                                                                                                                           Opinions of the United
2004 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


3-17-2004

USA v. Lloyd
Precedential or Non-Precedential: Precedential

Docket No. 03-1287




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                       PRECEDENTIAL       MARY BETH BUCHANAN
                                          BONNIE R. SCHLUETER
    UNITED STATES COURT OF                KELLY R. LABBY (Argued)
           APPEALS                        Post Office and Courthouse
     FOR THE THIRD CIRCUIT                700 Grant Street, Suite 400
                                          Pittsburgh, PA 15219
            ___________                   Counsel for Appellee

             No. 03-1287
            ____________                          ____________________

  UNITED STATES OF AMERICA                      OPINION OF THE COURT
                                                 ____________________
                  v.
                                          ALITO, Circuit Judge:
       BENJAMIN J. LLOYD,
                       Appellant                 Benjamin J. Lloyd appeals a
       ____________________               judgment of conviction and sentence. He
                                          argues that his offense level was
  ON APPEAL FROM THE UNITED               improperly adjusted upward under
    STATES DISTRICT COURT                 U.S.S.G. § 2K2.1(b)(5) as that provision
 FOR THE WESTERN DISTRICT OF              was interpreted in United States v.
        PENNSYLVANIA                      Fenton, 309 F.3d 825 (3d Cir. 2002).
                                          Because we hold that his offense level
District Court Judge: Honorable Maurice   was correctly determined, we affirm.
              B. Cohill, Jr.
            (No. 02-CR-139)                                  I.
         ____________________
                                                 Lloyd was alleged to be part of a
       Argued: October 22, 2003           drug ring headed by Armando Spataro.
                                          On July 1, 2001, Spataro was involved in
   Before: ALITO, FUENTES, and            a dispute with a man named Thomas
      ROSENN, Circuit Judges              Learn, whom he accused of “hitting on”
                                          a woman whom Spataro had been dating.
   (Opinion Filed: March 17, 2004 )       Several days later, Lloyd, Spataro, and
                                          other members of the drug ring conferred
MARK A. SINDLER (Argued)                  about how best to get even with Learn.
429 Forbes Avenue, Suite 450              Some members of the group had
Pittsburgh, PA 15219                      apparently started dabbling in bomb-
Wilmington, DE 19801                      making (with the aid of instructions
Counsel for Appellant                     downloaded from the Internet), and it
                                          was decided that a bomb should be built
and placed under the fuel tank of Learn’s         violation of 26 U.S.C. § 5861(d), and
truck.                                            conspiracy to violate that provision, in
                                                  violation of 18 U.S.C. § 371. Lloyd pled
         Spataro and another member of            guilty to both counts.
the ring (not Lloyd) accordingly set out
to purchase materials and construct the                   In the process of calculating
bomb. On the morning of July 4, 2001,             Lloyd’s sentence, the presentence report
Spataro gave the completed bomb to                recommended that the District Court add
Lloyd and some others, with instructions          four points to Lloyd’s base offense level
to position the bomb as planned and to            pursuant to U.S.S.G. § 2K2.1(b)(5),
detonate it. Upon arriving at Learn’s             which provides for such an adjustment
residence, Lloyd, acting alone, placed the        when it is found that a defendant “used
device under the fuel tank of Learn’s car,        or possessed any firearm . . . in
lit the fuse (which consisted of a                connection with another felony offense;
cigarette), and fled the scene with his           or possessed or transferred any firearm . .
companions. Lloyd was later paid $100             . with knowledge, intent, or reason to
for this act.                                     believe that it would be used or
                                                  possessed in connection with another
        Contrary to the wishes of Spataro         felony offense . . . .”
and friends, the scheme did not succeed.
Later that day, as Learn was about to                    Lloyd objected to the proposed
enter the truck, his dog alerted him to the       adjustment, contending that the allegedly
presence of the undetonated device under          felonious conduct on which the proposed
the vehicle. Learn contacted the                  adjustment was based was essentially the
authorities, who disassembled and                 same conduct that formed the basis for
examined the bomb. The authorities                the underlying counts to which he had
concluded that the bomb was “capable of           pled guilty. This, he argued, was
exploding” and would have exploded had            contrary to this Court’s decision in
it not been for the “malfunction of the           United States v. Fenton, 309 F.3d 825
cigarette.”                                       (3d Cir. 2002), which held that
                                                  § 2K2.1(b)(5) requires “another felony
       Learn informed the police that he          offense,” separate and apart from the
suspected that Spataro might have been            base offense. Id. at 828 (emphasis
behind the failed plot. Lloyd, Spataro,           added). The District Court, however,
and several of their companions were              found that the act of placing the bomb
subsequently apprehended and indicted             and igniting it was sufficiently different
by a grand jury sitting in the Western            from the acts of conspiracy and
District of Pennsylvania. Lloyd was               possession so as to distinguish this case
charged under two counts: possession of           from Fenton. The District Court
an unregistered destructive device, in            accordingly applied the four-point

