                                                                                                                           Opinions of the United
2008 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


5-23-2008

USA v. O'Garro
Precedential or Non-Precedential: Non-Precedential

Docket No. 06-5055




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                                                   NOT PRECEDENTIAL
                      UNITED STATES COURT OF APPEALS
                           FOR THE THIRD CIRCUIT
                                _____________

                                    No. 06-5055
                                   _____________

                          UNITED STATES OF AMERICA,

                                            v.

                                ANTOINE O'GARRO,

                                        Appellant.
                                  _______________

                    On Appeal from the United States District Court
                        for the Middle District of Pennsylvania
                                (D.C. No. 03-cr-0372-2)
                      District Judge: Honorable Sylvia H. Rambo
                                   _______________

                                       Argued
                                    April 15, 2008

          Before: SLOVITER, JORDAN, and ALARCON*, Circuit Judges.

                                  Filed: May 23, 2008
                                  _______________

John F. Yaninek [ARGUED]
Mette, Evans & Woodside
3401 N. Front Street
P. O. Box 5950
Harrisburg, PA 17110-0950
       Counsel for Appellant

_______________
  *Honorable Arthur L. Alarcon, Senior Judge, United States Court of Appeals for the
Ninth Circuit, sitting by designation.
Daryl F. Bloom [ARGUED]
James T. Clancy
Office of United States Attorney
228 Walnut Street
P.O. Box 11754
Harrisburg, PA 17108-0000
       Counsel for Appellee
                                      _______________

                                 OPINION OF THE COURT
                                     _______________

JORDAN, Circuit Judge.

         Antoine O’Garro appeals the District Court’s order sentencing him to 86 months

imprisonment for violating 18 U.S.C. § 922(g), which prohibits convicted felons from

possessing firearms. O’Garro contends that the District Court erred in calculating his

sentence by applying a four-level enhancement to his base offense level pursuant to

U.S.S.G. § 2K2.1(b)(5).1 We will affirm.

I.       Background

         Because we write primarily for the benefit of the parties, we set forth only those

facts pertinent to the issues before us on appeal. On December 17, 2003, a grand jury


     1
    The District Court used the 2005 version of the Sentencing Guidelines in calculating
O’Garro’s sentence. Subsequent amendments to the Sentencing Guidelines renumbered
U.S.S.G. § 2K2.(1)(b)(5) to § 2K2.1(b)(6), but did not change its text. We will refer to
the Guidelines provision at issue as § 2K2.1(b)(5) throughout this opinion. The District
Court had jurisdiction pursuant to 18 U.S.C. § 3231. We have jurisdiction under 28
U.S.C. § 1291 and 18 U.S.C. § 3742. We exercise plenary review over a district court’s
interpretation of the Sentencing Guidelines, and we review a district court’s factual
findings at a sentencing hearing for clear error. United States v. Brennan, 326 F.3d 176,
200 (3d Cir. 2003).

                                               2
indicted O’Garro for violating 18 U.S.C. § 922(g). The indictment stemmed from a

traffic stop that took place on June 25, 2002, when a police officer saw O’Garro, who

was driving a dark colored minivan, driving the wrong direction on a one-way street.

After obtaining O’Garro’s driver’s license, the officer ran a record check that revealed an

outstanding warrant for O’Garro’s arrest based on an altercation with his girlfriend that

had taken place nineteen days earlier, on June 6, 2002. The police placed O’Garro under

arrest, and, while searching O’Garro’s vehicle incident to the arrest, recovered a blue

backpack containing a loaded, silver .357 caliber handgun.

       On July 18, 2006, pursuant to a plea agreement, O’Garro pled guilty to the charge

of violating 18 U.S.C. § 922(g). In the Pre Sentence Investigation Report (“PSR”), the

probation officer recommended a four-level increase in O’Garro’s base offense level,

pursuant to U.S.S.G. § 2K2.1(b)(5), which provides that “[i]f the defendant used or

possessed any firearm ... in connection with another felony offense ... increase [the

defendant’s base offense level] by 4 levels.” The probation officer recommended the

enhancement because he concluded that O’Garro had earlier used the handgun recovered

during the traffic stop to threaten his girlfriend during the altercation on June 6, 2002.

