United States v. Shane L. Borer ( 2005 )

United States Court of Appeals
FOR THE EIGHTH CIRCUIT
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No. 03-2903
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United States of America, *
*
Appellee, *
* Appeal from the United States
v. * District Court for the
* District of Nebraska.
Shane L. Borer, *
*
Appellant. *
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Submitted: June 15, 2004
Filed: June 22, 2005
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Before SMITH, BEAM, and COLLOTON, Circuit Judges.
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COLLOTON, Circuit Judge.
Shane Borer pled guilty to possession of firearms while subject to one or more
domestic-violence protection orders, in violation of 18 U.S.C. § 922(g)(8). The
firearms were discovered at Borer's home on July 26, 2002, after a fire at his
residence. At that time, Borer was subject to two protection orders. Borer pled guilty
to the charge on April 10, 2003.
At Borer's sentencing hearing on July 2, 2003, the district court calculated the
base offense level under the United States Sentencing Guidelines at 14, see USSG
§ 2K2.1(a)(6)(A), and then added two levels for the number of firearms involved. See
USSG § 2K2.1(b)(1)(A). The court then granted a two-level reduction for acceptance
of responsibility, see USSG § 3E1.1, resulting in a total offense level of 14. The
court found that Borer's criminal history category was III, and that the applicable
sentencing range was 21 to 27 months. The court sentenced Borer to 24 months
imprisonment and three years of supervised release.
On appeal, Borer asserts several errors in the calculation of his sentence. He
contends that the district court erred in denying a three-level reduction for acceptance
of responsibility under USSG § 3E1.1(b), assessing one criminal history point for a
prior criminal mischief conviction, and denying a six-level reduction under USSG
§ 2K2.1(b)(2) for possessing the firearms solely for sporting purposes or collection.
Borer further argues that the government breached a plea agreement by failing to
recommend a sentence in the middle of the guideline range. Finally, Borer argues
that his trial counsel was ineffective because he did not object to the court's failure
to grant Borer an additional level for acceptance of responsibility and to the
government's alleged breach of the plea agreement. We affirm in part, reverse in part,
and remand for resentencing.
I.
The Presentence Investigation Report ("PSR") prepared by the United States
Probation Office did not recommend a reduction to Borer's sentence for acceptance
of responsibility, and Borer properly objected. At the sentencing hearing, the district
court found that Borer had accepted responsibility and reduced his offense level by
two levels under USSG § 3E1.1(a). On appeal, Borer contends that the district court
committed clear error by not awarding a three-level reduction under § 3E1.1(b), as
it existed at the time of his offense,1 because he "timely notif[ied] authorities of his
1
Prior to an amendment effective on April 30, 2003, § 3E1.1(b) stated:
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intention to enter a plea of guilty, thereby permitting the government to avoid
preparing for trial and permitting the court to allocate its resources efficiently."
USSG § 3E1.1(b)(2) (Nov. 1, 2002).
The government concedes that Borer timely notified authorities of his intention
to enter a plea of guilty, and thereby permitted the government to avoid preparing for
trial. The district court gave no reason for denying a third level reduction under
§ 3E1.1(b)(2), and we find nothing in the record to support a finding that although the
notification was timely for purposes of the government, it was somehow untimely
with respect to the court. Accordingly, we conclude that the district court's denial of
a decrease of one additional level under § 3E1.1(b)(2) was clearly erroneous.
At oral argument, the government asserted that Borer was ineligible for a three-
level reduction under § 3E1.1(b), because under the guideline as amended by the
If the defendant qualifies for a decrease under subsection (a), the offense
level determined prior to the operation of subsection (a) is level 16 or
greater, and the defendant has assisted authorities in the investigation or
prosecution of his own misconduct by taking one or more of the
following steps:
(1) timely providing complete information to the government
concerning his own involvement in the offense; or
(2) timely notifying authorities of his intention to enter a plea of
guilty, thereby permitting the government to avoid preparing for trial
and permitting the government and the court to allocate its resources
efficiently,
decrease the offense level by 1 additional level.
USSG § 3E1.1(b) (Nov. 1, 2002).