                                              2
adjustment prescribed under                               Nevertheless, while it is clear that
§ 2K2.1(b)(5). Lloyd now disputes that            a felony conviction leading to a sentence
holding on appeal.                                cannot be bootstrapped to enhance itself
                   II.                            under § 2K2.1(b)(5), it is equally clear
                                                  that the guideline was not intended to
                    A.                            exclude only the technical offense of
                                                  conviction from the scope of “another
       Section 2K2 of the Sentencing              felony offense.” In this regard, it is
Guidelines governs sentence                       instructive to note that the Supreme
determinations for convictions based on           Court has held that where two crimes
violations of federal firearms laws. In           each require proof of some element that
particular, § 2K2.1(b)(5) of the                  the other does not, they may be
Sentencing Guidelines provides for a              considered effectively distinct in a
four-offense-level adjustment for a               variety of contexts: in determining
firearms offense if the defendant used or         whether there has been a violation of the
possessed any firearm “in connection              Fifth Amendment prohibition against
with another felony offense” or “with             double jeopardy, Brown v. Ohio, 432
reason to believe that it would be used or        U.S. 161, 164-166 (1977); in identifying
possessed in connection with another              the offenses to which the Sixth
felony offense.”                                  Amendment right to counsel attaches,
                                                  Texas v. Cobb, 532 U.S. 162 (2001); and
        The use in § 2K2.1(b)(5) of the           in deciding as a matter of statutory
phrase “another felony offense” — as              interpretation when Congress intended to
opposed to “any felony offense” —                 affix multiple punishments to the same
represents an attempt by the drafters of          conduct, Blockburger v. United States,
the Sentencing Guidelines to avoid the            284 U.S. 299 (1932). Analogizing from
“double counting” of certain elements of          this line of cases, at least one court of
criminal activity already incorporated            appeals has explicitly employed the
into the base offense level. For example,         “Blockburger” element-based analysis in
if a defendant is convicted of the crime          the context of § 2K2.1(b)(5) for the
of being a fugitive in possession of a            purposes of determining when a crime is
firearm (a felony under 18 U.S.C.                 “another felony offense.” United States
§ 922(g)(2)), it would make little sense to       v. Blount, 337 F.3d 404 (4th Cir. 2003);
adjust the defendant’s offense level              see id. at 409 (noting that Blockburger is
upward because he possessed the firearm           easier to apply than any “vague iterations
in connection with the very felony of his         of the ‘closely related to’ or ‘inextricably
conviction (that is, fugitive possession of       intertwined with’ test,” citing Cobb, 532
a firearm). The word “another” avoids             U.S. at 173). Although we have not
just such an absurd result.                       heretofore applied Blockburger in
                                                  connection with § 2K2.1(b)(5), we

