
USCA1 Opinion

	




          December 18, 1992                            UNITED STATES COURT OF APPEALS                                FOR THE FIRST CIRCUIT                                 ____________________        No. 92-1940                                     UNITED STATES,                                      Appellee,                                          v.                                  STEVEN H. SANDERS,                                Defendant, Appellant.                                 ____________________                     APPEAL FROM THE UNITED STATES DISTRICT COURT                          FOR THE DISTRICT OF NEW HAMPSHIRE                       [Hon. Shane Devine, U.S. District Judge]                                           ___________________                                 ____________________                                        Before                                Selya, Cyr and Boudin,                                   Circuit Judges.                                   ______________                                 ____________________            Ray Raimo and Raimo & Murphy on brief for appellant.            _________     ______________            Jeffrey  R. Howard,  United States  Attorney, and  Peter E. Papps,            __________________                                 ______________        First  Assistant  United  States   Attorney,  on  Motion  for  Summary        Disposition.                                 ____________________                                 ____________________                      Per  Curiam.   Defendant,  who pled  guilty to  (1)                      ___________            being  a  felon  in  possession  of  firearms,  18  U.S.C.               922(g)(1),  and (2) using or carrying a firearm during and in            relation to a drug trafficking crime, 18 U.S.C.    924(c)(1),            appeals  from his  sentence.   He contends  that the  conduct            underlying the second count  was unfairly counted three times            in  computing  his  sentence  and  that  the  district  court            improperly  departed upwards  under U.S.S.G.  5K2.2 (physical            injury)  upon  finding  that  defendant had  used  a  firearm            different from any of those listed in the indictment to shoot            his girlfriend.  Finding no error, we affirm.                                          I                                          _                      We  first  address   defendant's  triple   counting            argument.   As defendant concedes, he  was properly sentenced            as  an armed  career offender,  18 U.S.C.    924(e),  for the            felon   in  possession  count.     In   these  circumstances,            defendant's guilty plea to using or carrying a firearm during            and  in relation  to a  drug trafficking  crime, 18  U.S.C.              924(c)(1), had three effects on defendant's overall sentence.                      First,  defendant's guilty  plea to  the count  two            offense of using or carrying firearms in connection with drug            trafficking required a  minimum mandatory five-year  sentence            to be added consecutively to the count 1 sentence.  18 U.S.C.              924(c)(1)  ("Whoever, during and in  relation to any  . . .            drug trafficking crime  . . . for which he  may be prosecuted            in  a court of the United  States, uses or carries a firearm,            shall . . . be  sentenced to imprisonment for five years  . .            ..   [T]he term  of imprisonment  imposed under  this section            [shall  not]   run  concurrently  with  any   other  term  of            imprisonment   .   .   ..");  U.S.S.G.   2K2.4(a)   (term  of            imprisonment for defendant convicted under 18 U.S.C.   924(c)            is that provided by statute).                      Second, the  guilty plea  to the count  two offense            affected  the base offense level  for the count  one felon in            possession offense, raising it  from 33 to 34.   The relevant            guideline follows:                        4B1.4   Armed Career Criminal                                _____________________                                        . . .                      (b)  The offense level for an armed career criminal                           is the greatest of:                                        . . .                           (3)  (A)  34,   if   the  defendant   used  or                                     possessed  the  firearm  .  .  .  in                                     connection with a crime  of violence                                     or controlled substance offense  . .                                     .                                (B)  33, otherwise.            The  district  court chose  subsection  (3)(A),  with a  base            offense  level of 34, on the ground that, the firearms listed            in  counts one  and two  being identical,  defendant's guilty            plea to using  or carrying firearms  in connection with  drug            trafficking established  that the  firearms had been  used or            possessed in connection with a controlled substance offense.                                         -3-                      Third, the count  two offense  raised the  criminal            history category on  count one (felon in possession)  from IV            to VI.  The relevant provision follows:                      (c)  The  criminal  history category  for  an armed                           career criminal is the greatest of:                                        . . .                           (2)  Category VI,  if  the defendant  used  or                                possessed the firearm . . . in connection                                with  a crime  of violence  or controlled                                substance offense . . .            U.S.S.G.    4B1.4(c).   