                                                                                                                           Opinions of the United
1996 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


1-12-1996

United States v. Brannan
Precedential or Non-Precedential:

Docket 95-3108




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        UNITED STATES COURT OF APPEALS
            FOR THE THIRD CIRCUIT
            _____________________

                 No. 95-3108
            _____________________

          UNITED STATES OF AMERICA,

                              Appellee,

                      v.

            DAVID GEORGE BRANNAN,

                              Appellant.
            _____________________

On Appeal from the United States District Court
   for the Western District of Pennsylvania
              (D.C. No. 94-cr-200)
             _____________________

          Argued September 13, 1995

              Before: SLOVITER,




                      1
             Chief Judge, ALITO, Circuit Judge, and
                    RENDELL, District Judge*.

                     Filed January 12, l996

                     _____________________

                                   Thomas S. White
                                   Federal Public Defender
                                   Karen Sirianni Gerlach
                              (Argued)
                                   Assistant Federal Public
                                   Defender
                                   415 Convention Tower
                                   960 Penn Avenue
                                   Pittsburgh, Pennsylvania

                                        Attorneys for Appellant




_________________________________________________________________
* Honorable Marjorie O. Rendell, United States District Judge
for the Eastern District of Pennsylvania, sitting by designation.

                                   Frederick W. Thieman
                                   United States Attorney
                                   Bonnie R. Schlueter (Argued)
                                   Assistant United States
                              Attorney
                                   633 U.S. Post Office &
                              Courthouse
                                   Pittsburgh, Pennsylvania

                                       Attorneys for Appellee
                     _____________________

                      OPINION OF THE COURT
                     _____________________

RENDELL, District Judge:




                               2
          This appeal is from a judgment of sentence imposed

after defendant David George Brannan pled guilty to one count of

being a felon in possession of a firearm in violation of 18

U.S.C. § 922(g)(1).     Brannan raises two grounds in his appeal.

First, he argues that the district court improperly enhanced the

offense level by four levels under § 2K2.1(b)(5) of the United

States Sentencing Guidelines for the use, possession or transfer

of a firearm in connection with another felony.     See United

States Sentencing Commission, Guidelines Manual §§ 2K2.1(b)(5)

(1994) (hereinafter "U.S.S.G.").0     Second, he contends that the

district court failed to properly apply § 5G1.3 of the United

States Sentencing Guidelines so as to have his federal sentence

run concurrently with a state court sentence he was serving.     See

U.S.S.G. § 5G1.3(c) (Policy Statement) (hereinafter "U.S.S.G.

§5G1.3(c)").     We find the second ground for attack to be valid,

and, accordingly, we will remand for resentencing consistent with

this opinion.0

0
 We apply the 1994 edition of the Sentencing Guidelines pursuant
to U.S.S.G. § 1B1.11 which dictates that the version of the
Guidelines in effect at the time of sentencing is to be used.
Brannan was sentenced on February 10, 1995.
0
     The amendments to the Sentencing Guidelines effective
November 1, 1995 substantially rewrite U.S.S.G. § 5G1.3(c) and
the Commentary thereto. While the amendments do not affect this
Court's analysis, the district court in resentencing would
normally apply the Guideline in effect at the time of
resentencing. See United States v. Kopp, 951 F.2d 521, 534 (3d
Cir. 1991). However, if the district court determines that using
the amended Guideline would violate the Ex Post Facto Clause of
the United States Constitution in that it would yield a harsher
result, then it must apply the Guideline in effect at the time
the offense was committed. See U.S.S.G. § 1B1.11; see also Kopp,
951 F.2d at 526.


                                  3
          The events giving rise to the instant offense involved

the accidental discharge of a gun while it was being removed from

the trunk of a car in western Pennsylvania.   Brannan testified

that he was interested in selling the gun; he and a friend, Peter

Andrulat, traveled on Friday evening, September 11, 1992, to a

neighboring town because Andrulat believed that his friend,

Richard Hopkins, would be interested in purchasing it.0   Brannan

indicated that the three men met briefly at a restaurant and then

went out to Andrulat's car to show Hopkins the gun; as the gun

was being removed from the trunk, it accidentally discharged, and

the bullet struck Hopkins in the upper thigh area, severing his

femoral artery and causing him to bleed to death.

