U.S. v. Partington

• Decision Date: 14 April 1994
• Docket Number: No. 93-1109,93-1109
• Citation: 21 F.3d 714
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Russell PARTINGTON, Defendant-Appellant.
• Court: U.S. Court of Appeals — Sixth Circuit

Page 714

21 F.3d 714

UNITED STATES of America, Plaintiff-Appellee, v. Russell PARTINGTON, Defendant-Appellant.

No. 93-1109.

United States Court of Appeals Sixth Circuit.

Argued Oct. 7, 1993.

Decided April 14, 1994.

Patricia G. Blake, Office of U.S. Atty., Detroit, MI (argued and briefed), for U.S.

Richard L. Lee, Jr., Sinclair, Mathieu & Lee, Midland, MI (argued and briefed), for Russell Partington.

Before: JONES and SILER, Circuit Judges; and RUBIN, District Judge. ^*

RUBIN, District Judge, delivered the opinion of the court, in which SILER, Circuit Judge, joined. JONES, Circuit Judge (pp. 719-21), delivered a separate dissenting opinion.

CARL B. RUBIN, District Judge.

Defendant appeals from a conviction and sentence for willfully engaging in the business of dealing in firearms without a license in violation of 18 U.S.C. Secs. 922(a)(1)(A) and 924(a)(1)(D). Defendant claims that the trial court incorrectly calculated his sentence by taking into consideration his possession of a sawed-off rifle in determining the base offense level under the federal sentencing guidelines.

I.

Defendant was indicted by a federal grand jury on one count of engaging in the business of dealing in firearms (Count 1); one count of knowingly possessing an unregistered sawed-off rifle in violation of 26 U.S.C. Secs. 5841, 5861(d) and 5871 (Count 2); and one count of threatening a witness in violation of 18 U.S.C. Sec. 1513 (Count 3). Defendant entered into a plea agreement whereby he agreed to plead guilty to Count 1 of the indictment in exchange for dismissal of the remaining two counts. The parties agreed that the sentence would not exceed the upper limit of the guidelines range found to be applicable by the court. The parties estimated that the guidelines range would be 33 to 41 months, assuming that the base offense level would be 18 after applying U.S.S.G. Sec. 2K2.1(a)(7). ¹

The probation officer recommended in his presentence investigation report that the base offense level should be 26. The officer calculated this offense level by beginning with level 18 under U.S.S.G. Sec. 2K2.1(a)(5), which applies when the firearm involved is a sawed-off rifle, rather than with level 12 under Sec. 2K2.1(a)(7). The officer added six levels because more than 50 firearms were involved and two levels for obstruction of justice based on defendant's threats to witnesses. The resulting guidelines range was 63 to 78 months, which exceeded the five-year statutory maximum for the single count to which defendant had pled guilty.

The trial judge ordered the parties to submit memoranda addressing his concern that dismissal of the remaining two counts would not adequately reflect the seriousness of the actual offense behavior, and that accepting the agreement might undermine the statutory purposes of sentencing. Both defendant and the United States submitted memoranda in which they contended that the six-level enhancement under Sec. 2K2.1(a)(5) should not be assessed against defendant because only firearms for sale should be considered as relevant conduct in determining the base offense level, and the sawed-off rifle was not intended to be sold. The court determined that the sawed-off rifle should be considered as relevant conduct and that the six-level enhancement under Sec. 2K2.1(a)(5) was therefore appropriate.

At the sentencing hearing, defendant asked the court to accept the Rule 11 Agreement and to impose a sentence of 60 months, a three-month departure below the guidelines range found to be applicable by the court. Defendant reserved his right to contest the six points in issue. The court accepted the agreement and sentenced defendant to 60 months incarceration.

Defendant contends that the sentence should be set aside and his case remanded for resentencing under the appropriate guidelines range of 33 to 41 months. He claims that the offense to which he pled guilty did not involve the sale of the sawed-off rifle and that mere possession of the rifle cannot serve as the basis for the extra six point assessment. The United States asserts that defendant has admitted in his objections to the presentence report that he retained the rifle for parts only, which demonstrates that defendant knowingly possessed the weapon and it was used in his firearms dealings: Thus, his possession of the rifle was part of the same course of conduct or common scheme or plan of illegal firearms dealings. ²

II.

U.S.S.G. Sec. 1B1.3(a) (November 1991) provides that the base offense level shall be determined on the basis of:

(1) all acts and omissions committed ... by the defendant ... that occurred during the commission of the offense of conviction, and

(2) solely with respect to offenses of a character for which Sec. 3D1.2(d) would require grouping of multiple counts, all such acts and omissions that were part of the same course of conduct or common scheme or plan as the offense of conviction. ³

Application Note 1(1) to Sec. 1B1.1 defines offense as "the offense of conviction and all relevant conduct under 1B1.3 ... unless a different meaning is specified or is otherwise clear from the context ..." Conduct which forms the basis for counts dismissed pursuant to a plea bargain may be considered in determining the base offense level under the guidelines. United States v. Smith, 887 F.2d 104, 106-107 (6th Cir.1989).

