U S v. Smith

• Decision Date: 05 August 1999
• Docket Number: No. 98-5957,98-5957
• Citation: 196 F.3d 676
• Parties: (6th Cir. 1999) United States of America, Plaintiff-Appellee, v. Steven Bruce Smith, Defendant-Appellant. Argued:
• Court: U.S. Court of Appeals — Sixth Circuit

Page 676

196 F.3d 676 (6th Cir. 1999)

United States of America, Plaintiff-Appellee, v. Steven Bruce Smith, Defendant-Appellant.

No. 98-5957

UNITED STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT

Argued: August 5, 1999

Decided and Filed: November 10, 1999

Appeal from the United States District Court for the Western District of Tennessee at Memphis, No. 96-20176--Julia S. Gibbons, Chief District Judge. [Copyrighted Material Omitted] Tony R. Arvin, OFFICE OF THE U.S. ATTORNEY, Memphis, Tennessee, for Appellee.

April R. Ferguson, Bruce I. Griffey, ASST. FEDERAL PUBLIC DEFENDER, Memphis, Tennessee, for Appellant.

Before: BATCHELDER and COLE, Circuit Judges; MARBLEY, ^* District Judge.

OPINION

ALICE M. BATCHELDER, Circuit Judge.

Defendant Steven Smith ("Smith") pled guilty to five federal weapons violations and assaulting a federal officer in violation of 18 U.S.C. § 111. He now appeals the district court's application of the sentencing guidelines to compute his sentence. For the reasons that follow, we AFFIRM in part, VACATE in part, and REMAND for resentencing.

I. Factual and Procedural History

Smith was indicted on May 20, 1997, on seven counts stemming from the intentional shooting of a policeman searching his hotel room. In exchange for a dismissal of the first charge, attempting to kill a federal officer in violation of 18 U.S.C. §1114, Smith pled guilty to the remaining counts: (1) assaulting a federal officer in violation of 18 U.S.C. §111; (2) carrying a firearm during a crime of violence in violation of 18 U.S.C. §924(c); (3) being a felon in possession of a firearm in violation of 18 U.S.C. §922(g)(1); (4) being a fugitive in possession of a firearm in violation of 18 U.S.C. §922(g)(2); (5) receiving a firearm while being under indictment in violation of 18 U.S.C. §922(n); and (6) possessing a firearm with an obliterated serial number in violation of 18 U.S.C. §922(k).

To arrive at Smith's sentence of 248 months imprisonment, the court grouped together all but the §924(c) offense as closely related counts, pursuant to U.S. Sentencing Guidelines ("USSG") §3D1.2(c). The base offense level for the grouped counts was 20. The court increased the base offense level of 20 by applying two specific offense characteristics listed in §2K2.1(b):¹

(4) If any firearm was stolen, or had an altered or obliterated serial number, increase by 2 levels.

(5) If the defendant used or possessed any firearm or ammunition in connection with another felony offense; . . . increase by 4 levels. If the resulting offense level is less than level 18, increase to level 18.

§2K2.1(b)(4)-(5). The court also increased Smith's base level by 3 because he knew the victim of his assault was a law enforcement officer (§ 3A1.2(b)), and decreased the base level by 3 because Smith accepted responsibility (§ 3E1.1), to arrive at a total offense level of 26. USSG §3D1.3(a) instructs that the controlling guideline for the grouped counts is the guideline which results in the highest offense level. The district court therefore concluded that § 2K2.1, the guideline for unlawful possession of firearms, was the controlling guideline because it yielded an offense level of 26, rather than the guideline for aggravated assault, § 2A2.2, which yielded an offense level of 24.

The applicable guideline for the § 924(c) offense was §2K2.4(a), which provides that:

If the defendant, whether or not convicted of another crime, was convicted under 18 U.S.C. § 844(h), § 924(c), or § 929(a), the term of imprisonment is that required by statute.

USSG § 2K2.4(a). The statutory term of imprisonment for a §924(c) violation is five years in addition to any prison term imposed for an underlying offense.

Departing upward from the offense level of 26 on the bases of (1) Smith's discharge of a firearm (§ 5K2.6), (2) his criminal purpose (§ 5K2.9), and (3) his infliction of serious bodily injury ² (§ 5K2.2), the court arrived at a final level of 31 and a guideline range of 151 to 188 months for the grouped offenses. The court sentenced Smith to a total of 188 months for the grouped offenses, and added § 924(c)'s mandatory five-year consecutive sentence to arrive at a total sentence of 248 months' incarceration, to be followed by three years' supervised release.

