United States v. Todd Fries , 796 F.3d 1112 ( 2015 )

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 13-10654
Plaintiff-Appellee,
D.C. No.
v. 4:11-cr-01751-
CKJ-CRP-1
TODD RUSSELL FRIES, AKA Todd
Burns,
Defendant-Appellant. OPINION
Appeal from the United States District Court
for the District of Arizona
Cindy K. Jorgenson, District Judge, Presiding
Argued and Submitted
February 6, 2015—San Francisco, California
Filed August 10, 2015
Before: Richard C. Tallman and Johnnie B. Rawlinson,
Circuit Judges, and Marvin J. Garbis, Senior District
Judge.*
Opinion by Judge Rawlinson
*
The Honorable Marvin J. Garbis, Senior District Judge for the U.S.
District Court for the District of Maryland, sitting by designation.
2 UNITED STATES V. FRIES
SUMMARY**
Criminal Law
Affirming a sentence for unlawful possession of
unregistered destructive devices, the panel rejected the
defendant’s contention that the district court impermissibly
included his prior convictions for false statements and use of
a chemical weapon, which were severed from the
unregistered device charges, in calculating the defendant’s
criminal history category.
The panel held that the district court properly calculated
the defendant’s criminal history pursuant to U.S.S.G.
§ 4A1.2. The panel explained that the defendant’s prior
concurrent sentences for use of a chemical weapon and
making false statements were prior sentences under U.S.S.G.
§ 4A1.2(a)(1) because they involved conduct that was
unrelated to the defendant’s possession of unregistered
destructive devices; and that the prior concurrent sentences
did not constitute multiple sentences under U.S.S.G.
§ 4A1.2(a)(2). The panel rejected the defendant’s contention
that he was punished for successfully severing the unrelated
counts.
**
This summary constitutes no part of the opinion of the court. It has
been prepared by court staff for the convenience of the reader.
UNITED STATES V. FRIES 3
COUNSEL
Richard C. Bock, Tucson, Arizona, for Defendant-Appellant.
John S. Leonardo, United States Attorney, Robert L. Miskell,
Appellate Chief, and Peter D. Sax (argued), Assistant United
States Attorney, Tucson, Arizona, for Plaintiff-Appellee.
OPINION
RAWLINSON, Circuit Judge:
Appellant Todd Russell Fries (Fries) challenges his
sentence for his unlawful possession of unregistered
destructive devices in violation of 26 U.S.C. § 5861(d). Fries
asserts that the district court impermissibly included his prior
convictions for false statements and use of a chemical
weapon, which were severed from the unregistered device
charges, in calculating Fries’ criminal history category. We
affirm Fries’ sentence.1
I. BACKGROUND
In a second superseding indictment, Fries was charged
with use of a chemical weapon in violation of 18 U.S.C.
§ 229(a), making a false statement to a Federal Bureau of
Investigation (FBI) agent in violation of 18 U.S.C. § 1001,
and unlawful possession of unregistered destructive devices
1
Fries raised several other issues concerning his trial and conviction,
which are addressed in a memorandum disposition filed
contemporaneously with this opinion.
4 UNITED STATES V. FRIES
in violation of 26 U.S.C. §§ 5861(d) and 5871. Count One
alleged that Fries:
did knowingly develop, produce, and
otherwise acquire, transfer directly or
indirectly, receive, stockpile, retain, own,
possess, use, and threaten to use a chemical
weapon, namely a combination of a
chlorinated cyanuric acid and an unknown
reactive chemical component, which when
combined, created airborne toxic chemicals,
including chlorine not intended for peaceful
purposes, protective purposes, unrelated
military purposes or law enforcement
purposes as described in 18 U.S.C. § 229F(7),
by placing a device on the driveway in front
of the garage and on the back porch of [a]
residence . . . [i]n violation of Title 18 U.S.C.
§§ 229(a) and 2.
Count Two alleged that Fries “did knowingly and
willfully make false, fraudulent, and fictitious material
statements and representations, in a matter within the
jurisdiction of the Federal Bureau of Investigation” in
violation of 18 U.S.C. § 1001(a)(2).
Count Three alleged that Fries knowingly possessed
“two . . . cylindrical type devices, sealed at both ends, fused
with common hobby fuse, and containing low-explosive main
charge and with copper plated metal balls adhered to the
cylinders as an added fragmentation” and “one . . . spherical
device, sealed, fused with common hobby fuse, and
containing low-explosive main charge and with copper plated
metal balls adhered to the sphere as an added fragmentation
UNITED STATES V. FRIES 5
enhancement . . .” in violation of 26 U.S.C. §§ 5861(d) and
5871.
