United States v. Bush ( 1995 )

Opinions of the United
1995 Decisions States Court of Appeals
for the Third Circuit
6-12-1995
United States v Bush
Precedential or Non-Precedential:
Docket 94-2025
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UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
No. 94-2025
UNITED STATES OF AMERICA
v.
THERESA J. BUSH
Theresa Bush,
Appellant
On Appeal from the United States District Court
for the Eastern District of Pennsylvania
(D.C. Crim. No. 94-0185)
Submitted under Third Circuit LAR 34.1(a)
May 22, 1995
BEFORE: GREENBERG, ROTH, AND ALDISERT, Circuit Judges
(Filed: June 12, 1995)
David L. McColgin
Assistant Federal Defender
Elaine De Masse
Senior Appellate Counsel
Maureen Kearney Rowley
Chief Federal Defender
Defender Association of
Philadelphia
Federal Court Division
437 Chestnut St., Suite 800
Lafayette Building
Philadelphia, PA 19106
Attorneys for Appellant
Michael R. Stiles
United States Attorney
Walter S. Batty, Jr.
Ronald H. Levine
Assistant United States
Attorneys
Suite 1250
615 Chestnut Street
Philadelphia, PA 19106
Attorneys for Appellee
OPINION OF THE COURT
GREENBERG, Circuit Judge.
I. Introduction
On April 26, 1994, a federal grand jury returned a
multi-count indictment charging Theresa J. Bush with five counts
of making false statements in connection with the acquisition of
a firearm in violation of 18 U.S.C. § 922(a)(6) (the false
statement counts), and five counts of possession of a firearm by
a convicted felon in violation of 18 U.S.C. § 922(g)(1) (the
possession counts). On July 13, 1994, Bush plead guilty to one
false statement count and one possession count. However, Bush
stipulated to having committing the other eight charged offenses,
and "agree[d] that, for the purpose of determining [her]
Sentencing Guidelines range, . . . these additional offenses
shall be treated as if the [she] had been convicted of additional
counts charging these offenses." App. 14.
The prosecutor and the defense attorney submitted
sentencing memorandums addressing two issues to the district
court: (1) which Sentencing Guidelines Manual applies to Bush's
sentence; and (2) how the multiple counts should be grouped. At
the October 14, 1994, sentencing hearing the prosecutor conceded
that because of potential ex post facto problems, the 1990
Guidelines Manual should apply. See, e.g., United States v.
Bertoli, 40 F.3d 1384, 1403 (3d Cir. 1994) (although
"[g]enerally, the sentencing court must apply the Guidelines
Manual in effect at the time of sentencing . . . '[w]here such
retroactivity results in harsher penalties, Ex Post Facto Clause
problems arise, and courts must apply the earlier version.'")
(citation omitted).1 The district court then divided the offense
conduct into three separate groups, and, pursuant to U.S.S.G. §
3D1.4, computed Bush's offense level to be 13.2
The district court thereupon sentenced Bush to
concurrent 16-month custodial terms, to be followed by concurrent
3-year terms of supervised release. On October 21, 1994, Bush
1
. The 1990 Guidelines Manual was in effect at the time Bush
committed the crimes to which she pleaded guilty. The 1993
Guidelines Manual is substantially different with respect to
firearms offenses, but those differences are not relevant here.
In this opinion our citations are to the 1990 manual.
2
. The relevant firearms guideline, section 2K2.1(a)(2),
provided a base offense level of 12. When three groups are
created that charge equally serious offenses, section 3D1.4
directs a court to increase the offense level by 3 which the
district court did. The court then subtracted 2 levels pursuant
to section 3E1.1 because it found that Bush had accepted
responsibility for her criminal conduct. Thus, the district
court computed the offense level to be 13.
filed a timely notice of appeal of her sentence. We have
jurisdiction pursuant to 28 U.S.C. § 1291 and 18 U.S.C. §
3742(a). The district court had jurisdiction pursuant to 18
U.S.C. § 3231. We will affirm.
