U.S. v. Sanders

• Decision Date: 18 December 1992
• Docket Number: No. 92-1940,92-1940
• Parties: UNITED STATES, Appellee, v. Steven H. SANDERS, Defendant, Appellant.
• Court: U.S. Court of Appeals — First Circuit

Page 4

982 F.2d 4

UNITED STATES, Appellee, v. Steven H. SANDERS, Defendant, Appellant.

No. 92-1940.

United States Court of Appeals, First Circuit.

Submitted Dec. 15, 1992.

Decided Dec. 18, 1992.

Ray Raimo and Raimo & Murphy, Manchester, NH, on brief, for appellant.

Jeffrey R. Howard, U.S. Atty., and Peter E. Papps, First Asst. U.S. Atty., Concord, NH, on Motion for Summary Disposition.

Before SELYA, CYR and BOUDIN, Circuit Judges.

PER CURIAM.

Defendant, who pled guilty to (1) being a felon in possession of firearms, 18 U.S.C. § 922(g)(1), and (2) using or carrying a firearm during and in relation to a drug trafficking crime, 18 U.S.C. § 924(c)(1), appeals from his sentence. He contends that the conduct underlying the second count was unfairly counted three times in computing his sentence and that the district court improperly departed upwards under U.S.S.G. 5K2.2 (physical injury) upon finding that defendant had used a firearm different from any of those listed in the indictment to shoot his girlfriend. Finding no error, we affirm.

I

We first address defendant's triple counting argument. As defendant concedes, he was properly sentenced as an armed career offender, 18 U.S.C. § 924(e), for the felon in possession count. In these circumstances, defendant's guilty plea to using or carrying a firearm during and in relation to a drug trafficking crime, 18 U.S.C. § 924(c)(1), had three effects on defendant's overall sentence.

First, defendant's guilty plea to the count two offense of using or carrying firearms in connection with drug trafficking required a minimum mandatory five-year sentence to be added consecutively to the count 1 sentence. 18 U.S.C. § 924(c)(1) ("Whoever, during and in relation to any

drug trafficking crime ... for which he may be prosecuted in a court of the United States, uses or carries a firearm, shall ... be sentenced to imprisonment for five years.... [T]he term of imprisonment imposed under this section [shall not] run concurrently with any other term of imprisonment...."); U.S.S.G. 2K2.4(a) (term of imprisonment for defendant convicted under 18 U.S.C. § 924(c) is that provided by statute).

Second, the guilty plea to the count two offense affected the base offense level for the count one felon in possession offense, raising it from 33 to 34. The relevant guideline follows:

§ 4B1.4 Armed Career Criminal

. . . . .

(b) The offense level for an armed career criminal is the greatest of:

. . . . .

(3)(A) 34, if the defendant used or possessed the firearm ... in connection with a crime of violence or controlled substance offense ...

(B) 33, otherwise.

The district court chose subsection (3)(A), with a base offense level of 34, on the ground that, the firearms listed in counts one and two being identical, defendant's guilty plea to using or carrying firearms in connection with drug trafficking established that the firearms had been used or possessed in connection with a controlled substance offense.

Third, the count two offense raised the criminal history category on count one (felon in possession) from IV to VI. The relevant provision follows:

(c) The criminal history category for an armed career criminal is the greatest of:

. . . . .

(2) Category VI, if the defendant used or possessed the firearm ... in connection with a crime of violence or controlled substance offense ...

U.S.S.G. § 4B1.4(c). Defendant had nine criminal history points which, absent section 4B1.4(c), would have placed him in criminal history category IV, rather than VI.

A

Turning first to the second (the selection of BOL 34 rather than 33) and the third (criminal history category) increases, we see no impermissible double counting. The very same guideline, U.S.S.G. § 4B1.4, plainly directs both of these increases. An armed career criminal who unlawfully uses or carries a firearm in connection with a drug trafficking offense will have both his base offense level (under subsection (b)(3)(A)) and his criminal history category (under subsection (c)(2)) augmented. This is not a circumstance where, through cross-referencing, it might be thought that double counting unintentionally resulted, but rather the case of one guideline expressly directing that a single factor--possession of a firearm in connection with a controlled substance offense--be considered in two ways. The district court correctly followed the plain language of the guideline in selecting BOL 34 and criminal history category VI.

