United States v. Norberto B. Luna

Hubbard, fees, costs, Doran, quest expenses under Larkin Simmons & Peter Doran, See, Jr., Jackson, MS, e.g., J. Baton ERISA. Laborers Local 938 Joint William LA, Defendant-Appellee. Trust Fund v. B.R. Rouge, Health & Welfare Co.,

Starnes Cir. 1987). We therefore VACATE the district of fees and court’s award costs DISMISS subject jurisdic this case lack of matter HIGGINBOTHAM, DUHÉ and Before tion. DeMOSS, Judges. Circuit PER CURIAM: filed an

Appellant David Cliburn ERISA Jury against Appellee Police Associa-

claim Louisiana, Inc. The suit was dismissed

tion of subject jurisdiction, matter

for lack of

grounds sought participation in that Cliburn plan” “governmental not covered America, UNITED STATES 1002(32); 1003(b). §§ statute. See 29 U.S.C. Plaintiff-Appellee, appeal from this dismissal.

Cliburn does not dismissal, Jury Following the Police Associa- fees, costs, attorneys’ requested tion and ex- LUNA, Defendant-Appellant. B. Norberto penses provision of ERISA which subchapter states: “In action under this No. 97-41265. (other paragraph an action described in than Appeals, United States Court of (2)) beneficiary, fiduciary, by participant, Fifth Circuit. may allow a the court its discretion rea- attorney’s sonable fee and costs of action to Jan. party.” 1132(g)(1). The either U.S.C. Jury awarded to the Police

district court $15,600.00in

Association fees and $533.33 appeals

expenses. Cliburn from that award alia, subject argues, inter matter

jurisdiction lacking.

District courts are vested with federal jurisdiction

question in “all civil actions aris- Constitution, laws,

ing or treaties United States.” U.S.C. district court’s dismissal Cliburn’s subject jurisdiction

claims for lack of matter

is inconsistent with an award of fees and requires “any

costs under a statute which subchapter.” dismissing

action under this suit,

Cliburn’s the district court determined

that there was no “action.” ERISA Further-

more, given inapplicable that ERISA is claims,

Cliburn’s it is inconsistent to conclude Jury

that either Cliburn or the Police Associ- participant, beneficiary, is “a

ation fiducia-

ry” eligible 1132(g)(1). to invoke Given jurisdiction

that the district court lacked ERISA, logi-

hear Cliburn’s claims under

cally jurisdiction follows that the court lacked Jury

to entertain the Police Association’s re-

gle knowingly possess- count indictment with ing five stolen firearms that had been shipped transported in com- interstate merce, 922Q).1 in violation if 18 U.S.C. pre-trial Luna motion to filed dismiss indictment, arguing 922(j) an un- was power exercise of the constitutional of Con- gress under the Commerce Clause. The dis- motion, orally trict court denied and the proceeded case to trial. As Luna waived by jury, trial he tried was the court. facts, stipulation Based on a written guilty district Luna of possession court found of stolen firearms. (“PSR”) presentence A report pre- Rao, Dept, Katikineni U.S. Sangita Jus- pared by probation assigned officer who tice, Div., D.C., Washington, Paula Criminal twenty Luna a pursuant base offense level of Offenhauser, Powers, L. Camille James Asst. 2K2.1(a)(4)(A) to U.S.S.G. because Luna Houston, TX, for Attys., Plaintiff-Ap- U.S. burglary had a state conviction for of a habi-

