                                                                                                                           Opinions of the United
2003 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


9-24-2003

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Precedential or Non-Precedential: Non-Precedential

Docket No. 03-1595




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                                                                NOT PRECEDENTIAL

                       UNITED STATES COURT OF APPEALS
                            FOR THE THIRD CIRCUIT
                               _________________

                                     No: 03-1595
                                  _________________


                           UNITED STATES OF AMERICA


                                             v.

                              ALTON EDWARD JOSEPH,

                                             Appellant

                              ________________________

                    On Appeal from the United States District Court
                            for the District of Delaware

                     District Judge: The Honorable Sue L. Robinson
                             (D.C. Criminal No. 02-cr-00060)
                                ______________________

                      Submitted Under Third Circuit L.A.R. 34.1(a)
                                 September 19, 2003

                        Before: MCKEE, SMITH, Circuit Judges,
                              SCHILLER*, District Judge

                          (Opinion Filed: September 24, 2003)
                             ________________________

                              OPINION OF THE COURT
                              _______________________
___________
* The Honorable Berle M. Schiller, United States District Judge for the Eastern District
of Pennsylvania, sitting by designation.
SMITH, Circuit Judge.

I.     INTRODUCTION

       Appellant Alton Edward Joseph appeals his sentence for interstate transportation

of explosives without a license, arguing that the District Court erred in assessing two

criminal history points for his Massachusetts conviction on two counts of larceny, and

that the Court should not have increased his offense level by two levels for stolen

explosives, pursuant to U.S.S.G. § 2K1.3(b)(2).

II.    FACTS AND PROCEDURAL HISTORY

       Joseph served as a supply clerk for the United States Army from 1975 to 1978,

where he had access to a military plastic explosive, C-4. During this time, Joseph took

from the Army fifteen one and a half pound blocks of C-4. He maintained possession of

fourteen blocks of C-4 and gave his brother-in-law one block in the 1980s.

       On July 15, 1997 Joseph was charged in Massachusetts with two criminal counts

of larceny over $250 and larceny by false pretenses, both unrelated to the matter now

before us. Joseph admitted to sufficient facts for a finding of guilt. The court, however,

did not actually adjudicate Joseph guilty at that time. Instead, the court imposed a

probationary period and restitution in the amount of $53,225.41. Joseph was found to be

non-compliant with his probation requirements in September 1997. A summons for this

probation violation was issued in June 1998.

       In early March 2001, Joseph transported the remaining fourteen blocks of C-4



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from Maine to Delaware. In an attempt to avoid extradition, Joseph constructed a scheme

by which he attempted to falsely implicate a third person for possession of the C-4.

Joseph contacted the Bureau of Alcohol, Tobacco, and Firearms (“ATF”) in an attempt to

provide them with information about the C-4, in exchange for assistance with his

Massachusetts extradition proceedings. Upon discovering Joseph’s scheme, the ATF

ceased contact with Joseph and he was extradited to Massachusetts.

       On August 9, 2001, Joseph appeared in Massachusetts pursuant to the warrant for

violation of probation. The Massachusetts court revoked his probation, found him guilty

on both larceny counts, and sentenced him to two and a half years incarceration, one year

to be served in custody, followed by 18 months probation. Pursuant to Joseph’s motion to

revise his sentence, the court reduced the sentence to one year on each count, to be served

concurrently.

       With respect to his possession and transportation of the C-4, pursuant to a plea

agreement, Joseph pleaded guilty to Count III of a three count indictment – interstate

transportation of explosive materials without a licence in violation of 18 U.S.C. §

842(a)(3)(A) and § 844(a). As part of the plea agreement, the government agreed to

move to dismiss the remaining counts of the indictment, which charged Joseph with being

a felon in possession of explosives and possession of stolen explosive materials. The plea

agreement also provided that the government would not oppose a three point reduction in

Joseph’s offense level for acceptance of responsibility. Finally, the government agreed



                                             3
that U.S.S.G. § 2K1.3(b)(3), which relates to possession of explosive materials in

connection with another felony offense, was inapplicable, and that the government would

not seek an upward departure on that basis.

       The presentence report assigned Joseph a base offense level of sixteen, because he

was a “prohibited person” under U.S.S.G. § 2K1.3, specifically a convicted felon, at the

time he possessed explosive material. The presentence report also recommended that,

pursuant to U.S.S.G. § 2K1.3 (b)(2), Joseph’s offense level should be increased by two

levels because the offense involved explosive material that he knew or had reason to

believe was stolen. Subtracting three levels for acceptance of responsibility, the report

assigned Joseph a total offense level of fifteen. With respect to Joseph’s criminal history

category, the presentence report assessed two points for a Massachusetts state court

conviction for two counts of larceny, three points for a New Hampshire state court

conviction for tampering with public or private records, and two additional points because

the instant offense was committed less than two years following Joseph’s release from

custody for the New Hampshire conviction. Accordingly, Joseph accrued seven criminal

history points, which placed him in criminal history category IV. Based on an offense

level of fifteen and a criminal history category of IV, the applicable guidelines range was

thirty to thirty-seven months imprisonment. The District Court sentenced Joseph to thirty

months imprisonment.