II. Discussion
The sole issue on this appeal is whether the district
court erred in dividing the offense conduct into three groups.
"This contention requires a construction of the guidelines so
that our scope of review . . . is plenary." United States v.
Riviere, 924 F.2d 1289, 1304 (3d Cir. 1991). Of course, we
review the district court's findings of fact leading to its
grouping determination only for clear error.
Section 3D1.1(a) of the Sentencing Guidelines directs
courts to combine multiple counts of conviction into "'distinct
Groups of Closely Related Counts'" when certain criteria are met.
United States v. Bertoli, 40 F.3d at 1401 (quoting U.S.S.G. §
3D1.1(a)). This practice of "grouping," as it has come to be
called, was designed "to prevent multiple punishment for
substantially identical offense conduct, while still ensuring
incremental punishment for significant additional criminal
conduct." United States v. Wessells, 936 F.2d 165, 168 (4th Cir.
1991). In accommodating these concerns, courts must distinguish
between occasions when increasing the punishment for an
additional count would punish the defendant for conduct taken
into account in another count and those occasions when the added
counts reflect additional criminal culpability. The guidelines
provide in this regard that "[a]ll counts involving substantially
the same harm shall be grouped together into a single Group",
U.S.S.G. § 3D1.2, and define "substantially the same harm" as
follows:
(a) When counts involve the same victim and
the same act or transaction.
(b) When counts involve the same victim and
two or more acts or transactions connected by
a common criminal objective or constituting
part of a common scheme or plan.
(c) When one of the counts embodies conduct
that is treated as a specific offense
characteristic in, or other adjustment to,
the guideline applicable to another of the
counts.
(d) When the offense level is determined
largely on the basis of the total amount of
harm or loss, the quantity of a substance
involved, or some other measure of aggregate
harm, or if the offense behavior is ongoing
or continuous in nature and the offense
guideline is written to cover such behavior.
U.S.S.G. § 3D1.2. While section 3D1.2 contains lists of specific
offenses that should and should not be grouped, firearm offenses
fall into neither category. Therefore, in firearms cases "a case
by case determination must be made based upon the facts of the
case and the applicable guidelines (including specific offense
characteristics and other adjustments) used to determine the
offense level." Section 3D1.2(d). We previously have noted the
relevance of application note 2 to firearms offenses, which
provides that when crimes involve "indirect or secondary victims
'the grouping decision must be based primarily upon the nature of
the interest invaded by each offense.'" United States v.
Riviere, 924 F.2d at 1304 (citing U.S.S.G. § 3D1.2).
The parties do not dispute the facts constituting the
offense conduct: On ten occasions between September 29, 1990,
and November 29, 1990, Bush travelled to Lou's Loan of Upper
Darby, Pennsylvania, a licensed gun dealer. On five of those
trips she applied to buy various handguns, and in so doing,
failed to acknowledge a prior felony conviction. On the other
five trips she purchased the guns for which she had applied.
The district court grouped each false statement count
with its corresponding possession count; after that grouping, the
district court chronicled Bush's actions as follows:
10/04/90: Bush purchases her first handgun,a
.32 New England revolver.
10/12/90: Bush purchases her second handgun,
a .380 caliber Davis semi-
automatic;
10/13/90 Bush purchases her third handgun, a
9mm caliber Taurus semi-automatic;
11/01/90 Bush purchases her fourth handgun,
a .380 caliber Beretta semi-
automatic;
11/29/90 Bush purchases three .380 caliber
Davis semi-automatic handguns and
one 9 mm caliber Tanfoglio semi-
automatic handgun.
Then the court analyzed which of the offenses were
distinct and which were coextensive and therefore involved
substantially the same harm. Beginning with the premise that if
Bush bought the guns for different purposes then different harms
were involved, the court reviewed the record and determined that
she had given inconsistent explanations for the purchases. On
December 4, 1992 she informed agents of the Bureau of Alcohol
Tobacco and Firearms (ATF) that she bought the guns because she
and her husband liked to target shoot at "Colosimo's range," see
PSR at 2 ¶ 7.3 But she told the probation officer during the
presentence investigation that she bought the guns as protection
for her mother and sisters. See PSR at 2 ¶ 10. The district
court partially believed Bush's explanations, but concluded that
"these lawful purposes only account for four of the guns. They
cannot plausibly explain the purchase of four additional semi-
automatic weapons on November 29, 1990." Op. at 6. The court
thus inferred that there was a third "mystery motive" for the
purchases.
