United States v. Brannan ( 1996 )

Opinions of the United
1996 Decisions States Court of Appeals
for the Third Circuit
1-12-1996
United States v. Brannan
Precedential or Non-Precedential:
Docket 95-3108
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UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
_____________________
No. 95-3108
_____________________
UNITED STATES OF AMERICA,
Appellee,
v.
DAVID GEORGE BRANNAN,
Appellant.
_____________________
On Appeal from the United States District Court
for the Western District of Pennsylvania
(D.C. No. 94-cr-200)
_____________________
Argued September 13, 1995
Before: SLOVITER,
1
Chief Judge, ALITO, Circuit Judge, and
RENDELL, District Judge*.
Filed January 12, l996
_____________________
Thomas S. White
Federal Public Defender
Karen Sirianni Gerlach
(Argued)
Assistant Federal Public
Defender
415 Convention Tower
960 Penn Avenue
Pittsburgh, Pennsylvania
Attorneys for Appellant
_________________________________________________________________
* Honorable Marjorie O. Rendell, United States District Judge
for the Eastern District of Pennsylvania, sitting by designation.
Frederick W. Thieman
United States Attorney
Bonnie R. Schlueter (Argued)
Assistant United States
Attorney
633 U.S. Post Office &
Courthouse
Pittsburgh, Pennsylvania
Attorneys for Appellee
_____________________
OPINION OF THE COURT
_____________________
RENDELL, District Judge:
2
This appeal is from a judgment of sentence imposed
after defendant David George Brannan pled guilty to one count of
being a felon in possession of a firearm in violation of 18
U.S.C. § 922(g)(1). Brannan raises two grounds in his appeal.
First, he argues that the district court improperly enhanced the
offense level by four levels under § 2K2.1(b)(5) of the United
States Sentencing Guidelines for the use, possession or transfer
of a firearm in connection with another felony. See United
States Sentencing Commission, Guidelines Manual §§ 2K2.1(b)(5)
(1994) (hereinafter "U.S.S.G.").0 Second, he contends that the
district court failed to properly apply § 5G1.3 of the United
States Sentencing Guidelines so as to have his federal sentence
run concurrently with a state court sentence he was serving. See
U.S.S.G. § 5G1.3(c) (Policy Statement) (hereinafter "U.S.S.G.
§5G1.3(c)"). We find the second ground for attack to be valid,
and, accordingly, we will remand for resentencing consistent with
this opinion.0
0
We apply the 1994 edition of the Sentencing Guidelines pursuant
to U.S.S.G. § 1B1.11 which dictates that the version of the
Guidelines in effect at the time of sentencing is to be used.
Brannan was sentenced on February 10, 1995.
0
The amendments to the Sentencing Guidelines effective
November 1, 1995 substantially rewrite U.S.S.G. § 5G1.3(c) and
the Commentary thereto. While the amendments do not affect this
Court's analysis, the district court in resentencing would
normally apply the Guideline in effect at the time of
resentencing. See United States v. Kopp, 951 F.2d 521, 534 (3d
Cir. 1991). However, if the district court determines that using
the amended Guideline would violate the Ex Post Facto Clause of
the United States Constitution in that it would yield a harsher
result, then it must apply the Guideline in effect at the time
the offense was committed. See U.S.S.G. § 1B1.11; see also Kopp,
951 F.2d at 526.
3
The events giving rise to the instant offense involved
the accidental discharge of a gun while it was being removed from
the trunk of a car in western Pennsylvania. Brannan testified
that he was interested in selling the gun; he and a friend, Peter
Andrulat, traveled on Friday evening, September 11, 1992, to a
neighboring town because Andrulat believed that his friend,
Richard Hopkins, would be interested in purchasing it.0 Brannan
indicated that the three men met briefly at a restaurant and then
went out to Andrulat's car to show Hopkins the gun; as the gun
was being removed from the trunk, it accidentally discharged, and
the bullet struck Hopkins in the upper thigh area, severing his
femoral artery and causing him to bleed to death.
