United States v. Steven Vargem

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 12-10628
Plaintiff-Appellee,
D.C. No.
v. 5:10-cr-00729-
EJD-1
STEVEN LEE VARGEM,
Defendant-Appellant.
OPINION
Appeal from the United States District Court
for the Northen District of California
Edward J. Davila, Presiding
Argued and Submitted
February 11, 2014—San Francisco, California
Filed March 28, 2014
Before: Stephen Reinhardt and Sidney R. Thomas, Circuit
Judges, and William K. Sessions, District Judge.*
Opinion by Judge Sessions
*
The Honorable William K. Sessions III, District Judge for the U.S.
District Court for the District of Vermont, sitting by designation.
2 UNITED STATES V. VARGEM
SUMMARY**
Criminal Law
The panel affirmed the district court’s imposition of a
fine, vacated a sentence, and remanded for resentencing in a
case in which the defendant was convicted of possessing an
unregistered machine gun.
The panel held that, as the government concedes, the
district court erred in applying a base offense level of 20
pursuant to U.S.S.G. § 2K2.1(a)(4) for possession of a
machine gun by a prohibited person under 18 U.S.C.
§ 922(g)(8), where the emergency protective order that
prohibited the defendant from possessing a firearm was
issued without either notice or a hearing. The panel held that
application of § 2K2.1(a)(4) constituted plain error requiring
resentencing because there is a reasonable probability that the
district court would have imposed a different sentence had it
started with the correct Sentencing Guidelines range.
The panel held that the district court also committed plain
error requiring resentencing by applying a six-level
enhancement pursuant to U.S.S.G. § 2K2.1(b)(1)(C) for an
offense involving 25 to 99 firearms, where the defendant’s
possession of 27 of the 28 firearms was not “relevant
conduct” in relation to the defendant’s offense of conviction.
The panel affirmed the district court’s imposition of a
fine.
**
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. VARGEM 3
COUNSEL
Steven G. Kalar, Federal Public Defender, Candis Mitchell
(argued), Assistant Federal Public Defender, and Steven J.
Koeninger, Research and Writing Attorney, San Francisco,
California, for Defendant-Appellant.
Melinda Haag, United States Attorney, Barbara J. Valliere,
Chief, Appellate Division, and Owen P. Martikan (argued),
Assistant United States Attorney, San Francisco, California,
for Plaintiff-Appellee.
OPINION
SESSIONS, District Judge:
Steven Lee Vargem was convicted of possessing an
unregistered machine gun and sentenced to 30 months in
prison.1 On appeal, the government concedes that the district
court miscalculated Vargem’s base offense level under the
United States Sentencing Guidelines (“Guidelines”). We
hold that the district court also erred in applying a six-level
enhancement on the basis of other weapons found at
Vargem’s home. We therefore vacate and remand for
resentencing.
1
Vargem appealed both his conviction and sentence. In a separate
unpublished memorandum disposition filed concurrently with this opinion,
we affirm the conviction.
4 UNITED STATES V. VARGEM
BACKGROUND
On June 19, 2010, San Jose police responded to a
domestic assault call at the Vargem residence. When the
officers arrived, Vargem’s wife Lynda reported that her
husband had physically assaulted her. Vargem was no longer
at the house. The police subsequently contacted a Santa
Clara County judicial officer and obtained an emergency
protective order (“EPRO”) on Lynda’s behalf. The EPRO,
valid through June 25, 2010, stated that Vargem must not
“contact, molest, harass, attack, strike, [or] threaten” his wife,
and ordered him to stay at least 300 yards away from his
residence. The EPRO further stated that persons subject to a
restraining order are prohibited from owning, possessing,
purchasing, receiving, or attempting to purchase or receive a
firearm.
San Jose police officer Duane Tuell was assigned to
investigate the incident. Officer Tuell reviewed a law
enforcement database and discovered that Vargem had twelve
firearms registered in his name. On June 24, 2010, Officer
Tuell contacted Lynda about the firearms, and learned that
they were in safes to which she did not have access. Lynda
also told Officer Tuell that she had seen her husband put a
pistol into a gun safe approximately two months prior to the
assault. In a subsequent conversation that same day, Lynda
described for Officer Tuell the vehicles to which her husband
might have access, including a white van registered to his
business.