Count Four charged Fries with knowingly possessing
“fifteen . . . cylindrical type devices, sealed at both ends,
fused with common hobby fuse, and containing low-
explosive main charge” and “six . . . spherical devices, sealed,
fused with common hobby fuse, and containing low-
explosive main charge” with “copper plated metal balls for
use as an added fragmentation enhancement . . .” Counts
Three and Four also alleged that Fries failed to register the
devices in the National Firearms Registration and Transfer
Record as required by 26 U.S.C. § 5841.
Fries filed a motion to sever the chemical weapons and
false statement offenses from the offenses charging
possession of unregistered devices. The magistrate judge
considering the motion recommended severance of the counts
because the chemical weapons charge “involved the creation
of a chemical cloud using a combination of chlorcyanuric
acid and an unknown reactive chemical component,” whereas
the possession of destructive devices charges involved
“devices discovered at [Fries’] home in August 2011. These
devices [were] not created with chemicals. They [were]
mechanical in nature, made with fuses, metal bars and a low-
explosive main charge.” The magistrate judge observed that
“the chemical cloud and the explosive devices [were]
separated by twenty-one months of time. The chemical cloud
was allegedly created in May 2009 and the explosive devices
were discovered in August 2011. There is no allegation that
the explosive devices were made contemporaneously to the
chemical cloud.” The magistrate judge also noted that Fries
“allegedly had a target for the chemical cloud; the cloud was
created to seek revenge against a specific set of victims for a
6 UNITED STATES V. FRIES
specific reason . . . In contrast, the Government has not
alleged a victim nor a motive for the creation of the explosive
devices discovered in August 2011. . . .”
The district court adopted the magistrate judge’s
recommendation and granted severance of the destructive
devices counts because the charges were “not sufficiently of
similar character or connected to meet the requirements of
Rule 8(a) of the Federal Rules of Criminal Procedure. . . .”2
In a separate trial, Fries was convicted by a jury for his
use of chemical weapons and for making false statements to
the FBI. He was sentenced to concurrent sentences of 151
months’ imprisonment for the chemical weapons offense and
60 months’ imprisonment for the false statement offense. See
United States v. Fries, 781 F.3d 1137, 1140, 1146 (9th Cir.
2015).
After Fries was convicted by a jury on the severed
charges of possession of unregistered destructive devices, the
presentence report (PSR) was prepared. Fries’ base offense
level was calculated at 18 and his total offense level was 24.
A Criminal History Category of II was recommended based
on Fries’ prior convictions for making a false statement and
for use of a chemical weapon. The PSR recommended a
2
Rule 8(a) of the Federal Rules of Criminal Procedure provides:
The indictment or information may charge a defendant
in separate counts with 2 or more offenses if the
offenses charged – whether felonies or misdemeanors
or both – are of the same or similar character, or are
based on the same act or transaction, or are connected
with or constitute parts of a common scheme or plan.
UNITED STATES V. FRIES 7
guideline sentencing range of fifty-seven to seventy-one-
months’ imprisonment.
Fries objected to the criminal history calculation. The
district court rejected Fries’ argument that his prior
convictions should not be included in his criminal history,
and adopted the recommendations in the PSR. The district
court concluded that, because the prior convictions were
severed and based on totally separate incidents, the prior
convictions should be included in Fries’ criminal history.
The district court observed that there was no risk of double
punishment because it did not consider the prior convictions
as part of Fries’ relevant conduct in the subsequent case.
Ultimately, the district court adopted the recommended
guideline sentencing range of fifty-seven to seventy-one-
months’ imprisonment, and sentenced Fries to sixty months’
imprisonment, with twenty months running consecutively to
his prior sentence.
Fries filed a timely notice of appeal.
II. STANDARD OF REVIEW
“We review de novo the district court’s interpretation of
the Sentencing Guidelines, such as its inclusion of a prior
conviction in the calculation of the criminal history
score. . . .” United States v. Gonzalez, 739 F.3d 420, 422 n.1
(9th Cir. 2013) (citation omitted).
III. DISCUSSION
Fries contends that the district court erred in sentencing
him to sixty-months’ imprisonment based on a criminal
history category that reflected his prior convictions for use of
8 UNITED STATES V. FRIES
a chemical weapon and for making false statements, when
those charges had been severed from the charges of
possessing unregistered devices. Fries maintains that if the
prior counts had not been severed, United States Sentencing
Guidelines (U.S.S.G.) §§ 4A1.2 and 5G1.3 would not have
supported a higher sentence. Fries specifically argues that he
was punished for having prevailed on his severance motion.