          Brannan pled guilty to involuntary manslaughter in the

Court of Common Pleas of Washington County and was sentenced to

18-60 months, less one day, of imprisonment, which he began to

serve on June 6, 1994.   On August 30, 1994, nearly two years

after the underlying incident occurred, Brannan was indicted in

federal court for having been a felon in possession of a firearm.

He pled guilty on October 31 and was sentenced on February 10,

1995.   At the time of his sentencing, Brannan was serving the

sentence for involuntary manslaughter.

          The presentence report prepared for sentencing Brannan

recommended a four-level enhancement pursuant to U.S.S.G.

§ 2K2.1(b)(5), which provides for such an enhancement where the


0
 Brannan was on probation at the time. He had been told by his
parole officer earlier in the day that he could not keep the gun,
a .357 handgun which belonged to his wife, in his home.


                                4
defendant "used or possessed any firearm . . . in connection with

another felony offense."   The probation officer gave the

following reason to justify the enhancement:
               During the course of the instant offense, the
               firearm that the defendant possessed discharged,
               striking Mr. Hopkins and killing him. This
               resulted in the defendant's conviction of
               Involuntary Manslaughter.


          Brannan filed two objections to the presentence report

prior to sentencing.   First, he objected to the four-level

enhancement of his offense level under § 2K2.1(b)(5).       Second, he

argued that he should have been given credit for the time he had

spent incarcerated in Washington County on the manslaughter

conviction under U.S.S.G. § 5G1.3, which would have reduced his

sentence for the federal offense by several months.

          In addition to objecting to the presentence report,

Brannan also requested a downward departure based on his family

ties, his employment history, and his employment prospects,

relying upon U.S.S.G. §§ 5K2.0, 5H1.5, and 5H1.6.     The

government, in turn, requested an upward departure under U.S.S.G.

§ 4A1.3, arguing that Brannan's criminal history category under-

represented the seriousness of his criminal history.

          At the time of sentencing, Brannan argued that U.S.S.G.

§ 2K2.1(b)(5) requires a showing of his intent to use a firearm

in order for the enhancement to be applicable.   Section

2K2.1(b)(5) provides that if a defendant used or possessed a

firearm in connection with another felony or if a defendant

possessed or transferred a firearm with knowledge or intent that



                                5
it would be used or possessed in connection with another felony,

the offense level should be increased by four levels.

           He argued that the knowledge and intent element in the

second clause should be interpreted to apply to the concept of

"used or possessed" in the first clause.   Under Brannan's

interpretation, the alleged negligent handling of the firearm

involved in the instant set of facts should not have given rise

to the four-level increase in offense level.

           The sentencing judge indicated his concern with

applying the four-level enhancement under § 2K2.1(b)(5) to the

negligent use of a firearm involved in this set of facts.    In

applying the section as written, however, he found that no

element of intent was necessary under the Guidelines, and he

found no alternative other than to impose the four-level

enhancement.

           Brannan next argued that U.S.S.G. § 5G1.3(c) gave the

court the authority to impose a sentence to run concurrently with

his state court sentence from the date when the state sentence

was imposed, giving credit for time served.    Section 5G1.3(c)

addresses the situation in which a defendant who is serving an

undischarged term of imprisonment is being sentenced for another

crime.   This section, together with the accompanying Commentary

and Application Notes, sets forth a methodology the court should

follow in determining the extent to which the second sentence

should run concurrently with, or consecutive to, the sentence

already being served.   The government argued that he should serve

his Guideline sentence for the instant offense concurrently with


                                6
the remainder of the unexpired term of imprisonment for this

state conviction.

             The sentencing court determined that the applicable

offense level of 25 and criminal history category of V for the

weapon possession offense gave rise to a Guideline sentencing

range of 100 to 120 months.     The court acknowledged that the

issue was governed by § 5G1.3(c) but framed this issue as a

choice of either a consecutive or a concurrent sentence, with a

related question as to whether "credit" could be given for time

already served on the state sentence.

