                                                                                                                           Opinions of the United
2009 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


6-11-2009

USA v. Fogle
Precedential or Non-Precedential: Non-Precedential

Docket No. 08-1737




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"USA v. Fogle" (2009). 2009 Decisions. Paper 1195.
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                                                                    NOT PRECEDENTIAL

                        UNITED STATES COURT OF APPEALS
                              FOR THE THIRD CIRCUIT


                                      No. 08-1737


                           UNITED STATES OF AMERICA


                                           v.

                                   AARON FOGLE,

                                                 Appellant



                      On Appeal from United States District Court
                              for the District of New Jersey
                             (D.C. No.: 3-06-cr-00501-001)
                       District Judge: Honorable Mary L. Cooper


                      Submitted Under Third Circuit LAR 34.1(a)
                                  January 6, 2009

    Before: CHAGARES, HARDIMAN, Circuit Judges and GARBIS,* District Judge.

                                 (Filed: June 11, 2009)


                              OPINION OF THE COURT




*      The Honorable Marvin J. Garbis, Senior District Judge for the United States
District Court for the District of Maryland, sitting by designation.

                                           1
GARBIS, District Judge.

       Appellant, Aaron Fogle (“Fogle”), convicted on a plea of guilty to a violation of 18

U.S.C. § 922(g)(1) [felon in possession of a firearm], appeals from a sentence of 41

months of incarceration, imposed by District Judge, Mary L. Cooper of the District of

New Jersey.

       For the reasons set forth here, we affirm the sentence.



                                             I.

       Because we write exclusively for the parties, we will recount only those facts

essential to our decision.

       On November 5, 2005, Fogle, then a convicted felon,1 was involved in an

altercation with two women and a man inside a bar. Fogle left the bar, waited in his car

(a green Ford Expedition) and observed one of the women involved in the altercation

(referred to as “N.R.”) leave the premises and enter her car. Fogle then approached

N.R.’s vehicle, tapped on the window, brandished a loaded handgun, and made a

statement, discussed herein, to the effect that the only reason he did not shoot N.R. was

because she had nothing to do with the altercation. Fogle then returned to his car and

waited. N.R. called 911 and reported that a male inside a green Ford Expedition had

pulled a gun. She also called the bar to inform the others of what had happened.

1
      In 1996, Fogle had been convicted of robbery, theft, and use of an imitation
weapon for unlawful purposes, all crimes punishable by more than a year of
imprisonment. He received an 8 year sentence.

                                             2
       The police arrived promptly and, upon their arrival, the bar owner pointed out

Fogle’s car. Fogle drove away but was stopped shortly thereafter. He was found to have

a loaded handgun (later determined to be operable) and admitted that the weapon

belonged to him.

       Fogle was charged with violating 18 U.S.C. § 922(g)(1). After Fogle’s motion to

suppress evidence was denied, he pleaded guilty.

       At sentencing, the District Court found Fogle’s Sentencing Guideline Offense

Level to be 22, determined as follows:

              Base Offense Level – USSG2 § 2K2.1(a)(4)                20

              Enhancement for use of a firearm in connection
              with another felony – USSG § 2K2.1(b)(6)3               +4

              Acceptance of responsibility – USSG § 3E1.1(a)           -2
                                                                      ____
                                          Total Offense Level          22

       The District Court found Fogle to have five Criminal History Category points,

resulting in a Criminal History Category III classification. However, the District Court

granted Fogle’s motion for a downward departure to Criminal History Category II,

pursuant to USSG § 4A1.3(b)(1), based on her finding that Category III overstated the

seriousness of his criminal history.


2
       U.S. Sentencing Guidelines Manual.
3
      In the November 2007 Guidelines Manual, this provision was renumbered from
 ' 2K2.1(b)(5) to '2 K2.1(b)(6) but not otherwise changed. In the instant opinion, the
Court will refer to the provision as ' 2K2.1(b)(6).

                                            3
       Accordingly, Fogle’s Sentencing Guideline range after the departure was 46 to 57

months, for Offense Level 22, Criminal History Category II.

       However, the District Court granted Fogle’s request for a downward variance and

imposed a sentence of 41 months of incarceration, five months below the low end of

Fogle’s Guideline range.

       On appeal, Fogle contends that the District Court erred by applying the USSG §

2K2.1(b)(6) enhancement and that the Judge, while granting a downward variance as

requested, did not vary downward enough.



                                             II.

       The Sentencing Guidelines provide, with respect to a defendant convicted of

certain crimes involving firearms or ammunition, including Fogle’s crime of conviction:

              If the Defendant used or possessed any firearm . . . in connection
              with another felony offense . . . increase [the Base Offense
              Level] by 4 levels.

       USSG ' 2K2.1(b)(6).

       The Application Notes state that the enhancement applies “if the firearm . . .

facilitated . . . another felony offense.” USSG § 2K2.1 cmt. 14(A) (2007). The term

“another felony” means “any Federal, state, or local offense, other than the . . . [crime of

conviction in the case] . . . punishable by imprisonment for a term exceeding one year,

regardless of whether a criminal charge was brought, or a conviction obtained.” Id. at

cmt. 14(C) (2007).

                                              4
       The District Court found that by his actions vis-à-vis N.R., Fogle had violated a

New Jersey statute providing:

              Any person who has in his possession any firearm with a
              purpose to use it unlawfully against the person or property of
              another is guilty of a crime of the second degree.

N.J. Stat. Ann. § 2C:39-4(a) (2005)(“the New Jersey Statute”).

       A defendant violates the New Jersey Statute if (1) the object possessed was a

firearm; (2) the defendant possessed the firearm; (3) the defendant’s purpose in

possessing the firearm was to use it against the person or property of another; and (4) the

defendant intended to use the firearm in a manner that was unlawful. New Jersey v. Diaz,

677 A.2d 1120, 1123 (N.J. 1996).

       Fogle, acknowledging that he possessed a firearm, contends that he did not have a

purpose to use it unlawfully against the person or property of another.

