U.S. v. Rowlett, 93-2228

• Decision Date: 29 April 1994
• Docket Number: No. 93-2228,93-2228
• Citation: 23 F.3d 300
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. David Alexander ROWLETT, Defendant-Appellant.
• Court: U.S. Court of Appeals — Tenth Circuit

Page 300

23 F.3d 300

UNITED STATES of America, Plaintiff-Appellee, v. David Alexander ROWLETT, Defendant-Appellant.

No. 93-2228.

United States Court of Appeals Tenth Circuit.

April 29, 1994.

Angela Arellanes, Albuquerque, NM, for defendant-appellant.

John J. Kelly, U.S. Atty., and Robert J. Gorence, Asst. U.S. Atty., Albuquerque, NM, for plaintiff-appellee, on the brief. ^*

Before: ANDERSON and HOLLOWAY, Circuit Judges, and OWEN, ^** District Judge.

HOLLOWAY, Circuit Judge.

Defendant/appellant David A. Rowlett appeals his sentence for making a false statement in the acquisition of a firearm in violation of 18 U.S.C. Sec. 922(a)(6). Rowlett contends the district court erred in making a two-level upward adjustment in his base offense level under U.S.S.G. Sec. 2K2.1(b)(4) for the alleged involvement of a stolen firearm in the underlying offense, and an additional two-level enhancement under U.S.S.G. Sec. 3C1.1 for alleged willful obstruction of justice. While the district court properly enhanced Rowlett's sentence for obstruction of justice under U.S.S.G. Sec. 3C1.1, it erred in doing so under Sec. 2K2.1(b)(4) for the involvement of a stolen firearm. We therefore vacate the sentence and remand for resentencing consistent with this opinion.

I

Starting in March 1992, Rowlett became associated with David Holly, a federal fugitive involved in the manufacture and sale of false identification documents and payroll and bank checks, and the acquisition of firearms by means of counterfeit checks. PSR pp 19-20. At the time, Holly was residing with his girlfriend Elke Mikaelian in Albuquerque, New Mexico, using her home as the center for his illicit operation. Id. Beginning in November 1992, Holly also got involved in the manufacture of counterfeit federal reserve notes. Id. p 21.

On December 22, 1992, Rowlett obtained a Winchester, Model 1300 Stainless Marine 12-gauge shotgun from Oshman's Sporting Goods in Albuquerque, using a Holly-made fictitious driver's license and counterfeit check in the amount of $407.55. Id. at p 25. Rowlett falsified the ATF Form 4473 filled out in connection with the transaction. Id. Subsequently, during December 1992 and January 1993, Rowlett, Holly, and a third collaborator, Margaret Banks, purchased at least three additional firearms, using counterfeit checks and fictitious identification. Id. at p 34. On January 22, 1993, as part of a police sting operation, undercover officers set up a meeting to purchase $40,000 in counterfeit currency from Holly at a hotel in Albuquerque. Id. at pp 39-40. The encounter resulted in the shooting death of Holly and the momentary escape of his collaborators. Id. pp 42-43.

The next morning, Rowlett called Holly's girlfriend, Elke Mikaelian, and told her to remove "everything belonging to Holly" from her house and "throw it in the arroyo if you have to, but get it out of the house." Id. p 55. Later the same day, police executed a search warrant on Ms. Mikaelian's house. When they arrived, they found burned fragments of suspected counterfeit currency in the fireplace and discarded papers and cut-up photographs in various trash bags. Id.

Following his subsequent arrest, Rowlett was indicted on February 3, 1993, for providing a false statement in the acquisition of a firearm in violation of 18 U.S.C. Sec. 922(a)(6), ¹ interstate transportation of a stolen firearm in violation of 18 U.S.C. Sec. 922(j), and conspiracy to utter counterfeit obligations and make and possess forged bank securities in violation of 18 U.S.C. Sec. 371. On May 14, 1993, Rowlett pled guilty to providing a false statement in the acquisition of a firearm at Oshman's Sporting Goods in Albuquerque on or about December 22, 1992, in violation of Sec. 922(a)(6). The government in turn agreed to dismiss the remaining charges against him. The judge entered an order filed August 13, 1993, dismissing the indictment. IR.Doc.165. An information charging only the false statement offense was filed, and it was this charge to which Rowlett pled guilty.

