United States v. Hatten

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 06-4240
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
CHARLES EDWARD HATTEN,
Defendant - Appellant.
Appeal from the United States District Court for the Southern
District of West Virginia, at Huntington. Robert C. Chambers,
District Judge. (3:02-cr-00232-02)
Submitted: May 21, 2007 Decided: July 5, 2007
Before WILKINSON, SHEDD, and DUNCAN, Circuit Judges.
Affirmed by unpublished per curiam opinion.
Travis R. Fitzwater, LAW OFFICE OF TRAVIS R. FITZWATER, Morgantown,
West Virginia, for Appellant. Charles T. Miller, United States
Attorney, Miller A. Bushong III, Assistant United States Attorney,
Beckley, West Virginia, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Charles Edward Hatten appeals the sentences imposed
following remand for resentencing. In our prior decision, we
affirmed Hatten’s convictions of conspiracy to manufacture and
distribute more than fifty grams of methamphetamine, in violation
of 21 U.S.C. § 846 (2000), and using, carrying, and discharging a
firearm in relation to a drug trafficking offence, thereby causing
death, in violation of 18 U.S.C.A. § 924(c)(1)(A)(iiii), (j)(1)
(West 2000 & Supp. 2007). We also vacated Hatten’s sentence and
remanded for resentencing in light of United States v. Hughes, 401
F.3d 540 (4th Cir. 2005).
On remand, treating the sentencing guidelines as advisory
only and considering the factors in 18 U.S.C.A. § 3553(a) (West
2000 & Supp. 2007), the district court applied the same guideline
calculations used in the first sentencing. Utilizing the first
degree murder cross-reference provision, Hatten’s base offense
level for the conspiracy offense was 43 because he shot and killed
a man during the course of the conspiracy. See U.S. Sentencing
Guidelines Manual §§ 2D1.1(d)(1), 2A1.1 (2002). The court applied
a two-level increase under USSG § 3B1.1(c) for Hatten’s role as a
leader and organizer, and a three-level reduction for acceptance of
responsibility under USSG § 3E1.1 for acceptance of responsibility,
resulting in a total offense level of 42. With criminal history
category II, Hatten’s guideline range for the § 846 conviction was
360 months to life imprisonment. Turning to the § 924(c), (j)
firearm conviction, the district court found that the murder cross-
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reference from USSG § 2K2.1(c)(1)(B) to USSG § 2A1.2, the second
degree murder provision, applied, establishing a base offense level
of 33. The court applied the three-level reduction for acceptance
of responsibility, and Hatten’s total offense level became 30.
With criminal history category II, Hatten’s guideline range for the
§ 924(c), (j) offense was 108 to 135 months in prison, with a
statutory mandatory minimum 120-month sentence to be served
consecutively to the conspiracy sentence. The district court
sentenced Hatten to a total of 520 months in prison: 400 months on
the conspiracy conviction and a consecutive 120 months on the
firearm conviction. Hatten timely appealed.
As he claimed in the district court, Hatten argues that
the cross-reference to the first degree murder guideline for his
conspiracy conviction was improper because the conduct to which he
pled guilty amounted to second degree murder, which he argued
called for a lower offense level. Under USSG § 2D1.1(d)(1), “[i]f
a victim was killed under circumstances that would constitute
murder under 18 U.S.C. § 1111 [2000] had such killing taken place
within the territorial or maritime jurisdiction of the United
States, apply § 2A1.1 (First Degree Murder).” Section 1111 defines
murder to include murder in both the first and second degree. The
commentary to § 2A1.1 also provides that this guideline section is
not limited to premeditated murder. USSG § 2A1.1, cmt. n.1.
Courts analyze the federal sentencing guidelines under
the rules that apply to statutory construction. United States v.
Mendez-Villa, 346 F.3d 568, 570 (5th Cir. 2003). “The language of
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the Sentencing Guidelines is to be given its plain and ordinary
meaning, unless to do so would produce an absurd result contrary to
the drafter’s manifest intent.” United States v. Zapata, 139 F.3d
1355, 1359 (11th Cir. 1998) (citation and internal quotation marks
omitted). Thus, courts begin with the plain meaning of the
guidelines. United States v. Hargrove, 478 F.3d 195, 206 (4th Cir.
