U.S. v. William West

• Decision Date: 29 April 2011
• Docket Number: No. 09–2860.,09–2860.
• Citation: 643 F.3d 102
• Parties: UNITED STATES of Americav.William WEST, Appellant.
• Court: U.S. Court of Appeals — Third Circuit

643 F.3d 102

UNITED STATES of America

v.William WEST, Appellant.

No. 09–2860.

United States Court of Appeals, Third Circuit.

Argued Feb. 4, 2010.Filed: April 29, 2011.

Stephen F. Becker (Argued), Shapiro & Becker, Lewisburg, PA, for Appellant.Theodore B. Smith, III (Argued), Executive Office of the United States Attorney, Evaluation & Review Staff, Washington, DC, for Appellee.Before: McKEE, Chief Judge, HARDIMAN, Circuit Judge, and RUFE, District Judge.^*

OPINION

RUFE, District Judge.

William West appeals the sentence imposed on him by the District Court for possession of a stolen firearm in violation of 18 U.S.C. § 922(j). Specifically, West challenges the District Court's application of a four-level enhancement to his sentence, pursuant to U.S.S.G. § 2K2.1(b)(6), for possessing a firearm in connection with another felony offense. We have jurisdiction over this appeal pursuant to 28 U.S.C. § 1291 and 18 U.S.C. § 3742. For the reasons that follow, we vacate West's sentence and remand to the District Court for resentencing.

I.

Under 18 U.S.C. § 3742(a)(1)-(a)(2), this Court has jurisdiction to review sentences imposed in violation of the law or as a result of an incorrect application of the United States Sentencing Guidelines (the “Guidelines”). United States v. Harrison, 357 F.3d 314, 317 (3d Cir.2004), sentence vacated and remanded, 543 U.S. 1102, 125 S.Ct. 1027, 160 L.Ed.2d 1012 (2005). At sentencing, a district court should apply a preponderance of the evidence standard to all facts relevant to the Guidelines, including any finding that the defendant committed the offense of conviction in connection with another felony. United States v. Grier, 475 F.3d 556, 568 (3d Cir.2007) (en banc); see also United States v. Berry, 553 F.3d 273, 280 (3d Cir.2009). “That the District Court applied an acceptable burden of proof does not, of course, mean that its findings of fact should be upheld.” Grier, 475 F.3d at 568. We review the District Court's factual findings relevant to the Guidelines for clear error and exercise plenary review over the District Court's interpretation of the Guidelines. Grier, 475 F.3d at 570; see also Harrison, 357 F.3d at 317 (“This Court reviews a district court's interpretation of the sentencing guidelines de novo, and a district court's findings of fact supporting application of the guidelines for clear error.” (citing United States v. Butch, 256 F.3d 171, 177 (3d Cir.2001))). We also review for clear error the District Court's determination of what constitutes “relevant conduct” for the purposes of sentencing. See Harrison, 357 F.3d at 317 (citing United States v. Perez, 280 F.3d 318, 352–54 (3d Cir.2002)). “ ‘A finding is clearly erroneous when, although there is evidence to support it, the reviewing body on the entire evidence is left with the definite and firm conviction that a mistake has been committed.’ ” Grier, 475 F.3d at 570 (quoting Concrete Pipe & Prods. of Cal., Inc. v. Constr. Laborers Pension Trust for S. Cal., 508 U.S. 602, 622, 113 S.Ct. 2264, 124 L.Ed.2d 539 (1993)) (internal citations and punctuation omitted). “A sentence imposed as a result of a clearly erroneous factual conclusion will generally be deemed ‘unreasonable’ and, subject to the doctrines of plain and harmless error, will result in remand to the district court for resentencing.” Id. at 570.

II.

In order to support its application of the four-level Sentencing Guidelines enhancement for possession of a firearm in connection with another felony, the District Court relied on two events: (1) West's February 28, 2007 arrest and subsequent plea to possession of a stolen firearm; and (2) a July 27, 2007 incident which led to an arrest, but not a conviction.

A.

