*2 CLAY, Bеfore DAUGHTREY and RUSSELL, Judges; District Circuit * Judge. RUSSELL, J., opinion delivered the court, DAUGHTREY, J., which 533-34), CLAY, joined. (pp. J. delivered
separate concurring opinion.
OPINION RUSSELL, Judge. District juryA manufac- convicted Defendant of turing possessing unregistered pipe an 5861(d)-(f). §§ under 26 U.S.C. De- fendant, Mise, appeals Jason S. from the grant district court’s refusal to his motion to dismiss and from the district court’s sentencing enhancements for obstruction and for USSG 3C1.1 possession in- knowledge, or transfer with tent, or rеason to believe that possessed bomb would be used or in con- felony nection with another under USSG 2K2.1(b)(5). AFFIRM We judgment court’s of conviction and sen- tence.
BACKGROUND Ralph June Case visited Defen- Mise, dant visiting Jason S. Mise. While explosives at Case noticed the residence. Several weeks later had an Case Legg. with Shane Case decided that he to physically Legg. wanted harm Case re- prоduced explosives membered * Russell, sitting by designation. Kentucky, Honorable Thomas B. Judge States District for the Western District possession of the plans to that he was never about his and contacted Case, Mise told According to Legg. harm something or he “get could him that he 23, 1998, September grand jury On it, like put stuff something could do indicted Mise two counts of three ... and it something or screws or nails charged Thе indictment count indictment. Although Case damage.” a lot of
would do *3 Mise with unlawful manufacture of a fire- promise not to make that Mise did testified possession arm and and transfer of an Case, that also testified for Case the bomb pipe-bomb. The third count unregistered stop by would that Case agreed the two charged possession Norman Case with and afterwards, Shortly again. house unregistered pipe transfer of an bomb. drug a rehabili- himself into Case checked pleaded guilty not to both counts Mise part drug to combat a program tation pur- pleaded guilty him while Case against himself part prevent to addiction and plea agreement. to a On December suant never returned harming Legg. He from 1998, 4, Mise filed a Motion to Dismiss Mise’s home. hearing Indictment. After a Case, Ralph and the mother of Diana court denied that motion. Case, came to testified that Mise Norman 10, 1998, jury found On December that he had made a home and told her her possess- guilty manufacturing Mise and Norman Case testified Ralph. bomb ing unregistered pipe May bomb. On Ralph use the he did not want that the district court sentenced Mise it. bomb, get to Mise’s home to so he went timely incarceration. Mise 70 months of Case, told him Norman Mise According to in accordance with appeal filed a notice of specifically for he had made the bomb that 4(a). Fed.R.App.P. provisions the might against retaliate Ralph so that he Ralph knew would and that Mise Legg, DISCUSSION bomb.
actually use the at his stored the bomb Norman Case I. Motion to Dismiss trying to sell for a few weeks before home argues first that the district Mise Bureаu of agent it an undercover of the denying erred in his motion to dis court Alcohol, A grand Firearms. Tobacco and failed to government because the miss possession jury indicted Norman Case crimes. elements of the prove the essential thereafter entered pipe of a bomb. Case de novo a district This Court reviews govern- with the plea agreement into a Pat a motion to dismiss. ruling court’s on part agreement, of this Nor- ment. As a Court, 224 F.3d Supreme mon v. Mich. tape recorded a conversation man Case Cir.2000). Mise ex- himself and Mise where between made the bomb and plained how he had manufac juryA convicted Mise of ini- Although he used. Mise powders the unregistered pipe an turing possessing and another bomb for tially agreed to make 5861(d)-(f). Fail bomb under 26 U.S.C. Case, out, bеlieving he backed Norman an element of those register ure to is him.” “somebody get was out to 5812(a), ap an crimes. Under 26 U.S.C. register and “shall be plication to transfer testified that he fabricated At trial Mise transfer, posses receipt, if or and making the bomb story about trans place would only [bomb] sion of the to make one for Norman Case agreed Noting that in violation of the law.” Mise feree leave him alone. testi- so would Case distinguish between that the statute does “[j]ust reciting things fied that he was law, that and Mise contends and state federal ... from various books had] read [he pipe registered the news,” could not have and that he never he heard on the pos prohibits law bomb because Ohio a bomb for Norman intended to build ordnance,” such as “dangerous of a Case, the bomb and session that he did not make (S.D.Ohio 1996). Gambill, de- Ann. 287 Rev.Code See Ohio bomb. (K)(2). 