                                                                                                                           Opinions of the United
1995 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


4-14-1995

United States v Bass
Precedential or Non-Precedential:

Docket 94-5352




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          UNITED STATES COURT OF APPEALS
              FOR THE THIRD CIRCUIT

                    ----------

                   No. 94-5352

                    ----------

             UNITED STATES OF AMERICA

                        v.

                   DANNY BASS,

                                 Appellant

                    ----------

On Appeal from the United States District Court
        for the District of New Jersey
        (D.C. Criminal No. 93-00518-2)

                    ----------

      Argued Wednesday, January 25, 1995

BEFORE:   BECKER, LEWIS and GARTH Circuit Judges

                    ----------

          (Opinion filed April 14, 1995)

                    ----------

                                 Maria D. Noto
                                 Amy B. Kershnar (Argued)
                                 746 Highway 34
                                 Matawan, New Jersey 07747
                                 Attorneys for Appellant

                                 Faith S. Hochberg
                                 Victor Ashrafi
                                 Allan Tananbaum (Argued)
                                 Office of United States
                                    Attorney
                                 970 Broad Street
                                 Room 502
                                 Newark, New Jersey 07102
                                 Attorneys for Appellee
                               ----------

                         OPINION OF THE COURT

                               ----------

GARTH, Circuit Judge:


          Danny Bass appeals the 37 month sentence imposed by the

district court under the 1989 version of the Sentencing

Guidelines (U.S.S.G. §§ 2K2.1 and 2K2.2) following his plea of

guilty to charges of conspiracy to purchase and transport

firearms in violation of 18 U.S.C. § 371 and 18 U.S.C.

§ 922(a)(5)-(6).    Bass argues that the district court erred in

three respects:    (1) that the court clearly erred in finding that

he was a "leader or organizer" as defined in U.S.S.G. § 3B1.1;

(2) that the court impermissibly departed upward four levels when

it held that Bass "should have been possessed of knowledge or had

reason to believe that they [the weapons Bass purchased] would be

utilized to commit other types of felony crimes," app. 123; and

(3) that the court violated the Fifth Amendment's due process

clause by sentencing him at the top of the sentencing range based

on the court's belief that Bass perjured himself.

          The district court had jurisdiction pursuant to 18

U.S.C. § 3551.     We have appellate jurisdiction over the resulting

sentence pursuant to 18 U.S.C. § 3742.

          We find no merit in Bass' first and third challenges to

his sentence and thus will affirm those aspects of the court's

determination with only a brief discussion.     Nonetheless, we

conclude that the 1989 version of U.S.S.G. §§ 2K2.1 and 2K2.2
already took into account the foreseeable criminal use of the

weapons sold in the conspiracy.    Because the guidelines do not

permit an upward departure on this basis, we will vacate the

sentence and remand for resentencing consistent with this

opinion.



                                  I.

           From late 1989 to October 1990, Danny Bass conspired

with Milton Lodge, Sam Gilbert, Katrina Huskersen, Tim Crumm, and

James Reid to buy firearms in Richmond, Virginia and to transport

the guns for undocumented resale in Newark, New Jersey.     The

conspirators performed various functions in this plan, including

the solicitation of straw buyers in Virginia, the transfer of

funds from New Jersey to Virginia to pay for the purchases, the

purchase and transportation of at least 81 guns to Newark, New

Jersey, and the subsequent sale of the guns in the Newark area.

The weapons sold in the course of the conspiracy included an

undisclosed number of automatic firearms such as "Tec-9s."      App.

54.

           While the government presented no evidence that Bass

purchased, transported, or sold firearms himself, the government

produced evidence that Bass worked with Lodge and Gilbert to

organize the New Jersey operation and that Bass assisted in the

Virginia operation.   For example, Lodge testified that on at

least two occasions he either delivered guns to Bass or notified

Bass of the delivery of weapons in New Jersey.    App. 82-84; 77-

80.   By means of various wire transfers and personal
transactions, Bass provided approximately $4,300 to $4,600 to

Gilbert for the purpose of purchasing weapons in Virginia.        App.

61-66.   A government expert testified that this amount of money

would purchase approximately 50 semiautomatic handguns in

Virginia.    App. 62.   The record suggests that other monetary

transfers occurred but the amounts transferred were not known.

