United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued September 9, 1998 Decided October 23, 1998
No. 97-3133
United States of America,
Appellee
v.
Mark Anthony Pugh,
Appellant
Appeal from the United States District Court
for the District of Columbia
(No. 97cr00153-01)
Leslie B. Holt, appointed by the court, argued the cause
and filed the briefs for appellant.
Thomas C. Taylor, Assistant U.S. Attorney, argued the
cause for appellee. With him on the brief were Wilma A.
Lewis, U.S. Attorney, John R. Fisher and Thomas C. Black,
Assistant U.S. Attorneys.
Before: Edwards, Chief Judge, Ginsburg and Rogers,
Circuit Judges.
Opinion for the Court filed by Chief Judge Edwards.
Edwards, Chief Judge: This case presents a narrow ques-
tion of first impression in this circuit: whether the term
"prior felony convictions," in the context of calculating a
defendant's base offense level under United States Sentenc-
ing Guidelines Manual s 2K2.1(a), includes a conviction based
on an offense that was committed after the commission of a
federal firearms offense but before sentencing on the fire-
arms offense. Because we find the guideline language ambig-
uous and the commentary clear, we apply the commentary
and reject appellant's challenge to the sentence here in
dispute.
I. Background
The facts in this case are not disputed. In 1994, the
defendant-appellant, Mark Pugh, was convicted in Superior
Court of a felony drug offense ("1994 conviction"). In Febru-
ary 1995, Pugh exchanged several bags of crack cocaine for a
stolen machine gun, which he then sold for cash ("instant
offense"). In March 1995, Pugh was involved in an alterca-
tion that resulted in a felony assault conviction in Superior
Court ("1995 conviction"). In October 1995, Pugh was sen-
tenced for the assault. In April 1997, a federal grand jury
indicted Pugh for his role in the 1995 machine gun transac-
tion. Pugh then pled guilty to two counts of the indictment,
Unlawful Possession of a Machine Gun, in violation of 18
U.S.C. s 922(o), and Unlawful Possession of a Firearm by a
Convicted Felon, in violation of 18 U.S.C. s 922(g)(1). At
sentencing on the instant offense, the District Court included
both the 1994 and the 1995 convictions as "prior felony
convictions" and accordingly assigned Pugh a base offense
level of 26, pursuant to s 2K2.1(a)(1).1 Pugh's sole claim on
appeal is that the District Court should have assigned a base
__________
1 The 1995 version of the Guidelines was in effect at the time of
sentencing.
offense level of 22, pursuant to s 2K2.1(a)(3), because he had
not yet been convicted of the assault, and indeed had not yet
committed the assault, when he committed the instant of-
fense. Therefore, he argues, the 1995 conviction was not a
"prior felony conviction" under s 2K2.1(a).
II. Analysis
Section 2K2.1(a) prescribes the base offense level for un-
lawful possession of a firearm in relevant part as follows:
(1)26, if the offense involved a firearm described in 26
U.S.C. s 5845(a) or 18 U.S.C. s 921(a)(30), and the
defendant had at least two prior felony convictions of
either a crime of violence or a controlled substance
offense; or
...
(3)22, if the offense involved a firearm described in 26
U.S.C. s 5845(a) or 18 U.S.C. s 921(a)(30), and the
defendant had one prior conviction of either a crime
of violence or controlled substance offense.
Pugh concedes that the 1994 conviction constitutes a prior
conviction for the purposes of s 2K2.1(a) and that the 1995
conviction was a crime of violence. He argues on appeal,
however, that the plain language of s 2K2.1(a)(1) precludes
consideration of the 1995 conviction as a prior felony convic-
tion, because he did not commit the March 1995 offense until
after the commission of the instant offense. The Government
responds that the commentary to s 2K2.1 clearly contem-
plates the inclusion of offenses committed after the instant
offense, as long as the defendant was convicted prior to his
sentencing on the instant offense. Pugh did not object to his
sentence in the District Court, so our review is for plain
error. See United States v. Robinson, 86 F.3d 1197, 1199
(D.C. Cir. 1996).
