United States v. Steven Gray ( 2019 )

PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
__________
No. 18-3663
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UNITED STATES OF AMERICA
v.
STEVEN GRAY,
Appellant
______________
On Appeal from the United States District Court
for the Middle District of Pennsylvania
(D.C. No. 1:17-cr-00124-001)
District Judge: Honorable John E. Jones, III
______________
Submitted Under Third Circuit L.A.R. 34.1(a)
on September 20, 2019
Before: KRAUSE, MATEY, Circuit Judges,
and QUIÑONES ALEJANDRO, District Judge
(Opinion filed: November 8, 2019)

Honorable Nitza I. Quiñones Alejandro, District
Judge, United States District Court for the Eastern District of
Pennsylvania, sitting by designation.
David J. Freed
Scott R. Ford
Office of the United States Attorney
228 Walnut Street, P.O. Box 11754
220 Federal Building and Courthouse
Harrisburg, Pennsylvania 17108
Counsel for Appellee
Heidi R. Freese
Ronald A. Krauss
Office of the Federal Public Defender
100 Chestnut Street, Suite 306
Harrisburg, PA 17101
Counsel for Appellant
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OPINION OF THE COURT
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QUIÑONES ALEJANDRO, District Judge.
Appellant Steven Gray appeals the sentence imposed by
the United States District Court for the Middle District of
Pennsylvania following his conviction for unlawful possession
of a firearm by a felon in violation of 18 U.S.C. § 922(g)(1).
Gray challenges three sentencing enhancements that the
District Court applied in calculating his sentence range under
the advisory United States Sentencing Commission Guidelines
(“Guidelines”). This Court has jurisdiction pursuant to
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28 U.S.C. § 1291 and 18 U.S.C. § 3742(a). For the reasons set
forth below, we will affirm the District Court’s judgment.
I. BACKGROUND
Just after midnight on January 1, 2017, during the New
Year’s Eve fireworks festivities in York City, Pennsylvania,
Police Officer Paul Thorne was patrolling residential
neighborhoods in his police vehicle and, as he turned onto Silk
Avenue from Mulberry Street, he heard gunshots. He drove
west on Silk Avenue and observed a person—later identified
as Appellant Steven Gray—carrying a firearm. Officer Thorne
observed Gray walking down a pathway between two
rowhomes located at 721 and 723 Wallace Street. Officer
Thorne stopped, exited his vehicle, and ran down the pathway
with his firearm drawn, until he was about ten (10) feet behind
Gray. Officer Thorne identified himself as a police officer and
ordered Gray to drop the firearm. Gray turned towards Officer
Thorne, saw that Officer Thorne was pointing a firearm at him
in the “high ready” position, and began running away from the
officer in the direction of Wallace Street. App. 34, 36. As
Officer Thorne ran after him, he observed Gray toss his gun
and run onto the porch of 725 Wallace Street, the residence
next door to Gray’s home. Officer Thorne followed Gray onto
the porch and placed Gray face down. Within a minute or so,
Police Officer Davis arrived at the scene. Gray was handcuffed
and taken into custody.
After a brief search of the area where Officer Thorne
saw Gray toss the firearm—an area where Officer Davis
testified that “less than three” people were outside when he
arrived—Officer Thorne found the firearm on the sidewalk in
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front of 731 Wallace Street. App. 57. The firearm had one
round in the chamber and six rounds in the magazine. Officer
Thorne testified that he was not worried about the firearm
presenting any danger because “[i]t will not hurt anybody
unless someone is squeezing the trigger.” App. 39.
The firearm was identified as a Taurus 9-millimeter
handgun with the serial number TLF58814D. A check with
the National Criminal Information Center (“NCIC”) revealed
that the firearm was stolen in Manchester, New Hampshire, in
1995. After being notified that the firearm was recovered, the
Manchester Police Department attempted to locate the theft
victim without success. Thereafter, on January 30, 2017, the
Manchester Police Department sent the following message to
Officer Thorne via the National Law Enforcement
Telecommunications System (“NLETS”):
OUR DETECTIVES HAVE BEEN UNABLE
TO LOCATE THE ORIGINAL VICTIM IN
THIS CASE AT THIS POINT WE WILL BE
REMOVING THE FIREARM FROM NCIC
AND CONSIDERING THE CASE CLOSED
THE FIREARM IS NOT CONSIDERED
STOLEN AT THIS POINT WE APOLOGIZE
FOR THE DELAY IN RESPONSE.
