U.S. v. Settle, 04-5136.

• Citation: 414 F.3d 629
• Decision Date: 01 July 2005
• Docket Number: No. 04-5136.,04-5136.
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Jason SETTLE, Defendant-Appellant.
• Court: United States Courts of Appeals. United States Court of Appeals (6th Circuit)

414 F.3d 629

UNITED STATES of America, Plaintiff-Appellee, v. Jason SETTLE, Defendant-Appellant.

No. 04-5136.

United States Court of Appeals, Sixth Circuit.

July 1, 2005.

Before: SILER and CLAY, Circuit Judges; BERTELSMAN, District Judge.^*

ORDER

On January 11, 2005, this Court issued an opinion affirming Defendant Jason Settle's conviction and sentence for being a felon in possession of a firearm, in violation of 18 U.S.C. § 922(g). United States v. Settle, 394 F.3d 422 (6th Cir.2005). On June 6, 2005, the United States Supreme Court granted Settle's petition for a writ of certiorari, vacated the judgment of this Court, and remanded to this Court for further consideration in light of United States v. Booker, 543 U.S. ___, 125 S.Ct. 738, 160 L.Ed.2d 621 (2005). Settle v. United States, ___ U.S. ___, 125 S.Ct. 2560, ___ L.Ed.2d ___, 2005 WL 1113831 (June 6, 2005). We hereby reinstate our opinion of January 11, 2005, with the exception of the last sentence of the first paragraph and Parts III and IV, which shall be amended as specified below.

The last sentence of the first paragraph of the amended opinion shall read, "For the reasons that follow, we AFFIRM the district court's order denying Settle's motion to dismiss the indictment, but REMAND for resentencing in accordance with United States v. Booker, ___ U.S. ___, 125 S.Ct. 738, 160 L.Ed.2d 621 (2005)."

Parts III and IV of the amended opinion shall read as follows:

III.

Sentencing Issues

A. Standard of Review

This Court reviews de novo the district court's legal interpretation of the Guidelines, including mixed questions of law and fact. United States v. Davidson, 409 F.3d 304, 310 (6th Cir.2005).

B. Analysis

The district court applied U.S. Sentencing Guidelines Manual ("Guidelines") § 2K2.1 in order to determine the offense level for Settle's violation of 18 U.S.C. § 922(g). See GUIDELINES app. A. Section 2K2.1 contains a "Cross Reference" provision, which states that "[i]f the defendant used or possessed any firearm or ammunition in connection with the commission or attempted commission of another offense ..., apply § 2X1.1 (Attempt, Solicitation, or Conspiracy) in respect to that other offense, if the resulting offense level is greater than that determined" using § 2K2.1. Id. § 2K2.1(c)(1)(A). Section 2X1.1(c)(1) provides that "[w]hen an attempt, solicitation, or conspiracy is expressly covered by another offense guideline section, apply that guideline section." Id. § 2X1.1(c)(1). Based on a finding that Settle's firearms offense on July 4, 2002 was part of a course of conduct that culminated in Settle's July 17, 2002 intentional shooting and severe injury of Lonnie Young, the district court concluded that Settle had used the firearm on July 4, 2002 in an attempt to murder Young. Thus, the court concluded that Settle's conduct was covered by Guidelines § 2A2.1 (Assault with Intent to Commit Murder; Attempted Murder). The court applied that Guideline to calculate the offense level, because use of that Guideline resulted in a greater offense level than that determined under § 2K2.1.

Guidelines § 2A2.1 provides for a base offense level of 28, "if the object of the offense would have constituted first degree murder." GUIDELINES § 2A2.1(a)(1). In the presentence report, the probation officer stated that the appropriate offense level was 28 because "it appears that the object of the offense would have constituted first degree murder." The district court agreed. Based on Young's disabling injuries, the probation officer further recommended, and the district court agreed, an increase of four levels pursuant to Guidelines § 2A2.1(b)(1)(A), which applies when "the victim sustained permanent or life-threatening bodily injury." The court also adopted the probation officer's recommendation of a two-point increase in Settle's base offense level, pursuant to Guidelines § 3C1.1 (Obstructing or Impeding the Administration of Justice), because Settle had threatened or intimidated witnesses and victims. Last, the court adopted the probation officer's recommendation against an adjustment for acceptance of responsibility because of the recommended § 3C1.1 enhancement. Settle's total offense level was calculated to be 34.

With a criminal history category of III and an offense level of 34, Settle was subject to a sentencing range of 188 to 235 months, far in excess of the statutory maximum of 120 months for the firearms violation. The district court sentenced Settle to the 120 month maximum. If the district court had not found that Settle used a firearm in connection with the attempted murder of Young, Settle's base offense level would have been 14, pursuant to Guidelines § 2K2.1(a)(6). Even with a two point increase for obstruction of justice, Settle would have been subject to a sentencing range of only 27 to 33 months, far below the 120 month sentence he received.