             The court appears to have read § 5G1.3(c) as indicating

that if the court felt an incremental punishment was required,

then the sentence should run consecutively, otherwise it should

be concurrent.    See Appendix, pp. 118-20.    The court could find

no authority whereby it could "give credit" for the state

sentence.0    See Appendix, pp. 124-25.   It concluded therefore

that the sentence it would give -- the minimum it believed it

could give, namely, 100 months -- would be concurrent with the

remainder of the state sentence.      See Appendix, pp. 119, 120,

125.   In making its ruling, the court did not refer to the
0
 The district court repeatedly noted its discomfort with the
length of sentence to be imposed: "I do think that the sentence
presented here is one heck of a wack [sic]"; "My only difficulty
is the difficulty, I think, with the duration of it. The
guideline is longer than what I would impose were the discretion
in me"; "I'm not sure there needs to be incremental punishments
for that fortuitous event when we're talking about a sentence as
serious as this one. I wish that all of the violent criminals I
prosecuted in the days that I was a prosecutor had gotten tagged
with as much time as what Mr. Brannan is going to get merely for
this charge"; "If anything, the federal sentence is the tail
wagging the dog." Appendix, pp. 119, 120, 125, 136.

                                  7
Commentary to the Guidelines, or the sentencing methodology under

§ 5G1.3(c) described in Application Note 3 thereof, nor did it

have the benefit of this court's opinion in United States v.

Holifield, 53 F.3d 11 (3d Cir. 1995), as to how that methodology

can or should be applied.

             Brannan also argued that the two-year delay in bringing

the charges should be taken into account and also presented

evidence as to the innocent nature of this incident and his

character as an employed and responsible family man as grounds

for a departure.     The court rejected these considerations as not

sufficient to warrant any relief for Brannan under the

Guidelines.0

             As indicated above, on appeal Brannan presses the need

for a finding of intent as a prerequisite for the four-level

enhancement under § 2K2.1(b)(5) and raises the implications of

Holifield on the sentencing in this case.     The government

counters that the plain meaning of the Guidelines supports the

enhancement.     Further, the government focuses its opposition to

Brannan's argument under § 5G1.3(c) on his failure at sentencing

to request a "downward departure" for time served in prison and

its view that the sentencing court properly applied § 5G1.3(c).



DISCUSSION
                                  I.




0
    Brannan does not challenge these rulings on appeal.


                                   8
          The district court's interpretation of the Guidelines

and the extent of its power to depart downward are legal

questions subject to plenary review.   See United States v.

Holifield, 53 F.3d 11, 12-13 (3d Cir. 1995); United States v.

Higgins, 967 F.2d 841, 844 (3d Cir. 1992).   However, if a

defendant has failed to request a departure and first raises the

issue on appeal, our review of the record is limited to a

determination of whether plain error had been committed.      See

United States v. Pardo, 25 F.3d 1187, 1193 (3d Cir. 1994).

          The government argues that we should apply the "plain

error" standard of review to the issue raised under § 5G1.3(c),

arguing that Brannan did not specifically request a "downward

departure" before the district court under that Guideline, and

the issue is being raised for the first time on appeal.      The

government does concede, however, that Brannan requested

application of § 5G1.3(c) to grant him 18 months' credit for time

served.   See Appendix, pp. 121-23.

          We find Brannan's request that his existing sentence

and time served be taken into account was sufficient to preserve

this issue on appeal.   We will not require recitation of magic

words, or specific request for departure, in connection with

§5G1.3, especially because, as is discussed more fully below, the

ability of the court to depart under § 5G1.3(c) is inherent in

the section itself.   That is, departure may be the result of the

court's application of the methodology under this section, rather

than an extraneous factor to be applied or considered after the




                                9
appropriate sentence has been determined.0    Further, the

relationship between § 5G1.3(c) and departures had not yet been

explored by this Court in Holifield at the time this sentencing

occurred.   We conclude, therefore, that plenary review of both

issues raised is warranted.




