United States v. Larry A. Pierce ( 2004 )

United States Court of Appeals
FOR THE EIGHTH CIRCUIT
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No. 04-1191
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United States of America, *
*
Appellee, *
* Appeal from the United States
v. * District Court for the
* Western District of Missouri.
Larry A. Pierce, *
* [PUBLISHED]
Appellant. *
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Submitted: October 29, 2004
Filed: November 9, 2004
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Before MURPHY, HANSEN, and RILEY, Circuit Judges.
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PER CURIAM.
Pursuant to a written plea agreement, Larry Pierce pleaded guilty to possessing
anhydrous ammonia for the purpose of manufacturing methamphetamine, in violation
of 21 U.S.C. § 843(a)(6), and being a felon in possession of a firearm, in violation of
18 U.S.C. § 922(g)(1). In the plea agreement, the parties anticipated that the counts
would be grouped under U.S. Sentencing Guidelines Manual (USSG) § 3D1.2, Pierce
would have a base offense level of 30 based on being held responsible for 35-50
grams of actual methamphetamine, he would receive a 2-level enhancement under
USSG § 2D1.1(b)(1) for possessing a firearm in connection with the drug offense, he
would receive a 3-level reduction under USSG § 3E1.1 for acceptance of
responsibility, and he would face a maximum sentence of 10 years in prison.
The presentence report also calculated that Pierce’s maximum prison sentence
would be 10 years, although his Guidelines range was higher. At sentencing,
however, the district court1 noticed that this was an error: the parties and the
probation officer had overlooked USSG § 5G1.2, which governs sentencing on
multiple counts of conviction. The district court adjourned the sentencing hearing to
allow the parties and the probation officer to research this issue. The probation
officer filed an addendum acknowledging his error and noting that, under § 5G1.2(d),
the sentence on the drug count and the sentence on the firearm count had to run
consecutively to the extent necessary to achieve the total punishment determined
under the Guidelines. As such, Pierce’s maximum prison sentence would be 10 years
on each count, for a total of 20 years.
As relevant to this appeal, Pierce raised two objections to the presentence
report. First, he disagreed with the recommendation that he should receive a 2-level
enhancement under USSG § 3C1.2 for recklessly creating a substantial risk of death
or serious bodily injury to others while fleeing from law enforcement. Second, he
argued that it was impermissible double-counting to assess the 2-level enhancement
under § 2D1.1(b)(1) for possessing a firearm in connection with the drug offense
because the same firearm formed the basis of his firearm conviction.
When sentencing reconvened two months later, the government called
Lieutenant Shawn Collie of the Buchanan County, Missouri Drug Strike Force to
testify regarding Pierce’s conduct while fleeing from law enforcement. He testified
as follows. During surveillance, police observed anhydrous ammonia being loaded
1
The Honorable Nanette K. Laughrey, United States District Judge for the
Western District of Missouri.
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into Pierce’s pickup truck. Pierce drove away, and police followed. Collie pulled his
vehicle in front of Pierce’s truck, and another officer pulled his vehicle behind
Pierce’s truck. They activated their lights and attempted to apprehend Pierce. Pierce
then rammed Collie’s vehicle with his truck two or more times before veering off and
striking parked cars. Pierce ran from his truck and was apprehended by a canine
officer. On the basis of this testimony, the district court overruled Pierce’s objection
to the § 3C1.2 enhancement.
After hearing argument, the district court also rejected Pierce’s double-
counting claim regarding the § 2D1.1(b)(1) enhancement. Pierce’s total offense level
was 31, resulting in a Guidelines imprisonment range of 135-168 months. The
district court sentenced him to 168 months in prison–structured as a 120-month
sentence on the drug conviction and a consecutive 48-month sentence on the firearm
conviction–and three years of supervised release.
Pierce appeals, renewing the two arguments he presented below. We reject
each argument and affirm.
First, we conclude that the district court did not clearly err in applying the
§ 3C1.2 enhancement because, when Pierce rammed Lieutenant Collie’s vehicle with
his truck multiple times and then collided with parked cars, he recklessly created a
substantial risk of death or serious bodily injury to others. See United States v. Cook,
356 F.3d 913, 917 (8th Cir. 2004) (standard of review); United States v. Miner, 108
F.3d 967, 970 (8th Cir.) (applying the enhancement where the defendant rammed his
car into a police roadblock and engaged in other pursuit-related conduct that created
a substantial risk of serious injury to others), cert. denied, 522 U.S. 904 (1997).
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Second, even assuming for the sake of argument that Pierce’s double-counting
claim is not foreclosed by his acknowledgment in the plea agreement that he would
receive the § 2D1.1(b)(1) enhancement, but see United States v. Fairchild, 189 F.3d
769, 780 (8th Cir. 1999), we reject this argument on its merits after de novo review.
In calculating a defendant’s offense level for a drug conviction, it does not constitute
impermissible double-counting to apply a § 2D1.1(b)(1) enhancement, even though
the defendant has also been convicted under § 922(g)(1) for possessing the same
firearm. See United States v. Taylor, 248 F.3d 506, 517 (6th Cir.), cert. denied, 534
U.S. 981 (2001); United States v. Gibbs, 190 F.3d 188, 216 (3d Cir. 1999), cert.
denied, 528 U.S. 1131 and 529 U.S. 1030 (2000); United States v. Campos-Banos,
86 Fed. App. 225, 227 (9th Cir. 2003) (unpublished).
Accordingly, we affirm the judgment of the district court, but we modify it to
correct a clerical error. The district court structured Pierce’s sentence as a 120-month
sentence on the drug conviction and a consecutive 48-month sentence on the firearm
conviction. The correct way to structure Pierce’s sentence is as a 120-month sentence
on the drug conviction and a 120-month sentence on the firearm conviction, with 48
months of the sentence on the firearm conviction to be served consecutively to
Pierce’s service of the sentence on the drug conviction. See USSG § 5G1.2,
comment. (n.1) (to the extent possible, “the total punishment is to be imposed on each
count”); United States v. Evans, 314 F.3d 329, 332 (8th Cir. 2002) (“Had the district
court applied Part 5G, it would have first imposed the statutory maximum sentence
on each count, because each was less than the total punishment. Then, applying §
5G1.2(d), the court would have made 156 months of the second 240-month maximum
sentence consecutive to the first 240-month maximum sentence, producing the
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396-month total punishment.”), cert. denied, 539 U.S. 916 (2003). We so modify the
judgment of the district court and, as modified, we affirm the judgment.2
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2
Subsequent to briefing, Pierce indicated he would like to file a supplemental
brief in light of Blakely v. Washington, 124 S. Ct. 2531 (2004). The court will not
entertain briefing on Blakely issues until after the Supreme Court issues its opinions
in United States v. Booker and United States v. Fanfan. See Administrative Order
Regarding Blakely Cases, United States Court of Appeals for the Eighth Circuit, Sept.
27, 2004.
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