            Grand jury testimony of Katrina Huskerson, a straw

buyer in Virginia, was submitted at the sentencing hearing.       In

addition to other testimony, Huskerson testified that Bass and

Sam Gilbert purchased the most firearms during the conspiracy.

App. 199.

            On October 21, 1993, the United States indicted Danny

Bass and Samuel Gilbert for conspiring to purchase firearms

illegally and to transport them in interstate commerce in

violation of 18 U.S.C. § 371 and 18 U.S.C. § 922(a)(5)-(6).       Bass

pled guilty to the conspiracy on the condition that the

government not seek a two level upward adjustment for obstruction

of justice.

            At sentencing, the district court calculated Bass' base

offense level as six under the 1989 version U.S.S.G § 2K2.1.        The

court adjusted the sentence upward six levels based on the number

of guns involved in the conspiracy.     The court adjusted the

sentence downward two levels for acceptance of responsibility.

            After a hearing, the district court found that Bass had

bankrolled a substantial part of the conspiracy's firearm

purchases and/or other expenses and directed a significant

portion of the conspiracy's New Jersey operations.     The court
thus found that Bass was a leader or organizer within the meaning

of U.S.S.G. § 3B1.1 and adjusted the sentence upward an

additional four levels.

           The district court departed upward still another four

levels because Bass "should have been possessed of knowledge or

had reason to believe that [the guns] would be utilized to commit

other types of felony crimes."   App. 123.   The court based this

decision to depart upward on two factors.    First, the court felt

that the type of weapons sold in the conspiracy were "the favored

weapons of the underworld."   App. 119.   Second, the court

believed that the 1991 amendments to the guidelines, which now

permit a four level adjustment in the offense level when "the

defendant . . . possessed or transferred any firearm . . . with

knowledge, intent, or reason to believe that it would be used or

possessed in connection with another felony offense . . .,"

U.S.S.G. § 2K2.1(b)(5) (1994), demonstrated that the 1989

guidelines did not take into account Bass' knowledge of the

possible illegal uses of the firearms.    The district court also

noted that weapons attributable to the conspiracy had been linked

to a police shootout and the murder of a New Jersey assistant

district attorney.

           Finally, the district court chose to sentence Bass at

the top of the applicable sentencing range because the court

found that Bass had perjured himself at an earlier suppression

hearing.

           Following these adjustments, the district court, having

a range of 30-37 months from which it could sentence Bass, then
sentenced Bass to 37 months in prison and three years supervised

release.   Bass filed a timely notice of appeal.



                                  II

             Bass argues that the district court clearly erred when

it found that he was a leader or organizer of the conspiracy.        We

will not disturb the factual findings of the district court

unless they are clearly erroneous.      United States v. Ortiz, 878

F.2d 125, 126-27 (3d Cir. 1989).       We must accept the district

court's findings unless we are "left with the definite and firm

conviction that a mistake has been committed."       United States v.

United States Gypsum Co., 333 U.S. 364, 395 (1948).

           U.S.S.G. § 3B1.1(a) instructs the district court to

increase a defendant's sentence by four levels "[i]f the

defendant was an organizer or leader of a criminal activity that

involved five or more participants . . . ."      Application Note

three of the 1989 guidelines instructs the court to consider the

following factors in deciding whether the defendant is an

organizer:    the defendant's decision-making authority, the nature

of the participation in the actual offenses, the recruitment of

accomplices, the claimed right to a larger share of the proceeds,

the degree of planning, the nature and scope of the illegal

activity, and the degree of control exercised over others.

U.S.S.G. § 3B1.1, App. Note 3; Ortiz, 878 F.2d at 127.      The

commentary to the guidelines purports only to suggest various

factors the court should consider.      Ortiz, 878 F.2d at 127.
Evidence of every factor is not a prerequisite to a finding that
the defendant is a leader or organizer under § 3B1.1, nor is

evidence that the defendant is the sole or predominate leader

required.    Id.   The government need only show sufficient

authority to justify such a finding.     Id.

            Bass premises his challenge primarily on the

government's lack of evidence that he actually participated in

the purchase, transportation, and sale of the firearms.       Bass

misunderstands the indicia of leadership under the guidelines.

