USA. v. Szakacs

• Decision Date: 02 May 2000
• Docket Number: 98-3963,99-1532,Nos. 98-3932,98-4299,s. 98-3932
• Citation: 212 F.3d 344
• Parties: (7th Cir. 2000) United States of America, Plaintiff-Appellee, v. Jeffrey Szakacs, Daniel Spanley, John M. Neff, Tyrone Noble and Brian Baloski, Defendants-Appellants. & 99-2163
• Court: U.S. Court of Appeals — Seventh Circuit

Page 344

212 F.3d 344 (7th Cir. 2000)

United States of America, Plaintiff-Appellee, v. Jeffrey Szakacs, Daniel Spanley, John M. Neff, Tyrone Noble and Brian Baloski, Defendants-Appellants.

Nos. 98-3932, 98-3963, 98-4299, 99-1532 & 99-2163

In the United States Court of Appeals For the Seventh Circuit

Argued November 11, 1999

Decided May 2, 2000

Appeals from the United States District Court for the Northern District of Indiana, Hammond Division. No. 97 CR 155--James T. Moody, Judge.

Before Bauer, Easterbrook and Kanne, Circuit Judges.

Kanne, Circuit Judge.

Five defendants who planned and attempted to carry out a robbery of a major Indiana gun store appeal their sentences for convictions on one count of conspiracy to steal firearms from a licensed firearms dealer. The five, Jeffrey Szakacs, Daniel Spanley, John M. Neff, Tyrone Noble and Brian Baloski, were among a group of seven men who planned to rob Fetla's Trading Co., a gun and sporting goods store in Valparaiso, Indiana. Because of the local police's quick response, the attempt was foiled and the seven were arrested before they made it to the store. All were indicted and eventually pleaded guilty. The district court sentenced Szakacs, Spanley and Baloski to thirty months in prison, Neff to thirty-three months and Noble to eighty-four months. The defendants now appeal the calculation of their sentences under the United States Sentencing Guidelines. We affirm the upward adjustment of the defendants' sentences for offenses involving fifty or more firearms, but because the phrase "another felony offense" was applied incorrectly, we vacate that four-level upward adjustment.

I. History

The defendants, members of the Gangster Disciples street gang, gathered in the afternoon of November 6, 1997, at a fast-food restaurant in Crown Point, Indiana, and decided to meet later at the Schererville apartment of John Neff. Early that evening, the defendants met at Neff's apartment and agreed to burglarize Fetla's gun shop by cutting a hole in the wall, as their leader, Tyrone Noble, had done successfully at another Indiana gun shop a few days earlier.

Fetla's stocks a large number of firearms, many of them in locked display cases or cabled together, making the transportation of large numbers of weapons relatively easy for a group of men with trucks and burglary equipment. On the night of the planned burglary, Fetla's had a stock of more than 1,000 firearms, most of them locked in glass display cases. The store also had shopping carts available for customers and backpacks for sale, which could have been used to carry the weapons. The defendants planned to take "big cases" of guns and "grab everything they could" with the intention of arming their gang for a street war.

The group decided to use two trucks for the burglary. Noble, James Blanton and Baloski first would drive in a black pickup truck to East Chicago, Indiana, to get tools needed for the burglary. The others, including Neff, Christopher Hicks,¹ Spanley and Szakacs, would drive a red pickup truck to the rendezvous point, a Speedway gas station in Valparaiso, to wait for Noble and the others. During the ride from Schererville to Valparaiso, one of the defendants in the red truck aimed a Smith & Wesson 9mm semiautomatic handgun out the window and fired it into an open field. The reason for this is not clear.

A Valparaiso police officer patrolling the area noticed the occupied red truck waiting in the parking lot of the gas station that was closed at that time. He became suspicious, and as he turned his car around to investigate, the truck drove away from the station. The officer chased the truck, pulled it over and interrogated the four men. Apparently suspicious of their stories, the officer directed the men to get out of the truck, searched it and found the 9mm gun. The men were arrested and gave confessions leading to the execution of a search warrant on Neff's apartment the following morning. The occupants of the second truck, seeing their confederates' truck on the side of the road rather than at the Speedway gas station, called off the heist and returned to Neff's apartment. Police arrested the remaining three men in the morning when they searched Neff's home.

