United States v. Looker ( 1998 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
No. 98-4291
FLOYD RAYMOND LOOKER, a/k/a
Ernest B. Ray, a/k/a Ray,
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-96-40)
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
No. 98-4292
FLOYD RAYMOND LOOKER, a/k/a
Ernest B. Ray, a/k/a Ray,
Defendant-Appellant.
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
No. 98-4293
FLOYD RAYMOND LOOKER, a/k/a
Ernest B. Ray, a/k/a Ray,
Defendant-Appellant.
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
No. 98-4294
FLOYD RAYMOND LOOKER, a/k/a
Ernest B. Ray, a/k/a Ray,
Defendant-Appellant.
Appeals from the United States District Court
for the Northern District of West Virginia, at Clarksburg.
Frederick P. Stamp, Jr., Chief District Judge.
(CR-96-41, CR-96-42, CR-96-42)
Submitted: December 1, 1998
Decided: December 31, 1998
Before MURNAGHAN and KING, Circuit Judges, and
PHILLIPS, Senior Circuit Judge.
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Affirmed by unpublished per curiam opinion.
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COUNSEL
William C. Gallagher, CASSIDY, MYERS, COGAN, VOEGELIN &
TENNANT, LC, Wheeling, West Virginia, for Appellant. William D.
Wilmoth, United States Attorney, David E. Godwin, First Assistant
United States Attorney, Clarksburg, 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Unpublished opinions are not binding precedent in this circuit.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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2
OPINION
PER CURIAM:
Floyd Raymond Looker was charged in four separate indictments
for various offenses associated with his activities as a member of a
militia group. After a jury convicted Looker of conspiracy to manu-
facture explosives (18 U.S.C. § 371 (1994)), he entered guilty pleas
in the other cases against him and was convicted of two counts of
transporting unregistered firearms (destructive devices) (26 U.S.C.
§ 5861(j) (1994)), conspiracy to provide material support to terrorists
(18 U.S.C. § 371 (1994)), and providing material support to terrorists
(18 U.S.C. § 2339A (1994)). On appeal, Looker challenges the dis-
trict court's decisions ordering consecutive sentences; enhancing his
base offense level by four levels for being an organizer or leader pur-
suant to USSG § 3B1.1(a);1 enhancing his base offense level by four
levels for possession of explosive materials pursuant to USSG
§ 2K1.3(b)(3); and enhancing his base offense level by six levels for
possession of more than fifty firearms pursuant to USSG
§ 2K2.1(b)(1)(F). Looker has also filed a motion requesting permis-
sion to file a pro se supplemental brief alleging that the district court
erred in denying a hearing on his pro se motions; allowing his prose-
cution under a vague statute; ordering excessive security at trial;
denying his pro se motion to withdraw his guilty plea; allowing the
prosecution to violate the plea agreement; allowing the presentence
report "to go forward after it was substantially challenged on material
fact;" and "allowing the prosecution to submit false and misleading
statements throughout this entire judicial process." Finding no revers-
ible error, we affirm.
Looker organized and served as the commander of the Mountaineer
Militia in West Virginia. The record shows that, in his capacity as
commander, Looker ordered the manufacture of 2000 improvised
explosive devices. One thousand of these devices were eventually
sold to an undercover FBI agent posing as a broker planning on resell-
ing them to terrorist organizations.2 Looker also organized a training
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1 U.S. Sentencing Guidelines Manual (1997).
2 Looker received a commission on this sale and on others to the agent.
3
session in which he requested a codefendant ("Moore") to provide
training in explosive devices to the militia.3 During another training
session, Looker and his second-in-command ("Richards")4 met
another codefendant to discuss the manufacture of C-4 plastic explo-
sives and nitroglycerine. Looker ordered the manufacture of the
explosives and stated that he had a way to distribute them. He also
ordered Richards to obtain the necessary laboratory equipment.
Looker and Richards later met with Moore to discuss and order the
manufacture of detonators for the explosives.
In 1995, pursuant to Looker's orders, Richards traveled to Pennsyl-
vania to meet with still another codefendant ("Coon"). During this
meeting, Richards arranged the transfer of C-4 plastic explosives,
TNT, an unregistered sawed-off shotgun, and explosives-related
materials. These items were eventually "sold" to the undercover FBI
agent pursuant to Looker's orders. Looker appointed Coon as the sup-
ply and ordnance officer for the militia, and Coon supplied additional
materials and explosive devices, including grenades.
Finally, at a command and staff meeting, Looker led a discussion
concerning the identification of "targets" which could be attacked in
the event of armed confrontation between the militia and the federal
government. One of Looker's county commanders ("Rogers"), who
was also a fireman, stated that he had access to blueprints for the
FBI's Criminal Justice Identification Section facility near Clarksburg.