2928.11(H) 2923.17(A), and Giv it have been argued §§ fendant would statute, “due argues impossible register for him to a machine en the Ohio under a statute Although his conviction process gun, bars silencer when failure to punishes agreed regarding which his court with the defendant precluded by law.” registration registration gun given of a machine Dаlton, 121, 122 statutory prohibition registration, of such a denied, Cir.1992), cert. 510 U.S. found the defendant’s the court (1993). L.Ed.2d 205 S.Ct. regarding unper- bomb silencer categorically pro- ... suasive. “No statute v. Dal- that United States ... possession hibits the of a ton, of the indictment a dismissal dictates defendant] should have followed [and (10th Cir.1992). F.2d 121 in this case. 960 *4 appropriate application procedures for the Dalton, it Circuit hеld uncon- In the Tenth pipe Id. at 290-91. As the his bomb.” Gam- possess- a to convict person stitutional reasoned, bill court gun machine since 18 ing unregistered an 922(o) possession prohibited § the U.S.C. separate procedure BATF maintains registration a guns of machine and made for identifying destructive devices. See impossibility. literal See also legal and 5842(a) pro- § 26 U.S.C. 5842. Section Gambill, F.Supp. 912 287 anyone making vides that a firearm shall (S.D.Ohio 1996)(reversing a conviction for firearm, identify each other than a de- possession unregistered gun of an machine device, A structive serial number. gun a machine was a registering when device, however, destructive shall be statutory impossibility). Secretary may by reg- identified “as the prescribe.” ulations Title 27 of the Code an present analogue This case Dalton, Regulations of Federal section 179 has testimony revealed to Dalton. provisions extensive for the identifica- statutory impossibility that it was indeed a including tion of de- gun. Registration a machine of firearms destructive register pipe in the instant case is not vices. clearly legal impossibility and Dalton such, at registration Id. 291. As of a apply. United States v. does See pipe legal impossibility. bomb is not a Id. (D.Conn. F.Supp. 137 Dodge, 852 presented Mise has not that he evidence Rivera, 1994); 58 see also United States application an pipe made his Cir.1995)(distinguish- registration bomb or evidence that is a because ing guns machine from silencers ar- legal impossibility. Accordingly, Mise’s against register ban statutory there is not gument that he could not registered have McCollom, silencers); ing States v. Unitеd pipe bomb fails. (10th Cir.1993)(limit- 12 F.3d ing holding prosecutions Dalton involv II. Obstruction of Justice ing guns). Although law does machine Ohio prohibit possession generally, of bombs The defendant prohibition this does not extend to bombs proper district court failed to make find “registered regis firearms the national ings support of fact to the determination tration.” Ann. Ohio Rev.Code perjury that Mise committed in his trial 2923.17(C)(5). such, §§ legisla As the Ohio testimony, to a leading two-level sentence excepted federally registered ture has justice enhancement for obstruction of un bombs. Mise has cited no law that would der USSG 3C1.1. This Court reviews the prohibit registration of a bomb. findings district court’s factual under a presents clearly
This case
a situation similar to
erroneous standard.
United
McDonald,
that before the
District of Ohio v.
Southern
Cir.1999).
Gambill,
F.Supp.
United States v.
The district court’s determina-
vestigation and recorded several conver-
facts constitute an
whether
tion of
in January
sations
the defendant
of
question
is a mixed
obstruction
During
'98.
a recorded conversation be-
reviews de
and fact which this Court
of law
defendant,
tween Norman
and the
Case
novo.
making
defendant admitted
adjustment
An
for obstruction
“committing,
justice applies to a defendant
question then
the defendant
perju
suborning
attempting
or
to suborn
stand,
committed
perjury on
witness
comment, (n. 4(b)).
A
3C1.1
ry.” USSG
bomb,
he
making
so
if
perjures
“gives
himself
he
false
witness
question
there is no
in this Court’s mind
testimony concerning a material matter
course,
given,
that the statement was
provide
intent to
false tes
with the willful
jury
to mislead the
this case.
rather than as a result of confu
timony,
obviously
And
thе statement was mate-
sion, mistake,
faulty memory.”
or
it
rial because went to the heart of the
87, 94,
Dunnigan, 507 U.S.
charges
They
the indictment.
were
(1993).