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PROTECT Act in April 2003,2 the third level reduction is available only upon motion
of the government, and no such motion was filed at Borer's sentencing hearing. Borer
argues that retrospective application of the new motion requirement would violate the
Ex Post Facto Clause of the Constitution, and that the guidelines in effect at the time
of his offense should be applicable. See USSG § 1B1.11(b). We have located only
one precedent concerning application of the new motion requirement of § 3E1.1(b)
to offenses committed prior to April 30, 2003. United States v. Briceno, No. 01
CR.943 LTS, 2003 WL 22025870, at *6 n.6 (S.D.N.Y. Aug. 23, 2003) (unpublished)
(declining to apply PROTECT Act amendment to § 3E1.1(b), because "application
of the amended Guideline would result in a harsher sentence than would application
of the Guideline in effect at the time of the offense conduct"). We suspect that may
be due to a policy of the United States not to seek retrospective application of the
amendment for constitutional reasons.3 But despite conceding that Borer satisfied the
timely notice requirement of § 3E1.1(b), the government in this case nonetheless
2
Prosecutorial Remedies and Tools Against the Exploitation of Children Today
Act of 2003 ("PROTECT Act"), Pub.L.No. 108-21, § 401(g), 117 Stat. 650, 671-72
(April 30, 2003).
3
See, e.g., Brief for the United States at 16, United States v. Zavala-Santillanez,
(9th Cir. filed May 28, 2004) (No. 04-50034) (government agreed that the application
of the post-Protect Act version of USSG § 3E1.1(b) to the defendant would violate
the constitutional prohibition against ex post facto laws); Brief for the United States
at 13 n.5, United States v. Kolbe, (8th Cir. filed Dec. 17, 2003) (No. 03-3458)
(government did not urge application of amended § 3E1.1(b) to offense committed
before PROTECT Act due to "ex post facto concerns"); PROTECT Act Substantially
Alters Availability of Third Acceptance of Responsibility Point, Federal Public
Defender Report (Federal Public Defender, Western District of New York), Oct.
2003, at 21-22, http://www.frontiernet.net/ ~fpdnywro/news/2003-10.pdf (reprinting
policy of United States Attorney for Western District of New York to apply amended
§ 3E1.1(b) only to offenses committed after April 30, 2003); see also United States
v. Lester, 268 F. Supp. 2d 514, 515 n.2. (E.D. Pa. 2003) (government agreed that Ex
Post Facto Clause barred application of restrictions on departures in PROTECT Act
to sentencing for offense that occurred before enactment).
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insists that a three-level reduction is not permissible, because the United States
Attorney did not file a motion under amended § 3E1.1(b).
We think it evident that the government's position is inconsistent with the Ex
Post Facto Clause. The addition of the motion requirement changes the operation of
the guideline to Borer's detriment after his commission of the offense. The
PROTECT Act amendment made it materially more difficult for Borer to earn a
reduction for acceptance of responsibility by adding a requirement that the
government authorize the court to grant a third level reduction. As a result, the
statute was "retrospective and more onerous than the law in effect on the date of the
offense." Weaver v. Graham, 450 U.S. 24, 30-31 (1981). The amended guideline
would result in a substantial disadvantage to Borer because he would receive a longer
sentence for the same conduct simply because he did not receive a motion from the
government. See Miller v. Florida, 482 U.S. 423, 431-33 (1987) (defendant was
"substantially disadvantaged" by change in calculation of primary offense points
under sentencing guidelines which altered his presumptive sentence from 3½ - 4½
years to 5½ - 7 years); Weaver, 450 U.S. at 33 (statute reducing the amount of "gain-
time" credits a prisoner could receive was unconstitutional as an ex post facto law);
Lindsey v. Washington, 301 U.S. 397, 400-01 (1937) (change in punishment from a
range of years with a maximum of 15 years to a mandatory sentence of 15 years
violated the Ex Post Facto Clause); cf. Carmell v. Texas, 529 U.S. 513, 530 (2000)
(change in rule of evidence that decreased burden on government to prove crime
violated the Ex Post Facto Clause when applied to a defendant's case retrospectively).