Brannan pled guilty to involuntary manslaughter in the
Court of Common Pleas of Washington County and was sentenced to
18-60 months, less one day, of imprisonment, which he began to
serve on June 6, 1994. On August 30, 1994, nearly two years
after the underlying incident occurred, Brannan was indicted in
federal court for having been a felon in possession of a firearm.
He pled guilty on October 31 and was sentenced on February 10,
1995. At the time of his sentencing, Brannan was serving the
sentence for involuntary manslaughter.
The presentence report prepared for sentencing Brannan
recommended a four-level enhancement pursuant to U.S.S.G.
§ 2K2.1(b)(5), which provides for such an enhancement where the
0
Brannan was on probation at the time. He had been told by his
parole officer earlier in the day that he could not keep the gun,
a .357 handgun which belonged to his wife, in his home.
4
defendant "used or possessed any firearm . . . in connection with
another felony offense." The probation officer gave the
following reason to justify the enhancement:
During the course of the instant offense, the
firearm that the defendant possessed discharged,
striking Mr. Hopkins and killing him. This
resulted in the defendant's conviction of
Involuntary Manslaughter.
Brannan filed two objections to the presentence report
prior to sentencing. First, he objected to the four-level
enhancement of his offense level under § 2K2.1(b)(5). Second, he
argued that he should have been given credit for the time he had
spent incarcerated in Washington County on the manslaughter
conviction under U.S.S.G. § 5G1.3, which would have reduced his
sentence for the federal offense by several months.
In addition to objecting to the presentence report,
Brannan also requested a downward departure based on his family
ties, his employment history, and his employment prospects,
relying upon U.S.S.G. §§ 5K2.0, 5H1.5, and 5H1.6. The
government, in turn, requested an upward departure under U.S.S.G.
§ 4A1.3, arguing that Brannan's criminal history category under-
represented the seriousness of his criminal history.
At the time of sentencing, Brannan argued that U.S.S.G.
§ 2K2.1(b)(5) requires a showing of his intent to use a firearm
in order for the enhancement to be applicable. Section
2K2.1(b)(5) provides that if a defendant used or possessed a
firearm in connection with another felony or if a defendant
possessed or transferred a firearm with knowledge or intent that
5
it would be used or possessed in connection with another felony,
the offense level should be increased by four levels.
He argued that the knowledge and intent element in the
second clause should be interpreted to apply to the concept of
"used or possessed" in the first clause. Under Brannan's
interpretation, the alleged negligent handling of the firearm
involved in the instant set of facts should not have given rise
to the four-level increase in offense level.
The sentencing judge indicated his concern with
applying the four-level enhancement under § 2K2.1(b)(5) to the
negligent use of a firearm involved in this set of facts. In
applying the section as written, however, he found that no
element of intent was necessary under the Guidelines, and he
found no alternative other than to impose the four-level
enhancement.
Brannan next argued that U.S.S.G. § 5G1.3(c) gave the
court the authority to impose a sentence to run concurrently with
his state court sentence from the date when the state sentence
was imposed, giving credit for time served. Section 5G1.3(c)
addresses the situation in which a defendant who is serving an
undischarged term of imprisonment is being sentenced for another
crime. This section, together with the accompanying Commentary
and Application Notes, sets forth a methodology the court should
follow in determining the extent to which the second sentence
should run concurrently with, or consecutive to, the sentence
already being served. The government argued that he should serve
his Guideline sentence for the instant offense concurrently with
6
the remainder of the unexpired term of imprisonment for this
state conviction.
The sentencing court determined that the applicable
offense level of 25 and criminal history category of V for the
weapon possession offense gave rise to a Guideline sentencing
range of 100 to 120 months. The court acknowledged that the
issue was governed by § 5G1.3(c) but framed this issue as a
choice of either a consecutive or a concurrent sentence, with a
related question as to whether "credit" could be given for time
already served on the state sentence.
