United States v. Davis

Filed: January 24, 2000

UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT

No. 98-4672
(CR-98-86)

United States of America,

Plaintiff - Appellee,

versus

Terence Earl Davis,

Defendant - Appellant.

O R D E R

The court amends its opinion filed January 6, 2000, as

follows:

On page 6, first full paragraph, lines 1 and 5; footnote 5,

line 7 -- the reference to United States v. Jones is corrected to

read Jones v. United States.

On page 7, second full paragraph, lines 4 and 7 -- the

reference to United States v. Neder is corrected to read Neder v.

United States.

For the Court - By Direction

/s/ Patricia S. Connor
Clerk
PUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

UNITED STATES OF AMERICA,
Plaintiff-Appellee,

v. No. 98-4672

TERENCE EARL DAVIS,
Defendant-Appellant.

Appeal from the United States District Court
for the Eastern District of Virginia, at Alexandria.
Albert V. Bryan, Jr., Senior District Judge.
(CR-98-86)

Argued: May 18, 1999

Decided: January 6, 2000

Before MICHAEL, MOTZ, and KING, Circuit Judges.

_________________________________________________________________

Affirmed by published opinion. Judge King wrote the opinion, in
which Judge Motz concurred. Judge Michael wrote an opinion dis-
senting in part.

_________________________________________________________________

COUNSEL

ARGUED: Stephen Anthony Coren, Arlington, Virginia, for Appel-
lant. Charles Philip Rosenberg, Assistant United States Attorney,
Alexandria, Virginia, for Appellee. ON BRIEF: Helen F. Fahey,
United States Attorney, Patricia M. Haynes, Assistant United States
Attorney, Alexandria, Virginia, for Appellee.

_________________________________________________________________
OPINION

KING, Circuit Judge:

Terence Earl Davis appeals from his convictions and 170-month
sentence in the Eastern District of Virginia on various offenses,
including drug conspiracy, criminal property damage, assault, and
firearm violations. These charges arose in connection with a failed
drug transaction that resulted in gunshots being fired into an occupied
dwelling on a military base. We possess jurisdiction pursuant to 28
U.S.C. § 1291.

The issues in this appeal relate only to Counts Eight and Nine of
the indictment against Davis.1 His conviction on Count Eight drove
the sentencing, and resulted in a base offense level two points higher
than the base offense level for three other counts on which he was
convicted and that were grouped together with Count Eight. See
USSG § 3D1.1. Based on Davis's criminal history category of III and
the ranges in the Sentencing Table, a two-point decrease in the
offense level generally corresponds to approximately twenty fewer
_________________________________________________________________

1 Based on charges in an April 7, 1998 indictment, Davis was convicted
by a jury on June 4, 1998, on seven counts of the ten count indictment,
as follows:

a) Count One -- conspiracy to possess with intent to distribute
marijuana, 21 U.S.C. § 846 and § 841(a)(1) and
§ 841(b)(1)(D);

b) Count Two -- making false statements to a firearms dealer,
18 U.S.C. § 922(a)(6);

c) Count Three -- possession of a firearm by a convicted
felon, 18 U.S.C. § 922(g)(1) and § 924(a)(2);

d) Count Four -- possession of ammunition by a convicted
felon, 18 U.S.C. § 922(g)(1) and § 924(a)(2);

e) Count Eight -- destruction of a dwelling, 18 U.S.C. § 1363;

f) Count Nine -- assault with a deadly weapon, 18 U.S.C.
§ 113(a)(3); and

g) Count Ten -- use of a firearm in a crime of violence, 18
U.S.C. § 924(c).

2
months of imprisonment. Accordingly, the potential import of Davis's
appeal on his Count Eight sentence is an imprisonment period of
approximately twenty months.

We address four issues in connection with Davis's appeal. First,
Davis asserts that the evidence was insufficient to convict him of the
offense charged in Count Nine, assault with a deadly weapon under
18 U.S.C. § 113(a)(3). Second, we consider whether reversible error
occurred in connection with the jury instructions on Count Eight.
Third, Davis claims that the district court incorrectly applied § 2K1.4
of the U.S. Sentencing Guidelines ("Guidelines" or "USSG") with
regard to Count Eight (destruction of dwelling property), because
"shooting" a firearm does not involve "use of explosives." Fourth,
Davis asserts that his sentence on Count Eight was improperly
enhanced based on a finding that he engaged in witness tampering.
Finding no reversible error on any of these issues, we affirm Davis's
convictions and sentence.

