U.S. v. Sanders
| Citation | 162 F.3d 396 |
| Decision Date | 07 December 1998 |
| Docket Number | No. 97-6095,97-6095 |
| Parties | UNITED STATES of America, Plaintiff-Appellee, v. Keidronn SANDERS, Defendant-Appellant. |
| Court | United States Courts of Appeals. United States Court of Appeals (6th Circuit) |
Thomas W. Watson, Assistant Federal Public Defender (argued and briefed), Nashville, Tennessee, for Defendant-Appellant.
Sunny A.M. Koshy (argued and briefed), Office of U.S. Attorney, Nashville, Tennessee, for Plaintiff-Appellee.
Before: KENNEDY and RYAN, Circuit Judges; BORMAN, District Judge. *
BORMAN, D. J., delivered the opinion of the court, in which RYAN, J., joined. KENNEDY, J. (pp. 403-05), delivered a separate opinion concurring in part and dissenting in part.
Defendant Kiedronn Sanders appeals from the district court sentence that imposed two upward adjustments under U.S. Sentencing Guidelines, § 2K2.1(b)(5) unlawful possession of firearms, 1 and § 3C1.1 obstruction of justice. 2
Defendant was charged in a superceding indictment on January 15, 1997 with three counts of firearms offenses:
Count 1. stealing firearms from a licensed firearms dealer in violation of 18 U.S.C. §§ 922(u), 924(i)(1), and 2.
Count 2. knowingly transporting stolen firearms in violation of 18 U.S.C. §§ 922(i), 924(a)(2), and 2.
Count 3. being a convicted felon in possession of firearms in violation of 18 U.S.C. §§ 922(g)(1) and 924(a)(2).
On April 17, 1997, Defendant Sanders plead guilty to counts 2 and 3, pursuant to a Rule 11 plea agreement. Pursuant to both his Petition to Enter a Plea of Guilty, and U.S. Sentencing Guideline § 1B1.3 which deals with relevant conduct, his conduct in stealing the firearms was to be utilized in determining his proper offense level under the Guidelines. 3 In addition, the Government Brief on Appeal acknowledges that other offenses such as the theft of the firearms, were properly included in the relevant conduct calculations for the instant offense:
The United States agrees with the defendant's position that the burglary and other theft offenses the defendant committed at Household Pawn Shop would be included in the relevant conduct of the two counts to which the defendant pleaded guilty.
Gov't Brief on Appeal, P.12, n. 3.
Over Defendants objections, the district court at the sentencing hearing imposed two upward adjustments to the offense level calculations:
1. a four level increase for possession of firearms in connection with another felony, pursuant to United States Sentencing Guideline § 2K2.1(b)(5). (App.P.36)
2. a two level upward adjustment for obstruction of justice, pursuant to United States Sentencing Guideline § 3C1.1. (App.P.10)
The district court sentenced Defendant Sanders to a 96 month term of incarceration on each count, sentences to run concurrently. 4
Defendant Sanders contends that the district court improperly increased his offense level under each of the two aforementioned guideline provisions. For the reasons that follow, we REVERSE the four level upward increase under § 2K2.1(b), AFFIRM the upward two level adjustment under § 3C1.1, and REMAND to the district court for resentencing.
FACTS:
First Issue: 4 Level Increase--Guideline § 2K2.1 (b)(5)
Defendant Sanders joined with co-conspirators to burglarize the Household Pawn Shop which sold firearms, electronics and other items in Nashville, Tennessee. Sanders, thereafter, placed some of the stolen firearms and electronics in his car and, accompanied by Jonathan Daviss, drove north toward Detroit, Michigan.
In Lima, Ohio, an Ohio State Trooper pulled him over for traffic violations. Special Agent Todd Henry described the subsequent happenings in Lima, Ohio, as follows:
After observing marijuana in plain view, the Ohio state troopers conducted a search of the vehicle and recovered 73 handguns and rifles, three black powder weapons, electronics equipment and burglary tools.
Appendix P. 107. (Transcript of Plea Proceeding, April 17, 1997).
At the sentencing hearing, FBI Special Agent Terry Haverson testified that all of the firearms and electronics items seized from Sanders were stolen at the same time. App. p. 131.
The Government acknowledges this issue to be whether the § 2K2.1(b)(5) enhancement applies "when the other felony offense occurs contemporaneously with the firearms offense." Government Brief on Appeal, P.iv.