pellee. Additionally, tation. Luna received a total of Dahlin, II, public Roland E. Federal De- eight specific offense enhancements because Christian, Houston, fender, Gerow William (1) the involved at offense least five firearms TX, Defendant-Appellant. for (§ (2) 2K2.1(b)(l)(B)), the firearms were sto- (§ (3) 2K2.1(b)(4)), len and the firearms were possessed felony in connection with another (§ 2K2.1(b)(5)). burglary offense —the Luna’s offense level was reduced levels three POLITZ, Judge, Before Chief and acceptance responsibility. His result- DENNIS, Judges. WIENER and Circuit ing twenty-five. net offense level was This WIENER, Judge: offense history Circuit level and Luna’s criminal yielded range sentence of 84 105 months Defendant, B. appeals Norberto Luna imprisonment. eighty-four prison sentence of months in firearms, knowingly possessing stolen in vio- sentencing, objections Prior Luna filed 922(j). lation challenges of 18 U.S.C. Luna PSR, to the the district which court ultimate- the district court’s of the United (1) ly argued denied. Luna the en- (“U.S.S.G.” Sentencing States Guidelines or 2K2.1(b)(4) §§ hancements under both “Guidelines”) constitutionality and the impermissible constituted double error, 922(j). Finding no reversible (2) counting; application of affirm. inappropriate because the firearms were time prior “stolen” to the that he re- I. residence; (3) moved them from the of his base offense determination level under FACTS AND PROCEEDINGS 2K2.1(a)(4)(A) incorrect because his In August Luna earlier and two others state conviction for was not burglarized Christi, Corpus prior a residence in qualifying Finding conviction. Luna’s Texas, meritless, objections and stole five firearms. Luna was district court be subsequently charged arrested and of eighty-four a sin- sentenced him to term in, commerce, 922(j) provides: foreign ported "It shall be unlawful interstate or either receive, conceal, store, stolen, any person possess, knowing having before it was or after or barter, sell, dispose ... stolen firearm to believe that the ... reasonable cause as, of, part moving which is which is which 922(j) was stolen.” 18 U.S.C. constitutes, shipped which been has or trans- months, years super- shipped in, transported followed three interstate or for- eign Relying vised release.2 commerce.”4 Supreme Lopez.5 Court’s decision in United States v. appeal, objec- In this Luna reiterates his Luna that the mere of a PSR, again challenges tions to the stolen firearm that has crossed state lines in constitutionality 922(j) un- statute —the substantially does not affect inter- argued der he was he which convicted. As commerce, thereby state falling outside the indictment, his motion dismiss the Luna realm Congress of activities that regulate can an asserts that unconstitutional power. under the commerce The district power Congress exercise under the rejected argument court when it denied Commerce Clause. contends both Luna’s motion to dismiss the indictment. facially him, applied and as to the statute authority Congress exceeds the of under the previously We have not been re conveyance Commerce Clause of quired to the constitutionality address of unspecified firearm over state lines at some 922(j). fact, § In appellate federal point substantially in the does not affect court constitutionality rule on the begin by addressing commerce. We the con- § 922(j) Circuit, Eighth so far is the which stitutionality of the statute and then consider unpublished did so in an opinion. In United challenges Luna’s to his sentence under the Kocourek,6 upheld that court Guidelines. constitutionality 922(j) §of in the face of a challenge, Commerce Clause based

II. plain language section’s that established the interstate commerce “shipped or trans link — ANALYSIS in, ported foreign interstate or commerce.”7 A CONSTITUTIONALITY OF 18 U.S.C. The Kocourek court relied on its examination 922(j)

§ 922(g), § containing 18 U.S.C. a statute virtually language identical to that of 1. Standard Review § 922(j), ques to ensure that the sufficiently tion affected interstate comm evaluating In a constitutional chal agree colleagues erce.8 We with our statute, lenge to a apply federal a de novo Eighth Circuit and likewise hold that standard of review.3 922(j)

