United States v. Kuban

Kuban’s get residence and observed him into REAVLEY, Before GARWOODand if depart. his car as As five officers ran to DeMOSS, Judges. Circuit car, leaning Kuban’s Kuban was seen into the passenger area of his vehicle. One of the GARWOOD, Judge: Circuit reported handgun officers that he then saw (Ku- Defendant-appellant Gregory passenger Kuban on the front floor. Kuban was ban), felon, pleaded guilty to a instructed to raise his hands and exit the charge knowingly vehicle; possessing so, firearms that when he refused to do Kuban had shipped forcibly in interstate was removed from his car and hand- 3A1.1; pursuant tim” increase to U.S.S.G. subsequent investigation of A cuffed. departure in rec- recovery a loaded and a three-level downward car resulted (manufactured ognition acceptance responsi- of Kuban’s Bel- Browning pistol 9mm 3El.l(a). seat, bility, pursuant to Ku- a load- U.S.S.G. passenger front gium) from the objected to the recommendations magnum pistol ban PSR’s .41 caliber Ruger Redhawk ed Connecticut) level, district (manufactured front for increases offense but the from the objections adopted area, quantity of court overruled his and and a small floor passenger the recommendations. The district court Kuban passenger seat.1 marihuana on imprison- sentenced Kuban to 108 months with a aggravated assault was arrested ment, three-year supervised a term of re- a a deadly weapon, possession of firearm lease, $12,500, special a fine of and a assess- felon2, Kuban possession of marihuana. and appeals. Kuban charges was ment of $50. state and made bond on these released. Discussion court, charged was Kuban

In Texas deadly weap- a aggravated assault with with Constitutionality 922(g)(1) I. of 18 U.S.C. on, in violation of Texas Penal Code 22.01(a)(2), 22.02(a)(2), pos- §§ and felon challenges constitutionality Kuban’s to the firearm, of Texas a violation session of him applied of section as have 46.04(a)(1). 11, On November Penal Code adversely resolved to his contentions against Kuban was a federal indictment 1994, our recent decision in United States returned, charging him with felon (5th also Rawls, Cir.1996), 85 F.3d 240 which is firearm, a in violation of 18 possession of binding panel.4 on this See also United 95-40430, U.S.C. Segeada, No. 74 F.3d States v. (5th 1995) 30, (unpublished) 1237 Nov. Cir. to dismiss the federal Kuban filed a motion (upholding indictment, 922(g)(1) is arguing that section accordingly reject 922(g)(1)). this claim We govern- of the an unconstitutional exercise of error. regulate commerce. The power to ment’s motion, Ku- district court overruled Sentencing Application II. of the Guidelines guilty subsequently entered a conditional ban reserving right appeal the district plea, court’s We review de novo the district motion determination of his court’s adverse “interpretation requirements” of the to dismiss. sentencing guidelines. (5th 946, Lara-Velasquez, 919 F.2d 953 Cir. investigation report presentence 1990). However, (PSR) court has where the district a four-level increase to recommended: guideline correctly interpreted the relevant offense level for Kuban’s Kuban’s base ap provisions, we review the district possession firearm “use[] of] guidelines particular plication of the in connection with another ammunition offense”, of the case before it pursuant facts and circumstances felony U.S.S.G. 2K2.1(b)(5)3; of discretion. See Koon v. United “vulnerable vic- for abuse two-level vehicle, Aggravated subsequently charged impounding with Kuban’s an invento- He was 1. After bag ry additionally contain- the car revealed Deadly Weapon in state district Assault with a spoons, syringes two a coffee can seven court, of a Fire- as well as Felon in Possession containing approximately one-half ounce of mar- felony of Texas state statutes. arm in violation ihuana, zigzag rolling papers and several small appli- Consequently, adjustment this four-level plastic bags. cable.” of three 2. Kuban had been assault, retaliation, aggravated offenses: indicating by concurring opinion in 4.As aggravated in an and quantity. of marihuana judges panel), (joined on that Rawls all powerful argument were the matter res nova a result; contrary for a could be made unlawfully 3. The PSR states that "Mr. Kuban regard court must Scarbor- this inferior federal 1, handguns July possessed 1994. He two States, 563, ough 97 S.Ct. v. United Browning to threaten used the 9mm automatic 1963, (1977) way. barring 16-year-old on that date. 52 L.Ed.2d 582 the life of Kenan Ozen 974 -