We disagree, and conclude that the district court did not
err in including Fries’ prior convictions for the severed counts
in its computation of Fries’ criminal history score.
Pursuant to U.S.S.G. § 4A1.2(a)(1) (2013)3:
The term “prior sentence” means any sentence
previously imposed upon adjudication of
guilt, whether by guilty plea, trial, or plea of
nolo contendere, for conduct not part of the
instant offense.
Section 4A1.2(a)(2) (2013) delineates that:
If the defendant has multiple prior sentences,
determine whether those sentences are
counted separately or as a single sentence.
Prior sentences always are counted separately
if the sentences were imposed for offenses
that were separated by an intervening arrest
(i.e., the defendant is arrested for the first
offense prior to committing the second
offense). If there is no intervening arrest,
prior sentences are counted separately unless
3
The PSR utilized the 2013 version of the sentencing guidelines.
UNITED STATES V. FRIES 9
(A) the sentences resulted from offenses
contained in the same charging instrument; or
(B) the sentences were imposed on the same
day. Count any prior sentence covered by (A)
or (B) as a single sentence. . . . (citation
omitted).
The Application Note for Sentencing Guideline § 4A1.2
provides that:
“Prior sentence” means a sentence imposed
prior to sentencing on the instant offense,
other than a sentence for conduct that is part
of the instant offense. A sentence imposed
after the defendant’s commencement of the
instant offense, but prior to sentencing on the
instant offense, is a prior sentence if it was for
conduct other than conduct that was part of
the instant offense. Conduct that is part of the
instant offense means conduct that is relevant
conduct to the instant offense under the
provisions of §1Bl.3 (Relevant Conduct).
U.S.S.G. § 4A1.2 cmt. n.1 (citation omitted).
“[T]he purpose of § 4A1.2 is to reflect the seriousness of
a defendant’s criminal history, while, at the same time,
avoiding overstating the seriousness of the defendant’s
criminal conduct.” United States v. Cruz-Gramajo, 570 F.3d
1162, 1169–70 (9th Cir. 2009) (citation, alteration, and
internal quotation marks omitted). “The ultimate goal
remains finding a sentence that accurately reflects both the
seriousness of the underlying federal offense and the extent
and nature of the defendant’s criminal past.” Id. at 1170
10 UNITED STATES V. FRIES
(citation and internal quotation marks omitted). To ensure
that a defendant’s criminal history is not overstated or double
counted, § 4A1.2(a)(1) first limits conduct that can be
considered in the criminal history calculation to conduct that
is “not part of the instant offense.” Id. Second, § 4A1.2(a)(2)
requires treating prior sentences that are imposed in related
cases as a single sentence. See id. The application note
“clarifies that if the two prior sentences are not separated by
an intervening arrest, they are considered related if they
resulted from sentences that (A) occurred on the same
occasion, (B) were part of a single common scheme or plan,
or (C) were consolidated for trial or sentencing.” Id. (footnote
reference and internal quotation marks omitted). “Thus,
§ 4A1.2 limits the number of points that can be assigned in
criminal history by first ensuring that the prior sentence has
not actually been calculated as part of the instant offense, and
secondly, by ensuring that prior cases, related to each other,
do not count twice.” Id. (internal quotation marks omitted).
The district court’s inclusion of Fries’ convictions for use
of a chemical weapon and for making a false statement in the
calculation of Fries’ criminal history complied with U.S.S.G.
§ 4A1.2. As charged in the second superseding indictment,
the false statement and chemical weapon offenses occurred in
August, 2009, whereas the unlawful possession of
unregistered destructive devices occurred in May, 2011. It is
evident from the indictment and the record that Fries’
offenses were not related, as they occurred on separate
occasions, were not part of a common scheme, were not
consolidated, and the earlier offenses involved conduct that
was not “part of the instant offense.” U.S.S.G. § 4A1.2 &
cmt. n.1.
UNITED STATES V. FRIES 11
Relying on our decision in Gonzalez, Fries asserts that
offenses charged in the same indictment should not have been
utilized in calculating his criminal history score. In that case,
the defendant asserted that his prior sentences should have
been construed as a single sentence because “the two
sentencing hearings originally were scheduled for the same
day and would have taken place on the same day if not for the
fact that the proceedings were set at two different
courthouses. . . .” 739 F.3d at 422 (emphasis in the original).
Rejecting the defendant’s argument, we observed that the
prior convictions were properly incorporated into the criminal
history calculation because “the crimes took place two years
apart, the crimes were charged separately, and the two
sentences were imposed on different days.” Id.