I.

On December 22, 1997, as part of his drug activities, Davis asked
his girlfriend, Jennifer Davis, and another friend, Tony Brown, to buy
a half-pound of marijuana for him. This transaction was arranged for
Davis by intermediaries, who knew both Davis and his suppliers.
After his girlfriend advised Davis that the transaction had soured, and
that his money had been stolen, Davis went to Brown's home.
According to Brown, Davis believed that one or both of the drug
deal's intermediaries had double-crossed him and were involved in
the theft of his money. On that occasion, Brown witnessed a .380 cali-
ber pistol in Davis's possession.

Davis and Brown thereafter picked up another friend, Tyree Wal-
lace, and engaged Wallace to assist in Davis's effort to extract
revenge on the money thieves. At the time, Wallace also possessed a
firearm, a .25 caliber pistol. The three men purchased both .25 and
.380 caliber ammunition.

After midnight on December 23, 1997, Davis, Brown, and Wallace
went to the home of Brian McCoy, one of the intermediaries to the
soured drug deal. McCoy resided in a dwelling on the Fort Belvoir

3
army post in northern Virginia, with his stepfather, mother, and four
young half-siblings. Brown testified that, on that occasion, Davis and
Wallace fired approximately fifteen rounds of ammunition into
McCoy's dwelling at Fort Belvoir. McCoy was not at home, but his
other six family members occupied the dwelling at the time of the
shooting. No one was physically injured by the gunshots.

During the investigation of this shooting incident, a .380 cartridge,
as well as both .25 and .380 caliber bullets and cartridge cases, were
found at the scene of the shooting. When investigators later searched
the room where Davis and his girlfriend lived, they located and seized
drug paraphernalia and ten rounds of .380 caliber bullets. At trial, an
FBI expert testified that markings on the .380 cartridge cases found
at the crime scene were consistent with markings from a Grendel
model P-10, matched those on the .380 cartridges seized from Davis's
room, and that these markings are unique to each firearm.

No pistol or weapon was ever recovered, but three witnesses testi-
fied they had seen Davis in possession of a .380 caliber pistol during
the two-month period prior to the shooting incident. In addition, one
witness testified that he had purchased a .380 caliber pistol on behalf
of Davis two months before the shooting, and acknowledged falsify-
ing the required government form. A pawn shop clerk corroborated
this evidence.

II.

Davis's first claim on appeal is that there was insufficient evidence
before the jury to convict him of the charge in Count Nine.2 A viola-
tion of § 113(a)(3) of Title 18, as charged in Count Nine, requires
proof that the defendant committed an "assault with a dangerous
weapon, with intent to do bodily harm, . . . without just cause or
_________________________________________________________________

2 In Count Nine, the indictment charged Davis as follows:

did unlawfully, knowingly and intentionally assault the occu-
pants of a dwelling on the grounds of Ft. Belvoir, with a danger-
ous weapon, that is, a Grendel, Model P-10, .380 caliber pistol,
with the intent to do bodily harm.

J.A. 23.

4
excuse." 18 U.S.C. § 113(a)(3). When assessing on direct review the
sufficiency of the evidence supporting a criminal conviction, "[t]he
verdict of [the] jury must be sustained if there is substantial evidence,
taking the view most favorable to the Government, to support it."
Glasser v. United States, 315 U.S. 60, 80 (1942); see also United
States v. Beidler, 110 F.3d 1064, 1067 (4th Cir. 1997). The facts
underlying this offense are summarized in Section I, supra, and dem-
onstrate that Davis knowingly and intentionally assaulted six mem-
bers of the McCoy family in their dwelling at Fort Belvoir. Taking the
view most favorable to the Government, this assault was with a dan-
gerous weapon, and was carried out with the intent to do bodily harm.
Therefore, applying the appropriate standard of review, we conclude
that there is more than sufficient evidence in the record to support the
conviction of Davis on Count Nine.3

III.