Accordingly, we hold that the version of § 3E1.1(b) in effect at the time of Borer's
offense should be applied, and that Borer is entitled to an additional one-level
reduction under § 3E1.1(b)(2).4
4
We observe that if the government were correct that the amended version of
§ 3E1.1(b) applies, then there would be a serious question whether the government's
failure to file a motion was rationally related to any legitimate government end. See
Wade v. United States, 504 U.S. 181, 186 (1992). As noted, the government
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II.
Borer contends that the district court improperly assessed one criminal history
point based on a conviction in November 2002 for criminal mischief under Nebraska
law. The conviction arose out of an incident during which Borer became upset with
his estranged wife when he was picking up his children, grabbed a cell phone from
one of his children, and broke the phone by throwing it on the ground. He was
sentenced to six months probation and required to pay $80 in restitution. Borer
argues that this misdemeanor offense is "similar to" the offenses of disorderly
conduct and disturbing the peace, which are excluded from counting under USSG
§ 4A1.2(c)(1), and that the district court should have refrained from assessing a
criminal history point on that basis. We review de novo the district court's
construction and interpretation of the criminal history provisions of the sentencing
guidelines, and we review for clear error the district court's application of the
guidelines to the facts. United States v. Jones, 87 F.3d 247, 248 (8th Cir. 1996).
Under USSG § 4A1.2(c)(1), an offense that is "similar to" disorderly conduct
or disturbing the peace would not be counted in Borer's case unless the sentence was
a term of probation of at least one year or a term of imprisonment of at least thirty
days. We have held previously that the offense of "Assault and Criminal Damage to
Property" is not similar to the offenses of disorderly conduct or disturbing the peace
for purposes of § 4A1.2(c)(1). United States v. Russell, 913 F.2d 1288, 1294 (8th Cir.
1990). We now reach the same conclusion regarding the offense of criminal mischief
under Nebraska law.
To determine whether two crimes are "similar" for purposes of § 4A1.2(c), we
have endeavored to "compare the resemblance and character of the offenses." United
conceded that Borer timely notified authorities of his intention to enter a plea of
guilty, and permitted the government to allocate its resources efficiently.
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States v. Webb, 218 F.3d 877, 881 (8th Cir. 2000); see also United States v. Mitchell,
941 F.2d 690, 691 (8th Cir. 1991) ("similar to" must be given its normal meaning, i.e.,
"nearly corresponding; resembling in many respects") (internal quotation omitted).
This approach places us in the camp of those circuits that have opted to compare the
"elements" or "essential characteristics" of the subject offenses to determine whether
they have the requisite similarity. See United States v. Perez de Dios, 237 F.3d 1192,
1198 (10th Cir. 2001) (favorably citing Mitchell in adopting an "essential
characteristics" approach); United States v. Elmore, 108 F.3d 23, 27 (3d Cir. 1997)
(elements); United States v. Harris, 128 F.3d 850, 854-55 (4th Cir. 1997) (same);
United States v. Unger, 915 F.2d 759, 763 (1st Cir. 1990) (same). We continue to
believe that this approach is in keeping with the overall purpose of the Sentencing
Reform Act to achieve consistency in sentencing and to reduce disparities in
sentencing among similarly situated offenders. We thus decline Borer's suggestion
that we adopt a multi-factor approach championed by the Fifth Circuit and others,
which also considers the underlying facts of the defendant's offense, as well as such
matters as a "comparison of punishments imposed for the listed and unlisted offenses,
the perceived seriousness of the offense as indicated by the level of punishment, . . .
the level of culpability involved, and the degree to which the commission of the
offense indicates a likelihood of recurring criminal conduct." United States v.
Hardeman, 933 F.2d 278, 281 (5th Cir. 1991); see also United States v. Martinez-
Santos, 184 F.3d 196, 205-06 (2d Cir. 1999); United States v. Booker, 71 F.3d 685,
689 (7th Cir. 1995). We share the concern of the Fourth Circuit that some of the
factors used in these multi-factor tests are vague, subjective, or lacking in unifying
principle, such that they "leave the law indeterminate." See Harris, 128 F.3d at 854-
55.
