United States v. Hodges ( 1999 )

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
_____________________
No. 98-30614
_____________________
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
JAMES KEVIN HODGES,
Defendant-Appellant.
_________________________________________________________________
Appeal from the United States District Court
for the Western District of Louisiana
(98-CR-30003-ALL)
_________________________________________________________________
July 20, 1999
Before POLITZ, JOLLY, and DUHÉ, Circuit Judges.
PER CURIAM:*
In this criminal appeal, the appellant, Kevin James Hodges,
challenges the district court’s calculation of his sentence under
the United States Sentencing Guidelines. Hodges was sentenced to
63 months of imprisonment for one count of possession of firearms
by a convicted felon. For the following reasons, we affirm.
I
A
On August 18, 1997, James Kelvin Hodges was transferred to the
City of Faith Community Corrections Center in Monroe, Louisiana.1
*
Pursuant to 5TH CIR. R. 47.5, the court has determined that
this opinion should not be published and is not precedent except
under the limited circumstances set forth in 5TH CIR. R. 47.5.4.
1
On March 27, 1996, Hodges pleaded guilty to assault in
As a condition of his confinement, Hodges was permitted to leave
the facility during the day. He could also maintain employment.
On December 20, 1997, Hodges failed to return to the Corrections
Center. The Bureau of Prisons placed him on “escape status.”
On December 31, 1997, the local police of Ennis, Texas,
spotted Hodges in an area of the city known for drug trafficking.
When the police approached Hodges’s vehicle he attempted to flee
the scene. A twenty-mile, high-speed chase ensued. Hodges was
apprehended after the authorities used road spikes to deflate his
tires.
Shortly before his December 20, 1997 escape from the
Corrections Center, Hodges made several unlawful firearm
transactions. On December 9, 1997, Hodges sold a Marlin, Model
60.22 caliber rifle and an Ithaca 12 gauge pump shotgun to a Monroe
pawnshop. Mark Hodges, the defendant’s brother, had previously
reported the firearms stolen. On December 15, 1997, Hodges sold a
Hawkin .54 muzzle loader, a Browning 12 gauge shotgun, and a Marlin
.30-.30 lever action rifle to three of his co-workers. Samuel
Hodges, the defendant’s cousin, reported these weapons stolen from
his home in Rosefield, Louisiana.
B
violation of 18 U.S.C. § 113(a). He was sentenced to 27 months
imprisonment and fined $10,000.00.
2
On January 29, 1998, Hodges was indicted on one count of
unlawful escape from the custody of the Attorney General2 and one
count of possession of firearms by a convicted felon,3
specifically, the Marlin 60.22 rifle and the Ithaca pump shotgun.
Hodges entered into a plea agreement, and the government dismissed
the escape charge. Hodges pleaded guilty to the possession count,
and on June 2, 1998, the district court sentenced him to 63 months
of imprisonment for the crime. In calculating Hodges’s sentence,
the district court initially increased Hodges’s base offense level
by two under U.S.S.G. § 2K2.1(b)(1)(B) (1997), based on his
possession of the five firearms: the Marlin 60.22 rifle; the Ithaca
shotgun; the Browning shotgun; the Marlin .30-.30 rifle; and the
Hawkin .54 muzzle loader. At the presentence hearing, Hodges
objected to the district court’s application of the two-level
enhancement, on the grounds that the Hawkin .54 muzzle loader was
an antique replica and that it was not unlawful for a convicted
felon to possess the weapon. The district court agreed and
consequently added a one-level enhancement to Hodges’s base offense
level under U.S.S.G. § 2K2.1(b)(1)(A) (1997), based on his
possession of the remaining four firearms only. Next, the district
court added a two-level enhancement to Hodges’s offense level under
U.S.S.G. 2K2.1(b)(4) (1997) because the firearms were stolen.
2
18 U.S.C.§ 751(a).
3
18 U.S.C. § (g)(1).
3
Finally, the district court increased Hodges’s offense level by two
under U.S.S.G. § 3C1.2 (1997), based on his reckless conduct during
his flight from the Ennis, Texas police. Hodges timely appealed
the sentence.
II
A
Hodges first argues that the district court erred in
increasing his base offense level by one under § 2K2.1(b)(1)(A),
based on his possession of four firearms. Hodges contends that
application of the enhancement was improper because he pleaded
guilty to only possessing the Marlin 60.22 rifle and the Ithaca
shotgun, and, thus, his possession of the Browning shotgun and the
Marlin .30-.30 rifle six days after the charged offense does not
constitute “relevant conduct.” Second, Hodges complains that the
district court’s application of the two-level enhancement under
U.S.S.G. 2K2.1(b)(4) is improper because he had no knowledge that
the firearms underlying his § 922(g)(1) convictions were stolen.
Finally, Hodges contends that the district court erred in applying
the two-level enhancement under U.S.S.G. § 3C1.2, as there exists
no nexus between his crimes of conviction and his flight from law
enforcement. Hodges argues that the police pursued him only
because they suspected that he had engaged in an illegal drug
transaction.