Defendant  had nine  criminal history            points which, absent section  4B1.4(c), would have placed him            in criminal history category IV, rather than VI.                                          A                                          _                      Turning first  to the second (the  selection of BOL            34 rather than 33) and  the third (criminal history category)            increases, we see no impermissible double counting.  The very            same  guideline, U.S.S.G.    4B1.4,  plainly directs  both of            these  increases.   An armed  career criminal  who unlawfully            uses  or   carries  a  firearm  in  connection  with  a  drug            trafficking  offense will  have both  his base  offense level            (under   subsection  (b)(3)(A))  and   his  criminal  history            category (under subsection (c)(2)) augmented.   This is not a            circumstance  where, through  cross-referencing, it  might be            thought  that double  counting unintentionally  resulted, but            rather  the case of one guideline  expressly directing that a            single factor -- possession of a firearm in connection with a                                         -4-            controlled  substance  offense --be  considered in  two ways.            The district  court correctly followed the  plain language of            the  guideline  in  selecting  BOL 34  and  criminal  history            category VI.                                          B                                          _                      Next is  defendant's contention that the  count two            offense conduct (using  or carrying a  firearm during and  in            relation to  drug trafficking) was unfairly  counted twice in            first raising  his offense level  on the felon  in possession            count  from 33 to 34  and in then  adding a minimum five-year            sentence to the felon in possession sentence.                      Citing to U.S.S.G.    2K2.4, application note 2, as            well as  to several cases, defendant argues  that this double            counting is improper.  Application note 2 to U.S.S.G.   2K2.4            applies  to defendants  sentenced  for both  an  18 U.S.C.               924(c) (using a  firearm during and in relation to a crime of            violence or  drug trafficking crime) offense  and the offense            underlying the   924(c)  offense.  It directs that  increases            in the base offense  level for the underlying offense  not be                                               __________________            made  for  possession   or  use  of  a  firearm   in  certain            circumstances:                      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   a                      firearm   (e.g.,       2B3.1(b)(2)(A)-(F)                                 ____                      (Robbery)),  is  not  to  be  applied  in                                         -5-                      respect   to   the   guideline  for   the                      underlying offense.            U.S.S.G.   2K2.4, application  note 2.  The note  then states            an exception  to  the exception,  which we  need not  address            since we conclude application note 2 is not applicable.                      This application note does not apply to defendant's            count  1 (felon in possession) offense.  First, it is unclear            whether  the felon  in possession  offense is  an "underlying            offense," within the  meaning of application  note 2, of  the            using or carrying a firearm during and in relation to  a drug            trafficking offense count.  Rather, it is a  drug trafficking            offense  which would  most clearly  be a  relevant underlying            offense.  Defendant, however, has not been  sentenced for the            drug offense  underlying the using  or carrying of  a firearm            during and in  relation to  a drug  trafficking offense,  and            hence no occasion arises  to apply application note 2.   (Had            defendant been  separately charged  with the  underlying drug            offense,  the  application  note  would  have  directed  that            defendant's use of a weapon  not be considered in calculating            the offense level for the drug offense.)                      Second, even if the felon in possession charge were            viewed  as an offense underlying  the using or  carrying of a            firearm during  and in relation  to a drug  trafficking crime            offense, the literal  application of  note 2  would not  help            defendant.    The note  directs  that  any "specific  offense            characteristic" for the underlying offense not be utilized in                                         -6-            calculating the guideline  range for the underlying  offense.            Unlike, for example, the guidelines for aggravated assault (             2A2.2), kidnapping  (  2A4.1), or drug  trafficking (  2D1.1)            which  list use  or possession  of a  firearm as  a "specific            offense characteristic"  raising the offense level, the felon            in possession  guidelines (   2K2.1, 4B1.4)  do not designate            possession or use of  a single weapon as a  "specific offense            characteristic"   raising  the   offense  level.1     Rather,            possession of  a  weapon is  an element  of the  crime.   And            section  4B1.4(b)(3)(A)  where  use  is  considered  is   not            denominated    a     "specific    offense    characteristic."            Consequently, application note 2 does not assist defendant.                      Even  if application  note 2  can not  be literally            applied  to  help  defendant,  defendant  contends  that  the            guidelines as a whole and case law prohibit double counting.                      