United States v. Scott Allan Bennett , 494 F. App'x 949 ( 2012 )

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[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
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No. 11-15931
Non-Argument Calendar
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D.C. Docket No. 8:11-cr-00014-VMC-AEP-1
UNITED STATES OF AMERICA,
lllllllll lllllllllllllllllllllllllllllllPlaintiff-Appellee,
versus
SCOTT ALLAN BENNETT,
llllllll llllllllllllllllllllllllllllllllDefendant-Appellant.
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Appeal from the United States District Court
for the Middle District of Florida
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(November 1, 2012)
Before MARCUS, MARTIN and FAY, Circuit Judges.
PER CURIAM:
Scott Bennett appeals his total 36-month sentence for one count of making a
false statement on a military housing application, in violation of 18 U.S.C. § 1001;
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one count of wearing an armed forces uniform without authorization, in violation of
18 U.S.C. § 702; and two counts of violating a defense property security regulation
by possessing prohibited weapons, in violation of 50 U.S.C. § 797(a)(1). On appeal,
Bennett argues that a weapons-possession enhancement, U.S.S.G. § 2B1.1(b)(14)(B),
should not apply to his sentence since no evidence showed that Bennett had
possessed a weapon at the time he made false statements on his military housing
application. After careful review, we affirm.
We review for clear error the district court’s determination of whether the
defendant possessed a firearm in connection with the offense for purposes of a
U.S.S.G. § 2B1.1(b)(14)(B) enhancement. See United States v. McClain, 252 F.3d
1279, 1284, 1288 (11th Cir. 2001) (upholding application of dangerous weapons
enhancement, which was nearly identical to § 2B1.1(b)(14)(B), under U.S.S.G. §
2F1.1, later deleted and consolidated with U.S.S.G. § 2B1.1, see U.S.S.G. App. C.,
amend. 617). For a district court determination to be clearly erroneous, we, after
reviewing all of the evidence, must be left with a definite and firm conviction that a
mistake has been committed. United States v. Foster, 155 F.3d 1329, 1331 (11th Cir.
1998). “Where the evidence has two possible interpretations, the district court’s
choice between them cannot be clearly erroneous.” Id.2
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When reviewing a district court’s sentence, we do not necessarily have to
decide guidelines issues or remand cases for new sentence proceedings where the
guidelines error, if any, did not affect the sentence. United States v. Keene, 470 F.3d
1347, 1349 (11th Cir. 2006). To determine if the error was harmless, we, first, must
determine that the district court would have imposed the same sentence even if it had
decided the guidelines issue in the defendant’s favor. Id. Second, the sentence must
be reasonable based on the U.S.S.G.§ 3553(a) factors and the advisory guidelines
range, which did not include the alleged guidelines error. Id. at 1349-50.
For an offense of fraud or deceit, the Sentencing Guidelines require the offense
level to be enhanced if the offense involved “possession of a dangerous weapon
(including a firearm) in connection with the offense.” U.S.S.G. § 2B1.1(b)(14)(B).
We have held that courts should give the guidelines phrase “in connection with” its
ordinary meaning. United States v. Rhind, 289 F.3d 690, 695 (11th Cir. 2002). We
have held that the ordinary meaning of “in connection with” does not require that the
weapon was used to facilitate the underlying offense. Id. We have not addressed
explicitly the full meaning of “in connection with” as used in § 2B1.1(b)(14)(B) but,
in McClain, we applied a nearly identical guideline, under U.S.S.G. § 2F1.1, later
deleted and consolidated with U.S.S.G. § 2B1.1. See U.S.S.G. App. C., amend. 617;
McClain, 252 F.3d at 1288. In McClain, a defendant had driven young recruits to
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businesses and waited for them in a car while they cashed counterfeit checks.
McClain, 252 F.3d at 1281-82. A search of the defendant’s car had revealed a firearm
in the passenger compartment. Id. at 1282. A recruit told law enforcement that the
defendant always kept a firearm in the vehicle when the defendant drove her to cash
checks. Id. We held that, since the defendant had supervised a scheme with a large
amount of cash in conjunction with young recruits with whom he was relatively
unfamiliar, it was reasonable to infer that the defendant had carried the firearm “in
connection with” the scheme to prevent a “rip-off.” Id. at 1288. We based that
holding on the totality of the circumstances. Id.
