United States v. Katalinic, Daniel ( 2007 )

In the
United States Court of Appeals
For the Seventh Circuit
____________
No. 07-1588
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
DANIEL KATALINIC,
Defendant-Appellant.
____________
Appeal from the United States District Court
for the Northern District of Illinois, Eastern Division.
No. 06-CR-323-2—James F. Holderman, Chief Judge.
____________
ARGUED NOVEMBER 13, 2007—DECIDED DECEMBER 19, 2007
____________
Before COFFEY, EVANS, and SYKES, Circuit Judges.
EVANS, Circuit Judge. Daniel Katalinic pleaded guilty
to bank robbery (18 U.S.C. § 2113(a)) and carrying a
firearm in relation to a crime of violence (18 U.S.C.
§ 924(c)). At sentencing, the district court added two
levels to the base offense level on the robbery count
because Katalinic’s codefendant made a death threat
(U.S.S.G. § 2B3.1(b)(2)(F)) during the robbery. Katalinic
then received a 37-month sentence for the robbery to
be followed by an 84-month term on the firearm count.
The primary issue on appeal is whether Application Note
4 to § 2K2.4 of the sentencing guidelines prohibits, as
double counting, an upward adjustment for a death threat
that is related to the firearm for which the defendant
2 No. 07-1588
received a mandatory consecutive sentence under § 924(c).
This is the first time we have considered the issue, but
we agree with our sister circuits and hold that Applica-
tion Note 4 prohibits the adjustment. We therefore vacate
Katalinic’s sentence and remand the case to the district
court for resentencing.
On May 4, 2006, Katalinic and Charles Maciorowski-
Maltz robbed a bank in Mt. Prospect, Illinois. Katalinic
carried a duffel bag when they entered, while Maltz held
a loaded shotgun. They announced the robbery, and
Maltz asked for the bank manager and where the vault
was located. Maltz then gave the shotgun to Katalinic,
took the duffel bag, and climbed over the teller counter
to get to the vault. Meanwhile, Katalinic remained in the
lobby holding the gun. While the manager was trying
to get the vault open, Maltz told her to “hurry or I’ll
fucking shoot you.” When the manager could not open the
vault, Maltz took money from two teller drawers, and the
two men fled from the bank.
After Katalinic entered guilty pleas to the two charges
against him, a probation officer recommended in a PSR
that the base offense level for the robbery should be
increased by two levels for the statement Maltz made to
the manager, which constituted a death threat under
U.S.S.G. § 2B3.1(b)(2)(F). The PSR did not recommend a
further increase based on Katalinic brandishing the
shotgun because Application Note 4 to § 2K2.4 in-
structs not to do so when, as here, a defendant is also
convicted for carrying a firearm in a crime of violence
under § 924(c). The PSR added two points for taking
property of a financial institution, see § 2B3.1(b)(1),
subtracted three points because Katalinic accepted re-
sponsibility, see U.S.S.G. § 3E1.1, and arrived at a recom-
mended offense level of 21. With a category I criminal
history, Katalinic’s guidelines range for the robbery was 37
to 46 months imprisonment. His firearm conviction,
No. 07-1588 3
however, required a minimum 84-month term to be
served consecutively to any other term of imprisonment.
At sentencing, Katalinic objected to the adjustment for
the death threat, arguing that it, like brandishing a gun,
constituted double counting prohibited by Application
Note 4 to § 2K2.4. Because the death threat was re-
lated to the firearm, he argued, it could not be used to
increase his base offense level for the robbery when he
was also subject to a mandatory sentence for the separate
firearm conviction. The court rejected that argument,
however, reasoning that a death threat, unlike possessing
or brandishing a firearm, is not specifically listed as a
prohibited weapon adjustment in Application Note 4. The
court then found that the PSR correctly calculated the
guidelines ranges for the robbery and the firearm, and
after considering the 18 U.S.C. § 3553(a) factors, the
court sentenced Katalinic to 37 months imprisonment
for the robbery conviction to be followed by a 7-year term
(84 months) on the firearm conviction.
On appeal, Katalinic first argues that the district court
improperly increased the offense level for his robbery
conviction based on Maltz’s death threat to the bank
manager. Katalinic contends that the prohibition against
double counting in Application Note 4 to § 2K2.4 includes
a prohibition against increasing a sentence for a death
threat that is related to the firearm forming the basis
of the § 924(c) conviction. Application Note 4 instructs
that when a court imposes a sentence for a conviction
under § 924(c) in addition to a sentence for an underlying
offense, such as the robbery in this case, the sentencing
court should “not apply any specific offense characteristic
for possession, brandishing, use, or discharge of an explo-
sive or firearm when determining the sentence for the
underlying offense.” U.S.S.G. § 2K2.4, cmt. n.4. Because
Maltz threatened to “shoot” the manager, Katalinic
argues, the threat was related to the firearm and could not
4 No. 07-1588
be used to increase his base offense level for the rob-
bery under U.S.S.G. § 2B3.1(b)(2)(F).
We review a legal interpretation of the sentencing
guidelines and amendments de novo. United States v.
