DocketNumber： 93-1109
Judges： Jones, Siler, Rubin
Filed Date： 4/14/1994
Status： Precedential
Modified Date： 11/4/2024
RUBIN, District Judge, delivered the opinion of the court, in which SILER, Circuit Judge, joined. JONES, Circuit Judge (pp. 719-21), delivered a separate dissenting opinion.
Defendant appeals from a conviction and sentence for willfully engaging in the busi
I.
Defendant was indicted by a federal grand jury on one count of engaging in the business of dealing in firearihs (Count 1); one count of knowingly possessing an unregistered sawed-off rifle in violation of 26 U.S.C. §§ 5841, 5861(d) and 5871 (Count 2); and one count of threatening a witness in violation of 18 U.S.C. § 1513 (Count 3). Defendant entered into a plea agreement whereby he agreed to plead guilty to Count 1 of the indictment in exchange for dismissal of the remaining two counts. The parties agreed that the sentence would not exceed the upper limit of the guidelines range found to be applicable by the court. The parties estimated that the guidelines range would be 33 to 41 months, assuming that the base offense level would be 18 after applying U.S.S.G. § 2K2.1(a)(7).
The probation officer recommended in his presentence investigation report that the base offense level should be 26. The officer calculated this offense level by beginning with level 18 under U.S.S.G. § 2K2.1(a)(5), which applies when the firearm involved is a sawed-off rifle, rather than with level 12 under § 2K2.1(a)(7). The officer added six levels because more than 50 firearms were involved and two levels for obstruction of justice based on defendant’s threats to witnesses. The resulting guidelines range was 63 to 78 months, which exceeded the five-year statutory maximum for the single count to which defendant had pled guilty.
The trial judge ordered the parties to submit memoranda addressing his concern that dismissal of the remaining two counts would not adequately reflect the seriousness of the actual offense behavior, and that accepting the agreement might undermine the statutory purposes of sentencing. Both defendant and the United States submitted memoranda in which they contended that the six-level enhancement under § 2K2.1(a)(5) should not be assessed against defendant because only firearms for sale should be considered as relevant conduct in determining the base offense level, and the sawed-off rifle was not intended to be sold. The court determined that the sawed-off rifle should be considered as relevant conduct and that the six-level enhancement under § 2K2.1(a)(5) was therefore appropriate.
At the sentencing hearing, defendant asked the court to accept the Rule 11 Agreement and to impose a sentence of 60 months, a three-month departure below the guidelines range found to be applicable by the court. Defendant reserved his right to contest the six points in issue. The court accepted the agreement and sentenced defendant to 60 months incarceration.
Defendant contends that the sentence should be set aside and his case remanded for resentencing under the appropriate guidelines range of 33 to 41 months. He claims that the offense to which he pled guilty did not involve the sale of the sawed-off rifle and that mere possession of the rifle cannot serve as the basis for the extra six point assessment. The United States asserts that defendant has admitted in his objections to the presentenee report that he retained the rifle for parts only, which demonstrates that defendant knowingly possessed the weapon and it was used in his firearms dealings: Thus, his possession of the rifle was part of the same course of conduct or common scheme or plan of illegal firearms dealings.
U.S.S.G. § lB1.3(a) (November 1991) provides that the base offense level shall be determined on the basis of:
(1) all acts and omissions committed ... by the defendant ... that occurred during the commission of the offense of conviction, and
(2) solely with respect to offenses of a character for which § 3D1.2(d) would require grouping of multiple counts, all such acts and omissions that were part of the same course of conduct or common scheme or plan as the offense of conviction.3
Application Note 1(1) to § 1B1.1 defines offense as “the offense of conviction and all relevant conduct under 1B1.3 ... unless a different meaning is specified or is otherwise clear from the context ...” Conduct which forms the basis for counts dismissed pursuant to a plea bargain may be considered in determining the base offense level under the guidelines. United States v. Smith, 887 F.2d 104, 106-107 (6th Cir.1989).
When a defendant has pled guilty to certain counts of an indictment in exchange for dismissal of other counts, the facts used for sentencing must have “some minimal indicium of reliability beyond mere allegation”. Id. at 108 (quoting United States v. Baylin, 696 F.2d 1030, 1040 (3d Cir.1982)); United States v. Gibson, 985 F.2d 860, 863 (6th Cir.), cert. denied, — U.S. -, 113 S.Ct. 2981, 125 L.Ed.2d 678 (1993) (quoting United States v. Robison, 904 F.2d 365, 371 (6th Cir.), cert. denied, 498 U.S. 946, 111 S.Ct. 360, 112 L.Ed.2d 323 (1990)). In addition, proof presented at sentencing hearings must be established by a preponderance of the evidence. Robison, 904 F.2d at 371 (citing United States v. Silverman, 889 F.2d 1531, 1535 (6th Cir.1989)); Gibson, 985 F.2d at 863.
