United States v. GalesUnited States v. Gales
Following his arrest for selling a stolen shotgun to undercover police officers, Aurelius Gales pleaded guilty to being a felоn in possession of a firearm in violation of
On November 13, 2002, Gales and two friends stole a Glock .40 caliber handgun and a Browning Buck Mark .22 caliber handgun, among other items, from a рarked car. Later that day, one of Gales’ friends sold the Glock handgun to undercover police officers who were purporting to operate a local store. Less than an hour later, Gales and the оther friend sold the Browning to the same officers at the same store. At this point, the undercover officers did not make any arrests arising from these sales.
Roughly two months later, on January 9, 2003, Gales sold a Mossberg twelve-gauge shotgun to undercover officers at the same store. Police later identified the shotgun as one of 28 shotguns stolen from a Kmart on March 20, 2002. Following this sale, Gales was arrested and eventually pleaded guilty to a felon-in-possession-of-a-firearm charge.
The district court started its calculation of Gales’ sentence with a base offense level of 20, which is what is required for a felon-in-possession charge. See
II.
A.
Gales first contends that the distriсt court erred by giving him a two-level enhancement under the Guidelines’ relevant-conduct section. In his view, the two guns that were stolen and sold on November 13, 2002, should not have counted as relevant conduct in relation to the Jаnuary 9, 2003, sale of a stolen shotgun for which he was charged and to which he pleaded guilty. We apply a clear error standard of review to findings of fact made at sentencing, United States v. Orlando, 363 F.3d 596, 600 (6th Cir.2004), and a de novo standard of review to thе district court’s legal interpretation of what constitutes relevant conduct under the Guidelines, United States v. Gilbert, 173 F.3d 974, 978 (6th Cir.1999).
Under the Guidelines, “relevant conduct” means conduct that is “part of the same course of conduct or common scheme or plan as the offense of conviction.”
Our case law helps to illustrate how these principles should be applied. In United States v. Faison, 339 F.3d 518 (6th Cir.2003), the defendant argued that a fourteen-month lapse of time between the end of the chargеd cocaine conspiracy and the discovery of two pistols and drug proceeds in his possession precluded a finding that his possession of the firearms was relevant conduct to the conspiracy. We disagrеed, noting that the proceeds, which Faison admitted were either from selling cocaine or would be used in purchasing it, showed that he was “a continuing cocaine trafficker.” Id. at 521. This “continuing cocaine trafficking constitute[d] the same course of conduct and ha[d] a common purpose as his offense of conviction.” Id.
In United States v. Gilbert, 173 F.3d 974 (6th Cir.1999), the district court determined that the defendant’s possession of crack cocaine in February of 1993 and December of 1994 qualified as relevant conduct in relation to an August 7, 1996, arrest for distributing crack cocaine. Id. at 976–78. In upholding that decision, we pointed to the “consistent pattern of acquiring, packaging, and distributing crack cocaine” established by the defendant in the years before his arrest. Id. at 978.
In the light of these Guidelines provisions and in the light of these cases, it is not difficult to conclude that the two gun sales on November 13th and the one gun sale on January 9th оught to be included as part of the same course of conduct—namely, the illegal possession of firearms. Each of the three instances of possession followed a common pattern: Gales possessed a stolen firearm and then Gales or his friends sold the firearm, always to the same store. A common purpose underlay Gales’ possession of the firearms in each instance—selling the firearm. Just two months separated thе sale of the Mossberg from the sale of the other two guns, a far shorter time span than the fourteen months that Faison upheld and the three and a half years that Gilbert upheld. See also
Attempting to overcome this conclusion, Gales invokes United States v. Hill, 79 F.3d 1477 (6th Cir.1996), arguing that there must be “distinctive similarities between the offense of conviction and the remote conduct.” Id. at 1482. Hill addressed the relevance of a cocaine transaction that occurred nineteen months before a conviction for possession with intent to distribute cocaine base. In concluding that the second act did not amount to relevant conduct, Hill reasoned that the two events were isolated in time and nature and shared just one parallel—they both involved cocaine—a similarity that failed by itself to establish that they were “part of the same course of conduct or common scheme or plan as the offense of conviction.”
Gales does not fare any better in relying on United States v. Maxwell, 34 F.3d 1006 (11th Cir.1994), which held that a single sale of cocaine a year before being arrested for participating in a dilaudid-distribution scheme did not count as relevant conduct and which cautioned against abstracting “at such a level of generality as to eviscerate the evaluation of whеther uncharged criminal activity is part of the same course of conduct or common scheme or plan as the offense of conviction.” Id. at 1011 (quotations omitted). Neither the holding of Maxwell nor its cautioning dictum applies here. The similarities between the incidents and the relatively short time span between the incidents here establish considerable breathing room between that case and this one.
For like reasons, it makes little difference that, as Gales submits, the Mossberg and “the other guns ... were sold on different dates,” JA 75, the thefts involved different victims or additional property, and—unlike the theft and sales of the Glock and Browning—“there [was] a significant time lapse from when the [Mossberg] was stolen to when it was sold,” JA 23. These arguments show only that the three incidents did not amount to precisely the same conduct, as opposed to relevant conduct. That the guns were stolen from different people on different dates, that Gаles possessed one of the guns (the Mossberg) without help from his two friends and that he apparently had some trouble selling the Mossberg hardly shows that the three incidents were not “part of the same course of conduct.”
Lastly, Gales briefly submits that he never possessed the Glock. Having failed to object to this fact in the presentence report, see JA 75, and at the sentencing hearing, see JA 16–38, Gales must show that thе district court committed plain error in concluding otherwise, see United States v. Webb, 403 F.3d 373, 380 (6th Cir.2005) (noting that “before an appellate court can correct an error not raised at trial, there must be (1) error, (2) that is plain, [](3) that affect[s] substantial rights,” and an “appellate court may then exercise its discretion to notice a forfeited error, but only if (4) the error seriously affect[s] the fairness, integrity, or public reputation of judicial proceedings“) (quotatiоns omitted). Gales fails to meet this high standard because he cannot point to anything in the record (or for that matter anything anywhere else) that shows he did not possess the Glock on November 13th, the day it was stolen and promрtly sold.
B.
Gales next argues that his case should be remanded for resentencing in the aftermath of United States v. Booker, — U.S. —, 125 S.Ct. 738, 160 L.Ed.2d 621 (2005). The government concedes the point, and accordingly we remand the case to the district court for the sole purpose of resentencing him under the non-mandatory Guidelines.
III.
For these reasons, we affirm the calculation of Gales’ sentence and remand the case to the district court for the sole purpose of resentencing him under the non-mandatory Guidelines.