App. 117.
II. PROCEDURAL HISTORY
A federal grand jury returned a one-count Indictment
charging Gray with unlawful possession of a firearm by a
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felon, in violation of 18 U.S.C. § 922(g)(1). Gray pled not
guilty, and the court held a two-day jury trial. At the trial, the
two primary witnesses were Officer Thorne and Gray.
Pertinently, Officer Thorne testified that he observed Gray in
possession of a firearm, which Gray discarded while running
away from him. Gray, on the other hand, testified repeatedly
that he did not have a gun. The jury found Gray guilty.
In advance of the sentencing, the United States
Probation Office prepared and submitted a Presentence
Investigation Report (“PSR”) which, inter alia, calculated
Gray’s Total Offense Level as 30 and his Criminal History
Category as IV, yielding a Guidelines range of 135 to 168
months’ incarceration. However, because the statutory
maximum sentence for violating § 922(g) is 120 months, the
Guidelines sentence was fixed at 120 months. U.S.S.G.
§ 5G1.1(a).1
Gray filed objections to the PSR, challenging three two-
level enhancements:
(i) possession of a stolen firearm, under U.S.S.G.
§ 2K2.1(b)(4);
(ii) recklessly creating a risk of serious bodily injury
in the course of fleeing from law enforcement,
under U.S.S.G. § 3C1.2; and
1
This section provides “[w]here the statutorily
authorized maximum sentence is less than the minimum of the
applicable guideline range, the statutorily authorized
maximum sentence shall be the guideline sentence.” U.S.S.G.
§ 5G1.1(a).
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(iii) obstruction of justice for committing perjury at
trial, under U.S.S.G. § 3C1.1.
By Memorandum and Order dated November 7, 2018,
the District Court overruled Gray’s objections. Gray argues
that had the District Court sustained his objections, the
Guidelines calculation would have resulted instead in a
sentencing range of 77 to 96 months’ incarceration. After
considering the sentencing factors of 18 U.S.C. § 3553(a), the
District Court granted Gray a downward variance of 36 months
and sentenced him to 84 months’ incarceration.
III. ANALYSIS
When reviewing challenges to the application of
sentence enhancements, this Court exercises plenary review
over the District Court’s legal conclusions and reviews the
District Court’s factual findings for clear error. See United
States v. Pawlowski, 682 F.3d 205, 211 (3d Cir. 2012); United
States v. Richards, 674 F.3d 215, 219-20 (3d Cir. 2012).
A. Enhancement for Possession of a Stolen
Firearm
Gray challenges the District Court’s two-level
enhancement of his sentence for possession of a stolen firearm.
Specifically, Gray argues that the Government failed to carry
its burden of demonstrating by a preponderance of the evidence
that the firearm found in Gray’s possession was stolen. He also
argues that the doctrine of legal impossibility precluded such a
finding. Gray’s arguments are misplaced.
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Section 2K2.1(b)(4) of the Guidelines provides “[i]f any
firearm . . . was stolen, increase by 2 levels.” To apply this
enhancement, a sentencing court must find by a preponderance
of the evidence that the firearm was stolen. United States v.
Fisher, 502 F.3d 293, 307, 310 (3d Cir. 2007). The
determination of whether a firearm has been stolen is a factual
finding, which this Court reviews for clear error. Id. at 305,
308.
Here, the Government introduced an NCIC report that
indicated a firearm bearing the same serial number as the
firearm which Officer Thorne saw in Gray’s possession was
reported stolen in 1995 in Manchester. After being advised of
the discovery of the firearm, the Manchester Police
Department attempted to locate the original owner, without
success. As a result of its inability to locate the owner of the
firearm, the Manchester Police Department notified Officer
Thorne that “at this point” it no longer considered the firearm
stolen and would now consider the stolen firearm case closed.
App. 117. This mere change in designation by the Manchester
Police Department, however, did not change the fact that the
gun had been reported stolen in 1995 and appeared on the
NCIC list as stolen until recovered in Gray’s possession more
than twenty years later.
Although we have not previously addressed the issue in
a precedential opinion, at least one of our sister circuits has
found that the introduction of a police report regarding the theft
of a firearm is sufficient to meet the Government’s evidentiary
burden with respect to the “stolen” status of a firearm. See
United States v. Sanchez, 507 F.3d 532, 538-39 (7th Cir. 2007).