The trial court’s determination that certain acts are part of a common scheme or plan is a factual determination that must be upheld on appeal unless the finding is clearly erroneous. See United States v. Miller, 910 F.2d 1321, 1327 (6th Cir.1990), cert. denied, 498 U.S. 1094, 111 S.Ct. 980, 112 L.Ed.2d 1065 (1991). Whether the facts found by the district court warrant the application of a particular guideline provision is a legal question and is to be reviewed de novo by the appellate court. United States v. Garner, 940 F.2d 172, 174 (6th Cir.1991) (citing United States v. Sanchez, 928 F.2d 1450, 1458 (6th Cir.1991)).
III.
The precise issue before the court is a novel one. However, the court has on several prior occasions addressed the issue of what constitutes “relevant conduct” in other contexts, particularly in cases involving drug distribution charges. The applicable law provides that in such cases,
[Quantities and types of drugs not specified in the count of conviction are to be included in determining the offense level if they were part of the same course of conduct or part of a common scheme or plan as the count of conviction.
U.S.S.G. § 1B1.3, comment, (backg’d.) When determining the base offense level in drug cases, all. drug quantities, including quantities charged in dismissed counts and uncharged quantities, that were part of the same course of conduct or common scheme are taken into account. Miller, 910 F.2d at 1327; Smith, 887 F.2d at 107. Thus, this court has upheld inclusion of drug amounts which a defendant admits to having sold pri- or to his arrest. Miller, 910 F.2d at 1327. The court has also upheld inclusion of all drugs found on premises used for drug distribution in the sentencing of a defendant who pled guilty to possession with intent to distribute, regardless of whether the defendant knew of the presence of all such drugs. United States v. Sailes, 872 F.2d 735 (6th Cir.1989). The. trial judge has the discretion to consider “any and all” evidence of the quantity of drug involved. United States v. Moreno, 899 F.2d 465, 474 (6th Cir.1990).
The law regarding firearms is also pertinent to this discussion. Defendant was convicted of a violation of 18 U.S.C. § 922(a)(1)(A), which provides in part:
It shall be unlawful ... for any person ... except a ... licensed dealer to engage in the business of ... dealing in firearms-
For a definition of “firearm,” under the National Firearms Act of 1968, it is necessary to refer to 26 U.S.C. § 5845(a). That section defines “firearm” as follows:
The term ‘firearm’ means ... (3) a rifle having a barrel or barrels of less than 16 inches in length; (4) a weapon made from a rifle if such weapon as modified has an overall length of less than 26 inches or a barrel or barrels of less than 16 inches in length_
Title 26 U.S.C. § 5845(h) defines “unserviceable firearm” as follows:
The term ‘unserviceable firearm’ means a firearm which is incapable of discharging a shot by means of an explosive and incapable of being readily restored to a firing condition. (Emphasis added).
V.
The court discerns no pertinent distinctions between the possession of illegal drugs and the possession of firearms for purposes of applying the sentencing guidelines. Although the type of contraband differs, the same rationale applies. See United States v. Dennis, 926 F.2d 768, 769 (8th Cir.1991). In drug cases, the guidelines are based largely on the quantity involved. The logic supporting sentence enhancement for relevant conduct in such cases is that although a defendant may possess few or no drugs at the time of his arrest, the defendant may have participated in a course of conduct involving large amounts of drugs. United States v. Kappes, 936 F.2d 227, 230 (6th Cir.1991). By taking into account the entire amount involved, the resulting sentence will more accurately reflect the seriousness of the offense and the extent of the defendant’s involvement in a course of criminal conduct.
Similarly, the guidelines applicable to firearms depend largely on quantity. As in drug cases, a defendant may possess few or no firearms at the time of his arrest, but may have been involved in dealing a large quantity of firearms. Accordingly, the same logic supporting sentence enhancement for relevant conduct in drug cases applies to firearms cases.
Further, the same rationale which supports including drugs found on the premises where drug transactions, have occurred as relevant conduct supports inclusion of firearms that a defendant possesses, but which he has not actually offered for sale, as relevant conduct to the crime of dealing in firearms. In interpreting section 1B1.3, Judge Kennedy has stated that it is immaterial whether the criminal activity included as relevant conduct is an inchoate crime that is not of the same character as a substantive possession offense, so long as the criminal activity is part of the same course of conduct as the crime of conviction. United States v. Davern, 970 F.2d 1490, 1494 (6th Cir.1992), cert. denied, — U.S. -, 113 S.Ct. 1289, 122 L.Ed.2d 681 (1993). Accordingly, the court in Davem found that a crime of attempt or conspiracy could be considered as' relevant conduct to a possession offense. Id. Similarly, possession of a firearm may be considered relevant conduct to the crime of dealing in firearms without a license, regardless of whether defendant actually attempted to sell the firearm.
