                                                                                                                           Opinions of the United
2006 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


7-19-2006

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Precedential or Non-Precedential: Non-Precedential

Docket No. 05-2932




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                                                                    NOT PRECEDENTIAL

                       UNITED STATES COURT OF APPEALS
                            FOR THE THIRD CIRCUIT

                                          No: 05-2932

                            UNITED STATES OF AMERICA

                                                v.

                                RONALD W. HERTZOG,

                                                        Appellant

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

                    Submitted Pursuant to Third Circuit LAR 34.1(a)
                                   March 27, 2006

                Before: McKEE and VAN ANTWERPEN, Circuit Judges,
                         and POLLAK*, Senior District Judge.

                                   (Filed: July 19, 2006)
                                  ___________________

                                       OPINION
                                  ___________________

McKEE, Circuit Judge.

       Ronald Hertzog appeals from the judgment of sentence that was imposed

following his guilty plea to charges arising from his illegal possession of firearms. For

the reasons the follow, we will affirm.


   *
   The Honorable Louis H. Pollak, Senior District Judge of the United States District
Court for the Eastern District of Pennsylvania, sitting by designation.
                                              I.

       Because we write primarily for the parties, it is not necessary to recite the facts of

this case. We previously remanded this matter so that the district court could reconsider

its sentence in the light of Blakely v. Washington, 542 U.S. 296 (2004) and United States

v. Booker, 543 U.S. 220 (2005). On remand, the district court again sentenced Hertzog to

seventy months of incarceration. We have jurisdiction pursuant to 28 U.S.C. § 1291.

We conclude that each of the claims of error Hertzog raises are meritless.

     A. Reasonableness of the Sentence in Light of 18 U.S.C. § 3553(a) Factors.

       In determining whether the district court imposed an unreasonable sentence, we

must be satisfied that the court exercised its discretion by appropriately considering the

sentencing factors set out in 18 U.S.C. § 3553(a). United States v. Cooper, 437 F.3d 324

(3d. Cir. 2006). Thus, courts must “impose a sentence sufficient, but not greater than

necessary, to comply with the purposes set forth in paragraph (2) of [that] subsection.”

18 U.S.C. § 3553(a) (2000). We do not presume that the district court properly

considered these factors merely because a sentence falls within the applicable guidelines

range. Cooper, 437 F.3d at 330. Although a sentence within the applicable range is more

likely to be reasonable than one outside of it, a sentence within the suggested range is not

reasonable per se; the fact that a sentence falls within that range is one factor that must be

considered in reviewing a sentence for reasonableness. Id. at 330-31. Moreover, the

defendant bears the burden of establishing that the sentence was unreasonable. Id. at 332.

       On remand, the district court considered the mandates of Booker and reexamined

                                              2
the original sentence. App. 382-83. The court concluded that that sentence was

consistent with the sentencing factors set forth in § 3553(a). Given our deferential review

of that determination, see Cooper, 437 F.3d at 330, we find no merit to Hertzog’s claim

that the sentence that was reimposed was unreasonable.

                         B. Information After the First Sentence.

       18 U.S.C. § 3661 provides, “No limitation shall be placed on information

concerning the background, character, and conduct of a person convicted of an offense

which a court of the United States may receive and consider for the purposes of imposing

an appropriate sentence.” Pursuant to U.S.S.G. § 5K2.19, post-sentencing rehabilitation

does not furnish a basis for a downward departure. U.S.S.G. § 5K2.19. Before the

current version of § 5K2.19 was enacted, we concluded that a defendant’s rehabilitative

effort while incarcerated had to be extraordinary to warrant a downward departure.

United States v. Yeaman, 248 F.3d 223, 228-29 (3d Cir. 2001).

       Following remand, the district court acknowledged that Hertzog had participated

in educational, religious, and substance abuse programs. The court considered those

laudable efforts in light of Booker, but refused to grant a downward departure. The court

explained that such a downward departure in cases remanded following Booker would

unfairly disadvantage defendants who were ineligible for re-sentencing and therefore had

no opportunity to bring their rehabilitative efforts before the sentencing court. In refusing

to grant a departure for those efforts, the court recognized its discretion to do so, but

concluded that it would not be appropriate to exercise its discretion in that manner given

                                               3
the circumstances here. We find no error in the resulting sentence.

                   C. Increase in Hertzog’s Criminal History Category.

         U.S.S.G. § 4A1.3(a) advises that an upward departure may be warranted when

“reliable information indicates that the defendant’s criminal history category substantially

under-represents the seriousness of the defendant’s criminal history or the likelihood that

the defendant will commit other crimes.”** U.S.S.G. § 4A1.3. In considering a district

court’s decision to increase a defendant’s criminal history category, we afford deferential

review to the sentence imposed. United States v. Kikumura, 918 F.2d 1084, 1098 (3d Cir.

1990).

         Initially, Hertzog’s criminal history category was I because he had no prior

convictions. Pursuant to U.S.S.G. § 4A1.3, the district court determined that category did

not adequately reflect the likelihood that Hertzog would commit other crimes based upon

statements Hertzog made to undercover officers prior to his arrest and internet postings,

the district court determined that category I substantially under-represented the likelihood

that Hertzog would commit other crimes. Accordingly, the court exercised its discretion

to and increased the criminal category. Given our deferential review of the court’s

sentence, and the record’s support for the enhancement, we conclude that the resulting

sentence was reasonable.