States, Reviewing U.S. 135 Kuban’s first contention de novo, 392 we hold that the district court did not L.Ed.2d by characterizing

err Ozen as a “victim” of Kuban’s conduct. In v. Rober United States “Unusually En- A. Vulnerable Victim” son, (5th Cir.), denied, 872 F.2d 597 cert. hancement S.Ct. in- The PSR recommended two-level that, in present this Court held to Kuban’s base offense level because crease context, [Sentencing] Commission has “[T]he knew or should have known that Kuban Ozen require chosen not to a nexus between “unusually age, physi- was vulnerable due to offense of conviction and victim.” Id. at condition, cal or mental or that [Ozen] 608. This Court reached this conclusion af particularly susceptible otherwise observing commentary ter that the to section Spe- § criminal conduct.” U.S.S.G. 3A1.1. require 3A1.1 did not the vulnerable victim to cifically, verbally the stated that Kuban PSR be a victim of the offense of conviction: physically kill threatened to sixteen- the Commission has wished to re “[W]hen cocked, year-old pistol. Ozen with a loaded quire a link between the offense of conviction The also noted that PSR Ozen had worked and a factor the court could consider in sen Finally, for Kuban Kuban’s business. the tencing, expressly it has included that re fairly .large PSR observed that Kuban is a quirement At Guidelines.” Id. the imposing individual. Roberson, time that this Court decided adopted The district court rec- PSR’s commentary explained to section 3Al.l that considering ommendation. After defense victim “applie[d] the vulnerable enhancement arguments point, counsel’s on this the district offense where the victim’s vulnerabili unusually court concluded that Ozen was vul- ty played any part in the defendant’s deci age “unusually nerable because of his vul- — sion to commit the offense.” Id. Based on nerable, being by because he’s faced a fellow language, this this Court held Roberson is, older, perhaps, bigger, certainly who more (deceased) individual whose credit experienced, knowledgeable, more more ma- by card had been used the defendant after ture, supposedly, might toas what he be able the card owner’s death in order to commit him to do to or with him.” charged “credit card fraud” —the offense challenges adjustment Kuban this on two a conviction—was “victim” under section First, 3A1.1, grounds: particularly Kuban contends that the of- in that the decedent “cer conviction, tainly fense of indignity having corpse felon suffered firearm, crime; second, good brought is a victimless Kuban abused and his name into this that, argues assuming arguendo even that whole sordid affair.” Id. at 609.5 Within framework, analytical there could be a victim of his offense of this Ozen must be conviction, conduct, “unusually Ozen was not vulnera- viewed as “victim” of Kuban’s Roberson,6 meaning ble” within the of section 3A1.1. well. We are bound However, 5. appears This Court also noted in Roberson decision in Roberson. there 1B1.3, language commentary be little in the of this amendment that to U.S.S.G. which address- justify conduct”, would the conclusion that Roberson is no es "relevant clarified “conduct Furthermore, longer binding. formally charged that is not or is not an element Kuban, opinion Hughey Court advanced v. may of the offense of conviction enter into the States, 411, 1979, United 110 S.Ct. 109 applicable determination of the Guideline Sen- clearly distinguishable. L.Ed.2d 408 Roberson, tencing range." at 608-609. Hughey, In the Court did conclude that the class of “victims” at issue in that case would be limit holding, recognize In so we that the relevant ed to victims of the offense of conviction. Id. at commentary to section 3A1.1 has been amended 18, reaching S.Ct. at 110 1982-83. 