Officer Tuell then telephoned Vargem to ask about the
firearms. He identified himself as a police officer, and told
Vargem that pursuant to the EPRO all firearms must be
surrendered. Vargem acknowledged that he was aware of the
UNITED STATES V. VARGEM 5
EPRO, and stated that he did not know what weapons were in
the house. When Officer Tuell asked for consent to search
three safes in the house, Vargem replied that he wished to
discuss the request with his lawyer. Officer Tuell informed
Vargem that absent consent he would obtain a search warrant,
at which point Vargem asked if he could call right back.
Officer Tuell agreed, but Vargem did not call back.
After not hearing from Vargem, Officer Tuell sent a
patrol unit to the Vargem residence. When the officers
arrived, they saw a white van registered to Vargem parked in
the driveway, and Vargem loading unknown items into the
van. They waited for him to drive away from the residence
and conducted a vehicle stop a few blocks away. The officers
arrested Vargem for violating the EPRO, searched the van,
and discovered an unloaded pistol.
Officer Tuell then obtained a warrant to search the home.
The search revealed 28 firearms.2 One of the firearms was an
unregistered machine gun. Vargem later admitted that he
owned the gun, and that he had converted it from a semi-
automatic pistol to a machine gun. He was ultimately
indicted for unlawful possession of a machine gun in
violation of 18 U.S.C. §§ 922(o) and 924(a)(2), and unlawful
possession of an unregistered firearm in violation of
26 U.S.C. §§ 5841, 5861(d), and 5871. Both counts were
predicated upon the same weapon, and no charges were
brought with respect to any of the remaining guns.
2
This figure includes the gun found in the van, as it was listed on the
search warrant return. Because the parties consistently refer to each of the
28 firearms as having been found at the home, and since the distinction
between the van and the house is of no import to our analysis, the Court
will do the same.
6 UNITED STATES V. VARGEM
Vargem waived his right to a jury trial and agreed to a
stipulated-testimony bench trial. The district court convicted
him of the two charged counts. At sentencing, and based
upon the recommendations set forth in the Pre-Sentence
Investigation Report (“PSR”), the court found a base offense
level of 20 for possession of a machine gun by a prohibited
person. U.S.S.G. § 2D2.1(a)(4)(B). The court also applied
a six-level enhancement for multiple firearms, based upon
the 28 firearms found in Vargem’s home, under
§ 2K2.1(b)(1)(C). With a criminal history category II, the
resulting Guideline range was 70 to 87 months. Defense
counsel argued for a 21-month sentence, the government for
77 months. The court considered sentencing factors under
18 U.S.C. § 3553 and imposed a 30-month sentence.
According to Vargem’s current counsel, Vargem’s projected
release date is August 12, 2014.
DISCUSSION
I. The District Court’s Calculation of Vargem’s Base
Offense Level Constituted Plain Error
The district court applied a base offense level of 20
pursuant to U.S.S.G. § 2K2.1(a)(4). Because Vargem did not
contest his base offense level at sentencing, the Court reviews
the district court’s determination for plain error. See United
States v. Guzman–Mata, 579 F.3d 1065, 1068 (9th Cir. 2009).
Section 2K2.1(a)(4)(B) pertains, in relevant part, to
persons convicted of possessing a machine gun or other
firearm who were also prohibited persons under 18 U.S.C.
UNITED STATES V. VARGEM 7
§ 922(g)(8).3 See U.S.S.G. § 2K2.1, Application Note 3.
Section 922(g)(8)(A) covers persons subject to restraining
orders, but only when such orders were issued after notice
and a hearing. See 18 U.S.C. § 922(g)(8)(A). Here, it is
undisputed that the EPRO was issued without either notice or
a hearing. Accordingly, the government properly concedes
that Section 922(g)(8) did not apply, that Vargem was not a
prohibited person under § 2K2.1, and the base offense level
should have been 18 pursuant to § 2K2.1(a)(5).
The government does not concede, however, that
resentencing is required. Because Vargem received a
sentence well below his calculated Guidelines range, the
government contends that a two-point correction in the base
offense level would not affect his substantial rights. Under
the plain error standard, relief is warranted where the district
court committed (1) error that (2) is plain; (3) “affected
substantial rights;” and (4) “seriously affected the fairness,
integrity, or public reputation of judicial proceedings.”