2007) (applying plain meaning analysis to guideline
interpretation); United States v. Ivory, 475 F.3d 1232, 1234-35
(11th Cir. 2007) (same).
Here, § 2D1.1 expressly directs the application of the
§ 2A1.1 first degree murder provision if the killing “constitute[s]
murder,” without distinguishing between murder in the first and
second degree. We conclude that the plain meaning of § 2D1.1(d)(1)
indicates that the murder cross reference to § 2A1.1 applies if
there is any murder as defined by § 1111—not just murder in the
first degree. Accordingly, we find that the district court
properly applied the § 2D1.1(d)(1) cross-reference to § 2A1.1 in
Hatten’s case.
Hatten also challenges the district court’s finding that
he was subject to a two-level enhancement under USSG § 3B1.1(c) for
his role as a leader or organizer. A defendant qualifies for a
two-level role adjustment if he was a leader, organizer, manager,
or supervisor in any criminal activity that did not involve five or
more participants and was not otherwise extensive. United
States v. Sayles, 296 F.3d 219, 224 (4th Cir. 2002). For a role
adjustment to be given because a defendant was a leader, the
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defendant must have controlled others. United States v. Carter,
300 F.3d 415, 426 (4th Cir. 2002). A defendant is an organizer if
he coordinates others to promote the criminal activity. United
States v. Picanso, 333 F.3d 21, 23-24 (1st Cir. 2003). A defendant
who is deemed a manager or supervisor must have directed the
activities of others. United States v. Turner, 319 F.3d 716, 725
(5th Cir. 2003).
According to the testimony of three of Hatten’s co-
conspirators, they viewed Hatten as the leader of the conspiracy
and stated that he initiated it. Hatten developed the plan for
stealing the anhydrous ammonia used in cooking the methamphetamine
and directed others in gathering the basic ingredients. The co-
conspirators also testified that Hatten was the main cook of
methamphetamine. We find that under the facts of this case, the
district court did not clearly err in enhancing Hatten’s base
offense level by two levels under § 3B1.1(c).
Finally, Hatten challenges the district court’s decision
to impose consecutive rather than concurrent sentences for his
conspiracy and firearm convictions. Section 924(c) requires that
any sentence imposed for using, carrying, or possessing a firearm
during and in relation to a crime of violence or drug trafficking
offense must be “in addition to the punishment provided for such
crime.” 18 U.S.C.A. § 924(c)(1). Section 924(j) is the penalty
provision for individuals who aggravate their § 924(c) offense by
killing someone with a firearm in the course of committing a
§ 924(c) offense. Hatten contends that because § 924(j) is silent
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as to whether a sentence imposed under that provision should run
concurrently or consecutively the crime of violence or drug
trafficking offense, the district court should have directed the
sentences to run concurrently.
Viewed in the context of § 924(c), “[t]he plain meaning
of the words used in § 924(j) unequivocally provide that if the
evidence shows a violation of § 924(c) . . . , a district court
must impose a consecutive sentence over and above the punishment
prescribed for the violent crime.” United States v. Battle, 289
F.3d 661, 666 (10th Cir. 2002). Moreover, to adopt Hatten’s
argument would create the absurd result that a defendant who merely
violated § 924(c) by using or carrying a firearm during a crime of
violence or drug trafficking offense could face a longer punishment
by virtue of having his sentences run consecutively as directed by
§ 924(c), than a defendant who commits murder in the course of a
§ 924(c) offense because, under Hatten’s interpretation of
§ 924(j), that individual’s sentences could run concurrently.
United States v. Allen, 247 F.3d 741, 769 (8th Cir. 2001), vacated
on other grounds, 536 U.S. 953 (2002).
Accordingly, we affirm Hatten’s sentences. We dispense
with oral argument because the facts and legal contentions are
adequately presented in the materials before the Court and argument
would not aid the decisional process.
AFFIRMED
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