                                              3
believe that the “distinction in time or                  Instrumentalities) may be
conduct” test set forth in Fenton requires                warranted.
that a felony offense must at least satisfy
Blockburger before it may be used to               U.S.S.G § 2K2.1, cmt. n.18 (emphasis
adjust a sentence upward under                     added).1 In other words, regardless of
§ 2K2.1(b)(5).                                     the interpretation given to the word
                                                   “another” in 2K2.1(b)(5), “firearms
        On the other hand, we also                 possession or trafficking offenses” are
explained in Fenton that Application               categorically removed from the set of
Note 18 to U.S.S.G. § 2K2.1 (“Note 18”)            crimes that may constitute “another
suggests, at least with respect to a certain       felony offense.” 2
category of cases, a slightly narrower
understanding of the phrase “another                      Thus, in United States v.
felony offense” — an understanding that            Boumelhem, 339 F.3d 414 (6th Cir.
yields a more limited scope for                    2003), the Sixth Circuit held that the
§ 2K2.1(b)(5) than would result from a             offense level of a man convicted of a
strict application of Blockburger across           firearms possession felony could not be
the board. Note 18 explicitly elaborates           adjusted under § 2K2.1(b)(5) on the basis
on the meaning of “another felony                  of a conspiracy to violate 18 U.S.C.
offense”:                                          § 922(e) (delivery of a firearm or

       As used in subsection[]                        1
       (b)(5) . . . “another felony                    Commentary to the Sentencing
       offense” . . . refers to                    Guidelines is authoritative unless it
       offenses other than . . .                   violates the Constitution or a federal
       firearms possession or                      statute or is clearly inconsistent with the
       trafficking offenses.                       text of the Guidelines. Stinson v. United
       However, where the                          States, 508 U.S. 36, 40-48 (1993).
       defendant used or                              2
                                                        While some criminal defendants have
       possessed a firearm or
                                                   attempted to argue that the term
       explosive to facilitate
                                                   “trafficking offenses” should be read as
       another firearms or
                                                   referring only to drug trafficking
       explosives offense (e.g.,
                                                   offenses, courts have uniformly rejected
       the defendant used or
                                                   such arguments. See, e.g., United States
       possessed a firearm to
                                                   v. Gomez-Arrellano, 5 F.3d 464, 466
       protect the delivery of an
                                                   (10th Cir. 1993) (“[The phrase]
       unlawful shipment of
                                                   ‘trafficking offenses’ as used in . . . Note
       explosives), an upward
                                                   18 refers only to weapons trafficking
       departure under § 5K2.6
                                                   offenses, and not to drug trafficking
       (Weapons and Dangerous
                                                   offenses.”).

                                               4
ammunition to a common carrier for                 the term “firearms possession . . .
shipment without written notice to the             offense.” For example, the Eighth
carrier). The defendant argued that the            Circuit has held that “a firearms offense
§ 922(e) charge was not “another felony            is necessarily an offense which contains,
offense” for the purposes of                       as an element, the presence of a firearm.”
§ 2K2.1(b)(5), since the “conspiracy to            English, 329 F.3d at 618. Under this
ship or transport firearms and                     view, felony crimes of theft or burglary
ammunition in foreign commerce [was] a             are not considered firearms possession
‘firearms trafficking offense’ as that             offenses, even if the objects taken
phrase is used in [Note 18].” Id. at 427.          happened to be firearms. United States
The Court agreed, and the sentence was             v. Kenney, 283 F.3d 934, 937-38 (8th
vacated and remanded for                           Cir. 2002) (“[B]ecause [the defendant's]
reconsideration. In order to understand            burglary offense is not specifically
this decision, it is important to note that,       excluded from consideration [under Note
while § 922(g) and § 922(e) clearly                18], it constitutes ‘another felony
constitute distinct felonies under                 offense’ in addition to the firearms
Blockburger (since each requires proof             possession offense.”); see also English,
of an element that the other does not),            329 F.3d at 618 (“The Kenney Court
Note 18 operated nonetheless to take the           read [Note 18] narrowly . . . .”).
conspiracy to violate § 922(e) outside the         Likewise, the felony of “possession of
scope of the term “another felony                  stolen property,” while undoubtedly a
offense.” Similarly, in United States v.           possession offense, would not be a
English, 329 F.3d 615 (8th Cir. 2003),             firearms possession offense, and so
where a defendant’s sentence for felony            would fall outside the scope of Note 18.
firearm possession had been enhanced               English, 329 F.3d at 619 (“[T]he gist of
because the defendant had sold the guns            [Iowa Code § 714.1(4)] is the knowing
associated with the possession offense,            possession of property of a certain value,
the Eighth Circuit pointed out that the            whether or not that property happens to
sale of firearms constituted “trafficking”         be a gun.”).
under Note 18, and that, accordingly, the
sale could not be counted as “another                      By contrast, our Court and the
felony offense.” Id. at 617.                       Sixth and Seventh Circuits have taken a
                                                   broader view of what constitutes a
       While it is thus clear that a               firearms possession offense. For
“firearms possession or trafficking                example, in United States v. Szakacs,
offense” cannot be “another felony                 212 F.3d 344 (7th Cir. 2000), the
offense” under § 2K2.1(b)(5), it is                Seventh Circuit, while noting that the
equally clear that there is some narrow            language of Note 18 was somewhat
disagreement among the courts of                   “equivocal,” ultimately held that the fact
appeals regarding the precise scope of             that the burglary in that case involved the