II. Analysis

The defendants challenge the district court's application of the Sentencing Guidelines. First, they claim that the court erred in finding that the robbery involved fifty or more firearms, which merits a six-level enhancement under sec. 2K2.1(b)(1). We review for clear error a sentencing court's findings of fact, reversing only if "after considering all of the evidence, the reviewing court is left with the definite and firm conviction that a mistake has been committed." See United States v. Wyatt, 102 F.3d 241, 246 (7th Cir. 1996) (internal citation omitted). Second, the defendants collectively claim that the sentencing court erred in interpreting the phrase "another felony offense" in sec. 2K2.1(b)(5). We review de novo a sentencing judge's resolution of a question of law. See United States v. McClanahan, 136 F.3d 1146, 1149 (7th Cir. 1998). Finally, Noble individually challenges the use of hearsay evidence at his sentencing hearing. Whether hearsay contains the indicia of reliability necessary to be used in a courtroom is a trial court decision that we review only for abuse of discretion. See United States v. Hall, 165 F.3d 1095, 1108 (7th Cir. 1999); United States v. Sinclair, 74 F.3d 753, 758-59 (7th Cir. 1996).

A. Number of Firearms

Defendants convicted of conspiracy are sentenced according to Guidelines sec. 2X1.1, which directs the court to apply the base-offense level and any adjustments from the guideline for the substantive offense underlying the conspiracy, in this case sec. 2K2.1. U.S. Sentencing Guidelines Manual sec.sec. 2X1.1, 2K2.1. Section 2K2.1(b)(1) enhances the defendants' sentences by six levels if the offense involved "50 or more firearms." U.S.S.G. sec. 2K2.1(b)(1). Because the defendants here were arrested before they ever set foot on Fetla's property, they argue that the number of firearms "involved" is too speculative to support an enhancement of their sentences. They cite Application Note 9 to sec. 2X1.1 for support: "But the only specific offense characteristics from the guideline for the substantive offense that apply are those that are determined to have been specifically intended or actually occurred. Speculative specific offense characteristics will not be applied." The example provided by the Sentencing Commission suggests that in the "conspiratorial stage of planning an armed bank robbery," the offense would not include the possibility of "obtaining a large sum of money," because that "would be speculative." Id.

The analogy between this crime and the hypothetical bank robbery in the example overlooks some key distinctions. In the example, the culprits were apprehended in the "conspiratorial stage of planning" in which the attendant circumstances of the proposed crime, such as the amount of money or other valuables in the vault, may not even be known. The conspirators' ability to carry out the crime, or even to carry away many bags of money, might be limited by the number of henchmen that could be rounded up for the heist. They may not have a target selected or know whether they intend to steal cash from the vault or valuables from safe deposit boxes. To rely on this type of unanswered question seems too speculative for purposes of enhancing the sentences.

The district court cited United States v. Vasquez, 791 F.Supp. 348, 352-54 (E.D.N.Y. 1992), as an example of impermissible speculation. In that case, the defendants were arrested en route to a planned robbery of an armored car in which they hoped to get $5,000,000. The court refused to enhance the sentence to reflect the $5,000,000 value because "there was a failure of proof as to the amount the conspirators 'intended' to steal . . . since there was no evidence of what was or would be in the van." Id. at 353. This aptly illustrates the degree of uncertainty that we believe would run afoul of the Guidelines. To the defendants' knowledge, the armored car may have been empty, it may have contained a hundred lottery tickets or $5,000,000. Without some proof both of their intent and the attendant circumstances of the crime, the $5,000,000 is speculation, not reasonable certainty.

The concept of reasonable certainty does not permit speculation, but it also does not require absolute certainty. The Guidelines, while cautioning strongly against speculative findings, emphasize the need to consider intended conduct as well as completed conduct. In the same application note quoted by the defendants, the Guidelines remind the court that "[i]n an attempted theft, the value of the items that the defendant attempted to steal would be considered." U.S.S.G. sec. 2X1.1 application note 2. Furthermore, the firearms guideline tells the court to "count only those firearms that were unlawfully sought to be obtained." U.S.S.G. sec. 2K2.1 application note 9. Without speculating, the sentencing court may accept evidence that a defendant intended a specific target of a crime and then assess the actual value of that target, such as a plan to steal the Mona Lisa. The court may not assess the value of all paintings in the Louvre if there was no evidence that the burglar intended to take any particular painting or even knew what the museum contained. The latter is speculation supported only by wish and chance, while the former is a reasoned attempt to assess the value of the burglar's target.

The trial court found that the evidence showed the seven defendants specifically intended to steal fifty or more firearms. The Guidelines require that the evidence of intended conduct be "established with reasonable certainty," a standard that does not invite mathematical precision. U.S.S.G. sec. 2X1.1(a). Where we find support in the record for the district court's...