F I L E D
United States Court of Appeals
Tenth Circuit
UNITED STATES COURT OF APPEALS
APR 22 1997
TENTH CIRCUIT
PATRICK FISHER
Clerk
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
KEITH LEE BENTLEY, also know as No. 96-3383
Duane Martin Anderson, also known as (D.C. No. 96-CR-40043)
Duane Anderson, also known as Dewayne (District of Kansas)
Anderson, also known as Keith Vann, also
known as Martin Bentley,
Defendant-Appellant.
ORDER AND JUDGMENT*
Before SEYMOUR, Chief Judge, PORFILIO, Circuit Judge, and MURPHY, Circuit
Judge.
The parties have advised us oral argument is not necessary in this appeal.
Therefore, the matter is submitted upon the briefs. Fed. R. App. P. 34(a).
The single issue for our consideration is whether the counts of possession of a
firearm by a felon and possession of PCP should have been grouped under U.S.S.G.
*
This order and judgment is not binding precedent, except under the doctrines of
law of the case, res judicata, and collateral estoppel. This court generally disfavors the
citation of orders and judgments; nevertheless, an order and judgment may be cited under
the terms and conditions of 10th Cir. R. 36.3.
§ 3D1.2 for sentencing purposes. The district court held the two offenses pose threats to
distinct and separate societal interests and refused to group them, imposing the provisions
of Guideline § 3D1.4 instead. We agree.
Very little is disputed in this case. Defendant was arrested with a vial of PCP in
one pocket and a pistol in another. He pled guilty to both counts and agreed with the
calculation of his sentencing guidelines in all but one particular. He contended the two
counts actually involved the same victim - society as a whole - and arose from the same
transaction - that is, both offenses were concurrently committed. Upon that premise, he
argued the offenses should have been grouped under U.S.S.G. § 3D1.2(a) because both
crimes offended the same societal interests, which he defines as protection from violence.
The district court disagreed, holding, “the public interest served by making possession of
narcotics unlawful is palpably different from the ostensible danger avoided by precluding
a felon from possessing a firearm.” The appeal presented to us is a test of this reasoning.
Defendant’s argument is that there is no victim against whom his criminality was
directed and his acts were committed at the same time; therefore, it only stands to reason
that the offenses are properly grouped. He adds that drugs and guns are frequently the
product of the violence from which society seeks protection. However, grouping is
predicated upon the principle that “[a]ll counts involving substantially the same harm
shall be grouped together in a single Group.” U.S.S.G. § 3D1.2. (emphasis added). Thus,
this case devolves to the question of whether protecting society as a whole from the
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dangers inherent in drug use and possession of weapons by felons is the same. If it is,
defendant is correct, and the offenses should have been grouped to reduce his sentencing
range by two months.
We have already considered a similar question. In United States v. Baeza-Suchil,
52 F.3d 898, 899-90 (10th Cir. 1995), a case also arising from the District of Kansas,1 we
held the offenses of aggravated illegal reentry after deportation and felon in possession of
a firearm did not require grouping because they pose “threats to distinct and separate
societal interests.” (Quoting United States v. Barron-Rivera, 922 F.2d 549, 555 (9th Cir.
1991)). We concluded the reentry offense addresses the enforcement of immigration laws
while the firearms crime addresses the need to keep weapons from those unqualified to
use them. We think the similar rationale applies here.
The public’s interest in protecting itself from the harm visited by the ingestion of
controlled substances is absolutely clear and needs no explanation. Moreover, that
interest is not the same as the need to keep guns out of the hands of felons. What those
people can do to society with weapons is not even substantially the same as what drug
consumption does to the populace. It is only through grammatical gymnastics that one
can contend the offenses constitute the “same harm” that provokes grouping under
§ 3D1.2. As the district court so aptly pointed out, if those offenses constitute the same
1
Curiously not cited by defense counsel despite her having been counsel in that
case as well.
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threat, “virtually all crimes would be grouped,” because all crimes result in harm to the
well being of society. See United States v. Pledger, Nos. 93-3105, 93-3112, 1994 WL
485823 (10th Cir. Sept. 9, 1994) (unpublished).
AFFIRMED.
ENTERED FOR THE COURT
John C. Porfilio
Circuit Judge
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