       According to the PSR, on June 6, 2002, O’Garro’s then-girlfriend, Kimberly

Costley, called the police and told them that, earlier that day, she and O’Garro had argued

over the use of her car, and that, when she threatened to call the police, O’Garro had told

her that he would “blast her in the face.” (PSR at ¶ 3.) Costley told police that O’Garro


                                              3
then left, returning later with a silver handgun. According to Costley, O’Garrro

attempted to enter her apartment with the gun, but could only open the door part of the

way because she had latched the door’s safety chain. Costley told the police that

O’Garro pointed the gun at her and her five-year-old son through the gap in the door, and

told her that he would “send her to an early grave.” Id. According to Costley, O’Garro

then kicked the door in, took a blue backpack from the apartment, and left in a dark

colored minivan. As a result of that incident, O’Garro pled guilty to state charges of

simple assault and terroristic threatening.

       In this case, O’Garro objected to the four-level increase suggested in the PSR and

renewed that objection at his sentencing hearing. Although he objected generally to what

he called the probation officer’s characterization of the facts surrounding the June 6

altercation, O’Garro did not point to any specific inaccuracies in the PSR’s account of

the assault on Ms. Costley and her son.

       At sentencing, O’Garro argued that § 2K2.1(b)(5) should not apply because, under

§ 1B1.3, the June 6 assault did not qualify as conduct which was related to the unlawful

possession of a firearm, the charge to which he had pled guilty. According to O’Garro,

the two incidents were not related because there was no evidence showing that the

firearm seized on June 25 was the same firearm he had allegedly used to threaten Costley

on June 6. In response, the government argued that the same gun found in O’Garro’s

posession on June 25 was used by O’Garro to threaten Costley on June 6. The


                                              4
government noted that the gun found on June 25, a silver revolver, matched Costley’s

description of the gun she said O’Garro had pointed at her and her son on June 6. The

District Court then noted that Costley’s description of the vehicle in which O’Garro

drove away on June 6 matched the van involved in the June 25 traffic stop, and that the

gun the police recovered on June 25 was found inside a bag that matched the description

Costley gave of the bag O’Garro had taken from her apartment on June 6. The District

Court then went on to overrule O’Garro’s objection, adopt the PSR, and apply the four-

level enhancement under § 2K2.1(b)(5), sentencing O’Garro to 86 months imprisonment.

O’Garro then timely filed this appeal.

II.    Discussion

       Both O’Garro and the government acknowledge our recent decision in United

States v. Grier, 475 F.3d 556 (3d Cir. 2007), in which we held that “[t]here can be no

question, in light of the holding of Booker and the reasoning of Apprendi, that the right

to proof beyond a reasonable doubt does not apply to facts relevant to enhancements

under an advisory Guidelines regime.” Id. at 565. Instead, such facts may be found by a

judge by a preponderance of the evidence without offending the Fifth or Sixth

Amendments. Id. at 568.

       However, notwithstanding Grier, O’Garro argues that the government was not

entitled to rely solely on the facts in the PSR to show by a preponderance of the evidence

that he used the same firearm he possessed on June 25 to threaten Costley on June 6.


                                             5
Instead, he contends, the District Court should have held an evidentiary hearing at which

Costley should have been called to testify, or alternatively, the government should have

been required to present a certified record of his state conviction that resulted from the

June 6 altercation. According to O’Garro, without such a hearing, the government failed

to show any connection between the alleged June 6 assault on Costley and the June 25

traffic stop, and therefore, the District Court violated his due process rights by sentencing

him for conduct which was collateral to the charge to which he pled guilty. O’Garro also

suggests that the June 6 assault cannot support the application of the enhancement under

§ 2K2.1(b)(5) because it does not qualify as “relevant conduct” to his felon-in-possession

offense under U.S.S.G. § 1B1.3.