                                II.

            The first issue presented is whether § 2K2.1(b)(5)

requires that the "use or possession" be intentional.     If intent

is necessary, the alleged negligent use or possession of the

firearm in this instance would not have resulted in application

of this section, and Brannan would not have received a four-level

enhancement of his offense level.     Section 2K2.1(b)(5) of the

Guidelines provides:
               If the defendant used or possessed any firearm or
               ammunition in connection with another felony
               offense; or possessed or transferred any firearm
               or ammunition with knowledge, intent, or reason to
               believe that it would be used or possessed in
               connection with another felony offense, increase
               by 4 levels.

U.S.S.G. § 2K2.1(b)(5).


0
 The concept of departure in § 5G1.3(c) seems to vary slightly
from the concept elsewhere in the Guidelines. A departure under
this section means that the court recognizes time already served
for another offense if and to the extent appropriate. For
example, by imposing a 24-month sentence where the Guideline
sentence for the second offense calls for a 48-month sentence but
the defendant has served 36 months on another charge, the court
does not reduce the punishment as such based on some extraneous
factor. Instead, it arrives at an appropriate sentence by
recognizing punishment for one crime as serving the purpose of
punishment for another.


                                 10
          Brannan makes three arguments:

          First, he argues that the semicolon in this section

should be ignored and the word "or" be read to mean "in other

words."

          Second, he contends that use or possession "in

connection with" another felony implies an element of intent.

          Third, he relies upon Staples v. United States, 114

S. Ct. 1793 (1994), and Ratzlaf v. United States, 114 S. Ct. 655

(1994), for the proposition that before imposing this incremental

punishment, mens rea is required for the underlying felony.

          The court at sentencing was unsure of the policy behind

this Guideline but felt certain both that its meaning was clear

and that it applied to Brannan's conduct.   We too have little

difficulty in determining that the plain meaning of the provision

applies to Brannan and that the provision cannot be read to

include, imply, or otherwise require that the use or possession

was with the intent to commit a crime.   We view "or" as a

disjunctive, connecting phrases with different meanings.     See

Reiter v. Sanotone Corp., 442 U.S. 330, 339 (1979).   What follows

the "or" in § 2K2.1(b)(5) is not merely an explication of what

preceded it, as Brannan urges.

          That the Sentencing Commission intended that "or" be

read as a disjunctive term is clear upon review of the amendments

made to § 2K2.1 since its adoption.   Section 2K2.1 initially

provided for an increased offense level "[i]f the defendant used

the firearm in committing or attempting another offense."     See
U.S.S.G. Appendix C, Amendment 189.   An amendment to this


                                 11
Guideline provided for an increased sentence "[i]f the defendant

used or possessed the firearm in connection with commission or

attempted commission of another offense."      Id.   A separate

Guideline was introduced "to address transfer of a weapon with

intent or knowledge that it will be used to commit another

offense."   Id.      On November 1, 1991, these Guidelines were

consolidated and became § 2K2.1(b)(5).     The first part of

§ 2K2.1(b)(5) addresses use or possession of a firearm in

connection with another felony; the second part addresses

attempts and transfers.      See U.S.S.G., Appendix C, Amendment 374.

Accordingly, the Sentencing Commission intended § 2K2.1 to

provide for a four-level enhancement for two different types of

conduct.

            As to the contention that "in connection with" another

felony implies an element of intent, we can divine no such

implication.      We agree with other circuit courts which have

considered the issue that "terms used within the federal

sentencing guidelines and not specifically defined therein

generally should be given their common usage."       United States v.
DeLuca, 17 F.3d 6, 9 (1st Cir. 1994).     Thus, "connection," as

used in section § 2K2.1(b)(5), is defined as a "causal or logical

relation or sequence."      Webster's Ninth New Collegiate Dictionary

278 (1990).    We find that the plain meaning of "in connection

with" in § 2K2.1(b)(5) does not suggest that criminal intent need

be shown in order to apply this sentencing enhancement provision.

