United States v. Joseph , 76 F. App'x 422 ( 2003 )

Opinions of the United
2003 Decisions States Court of Appeals
for the Third Circuit
9-24-2003
USA v. Joseph
Precedential or Non-Precedential: Non-Precedential
Docket No. 03-1595
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NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
_________________
No: 03-1595
_________________
UNITED STATES OF AMERICA
v.
ALTON EDWARD JOSEPH,
Appellant
________________________
On Appeal from the United States District Court
for the District of Delaware
District Judge: The Honorable Sue L. Robinson
(D.C. Criminal No. 02-cr-00060)
______________________
Submitted Under Third Circuit L.A.R. 34.1(a)
September 19, 2003
Before: MCKEE, SMITH, Circuit Judges,
SCHILLER*, District Judge
(Opinion Filed: September 24, 2003)
________________________
OPINION OF THE COURT
_______________________
___________
* The Honorable Berle M. Schiller, United States District Judge for the Eastern District
of Pennsylvania, sitting by designation.
SMITH, Circuit Judge.
I. INTRODUCTION
Appellant Alton Edward Joseph appeals his sentence for interstate transportation
of explosives without a license, arguing that the District Court erred in assessing two
criminal history points for his Massachusetts conviction on two counts of larceny, and
that the Court should not have increased his offense level by two levels for stolen
explosives, pursuant to U.S.S.G. § 2K1.3(b)(2).
II. FACTS AND PROCEDURAL HISTORY
Joseph served as a supply clerk for the United States Army from 1975 to 1978,
where he had access to a military plastic explosive, C-4. During this time, Joseph took
from the Army fifteen one and a half pound blocks of C-4. He maintained possession of
fourteen blocks of C-4 and gave his brother-in-law one block in the 1980s.
On July 15, 1997 Joseph was charged in Massachusetts with two criminal counts
of larceny over $250 and larceny by false pretenses, both unrelated to the matter now
before us. Joseph admitted to sufficient facts for a finding of guilt. The court, however,
did not actually adjudicate Joseph guilty at that time. Instead, the court imposed a
probationary period and restitution in the amount of $53,225.41. Joseph was found to be
non-compliant with his probation requirements in September 1997. A summons for this
probation violation was issued in June 1998.
In early March 2001, Joseph transported the remaining fourteen blocks of C-4
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from Maine to Delaware. In an attempt to avoid extradition, Joseph constructed a scheme
by which he attempted to falsely implicate a third person for possession of the C-4.
Joseph contacted the Bureau of Alcohol, Tobacco, and Firearms (“ATF”) in an attempt to
provide them with information about the C-4, in exchange for assistance with his
Massachusetts extradition proceedings. Upon discovering Joseph’s scheme, the ATF
ceased contact with Joseph and he was extradited to Massachusetts.
On August 9, 2001, Joseph appeared in Massachusetts pursuant to the warrant for
violation of probation. The Massachusetts court revoked his probation, found him guilty
on both larceny counts, and sentenced him to two and a half years incarceration, one year
to be served in custody, followed by 18 months probation. Pursuant to Joseph’s motion to
revise his sentence, the court reduced the sentence to one year on each count, to be served
concurrently.
With respect to his possession and transportation of the C-4, pursuant to a plea
agreement, Joseph pleaded guilty to Count III of a three count indictment – interstate
transportation of explosive materials without a licence in violation of 18 U.S.C. §
842(a)(3)(A) and § 844(a). As part of the plea agreement, the government agreed to
move to dismiss the remaining counts of the indictment, which charged Joseph with being
a felon in possession of explosives and possession of stolen explosive materials. The plea
agreement also provided that the government would not oppose a three point reduction in
Joseph’s offense level for acceptance of responsibility. Finally, the government agreed
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that U.S.S.G. § 2K1.3(b)(3), which relates to possession of explosive materials in
connection with another felony offense, was inapplicable, and that the government would
not seek an upward departure on that basis.
The presentence report assigned Joseph a base offense level of sixteen, because he
was a “prohibited person” under U.S.S.G. § 2K1.3, specifically a convicted felon, at the
time he possessed explosive material. The presentence report also recommended that,
pursuant to U.S.S.G. § 2K1.3 (b)(2), Joseph’s offense level should be increased by two
levels because the offense involved explosive material that he knew or had reason to
believe was stolen. Subtracting three levels for acceptance of responsibility, the report
assigned Joseph a total offense level of fifteen. With respect to Joseph’s criminal history
category, the presentence report assessed two points for a Massachusetts state court
conviction for two counts of larceny, three points for a New Hampshire state court
conviction for tampering with public or private records, and two additional points because
the instant offense was committed less than two years following Joseph’s release from
custody for the New Hampshire conviction. Accordingly, Joseph accrued seven criminal
history points, which placed him in criminal history category IV. Based on an offense
level of fifteen and a criminal history category of IV, the applicable guidelines range was
thirty to thirty-seven months imprisonment. The District Court sentenced Joseph to thirty
months imprisonment.