§ ais constitutional exercise of Con gress’s power. commerce Challenge 2. Facial Luna contends that on properly its face 18 U.S.C. To define the boundaries of Con- 922(j) § is an unconstitutional gress’s power regulate exercise of the activities power Congress specifically the Commerce stolen firearms —we firearms — 922(j) begin Clause. Section makes it Supreme unlawful for with a discussion of the “receive, conceal, any person possess, Lopez opinion. Lopez, In Court’s the Court store, barter, sell, dispose § or 922(q), prohibits examined which 18 U.S.C. as, moving firearm ... which possession designat- is which is a firearm within a of, constitutes, part which or which has been ed school zone. The Court identified “three 481, (8th Cir.1997) imposed special $100 2. The district court also 6. 116 F.3d 1997 WL 307160 provide assessment and ordered Luna to restitu- (unpublished). tion to the victim of the crime. 7. See 18 U.S.C. Pierson, 501, 922®. United States v. 139 F.3d Cir.), denied, 220, cert. - U.S. (1998); Rasco, 142 L.Ed.2d 181 Kocourek, (citing 116 F.3d United States denied, Cir.1997), cert. Shelton, (8th Cir.1995) (per - U.S. -, (1998). 118 S.Ct. L.Ed.2d curiam) (concluding contains the requirement), interstate commerce 4. 18 U.S.C. 922®. 517 U.S. (1996)). 116 S.Ct. 134 L.Ed.2d 530 5. 131 L.Ed.2d 626 inquiry, possession ques- that the categories” activity which Con- over broad affects interstate commerce.”11 tion gress constitutionally exercise its com- could (1) the channels of power: use of the merce 922(q), 922(j) does contain a Unlike commerce; (2) jurisdictional specifically prohib- the instrumentali- interstate element. It possession of a stolen firearm “which is of, in, its things or persons interstate ties as, of, moving part which which consti- (3) commerce; substantially af- activities tutes, shipped which has been trans- Analyzing fecting interstate commerce.9 in, ported foreign interstate or commerce.”12 framework, 922(q) within Court jurisdictional element possibility first dismissed intrastate worded, broadly such “clev- firearms could fit into the first legislative er craftwork” cannot shield categories, and turned instead two statute from constitutional attack.13 Section pos- category the intrastate third —whether however, 922(j), language virtually contains substantially session of firearms could affect 922(g)(1) (g)(8), §§ to that identical 922(q) interstate commerce.10 provisions related in the federal unconstitutional, that, noted as a Court that we statute have held constitutional statute, nothing 922(q) criminal had do post -Lopez the face of Commerce Clause was it an enterprise with commercial nor challenges.14 part larger regulation of a of eco- essential example, upheld, For we have on several substantially activity, and nomic thus did not occasions, constitutionality of holding affect commerce. Central to this § 922(g)(1)15 felon-in-possession stat- —the “jurisdictional was the lack of element jurisdictional in large part ute —based on ensure, through case-by-case expressed plain language.16 which would nexus in the 558-59, 716, (1997); Lopez, U.S. at 115 S.Ct. 1624. 117 S.Ct. 635 9. 514 136 L.Ed.2d 157, (5th Dickey, States v. United 102 F.3d 163 559, Cir.1996) (same). every at 115 S.Ct. 10. Id. We note that other cir upheld that has cuit constitutionality addressed this issue has 561, Id. at 115 S.Ct. 922(g)(1). § See of United Williams, (7th Cir.1997) States v. 128 F.3d 1128 922(j). § 12. 18U.S.C. court). (referencing decisions from each circuit 564, interpreting 922(g)(1) Chesney, 16. The cases cite v. 86 F.3d 579 Scar- 13. See United States States, 563, ("A borough (6th Cir.1996) (Batchelder, J., concurring) v. United 97 S.Ct. 1963, (1977), binding activity prece- 52 L.Ed.2d regulates 582 as statute that non-commercial dent, predeces- a case that the into, regulates which concluded cannot be converted that statute § 922(g) required only sor statute to by legislative minimal activity of clever commercial craftwork.”), dint , U.S. -, nexus between the and interstate com- cert. 117 S.Ct. denied — instructive, holding 2470, merce. We find but not 138 L.Ed.2d 225 binding interpretation 922(j). on our of Scar- text; borough felon-in-possession dealt with a accompanying statute 14. See note 15 and infra Pierson, (§ Lopez opinion. and was not 922(g)(8) governs at mentioned 139 F.3d 503 Furthermore, prior panels questioned