                                                                                                                           Opinions of the United
1997 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


12-10-1997

USA v. Knobloch
Precedential or Non-Precedential:

Docket
96-3022




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Recommended Citation
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Filed December 10, 1997

UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT

NO. 96-3022

UNITED STATES OF AMERICA

v.

PAUL KNOBLOCH
Appellant

On Appeal From the United States District Court
For the Western District of Pennsylvania
(D.C. No. 95-00031E)

Argued October 14, 1997

BEFORE: STAPLETON, ALITO, and ROSENN,
Circuit Judges

(Opinion Filed December 10, 1997)

       Frederick W. Thieman
       U.S. Attorney
       Paul J. Brysh (Argued)
       Bonnie R. Schleuter
       Office of the U.S. Attorney
       633 U.S. Post Office & Courthouse
       Pittsburgh, PA 15219
       Attorneys for Appellee




       Alan Ellis
       Peter Goldberger
       James H. Feldman, Jr. (Argued)
       Law Offices of Alan Ellis
       50 Rittenhouse Place
       Ardmore, PA 19003
       Attorneys for Appellant

OPINION OF THE COURT

STAPLETON, Circuit Judge:

Paul Knobloch challenges his judgment of conviction and
sentence on three grounds. First, he insists that his plea to
Count 5 of the indictment was not voluntary, knowing, and
intelligent because the district court, in the course of the
plea colloquy, misdescribed the elements of the offense
charged. In addition, he contends that the court erred by
imposing a role in the offense enhancement to his sentence
based on testimonial evidence from a related trial, to which
he had no reasonable opportunity to respond. Finally, he
asserts that the court misapplied the Sentencing Guidelines
by impermissibly enhancing his sentence for possession of
a dangerous weapon.

Because Knobloch failed to call these alleged errors to the
attention of the district court, we review for plain error only.
While the district court committed an apparently
inadvertent error in describing the elements of the offense
charged in Count 5, we will not disturb Knobloch's guilty
plea to that count because he does not claim that he would
have pleaded differently had the error not occurred.
Moreover, we find no fault in the court's consideration of
relevant testimony from another related trial. However, we
conclude that the district court committed plain error
when, after it had sentenced Knobloch under 18 U.S.C.
S 924(c) for carrying a firearm during and in relation to a
drug crime, it enhanced Knobloch's sentence under
U.S.S.G. S 2D1.1 based on his possession of other firearms.

I. Background

Paul Knobloch and Jason Smith initiated a marijuana
trafficking operation. In the course of the conspiracy, they

                                2



received a 1000-pound crate of marijuana, which they
stored in Smith's home. Sometime later, Knobloch and
Jeffrey Davis executed a plan to steal approximately 300
pounds of this stash. While Knobloch diverted Smith at a
nightclub, Davis used a van borrowed from Knobloch's
father to steal the marijuana and transport it to a storage
locker. Over the next five months, Knobloch, Davis, and
Daniel Goodwin sold approximately half of this marijuana
and divided the proceeds.

Knobloch was also contemporaneously involved in the
distribution of anabolic steroids. At one point, Knobloch
sold Davis a bag of steroids. By that time, however, Davis
was cooperating with the authorities, and Knobloch was
arrested at the scene of the transfer immediately after the
exchange. Police seized a loaded Glock 19, 9-mm handgun
from Knobloch at the time of the arrest. When they later
searched Knobloch's apartment, they found two other
handguns--a Spectre .45 with a laser sight and a TEC-9,
9-mm semi-automatic--and ammunition clips in close
proximity to a large carton of anabolic steroids.
Knobloch was subsequently indicted on six counts.
Counts 1, 4, and 5 charged him, respectively, with
conspiracy to distribute marijuana, distribution of anabolic
steroids to Davis, and using and carrying the Glock 19,
9-mm handgun during and in relation to the distribution of
anabolic steroids to Davis. Two of the other three counts,
Counts 2 and 3, charged Knobloch, respectively, with
possession with intent to distribute the anabolic steroids in
his apartment, and with use of the Spectre .45 and the
TEC-9 during and in relation to the possession of those
steroids.