In defining the character of the listed offenses, we look to federal law and
consider such generic sources as the Model Penal Code and legal dictionaries to
define these offenses. See Elmore, 108 F.3d at 25-26; cf. Taylor v. United States, 495
U.S. 575, 598 & n.8 (1989) (citing the Model Penal Code as support for the generic
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definition of "burglary"). We observe that a person may be convicted of disorderly
conduct if, with purpose to cause public inconvenience, annoyance or alarm, he
"makes unreasonable noise or offensively coarse utterance, gesture or display, or
addresses abusive language to any person present." Model Penal Code § 250.2(1)
(1980).5 "Disturbing the peace" is similarly defined as "[t]he criminal offense of
creating a public disturbance or engaging in disorderly conduct, particularly by
making an unnecessary or distracting noise." Black's Law Dictionary 183 (7th ed.
1999). These offenses typically are directed at the public at large, and need not
involve any specific threat of property damage or personal injury.
Criminal mischief, in our view, is an offense of a different and more serious
character. To violate the Nebraska statute, a person must (a) intentionally or
recklessly damage the property of another; (b) intentionally tamper with property of
another so as to endanger person or property; or (c) intentionally or maliciously cause
another to suffer pecuniary loss by deception or threat. Neb. Rev. Stat. § 28-519(1).
5
The Model Penal Code provides that:
A person is guilty of disorderly conduct if, with purpose to cause public
inconvenience, annoyance or alarm, or recklessly creating a risk thereof,
he
(a) engages in fighting or threatening, or in violent or
tumultuous behavior; or
(b) makes unreasonable noise or offensively coarse
utterance, gesture or display, or addresses abusive language
to any person present; or
(c) creates a hazardous or physically offensive condition by
any act which serves no legitimate purpose of the actor.
Model Penal Code § 250.2(1) (1980).
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Criminal mischief thus involves an intent to cause property damage, and a conviction
signifies that a defendant has done "more than merely disturb the public order."
Elmore, 108 F.3d at 26. None of the enumerated offenses in § 4A1.2(c)(1) involves
property damage or personal injury, and we conclude that the requirement of
intentional property damage or pecuniary loss renders criminal mischief in Nebraska
categorically more serious than disorderly conduct or disturbing the peace.
Accordingly, we hold that the district court did not err in assessing a criminal history
point for Borer's conviction for criminal mischief. Accord United States v. May, 343
F.3d 1, 10 (1st Cir. 2003).
III.
Borer also argues that he was entitled to a six-level reduction under USSG
§ 2K2.1(b)(2), which provides that a defendant's offense level should be reduced if
the defendant possessed the firearms solely for lawful sporting purposes or collection,
and did not unlawfully discharge or use such firearms. When considering the purpose
for which the firearms were possessed, we consider "the number and type of firearms,
the amount and type of ammunition, the location and circumstances of possession and
actual use, the nature of the defendant's criminal history . . . and the extent to which
possession was restricted by local law." USSG § 2K2.1, comment (n. 10).
We conclude that the district court did not clearly err in finding that Borer
failed to satisfy his burden of proof to qualify for the sporting purposes and collection
reduction. Although it would have been helpful for the district court to set forth its
reasoning for the ruling on this point, we infer from the record that the court must
have given weight to evidence presented from the defendant's ex-wife concerning
alleged unlawful use of the firearms, and found unreliable the defendant's contrary
explanations for his possession of the guns.
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There was evidence from which the court could have inferred that Borer
possessed the firearms for an unlawful purpose. The government submitted affidavits
from Borer's ex-wife, which were prepared in 2001 and 2002 to support her
applications for domestic-violence protective orders against Borer. In those
affidavits, Borer his ex-wife asserted that Borer threatened her with a "rifle" while
they were living in Ohio by holding the gun to her head. Although Borer now
contends that his ex-wife was lying, he never contested the facts at the time the
protective orders were entered. In a June 2003 affidavit, an agent of the Bureau of
Alcohol, Tobacco, Firearms and Explosives stated that Borer's ex-wife had repeated
her claim that Borer held a gun to her head, and that she was "pretty certain, but not
100% positive" that the weapon Borer held to her head was one of the guns at issue
in this case. Borer claimed that he never possessed in Ohio the firearms charged in
the indictment, and pointed out that the charged firearms were shotguns, while the ex-
wife had specified use of a "rifle." Borer's father, however, told the ATF agent that
Borer may have possessed the charged firearms in Ohio, and Borer's ex-wife averred
in her statement to the ATF agent that the threatening weapon was "either a shotgun
or a rifle."