The court appears to have read § 5G1.3(c) as indicating
that if the court felt an incremental punishment was required,
then the sentence should run consecutively, otherwise it should
be concurrent. See Appendix, pp. 118-20. The court could find
no authority whereby it could "give credit" for the state
sentence.0 See Appendix, pp. 124-25. It concluded therefore
that the sentence it would give -- the minimum it believed it
could give, namely, 100 months -- would be concurrent with the
remainder of the state sentence. See Appendix, pp. 119, 120,
125. In making its ruling, the court did not refer to the
0
The district court repeatedly noted its discomfort with the
length of sentence to be imposed: "I do think that the sentence
presented here is one heck of a wack [sic]"; "My only difficulty
is the difficulty, I think, with the duration of it. The
guideline is longer than what I would impose were the discretion
in me"; "I'm not sure there needs to be incremental punishments
for that fortuitous event when we're talking about a sentence as
serious as this one. I wish that all of the violent criminals I
prosecuted in the days that I was a prosecutor had gotten tagged
with as much time as what Mr. Brannan is going to get merely for
this charge"; "If anything, the federal sentence is the tail
wagging the dog." Appendix, pp. 119, 120, 125, 136.
7
Commentary to the Guidelines, or the sentencing methodology under
§ 5G1.3(c) described in Application Note 3 thereof, nor did it
have the benefit of this court's opinion in United States v.
Holifield, 53 F.3d 11 (3d Cir. 1995), as to how that methodology
can or should be applied.
Brannan also argued that the two-year delay in bringing
the charges should be taken into account and also presented
evidence as to the innocent nature of this incident and his
character as an employed and responsible family man as grounds
for a departure. The court rejected these considerations as not
sufficient to warrant any relief for Brannan under the
Guidelines.0
As indicated above, on appeal Brannan presses the need
for a finding of intent as a prerequisite for the four-level
enhancement under § 2K2.1(b)(5) and raises the implications of
Holifield on the sentencing in this case. The government
counters that the plain meaning of the Guidelines supports the
enhancement. Further, the government focuses its opposition to
Brannan's argument under § 5G1.3(c) on his failure at sentencing
to request a "downward departure" for time served in prison and
its view that the sentencing court properly applied § 5G1.3(c).
DISCUSSION
I.
0
Brannan does not challenge these rulings on appeal.
8
The district court's interpretation of the Guidelines
and the extent of its power to depart downward are legal
questions subject to plenary review. See United States v.
Holifield, 53 F.3d 11, 12-13 (3d Cir. 1995); United States v.
Higgins, 967 F.2d 841, 844 (3d Cir. 1992). However, if a
defendant has failed to request a departure and first raises the
issue on appeal, our review of the record is limited to a
determination of whether plain error had been committed. See
United States v. Pardo, 25 F.3d 1187, 1193 (3d Cir. 1994).
The government argues that we should apply the "plain
error" standard of review to the issue raised under § 5G1.3(c),
arguing that Brannan did not specifically request a "downward
departure" before the district court under that Guideline, and
the issue is being raised for the first time on appeal. The
government does concede, however, that Brannan requested
application of § 5G1.3(c) to grant him 18 months' credit for time
served. See Appendix, pp. 121-23.
We find Brannan's request that his existing sentence
and time served be taken into account was sufficient to preserve
this issue on appeal. We will not require recitation of magic
words, or specific request for departure, in connection with
§5G1.3, especially because, as is discussed more fully below, the
ability of the court to depart under § 5G1.3(c) is inherent in
the section itself. That is, departure may be the result of the
court's application of the methodology under this section, rather
than an extraneous factor to be applied or considered after the
9
appropriate sentence has been determined.0 Further, the
relationship between § 5G1.3(c) and departures had not yet been
explored by this Court in Holifield at the time this sentencing
occurred. We conclude, therefore, that plenary review of both
issues raised is warranted.
