United States v. Fogle

Opinions of the United
2009 Decisions States Court of Appeals
for the Third Circuit
6-11-2009
USA v. Fogle
Precedential or Non-Precedential: Non-Precedential
Docket No. 08-1737
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NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
No. 08-1737
UNITED STATES OF AMERICA
v.
AARON FOGLE,
Appellant
On Appeal from United States District Court
for the District of New Jersey
(D.C. No.: 3-06-cr-00501-001)
District Judge: Honorable Mary L. Cooper
Submitted Under Third Circuit LAR 34.1(a)
January 6, 2009
Before: CHAGARES, HARDIMAN, Circuit Judges and GARBIS,* District Judge.
(Filed: June 11, 2009)
OPINION OF THE COURT
* The Honorable Marvin J. Garbis, Senior District Judge for the United States
District Court for the District of Maryland, sitting by designation.
1
GARBIS, District Judge.
Appellant, Aaron Fogle (“Fogle”), convicted on a plea of guilty to a violation of 18
U.S.C. § 922(g)(1) [felon in possession of a firearm], appeals from a sentence of 41
months of incarceration, imposed by District Judge, Mary L. Cooper of the District of
New Jersey.
For the reasons set forth here, we affirm the sentence.
I.
Because we write exclusively for the parties, we will recount only those facts
essential to our decision.
On November 5, 2005, Fogle, then a convicted felon,1 was involved in an
altercation with two women and a man inside a bar. Fogle left the bar, waited in his car
(a green Ford Expedition) and observed one of the women involved in the altercation
(referred to as “N.R.”) leave the premises and enter her car. Fogle then approached
N.R.’s vehicle, tapped on the window, brandished a loaded handgun, and made a
statement, discussed herein, to the effect that the only reason he did not shoot N.R. was
because she had nothing to do with the altercation. Fogle then returned to his car and
waited. N.R. called 911 and reported that a male inside a green Ford Expedition had
pulled a gun. She also called the bar to inform the others of what had happened.
1
In 1996, Fogle had been convicted of robbery, theft, and use of an imitation
weapon for unlawful purposes, all crimes punishable by more than a year of
imprisonment. He received an 8 year sentence.
2
The police arrived promptly and, upon their arrival, the bar owner pointed out
Fogle’s car. Fogle drove away but was stopped shortly thereafter. He was found to have
a loaded handgun (later determined to be operable) and admitted that the weapon
belonged to him.
Fogle was charged with violating 18 U.S.C. § 922(g)(1). After Fogle’s motion to
suppress evidence was denied, he pleaded guilty.
At sentencing, the District Court found Fogle’s Sentencing Guideline Offense
Level to be 22, determined as follows:
Base Offense Level – USSG2 § 2K2.1(a)(4) 20
Enhancement for use of a firearm in connection
with another felony – USSG § 2K2.1(b)(6)3 +4
Acceptance of responsibility – USSG § 3E1.1(a) -2
____
Total Offense Level 22
The District Court found Fogle to have five Criminal History Category points,
resulting in a Criminal History Category III classification. However, the District Court
granted Fogle’s motion for a downward departure to Criminal History Category II,
pursuant to USSG § 4A1.3(b)(1), based on her finding that Category III overstated the
seriousness of his criminal history.
2
U.S. Sentencing Guidelines Manual.
3
In the November 2007 Guidelines Manual, this provision was renumbered from
' 2K2.1(b)(5) to '2 K2.1(b)(6) but not otherwise changed. In the instant opinion, the
Court will refer to the provision as ' 2K2.1(b)(6).
3
Accordingly, Fogle’s Sentencing Guideline range after the departure was 46 to 57
months, for Offense Level 22, Criminal History Category II.
However, the District Court granted Fogle’s request for a downward variance and
imposed a sentence of 41 months of incarceration, five months below the low end of
Fogle’s Guideline range.
On appeal, Fogle contends that the District Court erred by applying the USSG §
2K2.1(b)(6) enhancement and that the Judge, while granting a downward variance as
requested, did not vary downward enough.
II.
The Sentencing Guidelines provide, with respect to a defendant convicted of
certain crimes involving firearms or ammunition, including Fogle’s crime of conviction:
If the Defendant used or possessed any firearm . . . in connection
with another felony offense . . . increase [the Base Offense
Level] by 4 levels.
USSG ' 2K2.1(b)(6).
The Application Notes state that the enhancement applies “if the firearm . . .
facilitated . . . another felony offense.” USSG § 2K2.1 cmt. 14(A) (2007). The term
“another felony” means “any Federal, state, or local offense, other than the . . . [crime of
conviction in the case] . . . punishable by imprisonment for a term exceeding one year,
regardless of whether a criminal charge was brought, or a conviction obtained.” Id. at
cmt. 14(C) (2007).
4
The District Court found that by his actions vis-à-vis N.R., Fogle had violated a
New Jersey statute providing:
Any person who has in his possession any firearm with a
purpose to use it unlawfully against the person or property of
another is guilty of a crime of the second degree.
N.J. Stat. Ann. § 2C:39-4(a) (2005)(“the New Jersey Statute”).
A defendant violates the New Jersey Statute if (1) the object possessed was a
firearm; (2) the defendant possessed the firearm; (3) the defendant’s purpose in
possessing the firearm was to use it against the person or property of another; and (4) the
defendant intended to use the firearm in a manner that was unlawful. New Jersey v. Diaz,
677 A.2d 1120, 1123 (N.J. 1996).
Fogle, acknowledging that he possessed a firearm, contends that he did not have a
purpose to use it unlawfully against the person or property of another.