       The government responds that, under our decision in United States v. Robinson,

482 F.3d 244 (3d Cir. 2007), hearsay is admissible at a sentencing proceeding, and that

the similarities recorded in the PSR regarding the gun, the backpack, and the minivan

were enough to allow the District Court to conclude, by a preponderance of the evidence,

that O’Garro possessed the same gun on June 6 and June 25.

       At oral argument, counsel for O’Garro did not go so far as to concede that those

similarities necessarily supported the District Court’s finding that he possessed the same

gun on June 6 and June 25. However, he did admit that “there are facts in the PSR that

support that the gun was the same gun.” (Oral Arg. Recording at 11:50-12:03.) While

we recognize that O’Garro has not conceded the point, we agree with the government


                                             6
that, assuming the District Court could rely solely on the PSR, the facts contained in that

document support by a preponderance of the evidence the conclusion that O’Garro

possessed the same gun on June 6 and June 25.2 Thus, the only remaining issue before

us is whether the District Court could rely solely on the PSR, without requiring the

government to present additional evidence.3

  2
      We note in passing that two of our sister circuits have concluded that the
government need not show that a defendant used the same gun that is the basis for the
unlawful possession charge under § 922(g) to commit the separate felony offense that
grounds the enhancement under U.S.S.G. § 2K2.1(b)(5). See United States v. Mann, 315
F.3d 1054, 1056 (8th Cir. 2003) (stating that § 2K2.1(b)(5) “applies to any firearm and
not merely the particular firearm upon which the defendant’s [§ 922] conviction is
based”) (emphasis in original); accord United States v. Jardine, 364 F.3d 1200, 1208
(10th Cir. 2004) (interpreting the meaning of “any firearm” under § 2K2.1(c)(1))
(judgment vacated on other grounds by Jardine v. United States, 543 U.S. 1102 (2005)).
Another Circuit has concluded that, if there are separate weapons, there at least must be a
“clear connection” between those weapons before § 2K2.1(b)(5) can apply. United States
v. Howse, 478 F.3d 729, 733 (6th Cir. 2007). However, because the government in this
case has accepted the burden of showing that O’Garro used the same firearm on June 6
and on June 25, we need not decide whether § 2K2.1(b)(5) can be applied when different
firearms are used in the separate offenses to which that Guidelines section looks.
  3
     On the facts of this case, the resolution of O’Garro’s argument that the June 6 assault
was not “relevant conduct” to his June 25 felon-in-possession offense under U.S.S.G. §
1B1.3 also ultimately turns on whether the District Court was entitled to rely solely on the
facts in the PSR. Section 1B1.3 provides that a defendant’s base offense level:
        (a)    shall be determined on the basis of the following:
        (1)    (A)    acts and omissions committed, aided, abetted, counseled,
                      commanded, induced, procured, or willfully caused by the
                      defendant and ... that occurred during the 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.

      Assuming arguendo that, before § 2K2.1(b)(5) can apply, § 1B1.3 requires the
government to show that the June 6 assault qualifies as “relevant conduct” to the June 25

                                              7
       Our conclusion is that the District Court’s reliance on the PSR was appropriate.

In Robinson, we held that “the Confrontation Clause does not apply in the sentencing

context and does not prevent the introduction of hearsay testimony at a sentencing

hearing.” 482 F.3d at 24 (citation omitted). Thus, while the government’s case for

applying § 2K2.1(b)(5) would certainly have been stronger had Costley testified at

sentencing, the District Court was free to rely on the unrebutted account of events set

forth in the PSR. The hearsay statements of the police officers who spoke to Costley

about the June 6 assault may not be the most persuasive presentation of the facts, but, in

this case, they are sufficient.