Howard, 352 F.3d 332, 335 (7th Cir. 2003); see also United
States v. Carbaugh, 141 F.3d 791, 792 (7th Cir. 1998). An
application note is “authoritative unless it violates the
Constitution or a federal statute, or is inconsistent
with, or a plainly erroneous reading of ” the guideline it
interprets. Stinson v. United States, 508 U.S. 36, 38
(1993); see also United States v. Dyer, 464 F.3d 741, 743
(7th Cir. 2006). Even though the guidelines are no longer
mandatory after United States v. Booker, 543 U.S. 220(2005), courts must still begin the sentencing process
by calculating the guideline sentence and must, there-
fore, use the commentary to interpret the guidelines. See
United States v. Mooney, 425 F.3d 1093, 1100-01 (8th Cir.
2005).
This case turns on an amendment in 2000 to Applica-
tion Note 4 of § 2K2.4.1 Before the amendment, Applica-
tion Note 4 included examples of the types of firearm
characteristics a court could not use to increase an under-
lying sentence when also imposing a mandatory fire-
arm sentence under § 924(c):
Where a sentence under this section is imposed in
conjunction with a sentence for an underlying offense,
any specific offense characteristic for the possession,
use, or discharge of an explosive or firearm (e.g.,
1
The double-counting prohibition was located in Note 2 until
2002 when the Sentencing Commission moved the prohibition to
Note 4. See U.S.S.G., app. C, amend. 642 (2002). We will refer to
the note as Note 4 throughout this opinion and point out
when we are discussing earlier versions.
No. 07-1588 5
§ 2B3.1(b)(2)(A)-(F) (Robbery)) is not to be applied in
respect to the guideline for the underlying offense.
U.S.S.G. § 2K2.4 cmt. n.2 (1998). The listed examples,
§ 2B3.1(b)(2)(A)-(F), are the firearm-related, specific of-
fense characteristics a sentencing court must impose for
robbery, including making a death threat, § 2B3.1(b)(2)(F).
Courts interpreted the note to mean that they could not
even use a death threat to increase the base offense level
for an underlying offense if the defendant was also con-
victed of carrying a firearm under § 924(c) because the
note directly referred to the death threat adjustment. See
United States v. Smith, 981 F.2d 887, 892-93 (6th Cir.
1992) (reasoning that “it is clear that the Sentencing
Commission viewed an express threat of death as the
equivalent of possession, use, or discharge of a firearm
in the course of a robbery”); see also United States v.
Franks, 230 F.3d 811, 814 (5th Cir. 2000); United States v.
Triplett, 104 F.3d 1074, 1081-82 (8th Cir. 1997); United
States v. Duran, 4 F.3d 800, 804 (9th Cir. 1993). Most
of the courts concluded, however, that the threat had to
be related to the firearm to be considered double count-
ing. Franks, 230 F.3d at 814; Triplett, 104 F.3d at 1082;
Smith, 981 F.2d at 893.
In the 2000 amendment to Application Note 4, the
Sentencing Commission removed the reference to
§ 2B3.1(b)(2)(A)-(F) without discussing the death-threat
issue. See U.S.S.G. § 2K2.4 cmt. n.4; U.S.S.G., app. C,
amend. 599 (2000). Application Note 4 now prohibits a
sentencing court from applying “any specific offense
characteristic for possession, brandishing, use, or dis-
charge of ” a firearm in an underlying offense when the
court has imposed a sentence for a § 924(c) conviction,
including any adjustment that would apply based on
relevant conduct. U.S.S.G. § 2K2.4 cmt. n.4. The Com-
mission was presumably aware of the caselaw prohibit-
6 No. 07-1588
ing death-threat adjustments in this context and tacitly
approved the interpretation by not criticizing it. See
United States v. O’Flanagan, 339 F.3d 1229, 1235 (10th
Cir. 2003) (presuming that Sentencing Commission
approved of judicial interpretations of guidelines when
making minor changes and failing to mention caselaw);
see also United States v. Mitchell, 353 F.3d 552, 556 (7th
Cir. 2003) (using “general rules of statutory construction”
when interpreting sentencing guidelines). Indeed, with-
out addressing this specific issue, we have said generally
that after the 2000 amendment, Application Note 4
“included the same general admonition against double
counting” as it did before the amendment and that § 2K2.4
“continues to generally prohibit the application of specific
offense characteristics relating to possession, brandishing,
use, or discharge of a firearm to the underlying offense.”
Howard, 352 F.3d at 337, 338-39.
The two circuits to consider whether the amended
Application Note 4 still prohibits an upward adjustment
for a death threat have concluded that it does. See United
States v. Hazelwood, 398 F.3d 792, 798-800 (6th Cir. 2005);
United States v. Reevey, 364 F.3d 151, 158-59 (4th Cir.
2004). Both the Fourth and Sixth Circuits reasoned
that the new language necessarily encompasses a death
threat made in relation to a firearm, concluding that the
“relevant inquiry” is “whether the threat-of-death enhance-
ment was applied ‘for possession, brandishing, use, or
discharge of ’ a firearm.” Reevey, 364 F.3d at 158-59(quoting U.S.S.G. § 2K2.4 cmt. n.4); accord Hazelwood,
398 F.3d at 799-800. The Hazelwood court emphasized
that the note “precluded the use of enhancements for any
firearm-related conduct” that was part of the underly-
ing offense. Id. at 799.
