U.S. v. Underwood, 90-3220

• Decision Date: 08 July 1991
• Docket Number: No. 90-3220,90-3220
• Citation: 938 F.2d 1086
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. James Harold UNDERWOOD, Defendant-Appellant.
• Court: U.S. Court of Appeals — Tenth Circuit

Page 1086

938 F.2d 1086

UNITED STATES of America, Plaintiff-Appellee, v. James Harold UNDERWOOD, Defendant-Appellant.

No. 90-3220.

United States Court of Appeals Tenth Circuit.

July 8, 1991.

Kenneth W. Starr, Sol. Gen., Dept. of Justice, Washington, D.C., Lee Thompson, U.S. Atty., Richard L. Hathaway, Asst. U.S. Atty., Topeka, Kan., for plaintiff-appellee.

Robert D. Hecht of Scott, Quinlan & Hecht, Topeka, Kan., for defendant-appellant.

Before TACHA, BALDOCK and EBEL, Circuit Judges.

BALDOCK, Circuit Judge.

Defendant-appellant James Harold Underwood was a participant in a large marijuana growing and processing enterprise with fields in six Kansas counties. ¹ He pled guilty to one count of conspiracy to plant, cultivate, grow, harvest and possess with intent to distribute marijuana in violation of 21 U.S.C. Secs. 846, 802 & 812. The Sentencing Guidelines applied because the offense occurred after November 1, 1987. See 28 U.S.C. Sec. 994(a); United States Sentencing Commission, Guidelines Manual (Nov. 1990) [hereinafter U.S.S.G.]. The district court sentenced defendant to 235 months imprisonment, the minimum guideline term for defendant's offense category. Defendant appeals, raising guideline issues. We remand for resentencing in accordance with this opinion.

Defendant argues that the district court erred in failing to state the reasons for the sentence. Our jurisdiction to review this issue arises from 18 U.S.C. Sec. 3742(e)(1), which provides for appellate review of a sentence imposed in violation of law. Defendant contends that the court violated 18 U.S.C. Sec. 3553(c), which provides:

(c) Statement of reasons for imposing a sentence.--The court, at the time of sentencing, shall state in open court the reasons for its imposition of the particular sentence, and, if the sentence--

(1) is of the kind, and within the range, described in subsection (a)(4) [a guideline sentence], and that range exceeds 24 months, the reason for imposing a sentence at a particular point within the range; or

(2) is not of the kind, or is outside the range, described in subsection (a)(4) [a guideline departure], the specific reason for the imposition of a sentence different from that described.

In this case, the statute required the district court to articulate its sentencing rationale with two levels of particularity. First, subsection (c) required the court to state the general reason for the guideline sentence imposed. Second, because defendant's guideline range exceeded twenty-four months (235 to 293 months), subsection (c)(1) required the district court to state its reason for imposing the sentence "at the particular point within the range." Subsection (c)(2) was inapplicable because the district court did not depart from the guidelines. Although it is clear that the district court did not comply with subsection (c)(1), remand on this issue alone would be pointless because the defendant could not have received a more lenient sentence within the applicable guideline range; he received the guideline range minimum of 235 months. On remand, defendant would be left without a remedy. We therefore center our inquiry on the requirement of subsection (c) that the court state the general reason for the sentence imposed.

In calculating defendant's offense level, the court adopted the presentence report including the recommendation of a Sec. 2D1.1(b)(1) two-point upward adjustment for firearm possession. IV R. 48-49. In passing sentence, however, the court made no reference to defendant's firearm possession. Instead, the court incorporated the presentence report as a whole into its findings, referred to the applicable guideline range of 235 to 293 months, and sentenced defendant to a 235 month prison term "to reflect the seriousness of the offense and to provide punishment for the offense." IV R. 47. Defendant contends that a statement from the bench regarding the firearm enhancement was required by Sec. 3553(c).