The  strongest case on  which defendant  relies for            his contention  that unforseen or  unintended double counting            occurs when use of a firearm during and in relation to a drug            trafficking offense  is used both in  calculating the offense            level for a felon in  possession count and in adding a  five-            year consecutive  sentence is United  States v. Bell,  716 F.                                          ______________    ____            Supp. 1207 (D. Minn. 1989).  There, a defendant sentenced for                                            ____________________            1.  Possession of three or more weapons can raise the offense            level  of  persons  sentenced   pursuant  to     2K2.1(b)(1).            Defendant's offense  level was  not calculated pursuant  to              2K2.1(b)(1), but rather under   4B1.4.                                         -7-            prison  escape  objected to  the  application  of U.S.S.G.               4A1.1(d),  which  called  for  a two-point  addition  to  the            criminal history  score when  an offense was  committed while            under any  criminal justice sentence.   Defendant argued that            an  escape offense  could  only be  committed  while under  a            criminal  justice sentence,  so  the offender's  incarcerated            status was  necessarily already included in  the base offense            level.   Consequently, considering it again  under   4A1.1(d)            was improper double counting.  After reviewing various places            throughout the guidelines where  provisions are made to avoid            double counting, the district court substantially agreed with            defendant, reasoning as follows:                      The underlying principle  is that if  one                      provision of the guidelines  accounts for                      an element  of the offense or  a specific                      offense characteristic, another provision                      designed to  account for the  same factor                      should not apply.                      All courts of appeals confronted with the situation            in Bell have disagreed  with Bell and have applied  the plain               ____                      ____            language  of the  guidelines.   See, e.g.,  United States  v.                                            ___  ____   _____________            Thomas,  930  F.2d  12,  13-14 (8th  Cir.  1991)  (collecting            ______            cases).   Nevertheless, there  are other situations  in which            courts  of  appeals  have  refused to  apply  the  guidelines            literally when it  seemed to  them that a  single factor  had            been  used  twice,  even though  the  plain  language of  the            guidelines  called for  the double  enhancement.   See, e.g.,                                                               ___  ____            United  States  v.  Hudson,  972  F.2d  504  (2d  Cir.  1992)            ______________      ______                                         -8-            (impermissible  double  counting  where  the use  of  a  non-            inherently dangerous  weapon (car)  both made the  assault an            aggravated   one  and   resulted   in  a   specific   offense            characteristic  4  level  increase  for use  of  a  dangerous            weapon); United States v. Romano, 970 F.2d 164, 167 (6th Cir.                     _____________    ______            1992)  ("if certain conduct is used  to enhance a defendant's            sentence  under  one  enhancement  provision,  the  defendant            should not be penalized  for that same conduct again  under a            separate  provision whether or  not the  Guidelines expressly            prohibit taking the same conduct into consideration under two            separate  provisions";  separate  enhancements  for  being an            organizer or manager and  more than minimal planning improper            as  more than minimal planning  is required to  qualify as an            organizer).                      Other courts,  however, when faced  with situations            in  which a  single  factor has  been  used twice  under  the            guidelines  to compute  a  sentence have  rejected claims  of            unfair double counting and have concluded that the guidelines            should  be applied as written.   See, e.g.,  United States v.                                             ___  ____   _____________            Ellen,  961 F.2d 462, 468 (4th Cir. 1992) (rejecting argument            _____            that  a defendant  convicted  of filling  wetlands without  a            permit  should  not receive  upward  adjustments  for ongoing            discharge  and  discharge  without  a permit  even  if  those            factors  were  elements  of  the  offense;  "[b]ecause   'the            Guidelines are explicit when  double counting is forbidden, .                                         -9-            . . [a]n adjustment that clearly applies to the conduct of an            offense  must  be  imposed  unless  the Guidelines  expressly            exclude its  applicability'"), cert.  denied, 113 S.  Ct. 217                                           _____  ______            (1992);  United States  v. Williams, 954  F.2d 204  (4th Cir.                     _____________     ________            1992)  (acknowledging that the use of a metal chair to commit            an  assault was counted twice -- first, in selecting the base            offense level and  second in adding four levels  for use of a            dangerous  weapon --  but concluding  that as  the guidelines            have been explicit where double counting is to be avoided, an            exception should not be created where none is stated); United                                                                   ______            States v. Goolsby, 908 F.2d 861 (11th Cir. 1990) (even though            ______    _______            enhancement factors are required elements of the crime itself            (escape  from custody)  court  will not  create an  exception            where the Commission has not);  United States v. Vickers, 891                                            _____________    _______            F.2d 86, 88 (5th Cir. 1989) (same).                      