In Count Eight, Davis was charged and convicted of violating 18
U.S.C. § 1363, which criminalizes the destruction of certain property.
Under this statute, an increased penalty is provided for if the property
is a dwelling, or if the life of any person is placed in jeopardy (the
statutory aggravating facts). The statute provides:

Whoever . . . willfully and maliciously destroys or injures
or attempts to destroy or injure any structure, conveyance,
or other real or personal property, shall be fined under this
title or imprisoned not more than five years, or both, and if
the building be a dwelling, or the life of any person be
placed in jeopardy, shall be fined under this title or impris-
oned not more than twenty years, or both.
_________________________________________________________________

3 Davis also asserts that the Government failed to prove that the type
of handgun used in the shooting was a Grendel P-10 .380, as alleged in
the indictment. To the contrary, the evidence sufficiently established that
this type of handgun was used in the shooting. Even if it did not, how-
ever, a non-prejudicial variance between the indictment and the proof
that does not modify the elements of the charged offense is no basis to
invalidate a conviction. See United States v. Odom, 736 F.2d 104, 118
(4th Cir. 1984). There is no claim of prejudice made here, and none
could be seriously asserted.

5
18 U.S.C. § 1363 (emphasis added).4 Although Davis was charged in
Count Eight with having committed the statutory aggravating facts,
the jury was not properly instructed on the issue as an element of the
§ 1363 offense, and it did not explicitly decide either (a) whether the
building was a dwelling or (b) whether Davis's conduct placed the
life of any person in jeopardy.5 We must therefore address whether
the lack of a proper instruction constitutes plain error that undermines
the conviction of Davis on Count Eight.

Of significance, in Jones v. United States, the Supreme Court
recently considered a similar issue in connection with the federal car-
jacking statute, which, like § 1363, explicitly provides for substan-
tially increased punishment in the presence of certain statutory
aggravating facts. See Jones v. United States, 119 S. Ct. 1215, 1228
(1999) (construing 18 U.S.C. § 2119). In Jones, the Court held that
the § 2119 aggravating facts constitute offense elements, requiring
submission to the jury with appropriate instruction, and also requiring
proof by the government beyond a reasonable doubt. Id. As a result,
these statutory aggravating facts are not merely factors for sentencing
consideration, requiring proof to the satisfaction of the sentencing
_________________________________________________________________

4 In Count Eight, the indictment charged that Davis:

did unlawfully, willfully and maliciously destroy and injure and
attempt to destroy and injure a structure and real and personal
property; that is, a dwelling . . ., thereby placing in jeopardy the
lives of the people present in the dwelling at the time of the
shooting.

J.A. 22.

5 No objection was made on this point. We may exercise our discretion
to correct an error that was not raised at trial only if: (1) error is found;
(2) it is plain; (3) it affects substantial rights; and (4) it seriously affects
the fairness, integrity, or public reputation of judicial proceedings. See
Johnson v. United States, 520 U.S. 461, 466-67 (1997). This issue arises
because, during the pendency of this appeal, the Supreme Court decided
Jones v. United States, 119 S. Ct. 1215 (1999), and Neder v. United
States, 119 S. Ct. 1827 (1999). These decisions apply to Davis's pending
case. See Johnson, 520 U.S. at 466. Although it may not have been obvi-
ous at the time of Davis's trial, the instruction error that we decide today
is now, in light of Jones, "plain," and therefore satisfied the first two
plain error requirements. See Johnson, 520 U.S. at 468.

6
judge by a preponderance of the evidence. See id.; accord, United
States v. Davis, 184 F.3d 366 (4th Cir. 1999).

