U.S. v. Ritsema
| Decision Date | 04 August 1994 |
| Docket Number | No. 93-1891,93-1891 |
| Citation | 31 F.3d 559 |
| Parties | UNITED STATES of America, Plaintiff-Appellee, v. Ronald G. RITSEMA, Defendant-Appellant. |
| Court | U.S. Court of Appeals — Seventh Circuit |
Timothy O'Shea (argued), Office of U.S. Atty., Madison, WI, for plaintiff-appellee.
Steven P. Means, Amy L. O'Brien (argued), Michael, Best & Friedrich, Madison, WI, for defendant-appellant.
Before KANNE, ROVNER, Circuit Judges, and CURTIN, District Judge. *
This is a case in which more care by the government at the plea agreement stage could have staved off an unnecessarily complex and unproductive sentencing. On October 21, 1992, a grand jury returned a two count indictment against Ronald G. Ritsema. Count I charged Ritsema, a convicted felon, with possessing two semi-automatic pistols and two rifles in violation of 18 U.S.C. Sec. 922(g)(1). Count II charged Ritsema with possessing two unregistered silencers (which were attached to the barrels of the rifles referred to in Count I), in violation of 26 U.S.C. Sec. 5861(d).
In entering into a plea agreement with Ritsema (which was in the form of a letter from the Assistant U.S. Attorney to defense counsel), the government, for some undisclosed reason, dropped Count I of the indictment in exchange for a guilty plea on Count II. 1 Because Count II charges Ritsema only with possessing two silencers which were not "registered to him in the National Firearms Registration and Transfer Record," the ultimate charge against Ritsema did not involve the possession of any actual weapons.
On the face of it, there was nothing unusual about the government's decision to drop the felon-in-possession of a firearm charge against Ritsema. A district court typically may accept such a plea agreement. Section 6B1.2(a) of the Federal Sentencing Guidelines states that "[i]n the case of a plea agreement that includes the dismissal of any charges ... the court may accept the agreement if the court determines, for reasons stated on the record, that the remaining charges adequately reflect the seriousness of the actual offense behavior and that accepting the agreement will not undermine the statutory purposes of sentencing." U.S.S.G. Sec. 6B1.2(a), p.s. (Nov.1990).
The highly experienced district judge, in his statement of reasons for the sentence, specifically found that "the offense of conviction adequately represents the defendant's criminal conduct." He also withheld acceptance of Ritsema's plea agreement until after he had reviewed the presentence report. It thus would appear that the judge accepted the plea agreement because he believed that the unregistered silencers charge standing alone did adequately reflect the seriousness of Ritsema's actual offense.
However, the way in which the court applied the guidelines to Ritsema's conviction seemed to indicate otherwise. Rather than sentencing Ritsema simply for possession of the silencers, the court believed it was required by the sentencing guidelines to bring all of the criminal conduct surrounding Ritsema's gun possession 2 back in at the sentencing stage under the "Relevant Conduct" guideline, section 1B1.3. Much of this surrounding activity was, as a factual matter, only marginally connected to the possession of the unregistered silencers, as we will describe below. Notwithstanding this attenuation, the court believed it was required to apply a complex series of guideline provisions to Ritsema's unregistered silencer conviction, including ones for Obstruction of Justice and Criminal Sex Abuse. In the end, it held Ritsema accountable for criminal acts that could have been relevant conduct had Ritsema pled guilty to being a felon-in-possession of a firearm, 3 but that were unrelated to his possession of unregistered silencers. The district court sentenced Ritsema to the statutory maximum, 120 months in prison. Ritsema now appeals his sentence.
To examine Ritsema's sentence, we must first set out the events leading up to a Wisconsin state criminal prosecution which in turn gave rise to the prosecution of this case. Ritsema was already a felon, having been convicted of both second degree sexual assault and child abuse in 1984. On September 9, 1991 a mentally retarded fourteen year old girl, K.J.L., reported to Janesville police that Ritsema, her sixty-two year old next door neighbor, had sexually assaulted her the day before. K.J.L. told police that sexual behavior between her and Ritsema had been escalating ever since her family moved next door to him in June 1991. She described how, in July and August 1991, Ritsema had befriended her, and then induced her to perform sexual acts on him as he viewed pornographic material. She related that on September 8, she went to Ritsema's trailer for breakfast, and that he took her into his bedroom and had oral and vaginal intercourse with her.