1111,
testified at
the defendant
Transfer
in Connec-
III. Possession or
him
Felony
Another
tion with
Case,
Case,
attempted
who
Norman
final
an undercover
sell the
bomb to
applying
in-
erred in
four-level
cooperate
with the
district court
agent agreed
purposes
possession or transfer
manufactured
bomb for
enhancement
intent,
up
reason to be-
me back
knowledge,
with
or
of—let
—manufactured
or
give Ralph
purpose
that the
bomb would be used
for the
of
lieve
another felo-
possessed
injuring
connection with
his former friend whose last
2K2.1(b)(5).
ac-
ny.
This Court
Legg.
USSG
name was
fact un-
cepts
findings
a district court’s
act,
complete
didn’t
Although
it,
hе
clearly
they
less
are
erroneous. United
was what
the defendant believed that
Covert,
117 F.3d
counts,
felony
not whether or not the
Cir.1997).
however,
court,
applies
“This
actually committed as it
un-
was
states
question
of review to the
de novo standard
2K2.1(b)(5),
“If
quoting:
der
am
facts,
whether the
as determined
possessed any
the defendant used or
court,
of a
application
district
warrant the
firearm or ammunition in connection
particular guideline.”
See United
offense,
felony
(cid:127)with another
or”—and
(6th Cir.1993).
Medina,
applicable language “pos-
this is the
—
any
sessed or transferred
firearm or
2K2.1(b)(5)
provides for
USSG
knowledge,
ammunition with
intent or
the defendant
“[i]f
four level enhancement
reason to- believe that it would be used
ammuni
possessed any
used or
firearm or
possessed in
or
connection with another
felony
tion in connection
another
of
felony offense.”
fense;
possessed
any
or
fire
or transferred
ample
I think there is
evidence for this
intent,
knowledge,
arm or ammunition with
to infer that there
Court
was reason to
or reason
that it
be
to believe
would
used
believe
the mind of the defendant that
possessed in
or
connection with another
it was—he made the
it
bomb and was
felony offense.” The district court made
going
purpose
to be used for the
following
during
statements
its sen
injuring
person.
another
tencing hearing:
*6
the Court will add
So
four more levels
Well,
instance,
I think that in this
2K2.1(b)(5).
under
in
Court must look to what was
the mind
of the defendant when he manufactured
that
only
pipe
pipe
bomb. It’s clear from the evi- possessed by Norman Case is at issue in
dence that
thеre was a feud between
trial,
this
and that there is no evidence to
Ralph Case and another
individual
suggest that Norman Case intended to use
named Legg, and he discussed that feud
felony.
it in the commission of a
defendant,
they
with the
had a
and
dis-
any knowledge
claims that
he had regard-
Ralph
cussion about how
could retaliate
Ralph
ing
plan
Legg
Case’s
to harm
be-
by
language
think there was somе
to
—I
Ralph
came irrelevant when
Case aban-
Ralph
Ralph
that
effect
was at
was—
doned his claim.
Mise’s
fails for
house,
Jason’s
that there was materials
First,
a number of reasons.
the evidence
pipe
to make
bombs
there
[sic]
and
were
support
a conclusion that Mise
firecrackers,
might
M-50’s—I
be mis-
Ralph
knew that
Case had
his
abandoned
quoting the evidence—and there was a
Indeed,
plan.
Diane Case testified that
statement
to the effect that
it would
said,
Mise came to her home
“I
and
have a
to
a bigger
have
be
one.
I
pipe bomb that went ahead and
made
question
Ralph’s
And there is no
that
Ralph,”
that
indicating
thus
Mise made the
involvement broke off because he ended
Ralph
bomb for
rather than for Norman.
up
hospital.
in the
But along comes Nor-
pipe
Mise also testified that “a
bomb is a
Case,
gives
man
and the
him
defendant
people.”
destructive device used to hurt
pipe
alone,
Although this is not conclusive
com-
Now,
evidence,
there are
that
inferences
have to bined with the other
it demon-
drawn,
be
but
think the Court can
knowledge
pro-
strates Mise’s
or intent to
make an
inference that
the defendant
duce the
bomb with intent to harm
(4th Cir.1992).