In this case, the Government does not dispute the assertion that
Davis's jury, pursuant to the Jones decision, should have been prop-
erly instructed on the statutory aggravating facts provisions of § 1363,
as an element to support enhanced punishment for the offense (i.e.,
twenty years instead of five years). In accord with the Court's con-
struction of the carjacking statute in Jones, we must construe § 1363
so as to avoid doubtful constitutional questions.6 Id. at 1228. We
therefore hold that Jones controls our decision here, and that § 1363
requires that the statutory aggravating facts be charged in an indict-
ment, properly submitted to a jury, and proved beyond a reasonable
doubt. See id. at 1228. Although the indictment made sufficient alle-
gations, the statutory aggravating facts issue was not submitted to the
jury, and we must therefore find error on the Count Eight instructions.

Notwithstanding the error with respect to the statutory aggravating
facts issue, the Government contends that the conviction of Davis on
Count Eight must nevertheless be upheld. The Government's position
relies on the Supreme Court's recent decision in Neder v. United
States, and asserts that the absence of an appropriate statutory aggra-
vating facts instruction was harmless beyond a reasonable doubt. See
Neder v. United States, 119 S. Ct. 1827 (1999) (Chapman harmless
error rule applies to the omission of an element of an offense, where
the element was uncontested and supported by overwhelming evi-
dence). Under the facts relating to Count Eight, we believe the statu-
tory aggravating facts element was both uncontested and supported by
overwhelming evidence, and we are constrained to agree with the
Government.
_________________________________________________________________

6 The Court took care to re-state the principle underlying the Jones
decision, as follows:

[U]nder the Due Process Clause of the Fifth Amendment and the
notice and jury trial guarantees of the Sixth Amendment, any
fact (other than prior conviction) that increases the maximum
penalty for a crime must be charged in an indictment, submitted
to a jury, and proven beyond a reasonable doubt.

Jones, 119 S. Ct. at 1224 n.6.

7
In Neder, where the defendant was charged with making false
statements in connection with tax returns, the district court affirma-
tively instructed the jury that it "need not consider" the materiality of
any false statements, "even though that language is used in the indict-
ment." Neder, 119 S. Ct. at 1832. At that time, materiality was con-
sidered to be a question for the court, rather than for the jury. See id.
at 1841. While concluding in Neder that materiality is an offense ele-
ment for jury determination, the Court noted that, even on appeal,
Neder made no argument that his false statements were immaterial
and did not suggest that he would introduce any evidence bearing on
the materiality issue if the case were remanded. Id. at 1836-37. The
Court reasoned that reversal without any consideration of the effect
of the error would result in a retrial focused on issues unrelated to the
omitted jury instruction, and concluded that the Sixth Amendment
does not require such a result. Id.

In Davis's case, the § 1363 offense is aggravated by destructive
conduct either (1) directed at a dwelling, or (2) placing lives in jeop-
ardy. Overwhelming evidence established that Davis fired gunshots at
the McCoy family residence at Fort Belvoir, occupied at night by six
persons. Davis has not contested, either at trial or on appeal, that the
McCoy family residence was an occupied "dwelling." Under these
circumstances, we conclude that the district court's failure to instruct
the jury on the statutory aggravating facts issue under § 1363 was
harmless beyond a reasonable doubt. See Neder, 119 S. Ct. at 1837
(citing Chapman v. California, 386 U.S. 18, 24 (1967)) (constitutional
error harmless if it is "beyond a reasonable doubt that the error com-
plained of did not contribute to the verdict obtained").

IV.

A.

Davis also contends on appeal that the district court incorrectly cal-
culated the base offense level for his sentencing on Count Eight.7 He
asserts that the court's application of the aggravated property damage
guideline, USSG § 2K1.4 (property damage by use of explosives), to
_________________________________________________________________

7 Davis was sentenced on September 4, 1998, pursuant to the Guide-
lines in effect on November 1, 1997.

8
Count Eight is legally inappropriate, because the "shooting" alleged
in Count Eight does not constitute a "use of explosives" contemplated
by § 2K1.4. We disagree.

In our consideration of this issue, we review de novo a challenge
to the district court's sentencing guideline selection. United States v.
Lambert, 994 F.2d 1088, 1091 (4th Cir. 1993). In contrast, the district
court's factual findings at sentencing are reviewed for clear error. See
United States v. Melton, 970 F.2d 1328, 1331 (4th Cir. 1992).

