IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 99-50568
Summary Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
NOBLE ROME,
Defendant-Appellant.
Appeal from the United States District Court
for the Western District of Texas
March 17, 2000
Before HIGGINBOTHAM, DeMOSS, and STEWART, Circuit Judges.
PER CURIAM:
I
Noble Rome pleaded guilty to conspiracy to steal firearms, in
violation of 18 U.S.C. § 922(u). The stipulated factual basis for
his plea explained that, beginning on or about February 7, 1998,
Rome agreed with another person to break into Kramer’s Wood and
Metal Works in Fredericksburg, Texas, to steal firearms. Rome
attempted to break into Kramer’s on February 9 but was interrupted
by the owner and fled with his accomplice. Had they not been
interrupted and had they gained access to a locked safe, Rome and
his accomplice would have stolen firearms within Kramer’s business
inventory.1
The PSR found that on February 7, 1998, Rome had attempted to
break into another business, Texas Jack’s, with his accomplice in
1
The stipulated factual basis does not state how many guns
Rome and his accomplice intended to steal; all references to the
number of guns involved were stricken from the factual basis.
order to steal firearms. During the course of the attempted
robbery, Rome set off the alarm, and he and his accomplice fled.
The PSR stated that, had they not been interrupted by the alarm,
Rome and his accomplice “would have stolen about 70 firearms that
were stored in glass cases and were hanging on the wall at this
business.” The PSR also found that, had they not been interrupted
during the attempted robbery of Kramer’s and had they gained access
to a locked safe, Rome and his accomplice “would have stolen 17
firearms within Kramer’s business inventory.” Rome told the
probation officer preparing the PSR that he had committed the
crimes because he was addicted to drugs and needed the money to buy
drugs.
The PSR assessed Rome a base offense level of 12, pursuant to
U.S. Sentencing Guidelines Manual § 2K2.1(a)(7). This was enhanced
by six levels, pursuant to § 2K2.1(b)(1)(F), based on the
determination that Rome’s offense involved more than 50 firearms.
The PSR assessed another two-level enhancement, pursuant to §
3B1.4, because Rome used a juvenile accomplice, but it also awarded
him a three-level acceptance-of-responsibility reduction. Rome’s
resulting total offense level was 17, which, with a criminal
history score of II, subjected him to a guidelines range of 27 to
33-months of imprisonment. Absent the enhancement, his offense
level would have been 12, which would have subjected him to a
guidelines range of only 12 to 18 months’ imprisonment.
Rome objected to the six-level adjustment pursuant to §
2K2.1(b)(1)(F), asserting that the facts upon which the adjustment
was based were purely speculative. He urged that the government
had failed to establish any specific intent on his part to steal
all of the guns in the inventories of the stores he had conspired
to burglarize. Rome alleged that there was no evidence that he and
his accomplice were even aware that there were 87 guns at Kramer’s
2
and Texas Jack’s. The government countered that Rome had conspired
to steal guns and that, had he not been interrupted, he would have
in fact stolen guns. It argued that, at Texas Jack’s, there were
70 guns which were readily available; thus, the government
contended, it was logical to assume that Rome and his accomplice
could have taken what was plainly in view.
The district court overruled Rome’s objection, stating,
. . .the defendant had agreed with another
person to break into and steal firearms from
two establishments. The Court, for the
record, will find that the total of 87
firearms would have been stolen if the
burglary had not been or burglaries had not
been interrupted. So the Court concurs with
the probation officer’s calculations of the
offense level, which includes a six-level
increase for the number of weapons involved in
this offense.
The district court adopted the findings and conclusions
contained in the PSR and sentenced Rome to 33-months imprisonment,
followed by a three-year supervised-release period. Rome filed a
timely notice of appeal.
II
A defendant may appeal a sentence imposed under the sentencing
guidelines if the sentence “(1) was imposed in violation of law;
(2) was imposed as a result of an incorrect application of the
sentencing guidelines; or (3) is greater than the sentence
specified in the applicable guideline range . . . .” 18 U.S.C.