The convergence of several factors makes this a perplexing
case: first, s 2K2.1(a) on its face admits of the construction
advanced by Pugh; second, Pugh's argument, at least as a
matter of common sense, is quite persuasive (and it finds
support in at least one circuit court decision); and, finally, the
commentary underlying s 2K2.1(a) firmly supports the Gov-
ernment's position and is plainly at odds with the position
espoused by Pugh. For the reasons that follow, we are
constrained to follow the commentary.
A.The Language of s 2K2.1(a)
Calculation of Pugh's base offense level under s 2K2.1(a)
turns on whether he "had at least two prior felony convic-
tions." U.S.S.G. s 2K2.1(a)(1). At the time Pugh committed
the instant offense, he had only one prior felony conviction.
However, at the time of his sentencing on the instant offense,
he had two prior felony convictions. Section 2K2.1(a) does
not specify which is the relevant point in time to evaluate the
defendant's criminal history, but Pugh contends that the
language of s 2K2.1(a) supports only one interpretation. He
argues that the Commission's use of the past tense verb
"had," along with the term "prior," clearly indicates that the
Commission only intended the sentencing court to include
convictions that the defendant "had" at the time he commit-
ted the instant offense.
Pugh's claim is not without merit. If the Commission had
intended the calculation of a defendant's base offense level to
include all post-offense convictions, it easily could have direct-
ed the sentencing court to evaluate how many prior felony
convictions the defendant "has" at the time of sentencing,
rather than how many he "had" at some unspecified point in
time. Indeed, one circuit court opinion that examines the
language of s 2K2.1(a) concludes that the Commission's
choice of verb tense "unambiguously indicates that the rele-
vant period for considering prior convictions is not open-
ended," and that the "most natural reading of the guideline"
is that only pre-offense convictions count for the purposes of
s 2K2.1(a). United States v. Barton, 100 F.3d 43, 45 (6th
Cir. 1996).
The use of the word "prior" also supports Pugh's interpre-
tation. The guideline does not specify whether "prior" refers
to the time of the offense or the time of sentencing, but
"prior" obviously refers to convictions obtained before some
event. Given that s 2K2.1 defines the base offense level for
the instant offense, it is not unreasonable to assume that the
relevant event is commission of the instant offense. See id.
We are inclined to agree that Pugh's interpretation of
s 2K2.1(a), standing alone, is the most plausible reading.
However, we do not agree with the Sixth Circuit that the
language is unambiguous. Without a point of reference, we
do not know for sure whether "had" and "prior" refer to the
time of the offense or the moment of sentencing. The Fifth
Circuit opined that "use of the past tense might be an
intuitive basis for determining that the guideline is referring
to the earlier point in time, i.e., commission of the offense."
United States v. Gooden, 116 F.3d 721, 724-25 n.5 (5th Cir.
1997). However, use of the past tense may simply indicate
that any conviction sustained before the moment of sentenc-
ing should be included in the base offense level calculation.
If the guideline language included a qualifying phrase, such
as "the defendant had at least two prior convictions at the
time of the offense," this would be an easy case. But without
such qualifying language, we must look to the commentary
for guidance. See id.
B.The Commentary to s 2K2.1
Application note 5 to s 2K2.1 directs the court to applica-
tion note 3 of s 4B1.2 for the definition of "prior felony
conviction(s)." U.S.S.G. s 2K2.1, comment. (n.5). That ap-
plication note defines "felony" but does not shed light on the
definition of "prior" or use of the verb "had." See U.S.S.G.
s 4B1.2, comment. (n.3). The remainder of application note 5
to s 2K2.1, however, provides that "[f]or purposes of deter-
mining the number of [prior felony] convictions under
[s 2K2.1(a)], count any such prior conviction that receives any
points under s 4A1.1 (Criminal History Category)." U.S.S.G.
s 2K2.1, comment. (n.5).