have possession subject of firearms individuals to cases); applicability Scarborough of if the constitutionali- protective family in orders violence see nova, 76, (7th ty §of was as the Hardy, res constitutional- also United States v. 120 F.3d 78 Rawls, Cir.1997) 922(j) 922(u) constitutional); ity today. (finding § of See 85 F.3d Unit nova, ("If Snow, 935, (10th might 243 the matter were res one ed States v. 939 F.3d Cir. 1996) (same); Miller, rationally how be well wonder it could conclud- United States v. 74 F.3d 159, (8th possession any Cir.1996) (same); ed that mere of a firearm in 159-60 United States commerce,” Hernandez, Cir.1996) meaningful way (2nd interstate concerns 85 F.3d language 922(k) constitutional); Scarborough (finding but "carries] in Diaz-Martinez, Cir.1995) strong enough implication (1st constitutionality of to 71 F.3d Wiener, us_") (Garwood, (same). now bind Emilio J.J., Garza, Gresham, concurring); specially M. Rawls, (noting 15. United States v. at 265 85 F.3d 118 F.3d n. 11 the restrictive Cir.1996) (finding holding Lopez interpretation power Lopez, that in in does the commerce finding constitutionality invalidate nexus” but a "minimal between Gresham, 922(g)(1)); § 258, required United commerce is F.3d the firearm interstate Cir.1997) Rawls), Rawls)’, Kuban, (reaffirming at 973 cert. n. 4 — denied, U.S. -, (same). light uncertainty surrounding In 139 L.Ed.2d (1998); Kuban, Scarborough, United we States v. (same), base our - (5th Cir.1996) Lopez. on the factors set out in U.S. trafficking provision for a in stolen 922(g)(1) makes it unlawful firearms. The expanded ship inter- was in reach transport or in first 1990 to firearms convicted felon “to commerce, “shipped transported or in in” interstate foreign possess or or com- state or report In its commerce, any proposed changes merce. on to affecting firearm ... to Judiciary ... Committee the House any which has been receive Representatives explained change that the shipped in commerce.”17 Unlike interstate § 922(j) designed “expand to Federal 922(g)(1) Lopez, the statute at issue jurisdiction permit prosecutions to for trans- expressly requires nexus to some interstate ... actions stolen firearms where commerce, ability Congress reflecting the already the firearms have moved in inter- delegated power exercise to its foreign Again, state or commerce.”21 reach Clause to Commerce specify amended explicit firearms that have an connection with the firearm could have traveled interstate find effect on commerce.18 We interstate commerce “either before or after was sto- 922(j), reasoning applies that the same Although Congress findings len.” made no in, “shipped language transported and the amendment, regarding perceive pro- foreign interstate or commerce” likewise purpose clear have been extend further requisite vides the nexus commerce cognizance its over stolen firearm. lacking Lopez. jurisdiction expansion federal over jurisdictional nexus addition to the Congress’s stolen firearms demonstrates 922(j), congres- language found to eradicating commitment the traffic in sto- findings support sional conclusion propriety goal len firearms. The of that “substantially possession of exemplified in this case Luna’s admission Congress affects interstate commerce.”19 guns that he intended to sell the stolen initially legislation containing pos- enacted a question very activity Congress —the provision of out of a session stolen firearms seeks to end. “widespread for traffic in concern firearms moving affecting background, in or historical otherwise interstate Given this we are foreign regulation Section 922 been of commerce.”20 has satisfied that stolen fire- inception, part larger regula- its both essential a amended twice since and arms is “an of activity, regula- scope amendments have and tion of economic broadened which strengthened tory could govern- the role federal scheme be undercut unless the continuing activity fight against regulated.”22 ment illicit were As intrastate (1994). § 20. Crime Safe Streets Act 17. 