                             D. Enhancement for Special Skill.


   **
     Even under the mandatory sentencing guideline regime, this departure was within the
sentencing court’s discretion, as evidenced by the language “may be warranted.”

                                               4
       U.S.S.G. § 3B1.3 suggests an upward departure when a defendant’s special skill is

a significant factor in facilitating a crime. The accompanying commentary defines

“special skill” as “skill not possessed by members of the general public and usually

requiring substantial education, training or licensing.”

       Here, the district court determined that Hertzog’s skill in converting multiple types

of legal, semi-automatic weapons into illegal automatic weapons qualified as a special

skill justifying a more severe sentence. Herzog also used raw materials to create

prohibited silencers and explosive devices. It is clear that the special skill qualifying for

an enhancement under U.S.S.G. § 3B1.3 does not require formal education or training.

United States v. Urban, 140 F.3d 229, 236 (3d Cir. 1998) (“[A] § 3B1.3 sentence

enhancement is not limited to persons who have received substantial formal education,

training from experts, or who have been licensed to perform a special skill.”)

Accordingly, we believe the district court was justified in enhancing Hertzog’s sentence

pursuant to U.S.S.G. § 3B1.3 based upon the skill he employed in committing the instant

offense.

                          E. Attempted Obstruction of Justice.

       U.S.S.G. § 3C1.1 suggests a two-level enhancement if a defendant “willfully

obstructed or impeded, or attempted to obstruct or impede, the administration of justice

during the course of the investigation, prosecution, or sentencing of the instant offense of

conviction” and such conduct was related to defendant’s offense of conviction or a

closely related offense. U.S.S.G. § 3C1.1. “Willful” implies a specific intent to obstruct

                                              5
justice. United States v. Hernandez, 83 F.3d 582, 585 (2d Cir. 1996). In determining

whether the defendant acted willfully, the district court is entitled to rely on

circumstantial evidence and to draw all reasonable inferences from the facts. United

States v. Cassiliano, 137 F.3d 742, 746 (2d Cir. 1998).

       Here, law enforcement officers took pains to conceal their identity even during

Hertzog’s arrest. Following his arrest, Hertzog told his daughter to post an email to

members of the Pennsylvania Militia to inform them of his arrest and advise them that

some members of his group were actually undercover officers. The email that was sent

warned members not to trust the named officers, and announced that the media reports

about Hertzog’s arrest for a traffic violation were false. Herzog’s post-arrest conduct

significantly hampered the officers’ ability to continue the investigation into illegal

purchases of weapons that had involved Hertzog. Although Hertzog denies any intent to

interfere with the investigation, the record supports the district court’s conclusion to the

contrary, and we conclude that the court did not err in enhancing Hertzog’s sentence for

this conduct.

 F. Possession of Machine Guns, Armor-Piercing Ammunition, and Black Powder.

       Hertzog claims that his sentence was the result of “double counting” because the

district court applied a provision of the guidelines to increase his sentence for a harm

already considered under another provision that was also applied. See United States v.

Kenney, 283 F.3d 934, 936 (8th Cir. 2002). 18 U.S.C. § 3553(a) directs the district court

to consider a number of factors when imposing a sentence. “[T]he nature and

                                               6
circumstances of the offense;” “the need for the sentence imposed . . . to reflect the

seriousness of the offense, to promote respect for the law, and to provide just punishment

for the offense;” and “the kinds of sentence and the sentencing range established for . . .

the applicable category of offense committed by the defendant as set forth in the

guidelines. . . ” seem particularly relevant to this aspect of the district court’s inquiry. 18

U.S.C. § 3553(a).

       Possession of multiple firearms, armor-piercing ammunition, and items that

present a substantial risk to others are all distinct factors that counsel a sentence

enhancement. See U.S.S.G. § 2K2.1 (suggesting an upward departure for possession of

multiple firearms and commentary suggesting upward departure for large amounts of

armor piercing ammunition); U.S.S.G. § 5K2.14 (suggesting an upward departure when

“national security, public health, or safety [are] significantly endangered). Moreover, we

have allowed upward departure based upon the types of firearms involved, as distinct

from the number. United States v. Alers, 852 F. Supp. 310, 313-14 (D.N.J. 1994), aff’d,

40 F.3d 1241 (3d Cir. 1994).

       The district court increased Hertzog’s sentence for possessing multiple machine

guns, armor-piercing ammunition, and other items which posed substantial risk of safety

to others. These are distinct offenses and the court’s sentence recognized that by

imposing sentencing enhancements in accordance with § 3553(a) factors. Under Alers,

the district court could also consider the types of weapons Hertzog possessed, here

machine guns. Specifically, the district court based its departure for substantial risk to

                                               7
others upon the fact that Hertzog permitted a five-year-old to be present while his parents

fired a Sten gun. He also possessed a loaded gun on his person and another in his

minivan, and maintained ten pounds of black powder in his trailer that could have been

ignited by his frequent smoking. Accordingly, these enhancements were reasonable in

light of the § 3553(a) factors.

                                            III.

       For all of the above reasons, we will affirm the district court’s judgment of

sentence and conviction.




                                             8