                                               5
theft of weapons “arguably [made] the             F.3d 503, 507 (“[T]he defendants in
burglary a ‘possession or trafficking             Sanders inevitably possessed firearms
offense’ in the general sense that [Note          upon completion of the burglary because
18] uses the phrase.” Szakacs, 212 F.3d           the firearms were among the items taken
at 350. The Szakacs court found that the          during the burglary.”).
phrase “possession and trafficking
offenses” suggested “a level of generality                We read Fenton (as well as
. . . to indicate that breaking into and          Sanders and Szakacs, upon which Fenton
entering a building to steal weapons              relied) as standing for the proposition
would be one of the ‘possession and               that, where a defendant is convicted for
trafficking offenses’ excluded from               possession of firearms resulting from a
‘another felony offense.’” Id.; see also          theft of those same firearms, that theft is
United States v. Scolaro, 299 F.3d 956,           effectively a “firearms possession . . .
961 n.6 (8th Cir. 2002) (Bright, J.,              offense” under Note 18, since that crime
dissenting) (criticizing Kenney’s analysis        necessarily involves a taking and
of Note 18, comparing Application Note            carrying away of the firearms involved.
12 to § 2K2.1 and noting the relatively           Accordingly, under Fenton, sentences
broad, unspecific language used in Note           resulting from such convictions may not
18 to describe the offenses excluded              be adjusted upwards under
under § 2K2.1(b)(5)).                             § 2K2.1(b)(5), because there does not
                                                  exist “another felony offense.” 3
        The Sixth Circuit and our Court
have similarly found that the theft or                                B.
burglary of firearms is effectively a
firearms possession offense. See United                  Our reading of Fenton must also
States v. Sanders, 162 F.3d 396, 399 (6th         be understood as rejecting an approach
Cir 1998) (“[Note 18] states that ‘another        that would read too much into its
felony offense’ refers to offenses other          “distinction of time or conduct”
than the firearms possession or                   requirement. In fact, the Sixth and
trafficking offenses. In this case there          Seventh Circuits, from which we
was one offense — the burglary of the             originally borrowed the “distinction of
pawnshop — which resulted in
Defendant’s possession of the instant
firearms.”); Fenton, 309 F.3d at 827                 3
                                                       Of course, Note 18 acknowledges
(“[Note 18] refers to offenses other than
                                                  that where firearms are used to facilitate
the firearms possession offense. In this
                                                  a firearms possession or trafficking
case, there was no other offense. . . .
                                                  offense, the sentence may still be
Fenton’s conduct was essentially stealing
                                                  adjusted upwards in appropriate cases
objects from the sporting goods store . . .
                                                  under § 5K2.6 (Weapons and Dangerous
.”); see also United States v. King, 341
                                                  Instrumentalities).