18 U.S.C. Omnibus 1968, Control and 90-351, 901(a)(1) (1968). § No. of Pub.L. 561, Lopez, at 1624 18. See 514 U.S. 115 S.Ct. Sess., 681, H.R.Rep. Cong., pt. 2d 21. No. 101st ("[Section] 922(q) express jurisdictional has no 1, (1990), reprinted U.S.C.C.A.N. at 106 in 1990 might element limit its reach which to a discrete 6510; Cruz, 6472, see also United v. 50 States possessions additionally set of have 714, Cir.1995) (discussing leg 718 F.3d explicit an with or effect on interstate connection history § 922(j)); v. islative naker, of United States Ho Rawls, commerce.”); compare 243 85 F.3d at 160, (6th Cir.1993) (same), 5 F.3d 161-62 ("[Section 922(g) expressly require some ] does denied, 1180, 1226, 114 S.Ct. 127 cert. commerce, importantly thus nexus interstate L.Ed.2d 571 reflecting Congress exercising that dele- gated power merely functioning as if it and not 1624; Lopez, 514 U.S. see 115 state.”) legislative authority unitary were a Kirk, v. F.3d also United States J.J., (Garwood, Wiener, Garza, spe- Emilio M. (en banc) (5th Cir.) (confirming the constitution cially concurring). 922(o), ality governing possession § power guns, Congress has the machine because Monteleone, power escalating destructive See United v. 77 F.3d to "freeze weapons U.S. -, States - war”), Cir.1996) (“[S]ection 922(d) [drug] cert. of that addresses (1997); firearms, disposal inherently which is an 139 L.Ed.2d Franklyn, activity.”); commercial United v. see also United States Michael Cir.1998) R., (9th Cir.1996) (2d ("[Section guns (trafficking has of machine effects), 922(x)], filed, handgun by strong petition juvenile, a a interstate (Oct. 16, 1998); matter, general could have a No. 98-6500 as substantial Cir.1996) (same), commerce.”). (3d Rybar, F.3d effect on interstate lines, such, depar- to the collective or constituted an unreasonable give due deference we applicable range.25 from the Guideline Congress and con- ture expertise of institutional legitimate § ex- embodies a clude that 2K2.1(b)(1) Counting 2. Double Under power Congress’s under the Com- ercise (b)(5) and merce Clause. enhancing Luna that when his Constitutionality Applied level, As imper base offense the district court missibly him giving double counted two- Luna also contends is 922© 2K2.1(b)(4) level increase under because Specifi him. applied as unconstitutional firearms and a were stolen simultaneous argues that he broke into cally, Luna because 2K2.1(b)(5) four-level increase firearms, house, appre later stole and was possessing these connec police, all occurred in hended of which offense, felony the burgla tion with another nature, Texas, purely is of local his crime (b)(4) ry. By applying both subsection system. historically prosecuted in the state (b)(5), contends, Luna sentence in his constitution we hold that Because 922© stealing creased twice the same conduct — face, al it is constitutional on its likewise firearms. Luna, stipulation applied given his when primarily Luna relies on dicta United that three of the five firearms named States v. Guerrero26 and United States manufactured in either New indictment were support argument. Armstead27 to firearms had York or Connecticut. These Armstead,28 questioned Guerrero reach travel in interstate commerce to apply whether a district court should both Texas, burglarized thereby home when a defendant satisfying requirement interstate during burglary, steals a firearm We hold that statute.23 therefore 922© burglary prohibits expressly Guideline applied constitutional as to Luna. adjustments both in the same situation.29 Guidelines, contained in B. APPLICATION OF SENTENCING 2B2.1, include separate sentence enhance- UNDER 2K2.1 GUIDELINES “a ... ments when was taken”30 and 1. Standard Review dangerous weapon (including “a a fire- arm) possessed.”31 According We review the district court’s inter was to the however, pretation commentary, “possess[ing] Guidelines de novo find a dan- firearm) up ings gerous weapon (including of fact for clear must error.24 We a that was appeal during hold a defendant’s sentence on stolen of the unless course offense” will law, in imposed violation of the in not lead to sentence enhancement under both words, application In burglary volved an incorrect of the Guide- sections.32 other - denied,-U.S. denied, -, (5th Cir.), U.S. cert. 118 139 27. 114 F.3d 504 cert. -, (1997). (1997). 243 118 S.Ct. 139 L.Ed.2d L.Ed.2d 13 Guerrero, 10; Armstead, Pierson, ("[E]vidence n. F.3d at 873 23. See 139 F.3d at 504 that F.3d at 513 n. 4. gun pos- a was manufactured in one state and in another state to establish sessed is sufficient inter- connection between the firearm and burglary 29. Luna did not under federal commit commerce.”). office); (i.e. state burglary post law of a bank or there- fore, burglary applicable was not Guideline calculating level. See his offense U.S.S.G. Valdez-Valdez, v. F.3d 24. United States ("Determine guideline § 1B1.2 the offense sec- Cir.1998). applicable offense of tion ... most tion."). to the convic- Armstead, 25. United States , — Cir.), cert. U.S. 118 S.Ct. denied 2B2.1(b)(3). 