U.S. v. Rome, 99-50568

• Decision Date: 17 March 2000
• Docket Number: No. 99-50568,99-50568
• Parties: (5th Cir. 2000) UNITED STATES OF AMERICA, Plaintiff-Appellee, v. NOBLE ROME, Defendant-Appellant. Summary Calendar
• Court: U.S. Court of Appeals — Fifth Circuit

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207 F.3d 251 (5th Cir. 2000) UNITED STATES OF AMERICA, Plaintiff-Appellee,
v.
NOBLE ROME, Defendant-Appellant. No. 99-50568
Summary Calendar IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT March 17, 2000

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Appeal from the United States District Court for the Western District of Texas

Before HIGGINBOTHAM, DeMOSS, and STEWART, Circuit Judges.

PER CURIAM:

I

Noble Rome pleaded guilty to conspiracy to steal firearms, in violation of 18 U.S.C. § 922(u). The stipulated factual basis for his plea explained that, beginning on or about February 7, 1998, Rome agreed with another person to break into Kramer's Wood and Metal Works in Fredericksburg, Texas, to steal firearms. Rome attempted to break into Kramer's on February 9 but was interrupted by the owner and fled with his accomplice. Had they not been interrupted and had they gained access to a locked safe, Rome and his accomplice would have stolen firearms within Kramer's business inventory.¹

The PSR found that on February 7, 1998, Rome had attempted to break into

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another business, Texas Jack's, with his accomplice in order to steal firearms. During the course of the attempted robbery, Rome set off the alarm, and he and his accomplice fled. The PSR stated that, had they not been interrupted by the alarm, Rome and his accomplice "would have stolen about 70 firearms that were stored in glass cases and were hanging on the wall at this business." The PSR also found that, had they not been interrupted during the attempted robbery of Kramer's and had they gained access to a locked safe, Rome and his accomplice "would have stolen 17 firearms within Kramer's business inventory." Rome told the probation officer preparing the PSR that he had committed the crimes because he was addicted to drugs and needed the money to buy drugs.

The PSR assessed Rome a base offense level of 12, pursuant to U.S. Sentencing Guidelines Manual § 2K2.1(a)(7). This was enhanced by six levels, pursuant to § 2K2.1(b)(1)(F), based on the determination that Rome's offense involved more than 50 firearms. The PSR assessed another two-level enhancement, pursuant to § 3B1.4, because Rome used a juvenile accomplice, but it also awarded him a three-level acceptance-of-responsibility reduction. Rome's resulting total offense level was 17, which, with a criminal history score of II, subjected him to a guidelines range of 27 to 33-months of imprisonment. Absent the enhancement, his offense level would have been 12, which would have subjected him to a guidelines range of only 12 to 18 months' imprisonment.

Rome objected to the six-level adjustment pursuant to § 2K2.1(b)(1)(F), asserting that the facts upon which the adjustment was based were purely speculative. He urged that the government had failed to establish any specific intent on his part to steal all of the guns in the inventories of the stores he had conspired to burglarize. Rome alleged that there was no evidence that he and his accomplice were even aware that there were 87 guns at Kramer's and Texas Jack's. The government countered that Rome had conspired to steal guns and that, had he not been interrupted, he would have in fact stolen guns. It argued that, at Texas Jack's, there were 70 guns which were readily available; thus, the government contended, it was logical to assume that Rome and his accomplice could have taken what was plainly in view.

The district court overruled Rome's objection, stating,

. . .the defendant had agreed with another person to break into and steal firearms from two establishments. The Court, for the record, will find that the total of 87 firearms would have been stolen if the burglary had not been or burglaries had not been interrupted. So the Court concurs with the probation officer's calculations of the offense level, which includes a six-level increase for the number of weapons involved in this offense.

The district court adopted the findings and conclusions contained in the PSR and sentenced Rome to 33-months imprisonment, followed by a three-year supervised-release period. Rome filed a timely notice of appeal.

II

A defendant may appeal a sentence imposed under the sentencing guidelines if the sentence "(1) was imposed in violation of law; (2) was imposed as a result of an incorrect application of the sentencing guidelines; or (3) is greater than the sentence specified in the applicable guideline range . . . ." 18 U.S.C. § 3742(a). This court reviews the sentencing judge's application of the sentencing guidelines de novo and accepts the sentencing judge's findings of fact unless they are clearly erroneous. United States v. Rodriguez-Guzman, 56 F.3d 18, 20 (5th Cir. 1995). A district court's findings of fact will be deemed clearly erroneous only if the reviewing court is left with the definite and firm conviction that a mistake has

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been made. United States v. Graves, 5 F.3d 1546, 1556 (5th Cir. 1993).

Rome challenges the six-level increase, pursuant to § 2K2.1(b)(1)(F), asserting that the district court's determination that he would have taken 87 guns had he been successful in entering the targeted businesses is clear error. Rome argues that the government failed to present any evidence that he specifically intended to take 87 firearms and thus contends that the enhancement did not apply.

In this case, the PSR does state the Rome and his partner "would" have stolen all the guns if they had not been interrupted. The district court relied on this information. When a district court has relied on information from a PSR, the defendant bears the burden of demonstrating that...