414 - conclusion, since our decision in Roberson. The commen- clearly the Court was ad tary adjustment applies now states: "This to of- dressing only provisions the restitution unusually fenses where an vulnerable victim is Victim and Witness Act Protection 18 target activity by made a of criminal the defen- considering §§ U.S.C. 3579-3580. After the stat comment, 3A1.1, (n. 1) (effec- dant.” U.S.S.G. utory language ordinary at issue and the mean 1, 1989). "restitution”, tive November This Court not has of the word the Court held that impact considered the of this amendment our "restitution as authorized statute is in- that, if and the deference due the district Next, even stances Kuban contends meaning of court, a “victim” within ultimately applica- were that its Ozen we conclude 3A1.1, in find court erred the district tion of section 3A1.1 must stand. “unusually vulnerable” ing that Ozen was ‘vulnerability “The determination victim. B. Enhancement for of Firearm to Use upon a number dependent fact complex is a Felony Commit court could which trial of characteristics Finally, applied district court also ...” completely’ possibly articulate not increase to four-level Kuban’s base offense Scurlock, 52 F.3d States pos- defendant level because “the used (footnote omitted). Cir.1995) (5th “Accord [a] sessed firearm ammunition connec- vulnerability finding due give the ingly, we felony another offense ...” Box, tion with 50 F.3d deference.” United — (5th denied, 2K2.1(b)(5). case, Cir.), U.S. In this cert. U.S.S.G. 358-59 309, 133 L.Ed.2d 213 116 S.Ct. aggravated as- offense” was “[other] — States, also Koon v. United See deadly weapon, sault with a violative of Texas 2035, 2045-46, -, ---, 22.02(a)(2). 22.01(a)(2), §§ Penal Code (1996) (recognizing the stat correctly agree parties that the second appeals utory requirement “that courts charged, with which Kuban was state offense to the district ‘give due deference firearm, possession in of a violative of felon ”).7 guidelines to the facts’ application of 46.04(a)(1), cannot con- Texas Penal Code Additionally, to the we accord due deference felony underly- “[other] stitute the offense” knew or finding of “what the defendant 2K2.1(b)(5) [section ] the district court’s respect.” have known this should However, ap- it four-level enhancement. (5th Brown, Cir. 7 F.3d States pears court relied on the district 1993). Finally, whether we must determine deadly weap- aggravated assault with a finding “unusual vul- the district charge to Kuban’s base offense increase plausible light nerab[ility]” was 2K2.1(b)(5)8, and, pursuant to section level Scurlock, at 542. as a whole. See record contrary protestations, to Kuban’s the dis- case, court In the instant the district doing trict court did not err so. unusually vulnera concluded that Ozen was age “unusually vulnera ble because of his object — sentencing, defense counsel At ble, being by a fellow who because he’s faced of section to the PSR’s recommendation ed older, is, bigger, certainly more ex perhaps, 2K2.1(b)(5) enhancement, arguing principally ma knowledgeable, more more perienced, being “doubly punished” for that Kuban was ture, might he be able supposedly, as to what further possession his of firearms. Counsel Additionally, him.” it to do to him or with aggravated assault [ ] contended that “the attention brought to the district court’s was ag court would not have been the state employed by previously had that Ozen for of the fire gravated assault but the use Kuban, to the adding yet another nuance However, district court arm.” when the relationship two