30. U.S.S.G. 139 L.Ed.2d 2B2.1(b)(4). 31. U.S.S.G. (5th Cir.1993), 26. 5 F.3d U.S. (1994). 127 L.Ed.2d 422 2B2.1, commentary U.S.S.G. n. possessing four-level enhancement expressly prohibit Guidelines double en- possessing produces same that stealing hancements for “stolen” firearm a two- (b)(4). weapons time. same at the same level enhancement under subsection perceive significant As we differences be- urges analogize the double us to subsections, disagree. tween the two we counting prohibition burglary Guide- (b)(4) Subsection increases a base offense fact, lines to the firearm Guidelines. be- ipso thing possessed by level facto if the very contain cause firearm Guidelines defendant is a stolen firearm. For example, provisions, suggested have similar —in if Luna had received stolen firearm in separate Guerrero en- and Armstead —that subsequently home and been convicted for possession of a hancements for stolen it, attempting to sell his sentence would have firearm in connection of a (b)(4) been enhanced under subsection be- enhancing with could constitute sought cause the firearm he to sell was sto- for the same con- defendant’s sentence twice assuming But he len. committed no now, question left duct. Until we have underlying felony, he would not re- have unanswered, addressing but we cannot avoid ceived an enhancement under subsection do, today. it head-on When we we conclude (b)(5). (b)(5) requires Subsection an increase permit separate that the firearm Guidelines when base offense level the firearm in being firearm’s enhancements for the question is somehow involved another felo- being possessed and for the same firearm’s (b)(5) ny language in offense.35 The demon- during underlying the commission of the felo- heightened safety public strates concerns ny offense. when,' for defendant example, a enters a clear, on We base this unam- there, and, building illegally possesses while biguous language firearm Guidelines.33 firearm, because it could be used to harm (b)(4) 2K2.1 calls enhancement occupants unexpected or an visitor. Un- And, although firearm was “[i]f stolen.” circumstances, potential der such application commentary prohibits a related increased, greatly thereby justifying harm circumstances, this subsection limited none the additional enhancement. present Note 12 to 2K2.1 this case. explains that the enhancement subsection Nonetheless, arguendo even if we assume a violation is barred cases of both enhancements con- § 922(j) section which Luna —the counting, the stitutes double result would convicted —if level offense is “the base recognized remain the same. have We (a)(7).”34 determined subsection prohibit the Guidelines do not double count- Luna’s base level offense determined ing except particular Guideline at however, (a)(4), so ex- under subsection Furthermore, expressly issue does so.36 ception apply. does not provide offense level “[t]he Guidelines hand, 2K2.1(b)(5), adjustments specific than one of- on the other from more an offense are cu- pos- “if the defendant fense characteristic within calls enhancement (added together) guide- unless the any in connection mulative sessed used (or only greater specifies the felony another Luna does not line that with offense.” 2K2.1 dispute greatest) is to be used.”37 Section applicability the this subsection to situation, regarding the provides that it no such limitations his but contains Vickers, 86, (5th posses- the firearms F.2d refers to offenses other than 33. United States v. 891 88 1989) sion). (noting Cir. the absence that in dis- cernable, intent, contrary the court follows the Guidelines). language clear Morris, 1136, 36. Cir.1997), - denied, (5th rt. U.S. ce 2K2.1, commentary U.S.S.G. n. 12. 34. 1546, (1998); United 140 L.Ed.2d 11, Hawkins, 69, F.3d Cir.1995), States Barlow, See United (5th Cir.1996) (unpublished) 1996 WL 762841 L.Ed.2d 198 (holding properly that the district court en- hanced defendant’s base offense level under 1.1, commentary felony n. 4. 37. U.S.S.G. 1B because “another offense” (b)(5). (b)(4) (b)(4) applies only and under subsection when the subsections