In a plea agreement, Knobloch agreed to plead guilty to
Counts 1, 4, and 5. He further "acknowledge[d] his
responsibility for the conduct charged in Counts Two, Three
and Six . . . and stipulate[d] that the conduct charged in
those counts may be considered by . . . the District Court
in imposing sentence." J.A. at 14-15. In exchange, the U.S.
Attorney agreed to dismiss Counts 2, 3, and 6 after the
imposition of sentence.

As contemplated by the plea agreement, Knobloch

                                3



changed his original not-guilty pleas to Counts 1, 4, and 5.
At the change of plea hearing, the court asked Knobloch a
number of questions to ensure that his plea was voluntary,
knowing, and intelligent. The court informed Knobloch that
Count 5 of the indictment alleged that he "did knowingly
use and carry a firearm, that is, a Glock 19, .9[sic]
millimeter pistol, during and in relation to a drug
trafficking crime" in violation of 18 U.S.C. S 924(c)(1).1 It
then asked Knobloch, "Do you understand the nature of the
charges that I just read to you, sir?" J.A. at 26. Knobloch
responded, "Yes, I do." Id. A moment later, however, the
court incorrectly described the elements of this crime. It
advised Knobloch:

       [I]n order to for the crime of use of a firearm in relation
       to a drug trafficking offense to be established, the
       Government must prove all of these essential elements
       beyond a reasonable doubt: That the Defendant
       knowingly used or carried a firearm as charged in the
       indictment, that the Defendant did so during and/or in
       relation to a drug trafficking crime.

J.A. at 28 (emphasis added). The emphasized portion
incorrectly implied that the government might secure a
conviction on a showing that Knobloch used or carried a
firearm either during or in relation to the crime, whereas
the statute requires use or carrying both during and in
relation to the crime. No one objected to this description of
the elements of the offense, and when asked if he
understood the necessary elements of Count 5, Knobloch
responded, "Yes, I do." Id. The court accepted Knobloch's
plea.

In preparation for sentencing, the government and
Knobloch filed objections to the recommendations in the
Presentence Report. Two of the government's objections are
relevant to this appeal. First, it requested a two-level
enhancement under U.S.S.G. S 3B1.1(c) for Knobloch's
_________________________________________________________________

1. 18 U.S.C. S 924(c)(1) provides in relevant part:

       Whoever, during and in relation to any crime of violence or drug
       trafficking crime . . . uses or carries a firearm, shall . . . be
       sentenced to imprisonment for five years . . . .

                                4



"supervisory role" and his "organizational position and
leadership of Goodwin and Davis." J.A. at 49. Second, the
government argued for another two-level enhancement
under U.S.S.G. S 2D1.1(b)(1) based on Knobloch's
"possessing the Spectre .45 and TEC-9 assault pistols in
connection with the cache of steroids in his apartment."
J.A. at 47. It contended that such an enhancement was
appropriate so long as the court "decide[d], by a
preponderance of the evidence, that the two firearms . . .
which were found on top of the carton full of steroids [in
the apartment] were probably connected to the underlying
offense of possessing steroids with intent to distribute
them," i.e., the underlying offense charged in Count 2. J.A.
at 47-48. The Probation office disagreed with the dangerous
weapon enhancement, and it referred specifically to
Application Note 2 to S 2K2.4, the provision upon which
Knobloch relies before us. It supported the enhancement
for Knobloch's role in the marijuana conspiracy.