The district court was also presented with conflicting evidence regarding the
purposes for which Borer possessed the firearms in Nebraska. Borer initially testified
that all three guns were "for hunting purposes only." He then seemed to contradict
himself, however, by saying that he had not used the Ithaca and the Winchester
shotguns for several years -- since he was in high school and 12 years old,
respectively. He further testified that he had never used the Westernfield shotgun for
hunting, and that it was merely a "collector's gun."
Borer and his father also provided inconsistent information about why the guns
were at Borer's residence in Nebraska. Borer's father first told the ATF agent that he
was storing the firearms at Borer's residence for the safety of his grandchildren. He
then admitted, however, that he had purchased one of the firearms not for himself, but
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for Borer. At the sentencing hearing, Borer testified that his father transferred the
guns because he did not have enough storage space. Borer further emphasized that
his father only had one gun case, while Borer had several individual cases in which
to store the guns, but when the guns were found, none of them was stored in an
individual gun case. Given the ambiguities in this evidence, we conclude that it was
not clearly erroneous for the district court to find that Borer failed to meet his burden
of proof. See United States v. Truelson, 169 F.3d 1173, 1174 (8th Cir. 1999)
(defendant's equivocal answer regarding collection supported denial of reduction
under §2K2.1(b)(2)).
IV.
Finally, Borer contends that the government violated the plea agreement by
concurring with the recommendation of the presentence report to sentence Borer in
the middle of the applicable sentencing guideline range, rather than recommending
a sentence at the low end of the applicable range. Issues concerning the interpretation
and enforcement of a plea agreement are reviewed de novo. United States v. Johnson,
241 F.3d 1049, 1053 (8th Cir. 2001). "Plea agreements are contractual in nature, and
should be interpreted according to general contract principles." United States v.
DeWitt, 366 F.3d 667, 669 (8th Cir. 2004).
Given the unusual language of the plea agreement in this case, we conclude
that the government did not breach a material term of the agreement. The plea
agreement stated: "Absent a departure or other downward sentencing benefit to the
defendant from the guideline range anticipated by the Presentence Report, the United
States Attorney agrees to recommend a sentence at the low end of the applicable
Guideline range." (Plea Agreement ¶ 1c) (emphasis added). Here, the guideline
range "anticipated by the Presentence Report" did not include a downward adjustment
for acceptance of responsibility. Borer then received this "downward sentencing
benefit" when the district court sustained his objection to the report. Accordingly,
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under the plain language of the plea agreement, the government was not required to
recommend a sentence at the low end of the sentencing range, and there was no
breach of the agreement.
V.
In a previous opinion filed on January 5, 2005, we observed that Borer had
filed a motion for leave to file a supplemental brief challenging the constitutionality
of the United States Sentencing Guidelines based on Blakely v. Washington, 124 S.
Ct. 2531 (2004), but that we would not reach that issue until after the Supreme Court
decided United States v. Booker, 125 S. Ct. 738 (2005), which was then pending. The
Court now has decided Booker, and declared that the sentencing guidelines are
effectively advisory in all cases. In a petition for rehearing, Borer argues that the case
should be remanded for resentencing under the advisory guideline scheme. Because
this case must be remanded for resentencing due to an incorrect application of the
guidelines, we conclude that the district court also should resentence Borer in light
of Booker. See United States v. Huber, 404 F.3d 1047, 1064 (8th Cir. 2005).
* * *
For the foregoing reasons, we uphold the district court's ruling with respect to
most of the disputed sentencing issues, but we vacate Borer's sentence and remand
for resentencing with a three-level reduction for acceptance of responsibility and
consistent with the current state of the sentencing guidelines.
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