Contrary to Fries’ assertions, neither Gonzalez nor
U.S.S.G. § 4A1.2(a)(2)(A) precludes inclusion of Fries’ prior
convictions for the severed offenses from the calculation of
his criminal history score. Fries’ strongest argument is that
the severed offenses were contained in the same charging
instrument as the remaining offenses. To be sure, in
Gonzalez we cited the fact that “[t]he two offenses were
charged in two separate instruments” in analyzing whether
the prior sentences should be counted separately. Gonzalez,
739 F.3d at 422. Nevertheless, U.S.S.G. § 4A1.2(a)(2)(A)
does not categorically preclude consideration of a prior
sentence in calculating a criminal history category for
offenses “contained in the same charging instrument.”
U.S.S.G. § 4A1.2(a)(2)(A). Rather, the guideline provides
that “multiple prior sentences” for offenses charged in the
same instrument are treated as a single sentence in certain
circumstances. U.S.S.G. § 4A1.2(a)(2) (emphasis added).
Notably, Fries’ sentence did not involve “multiple prior
sentences,” but rather a “prior sentence” that was “imposed
12 UNITED STATES V. FRIES
upon adjudication of guilt . . . by . . . trial . . . for conduct not
part of the instant offense.” U.S.S.G. § 4A1.2(a)(1); see also
Cruz-Gramajo, 570 F.3d at 1170 (articulating that U.S.S.G.
§ 4A1.2(a)(2) requires “prior sentences imposed in related
cases to be treated as one sentence”) (alteration and internal
quotation marks omitted) (emphasis added); see also
Gonzalez, 739 F.3d at 422 (referencing the “two prior
sentences”) (emphasis added).
The district court’s inclusion of Fries’ prior concurrent
prison terms for the severed counts comports with
§ 4A1.2(a)(1) because Fries’ use of a chemical weapon and
false statements to the FBI involved conduct that was not
relevant to Fries’ possession of unregistered destructive
devices. See Cruz-Gramajo, 570 F.3d at 1174 (explaining
that “[w]here there is no difficulty identifying severable
harms caused by multiple offenses, the goal of § 4A1.2 in
preventing overstating a defendant’s criminal history is not
offended”). Although Fries received separate sentences for
his chemical weapon and false statement convictions, they
were designated to run concurrently, thereby having the effect
of a single sentence. Indeed, they were treated as a single
sentence in the PSR, as only three criminal history points
were assessed for the separate sentences. See U.S.S.G.
§ 4A1.1 (providing that the district court may “[a]dd 3 points
for each prior sentence of imprisonment exceeding one year
and one month”). Additionally, the severed counts were
temporally distinct from the counts charging unlawful
possession of unregistered destructive devices. See Gonzalez,
739 F.3d at 422 (observing that two prior sentences were
correctly included in the defendant’s criminal history
calculation partly because “the crimes took place two years
apart”).
UNITED STATES V. FRIES 13
The district court, therefore, did not err in including Fries’
prior convictions related to the severed counts in calculating
Fries’ criminal history category under U.S.S.G.
§ 4A1.2(a)(1), and the court imposed a reasonable sentence
of sixty months’ imprisonment with twenty months running
consecutively to Fries’ prior sentence. See United States v.
Shouse, 755 F.3d 1104, 1108–09 (9th Cir. 2014) (upholding
a consecutive sentence); see also U.S.S.G. § 5G1.3(c). Fries
does not otherwise challenge the reasonableness of his
sentence.
Accordingly, Fries’ contention that he was punished for
successfully severing the unrelated counts is unpersuasive.
See United States v. Mack, 200 F.3d 653, 659 (9th Cir. 2000)
(concluding that “[n]othing in the record indicates that the
district court based the enhanced sentences on the defendants’
decision to exercise their constitutional right to go to trial”);
see also United States v. Evers, 669 F.3d 645, 661 (6th Cir.
2012) (holding that the district court’s proper application of
the sentencing guidelines did not punish the defendant “for
exercising his right to receive a full and fair trial”) (citation
and internal quotation marks omitted).
IV. CONCLUSION
The district court properly calculated Fries’ criminal
history category pursuant to U.S.S.G. § 4A1.2. Fries’ prior
concurrent sentences for use of a chemical weapon and
making false statements were prior sentences under U.S.S.G.
§ 4A1.2(a)(1) because they involved conduct that was
unrelated to Fries’ possession of unregistered destructive
devices. However, they did not constitute multiple sentences
under U.S.S.G. § 4A1.2(a)(2). The district court’s sentence
was reasonable, did not contravene the sentencing guidelines,
14 UNITED STATES V. FRIES
and did not punish Fries for successfully severing unrelated
counts.
AFFIRMED.