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


4-15-2009

USA v. Abreu-Nunez
Precedential or Non-Precedential: Non-Precedential

Docket No. 08-1791




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                                                                NOT PRECEDENTIAL

                        UNITED STATES COURT OF APPEALS
                             FOR THE THIRD CIRCUIT


                                      No. 08-1791


                            UNITED STATES OF AMERICA

                                           v.

                       FRANCISCO ALBERTO ABREU NUNEZ
                            a/k/a ANTHONY TORRES

                             Francisco Alberto Abreu-Nunez,

                                                               Appellant


                       Appeal from the United States District Court
                           for the Eastern District of Pennsylvania
                                (D.C. No. 2-07-cr-00487-001)
                    District Judge: The Honorable James Knoll Gardner


                     Submitted Pursuant to Third Circuit LAR 34.1(a)
                                     April 13, 2009

          Before: McKEE, SMITH, Circuit Judges, and STEARNS*, District Judge.

                                 (Filed: April 15, 2009)


                               OPINION OF THE COURT




      *
       Honorable Richard G. Stearns, United States District Judge for the District of
Massachusetts, sitting by designation.
MCKEE, Circuit Judge,

       Francisco Alberto Abreu-Nunez appeals the sentence that was imposed following

his guilty plea to various firearms and immigration offenses. For the reasons that follow,

we will affirm.

                                              I.

       As we write primarily for the parties who are familiar with this case, a detailed

discussion of the factual and procedural history is not necessary. Abreu-Nunez argues

that under U.S.S.G. § 5G1.3(b)(1), he should have received credit for time served for his

Pennsylvania conviction for carrying a firearm without a license. Section 5G1.3(b)(1)

provides for a sentence reduction if “a term of imprisonment resulted from another

offense that is relevant conduct to the instant offense of conviction . . . and that was the

basis for an increase in the offense level for the instant offense . . .” However, Abreu-

Nunez’s Pennsylvania offenses were not factored into his offense level. Accordingly, §

5G1.3(b) does not apply to his sentence. See United States v. Izaguirre-Losoya, 219 F.3d

437, 439 (5th Cir. 2000), cert. denied, 531 U.S. 1097 (2001) (holding that because prior

conviction was used in calculating criminal history category only, and not offense level,

§ 5G1.3(b) did not apply). The presentence report that was adopted by the sentencing

judge did not include the Pennsylvania conviction in the section devoted to calculating

the offense level. (App. 235).

       Nevertheless, Abreu-Nunez argues that the state offense increased his offense level

by two because his federal offense involved more than three firearms, and one of the

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firearms he was charged with was derived from the state conviction. Although the

argument has some facial appeal, we must reject it because it is the conduct or offense

which must be the basis for the offense level increase. See, e.g., United States v. Parker,

512 F.3d 1037, 1040 (8th Cir. 2008) (holding that state conviction for receiving stolen

gun was not basis for increase in offense level for federal drug offense, even though

federal offense included possession of same gun during drug trafficking crime); see also

United States v. Cruz-Rodriguez, 541 F.3d 19, 36 (1st Cir. 2008), cert. denied, 129 S.Ct.

1017 (2009) (holding that state conviction for illegal possession was not the basis for

increase in offense level for federal drug offenses while in possession of the same firearm

and possession of the firearm in a school zone). Thus, the fact that one of the same

firearms was used in both offenses is inconsequential. A contrary holding would allow a

defendant to escape the full consequences of conduct that constitutes a federal crime

merely because the federal crime involved an item that was acquired in violation of state

law. That is simply not what was intended under § 5G1.3(b)(1), and the district court

properly rejected Abreu-Nunez’s attempt to rely on § 5G1.3(b)(1).

       Furthermore, the federal conviction involved charges that were unrelated to the

firearms convictions. Those charges included making a false statement in the application

and use of a passport, possession of an identification document with intent to defraud the

United States, and making a false claim of U.S. citizenship, as well as two offenses

involving firearms that were not used during the commission of the state offenses. As the

sentencing judge noted, to give Abreu-Nunez credit for the time he served on the

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Pennsylvania sentence would be to ignore his other convictions; he would serve no

additional time for the unrelated federal offenses. (App. 233)

                                              II.

       Abreu-Nunez also argues that the district court erroneously considered his

Pennsylvania offenses when calculating his criminal history category. Abreu-Nunez

received three criminal history points for these offenses under U.S.S.G. § 4A1.1(a).

Conduct is not considered in determining criminal history under that section of the

Guidelines if it is “relevant conduct” to the instant offense. Relevant conduct is defined

in § 1B1.3(a)(1) as: “all acts . . . committed . . . by the defendant . . . that occurred during

the course of commission of the offense of conviction, in preparation for that offense, or

in the course of attempting to avoid detection or responsibility for that offense.” Abreu-

Nunez argues that his state convictions for possession of a firearm without a license,

falsification of information to authorities, and presenting false identification to authorities

are relevant conduct to his federal conviction for purchasing a firearm through false

statements. We disagree.

       In United States v. Hallman, we stated that “the focus of the inquiry is on the

conduct and whether that conduct is related- is it part of a common scheme or plan?” 23

F.3d 821, 826 (3d Cir. 1994), cert. denied, 513 U.S. 881 (1994). However, “[a] crime

merely suggested by or arising out of the commission of a previous crime is not . . .

related to the earlier crime in the special sense of being part of a common plan or

scheme,” as required by § 1B1.3. Id. at 826. Hallman explained that: “[i]n determining

                                                4
whether there was a common scheme or plan, intent of the defendant is a crucial part of

the analysis.” Id. There, the defendant stole checks in order to later forge them and the

two acts were so closely connected that they constituted a common scheme or plan. Id.

       Here, it borders on frivolity for Abreu-Nunez to suggest that he intended to

possess a gun without a license in order to purchase it through false statements, or that the

latter conduct could not have occurred without the former. Similarly, Abreu-Nunez did

not misrepresent his identity to authorities when he was arrested in order to purchase a

gun with false information, an act which had occurred two years earlier. Abreu-Nunez’s

argument that his use of a false identity with state authorities was related to the federal

offenses because he did so “whenever necessary to live and function in the United States

without being detected as an illegal alien” is simply not sufficient under Hallman.

(Appellant’s Br. 25-26).

       It would, in fact, be absurd to conclude that Abreu-Nunez possessed the firearm

without a license so that he might avoid detection or responsibility for the illegal purchase

of that firearm. “A defendant’s subsequent acts may result in additional criminal charges

. . . but that does not render the original offense relevant conduct for the later charges.”

United States v. Washington, 549 F.3d 905, 920 (3d Cir. 2008). “Simply because a

defendant tries to frustrate the judicial process does not make the crime for which he was

originally indicted relevant conduct for future prosecutions.” Id.

                                             III.

       For all of the above reasons, we will affirm the judgment of sentence.

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