Leadership is not inconsistent with a refusal to participate in

the actual implementation of a criminal plan.     A person who

plans, funds, and supervises a conspiracy's operation does not

immunize himself from upward adjustment under § 3B1.1 just

because he does not join in all of the mechanics and all of the

various activities of the illegal enterprise.     Indeed, leaders

and organizers often distance themselves from the actual

implementation of the conspiracy.

            The fundamental question is whether adequate evidence

supports the district court's determination that Bass

participated in planning and organizing the crime.    This record

provides sufficient support for that conclusion.

            The evidence presented at the sentencing hearing

revealed that Bass bankrolled a large part of the gun purchasing

operation.    His contribution of approximately $4,300 to $4,600

was sufficient to account for the purchase of more than half of

the weapons eventually traced to the conspiracy.     Bass took

possession of some of these weapons immediately when he was in

Virginia.    In at least two other cases, he assumed control over
weapons shipments upon their arrival in Newark.   Further, Bass

admitted to identifying buyers for the weapons in New Jersey.

This evidence, which provides a sufficient foundation to conclude

that Bass had substantial control over the conspiracy's New

Jersey operations, permitted the district court to find that Bass

was a leader or organizer within the meaning of § 3B1.1.



                                 III

           Bass next argues that the Sentencing Commission

adequately considered the foreseeable consequence that firearms

sold in violation of the National Firearms Act would be used in

the commission of other felonies when it drafted the 1989 version

of guideline § 2K2.2.1   He argues that the district court
1
 . U.S.S.G. § 2K2.1(c)(1), under which Bass was sentenced,
required the district court to calculate a defendant's sentence
by reference to § 2K2.2. The 1989 version of U.S.S.G. § 2K2.2
reads as follows:

    Unlawful Trafficking and Other Prohibited Transactions
    Involving Firearms

    (a)   Base Offense Level

           (1)   16, if the defendant is convicted under 18 U.S.C.
                 § 922(o) or 26 U.S.C. § 5861;

           (2)   6, otherwise.

    (b)   Specific Offense Characteristics

           (1)   If the offense involved distribution of a firearm,
                 or possession with intent to distribute, and the
                 number of firearms unlawfully distributed, or to
                 be distributed, exceeded two, increase as follows:

                 Number of Firearms       Increase in Level

                       . . .                   . . .
therefore erred by departing upward an additional four levels in

his case.    Whether the Sentencing Commission adequately

considered a factor in drafting a guideline is subject to plenary

review.     United States v. Uca, 867 F.2d 783, 786 (3d Cir. 1989).

            The district court must sentence within the applicable

guideline range and is not authorized to depart from that range

"unless the court finds that there exists an aggravating or

mitigating circumstance of a kind, or to a degree, not adequately

taken into consideration by the Sentencing Commission in

formulating the guidelines that should result in a sentence

different from that described."        18 U.S.C § 3553(b).   "In

determining whether a circumstance was adequately taken into

(..continued)

                  (F)     50 or more               add 6

            (2)   If any of the firearms was stolen or had an
                  altered or obliterated serial number, increase by
                  2 levels.

            (3)   If more than one of the following applies, use the
                  greater:

                  (A)   If the defendant is convicted under 18 U.S.C.
                        § 922(d), increase by 6 levels; or

                  (B)   If the defendant is convicted under 18 U.S.C.
                        § 922(b)(1) or (b)(2), increase by 1 level.

   (c) Cross Reference

            (1)   If the defendant, at the time of the offense, had
                  been convicted in any court of a crime punishable
                  by imprisonment for a term exceeding one year,
                  apply § 2K2.1 (Unlawful Receipt, Possession, or
                  Transportation of Firearms or Ammunition) if the
                  resulting offense level is greater than that
                  determined above.
consideration, the court shall consider only the sentencing

guidelines, policy statements, and official commentary of the

Sentencing Commission."     Id.   Here, the district court departed

upward four levels because it held that the 1989 firearm

guidelines, specifically U.S.S.G. §§ 2K2.1 and 2K2.2, "did not

take into account the nature and the type of weapons transferred.