                                              6
time or conduct” language, have both              fairly summarily, finding a distinction in
since implicitly disavowed any                    conduct despite the practical
understanding of that language that               contemporaneity of the possession and
would so limit the scope of § 2K2.1(b)(5)         the assault. Id. at 881.
as to contravene the intent of the drafters
of the Guidelines. See King, 341 F.3d at                   We agree with the common-sense
503; United States v. Purifoy, 326 F.3d           outcomes of King and Purifoy, although
879 (7th Cir. 2003). For example, in              not necessarily with all of the reasoning
King, the defendant (King) had gotten             used to arrive at those outcomes. For
into a heated argument with a neighbor,           example, the King court, in
and the argument culminated in King’s             distinguishing Sanders, emphasized the
going home, obtaining a shotgun, and              temporal sequence and separability of
returning to the neighbor’s driveway,             King’s actions: “Appellant first
where he proceeded to point the gun               possessed the gun (offense of conviction)
threateningly at the neighbor’s face and          and then used the gun (enhancement
chest until the police arrived. King, 341         conduct).” King, 341 F.3d at 506
F.3d at 506. King argued that it was              (emphasis in original). But King did not
improper to apply § 2K2.1(b)(5) in his            explain why this same analysis would not
case, because the “conduct upon which             just as easily have barred application of
he was convicted (felon in possession)            § 2K2.1(b)(5) in Sanders, as well. After
was the same conduct the court used to            all, it could be argued that the Sanders
enhance his sentence.” Id. at 505. The            defendant first broke into the pawn shop
Sixth Circuit found that “[t]he incredulity       with the intent to commit a felony
of [King’s] argument renders it wholly            (enhancement conduct) and then took
unpersuasive.” Id. at 507.                        and possessed the gun (offense of
                                                  conviction). Under Sanders, it would
       Similarly, in Purifoy, the                 seem that the mere fact that a criminal
defendant (Purifoy), who had been                 episode may be broken down into a
surprised by the sudden entry of police           series of separate actions would not
officers to execute a search warrant, ran         necessarily be enough to create a
into a bedroom, grabbed a loaded gun,             “distinction in time or conduct.”
and pointed it at one of the officers for
15 seconds before ultimately dropping it.                With respect to Purifoy, there is
Purifoy argued that the “aggravated               some suggestion that the Court was
assault was not ‘another crime’ for               willing to find a distinction between the
purposes of § 2K2.1(b)(5) because it              firearm possession and the assault simply
occurred simultaneously with his federal          because of “the increased danger created
offense of possession of a firearm by a           by [the assault].” Purifoy, 326 F.3d at
felon.” Purifoy, 326 F.3d at 880. The             881. While that increased danger would
Seventh Circuit rejected this argument            no doubt “justif[y]” an increased

                                              7
sentence as a matter of policy, id., it is          crime of assault involves a sufficient
clear that § 2K2.1(b)(5) does not, by its           “distinction . . . in conduct” from the
own terms, apply only when the “other”              crime of possession so as to constitute
felony poses some threshold risk of                 “another felony offense” for the purposes
physical harm.4                                     of § 2K2.1(b)(5).

       We believe the better (and                                       C.
simpler) approach to cases like King and
Purifoy would proceed by following the                      Armed with this understanding of
analysis of § 2K2.1(b)(5) that we                   § 2K2.1(b)(5) and Fenton, we find that
outlined above. First, there can be no              this case quite clearly presents “another
doubt that “possession of firearms by a             felony offense” as that term from the
felon” and “assault” are separate offenses          Guidelines is to be properly understood.
under Blockburger, since each crime                 The felony offense alleged here is that of
requires proof of at least one element that         criminal mischief under Pennsylvania
the other does not. Second, it is clear             state law.6 The government alleges that
that, whatever the precise scope of the
term “firearms possession and trafficking
offenses” in Note 18, it cannot seriously           consistent with the Note 18 analysis that
be read as including the felony of assault          disallows enhancement under
with a firearm; otherwise, the Note 18              § 2K2.1(b)(5) for firearms possession or
“exception” would effectively swallow               trafficking offenses, but not for offences
the § 2K2.1(b)(5) rule.5 Accordingly, the           involving other uses of a firearm (such as
                                                    assault).