At the sentencing hearing, the prosecutor declared that
"it is clear that it was Knobloch who orchestrated the theft
of the marijuana, and he clearly supervised Davis and
Goodwin in the theft of the marijuana and then the later
distribution." J.A. at 75. In support of this assertion, the
prosecutor noted that "we have that with the fact that he
drew the plan, he being Knobloch, told Davis where to go,
what to take, where to go after taking it, where to store it,
meeting with Goodwin, and it was all done at the bequest
[behest] of Mr. Knobloch." Id. In response to this,
Knobloch's counsel observed that "it is certainly Jeff Davis'
position that Paul Knobloch orchestrated this," but she
challenged Davis's credibility by noting that he had been
cooperating with the government and that "[h]e puts the
blame on other people." Id. Up to this point, no one had
mentioned the previous trial of Jason Smith in which Davis
had testified before the same judge. Knobloch's counsel
made the first reference to the trial when she asserted that
"I don't think it is at all clear from the record as it exists,
even in Jason Smith's trial from the bit I've heard about it,
that this was orchestrated by Paul Knobloch. If anything,
there was a dual role with Jeff Davis and Paul Knobloch
together working out this scheme." J.A. at 75-76. In
response to this, the prosecutor argued as follows:

                                5



       Judge, just for purposes of making your determination,
       I would cite you to these facts that give Knobloch or at
       least put him in a position of being that supervisor or
       manager. He is the one that is there when it's
       unloaded. He is the one that is called by Smith. He is
       the one that goes to Smith's trailer later that morning
       and finds out later the contents of it by Smith, it isn't
       Davis. And even in Knobloch's grand jury testimony,
       it's always him, he knows it. Your Honor, he is the one
       -- Davis testified to you in Court that you could also
       draw the inference of Knobloch's supervisory role. Davis
       had never been to Smith's trailer, had never been there
       before, didn't know what to do. And you can premise
       your decision on those factors.

J.A. at 76 (emphasis supplied). Knobloch's counsel did not
object to this reference to Davis's testimony at Smith's trial.
The district court concluded that a two level role in the
offense enhancement was appropriate since Knobloch was
"an organizer, leader, manager, or supervisor" of the crime.
J.A. at 86.

When attention was turned to the possibility of an
enhancement under U.S.S.G. S 2D1.1(b)(1), the government
stressed that the firearms it was relying on for this purpose
were those that were alleged in Count 3 to have been
possessed in connection with the underlying offense
charged in Count 2, i.e., the possession of the anabolic
steroids in the apartment with intent to distribute. It
pointed out that these guns were to be distinguished from
the Glock 19 seized at the time of the Davis distribution
which provided the foundation for Knobloch's conviction
under 18 U.S.C. S 924(c) for carrying a firearm in relation
to the distribution to Davis. Even though the plea
agreement called for the dismissal of Count 2, the
government urged only that the court find a nexus between
the Spectre .45 and TEC-9 weapons and the possession of
the anabolic steroids in the apartment, as alleged in that
count. The government did not ask the court to find a
nexus between the possession of these weapons and the
distribution to Davis. The district court found that the
Spectre .45 and TEC-9 were possessed in connection with
the unlawful possession of the cache in the apartment, but

                                6



it made no finding with respect to any nexus between those
firearms and the distribution to Davis. Knobloch's counsel
argued against a finding of a connection between the
weapons and the cache in the apartment, but she did not
object to the absence of a finding of a connection between
them and the Davis distribution. Nor did she make any
reference to U.S.S.G. S 2K2.4 or its Application Notes, the
provisions Knobloch relies upon before us. Based on its
finding of a nexus with the cache in the apartment, the
court enhanced Knobloch's offense level under S 2D1.1(b)(1)
and sentenced him to 147 months of imprisonment.

II. Standard of Review

Knobloch did not raise before the district court any of the
three alleged errors he relies on before us.2 Accordingly, we
will review Knobloch's judgment of conviction and sentence
solely for plain error. See Fed. R. Crim. P. 52(b); 18 U.S.C.
S 3741; United States v. Oser, 107 F.3d 1080, 1088 (3d
Cir.), cert. denied, 118 S. Ct. 206 (1997).