Rogers provided Looker and Richards with photographs of the blue-
prints for the FBI facility, and plans were made for the destruction of
the facility. The photographs were ultimately sold to the undercover
agent for $50,000 with the understanding that he could provide them
to a terrorist organization with greater ability to make an assault on
the facility.
As part of Looker's plea agreement, the parties agreed that the
cases would be consolidated for sentencing. The district court deter-
mined that the Guidelines range for the offenses involving explosives
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3 An explosive device was detonated during this training.
4 Richards also served as the militia's intelligence and security officer.
Unbeknownst to Looker, Richards was acting as a confidential infor-
mant for the FBI.
4
and destructive devices was 151 to 188 months. The court further
concluded that the terrorism offenses were not addressed under the
Guidelines, and, pursuant to 18 U.S.C. § 3553(b) (1994), determined
that the appropriate sentence for these offenses would be twenty-eight
months each, to be served consecutively, for a total of fifty-six
months. The district court imposed a sentence of 120 months each on
the two offenses involving the transportation of destructive devices,
to be served concurrent with each other.5 The court imposed a sen-
tence of forty months on the offense involving conspiracy to manu-
facture explosives, to be served consecutively with the 120-month
sentences. This resulted in a total sentence of 160 months on the
three offenses covered by the Guidelines. Finally, the court ordered
that the fifty-six month sentence for the terrorism offenses be served
consecutively with the other sentences, for a total sentence of 216
months.
On appeal, Looker alleges that the district court should have
ordered that the fifty-six month sentence be served at least partially
concurrent with the other sentences so that his maximum exposure
would only be 188 months. Because Looker did not object to the sen-
tencing structure at trial, we review his current claim for plain error
and find none. See generally United States v. Olano, 507 U.S. 725(1993). Looker alleges that the "total punishment" referred to in
USSG § 5G1.2(d) is 188 months in his case and that since his total
sentence of 216 months exceeds this "total punishment" it is clearly
erroneous. We disagree. The Guidelines range of 151 to 188 months
applies only to the three offenses involving explosives and destructive
devices, and the sentence imposed (160 months) falls within that
range. The district court properly found that the terrorism offenses
required a separate sentencing calculation because those offenses
were not addressed in the Guidelines. We find Looker's reliance on
United States v. Joetski, 952 F.2d 1090 (9th Cir. 1991), misplaced.
The Joetski court remanded the case for resentencing because the trial
court failed to expressly state that the sentences were to be served
consecutively. There is no such infirmity here. The district court
explicitly stated which sentences were concurrent and which were
consecutive.
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5 This was the statutory maximum for these offenses.
5
We review the district court's factual determination concerning
Looker's role in the offense for clear error and find none. See United
States v. Campbell, 935 F.2d 39, 46 (4th Cir. 1991). Looker organized
the Mountaineer Militia and served as its commanding general. Even
assuming, as Looker alleges, that some of the negotiations were per-
formed by some of his staff officers, the record clearly shows that
they were acting under the authority and pursuant to the orders of the
commander. Moreover, there was ample evidence presented that
Looker was directly involved in the offenses at issue and even
received commissions from the sales to the undercover agent.
We reject Looker's assertion that the district court erred by enhanc-
ing his base offense level for possession of explosives with the
knowledge, intent, or belief that they would be used in another felony
offense.6 Looker primarily argues that the Government failed to iden-
tify the specific felonies in question. However, this court has held that
"§ 2K2.1(b)(5) does not require a defendant's knowledge of a specific
offense to be committed." United States v. Cutler, 36 F.3d 406, 408
(4th Cir. 1994). Nevertheless, the record here shows that Looker pos-
sessed the materials in question believing that they would be used
against the FBI facility in Clarksburg. We find that the district court
properly concluded that the destruction of a federal building and the
resulting potential for injury or death are separate felonies under the
Guidelines.
The district court's enhancement of Looker's base offense level by
six levels pursuant to USSG § 2K2.1(b)(1)(F) (providing for an
enhancement if more than fifty firearms are involved) was based on
the sale of the 1000 improvised explosive devices to the undercover
agent. Looker alleges that because USSG § 2K2.1(b)(3) provides for
an additional enhancement for offenses involving destructive devices,
the improvised explosive devices could not be classified as both
destructive devices and firearms. We disagree. Application Note 1 of
the Guideline expressly states that the definition of the term "firearm"
includes destructive devices. See USSG § 2K2.1, comment. (n.1).
We therefore affirm Looker's convictions and sentence. Looker's
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6 See USSG § 2K2.1(b)(5).
6
motion to file a pro se supplemental brief is granted.7 We dispense
with oral argument because the facts and legal contentions are ade-
quately presented in the materials before the court and argument
would not aid the decisional process.
AFFIRMED
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7 We have considered the claims raised by Looker in his pro se supple-
mental brief and find that they are without merit.
7