application of telling by that fact, contrast the already prior we find firearm had been to the specifically prohibits dou- burglary taking possession Guideline it.39 Focus- defendant’s application en- counting the of similar in ble ing on the the fact that Guideline is written Sentencing If the Commission hancements. tense, the Rowlett court reasoned past principles expressed in had wanted the (b)(4) that subsection was concerned not with equally to apply Guidelines way acquired in which the firearms were Guidelines, how to make knew particular their con- defendant but with happen. hold that the district We (stolen stolen) acquired.40 not dition when (b)(4) court’s of subsections and Row disagree holding with the in We (b)(5) prohibited did constitute double lett and its emphasis on the use of counting. (b)(4).41 in Rejecting tense subsection 2K2.1(b)(b) grammatical technicality, Application we choose instead (b)(4) to read in subsection the context of the As an alternative count the double ap entire firearms 2K2.1 Guideline. Section above, Luna contends that ing argument plies possession, receipt, to the unlawful improperly increased his of district court transportation Limiting ap firearms. 2K2.1(b)(4> “[i]f level ünder fense — (b)(4) plication of subsection to firearms that the firearms firearm was stolen” —because previously were a two- stolen would foreclose posses he acquired were not “stolen” who, level enhancement defendants during burgla of them the course of the sion example, lawfully-possessed steal a machine ry. support argument, Luna relies on To gun a neighbor, from violation of U.S.C. conclusion reached reasoning 922(o).42 v. Rowlett.38 hypotheti United States The defendant in our Tenth Circuit Rowlett court held that an enhancement example cal case could be for ille- The convicted 1994). Rowlett, Relying 38. 23 F.3d 300 Cir. Id. argued Askew that he should not receive the (b)(4) 39. Id. at 304. enhancement because the firearms were not stolen when he took of them. Id. holding, rejected argument 40. Id To its buttress Rowlett court at 1106. The court Askew proceeded Application in dicta to examine note Application and focused on an amendment provides which that the enhance- two level distinguish apply note 12 (b)(4) Rowlett (b)(4) applied ment in should not be subsection enhancement to Askew. Note 12 had been specified when the defendant is convicted under 922(u) amended in to include offense —an "involving offenses stolen firearms or ammuni- that addresses the manner which the firearm tion” the "base itself offense level takes acquired leading court to Askew con- — such conduct into account.” See U.S.S.G. (b)(4) clude subsection must now reference 2K2.1, (1993) (amended commentary n. 12 preexisting both the condition of the firearm and 1995, 1997, 1998). Appen- See also U.S.S.G. acquired. the manner in which it was Id. at C, Application dix amendment 522 for text of 1106-07. opinion. 12 at note the time of the Rowlett Be- fallacy we discern is the Askew court’s Application cause the listed in note offenses Rowlett, proposition reliance on an incorrect i.e., preexisting dealt with fire- condition of the Application prior being note as arms "stolen” and not the manner in which defendant, amended in referenced statutes dealt they acquired by were the court preexisting with the fire- condition of explained, ad- subsection must likewise Actually, arm. 26 U.S.C. preexisting dress the condition of the firearm. —which Rowlett, pre-amended included version of 23 F.3d at 304-05. pro- note 12 and has been included ever since— that, any person vides shall be unlawful for "[i]t urges reject holding 41. The us Government to the remove, obliterate, change, alter ... to the expressed in Rowlett for reasons in United States Askew, (M.D.Ala.1997). of a serial number or other identification F.Supp. We Askew, required by chapter.” §As does agree this not with in find the outcome but an firearm, choose, preexisting address the condition of the reasoning inherent flaw in- in its fails, stead, reasoning holding the in Askew as does the Rowlett reading to base our on an overall dicta to that of the effect. Guidelines. defendant in Askew was stealing convicted of firearms from a licensed 922(o) and, provided gun 922(u) provides, "Except pursuant during § 42.Section as dealer sen- to (2), tencing, paragraph be level it shall unlawful received a two enhancement under 2K2.1(b)(4) possess gun.” § person machine because the were stolen. to transfer or firearms gun under ted and another gal of a machine was convicted 922(o) Rowlett, but, holding § under the he federal committed the firearms of- after fense, a two-level enhancement could receive but before he was sentenced for the the ma- simply because firearms offense. gun when the defendant chine was not stolen correctly argued government, As the acquired it. this result antithetical We find precluded by previ- Luna’s contention is our the of the Guidelines. to overall scheme ous decision in States v. United Gooden.46 (1) (2) home, illegally Luna stole entered Gooden, we that a conviction held for a during firearms commission of the the the robbery that after the occurred commission (3) burglary, departed with the stolen “prior federal firearms offense was a possession. This course of guns con- 2K2.1(a)(4)(A) purposes conviction” for clearly application triggered duct sentence robbery defendant’s 2K2.1(b)(4).43 conclude that the dis- We imposed prior imposition to the of his properly applied court a two-level en- trict offense.47 sentence Even if (b)(4) § 2K2.1 to Luna’s hancement under disagree, we were inclined we to would not offense level.44 base liberty disregard to be of a panel prior absent an 4. Base Level Under this court interven- Offense 2K2.1(a)(J,)(A) ing Supreme amendment to or a the statute opinion.48 Court We therefore hold that the challenge Luna’s final to his sentence correctly court district calculated Luna’s of- to the calculation of his base relates offense 2K2.1(a)(4)(A). fense level under Luna level. contends that district court assessing erred his base offense level un 2K2.1(a)(4)(A), der which mandates a level III. prior felony 20 if the one defendant “had conviction of either a crime of violence or a CONCLUSION controlled substance offense.” Luna reasons, foregoing For hold that 18

