U.S. v. Navarro

• Decision Date: 14 February 2007
• Docket Number: No. 05-4102.,05-4102.
• Citation: 476 F.3d 188
• Parties: UNITED STATES of America v. Charles NAVARRO, Appellant.
• Court: U.S. Court of Appeals — Third Circuit

476 F.3d 188

UNITED STATES of America v. Charles NAVARRO, Appellant.

No. 05-4102.

United States Court of Appeals, Third Circuit.

Argued September 11, 2006.

Filed February 14, 2007.

David L. McColgin (Argued), Defender Association of Philadelphia, Federal Court Division, Philadelphia, PA, Attorney for Appellant.

Robert A. Zauzmer (Argued), Julie M. Hess, Office of United States Attorney, Philadelphia, PA, Attorneys for Appellee.

Before FUENTES, FISHER and BRIGHT,^* Circuit Judges.

FISHER, Circuit Judge.

After entering an "open" plea to one count of possession of a firearm by a convicted felon, and two counts of simple possession of controlled substances, Charles Navarro was sentenced to 108 months imprisonment on August 19, 2005. Navarro appeals his sentence claiming that the District Court erred by applying an enhancement under the United States Sentencing Guidelines ("Guidelines") section 2K2.1(b)(5)¹ in calculating the sentence. For the reasons that follow, we will affirm the District Court's sentence.

I. Background

On April 15, 2003, a police officer noticed Navarro driving a Jeep in West Chester, Pennsylvania. Navarro was wanted on state charges of aggravated assault, and the officer attempted to effect a stop of Navarro's Jeep. But, Navarro did not comply. Instead, a pursuit ensued which ended with Navarro losing control of and flipping his Jeep. The Jeep came to a rest on its roof. Navarro then exited the Jeep, fled on foot, and managed to escape capture.²

Navarro left behind some incriminating evidence. Officers discovered a loaded, semiautomatic handgun on the roof of the Jeep, above the driver's seat. The day after the crash, a local resident provided the police with a jacket that was found near the scene of the crash. The jacket contained a quantity of marijuana (weighing 3.9 grams), and several packets of cocaine (weighing .31 grams).

Navarro was subsequently arrested and, after waiving his Miranda rights, gave a statement to officers. He admitted that he had been driving the Jeep during the pursuit and that the handgun and drugs found at the scene belonged to him. He also confessed to another crime, previously unknown to the officers. Navarro informed the police that he had obtained the gun in 2002 through a drug exchange. He had given an unknown person "three rocks" of crack and had received the gun in return. According to Navarro, he wanted the gun only for emergencies, and usually kept it buried in the ground. He had retrieved the gun the day before the pursuit with the intention of getting rid of it.

Navarro was initially charged by state authorities with two counts of possession of a controlled substance, but these charges were subsequently dismissed in favor of federal prosecution. A federal indictment, filed in the District Court for the Eastern District of Pennsylvania, charged Navarro with one count of possession of a firearm by a convicted felon, see 18 U.S.C. § 922(g), and two counts of simple possession of controlled substances (cocaine and marijuana), see 21 U.S.C. § 844(a). He was not, however, charged with possession of crack or possession with intent to distribute.

Navarro entered an "open" plea of guilty to the indictment, and therefore there was no plea agreement. He admitted during a plea colloquy that he had possessed both the firearm and the controlled substances found at the scene of the crash. He also acknowledged that he had given a statement to officers following his arrest, but he denied telling them how he had obtained the gun or admitting that he had engaged in a drug transaction. The District Court accepted the plea with this qualification.

A pre-sentence report recommended that Navarro's sentencing range be enhanced by four levels under section 2K2.1(b)(5) of the Guidelines, because the firearm had been possessed "in connection with another felony offense." See U.S. Sentencing Guidelines Manual § 2K2.1(b)(5). The predicate offense for the enhancement, according to the report, was simple possession of cocaine and marijuana. Defense counsel objected, arguing that the enhancement could not apply because the predicate offense, simple possession of a controlled substance, see 21 U.S.C. § 844(a), is not a felony. The Government conceded this point.³ However, the Government asserted that the enhancement should nevertheless apply based on the felony offense of drug distribution, see 21 U.S.C. § 841, to which Navarro had confessed in his statement to the police.

