United States v. Swearengin, Thomas ( 2006 )

UNPUBLISHED ORDER
Not to be cited per Circuit Rule 53
United States Court of Appeals
For the Seventh Circuit
Chicago, Illinois 60604
Argued October 4, 2006
Decided October 27, 2006
Before
Hon. JOHN L. COFFEY, Circuit Judge
Hon. TERENCE T. EVANS, Circuit Judge
Hon. ANN CLAIRE WILLIAMS, Circuit Judge
No. 06-1781
Appeal from the United States
UNITED STATES OF AMERICA, District Court for the Southern
Plaintiff-Appellee, District of Illinois
v. No. 05-30077-WDS
THOMAS D. SWEARENGIN, William D. Stiehl,
Defendant-Appellant. Judge.
ORDER
Thomas Swearengin was sentenced to a total of 36 months after pleading
guilty to two counts of possession of a firearm by a felon. See 18 U.S.C. § 922(g)(1).
On appeal he challenges the application of an upward adjustment under U.S.S.G.
§ 2K2.1(b)(5), which provides for a four-level increase if the defendant “used or
possessed any firearm or ammunition in connection with another felony offense.”
The district court found that Swearengin possessed ammunition in connection with
a felony drug offense, but Swearengin argues that it was error to base the
adjustment on that ammunition because it was not the subject of either § 922(g)(1)
count, both of which involved guns. Because the district court did not err in using
the ammunition as the basis for applying the adjustment, we affirm.
No. 06-1781 Page 2
I.
On January 3, 2005, state probation officers searched Swearengin’s residence
under the terms of his probation. The officers located an unloaded shotgun in his
bedroom closet. They then searched Swearengin’s garage and found items used to
manufacture methamphetamine—empty blister packs of pseudoephedrine, a pill
crusher with white powder, a bucket containing lithium batteries, and coffee filters.
The officers also located 12.5 grams of methamphetamine, 8.6 grams of marijuana,
and two boxes of .357 caliber ammunition in the garage. Swearengin later admitted
that he’d been handling a friend’s .357 Magnum handgun in the garage not long
before the probation officers had arrived. Swearengin was arrested on January 3,
but apparently he was released on bond. On January 13, police officers responding
to a battery complaint were told by the victim that Swearengin beat him up over
guns Swearengin wanted the victim to keep at his residence. On the same day a
second victim at a different location advised police that Swearengin had left guns at
his residence. Officers retrieved three handguns from the second victim’s residence.
Swearengin eventually was turned over to federal authorities and charged
with two counts of violating § 922(g)(1). Count 1 charged him with possessing the
shotgun retrieved from his bedroom on January 3, and Count 2 charged him with
possessing the three handguns located at the second victim’s residence on January
13. He entered blind guilty pleas to both counts.
The probation officer who prepared the presentence report recommended that
Swearengin’s base offense level be increased by four levels under U.S.S.G.
§ 2K2.1(b)(5), which applies if the defendant “used or possessed any firearm or
ammunition in connection with another felony offense.” The probation officer made
this recommendation because “the defendant possessed a weapon in connection
with the possession or manufacturing of methamphetamine in his garage.”
Swearengin objected to the recommended four-level increase. He did not
dispute the probation officer’s assumption that he committed “another felony
offense,” i.e., the “possession or manufacturing of methamphetamine in his garage.”
And he conceded that there was “sufficient evidence in the record to establish a
connection between the .357 ammunition and/or revolver and the offense of meth
manufacturing.” He also conceded that this connection “would be enough to apply
the enhancement if Mr. Swearengin were convicted of possessing a .357, or .357
ammunition.” Swearengin argued, however, that § 2K2.1(b)(5) could not be applied
because he was not charged with possessing either the .357 ammunition found in
his garage or the .357 Magnum handgun he admittedly possessed there (the
handgun was never recovered). Swearengin acknowledged that the language of
subsection (b)(5) did not itself mandate that the gun or ammunition underlying the
upward adjustment be charged in the indictment, but he reasoned that the
No. 06-1781 Page 3
“relevant conduct” guideline, U.S.S.G. § 1B1.3, effectively imposed such a
limitation. In making this argument, however, Swearengin narrowly focused on
just one of the four separate paragraphs in § 1B1.3(a) that define the scope of
relevant conduct: he cited only subsection (a)(1), which encompasses within the
definition of relevant conduct those acts and omissions attributable to the
defendant “that occurred during the commission of the offense of conviction, in
preparation for that offense, or in the course of attempting to avoid detection or
responsibility for that offense.”
The government contended that § 1B1.3(a) did not prevent the district court
from considering the uncharged ammunition because subsection (a)(4) of that
guideline also encompasses within the definition of relevant conduct “any other
information specified in the applicable guideline.” And in this case, the government
reasoned, the applicable guideline—§ 2K2.1—specifies in subsection (b)(5) that the
court should look at whether the defendant possessed any firearm or ammunition in
connection with another felony offense, not whether he possessed a charged gun or
ammunition in connection with another offense.
The district court sided with the government and overruled Swearengin’s
objection, reasoning that “the presence of the firearms in the home, together with
the ammunition in the garage in the general area of the drug manufacturing
operations, clearly warrants the application of the relevant conduct enhancements
of § 1B1.3(a)(4) to this sentence under the specific offense characteristics of
§ 2K2.1(b)(5).”
II.