§ 3742(a). This court reviews the sentencing judge’s application
of the sentencing guidelines de novo and accepts the sentencing
judge’s findings of fact unless they are clearly erroneous. United
States v. Rodriguez-Guzman, 56 F.3d 18, 20 (5th Cir. 1995). A
district court’s findings of fact will be deemed clearly erroneous
3
only if the reviewing court is left with the definite and firm
conviction that a mistake has been made. United States v. Graves,
5 F.3d 1546, 1556 (5th Cir. 1993).
Rome challenges the six-level increase, pursuant to §
2K2.1(b)(1)(F), asserting that the district court’s determination
that he would have taken 87 guns had he been successful in entering
the targeted businesses is clear error. Rome argues that the
government failed to present any evidence that he specifically
intended to take 87 firearms and thus contends that the enhancement
did not apply.
In this case, the PSR does state the Rome and his partner
“would” have stolen all the guns if they had not been interrupted.
The district court relied on this information. When a district
court has relied on information from a PSR, the defendant bears the
burden of demonstrating that the information is unreliable or
untrue. United States v. Vital, 68 F.3d 114, 120 (5th Cir. 1995).
If a defendant presents no rebuttal evidence, the facts contained
in the PSR may be adopted without further inquiry so long as the
facts rest on an adequate evidentiary basis. United States v.
Alford, 142 F.3d 825, 832 (5th Cir.), cert. denied, 119 S. Ct. 514
(1998).
A PSR generally bears sufficient indicia of reliability to be
considered as evidence by a sentencing judge when making factual
determinations. United States v. Narviz-Guerra, 148 F.3d 530, 537
(5th Cir.), cert. denied, 119 S. Ct. 601 (1998). An exception is
made, however, when the PSR simply gives “a recitation of the
conclusions of . . . the prosecutor.” United States v. Elwood, 999
F.2d 814, 817 (5th Cir. 1993).
4
In this case, the statement that the defendant and his
accomplice would have stolen all the guns if they had not been
interrupted was amended to the PSR only at the request of the
government. “Bald, conclusionary statements do not acquire the
patina of reliability by mere inclusion in the PSR,” through the
request of the prosecutor. See id. at 817-18. Thus, these
statements are insufficient standing alone to support the
enhancement unless otherwise supported by the record.
The guideline for a conspiracy conviction mandates that the
base offense level from the guideline for the substantive offense2
be used, “plus any adjustments from such guideline for any intended
offense conduct that can be established with reasonable certainty.”
§ 2X1.1(a); see United States v. Waskom, 179 F.3d 303 (5th Cir.),
cert. denied, 120 S. Ct. 547 (1999). The burden of proof is on the
government. United States v. Ayala, 47 F.3d 688, 689 (5th Cir.
1995). The application notes explain:
the only specific offense characteristics from
the guideline for the substantive offense that
will apply are those that are determined to
have been specifically intended or actually
occurred. Speculative offense characteristics
will not be applied. For example, if two
defendants are arrested during the
conspiratorial stage of planning an armed bank
robbery, the offense level ordinarily would
not include aggravating factors regarding
possible injury to others, hostage taking,
discharge of a weapon, or obtaining a large
sum of money, because such factors would be
speculative. . . . In an attempted theft, the
value of the items that the defendant
attempted to steal would be considered.
§ 2X1.1, comment (n.2) (emphasis added).
2
The substantive offense is the offense that the defendant
was convicted of conspiring to commit. See § 2X1.1, comment (n.2).
5
The substantive offense of theft of firearms provides for a
base offense level of 12. See § 2K2.1(a)(7). Subsection (b) of
that guideline, entitled “Specific Offense Characteristics,”
permits incremental increases based on the number of firearms
involved in the offense. See § 2K2.1(b)(1)(A)-(F). If the theft
involved 50 or more guns, six levels are added. § 2K2.1(b)(1)(F).
Rome argues that the application of this enhancement was error
because the government failed to present any evidence to show “to
a reasonable certainty” how many firearms he intended to steal, as
is required by § 2X1.1(a). He asserts that the enhancement was
based upon speculation, which is prohibited by the commentary to §
2X1.1. Rome contends that the government did not present any
evidence to show that he knew how many guns were in the stores,
explain how he and his accomplice planned to carry them away, or
specify any details about the conspiracy which would demonstrate
the requisite intent. He asserts that the probation officer’s and
district court’s finding that he would have taken all of the guns
in each store confused intent with capability, i.e. that he could
have taken all of the guns, not that he in fact intended to do so.