Additionally, relying on the chart quoted above, the
court characterized Bush's gun-purchasing activity as naturally
dividing into three time frames: October 4 through October 13,
1990; November 1, 1990; and November 29, 1990. Reasoning that
while in a broad sense Bush's purchases could be considered
"ongoing, . . . their temporal separation cannot fairly be
regarded as continuous," op. at 7, the court concluded that
"[t]he timing and manner of Bush's purchases confirms our
creation of three groups." Op. at 6. The district court found
3
. At the sentencing hearing, defense counsel offered no
objections to the factual findings in the PSR, other than to the
probation officer's conclusion that the 1993 Sentencing
Guidelines Manual should apply. App. 66.
still further support for its grouping decision in its
observation that "the handguns . . . are of three different
calibers and from five different manufacturers." Op. at 6.
Bush first argues that the general thrust of the
guidelines supports a single group. In this regard, she points
to the application note to U.S.S.G. § 3D1.2 for the proposition
that firearms offenses presumptively should be grouped together.
That application note states:
Subsection (d) likely will be used with the
greatest frequency. It provides that most
property crimes . . ., firearms offenses, and
other crimes where the guidelines are based
primarily on quantity or contemplate
continuing behavior are to be grouped
together. The list of instances in which
this subsection should be applied is not
exhaustive.
U.S.S.G. § 3D1.2 application note 6.
Bush's reliance is misplaced. Immediately following
the application note, the guideline contains examples of when
grouping is appropriate which shed light on the point the
Sentencing Commission was making in the application note. The
pertinent example states that if "[t]he defendant is convicted of
three counts of unlicensed dealing in firearms . . . [a]ll three
counts are to be grouped together." Suppose, for example, a
defendant, unlicensed to deal in firearms, owns a pawn shop and
has three guns for sale. It might be unfair to increase the
punishment for each additional gun, because the shopowner really
was running a single business and engaged in a single continuous
course of conduct. Dividing the crime into three subdivisions
artificially would increase the punishment based not on
additional criminal conduct but on the fortuity of the number of
guns being sold. That is precisely the type of result against
which grouping is intended to guard, and it is the kind of
situation covered by the application note.
But that grouping principle cannot be applied to all
multiple firearms violations, for such an application would
eviscerate the Commission's direction that such crimes are to be
grouped on a case by case basis. Moreover, it defies logic to
say that all firearms violations committed by an individual in a
narrow time frame necessarily involve substantially the same harm
and invade the same protected interests. People possess firearms
for various reasons with various intentions. While, broadly
speaking, society is the victim of all possession crimes, each
crime has its own nuances and must be evaluated on its own. See
United States v. Cousens, 942 F.2d 800, 808 (1st Cir. 1991) (a
defendant "who purchased different firearms on different
occasions for different purposes using funds from different
sources, readily may be distinguished from a defendant who pleads
guilty to three counts of unlicensed dealing in firearms")
(pointing out limited utility of application note); see generally
United States v. Griswold, No. 94-1979, slip op. at 9-10 (3d Cir.
Jun. 5, 1995) (discussing application note).
Bush further argues that subsections 3D1.2(b) and (d)
required the district court to classify the entire offense
conduct as one group. She contends that subsection (b) required
grouping because "[t]he nature of the interest invaded by each of
the ten counts in this case was exactly the same -- the interest
in keeping guns out of the hands of convicted felons" and
therefore "Bush's 'criminal objective' was also the same -- the
possession of handguns." Br. at 11. She argues subsection (d)
required grouping because Bush's behavior was "ongoing and
continuous in nature." Inasmuch as the arguments relating to
both subsections are quite similar, namely that Bush's criminal
conduct constituted one quick scheme of purchasing handguns, we
will address them together.4
Other than the general principles detailed above, we
are left with little direction from the Sentencing Commission.
