                                                                                                                           Opinions of the United
1995 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


6-12-1995

United States v Bush
Precedential or Non-Precedential:

Docket 94-2025




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            UNITED STATES COURT OF APPEALS
                FOR THE THIRD CIRCUIT


                      No. 94-2025


               UNITED STATES OF AMERICA

                           v.

                    THERESA J. BUSH

                           Theresa Bush,

                                       Appellant



   On Appeal from the United States District Court
      for the Eastern District of Pennsylvania
               (D.C. Crim. No. 94-0185)


      Submitted under Third Circuit LAR 34.1(a)
                     May 22, 1995

BEFORE:   GREENBERG, ROTH, AND ALDISERT, Circuit Judges

                 (Filed: June 12, 1995)


                           David L. McColgin
                           Assistant Federal Defender
                           Elaine De Masse
                           Senior Appellate Counsel
                           Maureen Kearney Rowley
                           Chief Federal Defender
                           Defender Association of
                    Philadelphia
                           Federal Court Division
                           437 Chestnut St., Suite 800
                           Lafayette Building
                           Philadelphia, PA 19106

                                      Attorneys for Appellant

                           Michael R. Stiles
                           United States Attorney
                                  Walter S. Batty, Jr.
                                  Ronald H. Levine
                                  Assistant United States
                          Attorneys
                                  Suite 1250
                                  615 Chestnut Street
                                  Philadelphia, PA 19106

                                             Attorneys for Appellee




                       OPINION OF THE COURT




GREENBERG, Circuit Judge.
                         I.   Introduction

          On April 26, 1994, a federal grand jury returned a

multi-count indictment charging Theresa J. Bush with five counts

of making false statements in connection with the acquisition of

a firearm in violation of 18 U.S.C. § 922(a)(6) (the false
statement counts), and five counts of possession of a firearm by

a convicted felon in violation of 18 U.S.C. § 922(g)(1) (the

possession counts).   On July 13, 1994, Bush plead guilty to one

false statement count and one possession count.      However, Bush

stipulated to having committing the other eight charged offenses,

and "agree[d] that, for the purpose of determining [her]

Sentencing Guidelines range, . . . these additional offenses

shall be treated as if the [she] had been convicted of additional

counts charging these offenses."   App. 14.
          The prosecutor and the defense attorney submitted

sentencing memorandums addressing two issues to the district

court:   (1) which Sentencing Guidelines Manual applies to Bush's

sentence; and (2) how the multiple counts should be grouped.      At

the October 14, 1994, sentencing hearing the prosecutor conceded

that because of potential ex post facto problems, the 1990

Guidelines Manual should apply.   See, e.g., United States v.

Bertoli, 40 F.3d 1384, 1403 (3d Cir. 1994) (although

"[g]enerally, the sentencing court must apply the Guidelines

Manual in effect at the time of sentencing . . . '[w]here such

retroactivity results in harsher penalties, Ex Post Facto Clause

problems arise, and courts must apply the earlier version.'")

(citation omitted).1   The district court then divided the offense

conduct into three separate groups, and, pursuant to U.S.S.G. §

3D1.4, computed Bush's offense level to be 13.2

          The district court thereupon sentenced Bush to

concurrent 16-month custodial terms, to be followed by concurrent

3-year terms of supervised release.   On October 21, 1994, Bush

1
 . The 1990 Guidelines Manual was in effect at the time Bush
committed the crimes to which she pleaded guilty. The 1993
Guidelines Manual is substantially different with respect to
firearms offenses, but those differences are not relevant here.
In this opinion our citations are to the 1990 manual.
2
 . The relevant firearms guideline, section 2K2.1(a)(2),
provided a base offense level of 12. When three groups are
created that charge equally serious offenses, section 3D1.4
directs a court to increase the offense level by 3 which the
district court did. The court then subtracted 2 levels pursuant
to section 3E1.1 because it found that Bush had accepted
responsibility for her criminal conduct. Thus, the district
court computed the offense level to be 13.
filed a timely notice of appeal of her sentence.    We have

jurisdiction pursuant to 28 U.S.C. § 1291 and 18 U.S.C. §

3742(a).    The district court had jurisdiction pursuant to 18

U.S.C. § 3231.    We will affirm.