In United States v. Olano, 507 U.S. 725 (1993), the
Supreme Court held that, in order for an appellate court to
find plain error, it must first find 1) an error 2) that is plain
and 3) that affects substantial rights. Even if all three of
these prerequisites are met, an appellate court may correct
an error to which no objection was made "only if (4) the
error `seriously affect[s] the fairness, integrity, or public
reputation of judicial proceedings.' " Johnson v. United
States, 117 S. Ct. 1544, 1549 (1997) (quoting Olano, 507
U.S. at 732) (internal quotation marks omitted).
_________________________________________________________________

2. Two months after he entered his plea and on the same day that he
filed his objections to the PSI, Knobloch moved to withdraw his guilty
plea on grounds not relevant to this appeal. The motion did not refer to
the district court's misdescription of the elements of the offense charged
in Count 5. The district court denied the motion immediately prior to
sentencing.

                                7
III. Discussion

A. The Guilty Plea

The government concedes that the district court erred
when it described one element of the S 924(c)(1) offense as
"during and/or in relation to" a drug crime, and it further
concedes that the error was plain. We agree with the
government, however, that this error did not affect
Knobloch's substantial rights. The Supreme Court
explained in Olano that "affected substantial rights" in the
context of plain error review "in most cases . . . means that
the error must have been prejudicial: It must have affected
the outcome of the district court proceedings." Olano, 507
U.S. at 1778. The burden is on the defendant to show that
the error in fact prejudiced him, and "[i]n most cases, a
court of appeals cannot correct the forfeited error unless
the defendant shows that the error was prejudicial." Id.; see
also United States v. Bethancourt, 65 F.3d 1074, 1079 (3d
Cir. 1995).

Knobloch insists that the facts of this case are such that
the district court's misstatement could have been material
to a decision on how to plead to Count 5. We have searched
the record in vain, however, for any claim by Knobloch that
he would have entered a different plea had the district
court correctly described the necessary elements of the
offense. It is thus apparent that Knobloch was not
prejudiced by the district court's misstatement of the law.
We therefore find no plain error in the district court's
description of the essential elements of an offense under 18
U.S.C. S 924(c)(1).

B. Role in the Offense

We also decline to find plain error in the possibility that
the district court may have relied on testimony from
another trial to support its conclusion that Knobloch was a
leader, organizer, or supervisor. No rule of law prohibits the
court from making its factual conclusions at sentencing
based on testimony from a separate proceeding, United
States v. Reyes, 930 F.2d 310, 316 (3d Cir. 1991), and
Knobloch concedes as much. Nonetheless, Knobloch

                                8



focuses on dictum from Reyes stating that "the defendant
must be given a reasonable opportunity to respond to the
evidence." Id. (citing Fed. R. Crim. P. 32(c)(3)). He insists
that his attorney was taken by surprise by the court's
consideration of Davis's testimony at Smith's trial and that
he lacked a reasonable opportunity to respond to this
damaging evidence.

Knobloch's counsel clearly was not surprised by any
reference to Davis's testimony--in fact, it was she who first
mentioned the testimony. Moreover, the record
demonstrates that counsel was afforded ample opportunity
after the prosecutor's response to say anything she wished
about that testimony. The court was clearly entitled to
understand from her argument that she felt she knew
enough about Davis's testimony at Smith's trial to make a
representation to the court concerning its content. Based
on that fact and the fact that counsel, following the
prosecutor's response, did not ask for an opportunity to
review the transcript of Davis's testimony, we conclude that
any consideration the district court gave to that testimony
was not error, much less plain error.3

We note, as well, that the record shows no prejudice to
Knobloch from this alleged error. Appellate counsel has had
ample opportunity since the sentencing hearing to review
Davis's testimony and articulate some basis for believing it
would have benefited Knobloch in some way had the
district court, sua sponte, ordered a continuance of the
proceedings to afford defense counsel an opportunity for
further preparation. No relevant theory of prejudice has
been advanced in the briefing before us.

C. Dangerous Weapon Enhancement

Section 2D1.1(a) of the United States Sentencing
Guidelines prescribes the base offense level for a crime
involving trafficking or conspiring to traffic in drugs.
Section 2D1.1(b)(1) provides a "specific offense
_________________________________________________________________

3. To the extent Knobloch is contending that the record does not support
the court's finding regarding his role in the offense, we conclude to the
contrary.

