M. Jay Farber, Asst. U.S. Atty Oklahoma City, Okl. (Timothy D. Leonard, United States Attorney, with him on the brief), for plaintiff-appellee.
Gary W. Briggs, Lacy & Briggs, Oklahoma City, Okl for defendant-appellant.
Before BRORBY, BARRETT, and EBEL, Circuit Judges.
EBEL, Circuit Judge.
Appellant pled guilty to the charges of being a Felon in Possession of a Firearm, 18 U.S.C. Sec. 922(g)(1), and Possession of an Unregistered Firearm, 26 U.S.C. Sec. 5861(d). The indictment described the crimes as occurring on or around November 30, 1989.
The defendant appeals his sentence by claiming that 1) if the district judge had used the correct version of the Sentencing Guidelines no enhancement could have occurred; 2) that enhancing his sentence to reflect the state crime of aggravated assault is a misapplication of the guidelines because it essentially results in the Sentencing Commission exceeding its authority to make criminal categories for federal crimes only; and 3) that the enhancement for the drive-by shooting constituted double jeopardy as the defendant was already sentenced in state court for aggravated assault.
We disagree with all three assertions and treat them in order.
I. Whether the Correct Version of the Guidelines Was Used
The defendant claims that in finding a criminal category of 20 rather than 16, the district court used the cross reference provided by the superseded, pre-November 1, 1989 version of the Sentencing Guidelines. That version read: "If the defendant used the firearm in committing or attempting another offense, apply the guideline for such other offense or Sec. 2X1. 1 (Attempt or Conspiracy), if the resulting offense level is higher than that determined above. "See Sec. 2K2. 2(c)(1) of the pre-November 1, 1989 Sentencing Guidelines. (Emphasis added). The defendant argues that because his crime, indictment, and sentence all occurred after November 1, 1989, he should have been sentenced under the newer version of the Guidelines which does not include the "for such other offense or" portion of the cross reference. See Suppl. Authority of Appellant at 1.
We agree with the defendant that because the crime, indictment, and sentencing all occurred after November 1, 1989, the correct version of the Guidelines to be applied to the defendant's case is the one that became effective on November 1, 1989. However, the change that defendant noted which took place between the two versions--the deletion of the phrase "for such other offense, or"--does not assist defendant. Both versions call for cross reference to Sec. 2X1. 1 and through that section the court is directed to Sec. 2A. 2. 2 ("Aggravated Assault"). Although the defendant was not convicted, and is not here being sentenced, for aggravated assault, Sec. 2K2. 1(c)(2) requires that he be sentenced for his firearm convictions by application of the sentence that would have been imposed for whatever underlying offense conduct he committed with the illegal firearm if that would lead to a greater sentence.
The defendant claims "nothing in the language of Sec. 2X1. 1 achieves the result obtained at sentencing, i. e the enhancement for the gun's use in aggravated assault. "See Suppl. Authority of Appellant at 2. Defendant makes this assertion presumably because Sec. 2X1. 1 is entitled "Attempt, Solicitation or Conspiracy . . . " and in this case the gun was actually used for an assault. However, we are not limited to the title of Sec. 2X1. 1, particularly where the statutory scheme only references Sec. 2X1. 1 as a conduit to direct the court to the underlying offense. Indeed, section Sec. 2X1. 1(a) instructs the court to look to "the base offense level from the guidelines for the object offense. . . . "This precise issue was presented to the Seventh Circuit in United States v. Madewell, 917 F.2d 301 (7th Cir. 1990). The court there
Therefore, in a case where the gun illegally possessed was used in an aggravated assault, the district court correctly turned to the aggravated assault provisions of Sec. 2A2. 2, where it found a base level of 15, plus 5 for the gun's discharge--totalling to 20 offense points. Cf. United States v. Smith, 910 F.2d 326 329-30 (6th Cir. 1990) (referring to commentary to Sec. 2K2. 1 of the pre-November 1, 1989 sentencing guidelines in holding that Sec. 2K2. 2 of the guidelines apply to state crimes as well as federal); United States v. Perez, 897 F.2d 751 752-53 (5th Cir. 1990) (affirming enhancement under pre-November 1, 1989 guideline for aggravated assault conviction); United States v. Shinners, 892 F.2d 742 743 (8th Cir. 1989) (same).
