U.S. v. Pedragh, Docket No. 99-1677

• Decision Date: 01 August 1999
• Docket Number: Docket No. 99-1677
• Citation: 225 F.3d 240
• Parties: (2nd Cir. 2000) UNITED STATES OF AMERICA, Appellee, v. DEREK PEDRAGH, also known as Derrick Pedraja, also known as Derik Pedraja, also known as Derek Pedraja, Defendant-Appellant
• Court: U.S. Court of Appeals — Second Circuit

Page 240

225 F.3d 240 (2nd Cir. 2000)

UNITED STATES OF AMERICA, Appellee, v. DEREK PEDRAGH, also known as Derrick Pedraja, also known as Derik Pedraja, also known as Derek Pedraja, Defendant-Appellant.

Docket No. 99-1677

August Term, 1999

UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT

Argued: May 5, 2000

Decided: September 15, 2000

Appeal from the judgment of conviction and sentence entered in the United States District Court for the Southern District of New York (Allen G. Schwartz, Judge), applying a base offense level of 26 pursuant to U.S.S.G. § 2K2.1(a)(1) because Pedragh had two "prior felony convictions" at the time of sentencing, even though he was not convicted on the other charges until after he committed the instant offense.

VACATED and REMANDED.

DEBORAH I. MEYER, New York, NY, (Sam A. Schmidt, on the brief) for Defendant-Appellant.

MICHAEL S. SCHACHTER, Assistant United States Attorney, Southern District of New York, New York, NY (Mary Jo White, United States Attorney, and Baruch Weiss, Assistant United States Attorney, Southern District of New York, New York, NY, on the brief), for Appellee.

Before: CALABRESI, PARKER, and STRAUB, Circuit Judges.

PARKER, Circuit Judge:

Defendant-Appellant Derek Pedragh appeals from the judgment of conviction and sentence entered in the United States District Court for the Southern District of New York (Allen G. Schwartz, Judge). The district court applied a base offense level of 26 pursuant to U.S.S.G. § 2K2.1(a)(1) because it found that Pedragh had two "prior felony convictions" at the time of sentencing, despite the fact that Pedragh was not convicted on these other charges until after he committed the instant offense. Pedragh argues that because those convictions that occurred after the instant offense are not "prior felony convictions" under U.S.S.G. § 2K2.1(a)(1), the district court improperly assigned him a base offense level of 26.

For the following reasons, we find that convictions that occur after commission of the offense for which the defendant is being sentenced are not "prior felony convictions" for purposes of U.S.S.G. § 2K2.1(a)(1). We therefore vacate and remand for resentencing consistent with this opinion.

I. BACKGROUND

On three different occasions in August 1998, Derek Pedragh sold firearms to an undercover New York City police officer. On the first occasion, in early August, Pedragh sold the officer two sawed-off shotguns. One week later, Pedragh sold the officer a rifle and a pistol. Two weeks after that, Pedragh sold the officer another pistol, as well as a shoulder holster, a magazine, and twelve 9 mm cartridges. As a result of these sales, Pedragh was charged with four counts of selling firearms without a license in violation of 18 U.S.C. § 922(a)(1)(A), and two counts of possessing unregistered modified shotguns, in violation of 26 U.S.C. § 5861(d).

Pedragh pleaded guilty to all the charges against him. Prior to his sentencing, the Probation Office prepared a Pre-Sentence Report ("PSR"), which recommended a sentence range of 70 to 87 months. The range was based, among other things, on the Probation Office's determination of the applicable base offense level under U.S.S.G. § 2K2.1, the guideline that governs firearms convictions such as Pedragh's. That section provides that "if the offense involved a firearm described in 26 U.S.C. § 5845(a) or 18 U.S.C. § 921(a)(30), and the defendant had at least two prior felony convictions of either a crime of violence or a controlled substance offense," the base offense level is 26. U.S.S.G. § 2K2.1(a)(1)(1998).

According to the Probation Office, Pedragh met the requirements of this section. His offense involved at least one firearm described in 26 U.S.C. § 5845(a), i.e., a sawed-off shotgun. See 26 U.S.C. § 5845(a) (defining a firearm as, inter alia, "(1) a shotgun having a barrel or barrels of less than 18 inches in length; (2) a weapon made from a shotgun if such weapon as modified has an overall length of less than 26 inches or a barrel or barrels of less than 18 inches in length"). In addition, at the time Pedragh was sentenced on the federal firearms charges, he had, for the purposes of § 2K2.1(a)(1), "at least two prior felony convictions," since (1) he was arrested for selling crack cocaine in February 1998, (2) he was arrested for attempted robbery in September 1998, and (3) he pleaded guilty and was convicted of both offenses in February 1999.

