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


5-23-2003

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Precedential or Non-Precedential: Non-Precedential

Docket 02-3106




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                                                    NOT PRECEDENTIAL

  UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT




                             No. 02-3106




                  UNITED STATES OF AMERICA

                                  v.

                         JAVON JENNINGS,
                                        Appellant


            On Appeal from the United States District Court
                     for the District of New Jersey
                        (D.C. No. 02-cr-00240-1)
               District Judge: Hon. Jerome B. Simandle


              Submitted Under Third Circuit LAR 34.1(a)
                           May 22, 2003

Before: SCIRICA, Chief Judge, SLOVITER and NYGAARD, Circuit Judges

                        (Filed: May 23, 2003)




                     OPINION OF THE COURT
SLOVITER, Circuit Judge.

       Javon Jennings, who pled guilty to one count of armed robbery and one count of

use of a firearm during a crime of violence, appeals alleging that the District Court

misapplied the Sentencing Guidelines by enhancing his sentence for brandishing a

firearm. Jennings did not raise this issue in the District Court, so we review only under

the plain error standard.

                                             I.

                                    BACKGROUND

       Jennings was involved in a series of armed robberies. He pled guilty to Count One

of the Information, which charged Jennings with the December 9, 2000 armed robbery of

a Gulf Gas Station in Collingswood, New Jersey, in violation of 18 U.S.C. § 1951, and to

Count Two, which charged him with using and carrying a short-barreled shot gun during

and in relation to a crime of violence (the armed robbery of a Gas Mart in Haddon

Township, New Jersey on December 20, 2000) in violation of 18 U.S.C. § 924(c)(1)(B).

In his plea agreement, Jennings stipulated that in addition to the December 9 armed

robbery, he committed or aided and abetted the commission of three other armed

robberies on November 20, 2000, December 16, 2000 and December 20, 2000, and one

attempted armed robbery on December 2, 2000. Jennings further stipulated that a firearm

was brandished during and in relation to the commission of these other offenses, and that

a firearm was discharged during and in relation to the commission of the December 9,



                                             2
2000 robbery to which he pled guilty.

       The District Court adopted the Sentencing Guideline calculations in the

Presentence Investigation Report. Pursuant to U.S.S.G. § 1B1.2(c), the Probation Officer

treated the three uncharged armed robberies and one attempted armed robbery as though

Jennings had been convicted of these offenses. After determining the base offense level

for each of the armed robbery offenses, the Probation Officer, pursuant to U.S.S.G. §§

2B3.1(b)(2) and 1B1.3(a)(1), increased that level based upon the specific offense

characteristic of discharging or brandishing a firearm during and in relation to the

commission of the offense.

       The Probation Officer, however, did not increase the base offense level for the

December 20, 2000 armed robbery based upon the brandishing of a firearm because

Jennings pled guilty to use of a firearm in connection with this robbery in violation of 18

U.S.C. § 924(c). The Probation Officer recognized that, under U.S.S.G. § 2K2.4, the

guideline sentence for a violation of § 924(c) is the minimum term of imprisonment

required by statute, and that Application Note 2 provides that when a sentence is imposed

for a violation of § 924(c) in conjunction with a sentence for an underlying offense, a

weapons enhancement should not be applied when determining the sentence for the

underlying offense.

       After making adjustments for the multiple counts and Jennings’ acceptance of

responsibility, the Probation Officer determined that the guideline range for imprisonment



                                             3
for Count One is 108 to 135 months and the guideline sentence for Count Two is the

minimum term of imprisonment required by statute to be imposed to run consecutively to

the term of imprisonment imposed for Count One. The District Court sentenced Jennings

to 108 months imprisonment on Count One and 120 months imprisonment on Count Two,

to be served consecutively, followed by a five year term of supervised release. The

District Court also ordered payment of restitution in the amount of $21,107.17 and a

special assessment of $200.00. This appeal followed.