                                  9



characteristic" which directs that if "a dangerous weapon
(including a firearm) was possessed [during the offense, the
base offense level must be] increase[d] by 2 levels."
Application Note 3 explains that the "adjustment should be
applied if the weapon was present [during the underlying
offense], unless it is clearly improbable that the weapon
was connected with the offense."

Section 2K2.4 of the Guidelines provides that the
sentence for use of a firearm during and in relation to a
drug crime in violation of 18 U.S.C. S 924(c) is "the term of
imprisonment . . . required by statute." Under the
circumstances leading to Knobloch's S 924(c) conviction,
this sentence was a mandatory, consecutive, five years of
incarceration. Application Note 2 to S 2K2.4 provides as
follows:

       Where a sentence under this section is imposed in
       conjunction with a sentence for an underlying offense,
       any specific offense characteristic for the possession,
       use, or discharge of an explosive or firearm (e.g.,
       S 2B3.1(b)(2)(A)-(F) (Robbery)) is not to be applied in
       respect to the guideline for the underlying offense.

In determining Knobloch's sentence for the offenses in
Counts 1, 4 and 5 to which he pled guilty, the district court
grouped the marijuana conspiracy and steroid distribution
offenses to arrive at a base offense level. It then applied a
two-level specific offense characteristic enhancement for
possession of the Spectre .45 and the TEC-9 under
U.S.S.G. S 2D1.1(b)(1). In addition, pursuant to 18 U.S.C.
S 924(c) and U.S.S.G. S 2K2.4(a), the district court imposed
a mandatory five-year sentence--consecutive to the
sentence for the drug offenses--on Count 5 for using and
carrying the Glock 19 during and in relation to Knobloch's
sale of steroids to Davis. We conclude that the district court
committed plain error when it applied a two-level specific
offense characteristic enhancement under S 2D1.1(b)(1)
when it was required to impose a five year sentence under
S 924(c).

The government's theory with respect to the S 2D1.1(b)(1)
enhancement is not altogether clear to us. As we have
noted, the indictment alleged that the Spectre .45 and TEC-

                                10



9 were possessed in connection with the offense charged in
Count 2, i.e., possession of the carton of anabolic steroids
in the apartment. At times, the government seems to
suggest that, even though there has been no conviction
under Count 2, possession of these weapons in connection
with the crime there charged calls for a S 2D1.1(b)(1)
enhancement because Knobloch stipulated that "the
conduct charged in Counts Two, Three, and Six [could] be
considered by . . . the District Court in imposing sentence."
We reject that suggestion.

Knobloch did not stipulate that he could be sentenced
other than in accordance with the Guidelines. The
Guidelines specify base offense levels only for crimes of
which the defendant has been convicted, and it is apparent
from its text and Application Note 3 that S 2D1.1(b)(1)
authorizes a specific offense characteristic enhancement
only for a dangerous weapon possessed in connection with
the offense of conviction giving rise to the base offense level
to be enhanced.4

At other times, the government appears to be arguing
that the possession of the Spectre .45 and the TEC-9 calls
for an enhancement under S 2D1.1(b)(1) because that
possession was in connection with the anabolic steroid
distribution to Davis charged in Count 4. This theory is
flawed in two ways. First, the district court made no finding
of any connection between the carton of steroids in the
_________________________________________________________________

4. Knobloch stipulated in his plea agreement that "the conduct charged
in Counts Two, Three and Six [was `relevant conduct' to] be considered
by the District Court in imposing sentence." The possession of the guns
in the apartment was thus clearly relevant conduct. But a sentencing
court can look to relevant conduct only to answer the questions posed
by the relevant guidelines. Here, the issue posed by S 2D1.1(b)(1) was
whether Knobloch possessed a dangerous weapon in connection with the
distribution to Davis, the offense upon which he was being sentenced,
and the court was free to look to all relevant conduct in resolving this
issue. The government, however, suggests that the court could properly
look to relevant conduct to answer a question not posed by S 2D1.1(b)(1),
i.e., whether Knobloch possessed a dangerous weapon in connection
with his possession of the carton of steroids in the apartment, an offense
of which he had not been convicted and on which he was not being
sentenced. It is this suggestion that we reject.