We take some guidance, though, from the limited case law
addressing this issue. In Riviere, the defendant pled guilty to
4
. In Riviere we pointed out the following inconsistency in the
Sentencing Guidelines commentary:
[T]he clarifying amendment, effective
November 1, 1989, to the background
commentary to the application notes to
guidelines § 3D1.2 . . . provides that
'[c]ounts involving different victims (or
societal harms in the case of "victimless"
crimes) are grouped together only as provided
in subsection (c) or (d).' However, the
application note discussing the term
'victim,' which appears in guidelines §
3D1.2(a) and (b), provides that, for
victimless crimes in which society at large
is the victim, 'the grouping decision must be
based primarily upon the nature of the
interest invaded by each offense.'
Riviere, 924 F.2d at 1305 (citations omitted). This
inconsistency does not affect our analysis, however, because as
we state in the text, Bush's arguments regarding (b) and (d) are
nearly identical.
possession of a firearm by a felon, delivery of firearms to a
common/contract carrier, and possession of an altered firearm.
Relying on the general policies behind grouping, we held that the
district court should have combined the offenses into a single
group. First, "[t]he guidelines already provided for enhanced
punishment for possession of a firearm by a felon if that firearm
was altered." Riviere, 924 F.2d at 1306. Thus, section 3D1.2(c)
mandated grouping, because one of the counts "embodies conduct
that is treated as an . . . adjustment to the guideline
applicable to another of the counts." Moreover, "grouping of the
offenses of possession of a firearm by a felon and delivery to a
common/contract carrier was required because to hold otherwise
would provide enhanced punishment for Riviere's status as a
felon, rather than his 'additional conduct that is not otherwise
accounted for by the guidelines.'" Id. at 1306. Driving the
analysis in Riviere was the fact that the defendant really pled
guilty to one instance of unlawful conduct -- carrying altered
firearms onto a chartered flight when he had been convicted
previously of a felony -- and he should have been sentenced only
once for his unlawful act; see Griswold, slip op. at 8
("[B]ecause no additional conduct was represented by the
additional counts [in Riviere], it was appropriate to group all
of the firearms-related offenses."); Cf. U.S.S.G. § 3D1.2(a)
(grouping appropriate when "counts involve the same victim and
the same act or transaction").
More analogous is United States v. Cousens, 942 F.2d at
800. In that case, the court held that in determining how to
group firearms offenses, courts should consider "'differences in
place, time, nature of the guns, lack of drugs, and intervening
arrests.'" Id. at 807 (citation omitted). The court of appeals
upheld the district court's decision to divide nine firearms
counts into one group of seven counts, and two groups of one
count each. The offenses underlying the group of seven occurred
during a nine-day time period, involved purchases from the same
cash pool, and were connected by a common scheme. The two
remaining counts, however, involved, respectively, the purchase
of a different type of gun from a different seller, and a
purchase for a different purpose. Id. at 807. In response to
the defendant's argument that all counts should have been grouped
together, the court of appeals held that the defendant "did not
demonstrate that his independent offenses . . . involved
transactions connected by a common criminal objective or
constituting part of a common scheme or plan with the grouped
offenses." Id. at 808; but see United States v. Wessells, 936
F.2d at 168-69 (district court grouped several weapons purchases
where the purchases evinced single schemes by the defendant "to
supply himself with an arsenal").
If the district court in this case refused to group the
possession counts with their corresponding acquisition counts, we
would face a Riviere problem -- Bush's sentence would be
increased because of her status. But this case is not like that
at all; we do not face a situation in which the court sentenced
her for discrete criminal acts from one instance of unlawful
conduct. Nor can the purchases in this case be compared to those
leading to the single large grouping in Cousens. To the
contrary, the undisputed facts indicate that Bush made five
specific firearms purchases over a period of several months -- a
far cry from the nine-day period in Cousens. And, contrary to
the Cousens court's finding that the purchases were for a common
scheme, Bush gave inconsistent explanations for her purchases.
