U.S. v. Nichols

• Decision Date: 06 October 2006
• Docket Number: No. 05-30503.,05-30503.
• Citation: 464 F.3d 1117
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Kevin Wesley NICHOLS, Defendant-Appellant.
• Court: U.S. Court of Appeals — Ninth Circuit

464 F.3d 1117

UNITED STATES of America, Plaintiff-Appellee, v. Kevin Wesley NICHOLS, Defendant-Appellant.

No. 05-30503.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted July 24, 2006.

Filed October 6, 2006.

Philip E. Nino, Spokane, WA, for the defendant-appellant.

Earl A. Hicks, Assistant United States Attorney, Spokane, WA, for the plaintiff-appellee.

Appeal from the United States District Court for the Eastern District of Washington; Justin L. Quackenbush, Senior Judge, Presiding. D.C. No. CR-05-00083-JLQ/ CI.

Before WALLACE, WARDLAW and FISHER, Circuit Judges.

FISHER, Circuit Judge.

Kevin Nichols appeals his 57-month sentence following his guilty plea conviction for being a felon in possession of a firearm, in violation of 18 U.S.C. § 922(g)(1). We have jurisdiction under 28 U.S.C. § 1291.

Nichols challenges the district court's enhancement of his base offense level under U.S.S.G. § 2K2.1(b)(5), which provides for a four-level increase "[i]f the defendant used or possessed any firearm ... in connection with another felony offense." He argues that this provision applies only to firearms listed in the count of conviction or underlying indictment. Because his two-count federal indictment did not list the firearm he used in connection with a prior felony assault, Nichols contends that the district court erred in increasing his offense level under § 2K2.1(b)(5). Nichols also argues that his sentence was unreasonable.

We affirm the district court's application of § 2K2.1(b)(5), because Nichols' use and possession of the gun during the assault constitutes relevant conduct under U.S.S.G. § 1B1.3. We further hold that Nichols' sentence was not unreasonable, and therefore affirm his sentence.

I. Factual and Procedural Background

On July 19, 2004, Nichols displayed a Glock brand handgun while threatening to kill another person in Spokane, Washington. The victim informed local police that Nichols could be found at Dennis Sinclair's residence. Sinclair told the investigating officers that Nichols had arrived at his home shortly after threatening the victim and had deposited firearms in Sinclair's girlfriend's safe. After obtaining consent to search the safe, the police seized a .380 caliber Sterling Model 400 handgun and a Lorcin Model L-380 semiautomatic handgun, both of which were reported stolen in late June 2004. The police also found a stolen Glock Model 19 9mm handgun in a laundry basket located in a bedroom in Sinclair's residence.

Two weeks later, based upon a separate investigation conducted by the United States Secret Service, officers from the Bureau of Alcohol, Tobacco and Firearms (ATF) searched the residence of Sinclair's friend, David Waldvogel, and recovered five additional stolen firearms. According to Waldvogel, Nichols had instructed his girlfriend to remove the guns from her residence, where they were being stored, and she in turn had arranged for Sinclair to remove them. Some time thereafter, Waldvogel agreed to take the stolen firearms and store them for Nichols.

As a result of the July 19 incident, Nichols pled guilty to third degree assault and second degree unlawful possession of a firearm — specifically, the Glock — in Spokane County Superior Court on December 22, 2004. According to the state court amended information, the firearm used in the assault was the Glock that police had found in the laundry basket at Sinclair's home.

After his state conviction, Nichols informed an ATF agent that both he and Sinclair were methamphetamine addicts in the summer of 2004, and that he worked with a burglary ring that would steal property, including firearms. Nichols further admitted to taking the Sterling and Lorcin handguns to Sinclair's residence, along with other stolen property. In a subsequent interview, Nichols admitted to hiding a Glock Model 19 handgun in the basement of Sinclair's home after committing the July 19 assault. He claimed to have purchased the gun from an unknown individual on the street, and asserted that police had not recovered this firearm from Sinclair's home because his girlfriend had removed it from the basement and had given it to an individual to whom Nichols reportedly took stolen property and firearms in exchange for methamphetamine. Nichols explained that he ultimately pled guilty in state court to possessing the Glock found in Sinclair's home — even though he had not possessed it during the assault — because his cousin (whom he did not want to get in trouble) had taken that particular handgun to Sinclair's residence. Nichols does not contest, however, that the gun he used in the July 19 assault was a Glock.