Furthermore,
example,
and
For
in United
hearing
after
another.
Ardoin,
177,
v.
19 F.3d
180 & n. 4
testimony, the district States
all of the
observing
(5th Cir.1994), the Fifth Circuit elected to
evidence had
concluded that
court
Jones over Dalton when it reasoned
produced the
follow
that Mise believed he
shown
in
transported it in connection that
the defendant
Ardoin could have
and
pipe bomb
prоsecution
failing
register
avoided
felony.
awith
pay
illegal
by
on
guns
and
taxes
machine
fact
findings
court made
The district
weapons
refusing
accept these
the evidence that was elicit-
and described
Later,
place.
first
United States v. Gres
impose
trial in order to
the enhance-
ed at
(5th
ham,
258,
Cir.1997),
118 F.3d
court did not err
ment. The district
rejected Dalton
again
court once
and held
pursu-
offense level
increasing defendant’s
“if
legally impossible
it was
for Gres
Sentencing Guideline section
ant
thereby
ham to
bomb and
2K2.1(b)(5).
NFA,
comply
pros
he could avoid
in the
activ
engaging
illegal
ecution
CONCLUSION
Seventh,
Ninth, and
ity.”
Eighth,
the district
This Court _
similarly rejected
Eleventh circuits have
AFFIRMS/
judgment of conviction and sen-
court’s
Elliott,
Dalton. See United States
properly
The district court
tence.
(8th Cir.1997)
);
(per
curiam
correctly
motion to dismiss after
Mise’s
States,
Hunter v. United
73 F.3d
261-
evi-
holding
presented
that Mise had not
(9th Cir.1996)
);
(per
curiam
regis-
application
that he made an
dence
Rivera,
601-02
regis-
his
bomb or evidence
ter
Cir.1995);
Ross, 9 F.3d
United States v.
legal impossibility;
tration
Cir.1993),
vacated on
giving
not err in
a two-level
court did
1124, 114
grounds,
other
511 U.S.
S.Ct.
enhancement for obstruction
sentence
(1994).
2129,
eral criminal agreed possess which with and only in states preposterous them. This is a
accepted contention. arguments to dismiss the
Defendants’ then, indictment, down to when boiled essence, collapse simple their common sense. (E.D.Mich.1994) 278, F.Supp. 281 omitted). (footnote FRANKLIN COUNTY CONVENTION later, in v. years A few AUTHORITY, FACILITIES F.Supp.2d 954-55 Wolfe, Plaintiff-Appellee, (E.D.Mich.1999), the Eastern District Michigan rejected Dalton for reasons Djelaj. Finally, set forth United AMERICAN PREMIER UNDERWRIT Bournes, again once the Eastern INC., ERS, Defendant-Appellant, Michigan opportunity District of took the Corporation, Consolidated Rail reject reasoning: Dalton and its al., Defendants, et previously rejected Court has
[T]his Dalton, and sees no reason reasoning America, United States of to reach a -different conclusion here. Intervenor-Appellee. stated, Simply dilemma confronted making, Defendant was of his own No. 99-4095. if and could have been avoided he had Appeals, United States Court of pоssessing from outlawed ma- refrained Sixth Circuit. Thus, guns chine the first instance. the Court finds the Government’s Argued Oct. 2000. permit refusal to Defendant to Decided and Filed Feb. 2001. operate guns machine to bar prosecution possessing Defendant’s
unregistered guns. machine (E.D.Mich.2000) F.Supp.2d (footnote omitted). The court Bournes also viability questiona noted that Dalton’s ble in that upon the case which Dalton was premised, United States v. Rock Island (C.D.Ill. Inc., Armory, F.Supp. 1991), rejected by has been since the Court *8 Appeals for the circuit in which Rock Bournes, Island was decided. See F.Supp.2d at 745 n. 3 (citing United States Ross, Cir.
1993)). upon authority,
Based the above cited reject believe that this circuit should Dal- ton’s reasoning favor the Fourth Cir-
cuit’s reasoning Applying Jones. Jones hand, to the case at Defendant’s claim fails where prosecution he could have avoided