On August 6, 1993, the district judge sentenced Rowlett to 21 months' imprisonment, to be followed by three years' supervised release. II R. 8. Adopting the factual findings and guideline applications of the presentence report, the judge arrived at an adjusted offense level of 14. II R. 8. Starting with a base offense level of 12, as provided in U.S.S.G. Sec. 2K2.1(a)(7), the judge made a one-level upward adjustment under Sec. 2K2.1(b)(1) based on the involvement of three or more firearms in the offense, a two-level upward adjustment under Sec. 2K2.1(b)(4) based on his finding that the firearms had been "stolen by way of fraud," a two-level upward adjustment under Sec. 3C1.1 based on his finding that Rowlett had willfully sought to obstruct justice by instructing Ms. Mikaelian to remove Holly's belongings, and a three-level downward adjustment based on Rowlett's acceptance of responsibility. The judge found that there was no need for an evidentiary hearing since there were no disputed facts. Id. at 7-8. With respect to the upward adjustments under Secs. 2K2.1(b)(4) and 3C1.1, which are the subject of this appeal, the judge stated:

Number 1: The defendant David Alexander Rowlett illegally acquired a Winchester Model 1300 Stainless Marine 12-gauge shotgun on December 22nd, 199, by way of fraud in that he presented a fictitious New Mexico driver's license bearing the name "Angus McLeod" and paid for the shotgun using a counterfeit check in the amount of $407.55, which he knew or had reason to know was counterfeit. The firearm is considered stolen by way of fraud at the time of the instant offense in [sic] Section 2K2.1(b)(4) of the sentencing guidelines as [sic] found to be applicable, warranting a two-offense level increase.

Number 2: Facts in the instant offense reflect that the counterfeit driver's license and checks were manufactured at the home of Elke Mikaelian, as directed by David Holly. The defendant David Alexander Rowlett, upon learning of the death of David Holly, contacted Elke Mikaelian. By his own admission, defendant advised Elke Mikaelian to remove everything of David Holly's from the house, thereby directing her to destroy or conceal material evidence in the investigation. Therefore, the two-offense level increase as applied in the presentence report is found to be warranted for obstruction of justice as considered in Section 3C1.1, Application Note III(d) [sic], of the Sentencing Guidelines.

Id.

Based on Rowlett's criminal history category of 1, the judge arrived at a guideline imprisonment range of 15-21 months. Id. at 8. The judge proceeded to sentence Rowlett to the high end of the range, 21 months, to be followed by three years of supervised release. Id. A special assessment of $50.00 was also imposed.

II

On appeal Rowlett contends, first, that the district court erred in finding that because he acquired the Winchester shotgun from Oshman's "by way of fraud", the weapon was "stolen" within the meaning of Sec. 2K2.1(b)(4), requiring an increase of two in the offense level. Second, Rowlett argues that the court erred in finding that his instruction to Elke Mikaelian to dispose of all items belonging to David Holly amounted to obstruction of justice, or attempted obstruction of justice, within the meaning of Sec. 3C1.1. In deciding these disputed sentencing issues, "we review the district court's supporting factual findings under the clearly erroneous standard, and review disputed legal issues de novo." United States v. Levy, 992 F.2d 1081, 1083 (10th Cir.1993). "[T]he district court's application of the Sentencing Guidelines to the facts of a particular case is entitled to due deference[.]" United States v. Urbanek, 930 F.2d 1512, 1515 (10th Cir.1991).

A

U.S.S.G. Sec. 2K2.1(b)(4) provides for a two-level upward adjustment "[i]f any firearm was stolen, or had an altered or obliterated serial number[.]" Applying this provision, the district court concluded that the shotgun acquired by Rowlett was "stolen" within the meaning of Sec. 2K2.1(b)(4) because it was fraudulently acquired by means of a fictitious driver's license and a counterfeit check. II R. 7.

One part of Rowlett's objection below to the increase in the offense level under U.S.S.G. Sec. 2K2.1(b)(4) was that a gun is not "stolen" just because a counterfeit check is passed to the gun dealer, IIR. 8, and a similar argument is made on appeal by Rowlett as part of his challenge to the application of the Guideline. Appellant's Brief in Chief at 5-6 & n. 1. We are not persuaded by Rowlett's argument that the term "stolen" in the Guideline provision does not include a weapon obtained by a fraudulent transaction. No persuasive authority is cited for this restrictive interpretation by Rowlett and we find none. Cases which he cites, Appellant's Brief in Chief at 6 n. 1, deal with other issues, not the argument which Rowlett makes here. In other contexts the term "stolen" has been held to include "all felonious takings of motor vehicles with intent to deprive the owner of the rights and benefits of ownership, regardless of whether or not the theft constitutes common-law larceny." United States v. Turley, 352 U.S. 407, 417, 77 S.Ct. 397, 402, 1 L.Ed.2d 430 (1957) (construing the Dyer Act, 18 U.S.C. Sec. 2312). See also McCarthy v. United States, 403 F.2d 935, 938 (10th Cir.1968) (same). We likewise reject this first argument by Rowlett against the application of Sec. 2K2.1(b)(4). We believe that the term "stolen" in the Guideline provision could apply if the firearm had been obtained by fraudulent means before the commission of the instant offense.

We now turn to the significance of the timing when the weapon became a "stolen" firearm. Defendant argues that it was error to hold that the shotgun was "stolen" within the meaning of Sec. 2K2.1(b)(4) because the Guideline focuses on the existing condition of the firearm as stolen property; it does not say "if the firearm is...