Two guidelines sections are potentially applicable to a § 1363 con-
viction: USSG § 2B1.3 (property damage or destruction) and USSG
§ 2K1.4 (property damage by use of explosives). See USSG App. A.
Of these two guidelines, the more appropriate for the nature of the
charged offense conduct should be applied. Id. The aggravated prop-
erty damage guideline, § 2K1.4, is only appropriate for application to
Davis's sentencing on Count Eight if a "use of explosives" was
involved in the "shooting" of the firearm when he fired into the
McCoy family dwelling. See Lambert, 994 F.2d at 1092 (guideline
selection is based on the conduct charged in the indictment). Our
analysis is tempered by our awareness that terms defined in one
guideline may be used, with different meanings, in other sections.
USSG § 1B1.1 comment. (n.2).8 In this case, we must decide whether
property damage caused by the "shooting" alleged in Count Eight
constitutes "property damage by use of explosives" within the mean-
ing of § 2K1.4.9
_________________________________________________________________

8 "Firearm" is one term whose definition is "generally applicable"
throughout the Guidelines:

"Firearm" means (i) any weapon (including a starter gun) which
will or is designed to or may readily be converted to expel a pro-
jectile by the action of an explosive; . . . . A weapon, commonly
known as a "BB" or pellet gun, that uses air or carbon dioxide
pressure to expel a projectile is a dangerous weapon but not a
firearm.

USSG § 1B1.1 comment. (n.1(e)). This definition therefore applies to the
"property damage by use of explosives" guideline.

9 The district court found that Davis and Wallace "fired a total of fif-
teen rounds into the house at about 12:45 a.m. on December 23, 1997."
J.A. 541, 559.

9
B.

1.

We must first consider whether the discharge of a handgun10
involves "explosives" within the aggravated property damage guide-
line. Commentary to that guideline, § 2K1.4, defines "explosives" as
meaning an "explosive, explosive material, or destructive device." See
USSG § 2K1.4 comment. (n.3). However, § 2K1.4 does not explicitly
define "explosive," and there is no "generally applicable" Guidelines
definition for that term. We therefore rely on the fact that "explosive,"
as defined by § 844(j) of Title 18, see infra, is within the scope of
"explosive" for purposes of § 2K1.4. 11

An "explosive" for purposes of the "property damage by use of
explosives" guideline includes:

gunpowders, . . . or [a] device that contains any . . . combus-
tible units, or other ingredients, in such proportions, quanti-
ties, or packing that ignition by . . . detonation of the
compound . . ., or device or any part thereof may cause an
explosion.

18 U.S.C. § 844(j) (emphasis added). Gunpowder clearly is an "ex-
plosive," not only because it is specifically identified as such in the
_________________________________________________________________

10 We refer to the firearm used in the "shooting" as a handgun because
the evidence established that a handgun with .380 ammunition had been
used.

11 The Guidelines exclusively refer substantive offenses under Title 18,
§ 844(f) and § 844(i), to § 2K1.4 for sentencing. See USSG App. A.
Those offenses criminalize damage by means of an explosive, and
explicitly define "explosive." See 18 U.S.C. § 844(f), (i), and (j). This
leads to the § 844(j) definition of "explosive," a definition that is also
explicitly incorporated by another guideline that relates to explosives
offenses. See USSG § 2K1.3 comment. (n.1). We note that "explosive"
for § 844 criminal offenses has been expansively interpreted, in contrast
to a narrower "explosive" definition that is used for regulatory purposes.
See, e.g., 18 U.S.C. § 841(d); United States v. Mena, 933 F.2d 19, 27 (1st
Cir. 1991); United States v. Hepp, 656 F.2d 350, 352 (8th Cir. 1981).

10
statutory definition of explosive, but also by its properties and use. In
an elementary sense, "shooting" requires an explosion to expel a pro-
jectile from a firearm.12 The ammunition in a loaded handgun is thus
an "explosive" under § 844(j), and also under § 2K1.4.

2.

Pursuant to the foregoing, the discharge of a handgun involves and
requires an "explosive." Therefore, if the explosion of gunpowder
inside a handgun when it is discharged constitutes a"use" of an
explosive, the guideline for property damage by use of explosives,
§ 2K1.4, applies to Count Eight.