individuals. between these whether someone asked defense counsel one, Although the issue is indeed close charged aggravated assault with could “be arguably concept vulnerability has other than the use for some other reason limits, virtually never to its outer been taken “Yes, firearm?”, correctly responded, counsel theless, foregoing eireum- light of all the statutory was within the limits compensate only criminal sentence essentially for losses tended to victims appeal. Id. Sec- not reviewable on underlying offense of the conduct caused order to create limited 3742 was enacted in at 1982. Ku- tion Id. at conviction.” appellate jurisdiction to review federal sentences. argument present no in the case draws ban’s citing quotation, the Court was support Id. In the above really significant, from this hold- direct 3742. Id. amendment to section ing. Hughey simply from the the 1988 is too far removed justify present the conclusion that this issue to September transcript of Kuban's 8. The sum, longer panel Roberson. In is no bound clearly sentencing hearing that defense reflects panel simply Rober- is not to reexamine this free (cid:127) recognized of- "[other] that the counsel son. charge aggra- question the state was fense” deadly weapon, and that the with a statutory requirement is set for- vated assault at issue 7. The government and the district court shared Before the sentenc- ward in 18 U.S.C. system implemented, a view. ing guidelines was federal interpreted language It is clear that there is no Court Your Honor.”9 of 18 1202(a)(1) assertion that was U.S.CApp. § merit to Kuban’s he “dou- pun- which fixed the bly punished” possessing for firearms. This receives, ishments for a convicted felon “who argument requirement misses the critical of possesses transports af- commerce or 22.02(a)(2) that defendant must fecting commerce ... firearm.” The deadly weapon or exhibit a use order in Scarborough writ certiorari was limited aggravat- an assault rise to the level of an question of whether a conviction under A ed assault. defendant’s mere 1202(a) U.S.C.App. § “is sustainable deadly weapon during aof the commission of merely upon showing possessed implicate an assault would not of itself sec- firearm has at time however indisputable It tion 22.02. that Kuban remote traveled in interstate commerce.” by using committed his assault on Ozen Concluding legislative history exhibiting merely contemporane- 1202(a) and/or gave Congress —not (as no indication “that ously possessing by carrying concealed in require any intended to more than the mini- pocket) deadly weapon: the section been, mal nexus that the firearm has —the some pointing 22.02 violation was Kuban’s time, commerce,” weapon range at Ozen’s head at close conviction, Court affirmed the but without it, cocking demanding while information from any analysis real of whether the “minimal Therefore, properly Ozen. the district court constitutionally nexus” was sufficient. increased pursu- Kuban’s base offense level 1986, 1202(a), along with the various 2K2.1(b)(5) present ant to section congressional findings which the Court cited case.10 in Scarborough supporting the “minimal conclusion, repealed by nexus” Con- Conclusion gress.1 present statute under which reasons, foregoing For the Kuban’s convic- por- Kuban was indicted reads in relevant tion and sentence are AFFIRMED. tions as follows: (g) It any person— shall be unlawful for DeMOSS, Judge, dissenting Circuit in (1) any who has been convicted in part. of, punishable by imprison- court a crime I am summary unable to concur with the year; exceeding ment a term one disposition majority which the makes toas challenge constitutionality Kuban’s him,