II. Analysis

Smith contends that his sentence constitutes impermissible "double counting" in three respects. Because Smith's arguments all rest on the legal interpretation of various guidelines, we review the issues de novo. See United States v. Vincent, 20 F.3d 229, 241 (6th Cir. 1994).

A. Specific Offense Characteristics of USSG § 2K2.1

First, Smith contends that the district court erred in applying the specific offense characteristics of § 2K2.1(b)(4)-(5) for possessing a weapon with an obliterated serial number and using the weapon in connection with another felony offense. He argues that the commentary to § 2K2.4, which applied to his § 924(c) conviction, prohibits the use of these specific offense characteristics. The relevant provisions of that commentary provide:

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

Background: 18 U.S.C. §§ 844(h), 924(c), and 924(a) provide mandatory minimum penalties for the conduct proscribed. To avoid double counting, when a sentence under this section is imposed in conjunction with a sentence for an underlying offense, any specific offense characteristic for explosive or firearm discharge, use, or possession is not applied in respect to such underlying offense.

USSG § 2K2.4 comment (n.2), (backg'd). We will address each enhancement in turn.

1. Enhancement of an 18 U.S.C. § 924(c) Sentence for Use of Firearm in Another Felony Pursuant to §2K2.1(b)(5)

Smith contends that our decision in Vincent prohibits the application of the specific offense characteristics for use of a firearm in connection with another felony. Vincent was convicted of: (1) possession with intent to distribute marijuana; (2) using and carrying firearms during and in relation to a drug trafficking crime (the § 924(c) offense); and (3) possessing a semi-automatic pistol while being an unlawful user of a controlled substance. See id. at 232. The marijuana count was clearly the underlying "drug trafficking crime" for Vincent's § 924(c) conviction. Vincent challenged the district court's use of a specific offense characteristic for the number of firearms and the use of a firearm in connection with another felony offense, see USSG § 2K2.1(b)(1), (5), to increase his offense level for count three, a § 922(g) conviction. He argued, and this Court agreed, that the §922(g) conviction was an "underlying offense" of the §924(c) conviction, as that term is used in the commentary to §2K2.4, and thus, the district court engaged in double counting. In so holding, we stated:

The Guidelines do not define the term "underlying offense." However, both the background note and an application note to U.S.S.G. § 2K2.4 provide no restrictions on what types of offenses constitute "underlying offenses." Rather, those notes simply provide that a sentencing court may not apply specific offense characteristics with respect "to such underlying offense," U.S.S.G. § 2K2.4, comment. (backg'd) (emphasis added), or with respect "to the guideline for the underlying offense," U.S.S.G. § 2K2.4, comment. (n. 2) (emphasis added). Given this language, we are unwilling to read "underlying offense" narrowly. Accordingly, because we conclude that defendant's count 3 conviction was an underlying offense to defendant's unlawful use or carrying of a firearm during and in relation to a drug trafficking offense, section 2K2.4 requires that in order to avoid double counting, the district court is prohibited from applying any specific offense characteristic for firearm discharge, use, or possession with respect to defendant's sentence under count 3.

Id. at 241.

Several other cases in this Circuit are consistent with the Vincent opinion, but do little to help us resolve the issue before us. ³ For example, in United States v. Smith, 981 F.2d 887 (6th Cir. 1992), the defendant was convicted of assaulting a Postmaster and robbing a Post Office, as well as using a weapon during a crime of violence in violation of § 924(c). We reversed the application of a specific offense characteristic for an express threat of death, listed in §2B3.1(b)(2)(D), because such an enhancement was prohibited by the § 2K2.4 commentary. There was only one possible "underlying conviction" - the robbery - in Smith, however, and thus it does not aid us in understanding the scope of Vincent's holding⁴.

At least one court has disagreed with Vincent, finding instead that the commentary in § 2K2.1 referring to the "underlying conviction" applies only to the crime of violence or drug trafficking crime which formed the basis for the defendant's § 924(c) conviction. See, e.g., United States v. Flennory, 145 F.3d 1264, 1268-69 (11th Cir. 1998) (rejecting Vincent); United States v. Paredes, 139 F.3d 840, 846 (11th Cir. 1998) (same).

Although Vincent did not flesh out its reasoning in detail, we are bound by its holding to conclude that the district court erred in applying specific offense characteristics relating to defendant's possession and/or use of a weapon under §2K2.1(b)(5) to enhance Smith's sentence for his § 924(c) offense. In order to clarify the scope of our decision today and provide guidance for district courts facing similar circumstances in the future, however, we think a brief elucidation of our reading of the Vincent rule may be helpful.

This Circuit has consistently been loathe to condone duplicative punishments for the same behavior when not required to do so. We begin with the public policy against...