United States v. Johnson ( 1997 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v. No. 96-4939
CHAD JOHNSON,
Defendant-Appellant.
Appeal from the United States District Court
for the Northern District of West Virginia, at Wheeling.
Frederick P. Stamp, Jr., Chief District Judge.
(CR-96-18)
Argued: October 27, 1997
Decided: December 19, 1997
Before RUSSELL, MICHAEL, and MOTZ, Circuit Judges.
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Affirmed by unpublished per curiam opinion.
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COUNSEL
ARGUED: Hunt Lee Charach, Federal Public Defender, Charleston,
West Virginia, for Appellant. Paul Thomas Camilletti, Assistant
United States Attorney, Wheeling, West Virginia, for Appellee. ON
BRIEF: William D. Wilmoth, United States Attorney, Wheeling,
West Virginia, for Appellee.
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Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).
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OPINION
PER CURIAM:
On December 17, 1995, Chad Johnson and several friends deto-
nated, at several locations, "display fireworks," which they knew oth-
ers had stolen a month earlier. In the process, Johnson and his friends
destroyed two cars -- the first in Wheeling, West Virginia, and the
second in Richland Township, Ohio. The fireworks Johnson and his
friends detonated are considered "Class B explosives," and are subject
to regulation as "explosives" under the National Firearms Act.
The Government initially charged Johnson with three counts of
destruction of property by means of explosive materials, in violation
of 18 U.S.C. § 844(i), and conspiracy to destroy property by means
of explosive materials in violation of 18 U.S.C.§ 371. Pursuant to a
plea agreement, however, Johnson pled guilty to one count of unlaw-
fully aiding and abetting others in the receipt and disposal of explo-
sive materials, knowing such materials were stolen, in violation of 18
U.S.C. § 842(h) and 18 U.S.C. § 2.
Pursuant to section 2K1.3(a)(4) of the United States Sentencing
Guidelines (the "Sentencing Guidelines"), the probation officer's pre-
sentence report calculated Johnson's base offense level at 12 and rec-
ommended that Johnson receive a six-level upward enhancement
pursuant to Sentencing Guideline § 2K1.3(b)(3) for possessing and
using explosives in connection with another felony offense.1 At his
sentencing hearing, Johnson objected to the recommended enhance-
ment. Relying on § 2K1.3(a)(4), § 2K1.3(b)(3), Application Note 11
and the presentence report, the district court overruled Johnson's
objections and enhanced his offense level to 18. The district court
then credited Johnson with a three-level "acceptance of responsibil-
ity," thereby reducing his total offense level to 15. Johnson received
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1 U.S. SENTENCING GUIDELINES MANUAL § 2K1.3(b)(3) (1995).
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an 18-month prison term, the minimal sentence for Criminal History
Category I, offense level 15.
I.
Johnson appeals his sentence, arguing that the district court erred
in enhancing his sentence by six-levels pursuant to§ 2K1.3(b)(3). He
maintains that he did not commit "another felony offense," as used in
§ 2K1.3(b)(3), and that the phrase "another felony offense" refers
only to conduct of a "separate criminal episode." We review de novo
whether the district court correctly applied the six-level sentencing
enhancement.2 Finding no error in the enhancement, we affirm.
Section 2K1.3 of the Sentencing Guidelines establishes the frame-
work for calculating the offense level for prohibited transactions
involving explosive materials. Accordingly, § 2K1.3(b)(3) provides:
If the defendant used or possessed any explosive material in
connection with another felony offense; or possessed or
transferred any explosive material with knowledge, intent,
or reason to believe that it would be used or possessed in
connection with another felony offense, increase by 4 levels.
If the resulting offense level is less than level 18, increase
to level 18.3
Application Note 11 to § 2K1.3 further provides:
As used in subsections (b)(3) and (c)(1), "another felony
offense" and "another offense" refer to offenses other than
explosives or firearms possession or trafficking offenses.4
In the instant case, Johnson, pursuant to his plea agreement, only pled
guilty to the receipt and disposal of stolen explosive materials. The
district court found that his other felony offenses, included the deto-
nation of the explosives and the destruction of property in West Vir-
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2 United States v. Nale, 101 F.3d 1000, 1003 (4th Cir. 1996).
3 U.S. SENTENCING GUIDELINES MANUAL § 2K1.3(b)(3) (1995).
4 U.S. SENTENCING GUIDELINES MANUAL § 2K1.3 n.11 (1995).
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ginia, the interstate transportation of explosive materials with the
intent to damage or destroy property, and the detonation of the explo-
sives and the destruction of property in Ohio.
First, Johnson contends that the district court erred in enhancing his
offense level because the offenses relied upon by the district court do
not constitute other felony offenses. He maintains that Application
Note 11 excludes all explosives offenses from consideration "as
another felony offense" under § 2K1.3(b)(3). We disagree. The phrase
"another felony offense" does not exclude all explosive offenses from
application under § 2K1.3(b)(3); rather, it excludes only the explosive
offenses of trafficking and possession from consideration. All remain-
ing offenses, except those of firearms possession or trafficking, there-
fore, may be considered as "another felony offense" for purposes of
enhancing a sentence pursuant to § 2K1.3(b)(3). Accordingly, the dis-
trict court did not err by enhancing Johnson's base offense level by
six levels.
Johnson alternatively contends the phrase "another felony offense"
in Application Note 11 refers to an offense that is episodically distinct
in time, place, or substance from the conduct comprising the offense
of conviction. Hence, because the interstate transportation of explo-
sive materials and destruction of the two automobiles by explosive
materials involved the same explosives to which he pled guilty, John-
son maintains the enhancement was impermissible. We hold this
argument to be meritless because § 3K1.3(b)(3) does not contain a
temporal requirement, nor does it require that the offenses be episodi-
cally or substantively distinct. It only requires that the other felony be
committed "in connection with" the explosives offense, and that it not
be another explosives possession or trafficking offense.
II.
Having carefully reviewed the record, briefs, and contentions of the
parties at oral argument, we hold Johnson's remaining issue to be
without merit. Accordingly, we affirm the sentence imposed by the
district court.
AFFIRMED
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