United States v. Teague, 722 F.3d 1187, 1190 (9th Cir. 2013).
The government concedes only the first two elements.
To show an error affecting substantial rights, Vargem
must “demonstrate ‘a reasonable probability that [he] would
have received a different sentence’ if the district court had
not erred.” United States v. Tapia, 665 F.3d 1059, 1061
(9th Cir. 2011) (quoting United States v. Waknine, 543 F.3d
3The Guidelines state that “[t]he court shall use the Guidelines Manual
in effect on the date that the defendant is sentenced,” § 1B1.11(a), unless
use of that Manual “would violate the ex post facto clause of the United
States Constitution,” § 1B1.11(b)(1). Because there is no ex post facto
issue in this case, we use the 2012 edition of the Guidelines Manual,
which was in effect on December 3, 2012, at the time of Vargem’s
sentencing.
8 UNITED STATES V. VARGEM
546, 554 (9th Cir. 2008)). “A ‘reasonable probability’ is,
of course, less than a certainty, or even a likelihood.” Id.
(citing United States v. Dominguez Benitez, 542 U.S. 74, 86
(2004) (Scalia, J., concurring in the judgment) (observing that
the “reasonable probability” standard is more “defendant-
friendly” than the “more likely than not” standard)). Further,
the plain error standard does not require “direct evidence of
what sentence would have been imposed if not for the district
court’s error.” Id.Here, the district court calculated a Guidelines range of
70 to 87 months. A two-level reduction would have rendered
a range of 57 to 71 months. The district court imposed a
sentence below the latter range, but higher than the prison
term sought by defense counsel. In the course of the
sentencing hearing, the district court considered a host of
factors pursuant to 18 U.S.C. § 3553(a), including Vargem’s
limited criminal history, his success as a businessman, and his
role as a provider for his family. The court restated the
incorrect Guidelines range immediately prior to announcing
Vargem’s sentence, and declared that it would impose a
discretionary downward variance.
At any sentencing, “the Guidelines are the starting point
and the initial benchmark, and are to be kept in mind
throughout the process.” United States v. Carty, 520 F.3d
984, 991 (9th Cir. 2008) (internal citations and quotation
marks omitted). Accordingly, the district court’s “failure
accurately to state the [correct] Guidelines range” in this case
“derailed the sentencing proceeding before it even began.”
United States v. Doe, 705 F.3d 1134, 1154 (9th Cir. 2013).
The Supreme Court has held that “improperly calculating[]
the Guidelines range” constitutes a “significant procedural
error,” Gall v. United States, 552 U.S. 38, 51 (2007), and this
UNITED STATES V. VARGEM 9
Court has similarly concluded that “[a] mistake in calculating
the recommended Guidelines sentencing range is a significant
procedural error that requires us to remand for resentencing.”
United States v. Munoz–Camarena, 631 F.3d 1028, 1030 (9th
Cir. 2011).
While in Vargem’s case it is “difficult to discern the
district court’s intentions,” we find that a proper Guidelines
calculation “could easily have . . . led the district court to
impose” a lesser sentence. United States v. Hammons,
558 F.3d 1100, 1106 (9th Cir. 2009). The district court noted
Vargem’s life accomplishments as well as his failures, and
chose to depart significantly from the erroneously-calculated
range. Had the district court started with the correct
Guidelines range, there is a reasonable probability that it
would have imposed a different sentence. See, e.g., United
States v. Bonilla-Guizar, 729 F.3d 1179, 1188–89 (9th Cir.
2013) (holding that a two-level error in the base offense level
calculation was plain error even though the defendant’s
“sentence chanced to fall within the proper sentencing
range”); Hammons, 558 F.3d at 1106 (finding plain error
where the district court’s application of an incorrect Criminal
History Category may have led to “an additional one month
of imprisonment”).
“We have held that when a sentencing judge incorrectly
calculates the Guidelines range, potentially resulting in the
imposition of a greater sentence, the error affects the
defendant’s substantial rights and ‘the fairness of the judicial
proceedings.’ As this is precisely what happened in this case,
the third and fourth prongs of the plain-error test are
satisfied.” Bonilla-Guizar, 729 F.3d at 1188 (quoting United
States v. Castillo–Marin, 684 F.3d 914, 927 (9th Cir. 2012)).