                           II.   Discussion

            The sole issue on this appeal is whether the district

court erred in dividing the offense conduct into three groups.

"This contention requires a construction of the guidelines so

that our scope of review . . . is plenary."    United States v.

Riviere, 924 F.2d 1289, 1304 (3d Cir. 1991).   Of course, we

review the district court's findings of fact leading to its

grouping determination only for clear error.

            Section 3D1.1(a) of the Sentencing Guidelines directs

courts to combine multiple counts of conviction into "'distinct

Groups of Closely Related Counts'" when certain criteria are met.

United States v. Bertoli, 40 F.3d at 1401 (quoting U.S.S.G. §

3D1.1(a)).    This practice of "grouping," as it has come to be

called, was designed "to prevent multiple punishment for

substantially identical offense conduct, while still ensuring

incremental punishment for significant additional criminal

conduct."    United States v. Wessells, 936 F.2d 165, 168 (4th Cir.
1991).   In accommodating these concerns, courts must distinguish

between occasions when increasing the punishment for an

additional count would punish the defendant for conduct taken

into account in another count and those occasions when the added

counts reflect additional criminal culpability.    The guidelines
provide in this regard that "[a]ll counts involving substantially

the same harm shall be grouped together into a single Group",

U.S.S.G. § 3D1.2, and define "substantially the same harm" as

follows:
           (a) When counts involve the same victim and
           the same act or transaction.

           (b) When counts involve the same victim and
           two or more acts or transactions connected by
           a common criminal objective or constituting
           part of a common scheme or plan.

           (c) When one of the counts embodies conduct
           that is treated as a specific offense
           characteristic in, or other adjustment to,
           the guideline applicable to another of the
           counts.

           (d) 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.


U.S.S.G. § 3D1.2.   While section 3D1.2 contains lists of specific

offenses that should and should not be grouped, firearm offenses

fall into neither category.   Therefore, in firearms cases "a case

by case determination must be made based upon the facts of the

case and the applicable guidelines (including specific offense

characteristics and other adjustments) used to determine the

offense level."   Section 3D1.2(d).   We previously have noted the

relevance of application note 2 to firearms offenses, which

provides that when crimes involve "indirect or secondary victims

'the grouping decision must be based primarily upon the nature of
the interest invaded by each offense.'"   United States v.

Riviere, 924 F.2d at 1304 (citing U.S.S.G. § 3D1.2).

          The parties do not dispute the facts constituting the

offense conduct:   On ten occasions between September 29, 1990,

and November 29, 1990, Bush travelled to Lou's Loan of Upper

Darby, Pennsylvania, a licensed gun dealer.   On five of those

trips she applied to buy various handguns, and in so doing,

failed to acknowledge a prior felony conviction.   On the other

five trips she purchased the guns for which she had applied.

          The district court grouped each false statement count

with its corresponding possession count; after that grouping, the

district court chronicled Bush's actions as follows:
          10/04/90: Bush purchases her first handgun,a
                    .32 New England revolver.

          10/12/90: Bush purchases her second handgun,
                    a .380 caliber Davis semi-
                    automatic;

          10/13/90   Bush purchases her third handgun, a
                     9mm caliber Taurus semi-automatic;

          11/01/90   Bush purchases her fourth handgun,
                     a .380 caliber Beretta semi-
                     automatic;

          11/29/90   Bush purchases three .380 caliber
                     Davis semi-automatic handguns and
                     one 9 mm caliber Tanfoglio semi-
                     automatic handgun.


          Then the court analyzed which of the offenses were

distinct and which were coextensive and therefore involved

substantially the same harm.   Beginning with the premise that if

Bush bought the guns for different purposes then different harms
were involved, the court reviewed the record and determined that

she had given inconsistent explanations for the purchases.        On

December 4, 1992 she informed agents of the Bureau of Alcohol

Tobacco and Firearms (ATF) that she bought the guns because she

and her husband liked to target shoot at "Colosimo's range," see

PSR at 2 ¶ 7.3   But she told the probation officer during the

presentence investigation that she bought the guns as protection

for her mother and sisters.     See PSR at 2 ¶ 10.   The district

court partially believed Bush's explanations, but concluded that

"these lawful purposes only account for four of the guns.       They

cannot plausibly explain the purchase of four additional semi-

automatic weapons on November 29, 1990."     Op. at 6.    The court

thus inferred that there was a third "mystery motive" for the

purchases.