§ 922(g)(1) applied to and write to respectfully register my par- ship transport reasons for to or in foreign interstate or tial possess affecting dissent. or in or com- merce, ammunition; any firearm or or to First, regard opinion I do not in the Scar- any receive firearm or ammunition which States, borough 563, v. United shipped has been or in inter- S.Ct. 52 L.Ed.2d 582 as “bar- foreign or state commerce. ring way” majority the as the in only “possess” in modifies the verb merce” 922(g)(1). cally the issue as to determine Next, B it is Element of the current statute. Lopez more than a case But has to be read as apparent that the current statute is structur- determining the of one of in ally from the statute construed different Rather, Lopez of 922. is a the subsections has Scarborough phrase because the “which and landmark restatement and fundamental in or shipped transported interstate Congress powers the of under redefinition of only foreign modifies the “fire- commerce” may Whatever have the Commerce Clause. by “received” arm or ammunition” which was clarity un ambiguities and lack of been the a felon in Element C. activity an prior der case law as whether “substantially inter “affect” or affect” important to note that the cur- must It seems (§ Con state commerce order be within 922(g)(1)) does not use rent statute regulate it under the Com gress’ power to phrases to or are a words or which refer Clause, Lopez that the Court stated phrase question merce derivative of the used weight our case great the of Scarborough: “consistent with on writ of certiorari certified decisions, Bass, Appeals the Court of should S.Ct. line of 2. 404 U.S. 92 controls, directly leaving 30 L.Ed.2d 488 case which follow the Supreme] prerogative of overrul- Court the [the course, I, am mindful of the 3. of I, do not be- its decisions.” own Quijos warning Rodriguez v. Shear Court’s directly Scarborough because that controls lieve Inc., Express, son/American (1) Scarborough has been at issue in the statute 1917, 1921-22, 104 (2) Scarborough repealed court did not and the Supreme] precedent [the a application of "[i]f Thus, Shear- case, the constitutional issue. address yet ap a Court has direct apply. Express rejected does not pears in some other to rest on reasons son/American proper requires analysis ... charges law test The federal indictment that Ku- regulated ban, of whether the activities substan- person “a previously who had been con- tially affects interstate commerce.” Id. at punishable by victed of a imprisonment crime view, my In S.Ct. a exceeding year, knowingly term one did regard conclusion means that in to Element possess a firearm shipped that had been and §B possession by a convict- transported in interstate commerce and af- “substantially ed felon of a firearm must now fecting specifically Browning a Consequently, affect interstate commerce.” pistol Ruger mm Mag- Red Hawk .41 Scarborough the “minimal nexus” of can no revolver, num caliber in violation of Title longer Lopez deemed be sufficient under the Code, § 922(g)(1).” United States The lan- requirement substantially affecting inter- guage of the a hodgepodge indictment is eut- commerce. The mere fact that a felon and-paste mixing of the elements of criminal possesses a firearm which was § prohibited conduct under The years interstate commerce before the current B; “possess” verb is out of Element rationally cannot be determined to phrase shipped “that had been and trans- impact have a “substantial on interstate com- ported in interstate commerce” is out of Ele- merce” as of possession. the time of current C, ment but the word “had” is substituted for Finally, proceed I would to reach the con- “has”, the word insignificant change not stitutionality § 922(g)(1) in this case be- phrase tenses of the verb. The “and cause compellingly the facts are so local in affecting commerce” is out of Element B and ultimately nature. The events which result- placed in language the indictment it is ed in this federal indictment started out as a impossible to phrase determine whether this (Kuban) quarrel between a father 14- and his “possess” modifies “shipped and trans- year-old daughter which deteriorated into a ported.” only The indictment pro- uses (so “family disturbance” characterized in the “possess” hibited verb not does mention stipulation factual filed “receives.” The indictment not does contain Attorney Report pre- and the Presentence any allegation about the conduct “substan- pared Department). the Probation ” tially affecting commerce. place took events areas of .residential County, small town Travis Texas. When the factual basis filed the United the witnesses and victims felt the need of Attorney only grounds States upon which assistance, police they called the sheriff of government prove offered to County police Travis department and the anything conduct involved had to do with They FBI, the local town. did not call the interstate commerce was proof the tender of DEA, the ATF or other federal law the firearms involved “had agency. Ultimately, enforcement the local traveled commerce as the police officers found and arrested Kuban and Browning 9 mm pistol semi-automatic custody took him into state on various state Belgium manufactured in Ruger and the Red charges, including criminal charge the state Magnum Hawk .41 revolver was manufac- being possession of a felon in gun. All of tured Connecticut.” The fact that a fire- place July these events took on 1994. arm was originally Belgium manufactured later, Four months the United States Bureau or Connecticut and is posses- later found in Alcohol, of Tobacco and Firearms initiated a sion aof felon in Texas cannot constitute investigation regarding federal weapons proof beyond a reasonable doubt that such and Kuban was named as a defendant “shipped firearm was ever one-count federal charging indictment him commerce,” just interstate for it is plausi- as being possession with felon of a firearm. purchased by ble that the firearm was its At the time of the issuance of this federal original owner where it was manufactured indictment, Kuban was custody still state brought and by or carried to Texas such and Attorney issued an original application part personal owner as of his proper- for writ corpus pro- of habeas ad ty sequendum part any and not bring shipment. order to of Kuban from interstate custody County jail arraign- government’s theory might the Travis hold if water charges. ment on the federal prohibited the statute possess- felon from from the different state ing a firearm manufactured; LYND, Plaintiff-Appellant, was Earl the firearm Edward where 922(g)(1) prohibits. not what that’s