Indeed, this Court has “regularly deemed the fourth prong of
10 UNITED STATES V. VARGEM
the plain error standard to have been satisfied where, as here,
the sentencing court committed a legal error that may have
increased the length of a defendant’s sentence.” Tapia,
665 F.3d at 1063 (listing cases).
It is easy to see why prejudicial sentencing
errors [satisfy the fourth element]: such errors
impose a longer sentence than might have
been imposed had the court not plainly erred.
Defendants . . . may be kept in jail for a
number of years on account of a plain error
by a court, rather than because their
wrongful conduct warranted that period of
incarceration. Moreover, there is little reason
not to correct plain sentencing errors when
doing so is so simple a task. . . . Reversing a
sentence does not require that a defendant be
released or retried, but simply allows a district
court to exercise properly its authority to
impose a legally appropriate sentence.
Id. (quoting United States v. Castillo-Casiano, 198 F.3d 787,
792 (9th Cir. 1999)). Accordingly, we find that the district
court committed plain error in its miscalculation of Vargem’s
base offense level.4
4
Our conclusion is bolstered by the additional error, discussed below,
with respect to the multiple-gun enhancement under U.S.S.G.
§ 2K2.1(b)(1). See Doe, 705 F.3d at 1156 (holding “that the cumulative
effect of” procedural violations amounted to plain error).
UNITED STATES V. VARGEM 11
II. The District Court’s Application of a Six-Level
Enhancement for Ownership of Additional Firearms
Constituted Plain Error
The district court also applied a six-level, multiple-gun
enhancement under U.S.S.G. § 2K2.1(b)(1) based upon the 28
firearms. That enhancement was predicated upon the PSR’s
conclusions that the guns were seized “[d]uring the course of
the offense,” and that Vargem “was prohibited from
possessing any firearm.” The PSR, and subsequently the
district court, did not explicitly consider whether each of the
weapons constituted “relevant conduct” under the Guidelines.
See United States v. Santoro, 159 F.3d 318, 321 (7th Cir.
1998) (noting that “[w]hen a court determines the number of
firearms involved in an offense under U.S.S.G. § 2K2.1(b)(1),
it looks to the relevant conduct section of the guidelines
. . . .”). Because we conclude that possession of the
remaining firearms was not “relevant conduct” in relation to
Vargem’s offense of conviction—ownership of an
unregistered machine gun—we find that the six-level
enhancement was erroneous.
A. Sentencing Proceedings and Standard of Review
The Probation Officer’s analysis with respect to the
multiple-gun enhancement was as follows:
Specific Offense Characteristics: According
to USSG §2K2.1(b)(1)(C), if the offense
involved 25 to 99 firearms, increase by 6-
levels. During the course of the offense, law
enforcement seized 28 firearms from the
defendant’s residence. The defendant was
12 UNITED STATES V. VARGEM
prohibited from possessing any firearm.
Therefore, a 6-level increase is warranted.
Defense counsel’s sentencing memorandum did not contest
the six-level enhancement. Counsel did argue, however, that
the court should consider Vargem’s otherwise-lawful
possession of firearms as favoring a downward departure
under 18 U.S.C. § 3553(a)(1).5
At the sentencing hearing, defense counsel again objected
to a full six-level enhancement, urging the district court to
consider mitigating factors such as: Vargem’s lawful
purchases of the firearms in question; that the firearms had
never been used for any purpose other than collection; that
many of the firearms were still in their original packaging;
and that the firearms were secured in safes. The district court
overruled defense counsel’s objection. Since defense counsel
did not directly contest the applicability of the six-level
enhancement, and instead argued for a departure under
18 U.S.C. § 3553(a)(1), we again review for plain error. See
Guzman–Mata, 579 F.3d at 1068.
B. Relevant Conduct
Our analysis begins with the multiple-gun enhancement
provision itself. Guideline § 2K2.1(b), entitled “Specific
Offense Characteristics,” provides for offense level increases
under certain circumstances, including “[i]f the offense
involved three or more firearms.” U.S.S.G. § 2K2.1(b)(1).
