United States v. Amlee , 308 F. App'x 862 ( 2009 )

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
February 3, 2009
No. 08-50535
Summary Calendar Charles R. Fulbruge III
Clerk
UNITED STATES OF AMERICA
Plaintiff-Appellee
v.
KIRBY LOREN AMLEE
Defendant-Appellant
Appeal from the United States District Court
for the Western District of Texas
USDC No. 4:06-CR-172-1
Before KING, DENNIS, and OWEN, Circuit Judges.
PER CURIAM:*
Kirby Loren Amlee appeals the 63-month sentence he received following
his guilty-plea convictions for theft of U.S. property, in violation of 18 U.S.C.
§ 641; transportation of ammunition by a prohibited person, in violation of 18
U.S.C. §§ 922(g)(1) and (6), 924(a)(2); and transportation of stolen property
through interstate commerce, in violation of 18 U.S.C. § 2314. He challenges the
district court’s application of the Sentencing Guidelines. We review the district
*
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should not be published and is not precedent except under the limited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.
No. 08-50535
court’s application of the Sentencing Guidelines de novo and its factual findings
for clear error. United States v. Washington, 480 F.3d 309, 317 (5th Cir. 2007).
The district court denied Amlee credit for acceptance of responsibility
pursuant to U.S.S.G. § 3E1.1 because he was arrested and convicted for being
a felon in possession of a firearm after he had already pleaded guilty in this case.
Amlee argues that he nevertheless should have received this credit because he
cooperated fully and in a timely manner. He maintains that he should not be
penalized for that subsequent criminal behavior because, at the time of the
offense, he was unaware that he was prohibited from possessing firearms and
was selling the weapon at issue in an attempt to comply with his bond conditions
in this case. The district court found Amlee’s assertion of ignorance to be not
credible and we will not disturb that determination. See United States v. Juarez-
Duarte, 513 F.3d 204, 208-09 (5th Cir.), cert. denied, 128 S. Ct. 2452 (2008).
Moreover, the district court’s denial of credit under § 3E1.1 was based on its
finding that Amlee’s post-plea criminal conduct outweighed the evidence of his
acceptance of responsibility. See § 3E1.1, comment. (n.3). Amlee has not shown
error in this regard. See Washington, 480 F.3d at 317.
Amlee contends that the district court erred in increasing his offense level
by two pursuant to U.S.S.G. § 3C1.1 based on his obstruction of justice. Amlee
does not suggest that § 3C1.1 is not applicable to his offense conduct. Instead,
he argues that his cooperation with the Government should offset his obstructive
behavior and that it was unfair to apply this adjustment when the Government
had agreed to recommend a reduction for acceptance of responsibility. A
reduction in offense level for acceptance of responsibility and an increase in
offense level for obstruction of justice are not mutually exclusive. See § 3E1.1,
comment. (n.4). Amlee’s arguments in this regard are insufficient to show that
the district court clearly erred in applying the § 3C1.1 enhancement. See United
States v. Storm, 36 F.3d 1289, 1295 (5th Cir. 1994); see United States v.
Villanueva, 408 F.3d 193, 203 (5th Cir. 2005).
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No. 08-50535
Amlee contends that the district court erred in increasing his offense level
by two pursuant to U.S.S.G. § 2B1.5(b)(4) because Amlee committed the instant
offense for pecuniary gain. Among the items that Amlee stole were various
antique weapons, ammunition, and military memorabilia. Amlee contends that
he stole those items merely to add to his collection of such items and had no
intention of selling them. However, Amlee had described his collection as an
investment and conceded that he sometimes sold guns to upgrade his collection.
The district court found Amlee to be not credible on this point. We afford that
finding deference. See Juarez-Duarte, 513 F.3d at 208-09. The district court did
not clearly err in finding that Amlee committed the crime for pecuniary gain,
and it properly applied § 2B1.5(b)(4). See Washington, 480 F.3d at 317;
Villanueva, 408 F.3d at 203.
Amlee contends that his offense level should not have been increased
pursuant to U.S.S.G. § 2K2.1 based on the finding that the ammunition he stole
was possessed in connection with anther felony offense. He acknowledges our
decision in United States v. Armstead, 114 F.3d 504, 512 (5th Cir. 1997), wherein
we held that the enhancement was applicable where two men who broke into a
pawn shop stole firearms. We determined that the “other felony” in Armstead
was the state law crime of burglary committed when the two men broke into the
pawn shop. Id. at 513. Amlee argues that Armstead is distinguishable because
there is no evidence that he was ever charged with burglary in state court. This
distinction, however, is irrelevant. See § 2K2.1, comment. (n.14(C)). Amlee has
not shown error regarding the application of § 2K2.1. See Washington, 480 F.3d
at 317.
Amlee contends that the district court erred in calculating the loss amount
for purposes of U.S.S.G. § 2B1.1(b)(1)(D). He incorrectly asserts that he testified
as an expert witness as to the values of the stolen items, and he complains that
the district court accepted some, but not all, of the valuations he offered. We
note that the district court reduced most of the valuations of the stolen items set
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No. 08-50535
forth in the presentence report and discounted some of them altogether.
Nevertheless, the district court’s final calculation did not sufficiently reduce the
loss amount to lower Amlee’s offense level. On appeal, Amlee speaks only to the
district court’s estimation of the value of the stolen goods. He does not take into
account the district court’s calculation of the costs to repair the buildings that
Amlee broke into or to restore the antique items. The district court’s estimation
of the loss amount for purposes of § 2B1.1 was reasonable and does not
constitute clear error. § 2B1.1, comment. (n.3(C)); United States v. Messervey,
317 F.3d 457, 464 (5th Cir. 2002).
Amlee argues that he was improperly penalized by the grouping of two of
his convictions under U.S.S.G. § 3D1.2. The probation officer explained that due
to the effect of multi-count grouping under § 3D1.4, Amlee actually had a lower
offense level when Counts One and Three were grouped for purposes of § 3D1.2.
After much discussion, the district court adopted the probation officer’s grouping
calculations. Amlee’s argument in this regard does not take into account the
effect of the multiple-count-adjustment grouping required under § 3D1.4. Amlee
has not shown that the district court improperly applied the grouping guidelines.
See Washington, 480 F.3d at 317.
Finally, Amlee contends that the district court erred in finding that his
May 2006 arrest for being a felon in possession of a firearm and his October 2006
arrest for that same offense were to be counted separately. The district court
determined that the offenses occurred on different dates and involved separate
arrests, indictments, and different weapons. Amlee’s disagreement with the
finding that the offenses were separate is insufficient to show that the district
court erred in calculating his criminal history points. See Washington, 480 F.3d
at 317; Villanueva, 408 F.3d at 203.
AFFIRMED.
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