As the Supreme Court recognized in Bailey v. United States, the
term "`use' draws meaning from its context, and we look not only to
the term itself, but also to the [language and history of the] statute and
the sentencing scheme," to determine its intended meaning. Bailey v.
United States, 516 U.S. 137, 143-44 (1995). To interpret the word
"use" for purposes of § 2K1.4, we first examine the history of the
guideline. The cross reference to § 2K1.4 from the simple property
damage guideline, § 2B1.3, was inserted because "property damage
by use of explosives is an aggravated form of property destruction,
just as armed robbery is an aggravated form of robbery." See USSG
§ 2B1.3(c); App. C (amend. 313). Thus, the guideline for property
damage by use of explosives, § 2K1.4, is intended for application
where the use of explosives in the offense conduct increases the risk
or enormity of its injurious consequences. Cf. Black's Law Dictio-
_________________________________________________________________

12 The essential aspects of the firing, i.e., the shooting, of a handgun are
as follows: A handgun is fired by bringing a cartridge in line with the
gun's hammer, and releasing the hammer to discharge the cartridge. See
9 New Encyclopaedia Britannica 473 (15th ed. 1989). The cartridge is
an ammunition unit composed of a case, a propellant charge, a primer,
and a projectile or bullet. Id., 2 at 911; cf. 18 U.S.C. § 921(a)(17)(A).
When the primer is ignited by mechanical shock or impact, it produces
a sudden burst of flame that ignites a charge of high explosive (the pro-
pellant charge, gunpowder). See 2 New Encyclopaedia Britannica 277,
911 (15th ed. 1989); id., 9 at 282, 473. The gunpowder burns at an
extremely high rate in a chamber at the rear of the gun, creating a gas
pressure that drives the bullet along the barrel of the gun. Id., 23 at 856.

11
nary, 65 (6th ed. 1990) ("aggravation"). Firing a handgun at an occu-
pied dwelling is an aggravated form of property damage, and thus
falls squarely within the intended application of § 2K1.4.

Two other guidelines in the same guidelines' subchapter as § 2K1.4
have titles that include "use of explosive(s)." See USSG Part K
(Offenses Involving Public Safety). These additional guidelines are
§ 2K2.4 (Use of Firearm, Armor-Piercing Ammunition, or Explosive
During or in Relation to Certain Crimes) and § 2K1.7 (Use of Fire or
Explosives to Commit a Federal Felony)(deleted by consolidation
with § 2K2.4, eff. November 1, 1993). See USSG §§ 2K1.7 (deleted),
2K2.4, App. C (amend. 481). There are no explicit distinctions
between the meaning of "use of" under these three guidelines. In fact,
in 1993, two of these guidelines were consolidated, in order to reduce
inconsistency in definitions between Guidelines sections, and to aid
in development of a uniform body of applicable case law. See USSG
App. C (amend. 481, eff. November 1, 1993). We therefore conclude
that the term "use of explosive[s]" has the same meaning under all
three guidelines.

Court decisions construing "use of" under any of these three guide-
lines are therefore persuasive as to the term's meaning under § 2K1.4.
In Bailey, the Supreme Court interpreted "use of" a firearm during the
commission of an offense, in violation of 18 U.S.C. § 924(c).13 See
Bailey, 516 U.S. at 144, 148-49. It held that "use of" a firearm means
"active employment" of the firearm. Id. Firing, attempting to fire,
brandishing, displaying, bartering, striking with a firearm, or even
referring to a firearm in a manner calculated to bring about a change
in circumstances, are examples of "active employment" of a firearm
within the meaning of the statute's and USSG § 2K2.4's "use of" a
firearm. Id.