One should have been possessed of knowledge or had reason to

believe that they would be utilized to commit other types of

felonies."     App. 123.

             The district court's conclusion conflicts with the

analysis in two of our earlier opinions: United States v. Uca,

867 F.2d 783, 786 (3d Cir. 1989) and United States v. Kikumura,

918 F.2d 1084, 1104-07 (3d Cir. 1990).

             In Uca, Uca and a co-defendant Hodzic attempted to

purchase guns from a government sting operation in Pennsylvania

for eventual resale and shipment to Albania for use in a private

war.   Following their convictions, the district court departed

upward on the following grounds:
          There's no lawful purpose for these guns.
          We're not talking about one gun or two guns,
          we're talking about 56 untraceable handguns
          which translates in my mind to at least 56
          potential acts of violence in this country or
          in another country. The use of handguns,
          unlicensed handguns, causes the perpetuation
          of criminal activity of persons so inclined
          to rob, maim, start their own private wars,
          even drug wars in cities such as
          Philadelphia.
Id. at 786.    After examining the purpose and substance of

U.S.S.G. § 2K2.3,2 we determined that "[c]learly, the Guidelines

contemplate unlawful intent" on the part of the defendants

transferring the firearms.    Id. at 789.   Because the guideline

took into account the likelihood that illegally obtained handguns

would be used in future crimes, we concluded that "[t]he intended

use of the guns is not a circumstance warranting upward

departure."    Id. at 790 (footnote omitted).

            Kikumura involved the application of the firearms and

explosives guidelines to a defendant, Yu Kikumura, who was caught

with bombs which he had intended to use in a terrorist attack in

New York City.    The type of bomb seized would without question

have resulted in death or serious injury to the public.     Because

the district court concluded that the guidelines did not account

for Kikumura's specific intent to murder civilians, the district

court departed upward.    Kikumura claimed that Uca invalidated the

departure.    We distinguished Uca and disagreed.

            In Kikumura, we read Uca as holding that the offense

levels provided in the Sentencing Guidelines already accounted

for a defendant's disregard for the likelihood that firearms

involved in a conviction would be used in later criminal

offenses.    Kikumura, 918 F.2d at 1109.    Nonetheless, we concluded

that neither Uca nor the guidelines accounted for the kind of

2
 . U.S.S.G. § 2K2.3, the guideline applied in Uca, was a
predecessor to U.S.S.G. § 2K2.1 and § 2K2.2, the guidelines
applied here. The substance of the two guidelines is nearly
identical. The minor differences that exist have no effect on
this case.
specific intent to kill which Kikumura had shown.   Id.   To

summarize, we decided that the guidelines' "base offense levels

incorporate some presumption of intended unlawful use," but not a

predetermined specific intent to kill.   918 F.2d at 1109.

          In the present case, neither the district court nor the

government identified any evidence which suggested that Bass knew

of, or intended, any particular illegal uses for the weapons sold

in the course of the conspiracy.   The district court departed

upwards because Bass should have known that the guns would be

used in future felonies.

          The district court based its conclusion primarily on

the fact that an undisclosed number of semiautomatic handguns and

"Tec-9s" -- "the favored weapons of the underworld" -- were among

the firearms sold in the conspiracy.   App. 119.   While we can

understand the district court's concern that these types of

weapons are generally used for unlawful purposes, we do not

believe that the mere identification of the type of weapons

purchased and transported indicate that Bass' level of intent

exceeded the mens rea present in Uca, which we found to have been

adequately considered by the Sentencing Commission.

          As additional support for its upward departure, the

district court recognized that weapons attributable to the

conspiracy had already been tied to other felonies in Newark.

Newark police found at least one weapon, attributable to Bass,

following a shootout between police and drug dealers, and another

weapon, also attributable to Bass, was used to kill a New Jersey

assistant district attorney.   The government however was unable
to show that Bass was in any way aware of these events or was

associated with those who perpetrated the crimes.