On appeal Swearengin renews his argument that the § 2K2.1(b)(5)
enhancement is inappropriate because it does not constitute relevant conduct under
subsection (a)(1) of § 1B1.3.1 He points out that under subsection (a)(1) the other
1
Section 1B1.3(a) provides in relevant part:
Chapters Two (Offense Conduct) and Three (Adjustments). Unless otherwise specified, (i) the base
offense level where the guideline specifies more than one base offense level, (ii) specific offense
characteristics and (iii) cross references in Chapter Two, and (iv) adjustments in Chapter Three, shall
be determined on the basis of the following:
(1) (A) all acts and omissions committed, aided, abetted, counseled, commanded, induced,
procured, or willfully caused by the defendant;
....
(continued...)
No. 06-1781 Page 4
acts constituting relevant conduct must have occurred “during the commission of
the offense of conviction, in preparation for that offense, or in the course of
attempting to avoid detection or responsibility for that offense” (emphasis by the
defendant). Because the .357 ammunition was not charged, Swearengin argues, its
possession was not part of the “offense of conviction” and therefore could not be
considered as relevant conduct in applying § 2K2.1(b)(5).
We review the district court’s interpretation of the sentencing guidelines de
novo. See United States v. Chamness, 435 F.3d 724, 726 (7th Cir. 2006). The
problem for Swearengin, as the government points out, is that “relevant conduct”
includes all acts or omissions falling within any of the four subsections of § 1B1.3(a).
See United States v. Soy, 413 F.3d 594, 613 (7th Cir. 2005). Language in the
guidelines that is not specifically defined should be given its plain and ordinary
meaning. See Chapman v. United States, 500 U.S. 453, 462 (1991); United States v.
Turchen, 187 F.3d 735, 739 (7th Cir. 1999). And the directive in subsection (a)(4) of
§ 1B1.3 to look to “any other information specified in the applicable guideline”
means that a sentencing court literally may include as relevant conduct “any other
information” specified in the applicable guideline. As we have explained,
Ҥ 1B1.3(a) explicates the fundamental rule that relevant conduct must be criminal
in nature,” but “subsection (a)(4) indicates that each applicable guideline may also
specify additional relevant factors.” United States v. Schaefer, 291 F.3d 932, 939
(7th Cir. 2002); see also United States v. Lane, 323 F.3d 568, 591 (7th Cir. 2003).
That is the situation here. The Eighth Circuit recently held in United States
v. Davis, 360 F.3d 901 (8th Cir. 2004), that § 1B1.3(a)(4) is pertinent in applying
§ 2K2.1(b)(5). In Davis the court of appeals upheld a district court’s determination
that the defendant’s involvement in a carjacking ten days before his possession of
the gun that led to his § 922(g)(1) conviction counted as “another felony offense” for
purposes of § 2K2.1(b)(5). Id. at 903. The defendant argued that the carjacking
could not count as “another felony offense” under § 2K2.1(b)(5) because it did not
1
(...continued)
that occurred during the commission of the offense of conviction, in preparation for that
offense, or in the course of attempting to avoid detection or responsibility for that offense.
(2) solely with respect to offenses of a character for which § 3D1.2 would require grouping of
multiple counts, all acts and omissions described in subdivisions (1)(A) and (1)(B) above that
were part of the same course of conduct or common scheme or plan as the offense of
conviction;
(3) all harm that resulted from the acts and omissions specified in subsections (a)(1) and (a)(2)
above, and all harm that was the object of such acts and omissions; and
(4) any other information specified in the applicable guideline.
No. 06-1781 Page 5
occur contemporaneously with the offense of conviction, arguing—as does
Swearengin—that § 1B1.3(a)(1) limits what can be considered under § 2K2.1(b)(5)
to acts or omissions that occurred during, in preparation for, or while attempting to
avoid detection of the offense of conviction. Id. The Eighth Circuit rejected this
argument, concluding that relevant conduct also includes, pursuant to § 1B1.3(a)(4),
“any other information specified in the applicable guideline.” Id. The court
reasoned that the applicable guideline, § 2K2.1(b)(5), directed a four-level increase
if a firearm was possessed in connection with “another felony offense” without
regard to whether the other felony offense occurred contemporaneously with the
offense of conviction. Id.
The opinion in Davis fully supports the district court’s application of
§ 2K2.1(b)(5) in this case. Section 1B1.3(a)(4) is unambiguous in that it states that
factors specified in the applicable guideline shall be considered by the judge. The
applicable guideline—§ 2K2.1—specifies in subsection (b)(5) that a four-level
increase is appropriate so long as the defendant possessed “any firearm or
ammunition” in connection with the other felony offense. Swearengin possessed
ammunition, and he conceded at sentencing both that the drug-related activity in
his garage qualified as “another felony,” and that a sufficient connection existed
between that activity and the ammunition. Thus, the upward adjustment under
§ 2K2.1(b)(5) applied.
In addition to its decision in Davis, the Eighth Circuit also has held that the
firearm or ammunition relevant to an upward adjustment under § 2K2.1(b)(5) need
not be charged in the indictment. In United States v. Mann, 315 F.3d 1054, 1057
(8th Cir. 2003), the court held that § 2K2.1(b)(5) applies to the use or possession of
any firearm, not just the one on which the defendant’s conviction under § 922(g) is
based. The majority reasoned that the language of the guideline—particularly the
use of “any firearm” instead of “the firearm”—plainly means that the gun attached
to the offense of conviction needn’t be one in the same with the one connected to the
second felony. Id. at 1056. See also United States v. Williams, 431 F.3d 767, 770
(11th Cir. 2005); United States v. Settle, 414 F.3d 629, 633-34 (6th Cir. 2005);
United States v. Jardine, 364 F.3d 1200, 1208 (10th Cir. 2004) (same conclusion
under analogous provision of guidelines).
III.
For the foregoing reasons, we AFFIRM Swearengin’s sentence.