United States v. Henderson

NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
File Name: 05a0328n.06
Filed: April 28, 2005
No. 04-1344
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
UNITED STATES OF AMERICA, )
)
Plaintiff-Appellant ) ON APPEAL FROM THE
) UNITED STATES DISTRICT
v. ) COURT FOR THE EASTERN
) DISTRICT OF MICHIGAN
SHANTEL HENDERSON, )
)
Defendant-Appellee )
BEFORE: DAUGHTREY and CLAY, Circuit Judges, and GRAHAM,1 District
Judge.
GRAHAM, District Judge. Defendant-appellee Shantel Henderson
was indicted by a grand jury in the Eastern District of Michigan on
February 27, 2003. Defendant was charged in count one of the
indictment with illegally possessing firearms after having been
convicted of a felony in violation of 18 U.S.C. § 922(g). She was
charged in count two of the indictment with the offense of
possession of cocaine base with the intent to distribute it, and in
counts three and four with the offense of distribution of cocaine
base, all in violation of 21 U.S.C. § 841(a)(1). On July 14, 2003,
defendant entered guilty pleas to counts one and three of the
indictment pursuant to a written plea agreement.
In the presentence investigation report, the probation officer
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The Honorable James L. Graham, United States District Judge for the
Southern District of Ohio, sitting by designation.
calculated the applicable sentencing range under the Sentencing
Guidelines (“U.S.S.G.”). The probation officer first determined
the offense level applicable to the firearm offense by referring to
U.S.S.G. § 2K2.1. The probation officer employed a base offense
level of 20 under U.S.S.G. § 2K2.1(a)(4)(A) for the commission of
the offense following a felony conviction for a crime of violence.
The probation officer then applied a four-level enhancement under
U.S.S.G. § 2K2.1(b)(5) because defendant possessed the firearm in
connection with another felony offense–the drug offense in this
case–yielding an adjusted offense level of 24.
The probation officer then calculated the base offense level
for the drug offense. The probation officer arrived at a base
offense level of 26 under U.S.S.G. § 2D1.1(a)(3) based on a total
quantity of 11.43 grams of cocaine base considered as relevant
conduct. Under U.S.S.G. § 2D1.1(b)(1), two additional levels were
added for possession of a firearm during the offense, resulting in
an adjusted offense level of 28.
The probation officer then grouped the two counts pursuant to
U.S.S.G. § 3D1.2(c). Since the adjusted offense level for the drug
offense was higher than the adjusted offense level for the firearm
offense, the combined adjusted offense level for the two offenses
was determined to be 28, pursuant to U.S.S.G. § 3D1.3(a). The
probation officer then deducted three levels for acceptance of
responsibility pursuant to § 3E1.1, resulting in a total offense
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level of 25. With a Criminal History Category II, defendant’s
guideline imprisonment range was 63 to 78 months.
At a sentencing hearing held on December 11, 2003, the
district court determined that the proper offense level was 23.
The court concluded that the enhancement for possession of a
firearm during the drug offense would constitute impermissible
double counting since defendant was also charged with a firearm
count. The court also declined to add the four-level enhancement
applicable to the firearm count on the ground that adding an
enhancement for use of the firearm during a drug offense would
constitute double counting since defendant had also pleaded guilty
to the drug offense. The court adjourned the sentencing hearing to
permit the government to research the legal issues presented by the
court’s rulings. At the final sentencing hearing held on January
12, 2004, the court adhered to its previous rulings and concluded
that the appropriate total offense level was 23, Criminal History
Category II, resulting in a sentencing range of 51 to 63 months.
The government objected to the district court’s rulings. The court
sentenced the defendant to a term of imprisonment of 51 months.
The government then filed the instant appeal.
