                    United States Court of Appeals
                            FOR THE EIGHTH CIRCUIT
                                  ___________

                                  No. 01-1798
                                  ___________

United States of America,            *
                                     *
           Plaintiff-Appellee,       *
                                     * Appeal from the United States
      v.                             * District Court for the Southern
                                     * District of Iowa.
Harry Lee Barber,                    *
                                     *
           Defendant-Appellant.      *
                                ___________

                             Submitted: September 11, 2001

                                 Filed: November 26, 2001
                                  ___________

Before MORRIS SHEPPARD ARNOLD, BRIGHT, Circuit Judges, and KYLE,*
      District Judge.
                         ___________

BRIGHT, Circuit Judge.

      Harry Lee Barber pled guilty to six counts of an indictment stemming from his
manufacture of five pipe bombs, which he placed around the city of Des Moines,
Iowa, in an attempt to create the appearance of a mad bomber. After an evidentiary
hearing, the district judge accepted Barber’s guilty plea and imposed a term of
imprisonment of ninety-six months to be followed by a three-year term of supervised


      *
      The Honorable Richard H. Kyle, United States District Judge for the District
of Minnesota, sitting by designation.
release. Barber appeals his conviction based upon the district court’s lack of
jurisdiction. Barber also appeals his sentence claiming the district court erred in
applying the grouping rules under the United States Sentencing Guidelines and in
applying enhancements for more than minimal planning and the use of a bomb in the
commission of another felony offense. We reject Barber's arguments that the district
court lacked jurisdiction1 and erred in enhancing his sentence,2 but we remand for
resentencing for the following reasons.

      The district court’s application of the United States Sentencing Guidelines is
reviewed de novo, United States v. Lewis, 200 F.3d 1177 (8th Cir. 2000).

      At sentencing, the district court found that there were five groups based on the
six counts to which Barber pled guilty.3 The court used § 3D1.2 of the United States


      1
        We find no merit in Barber's argument that 18 U.S.C. § 844(d) is an unlawful
extension of Congress' Commerce Clause power. This court has consistently rejected
this type of challenge to a similar statute, 18 U.S.C. § 922(g). See, e.g., United States
v. Holman, 197 F.3d 920 (8th Cir. 1999); see also United States v. Flaherty, 76 F.3d
967, 974 (8th Cir. 1996).
      2
        The district court properly considered the relevant conduct of Barber's crimes
in choosing applicable offense guidelines. See Sentencing Guideline § 1B1.2(a)
(instructing that in the case of a plea agreement, the sentencing court is to determine
the appropriate offense guideline section from Chapter Two that is applicable to the
stipulated offense). Furthermore, there was substantial evidence to support the
district court's enhancement for more than minimal planning under § 2A2.2(b)(2) and
for a bomb used during the commission of a felony under § 2K2.1(b)(5).
      3
          The counts are:
                                                            Date Offense      Count
Title & Section      Nature of Offense                      Concluded        Number(s)
18:844(d)            Transporting an explosive device
                     with . . . intent . . .                  11/02/99            One
26:5861(f)           Manufacture . . . destructive device     11/02/99            Two

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Guidelines to group Counts One and Two because they related to the same pipe bomb
and incident. Each group had an offense level of 26.

       Turning to § 3D1.4 in order to determine Barber's combined offense level, the
district court increased Barber's offense level by five levels. We determine that this
increase was erroneous because under § 3D1.4(a) the number of units was five or
less, keeping in mind that Counts One and Two are combined into a single group.
Therefore, the combined offense level should have been increased by only four levels.

      Barber's sentence range based on a final offense level of 28 was 78-97 months.
He was sentenced to ninety-six months concurrently. He should have been sentenced
based on a final offense level of 27, which has a range of 70-87 months.

      For the foregoing reasons, we remand to the district court for resentencing
consistent with this opinion.




                                                         Date Offense   Count
Title & Section     Nature of Offense                    Concluded    Number(s)
26:5861(f)          Manufacture . . . destructive device 11/16/99     Five
26:5861(f)          Manufacture . . . destructive device 11/30/99      Eight
26:5861(f)          Manufacture . . . destructive device 12/03/99      Eleven
                    [Volaire]
26:5861(f)          Manufacture . . . destructive device 12/03/99     Fourteen
                    [Steel Pipe]

Appellant's Add. at 29. While Barber claims that all the manufacturing counts should
be grouped together for sentencing purposes, the district court rejected that analysis
because the bombs were individually constructed, placed around the city, and directed
at different targets. We conclude that the district court did not err in this decision.


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A true copy.

      Attest:

                CLERK, U.S. COURT OF APPEALS, EIGHTH CIRCUIT.




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