Therefore, no error was committed in the district court's sentencing that cross referenced the sentence which would have been imposed for aggravated assault.
II. Whether Enhancement for a State Crime is a Misapplication of the Guidelines or Exceeded the Commission's Authority
Defendant argues that the district court's use of the state offense of aggravated assault to enhance his firearms sentence was "not a proper application of the guideline. . . . because such an application is beyond what was intended by the Commission. . . . Further, such an application is beyond the scope of authority granted to the Commission by Congress. "See Appellant's Br. at 6. Defendant argues that it is objectionable to "use . . . a crime directly punishable only under state law in determining the offense level, " see Appellant's Reply Br. at 1, because it impermissibly exceeded the Congressional mandate to "authorize the sentencing of 'a defendant who has been found guilty of an offense described in any federal statute. ' "See Appellant's Br. at 6, quoting, 18 U.S.C. Sec. 3551(a) (Emphasis added. )
Most of the cases which have dealt with the cross references have not addressed this issue, see Madewell, supra; United States v. Pologruto, 914 F.2d 67 (5th Cir. 1990); Perez, supra; Shinners, supra. However, one case, United States v. Smith, supra, did address the same argument defendant raises here. In Smith, supra, the government had argued that the defendant's possession, and use in a state crime, of a sawed-off shotgun exposed the defendant to enhancement for aggravated assault through the pre-November 1, 1989 Sec. 2K2. 2(c) cross reference. There,
"the district court rejected the enhancement argument of the government with the observation that the cross reference provisions of Sec. 2K2. 2 now consolidated into Sec. 2K2. 1 apply only to a federal offense of aggravated assault and not to a state offense of aggravated assault. "Id. at 329.
The Sixth Circuit reversed, finding that
the language of the guideline, the policy behind the guidelines, the commentary to other related guidelines, the definition of relevant conduct and the other cases that have considered the question all indicate that the cross reference applies to state as well as federal offenses. Id. at 330.
We find the Sixth Circuit's conclusion correct. Congress has not, through the cross reference clause, federalized a state crime. Instead, the cross reference merely allows the sentence for the charged crime--in this case illegal gun possession--to reflect the reality of the crime. For instance, we think it obvious that the culpability--and the resultant punishment--of a person who passively possesses a gun is different than the person who possesses that same gun but also uses it in a drive-by shooting. The reality of this truism is reflected in the current cross reference at Sec. 2k2. 1(c)(2) which, contrary to what defendant claims, is really no different than other methods of sentence enhancement resulting from the commission of state
We think it natural, therefore, that the Sentencing Guidelines should provide a method of enhancing offense points as well. Additionally, we cannot conclude that the Sentencing Commission exceeded its congressional mandate. To the contrary, the Commission has simply authorized the sentence of "a defendant who has been found guilty of an offense described in a federal statute" in order to reflect the defendant's true degree of culpability. See 18 U.S.C. Sec. 3551(a).
III. The Double Jeopardy Claim
Having decided the first two issues against the defendant, his claim of being put in double jeopardy need not detain us long. The government is correct that "two separate sovereigns are involved, the State of Oklahoma and the United States of America. "See Appellee's Br. at 11. We agree that the law "is well settled that a federal court can prosecute and punish an individual for the same crimes originally brought in state court. "Id. See also United States v. Lanza, 260 U.S. 377, 382, 43 S. Ct. 141, 142, 67 L. Ed. 314 (1922) ("An act denounced as a crime by both national and state sovereignties is an offense against the peace and dignity of both and may be punished by each. ").
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