After deciding that Pedragh's proper base offense level was 26 under § 2K2.1(a)(1), the Probation Office determined that Pedragh should receive an offense level increase under U.S.S.G. § 2K2.1(b)(1)(B) because his crimes involved five firearms. See U.S.S.G. § 2K2.1(b)(1)(B) (requiring a two-level increase in offense level if there are 5 to 7 firearms involved in the offense). Pedragh was, however, deemed to be entitled to a three-level decrease under U.S.S.G. § 3E1.1 for acceptance of responsibility. Thus, his total offense level, after both of these adjustments, was 25. Finally, due to his felony convictions for selling crack cocaine and for attempted robbery, Pedragh was in criminal history category III. The range, for an offense level of 25 and a criminal history category of III, came to 70 to 87 months.

Before he was sentenced, Pedragh submitted a letter to the district court challenging various aspects of the PSR, including the calculation of his base offense level under U.S.S.G. § 2K2.1(a)(1). The district court rejected all of Pedragh's arguments, save his request that his sentence run concurrently with his undischarged state sentence. As a result, Pedragh was sentenced to a term of 60 months' incarceration on the first four counts against him, and a term of 70 months' imprisonment on the last two counts. Both of these terms were to run concurrently with each other as well as with the undischarged portion of Pedragh's state sentence. In addition, the district court imposed a mandatory special assessment of $600 and three years of supervised release to follow Pedragh's imprisonment.

Pedragh now appeals his sentence, arguing that the district court improperly calculated his base offense level under U.S.S.G. § 2K2.1. Pedragh does not contest that his offense involved a firearm listed in 26 U.S.C. § 5845(a), as required under § 2K2.1(a)(1). Nor does he dispute that his two felony convictions, the sale of crack cocaine and the attempted armed robbery, constitute "a controlled substance offense" and "a crime of violence," respectively, under the same guideline. Pedragh's argument is simply that, because he was not convicted on the other felony charges until after the conduct that served as the basis for the federal charges, those felony charges cannot constitute "prior felony convictions" that he "had" for purposes of § 2K2.1(a)(1). We are therefore presented with a straightforward question of interpretation of a Sentencing Guideline: do felony convictions that post-date the offense conduct at issue constitute "prior felony convictions" that a defendant "had" under U.S.S.G. § 2K2.1(a)(1)?

Because this is a question of the interpretation of the Sentencing Guidelines, our review is de novo. See United States v. Shepardson, 196 F.3d 306, 309 (2d Cir. 1999), cert. denied, 120 S. Ct. 1258 (2000). We conclude, after considering both the guideline and the commentary thereto, that the district court improperly interpreted § 2K2.1(a)(1).

II. DISCUSSION

Pedragh makes three principal arguments in support of his interpretation of § 2K2.1(a)(1). First, he argues that the language of the guideline is clear because it uses the terms "had" and "prior" to describe the felony convictions that may be counted. That is, he contends that "[t]he use of the past-tense verb 'had,' rather than the present-tense 'has,' unambiguously indicates that the relevant period for considering prior convictions is not open-ended," and "[t]he most natural reading of the guideline is that the number of prior felony convictions must be determined as of the date that the defendant commits the federal firearm offense." United States v. Barton, 100 F.3d 43, 45 (6th Cir. 1996). He argues that the inclusion of the word "prior" further supports this reading because it means that there must be an event that occurred before the instant offense. See id. Finally, he asserts that, because the language of the guideline is clear, we should not look to the commentary for guidance as to how § 2K2.1 should be read.

Second, Pedragh contends that his interpretation is most consistent with the overall structure of the Sentencing Guidelines Manual, given the placement of this particular guideline in Chapter Two, which deals with "Offense Conduct." He asserts that § 2K2.1 is focused on whether the individual had prior felony convictions when he made the illegal firearm sale because persons who had prior convictions are potentially more dangerous and show a heightened disregard for the law. If the felony convictions occurred after a defendant was dealing in the firearms, according to Pedragh, that person was not more dangerous at the time he committed the firearms offense and thus, since his crime is less serious, his base offense level should not be enhanced. As a result, he argues that it is "apparent that the relevant event for assessing whether a conviction is 'prior' is the commission of the federal firearm offense." Id.

Third, Pedragh argues that to count the non-firearms felony convictions both to increase his offense level under § 2K2.1(a)(1) and to determine his criminal history category constitutes impermissible double counting. In his view, the guideline should be read to avoid this alleged problem.

The Government counters that the language of § 2K2.1(a)(1) must be read in light of the commentary to that section. In particular, it points to Application Note 5, which provides:

"Crime of violence," "controlled substance offense," and "prior felony conviction(s)," are...