Based on K.J.L.'s information, Janesville police obtained and executed a search warrant for the pornographic materials she alleged were in Ritsema's trailer. During the search, police found 64 sexually explicit magazines in Ritsema's spare bedroom. More importantly to this case, however, the police also found in Ritsema's possession four weapons, including two rifles equipped with homemade silencers, which he stored in his bedroom closets.
To aid the prosecution, K.J.L. made a formal statement describing in greater detail Ritsema's involvement with her. She wrote that Ritsema bought her gifts in order to lure her into engaging in sexual activities with him. Her statement also indicated that on September 8, after having sexually assaulted her, Ritsema brought K.J.L. to one of his bedroom closets, and showed her a gun with a silencer on it. He told her, "if you tell anybody a lot of people will get hurt."
State prosecutors charged Ritsema with possession of firearms by a felon and sexual assault to a child. Ritsema pled guilty to one count of sexual contact with a person under the age of sixteen, and the Rock County Circuit Court sentenced him to ten years imprisonment. The firearm charge was referred for federal prosecution, resulting in the two count indictment in this case.
After Ritsema pled guilty to the silencer charge in this case, a probation officer prepared a presentence report for the court, interviewing both Ritsema and K.J.L. The district court relied upon this presentence report, as well as upon the probation officer's testimony at the sentencing hearing, to make factual findings.
First, the court found that Ritsema did take K.J.L. to one of his bedroom closets, threaten her with a silencer-equipped weapon, and warn her that he would harm "a lot of people" if she came forward about his repeated sexual assaults on her. Next, the court found that K.J.L. was actually intimidated by Ritsema's threats. Lastly, the court found that K.J.L. was a vulnerable person due to mental retardation.
Using the guidelines effective November 1990, the court proceeded to calculate Ritsema's sentence by first determining his base offense level. We observe here as an aside that although silencers are defined as "firearms" in 26 U.S.C. Sec. 5845(a), they are not actual weapons. They cannot be fired or discharge projectiles. They are merely devices designed to attach to the barrel of a handgun or rifle in order to muffle the sound made when the weapon is discharged. 4 However, because a silencer is a "firearm" for the purposes of 26 U.S.C. Sec. 5845(a), the court correctly applied guideline section 2K2.1, (Unlawful Receipt, Possession, or Transportation of Firearms or Ammunition). Subsection (a)(1) of the guideline set the base offense level for Ritsema's violation at 18. However, subsection (c)(2) provided that where the defendant "used or possessed the firearm in connection with commission ... of another offense," the court is to cross-reference to section 2X1.1 (Attempt, Solicitation, or Conspiracy) to establish the base offense level.
The court determined that Ritsema had used "firearms with silencers" in connection with the commission of obstruction of justice, because Ritsema had tried to avoid detection of his misdeeds by using a rifle to threaten K.J.L. into keeping quiet. The court did not discuss how the silencer itself was instrumental in effectuating Ritsema's threats, nor did it find that K.J.L. knew that a silencer was attached to the rifle at the time of the threats. Nevertheless, the court determined that it was required to cross-reference to section 2X1.1. Section 2X1.1(a) instructed the court to consult yet another guideline--"the guideline for the substantive offense"--for the proper base offense level.
Because the substantive offense Ritsema allegedly committed with his unregistered silencers was obstruction of justice, the court looked to section 2J1.2 to determine the base offense level. The court, however, was not permitted to stop there. Subsection (c) of that guideline commanded the court once again to cross-reference. This time the court was directed to consult section 2X3.1 (Accessory After the Fact) for the base offense level, because the defendant "obstruct[ed] the investigation or prosecution of a criminal offense."
Section 2X3.1 instructed the district court to establish the appropriate base offense level at "6 levels lower than the offense level for the underlying offense." The court determined that the offense underlying the obstruction of justice was criminal sexual abuse. 5 Section 2A3.1 (Criminal Sexual Abuse) established a base offense level of 27. The court additionally found that Ritsema had committed the sexual abuse by means of the display of a dangerous weapon; therefore, it increased Ritsema's base offense level by 4 points pursuant to section 2A3.1(b)(1). The court further increased Ritsema's base offense level by 2 points under section 2A3.1(b)(2), because his victim was under age 16. Leaving ...
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