II.    JURISDICTION



                                              4
       The District Court had subject matter jurisdiction pursuant to 18 U.S.C. § 3231.

We exercise jurisdiction pursuant to 28 U.S.C. § 1291.

III.   STANDARD OF REVIEW

       We review the District Court’s interpretation of the Sentencing Guidelines de

novo. United States v. Amster, 193 F.3d 779 (3d Cir. 1999). We reverse the District

Court’s underlying findings of fact only where they are clearly erroneous. United States v.

Cherry, 10 F.3d 1003, 1009 (3d Cir. 1993).

IV.    DISCUSSION

       Joseph raises two issues on appeal. First, he asserts that the District Court erred in

assessing two criminal history points for his Massachusetts conviction on two counts of

larceny. Second, Joseph argues that the Court should not have increased his offense level

by two levels for stolen explosives, pursuant to U.S.S.G. § 2K1.3(b)(2). Because

Joseph’s arguments lack merit, we will affirm the judgment of the District Court.

       With respect to Joseph’s prior larceny conviction, defense counsel conceded that

Joseph admitted facts sufficient to establish guilt, but contended that, because the state

court initially did not make a finding of guilt, this process constituted a “diversionary

proceeding without a finding of guilt” that may not be a basis for inclusion in a criminal

history calculation under U.S.S.G. § 4K1.1.

       The government countered that, although a diversion from the judicial process

without a finding of guilt would not be counted under the Sentencing Guidelines, a



                                              5
diversionary disposition resulting from a finding or admission of guilt would be included

in the criminal history calculation. The record reflects that on July 25, 1998, Joseph was

in violation of the terms of his probation. On August 9, 2001 the Massachusetts court’s

docket reflects entry of a guilty finding.

       After hearing argument on this issue at sentencing, the District Court stated that:

       I also agree that although if the defendant had met the requirements given
       by the Court [for probation] this would have been a diversionary proceeding
       and he would not have been given criminal history points, the fact that there
       were findings of guilt because he violated the condition of probation, that
       again, the points were appropriately awarded.

App. at 38. We agree with the District Court that, pursuant to the plain language of the

Sentencing Guidelines, the Court properly included Joseph’s state court conviction in the

calculation of his criminal history. U.S.S.G. § 4A1.2(k)(1) provides that “[i]n the case of

a prior revocation of probation . . . [a]dd the original term of imprisonment to any term of

imprisonment imposed upon revocation. The resulting total is used to compute the

criminal history points for § 4A1.1(a), (b), or (c), as applicable.” Thus, Joseph’s

Massachusetts state larceny convictions, for which he served one year in prison, were

properly included in his criminal history calculation.

       Joseph’s second contention on appeal is that the record contains insufficient

evidence to support the District Court’s conclusion that the military C-4 was “stolen” for

purposes of U.S.S.G. § 2K1.3(b)(2). Section § 2K1.3(b)(2) directs the court to increase

the defendant’s offense level by two points “if the offense involved any explosive



                                             6
material that the defendant knew or had reason to believe was stolen.” Joseph explained

his possession of the explosives as follows: in order to maintain a constant level of

funding, each Army division had to use all of the supplies it had on hand, or its budget

would be reduced in the following year. Joseph maintains that his commanding officer

told him to “get rid of” the C-4 in order to protect funding levels, and Joseph interpreted

that to mean that he could take the C-4 with him for personal use.

       The District Court rejected this argument, finding

       [E]ven if I accepted defendant’s version of the facts, I agree with the
       government that with this kind of material [C-4], I don’t think there is any
       evidence, credible evidence, that the defendant was given permission to
       keep this for his personal use. There is no bona fide personal use for this
       sort of material. Therefore, I believe the nomenclature, the characteristic
       “stolen” is an appropriate one and the upward adjustment [by the probation
       office] was appropriately given.

App. at 37. The District Court, then, rejected the veracity of Joseph’s explanation–that

Joseph understood that he was entitled to possess C-4 for personal use–based on the very

nature of C-4. Because there was no evidence of a bona fide personal use for C-4, the

District Court did not accept Joseph’s contention that he believed he was permitted to

retain C-4 for personal use. There was nothing erroneous in the District Court’s

conclusion. Accordingly, we affirm the District Court’s increase of Joseph’s offense

level by two levels for stolen explosives.

V.     CONCLUSION

       For the foregoing reasons, we will affirm the judgment of the District Court.



                                             7
                    ______________________________________

TO THE CLERK:

      Please file the foregoing Opinion.




                                           /s/ D. Brooks Smith
                                           Circuit Judge

Date: September 24, 2003




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