We have also consistently applied an expansive definition to the “in connection
with” phrase in other guidelines contexts. See, e.g., United States v. Jackson, 276
F.3d 1231, 1234-35 (11th Cir. 2001) (unlawful possession, § 2K2.1(b)(5)); United
States v. Matos-Rodriguez, 188 F.3d 1300, 1308-09 (11th Cir. 1999) (counterfeiting,
§ 2B5.1(b)(3)); United States v. Young, 115 F.3d 834, 837-38 (11th Cir. 1997)
(armed career criminal, § 4B1.4(b)(3)(A)). In Jackson, when police had attempted
to arrest the defendant on an outstanding warrant, the defendant, without ever
reaching a gun, repeatedly attempted to reach into his pocket, which contained a gun,
while he assaulted and battered the arresting officers. Jackson, 276 F.3d at 1232-33.
We found no clear error where the district court had determined that the defendant
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had made a real and determined effort to use the gun “in connection with” the assault
of the officers. Id. at 1235. In Matos-Rodriguez, after the defendant sold counterfeit
money to a police informant, the defendant threw a pistol out of his car window
during a high-speed chase with police. Matos-Rodriguez, 188 F.3d at 1302-03. We
found no clear error where the district court had determined that the defendant had
possessed a pistol “in connection with” his selling counterfeit money. Id. at 1309.
In Young, a search of the defendant’s apartment had uncovered guns, one of
which had been stolen in an earlier burglary where the defendant’s fingerprints had
been found. Young, 115 F.3d at 835. We held that an armed career criminal
possesses a firearm “in connection with” a crime of violence when that firearm is
obtained during the commission of a burglary, even if the firearm was not used to
facilitate the burglary. Id. at 838.
Based on the commentary to U.S.S.G. § 2K2.1, the “in connection with” phrase
in its subsections (b)(6)(B) and (c)(1) in general applies if the firearm or ammunition
facilitated, or had the potential of facilitating, another offense. U.S.S.G. § 2K2.1,
comment. (n.14). The commentary to the application instructions of the Sentencing
Guidelines says that definitions of terms that appear in specific guideline sections are
not designed for general applicability, and their applicability to other sections must
be determined on a case by case basis. U.S.S.G. § 1B1.1, comment. (n.2). The
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relevant conduct to determine a guideline range includes all acts and omissions
committed by the defendant 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 offense. U.S.S.G. § 1B1.3(a)(1)(A). Where
U.S.S.G. § 3D1.2(d) would require grouping of multiple counts, relevant conduct
includes all acts and omissions that are part of the same course of conduct. U.S.S.G.
§ 1B1.3(a)(2). If the offense behavior is ongoing or continuous in nature and the
offense guideline is written to cover such behavior, offenses are to be grouped or are
excluded from grouping depending on how the offenses are listed in this subsection.
U.S.S.G. § 3D1.2(d). If offenses are not listed in § 3D1.2(d), multiple offenses may
or may not be grouped depending on a case-by-case determination based on the facts
of the case and the applicable guidelines. Id. The sentencing guidelines do not apply
to any count of conviction that is a Class B misdemeanor. U.S.S.G. § 1B1.9.
Here, for purposes of his false-statement offense, Bennett had agreed by lease
to follow various security regulations at the military base. Bennett violated those
security regulations when he possessed unauthorized weapons at his on-base
apartment, the apartment which he had obtained through his false-statement offense.
Bennett’s failure to disclose or seek authorization to possess the firearms helped
Bennett avoid detection of his false-statement offense. Therefore, the district court
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did not clearly err when the court applied the weapons possession enhancement to
Bennett’s guideline range.
But even if we were to determine that the application of the § 2B1.1(b)(14)(B)
enhancement was clearly erroneous, the error was harmless. The district court said
that it had considered a higher sentence, but “came down with” the 36-month
sentence to give Bennett the benefit of the doubt and to match the government’s
recommendation. As for Bennett’s claim that the phrase “came down with” did not
mean that the court had considered a higher sentence and then reduced it, Bennett’s
interpretation is strained when read in context. As the record shows, the district court
said in the immediately preceding sentence that it had considered a higher sentence.
Further, the district court later announced that it did not matter to the court how the
36-month sentence was reached as long as Bennett’s sentence was 36 months. This
statement, by itself and in context, supports the view that the court would have
sentenced Bennett to 36 months even without the § 2B1.1(b)(14)(B) enhancement.
Moreover, even assuming Bennett’s guideline range was 1-7 months,1 a
36-month sentence was not substantively unreasonable on this record. The district
court carefully explained that Bennett’s presence and his cache of weaponry
1
We based this range on an offense conduct of 6 and a criminal history category of II.
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presented a significant security breach, and Bennett had displayed a pattern of
falsehoods. Thus, any error in the guidelines calculation was harmless.
AFFIRMED.
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