II.
The first issue presented is whether § 2K2.1(b)(5)
requires that the "use or possession" be intentional. If intent
is necessary, the alleged negligent use or possession of the
firearm in this instance would not have resulted in application
of this section, and Brannan would not have received a four-level
enhancement of his offense level. Section 2K2.1(b)(5) of the
Guidelines provides:
If the defendant used or possessed any firearm or
ammunition in connection with another felony
offense; or possessed or transferred any firearm
or ammunition with knowledge, intent, or reason to
believe that it would be used or possessed in
connection with another felony offense, increase
by 4 levels.
U.S.S.G. § 2K2.1(b)(5).
0
The concept of departure in § 5G1.3(c) seems to vary slightly
from the concept elsewhere in the Guidelines. A departure under
this section means that the court recognizes time already served
for another offense if and to the extent appropriate. For
example, by imposing a 24-month sentence where the Guideline
sentence for the second offense calls for a 48-month sentence but
the defendant has served 36 months on another charge, the court
does not reduce the punishment as such based on some extraneous
factor. Instead, it arrives at an appropriate sentence by
recognizing punishment for one crime as serving the purpose of
punishment for another.
10
Brannan makes three arguments:
First, he argues that the semicolon in this section
should be ignored and the word "or" be read to mean "in other
words."
Second, he contends that use or possession "in
connection with" another felony implies an element of intent.
Third, he relies upon Staples v. United States, 114
S. Ct. 1793 (1994), and Ratzlaf v. United States, 114 S. Ct. 655
(1994), for the proposition that before imposing this incremental
punishment, mens rea is required for the underlying felony.
The court at sentencing was unsure of the policy behind
this Guideline but felt certain both that its meaning was clear
and that it applied to Brannan's conduct. We too have little
difficulty in determining that the plain meaning of the provision
applies to Brannan and that the provision cannot be read to
include, imply, or otherwise require that the use or possession
was with the intent to commit a crime. We view "or" as a
disjunctive, connecting phrases with different meanings. See
Reiter v. Sanotone Corp., 442 U.S. 330, 339 (1979). What follows
the "or" in § 2K2.1(b)(5) is not merely an explication of what
preceded it, as Brannan urges.
That the Sentencing Commission intended that "or" be
read as a disjunctive term is clear upon review of the amendments
made to § 2K2.1 since its adoption. Section 2K2.1 initially
provided for an increased offense level "[i]f the defendant used
the firearm in committing or attempting another offense." See
U.S.S.G. Appendix C, Amendment 189. An amendment to this
11
Guideline provided for an increased sentence "[i]f the defendant
used or possessed the firearm in connection with commission or
attempted commission of another offense." Id. A separate
Guideline was introduced "to address transfer of a weapon with
intent or knowledge that it will be used to commit another
offense." Id. On November 1, 1991, these Guidelines were
consolidated and became § 2K2.1(b)(5). The first part of
§ 2K2.1(b)(5) addresses use or possession of a firearm in
connection with another felony; the second part addresses
attempts and transfers. See U.S.S.G., Appendix C, Amendment 374.
Accordingly, the Sentencing Commission intended § 2K2.1 to
provide for a four-level enhancement for two different types of
conduct.
As to the contention that "in connection with" another
felony implies an element of intent, we can divine no such
implication. We agree with other circuit courts which have
considered the issue that "terms used within the federal
sentencing guidelines and not specifically defined therein
generally should be given their common usage." United States v.
DeLuca, 17 F.3d 6, 9 (1st Cir. 1994). Thus, "connection," as
used in section § 2K2.1(b)(5), is defined as a "causal or logical
relation or sequence." Webster's Ninth New Collegiate Dictionary
278 (1990). We find that the plain meaning of "in connection
with" in § 2K2.1(b)(5) does not suggest that criminal intent need
be shown in order to apply this sentencing enhancement provision.
We thus reject Brannan's first two arguments as contrary to the
plain language and meaning of the section.