   4
   Indeed, even if that were the case, it                  We note that the characterization
would not explain why a crime like                  of theft or burglary of a firearm as a
burglary could not meet that threshold.             “firearms possession offense” without a
                                                    doubt marks the extreme outer limits of
   5
    There are, in fact, hints of this line of       that category. In this sense, the fact
reasoning in the King and Purifoy cases,            patterns of cases such as Sanders,
both of which distinguished their                   Szakacs, and Fenton are practically sui
predecessors (Sanders and Szakacs) by               generis in terms of the inapplicability of
stressing that those earlier cases involved         § 2K2.1(b)(5).
only possession, rather than “use,” of the
                                                       6
firearms at issue. See King, 341 F.3d at                The government also argues that
506 (stating that King’s use of gun went            Lloyd committed reckless endangerment
beyond “mere possession”); Purifoy, 326             in placing and lighting the bomb. See 18
F.3d at 881 (“[Purifoy’s] offense of                Pa.C.S. § 2705. Because we find the
conviction . . . involved mere possession           criminal mischief theory sufficient to
of the firearm.”). Such an emphasis is              sustain the sentence enhancement, we

                                                8
Lloyd possessed the homemade bomb                 possession offense” under Note 18. The
with “knowledge, intent, or reason to             criminal mischief alleged here is more
believe that it would be used . . . in            similar to the crime of assault (as in King
connection with” an explosion causing at          and Purifoy) than it is to the crimes of
least $1,000 damage to property                   burglary or theft that result in possession
belonging to another. See U.S.S.G.                of firearms (as in Sanders, Szakacs, and
§ 2K2.1(b)(5); 18 Pa. C.S.A. § 3304.              Fenton). As with the firearms in King
Criminal mischief is a second-degree              and Purifoy, the manner in which Lloyd
misdemeanor punishable by up to two               used the bomb extended far beyond
years of incarceration when it involves           simple possession or trafficking.
over $1,000 of damage, and that is                Accordingly, we hold that the
sufficient to constitute a “felony” under         Pennsylvania second-degree
Application Note 7 to § 2K2.1. See                misdemeanor of criminal mischief
U.S.S.G. § 2K2.1, cmt. n.7 (defining              constitutes “another felony offense”
“felony offense” as “any offense (federal,        distinct from the felony of possession of
state, or local) punishable by                    an unregistered destructive device.
imprisonment for a term exceeding one
year, whether or not a criminal charge                    Although we decide this appeal in
was brought, or conviction obtained”);            favor of the government, we decline to
18 Pa. C.S.A. § 106(b)(7) (second-degree          adopt the line of reasoning set forth in its
misdemeanor punishable by “term of                brief, which is similar to that advanced
imprisonment . . . not more than two              by the Sixth Circuit in King: “At a
years”); 18 Pa. C.S.A. § 3304(b).                 distinct point . . . Lloyd moved beyond
                                                  mere possession when he took the bomb
        There is no question that criminal        and strategically positioned it under the
mischief is a crime distinct from the             fuel tank of Learn’s truck and lit it. At
crime of possession of unregistered               that point, Lloyd committed ‘another
explosives under Blockburger. The                 felony offense’ . . . .” Appellee Br. at 22.
former requires proof of damage or                While this focus on the temporal
endangerment to person or property,               separation of the events comprising the
which is not required for the latter; the         larger criminal episode has a certain
latter requires proof of nonregistration of       appeal, it is quite clearly not the
a firearm or destructive device in the            approach taken in Fenton, where the
National Firearms Registration and                Court declined to similarly separate for
Transfer Record, which is not required            analytic purposes the breaking and
for the former. Moreover, criminal                entering (burglary) from the taking of the
mischief is clearly not a “firearm                firearms (possession). Fenton binds this
                                                  panel, and we believe that our approach,
                                                  which relies instead on Blockburger and
                                                  Note 18, is ultimately more faithful to
need not reach this alternative argument.