                                11



apartment and the steroids distributed to Davis or of any
other nexus between the Spectre .45 and the TEC-9 and
the Davis transaction.

There is a more fundamental problem with the
government's second theory, however -- one that could not
be remedied if we were to remand for further proceedings.
The government's problem here is irremediable because a
S 2D1.1(b)(1) enhancement of the base offense level for the
distribution to Davis is barred by the unambiguous
directive found in Application Note 2 to S 2K2.4.

Courts are required to follow the Application Notes to the
Federal Sentencing Guidelines in imposing sentences for
federal offenses. Stinson v. United States, 508 U.S. 36, 38
(1993); United States v. Figueroa, 105 F.3d 874, 876 (3d
Cir.), cert. denied, 117 S. Ct. 1860 (1997). Application Note
2 to U.S.S.G. S 2K2.4 plainly prohibits a two-level
enhancement under these circumstances for possession of
any firearm--whether it be the one directly involved in the
underlying offense or another firearm, even one in a
different location. If the court imposes a sentence for a drug
offense along with a consecutive sentence under 18 U.S.C.
S 924(c) based on that drug offense, it simply cannot
enhance the sentence for the drug offense for possession of
any firearm.5
_________________________________________________________________

5. The government asserts that three other courts of appeals have
reached a contrary conclusion. We find none of the three cited cases
persuasive on the relevant point because none of them undertakes any
analysis of the Note or bases its legal conclusion on it. In United States
v. Willett, 90 F.3d 404 (9th Cir. 1996), the court affirmed an
enhancement for possession of a knife and a silencer along with a
sentence under section 924(c). See id. at 407. The court in Willett
addressed only an argument that this constituted impermissible double
counting, not that it violated Application Note 2. In United States v.
Washington, 44 F.3d 1271 (5th Cir. 1995), the court also addressed a
double counting argument--not an asserted violation of Application Note
2. Washington had received a sentence under 924(c) for his firearm as
well as an enhancement pursuant to section 2K2.4 because he had
armed his accomplice with another firearm. Although the court quoted
Application Note 2, see id. at 1280-81 n. 31, it did not analyze or base
its legal conclusion on the Note. It concluded only that this did not
constitute double counting because the 924(c) sentence and the 2K2.4

                                12



Thus, the court erred in applying the dangerous weapon
enhancement to Knobloch's sentence. We further conclude
that this error was plain, i.e., clear. Given the unambiguous
directive of Application Note 2 and the fact that it was
specifically called to the attention of the district court by
the Probation Office, we are at a loss to explain why that
Application Note was ignored in the course of the
sentencing. As we have noted, to support a discretionary
correction of this "plain error," the district court's mistake
must have affected Knobloch's substantial rights in a way
that seriously affects the fairness, integrity, or public
reputation of judicial proceedings. We have no trouble
acknowledging that the error in this case in fact affected
Knobloch's substantial right to suffer no greater an
imposition on his liberty than the Guidelines allow. We also
recognize that the Guidelines were designed to promote fair
and consistent treatment of offenders, and that the
diversion from the Guidelines in this case seriously affected
the fair administration of the sentencing process. The two-
level enhancement to Knobloch's base offense level
increased his sentencing range from 130-147 months to
147-168 months.6 Under these circumstances, we hold that
the court committed plain error when it enhanced
Knobloch's sentence in contravention of Application Note 2
to U.S.S.G. S 2K2.4.
_________________________________________________________________

enhancement related to two separate guns. Finally, in United States v.
Kimmons, 965 F.2d 1001 (11th Cir. 1992), the court devoted one
paragraph to the sole issue of double counting, and it did not refer to
Application Note 2. Kimmons also received a 924(c) sentence and a
2K2.4 enhancement because he had armed both himself and his
accomplice in a robbery. Thus, none of the cases cited by the
government interprets Application Note 2. Nor does any of them present
a situation, like the one here, where Application Note 2 was specifically
called to the attention of the court as a bar to the enhancement at issue.