            We recognize that an analytical distinction exists

between Bass' mens rea with respect to possible future felonies

and the actual commission of those felonies.    The propriety of an

upward departure based on the actual commission of felonies using

guns purchased during the conspiracy was not considered in Uca as

no evidence of actual subsequent offenses was presented to the

sentencing court.    Nonetheless, this distinction is too tenuous

to conclude that the sentencing guidelines permit a departure

where a later gun-related felony is actually committed and

preclude a departure in a Uca situation when no evidence of a

later felony is considered by the district court.    Hence, we will

not interpret the 1989 guidelines as permitting a departure

because felonies were ultimately committed while, at the same

time, forbidding a departure because the defendant had reason to

believe the guns would be used in the commission of future

felonies.

            Absent additional evidence of specific intent tying

Bass more directly to the subsequent crimes, these tragic events

only confirm the reality already taken into account by the

Sentencing Commission's 1989 firearm guidelines -- that the

illegal sale of guns always poses the risk that the guns will be

used in other dangerous illegal activity.

            The government sought to avoid our holding in Uca by
reference to the Sentencing Commission's 1991 amendments to the
firearms guidelines.   In 1991, the Commission added U.S.S.G.

§ 2K2.1(b)(5) which reads:
          If the defendant used or possessed any
          firearm or ammunition in connection with
          another felony offense; or possessed or
          transferred any firearm or ammunition with
          knowledge, intent, or reason to believe that
          it would be used or possessed in connection
          with another felony offense, increase by 4
          levels.


(emphasis added).   This provision might have permitted a four

level adjustment if the court could have applied these later

guidelines.

          The government argues that the 1991 amendments permit

us to affirm Bass' sentence on the basis of United States v.
Joshua, 976 F.2d 844 (3d Cir. 1992).     Joshua, under certain

circumstances, permits courts in this Circuit to consider

subsequent amendments to official guidelines commentary when

interpreting prior guidelines, even if the new commentary

conflicts with a panel's decision rendered prior to the

amendment.    Id. at 854-56.
          The government's argument however is unavailing because

the 1991 amendment does not conflict with our conclusion in Uca

and Kikumura that the guidelines under which those cases were

decided presume some level of illegal use for the firearms

transferred.

          The 1991 amendments involved more than a reexamination

of U.S.S.G. § 2K2.1.   The amendments represented the Commission's

efforts to consolidate U.S.S.G. §§ 2K2.1, 2K2.2, and 2K2.3 into a

single guideline, § 2K2.1.     Section 2K2.3 in the 1989 guidelines,
which was titled "Receiving, Transporting, Shipping or

Transferring a Firearm or Ammunition With Intent to Commit

Another Offense or With Knowledge that It Will Be Used in

Committing Another Offense," sought to tailor a defendant's

sentence to any known or intended uses of firearms.   This

guideline also applied to illegal transactions in firearms when,

under 18 U.S.C. § 924(b), the defendant had "reasonable cause to

believe that [a felony] is to be committed therewith."    See

Commentary to U.S.S.G. § 2K2.3 (1989).

          An even earlier version of U.S.S.G. § 2K2.3 also took

into account the defendant's knowledge or intent regarding the

use of the weapons in future offenses.   Section 2K2.3(c)(1) of

the pre-1989 guideline read as follows:
          If the defendant provided the firearm to
          another for the purpose of committing another
          offense, or knowing that he planned to use it
          in committing another offense, apply § 2X1.1
          (Attempt or Conspiracy) in respect to such
          other offense, if the resulting offense level
          is higher.


As this pre-1989 guideline language makes clear, the Commission

contemplated the imposition of higher sentences when the

defendant transferred firearms with intent or knowledge that they

would later be used in other offenses.   Both versions of § 2K2.3

thus reveal that the Sentencing Commission specifically

considered the defendant's mens rea in setting the appropriate

offense level.

          The new § 2K2.1(b)(5) provision, rather than altering

the substance of the 1989 version of § 2K2.1, continues a part of
the function that § 2K2.3 served in 1989.     As a result, the

amendment does not by itself support a conclusion that the

Commission, in drafting the 1989 guidelines, failed to consider

the foreseeable illegal use of illegally obtained weapons.

             Further, the instant case lacks some of the crucial

factors, present in Joshua, factors that persuaded us to

reevaluate our prior interpretation of the applicable guideline

in light of the subsequent amendment.