but Furthermore, any proof no offer of there was LIFE RELIANCE STANDARD INSUR- government that Kuban’s by the COMPANY; Bacon & ANCE Ford place in a channel of took the firearm of Davis, Inc., Defendants-Appellees. any facility of that it involved commerce No. 95-30588. Likewise, there commerce. interstate govern- Appeals, kind of proof of of United States Court no offer weapons possession of the Fifth that Kuban’s Circuit. ment whatsoever, 1, 1994, any effect July had Aug. effect, on interstate much less a substantial commerce. all it is correct government

If the 922(g)(1) under is get a conviction

takes to possessed a firearm that a felon

to show past history was time in

which at some all of then

shipped in interstate are ren-

the other elements meaningless. Lopez surplusage and

dered warning earlier issued

reiterates Laughlin in Jones & Steel:

Supreme Court scope commerce] [the

[ T]he light considered

power must be may system government

our dual as to embrace effects

not be extended so so indirect and

upon interstate commerce them, in view

remote that to embrace effectually society, would complex

our between what

obliterate the distinction and create a and what is local

national government.

completely centralized Corp., Laughlin Steel

NLRB v. Jones & 615, 624, 81 L.Ed. 893 “affecting com- I would hold that the Scarborough has been mantra of

merce” requirement of a sub-

changed Lopez’s affect on commerce Scarbor-

stantial satisfy longer can no

ough ’s “minimal nexus” requirement regulated that the activ-

Lopez’s economic effect

ity must exert a substantial commerce.

on interstate I these reasons would address

For and hold that under the

constitutional issue no substantial effect of this case there is

facts satisfy the indict-

on interstate commerce

ment under notes foot- note 4 In Scarborough Supreme above. the 922(g). § 18 U.S.C. 22.02, that, terms, § "Aggravat- 9. Texas Code Penal entitled 10. We also note its own section Assault”, 2K2.1(b)(5) ed states: mandates enhancement when the requisite application conditions for of that sec- "(a) person person A commits an offense if the requisite tion have been met. The conditions commits assault- as defined in Section 22.01 having been met in the case—"the instant defen- person: and the possessed dant used or [a] firearm or ammuni- (2) deadly weapon ... uses or exhibits a tion in connection with another offense"— (em- during the commission the assault.” regarding the district court had no discretion added). phasis application of this enhancement. 22.01, part, In relevant entitled "As- sault", states: 1. Firearms Owners' Protection Act of Pub- "(a) person per- 99-308; H.R.Rep A commits an offense if the Cong. lic Law 2d 99th No. Sess., (1986) ("Title son: § 4 VII of the Omnibus (2) intentionally knowingly ... or threatens Crime Control and Safe Streets Act of 1968 1202(a) bodily injury § repealed.”). another with imminent ...” [which ] enacted reading possessed “that the firearm has to a common sense Applying any remote in punctua- time however traveled inter- reading the words and 922(g) § added.) (Emphasis Nor average state commerce.” citizen manner which tion in the any phrases or cur- are there words the it, creates three this subsection read would referring holding rent statute acts as follows: criminal separate and distinct Supreme Scarborough Court for [a A: It shall be unlawful A. Element time, been, “firearm had at some inter- transport in ship or felon] convicted putting together commerce”. any foreign commerce interstate or 922(g), Congress easily § could have inserted ammunition; or firearm “at the words phrase time” after for [a B: It shall be unlawful B. Element transported” in it “shipped or Element C as in or affect- possess felon] convicted 922(k), did in and the absence of any firearm or ammuni- ing commerce phrase as to the remoteness time of tion; or shipment transportation in com- or for [a It shall be unlawful Element C: C. merce leads me to the conclusion Con- any firearm to receive felon] rely upon “minimal gress chose not to shipped which has been or ammunition Scarborough, crafted nexus” of but rather foreign transported in interstate or or unambiguous § 922(g) to have clear and con- commerce. nections with interstate commerce. note critically important that we It seems why I not con The second reasons would the current clear differences between Scarborough way sider that stands (§ 922(g)(1)) under which Kuban was statute thorough examination (18 U.S.C.App. the old statute indicted and precise this case is 1202(a)(1)) was construed Scar- which holding Scarborough is in fundamental and First, has Supreme as the Court borough. conflict with the rationale of irreconcilable held, phrase “in the old statute the under Court United applied to affecting commerce” commerce — Lopez, S.Ct. “receives, possesses of the three verbs: each (1995).3 1624, 131 Obviously statute, transports.”2 Under the current precise holding Lopez which declared affecting phrase “in or com- 922(q) unconstitutional does not automati

Case Details

Case Name: United States v. Kuban

Court Name: Court of Appeals for the Fifth Circuit

Date Published: Aug 29, 1996

Citation: 94 F.3d 971

Docket Number: 95-50712

Court Abbreviation: 5th Cir.