12
Brannan's last argument is premised upon two Supreme
Court cases which are easily distinguishable. Staples and
Ratzlaf dealt with the requisite intention for conviction of a
crime, not for purposes of imposing an enhanced sentence under
the Guidelines. They are clearly inapposite. Brannan has not
cited, and we cannot find, any authority for the proposition that
mens rea must exist in connection with a particular attribute or
behavior that will result in enhancement of an offense level for
purposes of sentencing. Further, we are unwilling to read this
requirement into the Guidelines. We find, therefore, that the
district court properly enhanced the offense level under
§ 2K2.1(b)(5).
III.
The second issue presented by Brannan involves the
application of § 5G1.3(c) of the Guidelines, recently explored by
this Court in Holifield. As indicated above, § 5G1.3 addresses
the situation in which a defendant already subject to an
undischarged term of imprisonment is being sentenced for another
offense.0 Before the district court and on appeal, Brannan
0
Section 5G1.3 has three subsections. Subsection (c) applies if
(a) and (b) do not. Section 5G1.3(a) provides that if the second
offense was committed while defendant was serving, or after
sentencing but before service of, a term of imprisonment, the
sentence for the second offense is to run consecutively from the
sentence for the first offense. Section 5G1.3(b) provides that
if (a) does not apply and if the offense giving rise to the
undischarged term of imprisonment was fully taken into account in
determining the offense level for the second offense, then the
sentence for the second offense shall run concurrently to the
undischarged term of imprisonment. Section 5G1.3(c) is labeled a
"Policy Statement"; we note that "[t]he policy statements and
13
argued that subsection (c) applies to the instant situation.0
Subsection (c) provides:
[T]he sentence for the instant offense shall be
imposed to run consecutively to the prior
undischarged term of imprisonment to the extent
necessary to achieve a reasonable incremental
punishment for the instant offense.
U.S.S.G. § 5G1.3(c).
The trial judge read the section literally and, finding
no basis for incremental punishment, sentenced Brannan to the
Guideline sentence for the instant offense -- 100 months, at the
lowest end of the sentencing range -- to run concurrent with the
undischarged term being served for the manslaughter conviction.
The trial judge did not believe he had the power to do anything
else. See Appendix, pp. 124-25.
Section 5G1.3(c) is a Policy Statement that is further
explored and explained in the Commentary to the Guidelines.0 As
is reflected in the Commentary to § 5G1.3(c), specifically
Application Note 3, the sentence that the court imposes under
this section should be the result of a methodology that can
produce a sentence different from that required by the strict
application of the Guideline criminal offense level and criminal
history category of the isolated second offense. Application
Note 3 indicates that the court should examine the sentence that
commentary contained in the guidelines are binding on the federal
courts." United States v. Holifield, 53 F.3d 11, 13 n.2 (3d Cir.
1995).
0
We therefore do not address the question whether U.S.S.G.
§5G1.3(b) applies to this case.
0
As noted above, both the Policy Statements and the Commentary in
the Sentencing Guidelines are binding on the federal courts. See
United States v. Holifield, 53 F.3d 11, 13 n.2 (3d Cir. 1995).
14
would have resulted if all of the offenses -- in this instance,
the manslaughter offense and the possession of a firearm by a
convicted felon -- had been federal offenses for which sentences
were being imposed at the same time under § 5G1.2. See U.S.S.G.
§ 5G1.2 (Sentencing on Multiple Counts of Conviction).
This determination can require an approximation. As
noted in the Application Note, where the sentence being served is
a state sentence, as in the instant situation, information
available may permit only a rough estimate of the total
punishment that would have been imposed under the Guidelines. The
methodology calls for the court to engage in a fiction, that is,
to approach sentencing as if both offenses were being sentenced
at once.