Regardless of whether the district court imposed Settle's sentence in violation of the Sixth Amendment,¹ this Court must remand for resentencing in light of our holding in United States v. Barnett, 398 F.3d 516 (6th Cir.2005). In Barnett, this Court established a presumption that any pre-Booker sentencing determination constitutes plain error because the Guidelines were then mandatory. Id. at 526-29. Consequently, a defendant must be re-sentenced unless the sentencing record contains clear and specific evidence to the effect that, even if the sentencing court had known the Guidelines were advisory, it would have sentenced the defendant to the same (or a longer) term of imprisonment. See id.; see also United States v. Hudson, 405 F.3d 425 (6th Cir.2005). Because the record lacks such clear and specific evidence, we remand for resentencing in accordance with Booker.

On remand, the district court must impose a reasonable sentence that takes into account the sentencing factors set forth at 18 U.S.C. § 3553(a), as well as the Sentencing Guidelines. Booker, 125 S.Ct. at 765-67. Part of that inquiry will involve a determination of Settle's base offense level attributable to his offense conduct on July 4, 2002 and all "relevant conduct." See GUIDELINES § 1B1.3(a) (defining scope of relevant conduct for, inter alia, the cross references in Chapter Two of the Guidelines); see also id. § 1B1.1, Application Note 1(k) (the term "offense" means "the offense of conviction and all relevant conduct under § 1B1.3 (Relevant Conduct)"). The relevant conduct includes "all acts and omissions committed, aided, abetted, counseled, commanded, induced, procured, or willfully caused by the defendant" and "that occurred during the commission of the offense, in preparation for that offense, or in the course of attempting to avoid detection or responsibility for that offense." Id. § 1B1.3(a)(1). It also includes all harm that resulted from these acts and omissions and all harm that was the object of such acts and omissions. Id. § 1B1.3(a)(3).²

In determining the relevant conduct for Settle's offense, the district court will be free to consult Guidelines § 2K2.1(c)(1), which, as noted, provides that if the defendant used or possessed "any" firearm or ammunition in connection with the commission or attempted commission of another offense, then § 2X1.1 for attempt offenses governs as long as that Guideline results in a higher offense level. GUIDELINES § 2K2.1(c)(1). Even though Settle used a different firearm to shoot Young (as well as other victims) than the firearm that he possessed on July 4, 2002, § 2K2.1(c)(1)'s reference to "any" firearm does not mean that the firearm used in the offense of conviction and the firearm used in connected conduct (e.g., the attempted murder of Young) must be one and the same for purposes of determining the relevant conduct.

In United States v. Jardine, 364 F.3d 1200, 1207 (10th Cir.2004), the Tenth Circuit rejected the argument that the use of a firearm triggers § 2K2.1(c)(1)'s cross reference to § 2X1.1 only when that firearm is the same firearm that sustained the § 922(g) felon-in-possession convictions.³ The court cited the Eighth Circuit's decision in United States v. Mann, 315 F.3d 1054 (8th Cir.2003), which rejected a similar argument when it concluded that the use of "any firearm or ammunition" in § 2K2.1(b)(5), a provision similar to § 2K2.1(c)(1), indicates that the Guideline "applies to any firearm and not merely to a particular firearm upon which the defendant's felon-in-possession conviction is based." Id. at 1056 (emphasis in original); see also id. (finding the reference to "any firearm" to be "unambiguous"; noting that the Sentencing Guidelines uses the term "the" when referring to a specific firearm, whereas "any" applies "`[w]hen any firearm or ammunition will do'") (quoting United States v. Sutton, 302 F.3d 1226, 1227-28 (11th Cir.2002)). Based on Mann, the court held that "§ 2K2.1(c)(1) applies to any firearm or ammunition, including that firearm or ammunition used by a defendant in connection with another offense, even if different from the particular firearm or ammunition upon which defendant's felon-in-possession conviction is based." Jardine, 364 F.3d at 1208 (emphasis in original).

The court in Jardine stated that its holding was supported by two further considerations. First, "the Guidelines require courts to consider all relevant conduct when determining the sentencing guideline range," id. (citing GUIDELINES § 1B1.3; other citations omitted), and the defendant's use of firearms in past drug transactions and his admitted trading of ammunition for methamphetamine were therefore "clearly relevant" to his sentencing for felon-in-possession charges. Id. Second, the defendant's reading of the word "any" would lead to an absurd result by "benefit[ting] those criminals who are not apprehended with the exact firearm they used or possessed in connection with the commission of another offense." Id. "In such a case, the government would be precluded from seeking § 2K2.1(c)(1)...