We  do not think we  should fashion an exception in            this case where  the Commission  has not.   That a  defendant            might be convicted  of both being a felon  in possession of a            firearm  and  using or  carrying  the firearm  during  and in            relation  to drug trafficking  does not seem  such an unusual            circumstance as to escape the  Commission's attention.  It is            not our place to rewrite the Guidelines.                                          II                                          __                      With the deduction of  two levels for acceptance of            responsibility,  defendant's offense  level was 32  which, at                                         -10-            criminal history category VI, called for a sentence of 210 to            262  months for the armed career criminal felon in possession            offense.   The district court  did not sentence  defendant on            the felon  in possession  count within this  guideline range,            but rather  departed upwards  under U.S.S.G.    5K2.2  to 300            months, 38  months above the  maximum guideline  range.   The            departure  was  based on  U.S.S.G.    5K2.2,  which  reads in            material part as follows:                      Physical Injury (Policy Statement)                      _______________                      If significant  physical injury resulted,                      the court may increase the sentence above                      the  authorized  guideline  range.    The                      extent of the increase  ordinarily should                      depend on the extent  of the injury,  the                      degree  to which it  may prove permanent,                      and the  extent to  which the  injury was                      intended or  knowingly risked.   When the                      victim   suffers   a   major,   permanent                      disability  and  when  such   injury  was                      intentionally  inflicted,  a  substantial                      departure may be appropriate. . . .            Defendant challenges this departure.  We turn to the evidence            of physical injury.                      Defendant's girlfriend was  shot in the head  early            on October 19, 1991 in her apartment.  After residents of the            victim's  building  implicated  defendant  in  the  shooting,            defendant's apartment  was searched  pursuant  to a  warrant.            Uncovered  in a closet were the three firearms (a Beretta .22            caliber pistol, a Raven Arms .25 caliber pistol, a Marlin .22            caliber rifle) which underlay  both counts of the indictment.            There is no evidence that any of those  firearms were used in                                         -11-            the shooting.  The bullet remains  lodged beyond the victim's            left eye, and the only evidence concerning the assault weapon            was  a doctor's  opinion  that it  was  an approximately  .30            caliber one.                      There  was uncontradicted evidence  that the victim            is  in  a  permanent vegetative  state  as  a  result of  the            shooting.  After hearing eighteen witnesses at the sentencing            hearing, the court found "by a preponderance  of the evidence            that defendant shot [victim] and that the shooting was not an            accident. . . . "                      Defendant does not  argue that the  court's finding            that  defendant intentionally  shot  the  victim  is  clearly            erroneous.  Nor would there be any basis for such an argument            as the evidence in support of the court's findings was ample.            Rather, defendant contends that his sentence can not properly            be enhanced on the basis of uncharged conduct taking place at            a different  location (the girlfriend's  apartment) from  the            circumstances  (possession  of  three  guns in  a  closet  at            defendnt's  apartment) underlying  the  felon  in  possession            count.                      Defendant argues  that because he was  not indicted            for possession of the  weapon used to shoot the  victim, that            shooting  is an unrelated,  separate, uncharged offense which            can  not  properly be  considered as  a  basis for  an upward            departure.  We disagree.                                         -12-                      Even   if  the  weapon  which  wounded  defendant's            girlfriend was  not one  of those listed  in the  indictment,            defendant's  possession of  it  was relevant  conduct,  under            U.S.S.G.     1B1.3(2), to  the  felon  in possession  charge.            Section 1B1.3(2)  directs a  defendant's offense level  to be            determined as follows:                      (2) solely with respect  to offenses of a                      character  for  which     3D1.2(d)  would                      require grouping of multiple  counts, all                      such acts and omissions that were part of                      the  same  course  of conduct  or  common                      scheme   or  plan   as  the   offense  of                      conviction . . .            This section is applicable  since felon in possession charges            are   subject    to   grouping   under    Section   3D1.2(d).            Consequently,  so  long  as  defendant's  possession  of  the            firearm used on his  girlfriend was part of the  "same course            of conduct" as the possession of the three firearms listed in            the indictment, it is relevant conduct properly considered in            setting defendant's sentence.                      "The 'same course of  conduct' concept . . .  