We broach this issue with the knowledge that Congress did not intend the Sec. 3553(c) statement of reasons to be "a legal battleground" for challenges to sentences which are imposed within an appropriate guideline range. See S.Rep. No. 225, 98th Cong., 2d Sess. 79, reprinted in 1984 U.S.Code Cong. & Admin.News 3182, 3262-63. See also United States v. Garcia, 919 F.2d 1478, 1481-82 (10th Cir.1990) (discusses S.Rep. No. 225 in holding that court did not have jurisdiction to "scrutinize sentencing justifications offered by the district court"). And we also take note of the legislative history which indicates that the statement of reasons should not be "subjected to such legalistic analysis that will ... encourage judges to give reasons in a standardized manner." S.Rep. No. 225 at 3263. See also United States v. Georgiadis, 933 F.2d 1219, 1223 (3d Cir.1991) (emphasizing Congressional intent to avoid "standardized sentencing statements"); United States v. Beaulieu, 900 F.2d 1531, 1535-36 (10th Cir.) (particularized sentencing statements are not required in the context of upward adjustments within the guidelines) (citing United States v. Duque, 883 F.2d 43 (6th Cir.1989); United States v. Reed, 882 F.2d 147 (5th Cir.1989) and United States v. Mejia-Orosco, 867 F.2d 216 (5th Cir.), cert. denied, 492 U.S. 924, 109 S.Ct. 3257, 106 L.Ed.2d 602 (1989)) cert. denied, --- U.S. ----, 110 S.Ct. 3252, 111 L.Ed.2d 762 (1990). However, in this case we are not considering whether the court gave adequate reasons for its imposition of a sentence within an admittedly appropriate guideline range; such a review would be precluded. See Garcia, 919 F.2d at 1481-82. Instead, we consider whether the court gave any reason for the sentence imposed. See 18 U.S.C. Sec. 3553(c). Only after this question is answered may we discern whether the court applied the appropriate guideline range.

Our concern over the court's reasoning arises because of the unexplained Sec. 2D1.1(b)(1) firearm possession enhancement. Section 2D1.1(b)(1) provides for a two-point upward adjustment for possession of a firearm during a drug offense, and the commentary indicates that the section applies as well to defendant's conspiracy to commit a drug offense. See United States v. Goddard, 929 F.2d 546, 548 (10th Cir.1991) (citing U.S.S.G. Sec. 2D1.1, comment. (n.3), and Sec. 2D1.4, comment. (n.3)). " 'The ... adjustment should be applied if the weapon was present, unless it is clearly improbable that the weapon was connected with the [conspiracy] offense.' " Goddard, 929 F.2d at 548 (quoting U.S.S.G. Sec. 2D1.1(b)(1), comment. (n.3)). The presentence report makes it clear that weapons were present in this case. Specifically, the report indicates that the government seized weapons located on several of the marijuana farms involved in the overall conspiracy and that defendant acted to some unknown extent as a supervisor in the conspiracy. Also, the report indicates that the government seized a .22-caliber semiautomatic assault rifle from a pickup truck which was registered under defendant's name. The defendant's fingerprints were found on a beer can in the truck, but not on the rifle. Defendant contends that he had no knowledge of either the weapons found on the farms or the rifle in his truck. Regarding the rifle, he explains that he lent the truck to his common law wife who in turn lent the truck to her brother. The brother-in-law, according to defendant, placed the rifle under the pickup truck seat without defendant's knowledge.

Defendant concedes that weapons were present, but argues that the government did not prove by a preponderance of the evidence that he knew of either the weapon in his pickup truck or the weapons seized on the farms. Three circuit courts, interpreting a prior version of the guidelines, have held that Sec. 2D1.1(b)(1) requires a finding of scienter. See United States v. Fiala, 929 F.2d 285, 289 (7th Cir.1991); United States v. Suarez, 911 F.2d 1016, 1021 (5th Cir.1990); United States v. Burke, 888 F.2d 862 (D.C.Cir.1989). As the first court to address the issue, the Burke court relied principally on guideline Sec. 1B1.3(a) which contains the general governing principles for the application of the firearm enhancement and the other specific offense characteristics in Sec. 2. At the time of the Burke decision, Sec. 1B1.3 provided:

Relevant Conduct (Factors that Determine the Guideline Range)

The conduct that is relevant to determining the applicable guideline range includes that set forth below.

(a) Chapters Two (Offense Conduct) and Three (Adjustments ). Unless otherwise specified, ... (ii) specific offense characteristics ... shall be determined on the basis of the following.

(1) all acts and omissions committed or aided and abetted by the defendant, or for which the defendant would be otherwise accountable, that occurred during the commission of the offense of conviction, in preparation for that offense, or in the course of attempting to avoid detection or responsibility for that offence, or that otherwise were in furtherance of that offense;

....

(3) all harm or risk of harm that resulted from the acts or omissions specified in subsection[ ] (a)(1) ..., if the harm or risk was caused intentionally, recklessly or by criminal negligence....

....

U.S.S.G. Sec. 1B1.3 (Jan.1988) (emphasis supplied). The Burke court held that subsection (3) above requires a court to make a finding regarding scienter before adjusting pursuant to Sec. 2D1.1(b)(1). We agree that the plain language of the guideline as quoted above requires a finding of scienter; however, the scienter proviso in subsection (3) was deleted effective November 1989--before defendant was sentenced. Under the new guideline it is clear that scienter is not required; simple possession alone will suffice for a firearm enhancement. See Fiala, 929 F.2d at 289; Suarez, 911 F.2d at 1021. Nevertheless, we apply the old language, as interpreted by the Burke court, to this case because the old guideline...