B

Next is defendant's contention that the count two offense conduct (using or carrying a firearm during and in relation to drug trafficking) was unfairly counted twice in first raising his offense level on the felon in possession count from 33 to 34 and in then adding a minimum five-year sentence to the felon in possession sentence.

Citing to U.S.S.G. § 2K2.4, application note 2, as well as to several cases, defendant argues that this double counting is improper. Application note 2 to U.S.S.G. § 2K2.4 applies to defendants sentenced for both an 18 U.S.C. § 924(c) (using a firearm during and in relation to a crime of violence or drug trafficking crime) offense and the offense underlying the § 924(c) offense. It directs that increases in the base offense level for the underlying offense not be made for possession or use of a firearm in certain circumstances:

Where a sentence under this section is imposed in conjunction with a sentence for an underlying offense, any specific offense characteristic for the possession, use, or discharge of a firearm (e.g., § 2B3.1(b)(2)(A)-(F) (Robbery)), is not to be applied in respect to the guideline for the underlying offense.

U.S.S.G. § 2K2.4, application note 2. The note then states an exception to the exception, which we need not address since we conclude application note 2 is not applicable.

This application note does not apply to defendant's count 1 (felon in possession) offense. First, it is unclear whether the felon in possession offense is an "underlying offense," within the meaning of application note 2, of the using or carrying a firearm during and in relation to a drug trafficking offense count. Rather, it is a drug trafficking offense which would most clearly be a relevant underlying offense. Defendant, however, has not been sentenced for the drug offense underlying the using or carrying of a firearm during and in relation to a drug trafficking offense, and hence no occasion arises to apply application note 2. (Had defendant been separately charged with the underlying drug offense, the application note would have directed that defendant's use of a weapon not be considered in calculating the offense level for the drug offense.)

Second, even if the felon in possession charge were viewed as an offense underlying the using or carrying of a firearm during and in relation to a drug trafficking crime offense, the literal application of note 2 would not help defendant. The note directs that any "specific offense characteristic" for the underlying offense not be utilized in calculating the guideline range for the underlying offense. Unlike, for example, the guidelines for aggravated assault (§ 2A2.2), kidnapping (§ 2A4.1), or drug trafficking (§ 2D1.1) which list use or possession of a firearm as a "specific offense characteristic" raising the offense level, the felon in possession guidelines (§§ 2K2.1, 4B1.4) do not designate possession or use of a single weapon as a "specific offense characteristic" raising the offense level. ¹ Rather, possession of a weapon is an element of the crime. And section 4B1.4(b)(3)(A) where use is considered is not denominated a "specific offense characteristic." Consequently, application note 2 does not assist defendant.

Even if application note 2 can not be literally applied to help defendant, defendant contends that the guidelines as a whole and case law prohibit double counting.

The strongest case on which defendant relies for his contention that unforseen or unintended double counting occurs when use of a firearm during and in relation to a drug trafficking offense is used both in calculating the offense level for a felon in possession count and in adding a five-year consecutive sentence is United States v. Bell, 716 F.Supp. 1207 (D.Minn.1989). There, a defendant sentenced for prison escape objected to the application of U.S.S.G. § 4A1.1(d), which called for a two-point addition to the criminal history score when an offense was committed while under any criminal justice sentence. Defendant argued that an escape offense could only be committed while under a criminal justice sentence, so the offender's incarcerated status was necessarily already included in the base offense level. Consequently, considering it again under § 4A1.1(d) was improper double counting. After reviewing various places throughout the guidelines where provisions are made to avoid double counting, the district court substantially agreed with defendant, reasoning as follows:

The underlying principle is that if one provision of the guidelines accounts for an element of the offense or a specific offense characteristic, another provision designed to account for the same factor should not apply.

All courts of appeals confronted with the situation in Bell have disagreed with Bell and have applied the plain language of the guidelines. See, e.g., United States v. Thomas, 930 F.2d 12, 13-14 (8th Cir.1991) (collecting cases). Nevertheless, there are other situations in which courts of appeals have refused to apply the guidelines literally when it seemed to them that a single factor had been used twice, even though the plain language of the guidelines called for the double enhancement. See, e.g., United States v. Hudson, 972 F.2d 504 (2d Cir.1992) (impermissible double counting where the use of a non-inherently dangerous weapon (car) both made the assault an aggravated one and resulted in a specific offense characteristic 4 level increase for use of a dangerous weapon); United...