6. This calculation includes the consecutive mandatory 60-month
sentence under 18 U.S.C. S 924(c) added to base levels 27 and 29.




                                13



IV. Conclusion

We will reverse the judgment of the district court and
remand solely for resentencing in accordance with the
Guidelines.

                                14



ROSENN, Circuit Judge, concurring:

I concur with the majority with respect to its disposition
that there was no plain error in the district court's
description of the essential elements of an offense under 18
U.S.C. S 924(c)(1). I also agree with the majority that there
was no plain error in the district court's reliance on
testimony from another trial in concluding that Knobloch
was a leader, organizer, or supervisor. I, therefore, join with
it as to these aspects of its opinion. I write separately
primarily because, although I agree with the result the
majority reaches as to all three issues in this appeal, I
cannot agree that plain error is the proper standard of
review of the defendant's claim that the district court
improperly enhanced his base offense level based on his
possession of two firearms in connection with his storing a
cache of steroids in his apartment.

As to the weapons possession issue, Knobloch contends
that the enhancement violated U.S.S.G. S 2K2.4,
Application Note 2. See Maj. op. at 10 (quoting Application
Note 2). According to Knobloch, the application note
prohibits a district court from enhancing, pursuant to
U.S.S.G. S 2D1.1(b)(1), a defendant's base offense level for
possessing a firearm when the defendant also is to be
sentenced for a violation of 18 U.S.C. S 924(c)(1) even if the
S 924(c)(1) sentence is for a different weapon than the
weapon upon which the enhancement is predicated.

The majority and I agree that Knobloch is correct on this
point. The majority, however, concludes that plain error is
the standard of review of this claim. See Maj. op. at 2, 7.
The plain error standard of review applies on appeal when
a defendant fails to object to an error in the court below.
See Fed. R. Crim. P. 52(b). The record and the briefs do not
support the majority's conclusion that Knobloch failed to
object to the enhancement. The Government explicitly and
unequivocally conceded in its brief that Knobloch properly
preserved this issue for appeal. Indeed, it stated that
Knobloch's challenge "presents a legal issue subject to
plenary review," see Gov't's br. at 2, and the Government
never even mentioned "plain error" in connection with its
argument on this issue. Id. at 23-25. That concession was
appropriate in light of Knobloch's timely objection to the

                                15



imposition of the enhancement, albeit on a slightly different
ground, (see App. at 80-81), and the probation officer's
refusal to recommend the enhancement citing Application
Note 2. See Addendum to Presentence Investigation Report
at 1. I do not think that this court should second guess the
Government's concession in its brief that Knobloch properly
preserved this issue for appeal especially when there is no
reason to do so.

Although this may appear to be a small point, it is critical
to this case. If plain error is the appropriate standard of
review of Knobloch's claim, this court could not correct the
error. A court of appeals may correct an unobjected-to error
only if the error was "plain" and if it affected the
defendant's "substantial rights." Fed. R. Crim. P. 52(b);
United States v. Olano, 507 U.S. 725, 732 (1993). An error
is plain only if it is "clear" or "obvious." 507 U.S. at 734
(citing United States v. Young, 470 U.S. 1, 17 n.14 (1985)
and United States v. Frady, 456 U.S. 152, 163 (1982)). The
rules permit a court of appeals to correct such an error
because it is so clear or obvious that the district court
should have avoided it even if it was not pointed out by the
parties. The error committed by the district court in this
case certainly was not clear or obvious. Indeed, the district
court's construction of Application Note 2 may have been
flawed but it was reasonable, was supported by case law
from three other courts of appeal, and there are no cases to
the contrary. The Fifth, Ninth, and Eleventh Circuit courts
of appeal have all addressed this issue and determined that
enhancement of a defendant's base offense level based on
the possession of a firearm is permitted even when a
defendant will receive a S 924(c)(1) sentence as long as the
enhancement and sentence are based on different weapons,
as is the case here. See United States v. Willett, 90 F.3d
404, 408 (9th Cir. 1996) ("We find that the district court did
not err in imposing the two-level enhancement on top of the
S 924(c) conviction because the commission of a drug
trafficking crime with a gun, silencer and knife poses a
greater risk than does the commission of the same crime
with only a gun"); United States v. Washington, 44 F.3d
1271, 1280-81 (5th Cir. 1995) (permitting two-level
enhancement based on co-conspirator's handgun
possession when defendant is also to receive S 924(c)