       Significantly, and despite his request for an evidentiary hearing, O’Garro has

never, either in the District Court or on appeal, explained how the facts contained in the

PSR are inaccurate. We have held that a district court may rely on disputed statements in

a PSR if the defendant is unable to provide “detailed reasons” which “call into question

the reliability of [the speaker’s] statements.” United States v. Campbell, 295 F.3d 398,

406 (3d Cir. 2002). In Campbell, the defendant’s PSR included his pre-arrest statements




felon-in-possession offense, proof that O’Garro possessed the same gun during both
incidents satisfies that requirement. “[P]ossession of a firearm is a continuous offense
which ceases only when the possession stops.” United States v. Jackson, 479 F.3d 485,
491 (7th Cir. 2007). Because firearms possession is a continuing offense, if O’Garro
possessed the same firearm on June 6 and June 25, then it follows that he very likely
continuously possessed the firearm from June 6 to June 25. That continuous possession
renders his conduct on June 6 “an act ... committed ... during the commission of the
offense of conviction,” as required by § 1B1.3.

                                             8
to undercover officers that he had sold 1.5 kilos of cocaine. Id. at 402. The defendant

objected to the District Court’s reliance on this portion of the PSR, and asserted that he

had not made incriminating statements to the agents, but provided no evidence beyond

this bare assertion that the PSR was incorrect. Id. at 406. The District Court adopted the

PSR, including the incriminating statements. Id. The defendant appealed, arguing that

the District Court should have held an evidentiary hearing to determine whether he had

made the statements, and, if he had, whether the statements were made voluntarily. Id.

We affirmed, explaining that the defendant had failed to present “evidence contradicting

the PSR’s findings which would have called into question the reliability of [his] prior

statements.” Id.

       Here, as did the defendant in Campbell, O’Garro objects to the factual account in

the PSR, but he fails to give any reason to believe that it is inaccurate, let alone “detailed

reasons.” Campbell, 295 F.3d at 406. We see no reason to require district courts to hold

evidentiary hearings when a defendant does nothing to call into question the accuracy of

the evidence presented.4


  4
    Our dissenting colleague states that “there is no basis for the enhancement in this
case[,]” but that assumes the conclusion of her argument that the government failed to
carry its burden. Her conclusion follows only if one accepts the premise that the evidence
in the PSR was inadmissible, a premise the dissent acknowledges is suspect by
disclaiming the proposition that PSRs are generally inadmissible. Our precedent is clear:
hearsay may indeed be admitted at the sentencing stage of a case, Robinson, 482 F.3d at
246, and nothing in Shepard v. United States, 544 U.S. 13 (2005) changes that rule, which
is itself based on long-standing Supreme Court authority. See Williams v. Oklahoma, 358
U.S. 576, 584 (1959) (“[O]nce the guilt of the accused has been properly established, the

                                              9
III.   Conclusion

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

sentence.



SLOVITER, Circuit Judge, dissenting.

       The District Court may not have been unreasonable in inferring that the silver

revolver found in defendant O’Garro’s possession on June 25, 2002, was the same

revolver that O’Garro used on June 6, 2002, when he terrorized his girlfriend. After all, it

was found in a bag that matched the description that the girlfriend provided to the police.

However, in the criminal justice system we put the burden on the prosecutor to prove

every element of its case. In this case, the government accepted the burden of showing

that O’Garro used the same firearm on June 6 and on June 25. See Maj. Op. at note 2.



sentencing judge, in determining the kind and extent of punishment to be imposed, is not
restricted to evidence derived from the examination and cross-examination of witnesses
in open court but may, consistently with the Due Process Clause of the Fourteenth
Amendment, consider responsible unsworn or ‘out-of-court’ information relative to the
circumstances of the crime and to the convicted person's life and characteristics.”)
Likewise, it is clear that district courts may rely on facts set forth in a PSR. Campbell,
295 F.3d at 406. Since a district court may rely on such facts, it stands to reason that the
government can ask the court to do so and can rely on those facts as evidence from which
to argue its sentencing position. Whether there is a more persuasive way to proceed is not
the point. Our colleague’s position is, in essence, that the statements of the police, which
in turn incorporate the victim’s statements, amount to nothing – hence the assertion that
“[t]he government produced no witness ... .” We cannot agree. The statements of the
police and, by incorporation the victim’s, are evidence upon which the District Court was
entitled to rely, absent some reason to believe that they could not be responsibly dealt
with so. O’Garro provided no such reason.