When “the offense” involved between three and seven
5
Section 3553(a)(1) allows the sentencing court to consider “the nature
and circumstances of the offense and the history and characteristics of the
defendant.” 18 U.S.C. § 3553(a)(1).
UNITED STATES V. VARGEM 13
firearms, a two-level increase is warranted. Id.§ 2K2.1(b)(1)(A). For an “offense” involving between eight
and 24 firearms, the Guidelines call for a four-level increase.
Id. § 2K2.1(b)(1)(B). In this case, the district court adopted
the PSR’s recommendation of a six-level increase under
§ 2K2.1(b)(1)(C), which applies to “offenses” involving
between 25 and 99 firearms.
The Guidelines define “offense” as “the offense of
conviction and all relevant conduct under § 1B1.3.” Id.
§ 1B1.1, Application Note 1(H). Relevant conduct includes
“all acts and omissions committed, aided, abetted, counseled,
commanded, induced, procured, or willfully caused by the
defendant . . . that occurred during the commission of the
offense of conviction, in preparation for that offense, or in the
course of attempting to avoid detection or responsibility for
that offense.” Id. § 1B1.3(a)(1). Relevant conduct may also
include uncharged offenses that would be grouped under
§ 3D1.2(d), and that were “part of the same course of conduct
or common scheme or plan as the offense of conviction.” Id.
§ 1B1.3(a)(2). Grouping occurs under § 3D1.2(d) “[w]hen
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 . . . .” Id.
§ 3D1.2(d).
Echoing the language of § 1B1.3(a)(2), the government
asserts that all 28 weapons were part of a common scheme or
plan and the same course of conduct. Specifically, the
government submits that when Officer Tuell asked to access
Vargem’s firearms, Vargem lied in an effort to conceal his
collection, and in doing so treated all of his weapons the
same. This course of conduct, the government contends,
14 UNITED STATES V. VARGEM
constituted a common scheme. While this argument may
have surface appeal, it obscures the crux of the relevant
conduct analysis, which is the relationship to the offense of
conviction. See United States v. Pinnick, 47 F.3d 434, 439
(D.C. Cir. 1995) (when offering collateral conduct for a
court’s consideration under § 1B1.3(a)(2) , the government
must “demonstrate a connection between [that conduct] and
the offense of conviction”); cf. United States v. Farah,
991 F.2d 1065, 1070 (2d Cir. 1993) (“The central focus of the
offense-level component of a Guidelines calculation is the
nature of the defendant’s conduct in connection with the
offense of conviction.”).
The Application Note to § 1B1.3 defines “common
scheme or plan” as follows:
(A) Common scheme or plan. For two or
more offenses to constitute part of a common
scheme or plan, they must be substantially
connected to each other by at least one
common factor, such as common victims,
common accomplices, common purpose, or
similar modus operandi. For example, the
conduct of five defendants who together
defrauded a group of investors by computer
manipulations that unlawfully transferred
funds over an eighteen-month period would
qualify as a common scheme or plan on the
basis of any of the above listed factors; i.e.,
the commonality of victims (the same
investors were defrauded on an ongoing
basis), commonality of offenders (the conduct
constituted an ongoing conspiracy),
commonality of purpose (to defraud the group
UNITED STATES V. VARGEM 15
of investors), or similarity of modus operandi
(the same or similar computer manipulations
were used to execute the scheme).
U.S.S.G. § 1B1.3, Application Note 9(A). This Court has
long held that “the essential components of the section
1B1.3(a)(2) analysis are similarity, regularity, and temporal
proximity.” United States v. Hahn, 960 F.2d 903, 910 (9th
Cir. 1992); see also U.S.S.G. § 1B1.3, Application Note 9(B)
(defining “[s]ame course of conduct”).
Vargem was convicted of possessing an unlawful,
unregistered machine gun. The conduct giving rise to that
offense was his active modification of a legal weapon into a
weapon that was prohibited under 18 U.S.C. § 922(o). In
contrast, other weapons discovered at his home were legally-
purchased, unmodified, and in some instances, still in their
original packaging. When those otherwise-lawful weapons
were rendered suddenly unlawful by the EPRO, there was no
common scheme or plan to possess all 28 weapons
unlawfully.