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sentence for a different weapon); United States v. Kimmons,
965 F.2d 1001, 1011 (11th Cir. 1992) (same). Even if those
cases are distinguishable on the grounds offered by the
majority, they are not so plainly or obviously so as to make
reliance upon them unreasonable. I, therefore, believe that
under these circumstances, plain error should not be
ascribed to the district court and the defendant may
unequivocally raise the issue on appeal.

I also note my disagreement with the majority's
statement that the sentencing guidelines "authorize[ ] a
specific offense characteristic enhancement only for a
dangerous weapon possessed in connection with the offense
of conviction ...." Maj. op. at 11. Although philosophically I
may agree that this should be the rule, the language of the
guidelines and the case law are to the contrary. It is well
settled that when sentencing a defendant, a district court
must consider all conduct relevant to the offense of
conviction. U.S.S.G. S 1B1.3 provides that specific offense
characteristics applied in controlled substance possession
and distribution cases are to be determined based on"all
acts and omissions ... that were part of the same course of
conduct or common scheme or plan as the offense of
conviction." See also United States v. Frierson, 945 F.2d
650, 652-53 (3d Cir. 1991) ("relevant conduct also includes
all acts and omissions that were `part of the same course of
conduct or common scheme or plan as the offense of
conviction' ") (quoting U.S.S.G. S 1B1.3).1 According to the
guideline commentary, offenses are part of the same course
of conduct if they are similar to each other or are
committed close in time. See U.S.S.G. S 1B1.3, Application
Note 9(B).

In this case, there is no serious dispute that Knobloch's
August 28, 1995, possession of the steroids in his
apartment is part of the same course of conduct as the
offense of conviction, the August 28, 1995, distribution of
steroids to Davis. Both offenses were committed on the
same day and involve the same drug. If that is the case,
then the possession of the two firearms in connection with
_________________________________________________________________

1. Accord United States v. Ortega, 94 F.3d 764, 767-68 (2d Cir. 1996);
United States v. Ignacio Munio, 909 F.2d 436, 439 (11th Cir. 1990).

                                17



the steroids stored in Knobloch's apartment must be part of
the same course of conduct as the distribution of steroids
to Davis. Thus, application of the specific offense
characteristic of firearms possession is appropriate.
U.S.S.G. S 1B1.3, Application Note 3 does not support the
majority's conclusion that specific offense characteristics
only apply to the offense of conviction. Indeed, that
application note states that conduct for which the
defendant was not convicted must be considered in
calculating an offense level as long as it comes within the
definition of S 1B1.3.

Nonetheless, I would still reverse the district court on
this issue because U.S.S.G. S 2K2.4, Application Note 2
prohibits a district court from enhancing a defendants'
offense level no matter how many weapons a defendant
possesses if he is to receive a sentence for a S 924(c)(1)
violation as long as all of the weapons are possessed or
used as part of the same course of conduct or common
plan or scheme. This conclusion is mandated by the broad
language used by the guideline drafters. Application Note 2
prohibits application of "any specific offense characteristic"
for weapons possession when the defendant is to receive a
sentence under S 924(c) (emphasis added).

A True Copy:
Teste:

       Clerk of the United States Court of Appeals
       for the Third Circuit

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