We thus reject Brannan's first two arguments as contrary to the

plain language and meaning of the section.


                                   12
            Brannan's last argument is premised upon two Supreme

Court cases which are easily distinguishable.     Staples and

Ratzlaf dealt with the requisite intention for conviction of a

crime, not for purposes of imposing an enhanced sentence under

the Guidelines.    They are clearly inapposite.   Brannan has not

cited, and we cannot find, any authority for the proposition that

mens rea must exist in connection with a particular attribute or

behavior that will result in enhancement of an offense level for

purposes of sentencing.    Further, we are unwilling to read this

requirement into the Guidelines.      We find, therefore, that the

district court properly enhanced the offense level under

§ 2K2.1(b)(5).



                                III.

            The second issue presented by Brannan involves the

application of § 5G1.3(c) of the Guidelines, recently explored by

this Court in Holifield.    As indicated above, § 5G1.3 addresses

the situation in which a defendant already subject to an

undischarged term of imprisonment is being sentenced for another

offense.0   Before the district court and on appeal, Brannan
0
 Section 5G1.3 has three subsections. Subsection (c) applies if
(a) and (b) do not. Section 5G1.3(a) provides that if the second
offense was committed while defendant was serving, or after
sentencing but before service of, a term of imprisonment, the
sentence for the second offense is to run consecutively from the
sentence for the first offense. Section 5G1.3(b) provides that
if (a) does not apply and if the offense giving rise to the
undischarged term of imprisonment was fully taken into account in
determining the offense level for the second offense, then the
sentence for the second offense shall run concurrently to the
undischarged term of imprisonment. Section 5G1.3(c) is labeled a
"Policy Statement"; we note that "[t]he policy statements and

                                 13
argued that subsection (c) applies to the instant situation.0

Subsection (c) provides:
               [T]he sentence for the instant offense shall be
               imposed to run consecutively to the prior
               undischarged term of imprisonment to the extent
               necessary to achieve a reasonable incremental
               punishment for the instant offense.


U.S.S.G. § 5G1.3(c).

           The trial judge read the section literally and, finding

no basis for incremental punishment, sentenced Brannan to the

Guideline sentence for the instant offense -- 100 months, at the

lowest end of the sentencing range -- to run concurrent with the

undischarged term being served for the manslaughter conviction.

The trial judge did not believe he had the power to do anything

else.   See Appendix, pp. 124-25.

           Section 5G1.3(c) is a Policy Statement that is further

explored and explained in the Commentary to the Guidelines.0    As

is reflected in the Commentary to § 5G1.3(c), specifically

Application Note 3, the sentence that the court imposes under

this section should be the result of a methodology that can
produce a sentence different from that required by the strict

application of the Guideline criminal offense level and criminal

history category of the isolated second offense.    Application

Note 3 indicates that the court should examine the sentence that

commentary contained in the guidelines are binding on the federal
courts." United States v. Holifield, 53 F.3d 11, 13 n.2 (3d Cir.
1995).
0
  We therefore do not address the question whether U.S.S.G.
§5G1.3(b) applies to this case.
0
  As noted above, both the Policy Statements and the Commentary in
the Sentencing Guidelines are binding on the federal courts. See
United States v. Holifield, 53 F.3d 11, 13 n.2 (3d Cir. 1995).


                                14
would have resulted if all of the offenses -- in this instance,

the manslaughter offense and the possession of a firearm by a

convicted felon -- had been federal offenses for which sentences

were being imposed at the same time under § 5G1.2.   See U.S.S.G.

§ 5G1.2 (Sentencing on Multiple Counts of Conviction).

           This determination can require an approximation.    As

noted in the Application Note, where the sentence being served is

a state sentence, as in the instant situation, information

available may permit only a rough estimate of the total

punishment that would have been imposed under the Guidelines. The

methodology calls for the court to engage in a fiction, that is,

to approach sentencing as if both offenses were being sentenced

at once.