Following the direction of application note 5, we look to
s 4A1.1 to see whether Pugh's 1995 conviction would receive
any criminal history category points. Section 4A1.1 adds
points to a defendant's criminal history score for "each prior
sentence of imprisonment exceeding one year and one
month." U.S.S.G. s 4A1.1(a). The commentary to s 4A1.2
defines "[p]rior sentence," as used in s 4A1.1, as "a sentence
imposed prior to sentencing on the instant offense." U.S.S.G.
s 4A1.2, comment. (n.1). Pugh's sentence on the 1995 convic-
tion was imposed well before his sentencing on the instant
offense. Thus, he would (and, in fact, did) receive points for
the 1995 conviction under s 4A1.1. Pursuant to application
note 5 to s 2K2.1, then, Pugh's 1995 conviction counts as a
prior felony conviction for the purposes of s 2K2.1(a).
Pugh contends that this journey through the Guidelines
commentary bypasses s 4B1.2(3), which specifically defines
the term "two prior felony convictions" as meaning that "the
defendant committed the instant offense subsequent to sus-
taining at least two felony convictions." U.S.S.G. s 4B1.2(3).
If applicable to his case, this provision would clearly support
Pugh's position. However, the purpose of s 4B1.2 is to
define the terms of s 4B1.1, not s 2K2.1(a). The commen-
tary to s 2K2.1 says absolutely nothing about s 4B1.2(3).
See United States v. Krzeminski, 81 F.3d 681, 683-84 (7th
Cir. 1996).
C.Application of Stinson v. United States
It is undisputed that the commentary in the Guidelines
Manual serves to "interpret the guideline[s] or explain how
[they are] to be applied." U.S.S.G. s 1B1.7. In Stinson v.
United States, 508 U.S. 36 (1993), the Supreme Court estab-
lished the proper method of interpreting the Guidelines when
the commentary appears to contradict the language of a
particular provision. "[C]ommentary in the Guidelines Manu-
al that interprets or explains a guideline is authoritative
unless it violates the Constitution or a federal statute, or is
inconsistent with, or a plainly erroneous reading of, that
guideline." Id. at 38. Only when there is a "flat inconsisten-
cy," where the "commentary and the guideline it interprets
are inconsistent in that following one will result in violating
the dictates of the other," will the plain language of the
guideline prevail. Id. at 43.
We believe that the language of s 2K2.1(a) tends to sup-
port Pugh's interpretation but is nevertheless ambiguous with
respect to whether his 1995 conviction constitutes a prior
felony conviction. Under the commentary, however, the 1995
conviction clearly does constitute a prior felony conviction.
The issue is whether there is a "flat inconsistency" between
the guideline and its commentary such that the language of
the guideline prevails under Stinson. Because we do not
think there is a flat inconsistency, the commentary is authori-
tative.
In Robinson, we said, citing Stinson, that "[c]ommentary is
not 'inconsistent' with a guideline simply because it adopts
what we might regard as one of the less likely interpretations
of a guideline." Robinson, 86 F.3d at 1199. Here, we do
regard the commentary's interpretation of s 2K2.1(a) as the
less likely interpretation, both as a matter of common sense
and in light of the purpose of s 2K2.1, which is to determine
the defendant's base offense level. Calculation of the base
offense level in Chapter Two of the Guidelines Manual is an
inquiry that "pertains to offense conduct." U.S.S.G. Ch.2,
intro. comment. As the Barton court noted, "[c]onceptually,
it is difficult to see how unrelated post-offense criminal
actions can retroactively render the original federal offense
more serious." Barton, 100 F.3d at 45. Nevertheless, where,
as here, we find the guideline language ambiguous, we are
bound by Stinson to follow the commentary.
III. Conclusion
For the reasons set forth above, we affirm Pugh's sentence.
So ordered.