          Additionally, relying on the chart quoted above, the

court characterized Bush's gun-purchasing activity as naturally

dividing into three time frames:     October 4 through October 13,

1990; November 1, 1990; and November 29, 1990.       Reasoning that

while in a broad sense Bush's purchases could be considered

"ongoing, . . . their temporal separation cannot fairly be

regarded as continuous,"     op. at 7, the court concluded that

"[t]he timing and manner of Bush's purchases confirms our

creation of three groups."    Op. at 6.   The district court found


3
 . At the sentencing hearing, defense counsel offered no
objections to the factual findings in the PSR, other than to the
probation officer's conclusion that the 1993 Sentencing
Guidelines Manual should apply. App. 66.
still further support for its grouping decision in its

observation that "the handguns . . . are of three different

calibers and from five different manufacturers."    Op. at 6.

          Bush first argues that the general thrust of the

guidelines supports a single group.    In this regard, she points

to the application note to U.S.S.G. § 3D1.2 for the proposition

that firearms offenses presumptively should be grouped together.

That application note states:
          Subsection (d) likely will be used with the
          greatest frequency. It provides that most
          property crimes . . ., firearms offenses, and
          other crimes where the guidelines are based
          primarily on quantity or contemplate
          continuing behavior are to be grouped
          together. The list of instances in which
          this subsection should be applied is not
          exhaustive.


U.S.S.G. § 3D1.2 application note 6.

          Bush's reliance is misplaced.    Immediately following

the application note, the guideline contains examples of when

grouping is appropriate which shed light on the point the

Sentencing Commission was making in the application note.    The
pertinent example states that if "[t]he defendant is convicted of

three counts of unlicensed dealing in firearms . . . [a]ll three

counts are to be grouped together."    Suppose, for example, a

defendant, unlicensed to deal in firearms, owns a pawn shop and

has three guns for sale.   It might be unfair to increase the

punishment for each additional gun, because the shopowner really

was running a single business and engaged in a single continuous

course of conduct.   Dividing the crime into three subdivisions
artificially would increase the punishment based not on

additional criminal conduct but on the fortuity of the number of

guns being sold.   That is precisely the type of result against

which grouping is intended to guard, and it is the kind of

situation covered by the application note.

          But that grouping principle cannot be applied to all

multiple firearms violations, for such an application would

eviscerate the Commission's direction that such crimes are to be

grouped on a case by case basis.   Moreover, it defies logic to

say that all firearms violations committed by an individual in a

narrow time frame necessarily involve substantially the same harm

and invade the same protected interests.     People possess firearms

for various reasons with various intentions.    While, broadly

speaking, society is the victim of all possession crimes, each

crime has its own nuances and must be evaluated on its own.      See

United States v. Cousens, 942 F.2d 800, 808 (1st Cir. 1991) (a

defendant "who purchased different firearms on different

occasions for different purposes using funds from different

sources, readily may be distinguished from a defendant who pleads

guilty to three counts of unlicensed dealing in firearms")

(pointing out limited utility of application note); see generally
United States v. Griswold, No. 94-1979, slip op. at 9-10 (3d Cir.

Jun. 5, 1995) (discussing application note).

          Bush further argues that subsections 3D1.2(b) and (d)

required the district court to classify the entire offense

conduct as one group.   She contends that subsection (b) required

grouping because "[t]he nature of the interest invaded by each of
the ten counts in this case was exactly the same -- the interest

in keeping guns out of the hands of convicted felons" and

therefore "Bush's 'criminal objective' was also the same -- the

possession of handguns."   Br. at 11.   She argues subsection (d)

required grouping because Bush's behavior was "ongoing and

continuous in nature."   Inasmuch as the arguments relating to

both subsections are quite similar, namely that Bush's criminal

conduct constituted one quick scheme of purchasing handguns, we

will address them together.4

          Other than the general principles detailed above, we

are left with little direction from the Sentencing Commission.