             Joshua involved a Sentencing Commission amendment which

explicitly sought to clarify ambiguous, but unchanged guideline

language by means of new commentary.     976 F.2d at 855.   Here,

neither party has pointed to anything which suggests why the

Commission sought to add § 2K2.1(b)(5) to the substance of the

guideline.     In the absence of any language, provision or

explanation which clarifies the Commission's intent when it added

the "reason to believe" language in § 2K2.1(b)(5), we cannot know

the thinking that gave rise to the amendment.     It may be that the

amendment indicates that the Commission had not previously

considered the question of the defendant's recklessness with

respect to future crimes or it may be that the Commission simply

changed the degree of punishment for a previously considered

factor just as it did when it increased the base offense levels

applied to some firearm offenses as a part of the 1991

amendments.     Compare U.S.S.G. §§ 2K2.1(a) & 2K2.2(a) (1989) with
U.S.S.G. § 2K2.1(a) (1992).    Absent a clear intent on the part of

the Commission to clarify a prior ambiguity and absent the type

of clear conflict between our precedents and new Commission
action, which we discussed in Joshua, we have no occasion to

reconsider our holding in Uca and our discussion of that holding

in Kikumura.

           For all of these reasons, we disagree with the

government's argument that the Commission's 1991 amendment

provides sufficient reason to reevaluate our controlling opinions

in Uca and Kikumura, which we are duty bound to apply.    See Third

Circuit I.O.P. 9.1.   Because the district court's departure

conflicts with Uca, Bass is entitled to a four level reduction in

his sentence.



                                IV

           Finally, Bass argues that the district court violated

his constitutional right to due process by sentencing him at the

highest end of the sentencing range based on the district court's

finding that Bass had perjured himself in a prior exclusionary

hearing.   We exercise plenary review over Bass' constitutional

due process challenge, United States v. Barnhart, 980 F.2d 219,

222 (3d Cir. 1992), and conclude, as we have earlier noted, that

Bass' argument lacks merit.

           Recently, in United States v. Dunnigan, 113 S. Ct. 1111
(1992), the Supreme Court held that enhancement of a guidelines

sentence for obstruction of justice under U.S.S.G. § 3C1.1 based

on a district court's finding that the defendant perjured himself

did not violate the Constitution. The Court wrote:
          In the present context, . . . the enhancement
          provision is part of a sentencing scheme
          designed to determine the appropriate type
            and extent of punishment after the issue of
            guilt has been resolved. The commission of
            perjury is of obvious relevance in this
            regard, because it reflects on a defendant's
            criminal history, on her willingness to
            accept the commands of the law and the
            authority of the court, and on her character
            in general.


Id. at 1116.    Accordingly, a finding of perjury can enhance a

defendant's offense level in some contexts.

            The Court in Dunnigan relied heavily on its opinion in

United States v. Grayson, 438 U.S. 41 (1978).    There, the Court

held that increasing a pre-guidelines sentence following a

finding of perjury did not violate the due process clause.      The

Court concluded that the risk that sentencing judges would

improperly enhance sentences based on an unindicted offense did

not outweigh the benefits of allowing the judge to consider all

of the defendant's conduct when fashioning an appropriate

sentence.   Id. at 53-54.

            While Bass' challenge is not controlled by either

Dunnigan or Grayson, we are satisfied that the reasoning of both

cases permits a district court to impose a higher sentence within

the sentencing range on the basis of the defendant's perjury.      If

the district court can enhance the offense level based on a

finding that the defendant perjured himself, a fortiori, the

court can impose a higher sentence within the sentencing range

based on a finding of perjury.    The district court, having found

that Bass had committed perjury, thus did not violate Bass'

constitutional rights.
                               V

          For the foregoing reasons, we will affirm the district

court's decision to adjust Bass' sentence upward four levels

under U.S.S.G. § 3B1.1 and to sentence at the top of the range

based on the court's finding that Bass perjured himself.

However, because the 1989 guidelines, as we interpreted them in

United States v. Uca, 867 F.2d 783 (3d Cir. 1989), do not permit

an additional upward departure based on the foreseeable use of

the firearms purchased by Bass in the commission of felonies, we

will vacate the district court's sentence and remand for

resentencing consistent with the foregoing opinion.