Once the court determines -- whether by approximation,
estimation, or otherwise -- what sentence would be called for
under the Guidelines, the court then examines whether, in view of
the sentence that would have resulted, some incremental
punishment for the instant offense is warranted. This
incremental punishment is apparently intended to add consecutive
punishment where the sentence already imposed for the prior
offense would not suffice as the total sentence using § 5G1.2, so
that some recognition of the incremental effect of the later
offense, consecutive to the original sentence, is warranted.
As noted in Holifield, the result of these calculations
can, however, be a departure; that is, the sentence actually
imposed for the second offense, which results from the
methodology discussed above, can be different from, and in some
15
instances less than, what would otherwise have been called for
under strict application of the Guidelines in sentencing for the
second offense alone. The focus of this Guideline section is to
determine the appropriate sentence, and if as a result the
sentence is less than the Guideline sentence for the second
offense, the Guidelines and Holifield permit -- but do not
require or even encourage -- this result.
In the instant setting, the application of this
methodology could have led to a different result. As sentenced,
Brannan will serve a total of 108 months for the two offenses.0
Under the methodology advocated by the Commentary, the court
could have determined, hypothetically, that the Guideline
sentence for manslaughter and gun possession, if sentenced
together, would have been 100 months; that no incremental penalty
was warranted and therefore a concurrent sentence was called for;
and that because Brannan had already served eight months for the
first offense, it would sentence him to only 92 months for the
second offense (to run concurrently with the remaining
undischarged term, and consecutive thereafter).0
0
Brannan started serving his manslaughter sentence on June 6,
1994 and was sentenced to serve 100 months for the second offense
on February 10, 1995, concurrent with the remainder of the first
offense term.
0
This court noted in Holifield that while departure from the
Guidelines was not required, the General Counsel to the
Sentencing Commission had stated in a letter to a United States
Probation Officer that it could be justified:
Occasionally, a downward departure may be necessary to
make this provision work properly. For example, where
the defendant has been in state custody for a long
time, a downward departure may be the only feasible way
to achieve an appropriate total punishment, assuming
16
The Commentary states that the "methodology does not,
itself, require the court to depart from the guideline range
established for the instant federal offense." U.S.S.G. § 5G1.3
(Commentary). However, as noted by the court in Holifield, the
court can depart if the court believes it should do so in order
to arrive at the appropriate sentence.0 Each case will be
different, depending on the application of the methodology to the
facts.
Therefore, this methodology rests discretion in the
trial court in the "as if" scenario, to take into account both
offenses, how they would be treated under § 5G1.2 if they were
multiple counts, and whether incremental punishment is necessary.
If the sentencing court engages in this exercise as recommended
by the methodology, it is not constrained by the concept of
"giving credit" for prior time but can give recognition to time
served by following the procedures suggested. The result of the
methodology dictates the attributes of the appropriate sentence.
The examples set forth in the Illustrations following the
Application Notes clarify the methodology.
the court wishes to employ a departure to achieve the
desired objective.
Holifield, 53 F.3d at 14 n.5 (citation omitted).
0
Other circuits agree that courts may depart from the Guideline
sentencing range under § 5G1.3(c) when sufficient justification
exists. See United States v. Whiteley, 54 F.3d 85, 91 (2d Cir.
1995) (stating that a court may impose a sentence lower than the
sentencing range if it departs downward); United States v.
Gullickson, 981 F.2d 344, 349 (8th Cir. 1992) (stating that
district court may depart from sentencing range if sufficient
justification exists).
17
We indicated in Holifield that the sentencing court is
not required to apply the methodology and is not required to
depart. In the instant case, the sentencing court clearly was
uncomfortable with the length of sentence and was searching for a
way to reduce it. However, that court believed it had no power
to sentence Brannan to anything other than the applicable
Guideline sentence for the second offense to run concurrent from
the date of sentencing. See supra, n. 5. We conclude that the
district court did have the power to depart under the § 5G1.3(c)
methodology, and we therefore will remand so that the district
court will have the opportunity to vacate the sentence and
resentence consistent with this opinion.
_________________________
18