Finally, the court notes that pursuant to the guidelines, possession of a firearm during the commission of a drug offense creates a presumption that the possession is connected with the drug offense. United States v. Chalkias, 971 F.2d 1206, 1216 (6th Cir.), cert. denied, — U.S. -, 113 S.Ct. 351, 121 L.Ed.2d 265 (1992) (citing Moreno, 899 F.2d at 470). The defendant may overcome this presumption only by showing that it is “clearly improbable that the firearm was connected to the drug offense.” Id. (quoting U.S.S.G. section 2D1.1, comment, (n. 3)). The probability of a connection between a firearm found in the location where illegal firearm dealings have occurred and the crime of firearm dealings is just as strong, and arguably stronger, than the probability of a
It does not necessarily follow that possession of a particular firearm must be included as relevant conduct whenever a defendant is convicted of dealing in firearms. There may be situations where the facts demonstrate that a defendant possessed a firearm for a legitimate purpose unconnected to any criminal activity, and that his possession of the firearm was therefore not part of the same course of conduct as the crime of conviction. However, where the facts support a contrary finding, it is appropriate that the firearm be taken into account in determining the base offense level.
VI.
The trial court found that the defendant did violate 18 U.S.C. § 922 and did possess a “firearm” listed under 26 U.S.C. § 5845(a). Neither decision is clearly erroneous. Thus, the sole issue before the court is whether the trial court’s determination that defendant’s possession of the rifle constitutes relevant conduct is clearly erroneous.
The trial judge made the following findings with regard to the sawed-off rifle:
One of the things that was found when the agents executed a search warrant was this sawed-off .22 caliber bolt action rifle under the counter, at the very location where a number of the transactions had been either consummated or at least talked about.
I recognize that the weapon did not have a bolt in it at the time it was found and I recognize also it is an old weapon which carries the name of J.C. Higgins, which the Court notes is a not terribly highly honored brand name which used to be marketed by Sears Roebuck, and I think that brand name was abandoned many years ago so the weapon is no doubt old. But in spite of that, in spite of the fact that it did not have a bolt, it is clear from subsequent investigation it was in operating condition, because it was test fired upon being examined, a bolt was readily available for it putting it right back in operating condition, and it worked. So it is not as though it was a pile of rubble. It was a properly functionable firearm.
The court concluded that possession of the sawed-off rifle was an act which occurred during the offense of conviction and that it was part of the offense, regardless of the fact that it was not for sale. The court found that although the weapon was not actively marketed by defendant during his discussion with DEA agents prior to his arrest, he possessed the weapon, and the offense of conviction was intertwined with the possession and sale of firearms. (Transcript of status conference, August 20, 1993).
The trial judge’s factual determination that possession of the sawed-off rifle constitutes relevant conduct is not clearly erroneous. Defendant need not have actually attempted to sell the sawed-off rifle to DEA agents, nor have kept the rifle in operating condition, in order for it to be considered part of his firearms dealings. It is sufficient that the rifle was in the location where defendant conducted some of his illegal firearms transactions and that it could easily be made operable. Under these circumstances, possession of the rifle, a crime with which defendant was charged and which is covered by the same guideline section as the offense of conviction, could clearly be found to be part of the same course of conduct as the crime of dealing in firearms. Thus, a preponderance of the evidence supports inclusion of the rifle in the determination of the base offense level.
VII.
The trial judge did not clearly err by finding that defendant’s possession of the sawed-off rifle was relevant conduct. Based on his finding, he correctly applied U.S.S.G. § 2K2.1(a)(5) in calculating the base offense level. For these reasons, defendant’s sentence is AFFIRMED.
. That provision pertains to dealing in firearms without a license.
. The United States has changed its position since submitting its memorandum on this issue to the trial judge. The United States stated in the memorandum that the rifle was missing a bolt at the time it was seized and did not appear to be held for sale; that only firearms that were held for sale should be included as "relevant condúct" in light of the offense of conviction (dealing in firearms); and that the rifle should therefore not be considered in calculating the base offense level.
. U.S.S.G. § 3D1.2(d) provides that counts shall be grouped together "... [when] the offense level is determined largely on the basis of the total amount of harm or loss, the quantity of a substance involved, or some other measure of aggregate harm, or if the offense behavior is ongoing or continuous in nature and the offense guideline is written to cover such behavior."