looks            to whether the  defendant repeats the  same type of  criminal            activity  over  time.   It  does  not  require  that acts  be            'connected together' by common  participants or by an overall            scheme."  United  States v.  Perdomo, 927 F.2d  111, 115  (2d                      ______________     _______            Cir.  1991).   Here, defendant  did repeat  the same  type of            criminal  activity --  he illegally  possessed three  or four            separate  firearms  when   victim  was  shot.    We  have  no                                         -13-            difficulty viewing the illegal possession of the four weapons            as all part of the same course of conduct.                      The  next  question  is whether  uncharged  conduct            (here, illegal possession of, arguably, a fourth firearm used            to  shoot victim)  which constitutes  relevant  conduct under            U.S.S.G.   1B1.3 may properly be considered as a basis for an            upwards departure.                      It  is  true that  the  relevant  conduct guideline            specifically says  that relevant  conduct is  to  be used  in            determining  the  base  offense  level  and  adjustments  (in            chapter 3)  to  base offense  level;  it does  not  expressly            direct  whether relevant conduct may be a basis for an upward            departure.   U.S.S.G.    1B1.3.   Nevertheless, we  and other            courts  have approved  upward  departures  based on  relevant            uncharged  conduct.  See, e.g., United  States v. Figaro, 935                                 ___  ____  ______________    ______            F.2d 4 (1st  Cir. 1991)  (upward departure based  in part  on            circumstance that defendant, charged with illegal entry,  had            been  attempting to smuggle aliens at the time of the illegal            entry,  a  separate  and more  serious  --  but uncharged  --            crime).   United States  v. Kim, 896  F.2d 678,  684 (2d Cir.                      _____________     ___            1990) ("We conclude that, with  respect to acts of misconduct            not  resulting  in  conviction,  the Commission  intended  to            preclude departures  for acts bearing no  relationship to the            offense of conviction, but to permit departure for  acts that            relate  in some way to the offense of conviction, even though                                         -14-            not  technically  covered  by  the   definition  of  relevant            conduct.");  United States v. Shields, 939 F.2d 780, 782 (9th                         _____________    _______            Cir. 1991) (departure  based on relevant conduct  not part of            counts of  conviction).  The principles of  these cases amply            cover and support a departure here on the basis of uncharged,            relevant conduct.                      Defendant argues that sentencing  him on the basis,            in  part, of an  uncharged shooting is  unconstitutional.  He            contends he is being punished for the shooting without a jury            having  determined beyond  a  reasonable doubt  that he  shot            victim or the other  procedural protections which would apply            had defendant been indicted  and tried for the shooting.   We            have rejected similar arguments  and adhere to that position.            United States v. Wright, 873 F.2d 437, 441-42 (1st Cir. 1989)            _____________    ______            (government need not prove facts used in sentencing  beyond a            reasonable  doubt).  See also  United States v. Galloway, 976                                 ___ ____  _____________    ________            F.2d 414 (8th Cir. 1992) (sentencing by considering relevant,            uncharged conduct  under  U.S.S.G.     1B1.3(a)(2)  does  not            violate the  constitutional rights to indictment, jury trial,            and   proof  beyond   a   reasonable   doubt);  McMillan   v.                                                            ________            Pennsylvania, 477  U.S. 79  (1986) (factors  used to  raise a            ____________            minimum  sentence below  the  statutory maximum  need not  be            proved  beyond  a  reasonable  doubt;  preponderance standard            satisfies  due  process  and  right  to  jury  trial  is  not                                         -15-            implicated).2   Defendant has not received  a sentence beyond            the statutory maximum.                      Last, defendant asserts, without  much elaboration,            that  the degree  of departure was  unreasonable.   The court            departed thirty-eight  months above the top  of the guideline            range.    The  policy  statement  expressly  advised  that  a            "substantial" departure may be warranted for an intentionally            inflicted major,  permanent disability.  Here,  the victim is            in  a permanent  vegetative  state.   A  worse disability  is            difficult  to imagine.   A  thirty-eight month  departure for            intentionally   causing  such   a  grievous  injury   is  not            unreasonable.                      The  government's motion for summary disposition is            granted and the judgment is affirmed.                                        ________                                            ____________________            2.  We  note  further  that  there  is  no  possibility  that            defendant will  be unfairly  punished twice for  shooting the            girlfriend.    As acknowledged  in  the  plea agreement,  the            Attorney General  of  New Hampshire  agreed that  defendant's            federal  guilty  plea  would   "satisfy  any  state  criminal            liability  in regard  to the  defendant's involvement  in the            shooting of [victim]. . . . "                                         -16-