Second Issue: 2 Level Increase--Guideline § 3C1.1
At his plea hearing, Defendant Sanders denied that he had joined with other conspirators to enter the pawnshop to commit the burglary. The relevant testimony at the plea hearing is as follows:
Court: And do you further understand that if you do not speak the truth, if you lie or make a false statement here in court, you can be punished as provided by law?
Sanders: Yes.
....
Sanders: So they approached me and asked me what am I going to do if I help them do something. Meaning the rest of those goods that they had already gotten because their car was already full and they wanted to unload their car and go back there [to the pawn shop].... I also helped load them things up.
Court: What things?
Sanders: Firearms and electronics.
App. P.99. (emphasis added).
I pulled up, threw the stuff in the car, loaded up and pulled out and left.
....
Court: Then what happened?
Sanders: Well, we made all the way to Ohio and a trooper pulled behind us, for about a mile, and pulled me over.
....
Court: Alright. Is there anything else to this?
Sanders: No.
DISCUSSION:
The two issues on appeal involve a legal interpretation of guideline terms--"another felony offense," and "obstruction of justice"--and are therefore reviewed de novo.
In United States v. Hayes, 135 F.3d 435, 437 (6th Cir.1998) the Sixth Circuit stated:
We review de novo a district court's application of the Sentencing Guidelines when the application involves mixed questions of law and fact. See U.S. v. Mills, 1 F.3d 414, 421 (6th Cir.1993).
The Sixth Circuit has stated that U.S. v. Sanchez, 928 F.2d 1450, 1459 (6th Cir.1991). For the same reason, the district court's interpretation of the Guideline term "another felony offense" must be reviewed de novo.
Defendant Sanders claims that because he "did not use or possess the firearms in connection with another felony offense, the district court improperly applied U.S.S.G. § 2K2.1(B)(5) in this case." Appellant's Brief P.11. That Guideline states:
If the defendant used or possessed any firearms or ammunition in connection with another felony offense ... increase by 4 levels.
Application Note 18 to Guideline 2K2.1 states:
As used in subsections (b)(5) and (c)(1), "another felony offense"... refer to offenses other than ... firearms possession or trafficking offenses. However, where the defendant used or possessed a firearm or explosive to facilitate another firearms or explosives offense (e.g., the defendant used or possessed a firearm to protect the delivery of an unlawful shipment of explosives), an upward departure under § 5K2.6 (Weapons and Dangerous Instrumentalities) may be warranted.
Guideline 2K2.1 speaks of possessing the firearms in connection with "another felony offense." The relevant portion of Application Note 18 states that "another felony offense" refers to offenses other than the firearms possession or trafficking offenses.
In this case there was one offense--the burglary of the pawnshop--which resulted in Defendant's possession of the instant firearms. There was no allegation that Defendant Sanders possessed any firearms when he entered the pawnshop. Nor was there any allegation that Defendant Sanders utilized any of the stolen firearms to commit any crimes after the theft. Basically, Defendant Sanders swept up many valuables from the pawnshop, and those valuables included both firearms and non-firearms.
Defendant's theft of the firearms was included as relevant offense conduct in his presentence report. App. pp. 30-34, 36, 45. 5 Indeed, he received a two level enhancement pursuant to § 2K2.1(b)(4) specifically because the firearms had been stolen. App. P.36. Thus, there is no question but that the theft at the Household Pawn Shop was part and parcel of his plea conviction.
This Court concludes that the language of Guideline 2K2.1 and Application Note 18 mandate our finding that the district court erred in increasing Defendant Sander's base offense level upward by four levels under Guideline § 2K2.1(b)(5). The district court applied the four-level enhancement because Defendant Sanders burglarized the firearms, a factor that had already been taken into account in his Sentencing Guideline calculations: § 2K2.1(a)(6) prohibited person, § 2K2.1(b)(1)(F) 50 or more firearms, and § 2K2.1(b)(4) stolen firearms. 6 The Guidelines do not authorize a major four-level increase under the instant facts simply because the state also could have brought a prosecution for the one and the same burglary.
A logical reading of the § 2K2.1(b)(5) Guideline term "another felony offense" would at least require, as a condition precedent to the application of a major four level guideline enhancement, a finding of a separation of time between the offense of conviction and the other felony offense, or a distinction of conduct between that occurring in the offense of conviction and the other felony offense. Otherwise, the word "another" is superfluous, 7 and of no significance to the application of that provision. In the instant case, there was no separation of time, or distinction in conduct between the instant offense and the state burglary offense.
Most offenses can be prosecuted under multiple provisions of the federal and state laws. The mere fact that Defendant Sanders could also have...
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