that the use of the tense “had” indicates constitutional, 2K2.1(a)(4)(A) facially U.S.C. both apply intended to applied Additionally, only and as to Luna. we find felony when the other violent conviction prior to no reversible error occurred the commission the fire case, Aecording- offense.45 In court. arms eommit- Guidelines district (1994). reasoning supported by Our 127 L.Ed.2d 611 We further (which ambiguous applies) Applica- 1995 amendment still to do not find the term "stolen" to be expands argument. significantly reject tion note 12 that the use of and therefore (b)(4). subsection to note 12 Prior in- sentencing disregard structed courts en- Luna relies Circuit case of United on the Sixth (b)(4) if hancement subsection the defendant Barton, (6th Cir.1996), 100 F.3d 43 convicted under one enumerated of- "only which held that those convictions oc- fenses stolen firearms or altered/obli- prior cur to the commission of firearms of- terated serial numbers. Under 1995 amend- may against the defendant fense be counted ment, however, sentencing courts are instructed determining [under offense level base disregard if the defen- enhancement § 2K2.1]." Id. at 46. dant was convicted under one of enumerated offenses level and his base offense was calculated Cir.), denied, - U.S. 46. 116 F.3d 721 (a)(7), provision under subsection "catchall” L.Ed.2d 272 (a)(l)-(6) (8) applies among none C, applies. Appendix See U.S.S.G. amendment 724-25; McCary, Id. at accord qualifications required are 522. As two now (considering offenses result- (b)(4), disregard the the Sen- enhancement ing prior defendant’s sen- conviction tencing Commission has demonstrated an inten- setting tencing offense in on the federal firearms tion for more defendants receive the offense level under the defendant's base enhancement. 2K2.1). that, very additionally argues at the Wilson, least, 2K2.1(b)(4) ambiguous 48. United States v. and under the is Co., (5th Cir.1997); Evangeline Refining lenity, ambiguity of be Matter rule should resolved in his of (5th Cir.1989). Granderson, favor. United States v. 511 U.S. n. 12 are, specific, generic, in all is a not a but a ly, and sentence offense Luna’s conviction characteristic when the offense of conviction respects, firearm; knowingly possessing a stolen AFFIRMED. therefore, respect to particular with this of- conviction, generic fense of that offense char- DENNIS, Judge, concurring: Circuit implicitly acteristic would be excluded from fully except join opinion, in the court’s I category “specific of offense characteris- the II.B.3.(“Applieation of Part the tics” —in words the fact that fire- other 2K2.1(b)(4)”), I concur the as to which aggravate, would arm stolen not distin- following reasons. for the result guish qualify or conviction in the offense of 2K2.1(b)(4) provides: (2) respect; any and the base offense level (b) Specific Offense Characteristics already into account that the firearm takes stolen. 12, however, Application explicitly, Note (4) stolen, any had If firearm was or an carefully thoroughly provides that cer number, or serial in- altered obliterated involving tain cases stolen or of'convictions by 2 crease levels. spared altered a shall be defendant 2K2.1(b)(4) applies agree I that the from enhancement a defendant convicted know- sentence his base offense is determined under weap- if the ingly possessing a stolen firearm 2K2.1(a)(7). mitiga extension of a firearm” at time of on was “stolen the the only tion to cases which the base level is conviction, regardless who com- offense of (a)(7) clearly determined under subsection theft, i.e., the that mitted it is irrelevant implies be that it shall withheld when the illegal possessor also whether any base level is determined under other Application In the Note thief. absence subsection; thus, two levels must be added if however, I do think the unam- Guideline any firearm was stolen or had an altered expresses every an biguously intention that number, serial unless base level is deter knowingly possessing defendant convicted (a)(7). require mined under subsection This a stolen firearm violation of 18 U.S.C. ment troublesome when offense of shall receive a level increase possession of a or conviction is stolen altered offense level. stated reason contrary, Applica- if it were not for On enhancement is an essential element 12, I tion Note would conclude that offense, aggravating factor basic not an in that Guideline itself should be read to mean crime, volved the commission of involving of an defendant convicted offense provides no for in therefore evident basis in- stolen firearm would receive a level However, creasing punishment. “com if crease involved the mentary in that the Guidelines Manual inter had an offense conviction altered or obli- guideline prets explains or is authoritative number, and terated serial that a defendant or a federal unless violates Constitution convicted an offense an altered statute, with, plainly or a is inconsistent obliterated number receive serial would of, reading guideline.” erroneous that Stin only any if like increase firearm involved was States, 36, 38, son v. United (Of course, a convicted stolen. defendant L.Ed.2d Because applies a crime which Guideline any flaw say I cannot in the rationale of by statutory does not definition involve a commentary the Guideline or its reaches firearm, stolen or altered would also receive respectfully proportions, these I concur in 2K2.1(b)(4), an increase levels if result. any firearm involved was stolen or had an number.) majority’s agree argu- I cannot with the altered obliterated serial Application ment “the overall scheme Guide- meaning absence of Note gun hypothetical pro- logically lines” and the machine reasonably would followbecause (1) support fact result. that a firearm is a firearm vide additional the 2 Note I believe Application Without required. not be

level increase would America,

UNITED STATES

Plaintiff-Appellee, MUHAMMAD,

Ruth Defendant-

Appellant. 98-10960.

No. Appeals, Court of

United States

Fifth Circuit. 15, 1999.

Jan.

Case Details

Case Name: United States v. Norberto B. Luna

Court Name: Court of Appeals for the Fifth Circuit

Date Published: Jan 15, 1999

Citation: 165 F.3d 316

Docket Number: 97-41265

Court Abbreviation: 5th Cir.