defendant readily meets the first two requirements, ¹ whether or not his current offense is a crime of violence is a more difficult issue.

Section 4B1.2(1) defines a "crime of violence" as:

any offense under federal or state law punishable by imprisonment for a term exceeding one year that--

(i) has as an element the use, attempted use, or threatened use of physical force against the person of another, or

(ii) ... involves conduct that presents a serious potential risk of physical injury to another.

We have previously interpreted this provision as including as crimes of violence those felon-in-possession offenses which involve the use or threatened use of force. United States v. McNeal, 900 F.2d 119, 123 (7th Cir.1990); United States v. Alvarez, 914 F.2d 915, 919 (7th Cir.1990), cert. denied, --- U.S. ----, 111 S.Ct. 2057, 114 L.Ed.2d 462 (1991); United States v. Chapple, 942 F.2d 439, 441-42 (7th Cir.1991).

As the evidence indicates that the defendant discharged a shotgun in the direction of Hightower, his current § 922(g) offense constituted a crime of violence under the state of the law in 1989, making him a career offender under § 4B1.1. Section 4B1.1 mandates that the defendant receive a total offense level of 24 and a criminal history category of IV because his conviction could result in a ten-year maximum sentence under 18 U.S.C. § 924(a)(2). The combination of these two factors results in a recommended sentence range of 100 to 125 months under the 1989 Guidelines.

On the other hand, the Guidelines in effect at the time of sentencing were those containing amendments effective November 1, 1991 ("1991 Guidelines"). Effective November 1, 1991, the United States Sentencing Commission amended the commentary to § 4B1.2, adding the following language:

The term "crime of violence" does not include the offense of unlawful possession of a firearm by a felon. Where the instant offense is unlawful possession of a firearm by a felon, the specific offense characteristics of § 2K.2.1 (Unlawful Receipt, Possession or Transfer of Firearms or Ammunition: Prohibited Transactions Involving Firearms or Ammunition) provide an increase in offense level if the defendant has one or more prior felony convictions for a crime of violence or controlled substance offense; and if the defendant is sentenced under the provisions of 18 U.S.C. § 924(e), § 4B1.4 (Armed Career Criminal) will apply.

§ 4B1.2 comment. (n. 2). The Supreme Court has held that, despite our precedent to the contrary, this revised commentary controls the application of § 4B1.2. Stinson v. United States, --- U.S. ----, 113 S.Ct. 1913, 123 L.Ed.2d 598 (1993). Thus, under the 1991 Guidelines, the defendant's current § 922(g) offense may not be considered a crime of violence under § 4B1.2(1), preventing his classification as a career offender under § 4B1.1.

However, effective the same date as the revised commentary to § 4B1.2, the Commission amended § 2K2.1(a)(2), raising the base offense level from 12 to 24 for a § 922(g) violation by a defendant who has two prior convictions for crimes of violence. Independent of the career offender provision, the defendant's criminal record places him in criminal history category VI. Thus, under the 1991 Guidelines, the defendant's total offense level of 24 and criminal history category of VI result in a recommended sentence range of 100 to 125 months imprisonment, the same sentence range recommended by the 1989 Guidelines.

In preparing the defendant's presentence report, the probation officer used the 1989 Guidelines. ² She began with § 2K2.1, which provides a base offense level of 12 for the § 922(g) offense, but went on to determine that the defendant's criminal record and the discharge of the shotgun resulted in his classification as a career offender under § 4B1.1. ³ Arriving at a total offense level of 24 and a criminal history category of VI, she recommended a sentence range of 100 to 125 months.

At the sentencing hearing, the defendant objected to the presentence report's recommendation that he be sentenced as a career offender under § 4B1.1, arguing that the evidence did not support a finding that the current offense was a crime of violence. The district judge rejected the defendant's argument and held that he was a career offender under § 4B1.1. Accepting the probation officer's recommendations, the judge sentenced the defendant to 120 months imprisonment. In doing so, the district judge apparently applied the 1989 Guidelines because he expressly accepted the recommendations of the presentence report that was based on the 1989 Guidelines, and neither he nor the parties mentioned the 1991 Guidelines.

By applying the 1989 Guidelines, instead of the 1991 Guidelines, the district judge did not consider the mandate of 18 U.S.C. § 3553(a)(4) that the court apply the Guidelines in effect at the time of sentencing. Because neither party objected to the use of the 1989 Guidelines, we review the district court's decision to do so under the plain error doctrine. Fed.R.Crim.P. 52(b); United States v. Rivero, 993 F.2d 620 (7th Cir.1993). "We will reverse for plain error 'only when ... convinced that it is necessary to avert an actual miscarriage of justice.' " Id. (quoting United States v. Jackson, 974 F.2d 57, 60 (7th Cir.1992)). In some circumstances, a defendant could meet this standard by showing the district court's use of an inapplicable version of the Guidelines resulted in a more severe sentence than that called for under the correct version. See, e.g., United States v. Hoster, 988 F.2d 1374, 1380-81 (5th Cir.1993) (plain error occurred when district court applied wrong offense level as a result of its use of a presentence report based on incorrect version of the Guidelines).

However, here, independent applications of the 1989 and 1991 Guidelines lead to the same recommended sentence range. The district judge correctly thought, although for the wrong reasons, that a...