The decision in Bailey, interpreting the term "use of a firearm" for
purposes of § 924(c) and § 2K2.4, logically extends to a "use of
explosive[s]" that may be sentenced under § 2K2.4. A "use of explo-
sive[s]" under § 2K2.4, and under § 2K1.4 by analogy, thus requires
_________________________________________________________________

13 A defendant convicted of violating § 924(c) is sentenced according
to § 2K2.4. See USSG § 2K2.4.

12
"active employment" of explosives.14 The most obvious "active
employment" of an explosive is to cause it to explode, just as the most
obvious active employment of a firearm is to cause it to fire. Here,
when Davis discharged his firearm, he caused gunpowder to explode,
and as a result fired projectiles into the McCoy family dwelling on
Fort Belvoir. Thus, Davis's shooting into the McCoy home was an
"active employment" and therefore a "use of" explosives in the Bailey
sense, as required by § 2K1.4.

By reviewing other offenses for which § 2K1.4 is the exclusive
guideline recommended by the Commission, we confirm that a "use
of explosives" under § 2K1.4 includes discharging a firearm. See
USSG App. A. There are two offenses that criminalize property
destruction "by means of" an explosive. 18 U.S.C. § 844(f)(1), (i)(1).
Sentencing based on property damage "by use of explosives" for these
§ 844 offenses demonstrates that "use" of explosives under § 2K1.4
is intended in the general sense rather than a precise, technical sense.
See Bailey, 516 U.S. at 145 (ordinary meaning of "use" is "to carry
out a purpose or action by means of.").
_________________________________________________________________

14 Our conclusion that the meaning of "use of explosive[s]" is similar
in § 2K1.4 and § 2K2.4 is further supported by parallel and intertwined
substantive and sentencing developments of two offenses. The language
that defines the § 844(h) "use of explosives" offense is essentially identi-
cal to the original language of the § 924(c) "use of a firearm" offense.
The "use of a firearm" offense is sentenced under § 2K2.4. See 18 U.S.C.
§ 924(c); Bailey, 516 U.S. at 147.

A § 844(h) violation now is sentenced under the same guideline as the
"use of a firearm" offense, suggesting that "use of" has a similar meaning
regardless of the type of device used. Historically, however, two other
guidelines have been applied to the same § 844(h) offense. Those viola-
tions committed prior to November 18, 1988 are still sentenced directly
under § 2K1.4. See USSG § 2K1.4 comment. In 1988, the applicable
guideline changed to § 2K1.7 (later deleted), to conform the Guidelines
to new statutory sentencing mandates. See USSG App. C. (amend. 185).
A 1993 non-substantive consolidation made the same guideline applica-
ble to § 844(h) and § 924(c) violations. See USSG App. C (amend. 481,
eff. November 1, 1993). Thus, "use of" explosives has a similar meaning
across these similar guidelines, and that meaning is consistent with the
meaning of "use of" with firearms offenses.

13
Our holding today is a limited one -- that "property damage by use
of explosives," under § 2K1.4, includes the damage caused by projec-
tiles discharged from a firearm. Indeed, another guideline recognizes
that conduct involving a firearm that contains explosive materials
may be sentenced either under a guideline relating to explosives, or
under a guideline relating to firearms or ammunition. See USSG
§ 2K1.3 comment. (n.1). In such an instance, and consistent with our
conclusion, the guideline directs the use of the greater resulting
offense level. Id.

C.

Given our decision that § 2K1.4 may be applied to the offense con-
duct charged in Count Eight, we determine de novo whether it is an
appropriate guideline to apply. In the atypical case where an indi-
cated guideline is inappropriate because of the particular conduct
involved, the guideline most applicable to the nature of the charged
offense conduct of which the defendant was convicted should be
used. See USSG App. A.

Count Eight charged Davis with conduct constituting aggravated
property damage. In choosing between the Commission's two appli-
cable guidelines for a § 1363 violation, §§ 2B1.3 and 2K1.4, the
aggravated property damage guideline is clearly more appropriate for
application to the charged aggravated offense conduct. As we have
pointed out, Davis fired a number of shots into the occupied McCoy
family residence at Fort Belvoir. In our view, firing gunshots at an
occupied dwelling under these circumstances constitutes a serious,
aggravated form of the property damage offense.