       Jennings’ counsel filed a brief pursuant to Anders v. California, 386 U.S. 738

(1967). To satisfy the Anders requirements, appellant’s counsel must “satisfy the court

that he or she has thoroughly scoured the record in search of appealable issues” and

“explain why the issues are frivolous.” United States v. Marvin, 211 F.3d 778, 780 (3d

Cir. 2000). Under Anders, if, after review of the district court record and a conscientious

investigation, counsel is convinced that the appeal presents no issue of arguable merit,

counsel may properly ask to withdraw while filing a brief referring to anything in the

record that might arguably support the appeal. 386 U.S. at 744. The defendant is given

an opportunity to file a brief, and Jennings filed a pro se brief.

                                              II.

                                       DISCUSSION

       Relying on United States v. Knobloch, 131 F.3d 366 (3d Cir. 1997), Jennings

argues that the District Court erred by applying the weapons enhancements at sentencing



                                               4
because he received a consecutive sentence for using and carrying a firearm during and in

relation to the December 20, 2000 armed robbery. Although the government did not

respond as to Knobloch, we find that case distinguishable.

       In Knobloch, the defendant pled guilty to a drug distribution offense and to using

and carrying a handgun during and in relation to the drug distribution offense. He also

acknowledged responsibility for possession with intent to distribute the drugs and for the

use of two other guns during and in relation to the possession offense. In calculating the

defendant’s sentence for the distribution offense, the district court determined the base

offense level for that offense and applied a specific offense characteristic enhancement

for possession of the two guns related to the drug possession offense. The district court

also imposed a mandatory consecutive sentence for the use and carrying of a gun during

and in relation to the drug distribution offense in violation of § 924(c).

       This court held that the district court committed plain error when it applied the

weapons enhancement. Id. at 371. Application Note 2 to U.S.S.G. § 2K2.4 provides in

relevant part:

                 If a sentence under this guideline is imposed in conjunction
                 with a sentence for an underlying offense, do not apply any
                 specific offense characteristic for possession, brandishing, use
                 or discharge of an explosive or firearm when determining the
                 sentence for the underlying offense. A sentence under this
                 guideline accounts for any explosive or weapon enhancement
                 for the underlying offense of conviction, including any such
                 enhancement that would apply based on conduct for which the
                 defendant is accountable under § 1B1.3 (Relevant Conduct).
                 Do not apply any weapon enhancement in the guideline for

                                                5
              the underlying offense, for example, if (A) a co-defendant, as
              part of the jointly undertaken criminal activity, possessed a
              firearm different from the one for which the defendant was
              convicted under 18 U.S.C. § 924(c); or (B) in an ongoing drug
              trafficking offense, the defendant possessed a firearm other
              than the one for which the defendant was convicted under 18
              U.S.C. § 924(c).

U.S.S.G. § 2K2.4, Application Note 2.

       We explained, “Application Note 2 to U.S.S.G. § 2K2.4 plainly prohibits a two-

level enhancement under these circumstances for possession of any firearm – whether it

be the one directly involved in the underlying offense or another firearm, even one in a

different location. If the court imposes a sentence for a drug offense along with a

consecutive sentence under 18 U.S.C. § 924(c) based on that drug offense, it simply

cannot enhance the sentence for the drug offense for possession of any firearm.” Id. at

372.

       The situation presented in Knobloch was not repeated here. Because Jennings pled

guilty to use and carrying of a firearm in connection with the December 20, 2000 armed

robbery and received a consecutive sentence for that offense under 18 U.S.C. § 924(c),

the District Court did not enhance the base offense level for the December 20, 2000

armed robbery. Rather, the District Court, in adopting the Presentence Investigation

Report, only applied weapon enhancements to the armed robberies with no related

conviction for a § 924(c) offense. See U.S.S.G. § 2K2.4, Application Note 2 (“[I]f a

defendant is convicted of two armed bank robberies, but is convicted under 18 U.S.C. §



                                             6
924(c) in connection with only one of the robberies, a weapon enhancement would apply

to the bank robbery which was not the basis for the 18 U.S.C. § 924(c) conviction.).

Thus, there was no error in imposing sentence on Jennings.

      Accordingly, we will affirm the judgment of conviction and sentence. We will

grant counsel’s motion to be relieved.




TO THE CLERK:

             Please file the foregoing opinion.


                              /s/ Dolores K. Sloviter
                           Circuit Judge