II. JURISDICTION
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The District Court had subject matter jurisdiction pursuant to 18 U.S.C. § 3231.
We exercise jurisdiction pursuant to 28 U.S.C. § 1291.
III. STANDARD OF REVIEW
We review the District Court’s interpretation of the Sentencing Guidelines de
novo. United States v. Amster, 193 F.3d 779 (3d Cir. 1999). We reverse the District
Court’s underlying findings of fact only where they are clearly erroneous. United States v.
Cherry, 10 F.3d 1003, 1009 (3d Cir. 1993).
IV. DISCUSSION
Joseph raises two issues on appeal. First, he asserts that the District Court erred in
assessing two criminal history points for his Massachusetts conviction on two counts of
larceny. Second, Joseph argues that the Court should not have increased his offense level
by two levels for stolen explosives, pursuant to U.S.S.G. § 2K1.3(b)(2). Because
Joseph’s arguments lack merit, we will affirm the judgment of the District Court.
With respect to Joseph’s prior larceny conviction, defense counsel conceded that
Joseph admitted facts sufficient to establish guilt, but contended that, because the state
court initially did not make a finding of guilt, this process constituted a “diversionary
proceeding without a finding of guilt” that may not be a basis for inclusion in a criminal
history calculation under U.S.S.G. § 4K1.1.
The government countered that, although a diversion from the judicial process
without a finding of guilt would not be counted under the Sentencing Guidelines, a
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diversionary disposition resulting from a finding or admission of guilt would be included
in the criminal history calculation. The record reflects that on July 25, 1998, Joseph was
in violation of the terms of his probation. On August 9, 2001 the Massachusetts court’s
docket reflects entry of a guilty finding.
After hearing argument on this issue at sentencing, the District Court stated that:
I also agree that although if the defendant had met the requirements given
by the Court [for probation] this would have been a diversionary proceeding
and he would not have been given criminal history points, the fact that there
were findings of guilt because he violated the condition of probation, that
again, the points were appropriately awarded.
App. at 38. We agree with the District Court that, pursuant to the plain language of the
Sentencing Guidelines, the Court properly included Joseph’s state court conviction in the
calculation of his criminal history. U.S.S.G. § 4A1.2(k)(1) provides that “[i]n the case of
a prior revocation of probation . . . [a]dd the original term of imprisonment to any term of
imprisonment imposed upon revocation. The resulting total is used to compute the
criminal history points for § 4A1.1(a), (b), or (c), as applicable.” Thus, Joseph’s
Massachusetts state larceny convictions, for which he served one year in prison, were
properly included in his criminal history calculation.
Joseph’s second contention on appeal is that the record contains insufficient
evidence to support the District Court’s conclusion that the military C-4 was “stolen” for
purposes of U.S.S.G. § 2K1.3(b)(2). Section § 2K1.3(b)(2) directs the court to increase
the defendant’s offense level by two points “if the offense involved any explosive
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material that the defendant knew or had reason to believe was stolen.” Joseph explained
his possession of the explosives as follows: in order to maintain a constant level of
funding, each Army division had to use all of the supplies it had on hand, or its budget
would be reduced in the following year. Joseph maintains that his commanding officer
told him to “get rid of” the C-4 in order to protect funding levels, and Joseph interpreted
that to mean that he could take the C-4 with him for personal use.
The District Court rejected this argument, finding
[E]ven if I accepted defendant’s version of the facts, I agree with the
government that with this kind of material [C-4], I don’t think there is any
evidence, credible evidence, that the defendant was given permission to
keep this for his personal use. There is no bona fide personal use for this
sort of material. Therefore, I believe the nomenclature, the characteristic
“stolen” is an appropriate one and the upward adjustment [by the probation
office] was appropriately given.
App. at 37. The District Court, then, rejected the veracity of Joseph’s explanation–that
Joseph understood that he was entitled to possess C-4 for personal use–based on the very
nature of C-4. Because there was no evidence of a bona fide personal use for C-4, the
District Court did not accept Joseph’s contention that he believed he was permitted to
retain C-4 for personal use. There was nothing erroneous in the District Court’s
conclusion. Accordingly, we affirm the District Court’s increase of Joseph’s offense
level by two levels for stolen explosives.
V. CONCLUSION
For the foregoing reasons, we will affirm the judgment of the District Court.
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______________________________________
TO THE CLERK:
Please file the foregoing Opinion.
/s/ D. Brooks Smith
Circuit Judge
Date: September 24, 2003
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