When a defendant has pled guilty to certain counts of an indictment in exchange for dismissal of other counts, the facts used for sentencing must have "some minimal indicium of reliability beyond mere allegation". Id. at 108 (quoting United States v. Baylin, 696 F.2d 1030, 1040 (3d Cir.1982)); United States v. Gibson, 985 F.2d 860, 863 (6th Cir.), cert. denied, --- U.S. ----, 113 S.Ct. 2981, 125 L.Ed.2d 678 (1993) (quoting United States v. Robison, 904 F.2d 365, 371 (6th Cir.), cert. denied, 498 U.S. 946, 111 S.Ct. 360, 112 L.Ed.2d 323 (1990)). In addition, proof presented at sentencing hearings must be established by a preponderance of the evidence. Robison, 904 F.2d at 371 (citing United States v. Silverman, 889 F.2d 1531, 1535 (6th Cir.1989)); Gibson, 985 F.2d at 863.

The trial court's determination that certain acts are part of a common scheme or plan is a factual determination that must be upheld on appeal unless the finding is clearly erroneous. See United States v. Miller, 910 F.2d 1321, 1327 (6th Cir.1990), cert. denied, 498 U.S. 1094, 111 S.Ct. 980, 112 L.Ed.2d 1065 (1991). Whether the facts found by the district court warrant the application of a particular guideline provision is a legal question and is to be reviewed de novo by the appellate court. United States v. Garner, 940 F.2d 172, 174 (6th Cir.1991) (citing United States v. Sanchez, 928 F.2d 1450, 1458 (6th Cir.1991)).

III.

The precise issue before the court is a novel one. However, the court has on several prior occasions addressed the issue of what constitutes "relevant conduct" in other contexts, particularly in cases involving drug distribution charges. The applicable law provides that in such cases,

[Q]uantities and types of drugs not specified in the count of conviction are to be included in determining the offense level if they were part of the same course of conduct or part of a common scheme or plan as the count of conviction.

U.S.S.G. Sec. 1B1.3, comment. (backg'd.) When determining the base offense level in drug cases, all drug quantities, including quantities charged in dismissed counts and uncharged quantities, that were part of the same course of conduct or common scheme are taken into account. Miller, 910 F.2d at 1327; Smith, 887 F.2d at 107. Thus, this court has upheld inclusion of drug amounts which a defendant admits to having sold prior to his arrest. Miller, 910 F.2d at 1327. The court has also upheld inclusion of all drugs found on premises used for drug distribution in the sentencing of a defendant who pled guilty to possession with intent to distribute, regardless of whether the defendant knew of the presence of all such drugs. United States v. Sailes, 872 F.2d 735 (6th Cir.1989). The trial judge has the discretion to consider "any and all" evidence of the quantity of drug involved. United States v. Moreno, 899 F.2d 465, 474 (6th Cir.1990).

IV.

The law regarding firearms is also pertinent to this discussion. Defendant was convicted of a violation of 18 U.S.C. Sec. 922(a)(1)(A), which provides in part:

It shall be unlawful ... for any person ... except a ... licensed dealer to engage in the business of ... dealing in firearms....

For a definition of "firearm," under the National Firearms Act of 1968, it is necessary to refer to 26 U.S.C. Sec. 5845(a). That section defines "firearm" as follows:

The term 'firearm' means ... (3) a rifle having a barrel or barrels of less than 16 inches in length; (4) a weapon made from a rifle if such weapon as modified has an overall length of less than 26 inches or a barrel or barrels of less than 16 inches in length....

Title 26 U.S.C. Sec. 5845(h) defines "unserviceable firearm" as follows:

The term 'unserviceable firearm' means a firearm which is incapable of discharging a shot by means of an explosive and incapable of being readily restored to a firing condition. (Emphasis added).

V.

The court discerns no pertinent distinctions between the possession of illegal drugs and the possession of firearms for purposes of applying the sentencing guidelines. Although the type of contraband differs, the same rationale applies. See United States v. Dennis, 926 F.2d 768, 769 (8th Cir.1991). In drug cases, the guidelines are based largely on the quantity involved. The logic supporting sentence enhancement for relevant conduct in such cases is that although a defendant may possess few or no drugs at the time of his arrest, the defendant may have participated in a course of conduct involving large amounts of drugs. United States v. Kappes, 936 F.2d 227, 230 (6th Cir.1991). By taking into account the entire amount involved, the...