At the sentencing hearing, defense counsel stated that “what is alleged is that a
statement is made by Mr. Fogle when he supposedly is carrying a weapon saying the only
reason I don’t pop one off at you is because I don’t think you had anything to do with it.
You are quite cute but [the other women] and her boyfriend, and then he walks away.”4
App. 401. Fogle contended that since he expressly stated that he was not going to shoot
N.R., he could not be held to have possessed the firearm with a purpose to use it
4
Fogel states in his brief, “According to ¶ 15 of the Presentence Report, [while
tapping on he window of N.R.’s car] Fogle told [N.R.] that she was ‘quite cute, but [the
other woman] and her boyfriend (the defendant did not complete this statement as he
walked away).’” App. Br. 17.
5
unlawfully against another person. The district judge disagreed, stating:
[T]he firearm actually is possessed here, with a purpose to use
it unlawfully against the person of another, [and] it is actually
used in this case. So it goes beyond the mere possession with
intent to use it unlawfully against -- [the purpose] is
demonstrated by use, namely brandishing it. Which takes it
beyond mere possession.
App. 411-12.
The district court properly found that Fogle used the firearm by brandishing it and,
therefore, properly held that Fogle possessed the firearm with a purpose to use it
unlawfully against the person of another. Thus, Fogle violated the New Jersey Statute.
Fogle, alternatively, argues that even if he violated the New Jersey Statute, the
violation cannot be considered a predicate offence under USSG § 2K2.1(b)(6) because it
is not distinct from the underlying federal offense [violation of 18 U.S.C. § 922(g)(1)].
See United States v. Fenton, 309 F.3d 825, 826 (3d Cir. 2002) (“[A] state law crime,
identical and coterminous with the federal crime, cannot be considered as ‘another felony
offense’ within the meaning of the Sentencing Guidelines.”).
In United States v. Navarro, this Court stated:
[A] two-part standard may be distilled for determining whether
an offense committed in connection with possession of a firearm
may support an enhancement under [section 2K2.1(b)(6)]. The
first part of the test . . . is legal in nature and asks whether the
predicate offense and the firearms possession crime each have
an element that is not shared by the other. The second part of
the test . . . is essentially factual in nature and asks whether more
than mere possession of the firearm - brandishment or other use
- was an integral aspect of the predicate offense. If these two
questions are answered in the affirmative, then the four-level
6
enhancement under [section 2K2.1(b)(6)] should apply.
476 F.3d 188, 196 (3d Cir. 2007), cert. denied, 128 S. Ct. 1065 (2008) (footnote and
citations omitted).
The statute of conviction, 18 U.S.C. § 922(g)(1), and the New Jersey Statute
contain different elements. Section 922(g)(1) is violated if a person who is a convicted
felon merely possesses a firearm. In contrast, the New Jersey Statute is violated if any
person possesses a firearm with a purpose to use it unlawfully. Accordingly, the statutes
are distinct and pass the first part of the Navarro test. See United States v. Lloyd, 361
F.3d 197, 204-05 (3d Cir. 2004).
As to the second part of the Navarro test, the District Court reasonably concluded
that the use of the firearm was an integral aspect of the violation of the New Jersey
Statute. The evidence was sufficient to support the finding that brandishing the firearm
was a significant aspect of Fogle’s intimidating N.R., and putting her reasonably in fear
that Fogle might fire the gun or otherwise cause serious injury.
Accordingly, the District Court properly applied the four level Offense Level
enhancement provided by USSG § 2K2.1(b)(6).
III.
The District Court determined that Fogle’s Guideline Sentence range was 46 to 57
months, the range for Offense Level 22, Criminal History Category II.5 The District
5
After downward departure from III.
7
Court granted Fogle’s request for a downward variance from the Guideline range in
consideration of the 18 U.S.C. § 3553(a) factors.
The District Judge stated that she recognized that Fogle’s offense warranted a
severe sentence because he unlawfully possessed a gun and brandished it in threatening
circumstances in the middle of the night outside of a bar with people around.
Nevertheless, the District Judge stated that “a slight variance below the Guideline range is
appropriate here for a combination of reasons.” App. 448. These reasons included
Fogle’s long period of military service, long history of gainful employment, and the way
in which he accepted responsibility in the case. Thus, the District Judge exercised her
discretion under 18 U.S.C. § 3553(a) to reduce the Guideline range by one level (resulting
in a range of 41 to 51 months) and sentenced Fogle at the low end of that range.
This Court reviews the sentence imposed by the District Court for
unreasonableness, and will not reverse absent an abuse of discretion. United States v.
King, 454 F.3d 187, 194 (3d Cir. 2006). Fogle has the burden of demonstrating
unreasonableness but provides no more than his view that the District Court should have
weighed the stated mitigating factors more heavily and should have varied downward to a
greater extent. The District Court’s decision must be accorded great deference where the
sentence is premised upon appropriate and judicious consideration of the relevant factors.
United States v. Lessner, 498 F.3d 185, 204 (3rd Cir. 2007). “The decision by the
[District Court], . . . not to give [the] mitigating factors the weight that [Fogle] contends
they deserve does not render h[is] sentence unreasonable.” Id.8
This Court holds that the District Court’s exercise of discretion with regard to the
extent of the variance granted, was reasonable. There was no abuse of discretion in the
District Court’s imposition of a 41 month variant sentence.
For the foregoing reasons, we affirm the District Court’s 41 month sentence.
9