                                              9
Fenton’s spirit.                                     felony offense.”

                    III.                                     The preponderance of the
                                                     evidence in this case demonstrates that
        Lloyd presents one final argument            Lloyd intended or had reason to believe
on appeal. He alleges that, even                     that his actions in connection with the
assuming that the government has                     bomb would result in at least $1,000 of
properly alleged “another felony                     damage to Learn’s truck. Lloyd’s claim
offense,” there are still “insufficient facts        that the record contains “no reference to
by which to find that [he] intended to               the capability of [the] bomb” is plainly
commit” criminal mischief. Appellee Br.              incorrect. The facts disclosed in Lloyd’s
at 9. The basis of this argument appears             Presentence Report (which the District
to be that the District Court never made             Court adopted in full, see App. 20)
any explicit finding that the possible or            indicate that (1) Spataro and an associate
expected damage to Learn’s truck would               had constructed and successfully
have exceeded $1,000 if the bomb had                 detonated a bomb prior to the
properly detonated. If satisfaction of the           construction of the bomb that was placed
$1,000 threshold cannot be proved,                   under Learn’s truck, PSR ¶ 11, (2) the
argues Lloyd, then the criminal mischief             second bomb, like the first, contained a
offense would have been of a lower                   number of M-80-type explosive devices
grade, would not have been punishable                filled with a “perchlorate explosive
by at least a year of incarceration, and             mixture,” PSR ¶¶ 7, 10, (3) the second
hence would not constitute a felony                  bomb also contained “a quantity of
under Application Note 7 to § 2K2.1.                 ammonium nitrate prills, and a number of
                                                     shotgun shells,” PSR ¶ 7, and (4) “[i]n
        As Lloyd acknowledges, the                   the opinion of the laboratory expert, the
government is required to prove facts                device would have exploded had it been
underlying a sentence enhancement only               properly lit,” PSR ¶ 7. Indeed, at his
by a preponderance of the evidence.                  change-of-plea proceedings held on
United States v. Givan, 320 F.3d 452 (3d             September 24, 2002, Lloyd explicitly
Cir. 2003). Moreover, the text of                    acknowledged that the bomb was
§ 2K2.1(b)(5) of the Guidelines makes                “capable of exploding.” App. 43.
clear that a defendant need not have
actually committed “another felony                           Nevertheless, Lloyd contends that
offense” to be eligible for an                       if the bomb had detonated it would have
enhancement thereunder; rather, it is                caused little damage to the truck “by
sufficient if the defendant “possessed . . .         virtue of most of the heat and/or energy
any firearm . . . with knowledge, intent,            following paths of least resistance: to any
or reason to believe that it would be used           of the sides of [the] explosive device.”
or possessed in connection with another              App. 62. We are not readily convinced

                                                10
by this argument, especially given the
placement of the bomb under the fuel
tank, PSR ¶ 13, the newness of the
vehicle (a 2001 Chevrolet Silverado) at
the time of the failed stunt (July 4, 2001),
PSR ¶ 6, and the relatively low $1,000
threshold required under the criminal
mischief statute. Moreover, even
assuming, arguendo, that the bomb
would not have caused $1,000 of damage
had it exploded, what matters for the
purposes of this case is how much
damage Lloyd intended to cause or
believed would be caused by the bomb.
Simply put, we cannot believe that Lloyd
and Spataro would have chosen a bomb
as their instrument of revenge had they
intended to cause only minor harm to
Learn’s vehicle. Nor would Lloyd have
deliberately placed the bomb under the
fuel tank had he not hoped that the bomb
would ignite the gasoline in the tank.
The obvious point of the entire scheme
was to cause significant destruction; it
defies reason to think that Lloyd could
honestly have believed or intended that
the detonation of the bomb beneath the
fuel tank of Learn’s recent-model truck
would result in something less than
$1,000 of damage. The government
satisfied its burden of proof here.

                    IV.

       Because the District Court
properly applied § 2K2.1(b)(5) in
determining Lloyd’s sentence, we affirm.




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