Furthermore, in light of the fact that we know little about where
her firearms went,5 her explanations are fairly incredible
insofar as they apply to all the guns. While Bush apparently
made all her purchases in cash from the same gun shop, there is
nothing to indicate that the guns were bought from a particular
cash pool to be used for a particular purpose. In fact, there is
nothing in the record demonstrating that the purchases were tied
in any respect; indeed Bush's shifting explanations support the
contrary conclusion. In light of these facts, the district court
probably would have acted well within its discretion had it
inferred discrete motives from discrete purchases, and created
five separate groups. See Griswold, slip op. at 8 (discussing
similar fact pattern) ("We remain unconvinced that the Sentencing
Commission contemplated grouping these offenses.").
Ironically, Bush is taking the district court to task
because it may have treated her more leniently than she deserved.
Instead of rejecting her explanations and treating each purchase
as a separate discrete act, the district court gave Bush the
5
. One of the firearms was later found in the possession of a
confidential informant in the World Trade Center bombing case.
See app. 78-79.
benefit of the doubt and believed her explanations in part. And,
the court added only one "mystery motive" to those explanations
when it could have added two or three.
Nevertheless, Bush argues that the district court's
"mystery motive" finding was clearly erroneous. She contends
that the district court concluded that the family "protection"
motive could not account for all the purchases but that it based
this conclusion on its erroneous belief that Bush had only one
sister. See Op. at 6 ("Bush . . . claimed to have purchased
handguns . . . to give to her mother and sister for self-
defense"). Bush is correct in noting that the district court
erroneously believed she had only one sister. But the court had
other justifications for inferring a mystery motive. First, the
protection explanation was inconsistent with the target practice
explanation, so the court reasonably could have concluded that
Bush was trying to hide a third motive. Second, the district
court plausibly was skeptical that a person would purchase semi-
automatic weapons simply for protection. See app. 84 ("[W]hen
somebody goes in and buys four semiautomatic weapons . . . it
implies to me yet another purpose. That's what I'm concluding as
to the basis for this.") (sentencing hearing). Finally, the
undisputed evidence established that none of the weapons had
reached the people Bush contended that they intended to protect.
See PSR at 2 ¶ 10 (Bush "was unable to explain why the guns were
never delivered to the intended recipients"). The district court
was well within its discretion in concluding that there was a
mystery motive.
Next, Bush argues that because her explanations
"applied to all the guns she bought . . . [s]ince [she] never
ascribed different explanations to different guns, these
explanations simply cannot be used as a basis for creating
separate groups." Br. at 13. We disagree. The district court's
finding must be examined in light of all of the evidence. The
record establishes both that Bush's husband was registered to
shoot at Colosimo's Pistol Range, see app. 31, and that Bush has
a mother and seven sisters. In light of these facts, the
district court could have believed that Bush's was telling
partial truths each time she tried to explain the purchases.
However, Bush's evasive behavior on other occasions belied those
explanations. When interviewed by the ATF in 1992, Bush "would
not say where the weapons were" but implied that she knew where
they were. PSR at 2 ¶ 7. When interviewed on April 26, 1994,
however, "Ms. Bush expressed that she no longer knew where the
guns were." PSR at 2 ¶ 7. Along with the inconsistent
explanations she gave, Bush also told the district court that she
did not know why she purchased the guns. See app. 93.
Moreover, the district court's decision to divide the
offense conduct into three groups is supported by the timing of
the offenses. Cf. Griswold, slip op. at 8 (improper to group
"purchases and possession of eight semi-automatic handguns
spanning in excess of two years."). The chart we reproduce above
demonstrates that Bush's purchases occurred in three separate
bursts of activity. The district court properly relied on that
fact to support its finding of three motives.
The judgment of conviction and sentence entered on
October 17, 1994, will be affirmed.