We take some guidance, though, from the limited case law

addressing this issue.   In Riviere, the defendant pled guilty to


4
 . In Riviere we pointed out the following inconsistency in the
Sentencing Guidelines commentary:

          [T]he clarifying amendment, effective
          November 1, 1989, to the background
          commentary to the application notes to
          guidelines § 3D1.2 . . . provides that
          '[c]ounts involving different victims (or
          societal harms in the case of "victimless"
          crimes) are grouped together only as provided
          in subsection (c) or (d).' However, the
          application note discussing the term
          'victim,' which appears in guidelines §
          3D1.2(a) and (b), provides that, for
          victimless crimes in which society at large
          is the victim, 'the grouping decision must be
          based primarily upon the nature of the
          interest invaded by each offense.'

Riviere, 924 F.2d at 1305 (citations omitted). This
inconsistency does not affect our analysis, however, because as
we state in the text, Bush's arguments regarding (b) and (d) are
nearly identical.
possession of a firearm by a felon, delivery of firearms to a

common/contract carrier, and possession of an altered firearm.

Relying on the general policies behind grouping, we held that the

district court should have combined the offenses into a single

group.   First, "[t]he guidelines already provided for enhanced

punishment for possession of a firearm by a felon if that firearm

was altered."   Riviere, 924 F.2d at 1306.   Thus, section 3D1.2(c)

mandated grouping, because one of the counts "embodies conduct

that is treated as an . . . adjustment to the guideline

applicable to another of the counts."   Moreover, "grouping of the

offenses of possession of a firearm by a felon and delivery to a

common/contract carrier was required because to hold otherwise

would provide enhanced punishment for Riviere's status as a

felon, rather than his 'additional conduct that is not otherwise

accounted for by the guidelines.'"   Id. at 1306.   Driving the

analysis in Riviere was the fact that the defendant really pled

guilty to one instance of unlawful conduct -- carrying altered

firearms onto a chartered flight when he had been convicted

previously of a felony -- and he should have been sentenced only

once for his unlawful act; see Griswold, slip op. at 8
("[B]ecause no additional conduct was represented by the

additional counts [in Riviere], it was appropriate to group all

of the firearms-related offenses.");    Cf. U.S.S.G. § 3D1.2(a)

(grouping appropriate when "counts involve the same victim and

the same act or transaction").

           More analogous is United States v. Cousens, 942 F.2d at
800.   In that case, the court held that in determining how to
group firearms offenses, courts should consider "'differences in

place, time, nature of the guns, lack of drugs, and intervening

arrests.'"    Id. at 807 (citation omitted).   The court of appeals

upheld the district court's decision to divide nine firearms

counts into one group of seven counts, and two groups of one

count each.    The offenses underlying the group of seven occurred

during a nine-day time period, involved purchases from the same

cash pool, and were connected by a common scheme.    The two

remaining counts, however, involved, respectively, the purchase

of a different type of gun from a different seller, and a

purchase for a different purpose.    Id. at 807.   In response to

the defendant's argument that all counts should have been grouped

together, the court of appeals held that the defendant "did not

demonstrate that his independent offenses . . . involved

transactions connected by a common criminal objective or

constituting part of a common scheme or plan with the grouped

offenses."    Id. at 808; but see United States v. Wessells, 936

F.2d at 168-69 (district court grouped several weapons purchases

where the purchases evinced single schemes by the defendant "to

supply himself with an arsenal").

           If the district court in this case refused to group the

possession counts with their corresponding acquisition counts, we

would face a Riviere problem -- Bush's sentence would be
increased because of her status.    But this case is not like that

at all; we do not face a situation in which the court sentenced

her for discrete criminal acts from one instance of unlawful

conduct.   Nor can the purchases in this case be compared to those
leading to the single large grouping in Cousens.    To the

contrary, the undisputed facts indicate that Bush made five

specific firearms purchases over a period of several months -- a

far cry from the nine-day period in Cousens.     And, contrary to

the Cousens court's finding that the purchases were for a common

scheme, Bush gave inconsistent explanations for her purchases.

