                                                                                                                           Opinions of the United
2005 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


3-29-2005

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Precedential or Non-Precedential: Non-Precedential

Docket No. 03-2997




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"USA v. Hertzog" (2005). 2005 Decisions. Paper 1427.
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                                                              NOT PRECEDENTIAL

          UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT




                                       No. 03-2997


                            UNITED STATES OF AMERICA

                                            v.

                                  RONALD W. HERTZOG,
                                             Appellant




                      On Appeal from the United States District Court
                          for the Middle District of Pennsylvania
                                   (D.C. No. 02-cr-00153)
                        District Judge: Hon. James F. McClure, Jr.


                                   Argued March 12, 2004

       Before: SLOVITER, NYGAARD, Circuit Judges, and SHADUR * , District Judge

                                  (Filed: March 29, 2005)


Kyle W. Rude (Argued)
McNerney, Page, Vanderlin & Hall
Williamsport, PA 17703

         Attorney for Appellant




   *
       Hon. Milton I. Shadur, United States Senior District Judge for the Northern
District of Illinois, sitting by designation.
Frederick E. Martin (Argued)
Office of United States Attorney
Williamsport, PA 17701

       Attorney for Appellee


                                         OPINION


SLOVITER, Circuit Judge.

       Ronald W. Hertzog, who was indicted in the United States District Court for the

Middle District of Pennsylvania on three firearms offenses, pled guilty to one count

charging possession of unregistered firearms. He has appealed from the judgment of

conviction and sentence. His appeal is limited to issues relating to the judgment of

sentence. Although we heard oral argument in this matter on March 12, 2004, we delayed

our disposition to consider the effect of the decision of the United States Supreme Court

in Blakely v. Washington, 542 U.S. __, 124 S. Ct. 2531 (2004). Thereafter, we further

delayed disposition of this matter pending the decision in United States v. Booker, 543

U.S. __, 125 S. Ct. 738 (2005).

       Now that those decisions have been issued, we proceed to resolve Hertzog’s

appeal. For the reasons explained below, we will vacate the judgment of conviction

insofar as it pertains to the sentence and remand to the District Court for resentencing in




                                             2
accordance with the decision in Booker.1

                                              I.

       Because the parties are familiar with the factual and procedural background of this

case, we refer only to those facts that are pertinent to our disposition. In 2001, the

Federal Bureau of Investigation, in conjunction with the Pennsylvania State Police,

initiated an investigation of the Pennsylvania Citizens Militia, an organization of

individuals who share a distrust of the federal government. Pursuant to this joint

investigation, law enforcement officers infiltrated the organization and attended field-

training exercises. During these field exercises, Hertzog – the “self-proclaimed

commander” of the Pennsylvania Citizens Militia – purportedly used illegal machine guns

and made plans to sell one of these weapons to the undercover officers. Supp. App. at 1.

       On June 19, 2002, law enforcement officials arrested Hertzog. During the

resulting search of Hertzog’s property, law enforcement officers allegedly recovered,

inter alia, a homemade silencer, several machine gun-type weapons, a machine gun

receiver, three additional rifles that could have been converted into fully-automatic

weapons along with instructions for so converting the guns, a stockpile of over one-

hundred rounds of bullets including some armor-piercing ammunition, several inert

grenades, and instructional books on how to create and hide illegal weaponry.



   1
      The District Court had jurisdiction pursuant to 18 U.S.C. § 3231; this Court has
jurisdiction pursuant to 28 U.S.C. § 1291.

                                              3
       A federal grand jury thereafter issued a three-count indictment. Subsequently,

Hertzog entered a guilty plea to Count III of this indictment and thereby admitted that he

had knowingly and intentionally received and possessed several unregistered firearms in

violation of 26 U.S.C. § 5861(d).

       The District Court conducted a three-day sentencing hearing at which the Court

heard testimony from numerous witnesses, including a firearms expert, an explosives

expert, and various event witnesses. On May 21, 2003, the District Court issued a

memorandum that set forth its findings of fact and conclusions of law. The District

Court determined that Hertzog’s base offense level under the 2002 Edition of the United

States Sentencing Guidelines was eighteen, see U.S.S.G. § 2K2.1(a)(5) (2002), to which

it applied various enhancements on the basis of facts that the Court itself had determined.

See Supp. App. at 9-20 (applying offense level enhancements pursuant to, inter alia,

U.S.S.G. §§ 2K2.1(b)(1)(A), 2K2.1(b)(3), 3B1.3, and 3C1.1(2002)). Although Hertzog,

who had no criminal history, normally would have fallen into Criminal History Category

I, the District Court imposed an upward departure regarding Hertzog’s criminal history

because it found that Hertzog was likely to recidivate. The District Court imposed

further upward departures on the basis of its findings that Hertzog had possessed armor-

piercing ammunition and that he constituted a significant danger to public safety.

Ultimately, the District Court, applying the Sentencing Guidelines as mandatory,

sentenced Hertzog to a term of seventy months imprisonment.


                                             4
        Hertzog thereafter lodged a timely appeal with this court challenging his sentence.

                                             II.

        In United States v. Booker, 543 U.S. __, 125 S. Ct. 738 (2005), the Supreme Court

held, inter alia, that “the Sixth Amendment as construed in Blakely does apply to the

[Federal] Sentencing Guidelines.” Booker, 543 U.S. at __, 125 S. Ct. at 746. Booker was

decided by two opinions of the Court approved by different majorities. In the first

opinion, authored by Justice Stevens for a majority of five, the Court reaffirmed the

holding in Apprendi v. New Jersey, 530 U.S. 466 (2000), that “[a]ny fact (other than a

prior conviction) which is necessary to support a sentence exceeding the maximum

authorized by the facts established by a plea of guilty or a jury verdict must be admitted

by the defendant or proved to a jury beyond a reasonable doubt” and extended that rule to

the United States Sentencing Guidelines. Booker (Stevens), 543 U.S. at __, 125 S. Ct. at

756.

        The second opinion, authored by Justice Breyer for a majority of five,2 focused on

the remedy. The Court held that 18 U.S.C. § 3553(b)(1), the provision of the Sentencing

Reform Act of 1984 that made the Guidelines mandatory, was incompatible with the

Court’s constitutional ruling; thus, the Court severed and excised § 3553(b)(1). Similarly,

18 U.S.C. § 3742(e), “the provision that set[] forth standards of review on appeal,

including de novo review of departures from the applicable Guidelines range,” was also


   2
       Justice Ginsburg was the only Justice who joined both majority opinions.

                                             5
severed and excised because it contained critical cross-references to the section that made

the Guidelines mandatory. Booker (Breyer), 543 U.S. at __, 125 S. Ct. at 764. The net

result was to delete the mandatory nature of the Guidelines and transform them to

advisory guidelines for the information and use of the district courts in whom discretion

has now been reinstated.

       The sentencing issues Hertzog raised in his original brief are now covered by the

Booker holdings. This court has previously held that post-Booker sentencing issues

raised on direct appeal are best determined by the district courts in the first instance. See

United States v. Davis, 397 F.3d 173, 183 (3d Cir. 2005) (“In light of the determination of

the judges of this court that the sentencing issues appellants raise are best determined by

the District Court in the first instance, we vacate the sentences and remand for

resentencing in accordance with Booker.”); see also United States v. Ordaz, 398 F.3d 236,

239 (3d Cir. 2005).

                                             III.

       For the reasons stated above, we will vacate Hertzog’s judgment of conviction

insofar as it pertains to his sentence and remand to the District Court for resentencing in

accordance with the opinion of this court.




                                              6