The government argues that the application of the enhancements
mandated by the Guidelines in this case does not constitute
impermissible double counting. The government relies on United
States v. Taylor, 248 F.3d 506 (6th Cir. 2001). In Taylor, the
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defendant was convicted for both being a felon in possession of a
firearm and various drug offenses. He argued that the application
of the two-level enhancement due to his possession of a weapon in
connection with a drug offense was double counting and violated the
principles of double jeopardy due to the fact that he was also
sentenced for being a felon in possession of the same weapon. Id.
at 516. Citing United States v. Gibbs, 190 F.3d 188, 215-16 (3d
Cir. 1999), this court concluded that the use of the enhancement
did not violate the defendant’s protection against double jeopardy
because the defendant’s possession of a weapon was the basis for
one offense and a mandatory ground for enhancement in a separate
offense with different requirements. Id. at 517. See also Witte
v. United States, 515 U.S. 389, 395 (1995)(use of relevant conduct
to increase the punishment of a charged offense does not punish the
offender for that relevant conduct). This court further noted that
since the drug and felon in possession offenses were grouped, so
that the felon in possession offense was effectively disregarded in
arriving at the offense level, the application of the enhancement
to the drug offense did not place the defendant in double jeopardy
or result in double counting. Id. The reasoning in Gibbs and
Taylor was subsequently adopted by the Eighth Circuit in United
States v. Pierce, 388 F.3d 1136, 1138-39 (8th Cir. 2004).
Defendant argues that her case is distinguishable from Taylor.
She contends that because her possession of a firearm during the
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drug offenses could be viewed as evidence supporting an intent to
distribute, it was an element of the drug offense. She argues that
the two offenses involved the same act or transaction and the same
harm, and that, therefore, the drug offense also embodied the
conduct treated separately as the firearm offense.
Defendant is incorrect in arguing that her possession of a
firearm may be viewed as an element of the drug offenses. The
essential elements required to prove the offense of distribution of
cocaine base are that the defendant: (1) knowingly and
intentionally distributed cocaine base, (2) on or about the date
alleged in the indictment, (3) knowing that the substance was
cocaine base. United States v. Gibbs, 182 F.3d 408, 433 (6th Cir.
1999). Similarly, the elements of the offense of possession with
the intent to distribute a controlled substance are that the
defendant: (1) knowingly possessed a controlled substance, (2) with
the intent to distribute it, (3) on or about the date alleged in
the indictment. United States v. Mackey, 265 F.3d 457, 460 (6th
Cir. 2001). In contrast, the elements of the offense of felon in
possession of a firearm are that the defendant: (1) possessed a
firearm, (2) on or about the date alleged in the indictment, (3)
having previously been convicted of a felony. United States v.
Harris, 293 F.3d 970, 975 (6th Cir. 2002).
As we held in Taylor, the drug charges and the felon in
possession of a firearm charge in this case are separate offenses
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with different requirements. Taylor, 248 F.3d at 517. The
mandatory use of the possession of a weapon under § 2D1.1(b)(1) as
relevant conduct to enhance the sentencing range for the drug
offense and the mandatory enhancement of the separate firearm
offense under § 2K2.1(b)(5) with the relevant conduct that the
firearm was possessed in connection with the drug offense did not
result in impermissible double counting or a violation of double
jeopardy principles. Id. Further, as in Taylor, the drug and
firearm offenses in this case were grouped in arriving at the
appropriate sentencing range under the Guidelines, and thus the
firearm charge, with its enhancement, was effectively disregarded
in arriving at the offense level. Id.
We conclude that Taylor controls, and that the district court
erred in failing to apply the sentencing enhancements specified in
§ 2D1.1(b)(1) and § 2K2.1(b)(5). Therefore, this case must be
remanded for resentencing. It should be noted that while this
appeal was pending, the United States Supreme Court rendered a
decision in United States v. Booker, 543 U.S. , 125 S. Ct. 738
(2005), holding that the Sentencing Guidelines are no longer
mandatory. However, since, under 18 U.S.C. §3553(a)(4)(A), the
sentencing range dictated by the Sentencing Guidelines is still a
factor which must be considered by the district court in imposing
sentence, the correct calculation of the sentencing range under the
Guidelines is still relevant to the court’s sentencing
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determination on remand.
Therefore, the defendant’s sentence is VACATED, and this
matter is REMANDED to the district court for resentencing in
accordance with the foregoing opinion and United States v. Booker.
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