A sentencing hearing was held in August 2005. The officer who had taken Navarro's statement at the police station testified that Navarro admitted that the handgun was obtained through a drug transaction. A recording and transcript of the statement introduced into the record confirmed the officer's recollection. Defense counsel argued that the evidence was insufficient to prove that the drug transaction had occurred. Additionally, defense counsel argued, notwithstanding the evidentiary deficiency, the offense could not support the enhancement under section 2K2.1(b)(5) because the firearm had been obtained as a direct result of the drug transaction. Essentially, the argument was that the offense was not sufficiently distinct from the firearms possession crime to qualify as "another felony offense" for purposes of section 2K2.1(b)(5).

The District Court overruled the objection. It concluded that Navarro's statement, made after he had been given his Miranda rights, was sufficient to prove that the drug transaction had in fact occurred.⁴ Without directly addressing defense counsel's argument that the drug transaction could not qualify as "another felony offense," the District Court held that section 2K2.1(b)(5) should be applied.

The final Guidelines range, with the enhancement and based on an offense level of twenty-three and a criminal history category of VI, was 92 to 115 months.⁵ The District Court, after hearing argument on the remaining factors under 18 U.S.C. § 3553(a), imposed a term of imprisonment of 108 months.⁶ Navarro timely filed this appeal.

II. Discussion

The sole question raised on appeal is the propriety of the four-level enhancement under section 2K2.1(b)(5).⁷ We have jurisdiction pursuant to 18 U.S.C. § 3742(a) and 28 U.S.C. § 1291. See United States v. Batista De La Cruz, 460 F.3d 466, 468 (3d Cir.2006). We review de novo a district court's interpretation of the Guidelines. Id. (citing United States v. Urban, 140 F.3d 229, 234 (3d Cir.1998)). Our review of a district court's finding of facts is for clear error. Batista De La Cruz, 460 F.3d at 468 (citing United States v. Lennon, 372 F.3d 535, 538 (3d Cir. 2004)).

It is relatively rare for a firearms offense to be unaccompanied by other illegal conduct. Possession of a gun is often a practical prerequisite for the sale of controlled substances or commission of other violent acts. Many defendants charged with unlawful possession of a firearm are also guilty of, although sometimes not charged with, separate state or federal crimes.⁸ See, e.g., United States v. Loney, 219 F.3d 281, 285-86 (3d Cir.2000); cf. United States v. Regans, 125 F.3d 685, 686 (8th Cir.1997) ("[A] firearm is a `tool of the trade' for drug dealers....").

To ensure that the final sentence reflects the defendant's culpability for these other offenses, the Guidelines provide for an increase in the base sentencing range when the firearm is possessed in connection with "another felony offense." See Loney, 219 F.3d at 287-88; see also United States v. McDonald, 165 F.3d 1032, 1037 (6th Cir.1999) (explaining that section 2K2.1(b)(5) "was created in response to a concern about the increased risk of violence when firearms are used or possessed during the commission of another felony") (emphasis omitted). Section 2K2.1(b)(5) of the Guidelines states, in pertinent part, as follows:

If the defendant used or possessed any firearm or ammunition in connection with another felony offense . . . increase by 4 levels.

U.S. Sentencing Guidelines Manual § 2K2.1(b)(5). The commentary to the section explains that "[a]s used in subsection[](b)(5) . . . `another felony offense' . . . refer[s] to offenses other than explosives or firearms possession or trafficking offenses." Id. § 2K2.1 cmt. n. 15. In other words, the enhancement should apply only when the predicate offense is distinct from the firearms possession crime of which the defendant was convicted.

The enhancement is most often applied in circumstances in which the firearm was employed during a drug transaction or violent crime, either to protect the defendant or to threaten or harm a victim. See, e.g., Loney, 219 F.3d at 287. This case is atypical in this respect. The firearm here was neither used nor intended as a means of intimidation or protection, but rather was proffered as an item of trade. It was given to Navarro in exchange for the drugs, but it did not otherwise facilitate the drug distribution offense.

Navarro seizes on this distinction. He argues that, because possession of the firearm constituted an integral aspect of the drug distribution offense, that offense must be considered part of the underlying firearms possession crime—not "another felony offense"—and cannot support the enhancement under section 2K2.1(b)(5). He also claims that, even if the drug distribution qualifies as "another felony offense," the firearm was not possessed "in connection with" the drug distribution because it was not brandished or otherwise used to facilitate the offense.

A. "Another Felony Offense"

The primary argument Navarro raises against the enhancement is that the drug distribution in this case does not qualify as "another felony offense," separate from the firearms possession crime, because possession of the firearm formed an integral aspect of that offense. We have addressed similar arguments in two previous cases: United States v. Fenton, 309 F.3d 825 (3d Cir.2002), and United States v. Lloyd, 361 F.3d 197 (3d Cir.2004)....