Although we have never addressed this precise issue, our
cases discussing Application Note 4’s general double-
No. 07-1588 7
counting prohibition are not in tension with the analysis in
Reevey and Hazelwood. Specifically, we have held that
Application Note 4 prohibits an increase in the sentence
for an underlying offense “for the same weapon and the
same conduct that underlie the § 924(c) conviction,”
but not if the offense level increase and the mandatory
§ 924(c) sentence were “imposed for different underlying
conduct.” United States v. White, 222 F.3d 363, 373 (7th
Cir. 2000). Thus, in United States v. Mrazek, we held
that a defendant who committed several armed robberies
but was convicted under § 924(c) for only one of them could
receive weapon adjustments for the other robberies. 998
F.2d 453, 454-55 (7th Cir. 1993). Similarly, in White, we
held that a defendant who brandished a gun and used a
bomb during a bank robbery could receive a weapon
adjustment based on the bomb despite having received a
§ 924(c) sentence for the gun. 222 F.3d at 374-76.
Another part of Application Note 4 also supports the
conclusion that a death threat relating to the firearm
cannot be used to increase the offense level for the under-
lying offense. Application Note 4 instructs sentencing
courts not to “apply any weapon enhancement in the
guideline for the underlying offense” if “a co-defendant, as
part of the jointly undertaken criminal activity, possessed
a firearm different from the one for which the defendant
was convicted under” § 924(c). U.S.S.G. § 2K2.4 cmt. n.4.
If a defendant’s sentence cannot be increased based on a
codefendant’s use of a firearm, it seems anomalous to
nevertheless allow the defendant’s sentence to be increased
based on his codefendant’s threat of death—a less serious
offense characteristic as evidenced by the fewer points
added for a death threat than for using a firearm. See
U.S.S.G. § 2B3.1(b)(2)(A)-(F).
We choose to adopt the rule used by our sister circuits
that death threats related to the firearm forming the
basis of the § 924(c) sentence cannot be double counted
8 No. 07-1588
by increasing the base offense level for the underlying
crime. Prohibiting double counting in this context com-
ports with both the language in Application Note 4 and
the intent of the Sentencing Commission.
Applying this rule, the district court erred because
Maltz’s death threat was related to the shotgun for
which Katalinic received a mandatory sentence under
§ 924(c). While Katalinic brandished the shotgun, Maltz
told the manager to hurry or he would “shoot” her. The
threat to “shoot” was thus directly related to the gun
carried into the bank to facilitate the robbery. See Reevey,
364 F.3d at 159 (holding that court could not use threats
made during kidnaping after defendant had brandished
gun to increase offense level because threats specifically
to “shoot” victim necessarily involved firearm for which
defendant received § 924(c) sentence). Moreover, both
men brandished the shotgun in the lobby before Maltz
went back to the vault, making it clear that the men could
use the shotgun to follow through on a threat to “shoot.”
Because Katalinic and Maltz, as codefendants in jointly
undertaken criminal activity, are accountable for each
other’s reasonably foreseeable conduct, it does not mat-
ter that Katalinic was in the lobby with the shotgun
when Maltz made the “Hurry or I’ll fucking shoot you”
threat. See U.S.S.G. § 1B1.3(a)(1)(B); United States v.
Bailey, 227 F.3d 792, 800 (7th Cir. 2000). And Katalinic
does not challenge the district court’s finding that
Maltz’s statement was a death threat that was reason-
ably foreseeable to Katalinic. Thus, because the death
threat was related to the shotgun, the district court
should not have increased Katalinic’s robbery sentence
based on Maltz’s threat.
Because the district court misapplied the sentencing
guidelines in calculating the guidelines range, we must
remand the case for resentencing. See United States v.
Scott, 405 F.3d 615, 617 (7th Cir. 2005). If the district
No. 07-1588 9
court had not improperly adjusted Katalinic’s base
offense level upward two levels for the death threat under
§ 2B3.1(b)(2)(F), Katalinic’s total offense level would have
been 19, which would have resulted in an imprisonment
range of 30 to 37 months for the robbery conviction. The
district court sentenced Katalinic to 37 months, the low-
est end of the guidelines range for the higher offense level
the court calculated with the threat adjustment. Faced
with a lower guidelines range, the district court may
have sentenced Katalinic differently.
Katalinic also argues on appeal that the presumption of
reasonableness applied to sentences within the guidelines
range by appellate courts has produced a de facto manda-
tory sentencing regime in violation of United States v.
Booker, 543 U.S. 220 (2005). Counsel withdrew that
contention at oral argument, conceding that Rita v. United
States, 127 S.Ct. 2456, 2462 (2007), has foreclosed it.
Therefore, we do not address this issue.
For the foregoing reasons, we VACATE Katalinic’s
sentence and REMAND the case for resentencing.
A true Copy:
Teste:
________________________________
Clerk of the United States Court of
Appeals for the Seventh Circuit
USCA-02-C-0072—12-19-07