B
4
This court accords great deference to the district court's
application of the sentencing guidelines. United States v.
Condren, 18 F.3d 1190, 1193 (5th Cir.), cert. denied, 513 U.S. 856
(1994). We review the district court’s application of the
sentencing guidelines de novo, and its factual findings for clear
error. United States v. Mitchell, 166 F.3d 748, 751 (5th Cir.
1999). We find no error in the district court’s calculation of
Hodges’s sentences.
First, for the purposes of calculating Hodges’s base offense
level under U.S.S.G. § 2K2.1(b)(1)(a), it is of no legal
consequence that Hodges did not plead guilty to the possession of
the Browning shotgun and the Marlin .30-.30 rifle. U.S.S.G.
§ 2K2.1(b)(1)(a) instructs that if the offense involved three to
four firearms, increase by one level. In applying the guideline,
the district court concluded that Hodges’s possession of the Marlin
60.22 rifle and the Ithaca shotgun was part of the offense of
conviction, while his possession of the Browning shotgun and the
Marlin .30-.30 rifle six days later constituted “relevant conduct.”
We have previously held that the district court is permitted to
consider non-adjudicated offenses (offenses for which the defendant
has neither been charged nor convicted) that occur after the
offense of conviction, provided they constitute "relevant conduct”
under U.S.S.G. § 1B1.3. United States v. Vital, 68 F.3d 114, 118
(5th Cir. 1995). “Relevant conduct” has been defined to include
those offenses that are “part of the same course of conduct or
5
common scheme or plan as the offense of conviction.” Id.; U.S.S.G.
§ 1B1.3(a)(2). The commentary to U.S.S.G. § 1B1.3(a)(2) further
provides that “offenses qualify as part of the same course of
conduct if they are sufficiently connected or related to each other
as to warrant the conclusion that they are part of a single
criminal episode, spree, or ongoing series of offenses.” U.S.S.G.
§ 1B1.3(a)(2), comment. (n.9(B)). The determining factors are the
degree of similarity between the offenses, the regularity of the
offenses, and time interval between the offenses. Id. Applying
these standards, the record shows that Hodges possessed and sold
the Marlin 60.22 rifle and the Ithaca shotgun on December 9, 1997,
and the Browning shotgun and the Marlin .30-.30 rifle on
December 15, 1997. Each of the four firearms had been stolen from
Hodges’s relatives and sold to unwitting buyers. The district
court concluded that Hodges acquired and sold the four firearms
days prior to his December 20, 1997 escape from the Corrections
Center in preparation for his disappearance. In the light of this
record, we agree that Hodges’s possession of the Browning shotgun
and the Marlin .30-.30 rifle was sufficiently similar and closely
related in time to the offense of conviction so as to constitute
relevant conduct.
With respect to Hodges’s second attack on his sentence, the
commentary to U.S.S.G. § 2K2.1(b)(4) makes clear that “the two-
level enhancement under U.S.S.G. § 2K2.1(b)(4) applies whether or
not the defendant knew or had reason to believe that the firearm
6
was stolen.”4 U.S.S.G. § 2K2.1(b)(4), comment. (n.19). (Emphasis
added). See also United States v. Fry, 51 F.3d 543, 546 (5th Cir.
1995) (citing United States v. Singleton, 946 F.2d 23 (5th Cir.),
cert. denied, 502 U.S. 1117 (1992)).
Finally, in response to Hodges’s third challenge to his
sentence, the plain language of U.S.S.G. § 3C1.2 seems not to
require a direct nexus between the crime of conviction and the
defendant’s acts of reckless endangerment.5 Nor can we glean from
a literal reading of the guideline’s commentary the sentencing
commission’s intent to limit application of the enhancement in such
a manner. Cf. U.S.S.G. § 3C1.2, comment. (n.3) (noting “during
flight” is to be construed broadly). Even if we assume, as did the
Ninth Circuit, that U.S.S.G. § 3C1.2 requires a nexus between the
crime of conviction and the defendant’s reckless conduct, United
States v. Duran, 37 F.3d 557, 559-60 (9th Cir. 1994), we find that
a sufficient nexus exists on the record before us. Hodges had
escaped recently from the Corrections Center, where he had
knowingly and illegally possessed and sold firearms only a few
4
Commentary to the sentencing guidelines is accorded the same
weight as legislative rules adopted by federal agencies. United
States v. Powell, 124 F.3d 655, 665 (5th Cir.), cert. denied, 118
S. Ct. 1082 (1998).
5
U.S.S.G. § 3C1.2 provides “if 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.”
7
weeks earlier, probably to finance his escape. He was evading the
authorities in connection with these crimes when the high-speed
chase began. That this chase–-and hence Hodges’s acts of reckless
endangerment–-occurred so that he could avoid apprehension for the
firearm offenses is clearly convincing in the light of the record
as a whole. The dispositive factor here is the defendant’s state
of mind, not the police’s motives for pursuing him. See id. at
560.
In sum, we find no error in the district court’s application
of the sentencing guidelines. We therefore affirm the judgment of
sentence imposed by the district court.
A F F I R M E D.
8