Indeed, applying the definition of a common scheme or
plan set forth in the Application Note, there were no common
victims or accomplices with respect to the 28 firearms in
question. See U.S.S.G. § 1B1.3, Application Note 9(A). Nor
was there a common purpose or modus operandi. Id.
Similarly, Vargem’s possession of other weapons was not
part of the same course of conduct, as there was no “single
episode, spree, or ongoing series of offenses.” Id.,
Application Note 9(B). Instead, numerous weapons were
rendered temporarily unlawful by an alleged assault that bore
no relationship in time, purpose, or mode to the machine gun
offense.
16 UNITED STATES V. VARGEM
Relevant conduct in firearms cases generally arises under
one of two scenarios. The first is where the firearms are
otherwise legal but the defendant, usually due to criminal
history or prohibited status under federal law, is not able to
legally possess them. See, e.g., United States v. Brummett,
355 F.3d 343, 344–45 (5th Cir. 2003); United States v.
Powell, 50 F.3d 94, 104 (1st Cir. 1995). The second is where
the defendant is not a prohibited person per se, but the
firearms he possessed were illegal for him, or anyone else, to
own. This case does not fit within the first scenario, as the
government concedes that Vargem was not a prohibited
person under federal law. The Court must therefore consider
the second scenario, and based upon the current record, there
is no evidence to support the conclusion that each of
Vargem’s other 27 firearms was illegal.
Accordingly, it was error for the district court to have
included all 28 firearms under § 2K2.1(b)(1). We further
find, for substantially the same reasons set forth above
regarding miscalculation of the base offense level, that
application of a full six-level enhancement violated Vargem’s
substantial rights. See, e.g., Bonilla-Guizar, 729 F.3d at
1188. As this error may well have resulted in a longer
sentence, it also affected the fairness of the judicial
proceedings. Tapia, 665 F.3d at 1063. We therefore vacate
Vargem’s sentence, and remand to the district court for
further proceedings.
III. The District Court’s Imposition of a Fine Was Not
Erroneous
Vargem’s final argument is that the district court erred
when it imposed a $12,500 fine without considering the
relevant statutory or Guidelines factors. The court reviews
UNITED STATES V. VARGEM 17
the fine determination for clear error, United States v.
Brickey, 289 F.3d 1144, 1152 (9th Cir. 2002), overruled on
other grounds by United States v. Contreras, 593 F.3d 1135,
1136 (9th Cir. 2010), and the burden is on Vargem to show
inability to pay by a preponderance of evidence. See United
States v. Robinson, 20 F.3d 1030, 1033 (9th Cir. 1994).
U.S.S.G. § 5E1.2(a) states that a court “shall impose a
fine in all cases, except where the defendant establishes that
he is unable to pay and is not likely to become able to pay any
fine.” Here, Vargem did not provide a financial statement.
The PSR found that his business had several pieces of
valuable machinery, that his credit history showed minimal
debt, that he was supporting himself on a savings account
while in custody, and that he had retained counsel. The PSR
therefore concluded that a fine was appropriate, and
recommended an amount at the low end of the Guidelines
range. Vargem objected to the imposition of a fine, arguing
that his state and federal criminal proceedings had resulted in
substantial financial losses, and that his imprisonment
deprived him of the ability to provide a financial statement.
Vargem now argues that the district court failed to follow
§ 5E1.2(d)(2), which requires a court to consider “any
evidence presented as to the defendant’s ability to pay the
fine (including the ability to pay over a period of time) in
light of his earning capacity and financial resources.”
U.S.S.G. § 5E1.2(d)(2). The district court noted the lack of
a financial statement, reviewed the factual findings set forth
in the PSR, and heard Vargem’s oral assertions at sentencing.
Although the court did not cite specific financial resources
when determining the fine, “[a] district court need not
articulate every factor involved in sentencing.” United States
18 UNITED STATES V. VARGEM
v. Orlando, 553 F.3d 1235, 1240 (9th Cir. 2009). The district
court’s imposition of a fine is affirmed.
CONCLUSION
For the reasons set forth above, we hold that the district
court committed plain error in calculating Vargem’s offense
level under the Guidelines. We affirm the imposition of a
fine, vacate the sentence, and remand for further proceedings.
AFFIRMED IN PART, VACATED IN PART, AND
REMANDED.