The government argues that the enhancement was not error. The
government renews its assertion that because there were a total of
87 guns in the stores Rome attempted to burglarize and because he
confessed that he would have stolen guns from those stores, it
follows that Rome would have taken all of the guns in the stores.
The government contends, for the first time on appeal, that given
Rome’s confessed motive (supporting his drug habit) and his prior
record of burglaries, it is reasonable to believe that he and his
accomplice would have taken all of the firearms in both stores.
6
Conversely, the government urges, it is illogical to conclude that,
had they gained entry, Rome and his accomplice would have limited
themselves to only a few firearms. The government argues that
because there were two men and a getaway car, Rome and his
accomplice could have taken more than 50 firearms, had the
burglaries been successful.
There are few cases which specifically address the interplay
between § 2X1.1(a) and § 2K2.1(b) or the arguments raised in this
appeal. Rome relies on United States v. Waskom, 179 F.3d 303 (5th
Cir. 1999). In Waskom the defendants were convicted of conspiracy
to rob an armored car and they received a two level increase for an
intent to steal the property of a financial institution. Id. at
314. There was clear evidence, however, that armored cars usually
contain the property of financial institutions (and not just
private payrolls and receipts), and that the defendants had
conducted surveillance on the armored car during its previous
pickups and deliveries to banks. Id. Waskom demonstrates that the
determination about the conspirators’ intent to commit specific
offense conduct can be linked with the specificity of their plan
and their awareness of details about their target. In the current
case, however, there was no evidence that the defendant and his
accomplice conducted surveillance, knew anything about how many
guns were kept at the targeted businesses, or had any plan other
than to steal some guns.
The government relies on United States v. Chapdelaine, 989
F.2d 28, 35 (1st Cir. 1993), in which a defendant was convicted of
conspiracy to rob an armored truck. In that case, the defendant’s
enhancement was based on the finding that the intended loss was
7
$1,000,000, which represented the total amount of money in the
truck. Id. The First Circuit upheld the enhancement despite the
fact that there was no direct evidence showing that the defendant
specifically intended to steal all $1,000,000, because the comments
to § 2X1.1 allow consideration of the entire value of the item that
the defendant attempted to steal. Id. In Chapdelaine, however,
the defendant did not challenge the finding of an intent to take
all of the money, since he was found with a large green laundry
bag, arguably evidencing a plan to steal as much money as could
possibly be carried. Instead, the defendant simply argued that the
proposed enhancement was improper because no robbery had actually
occurred and thus any loss was merely speculative. Id. at 35.
In the end, the government’s attempt to justify a six-level
enhancement in this case rests solely on the fact that one of the
stores had more than fifty guns on display and it would have been
possible for Rome and his juvenile accomplice to load them all into
a car if they had tried to. This alone, however, is clearly
insufficient to demonstrate the requisite intent with ‘reasonable
certainty’; instead, it is the type of speculative inference that
the sentencing guideline comments specifically disapprove.
Similarly, Rome’s addiction to drugs and his prior history of
committing burglaries do not constitute evidence of his intent to
steal all of the guns at both stores. A close look at his criminal
history instead suggests that Rome did not intend to steal the
stores’ entire inventories: historically, Rome stole only a small
number of items at a time to support his drug habit. Similarly,
the fact that Rome and his accomplice drove a car to the attempted
burglaries is not evidence of their intent to take all of the guns
8
available, especially since there was no evidence regarding the
size of the car and the size of the guns at issue.
To allow such inferences to support this sentencing
enhancement would essentially charge every burglar with intending
to steal every visible item within a targeted location so long as
it would be “possible” to load all of the items into a getaway car.
While it might not be surprising if a burglar did in fact steal
everything in sight when it was possible, it would not be
“illogical,” as the government contends, if he did not do so, for
a variety of reasons. For example, every additional second at a
crime scene increases a burglar’s chance of getting caught. The
fact that Rome and his accomplice fled both attempts at the drop of
a hat actually demonstrates their understanding of that basic
tenet.
We therefore hold that the evidence in this case does not
support a finding of the requisite intent necessary for the
proposed enhancement. The sentencing order is VACATED, and the
case is REMANDED for resentencing consistent with this opinion.
VACATED and REMANDED.
9