On April 19, 2005, a federal grand jury returned a two-count indictment charging Nichols with being a felon in possession of two firearms in violation of 18 U.S.C. § 922(g) (Count One) and possession of stolen firearms in violation of 18 U.S.C. § 922(j) (Count Two). Count One listed the Sterling and Lorcin handguns found in Sinclair's girlfriend's safe, while Count Two listed the five firearms recovered from Waldvogel's residence. None of the guns listed in the indictment was a Glock.

Nichols pled guilty to Count One under the terms of a written plea agreement, pursuant to which Count Two was dismissed. The plea agreement further specified that the parties agreed to a base offense level of 14 under U.S.S.G. § 2K2.1(a)(6), with a two-level increase under § 2K2.1(b)(4) because the firearms were stolen. The government agreed to move for a three-level downward adjustment if Nichols timely accepted responsibility for the offense and provided complete and accurate information during the sentencing process. The government also agreed to recommend that the district court impose a sentence at the low end of the applicable guidelines range.

However, the parties disagreed as to the applicability of U.S.S.G. § 2K2.1(b)(5), which is a specific offense characteristic that provides for a four-level increase "[i]f the defendant used or possessed any firearm or ammunition in connection with another felony offense." The plea agreement noted the government's belief that this increase should be added because Nichols used a firearm during the July 19 felony assault; Nichols disagreed because the Glock he used was not listed in the indictment. Notwithstanding this disagreement, both parties acknowledged that the actual sentence imposed would be within the sole discretion of the district court and that the court could "impose any sentence it deems appropriate up to the statutory maximum[ ]" of 10 years in prison.

At the initial sentencing hearing, the district court raised the possibility of imposing a four-level enhancement under § 2K2.1(b)(1)(B) for relevant conduct that included involvement of eight or more weapons. This enhancement was absent from the plea agreement. In addition, the district court noted that Nichols had "a common M.O.," namely, that

in July of 2004, Mr. Nichols was involved in an ongoing scheme to burglarize houses and steal fire-arms, and use those firearms for various purposes such as sale or barter for drugs, or in the case of that third degree assault, use of the firearm in connection with another felony .... [T]here's no question he possessed a firearm illegally as a convicted felon at the time he assaulted and threatened to kill the person over some relatively minor dispute.

However, having noted that neither the indictment nor the plea agreement referred to the Glock used in the assault, the district court questioned whether that firearm had to be named in the indictment to sustain a four-level enhancement under § 2K2.1(b)(5).¹ The court continued the hearing to allow the parties to review the enhancement issues.

At the second sentencing hearing, Nichols did not dispute that he possessed or used a Glock 9mm handgun to commit his prior third degree assault. However, he again objected to an enhancement under § 2K2.1(b)(5) because the firearm was not listed in the indictment. In addition, the government stated that it was no longer pursuing this enhancement and explicitly recommended a 30-month sentence. Notwithstanding Nichols' and the government's positions, the district court found that a four-level enhancement under § 2K2.1(b)(5) was appropriate:

[T]he record is clear here, and it is not disputed, that Mr. Nichols used a firearm in connection with [the July 19, 2004 assault], so there is really no dispute that he used a firearm. The issue is whether or not it has to be the same firearm as the offense of conviction, and it is my ruling it does not need to be and, therefore, I will increase the offense level by 4 pursuant to [§ 2K2.1(b)(5)].²

The district court then added another four levels under § 2K2.1(b)(1)(B) for relevant conduct that included involvement of eight or more weapons.

As a result of these enhancements, and after a three-level reduction for acceptance of responsibility and timely entry of plea, the court determined that Nichols had a total offense level of 21 and a criminal history category of IV, yielding an advisory guidelines range of 57-71 months. In imposing Nichols' sentence, the district court paid special attention to Nichols' violent behavior and repeated use of deadly weapons, stating that "a finding could well be made ... that a category IV seriously underrepresents, in fact, [Nichols'] true criminal history." The court also addressed other potentially mitigating factors like Nichols' addiction to methamphetamine and his cooperation with the government during the proceedings. Finally, in addressing the government's recommended sentence, the court made special reference to its post-Booker sentencing obligations, stating that a 30-month sentence "would be inappropriate in view of the nature of the offense, the advisory Sentencing Guideline Range, the factors set forth in 18 U.S.C. § 3553(a), and the Defendant's history of on-going violence including the possession and use of deadly weapons."...