       At the sentencing hearing, defense counsel stated that “what is alleged is that a

statement is made by Mr. Fogle when he supposedly is carrying a weapon saying the only

reason I don’t pop one off at you is because I don’t think you had anything to do with it.

You are quite cute but [the other women] and her boyfriend, and then he walks away.”4

App. 401. Fogle contended that since he expressly stated that he was not going to shoot

N.R., he could not be held to have possessed the firearm with a purpose to use it


4
       Fogel states in his brief, “According to ¶ 15 of the Presentence Report, [while
tapping on he window of N.R.’s car] Fogle told [N.R.] that she was ‘quite cute, but [the
other woman] and her boyfriend (the defendant did not complete this statement as he
walked away).’” App. Br. 17.

                                             5
unlawfully against another person. The district judge disagreed, stating:

              [T]he firearm actually is possessed here, with a purpose to use
              it unlawfully against the person of another, [and] it is actually
              used in this case. So it goes beyond the mere possession with
              intent to use it unlawfully against -- [the purpose] is
              demonstrated by use, namely brandishing it. Which takes it
              beyond mere possession.

       App. 411-12.

       The district court properly found that Fogle used the firearm by brandishing it and,

therefore, properly held that Fogle possessed the firearm with a purpose to use it

unlawfully against the person of another. Thus, Fogle violated the New Jersey Statute.

       Fogle, alternatively, argues that even if he violated the New Jersey Statute, the

violation cannot be considered a predicate offence under USSG § 2K2.1(b)(6) because it

is not distinct from the underlying federal offense [violation of 18 U.S.C. § 922(g)(1)].

See United States v. Fenton, 309 F.3d 825, 826 (3d Cir. 2002) (“[A] state law crime,

identical and coterminous with the federal crime, cannot be considered as ‘another felony

offense’ within the meaning of the Sentencing Guidelines.”).

       In United States v. Navarro, this Court stated:

              [A] two-part standard may be distilled for determining whether
              an offense committed in connection with possession of a firearm
              may support an enhancement under [section 2K2.1(b)(6)]. The
              first part of the test . . . is legal in nature and asks whether the
              predicate offense and the firearms possession crime each have
              an element that is not shared by the other. The second part of
              the test . . . is essentially factual in nature and asks whether more
              than mere possession of the firearm - brandishment or other use
              - was an integral aspect of the predicate offense. If these two
              questions are answered in the affirmative, then the four-level

                                               6
              enhancement under [section 2K2.1(b)(6)] should apply.

476 F.3d 188, 196 (3d Cir. 2007), cert. denied, 128 S. Ct. 1065 (2008) (footnote and

citations omitted).

       The statute of conviction, 18 U.S.C. § 922(g)(1), and the New Jersey Statute

contain different elements. Section 922(g)(1) is violated if a person who is a convicted

felon merely possesses a firearm. In contrast, the New Jersey Statute is violated if any

person possesses a firearm with a purpose to use it unlawfully. Accordingly, the statutes

are distinct and pass the first part of the Navarro test. See United States v. Lloyd, 361

F.3d 197, 204-05 (3d Cir. 2004).

       As to the second part of the Navarro test, the District Court reasonably concluded

that the use of the firearm was an integral aspect of the violation of the New Jersey

Statute. The evidence was sufficient to support the finding that brandishing the firearm

was a significant aspect of Fogle’s intimidating N.R., and putting her reasonably in fear

that Fogle might fire the gun or otherwise cause serious injury.

       Accordingly, the District Court properly applied the four level Offense Level

enhancement provided by USSG § 2K2.1(b)(6).

                                             III.

       The District Court determined that Fogle’s Guideline Sentence range was 46 to 57

months, the range for Offense Level 22, Criminal History Category II.5 The District



5
       After downward departure from III.

                                              7
Court granted Fogle’s request for a downward variance from the Guideline range in

consideration of the 18 U.S.C. § 3553(a) factors.

       The District Judge stated that she recognized that Fogle’s offense warranted a

severe sentence because he unlawfully possessed a gun and brandished it in threatening

circumstances in the middle of the night outside of a bar with people around.

Nevertheless, the District Judge stated that “a slight variance below the Guideline range is

appropriate here for a combination of reasons.” App. 448. These reasons included

Fogle’s long period of military service, long history of gainful employment, and the way

in which he accepted responsibility in the case. Thus, the District Judge exercised her

discretion under 18 U.S.C. § 3553(a) to reduce the Guideline range by one level (resulting

in a range of 41 to 51 months) and sentenced Fogle at the low end of that range.

       This Court reviews the sentence imposed by the District Court for

unreasonableness, and will not reverse absent an abuse of discretion. United States v.

King, 454 F.3d 187, 194 (3d Cir. 2006). Fogle has the burden of demonstrating

unreasonableness but provides no more than his view that the District Court should have

weighed the stated mitigating factors more heavily and should have varied downward to a

greater extent. The District Court’s decision must be accorded great deference where the

sentence is premised upon appropriate and judicious consideration of the relevant factors.

United States v. Lessner, 498 F.3d 185, 204 (3rd Cir. 2007). “The decision by the

[District Court], . . . not to give [the] mitigating factors the weight that [Fogle] contends

they deserve does not render h[is] sentence unreasonable.” Id.

                                               8
      This Court holds that the District Court’s exercise of discretion with regard to the

extent of the variance granted, was reasonable. There was no abuse of discretion in the

District Court’s imposition of a 41 month variant sentence.

      For the foregoing reasons, we affirm the District Court’s 41 month sentence.




                                            9