                                            10
       How did the government meet its burden? It didn’t. The government produced no

witness, not even O’Garro’s girlfriend (probably now ex-girlfriend) who was the person

who presumably gave the local police the description of the gun. Hearsay is acceptable in

sentencing proceedings, but no member of the local police testified. The District Court

drew its inference that O’Garro used the same weapon from the Pre-Sentence Report

(“PSR”) which relied on the police reports containing O’Garro’s girlfriend’s description

of the June 6 event. The majority sees no problem with this double hearsay. I do.

       In United States v. Leekins, 493 F.3d 143 (3d Cir. 2007), we considered the effect

of Shepard v. United States, 544 U.S. 13 (2005), on the decision of that district court

admitting a police report into evidence. In Shepard, the Supreme Court had considered

what evidence could be used to determine whether an earlier guilty plea qualified as a

predicate conviction for purposes of the Armed Career Criminal Act (“ACCA”). The

Shepard plurality held that for purposes of the ACCA, the sentencing court could not look

to the police report but was limited to the charging documents, the written plea

agreement, the transcript of the plea colloquy, and any explicit factual findings by the trial

court to which the defendant assented. The issue before us here differs but the Court’s

concern about the reliability of police reports is equally at issue.

       In Leekins, we agreed with counsel that “a mere police report is not inherently

reliable.” 493 F.3d at 149 (citation and internal quotations omitted). We added, “[o]n the

other hand, a police report also is not inherently unreliable.” Id. We looked instead to the



                                              11
indicia of reliability of the police report in that case. We noted that there was testimony

that Leekins had a weapon on the day at issue and that the sentencing court had the

benefit of observing the witness who provided that testimony. There was corroborating

evidence of the holster in the car, and there were verbatim statements by two police

officers attached to the police report. There are no comparable indicia in this case to

corroborate the sentencing judge’s inference that the silver revolver used on June 6 was

the same as the silver revolver found in O’Garro’s automobile on June 25.

       I do not profess to know anything about handguns, silver or otherwise, but

counsel stated at oral argument that silver handguns are in common use. I note with

concern that the government made no effort to prove its position that the weapons were

the same. It relied exclusively on the PSR – the easy way out. I do not suggest that the

PSR is inadmissible in all cases but when it relies on hearsay from local officers who

have not even given their own statements as the basis for an enhancement that

considerably increases defendant’s time of imprisonment, we should require more. I

believe appellate courts have an obligation to hold the government, with its vast resources

in criminal cases, to its proof, particularly when the defendant objected to that specific

portion of the PSR.

       The majority rewrites this dissent by stating, in its note 4, that my position is that

the statements of the police, which incorporate the victim’s statements, amount to

nothing. Quite the contrary. The majority states, “The statements of the police and, by



                                              12
incorporation the victim’s, are evidence upon which the District Court was entitled to rely

. . . .” (emphasis added). Indeed, they would be. The problem in this case is that they

were not put into evidence. There was no attempt by the government to produce the

police report or a statement by the police, much less testimony by one of the police

officers who could testify to what the girlfriend said. Nor did the government produce the

girlfriend. It produced only the PSR which includes purported statements by unidentified

police officers. I, unlike the majority, am not prepared to give the government yet another

free ride. Because there is no evidentiary basis for the enhancement in this case, I

respectfully dissent.




                                            13