We agree and therefore conclude that the introduction of the
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reliable NCIC report was sufficient to meet the Government’s
burden with respect to the stolen status of the firearm.
Moreover, Gray presented no evidence to rebut the NCIC
report. See United States v. Napolitan, 762 F.3d 297, 309 (3d
Cir. 2014) (holding that burden shifts to defendant once
Government has made out a prima facie case for a sentencing
enhancement); United States v. Diallo, 710 F.3d 147, 151 (3d
Cir. 2013) (holding the same). Because the NCIC report was
a reliable authority to establish the firearm’s status at the time
Gray possessed it, and Gray produced no evidence to rebut it,
this Court cannot conclude that the District Court committed
clear error in finding that the Government had established by a
preponderance of the evidence that the firearm was stolen.
Thus, the two-level enhancement was appropriate.
Gray’s reliance on the doctrine of legal impossibility is
equally without merit. While acknowledging that this doctrine
has become “disfavored,”2 Gray argues that because the
firearm found in his possession was not stolen, he could not
have possessed a stolen firearm. As set forth above, the
District Court’s conclusion that the firearm was stolen was
legally sound. As such, Gray’s legal impossibility argument
misses the mark.
2
See United States v. Tykarsky, 446 F.3d 458, 468 (3d
Cir. 2006) (recognizing the “disfavored” status of the doctrine
of legal impossibility).
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B. Enhancement for Creating Substantial Risk
of Serious Bodily Injury While Fleeing
Next, Gray challenges the District Court’s two-level
enhancement for creating a substantial risk of serious bodily
injury while fleeing law enforcement. Section 3C1.2 of the
Guidelines provides:
[i]f the defendant recklessly created a substantial
risk of death or serious bodily injury to another
person in the course of fleeing from a law
enforcement officer, increase by 2 levels.
Gray argues that the Government failed to carry its
burden of demonstrating by a preponderance of the evidence
that he was fleeing law enforcement and that he recklessly
created a substantial risk of death or serious bodily injury to
another. Gray’s arguments are without merit.
Initially, Gray contends that the evidence was
insufficient to establish that he was “fleeing” law enforcement.
Specifically, Gray argues that his reaction of running away
from Officer Thorne when the officer approached him from
behind with a raised firearm was merely a reasonable
“reflexive response to move away from this approaching
danger.” Appellant’s Br. at 17. He also contends that the fact
that he only ran as far as the porch of the house next door to his
own home indicates he was not fleeing.
However, the record belies this argument. Immediately
after Officer Thorne identified himself as a police officer, Gray
turned, ran away from the officer, and threw a loaded,
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chambered firearm seventy feet down a sidewalk in a
residential neighborhood. In light of these established facts,
this Court cannot conclude that the District Court’s finding that
Gray fled law enforcement was clear error.
Next, Gray argues that there was insufficient evidence
from which the District Court could conclude that he created a
substantial risk of death or serious bodily injury because: (1) he
tossed the firearm four or five rowhouses down the street, and
(2) Officer Thorne testified that he was “not worried” about the
firearm discharging after it had been thrown. App. 39.
However, the record shows, and Gray does not dispute, that he
threw a loaded firearm down a street in a residential
neighborhood in the vicinity of a police officer and at least one
civilian. This act alone is sufficient to create a substantial risk
of serious bodily injury since the loaded firearm could have
been picked up and fired by one of the people in the vicinity or
discharged when thrown. Officer Thorne’s testimony that he
was “not worried” about the firearm discharging absent
“someone[] squeezing the trigger,” App. 39, does not negate
the danger created by the act of throwing the loaded firearm.
As such, there is no factual or legal basis on which to overturn
the District Court’s conclusion or application of the two-level
enhancement for reckless endangerment during flight.
C. Enhancement for Perjury
In his final challenge, Gray argues that the District
Court erred in applying a two-level enhancement for willfully
obstructing justice by committing perjury during his trial.
Section 3C1.1 of the Guidelines provides:
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[i]f (1) the defendant willfully obstructed or
impeded, or attempted to obstruct or impede, the
administration of justice with respect to the
investigation, prosecution, or sentencing of the
instant offense of conviction, and (2) the
obstructive conduct related to (A) the
defendant’s offense of conviction and any
relevant conduct; or (B) a closely related offense,
increase the offense level by 2 levels.