On February 28, 2007, West was pulled over by a Pennsylvania State Police trooper for a traffic offense while traveling on Interstate 80 in the vicinity of Bloomsburg, Pennsylvania. The trooper issued a warning for the traffic offense and obtained West's consent to search the vehicle.¹ In the glove compartment, the trooper found approximately $9,000 in cash, a small amount of marijuana,² and a .45 caliber Taurus handgun. ³ Police took West and his passenger into custody and obtained a search warrant for the rest of the car, pursuant to which they discovered a .38 caliber Taurus revolver inside a backpack in the trunk.⁴ In a post-arrest interview, after waiving his Miranda rights, West admitted both to possession of the cash and marijuana found in the glove compartment and to knowledge that the car contained at least one firearm, but did not admit to possession or ownership of either of the guns found in the car.⁵ The gun in the glove compartment, he asserted, belonged to Tyana Martin, the sister of West's girlfriend, Taniea Martin.⁶ West had observed Tyana Martin place the .45 in the glove compartment the preceding Saturday, February 24th, while the two of them were attending a party, but did not notice that the gun was still there when he placed his own items in the glove compartment on the morning of February 28th.⁷ West also told police that he and Tyana Martin had not driven the car home from the party, but had left it parked on the street overnight. When he returned to retrieve the car the Monday morning after the party, he noticed a .38 revolver lying on the rear seat; he picked up the revolver, handled it, and replaced it on the rear seat.⁸ Post-arrest, West also admitted that he had placed cash and marijuana in the glove compartment on the day of his arrest,⁹ but did not explain how the .38 found its way onto the rear seat of the car, or later, into a backpack in the trunk.¹⁰ West was charged locally for this incident and released on bail.¹¹ He later pleaded guilty to possession of the stolen .38 revolver found in the trunk, but not to possession of the .45 in the glove compartment.¹²

B.

Five months later, on July 27, 2007, during a fire-code inspection of West's girlfriend's rented apartment at 319 Louisa Street, in Williamsport, Pennsylvania, a local fire marshal observed a handgun resting on top of a bureau in a bedroom in which West was sleeping.¹³ Police, summoned by fire marshals, arrived at the scene just as West was leaving the apartment. ¹⁴ Police detained West and questioned him about the presence of firearms on his person or in the apartment.¹⁵ He led the officers upstairs to the bedroom, but the gun was no longer on the bureau. ¹⁶ West summoned his girlfriend, Taniea Martin, who admitted to police that she had moved the gun, and consented to have the apartment searched. ¹⁷ The gun, a 9mm Kel–Tec pistol, was recovered from a clothing-filled trash bag located outside the bedroom door.¹⁸ A search of the entire apartment led to the discovery of an unspecified amount of cash, a small amount of marijuana,¹⁹ unspecified drug paraphernalia, and an empty box for a handgun with the same serial number as that seized five months earlier from the glove compartment of the vehicle operated by West.²⁰ The gun recovered at 319 Louisa Street was later reported by its owner as stolen.²¹

III.

On June 11, 2008, a grand jury sitting in Harrisburg, Pennsylvania returned an indictment charging West with possession with intent to distribute marijuana in violation of 21 U.S.C. § 841(a)(1) and possession of firearms and ammunition by a convicted felon in violation of 18 U.S.C §§ 922(g)(1) and 924(e).²² The indictment also included, as a third count, notice of criminal forfeiture pursuant to 21 U.S.C. § 853.²³ The charges were intended to encompass West's alleged criminal activities from February through November of 2007.²⁴ On July 1, 2008, West entered a plea of not guilty to the charges in the indictment. Approximately two months later, the United States Attorney filed a one-count Information, charging West with receipt and possession of a stolen firearm “[o]n or about July 2007” in violation of 18 U.S.C. §§ 922(j) and 2.²⁵ The Information was accompanied by a written plea agreement ²⁶ which provided that West would plead guilty to the single count charged, and the Government would accept his plea in satisfaction of the charges set forth in the original indictment.²⁷ West waived indictment and pleaded guilty to the Information; however, instead of admitting to the charged conduct of possession of a stolen 9mm handgun in July, West admitted only to possession of the stolen .38 revolver found in the trunk of his car on February 28th. ²⁸ The Government attempted to reconcile this conflict by moving to amend the Information to read, “Beginning on or about February 2007 and continuing through on or about July 2007 ... [,]” so that “the charge embrace [d] the totality of the alleged relevant conduct.” ²⁹ West concurred in the Motion, which was granted by the District Court, but reserved his right to contest his culpability for the July events.³⁰ At the direction of the District Court, the United States Probation Office prepared a Presentence Investigation Report. The probation officer determined that West's base offense level for possession of the stolen .38 revolver was 24, pursuant to U.S.S.G. § 2K2.1(a)(2), and recommended three enhancements to the base offense level: a two-level increase for possessing three firearms under U.S.S.G. § 2K2.1(b)(1)(A); a two-level increase for possession of a stolen firearm under U.S.S.G. § 2K2.1(b)(4); and the four-level enhancement relevant to the instant appeal, for using or possessing a firearm in connection with another felony offense ³¹ under U.S.S.G. § 2K2.1(b)(6). ³² The probation officer subtracted two levels for acceptance of responsibility under § 3E1.1(a) and one level for entering a timely guilty plea, resulting in a total offense level of 29.³³ At that offense level, West's Criminal History Category of IV ³⁴ yielded a Guideline Range of 121 to 151 months imprisonment, adjusted downward to the statutory maximum of 120 months for a § 922(j) violation.³⁵ See 18 U.S.C. § 924(a)(2) and U.S.S.G. § 5G1.1(a)....