Furthermore, in light of the fact that we know little about where

her firearms went,5 her explanations are fairly incredible

insofar as they apply to all the guns.   While Bush apparently

made all her purchases in cash from the same gun shop, there is

nothing to indicate that the guns were bought from a particular

cash pool to be used for a particular purpose.     In fact, there is

nothing in the record demonstrating that the purchases were tied

in any respect; indeed Bush's shifting explanations support the

contrary conclusion.    In light of these facts, the district court

probably would have acted well within its discretion had it

inferred discrete motives from discrete purchases, and created

five separate groups.    See Griswold, slip op. at 8 (discussing

similar fact pattern) ("We remain unconvinced that the Sentencing

Commission contemplated grouping these offenses.").

          Ironically, Bush is taking the district court to task

because it may have treated her more leniently than she deserved.

Instead of rejecting her explanations and treating each purchase

as a separate discrete act, the district court gave Bush the

5
 . One of the firearms was later found in the possession of a
confidential informant in the World Trade Center bombing case.
See app. 78-79.
benefit of the doubt and believed her explanations in part.       And,

the court added only one "mystery motive" to those explanations

when it could have added two or three.

             Nevertheless, Bush argues that the district court's

"mystery motive" finding was clearly erroneous.     She contends

that the district court concluded that the family "protection"

motive could not account for all the purchases but that it based

this conclusion on its erroneous belief that Bush had only one

sister.   See Op. at 6 ("Bush . . . claimed to have purchased

handguns . . . to give to her mother and sister for self-

defense").    Bush is correct in noting that the district court

erroneously believed she had only one sister.    But the court had

other justifications for inferring a mystery motive.    First, the

protection explanation was inconsistent with the target practice

explanation, so the court reasonably could have concluded that

Bush was trying to hide a third motive.    Second, the district

court plausibly was skeptical that a person would purchase semi-

automatic weapons simply for protection.    See app. 84 ("[W]hen

somebody goes in and buys four semiautomatic weapons . . . it

implies to me yet another purpose.     That's what I'm concluding as

to the basis for this.") (sentencing hearing).     Finally, the

undisputed evidence established that none of the weapons had

reached the people Bush contended that they intended to protect.

See PSR at 2 ¶ 10 (Bush "was unable to explain why the guns were
never delivered to the intended recipients").     The district court

was well within its discretion in concluding that there was a

mystery motive.
          Next, Bush argues that because her explanations

"applied to all the guns she bought . . . [s]ince [she] never

ascribed different explanations to different guns, these

explanations simply cannot be used as a basis for creating

separate groups."     Br. at 13.   We disagree.   The district court's

finding must be examined in light of all of the evidence.       The

record establishes both that Bush's husband was registered to

shoot at Colosimo's Pistol Range, see app. 31, and that Bush has

a mother and seven sisters.      In light of these facts, the

district court could have believed that Bush's was telling

partial truths each time she tried to explain the purchases.

However, Bush's evasive behavior on other occasions belied those

explanations.    When interviewed by the ATF in 1992, Bush "would

not say where the weapons were" but implied that she knew where

they were.    PSR at 2 ¶ 7.    When interviewed on April 26, 1994,

however, "Ms. Bush expressed that she no longer knew where the

guns were."    PSR at 2 ¶ 7.    Along with the inconsistent

explanations she gave, Bush also told the district court that she

did not know why she purchased the guns.     See app. 93.

          Moreover, the district court's decision to divide the

offense conduct into three groups is supported by the timing of

the offenses.    Cf. Griswold, slip op. at 8 (improper to group
"purchases and possession of eight semi-automatic handguns

spanning in excess of two years.").     The chart we reproduce above

demonstrates that Bush's purchases occurred in three separate

bursts of activity.    The district court properly relied on that

fact to support its finding of three motives.
          The judgment of conviction and sentence entered on

October 17, 1994, will be affirmed.