It is undisputed that this enhancement is triggered where a
defendant provides perjured testimony during the course of his
criminal proceedings.3 Here, the District Court expressly
found that the elements for perjury were satisfied in light of the
jury’s verdict because Gray had repeatedly testified that he did
not possess a stolen firearm. This Court reviews the District
Court’s factual finding of willful obstruction of justice for clear
error. United States v. Powell, 113 F.3d 464, 467 (3d Cir.
1997).
A defendant qualifies for the perjury enhancement when
he gives “false testimony concerning a material matter with the
3
The commentary to this section specifically notes that
the enhancement applies when a defendant is “committing,
suborning, or attempting to suborn perjury, including during
the course of a civil proceeding if such perjury pertains to
conduct that forms the basis of the offense of conviction.”
U.S.S.G. § 3C1.1 cmt. n.4(B); see also United States v.
Dunnigan, 507 U.S. 87, 94-95 (1993) (holding that the
enhancement is triggered by a defendant’s perjury during his
criminal trial).
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willful intent to provide false testimony, rather than as a result
of confusion, mistake, or faulty memory.” United States v.
Dunnigan, 507 U.S. 87, 94 (1993). As this Court previously
held when considering a challenge to this sentencing
enhancement, “a guilty verdict, not set aside, binds the
sentencing court to accept the facts necessarily implicit in the
verdict.” United States v. Boggi, 74 F.3d 470, 478-79 (3d Cir.
1996) (quoting United States v. Weston, 960 F.2d 212, 218 (1st
Cir. 1992)). Though “it is preferable for a district court to
address each element of the alleged perjury in a separate and
clear finding, express separate findings are not required.” Id.
at 479 (internal quotation marks and citation omitted). Here,
the District Court expressly found the existence of each of the
three elements for the perjury enhancement.
First, the District Court correctly found that the
elements of falsity and materiality were implicit in the jury’s
guilty verdict for possession of a firearm. Obviously, the jury
could not have convicted Gray of possession of a firearm
without finding that he had in fact possessed a firearm.
Further, if the jury had believed Gray’s testimony that he did
not possess a firearm, the jury would not have convicted him
of unlawful possession of a firearm. As such, there can be no
question that the relevant findings with respect to the falsity
and materiality of Gray’s testimony were necessarily made by
the jury. Boggi, 74 F.3d at 479 (concluding the defendant’s
trial testimony was false and “necessarily material” because
the jury would not have convicted him if the jury had believed
the testimony); United States v. Fiorelli, 133 F.3d 218, 224
(3d Cir. 1998) (affirming district court’s finding that falsity
was implicit in jury’s verdict and, thus, sufficient to carry
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Government’s burden). Accordingly, the District Court’s
finding that Gray’s testimony was false and material cannot be
disturbed on appeal.
Moreover, based on the record, there was ample support
beyond the jury’s conviction for the District Court’s finding
that Gray provided false testimony regarding his possession of
a firearm. In particular, Officer Thorne testified that he
observed Gray holding a firearm. This testimony, found
credible by the judge, stood in direct contrast with Gray’s
repeated self-serving testimony that he never possessed a
firearm.
The District Court went on to expressly find that Gray’s
false testimony was willfully given. In support of this
willfulness finding, the District Court pointed to the absence of
any evidence that Gray’s false testimony was due to confusion
or mistake and cited three specific examples where Gray
testified clearly but falsely with respect to possessing a firearm.
Due to the clarity of Gray’s repeated false testimony, the
District Court found that Gray willfully gave false testimony.
In light of the District Court’s findings, all of which are amply
supported by the record, this Court will not overturn the
District Court’s application of the sentencing enhancement.
In a final challenge to the perjury enhancement, Gray
attempts to breathe life back into an argument that he, himself,
acknowledges has been rejected by both the Supreme Court
and this Court. Gray suggests that the perjury enhancement
should not be applied to his case because such an enhancement
deters a defendant from exercising his fundamental right to
testify on his own behalf at trial. As correctly noted by Gray,
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this argument has been soundly rejected, and we again reject it
here. See Dunnigan, 507 U.S. at 96 (“Respondent cannot
contend that increasing her sentence because of her perjury
interferes with her right to testify, for we have held on a
number of occasions that a defendant’s right to testify does not
include a right to commit perjury.”); Napolitan, 762 F.3d at
312-13.
IV. CONCLUSION
For the foregoing reasons, we will affirm the District
Court’s judgment.
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