           Once the court determines -- whether by approximation,

estimation, or otherwise -- what sentence would be called for

under the Guidelines, the court then examines whether, in view of

the sentence that would have resulted, some incremental

punishment for the instant offense is warranted.   This

incremental punishment is apparently intended to add consecutive

punishment where the sentence already imposed for the prior

offense would not suffice as the total sentence using § 5G1.2, so

that some recognition of the incremental effect of the later

offense, consecutive to the original sentence, is warranted.

           As noted in Holifield, the result of these calculations

can, however, be a departure; that is, the sentence actually

imposed for the second offense, which results from the

methodology discussed above, can be different from, and in some


                                15
instances less than, what would otherwise have been called for

under strict application of the Guidelines in sentencing for the

second offense alone.   The focus of this Guideline section is to

determine the appropriate sentence, and if as a result the

sentence is less than the Guideline sentence for the second

offense, the Guidelines and Holifield permit -- but do not

require or even encourage -- this result.

          In the instant setting, the application of this

methodology could have led to a different result.   As sentenced,

Brannan will serve a total of 108 months for the two offenses.0

Under the methodology advocated by the Commentary, the court

could have determined, hypothetically, that the Guideline

sentence for manslaughter and gun possession, if sentenced

together, would have been 100 months; that no incremental penalty

was warranted and therefore a concurrent sentence was called for;

and that because Brannan had already served eight months for the

first offense, it would sentence him to only 92 months for the

second offense (to run concurrently with the remaining

undischarged term, and consecutive thereafter).0

0
  Brannan started serving his manslaughter sentence on June 6,
1994 and was sentenced to serve 100 months for the second offense
on February 10, 1995, concurrent with the remainder of the first
offense term.
0
  This court noted in Holifield that while departure from the
Guidelines was not required, the General Counsel to the
Sentencing Commission had stated in a letter to a United States
Probation Officer that it could be justified:
           Occasionally, a downward departure may be necessary to
           make this provision work properly. For example, where
           the defendant has been in state custody for a long
           time, a downward departure may be the only feasible way
           to achieve an appropriate total punishment, assuming


                                16
          The Commentary states that the "methodology does not,

itself, require the court to depart from the guideline range

established for the instant federal offense."   U.S.S.G. § 5G1.3

(Commentary).   However, as noted by the court in Holifield, the

court can depart if the court believes it should do so in order

to arrive at the appropriate sentence.0   Each case will be

different, depending on the application of the methodology to the

facts.

          Therefore, this methodology rests discretion in the

trial court in the "as if" scenario, to take into account both

offenses, how they would be treated under § 5G1.2 if they were

multiple counts, and whether incremental punishment is necessary.

If the sentencing court engages in this exercise as recommended

by the methodology, it is not constrained by the concept of

"giving credit" for prior time but can give recognition to time

served by following the procedures suggested.   The result of the

methodology dictates the attributes of the appropriate sentence.

The examples set forth in the Illustrations following the

Application Notes clarify the methodology.




           the court wishes to employ a departure to achieve the
           desired objective.
Holifield, 53 F.3d at 14 n.5 (citation omitted).
0
  Other circuits agree that courts may depart from the Guideline
sentencing range under § 5G1.3(c) when sufficient justification
exists. See United States v. Whiteley, 54 F.3d 85, 91 (2d Cir.
1995) (stating that a court may impose a sentence lower than the
sentencing range if it departs downward); United States v.
Gullickson, 981 F.2d 344, 349 (8th Cir. 1992) (stating that
district court may depart from sentencing range if sufficient
justification exists).


                                17
          We indicated in Holifield that the sentencing court is

not required to apply the methodology and is not required to

depart.   In the instant case, the sentencing court clearly was

uncomfortable with the length of sentence and was searching for a

way to reduce it.   However, that court believed it had no power

to sentence Brannan to anything other than the applicable

Guideline sentence for the second offense to run concurrent from

the date of sentencing.     See supra, n. 5.   We conclude that the

district court did have the power to depart under the § 5G1.3(c)

methodology, and we therefore will remand so that the district

court will have the opportunity to vacate the sentence and

resentence consistent with this opinion.

_________________________




                                  18