Although other guidelines not recommended by the Commission
for a § 1363 offense could also be appropriate, we are unable to con-
clude that the charged conduct here is so atypical as to require us to
deviate from the Commission's indicated guidelines for this offense.
We therefore affirm the district court's selection and application of
§ 2K1.4 as the appropriate guideline for the sentencing of Davis on
Count Eight.15
_________________________________________________________________

15 Davis also claims error in the district court's application of an
obstruction of justice sentencing enhancement, pursuant to USSG

14
V.

Pursuant to the foregoing, we affirm Davis's convictions and sen-
tence against each of these challenges.

AFFIRMED

MICHAEL, Circuit Judge, dissenting in part:

Terence Davis was convicted for firing several shots into an occu-
pied house on a military base, see 18 U.S.C. § 1363, but he was sen-
tenced for "property damage by use of explosives," USSG § 2K1.4.
Sergeant Alvin York, the World War I sharpshooter who knew all
about guns, would not have agreed with the majority that damage to
a house caused by bullets fired from a handgun is"property damage
by use of explosives." A demolition worker who uses explosives
every day would not agree with the majority either. It just doesn't
sound right to say that bullet holes in wood or brick are damage
caused by explosives. Nor can the majority's construction be saved
by all of the definitions and cross-definitions in the guidelines and
statutes. I usually agree with my colleagues in the majority, but this
time I must respectfully dissent on the guidelines issue. I agree with
the rest of their opinion.

I.

"Property damage by use of explosives" has a plain, common sense
meaning. Explosives blow things apart through the violent expansion
_________________________________________________________________

§ 3C1.1. This claim of error fails, however. The evidence demonstrated,
and the district court found, that Davis had left a message on one wit-
ness's voice mail, to the effect that, if the witness did not stop tarnishing
Davis's reputation, Davis would kill him if he saw the witness again. On
another witness's voice mail, Davis threatened that, if the witness did not
stop lying about Davis to the FBI, Davis would "deal with him." Davis
concedes that his acquittal on the witness tampering charges does not
preclude sentence enhancement for this conduct. See United States v.
Martinez, 136 F.3d 972, 979 (4th Cir.), cert. denied, 119 S. Ct. 122
(1998). On this record, we cannot conclude that the court clearly erred.
See United States v. Self, 132 F.3d 1039, 1041 (4th Cir. 1997)("clearly
erroneous" review standard).

15
of internal energy. See The Oxford Encyclopedic English Dictionary
493 (3d ed. 1996) (defining "explode" and"explosive"). The explo-
sion and the physical (property) damage are contiguous. Shooting
small caliber bullets into property is different. There is damage from
the impact of the bullets, but it is not explosion damage. Simply put,
bullet hole damage is damage by use of a gun, not damage by use of
explosives. It is too much of a stretch to say anything else.

The official commentary to § 2K1.4 supports this plain reading of
the guideline language. Application Note 3 defines"explosives" as
follows: "`Explosives,' as used in the title of this guideline, includes
any [1] explosive, [2] explosive material, or [3] destructive device."
USSG § 2K1.4 cmt. 3. The first two terms in the definition are repeti-
tive and do not help us. However, the third term,"destructive device,"
does add useful context because that term is defined in the general
definitions section of the guidelines:

"Destructive device" means any article described in 26
U.S.C. § 5845(f) (including an explosive, incendiary, or poi-
son gas - (i) bomb, (ii) grenade, (iii) rocket having a propel-
lant charge of more than four ounces, (iv) missile having an
explosive or incendiary charge of more than one-quarter
ounce, (v) mine, or (vi) device similar to any of the devices
described in the preceding clauses).

USSG § 1B1.1 cmt. 1(k). Davis's .380 caliber handgun is not covered
by any of the specific examples (bomb, grenade, etc.) in the guideline
definition. The guideline definition, of course, incorporates "any arti-
cle described in 26 U.S.C. § 5845(f)," and that statute goes further
and includes the following in its definition of"destructive device:"

any type of weapon by whatever name known which will,
or which may be readily converted to, expel a projectile by
the action of an explosive or other propellant, the barrel or
barrels of which have a bore of more than one-half inch in
diameter, except a shotgun or shotgun shell which the Secre-
tary finds is generally recognized as particularly suitable for
sporting purposes.

26 U.S.C. § 5845(f)(2). Thus, the guideline definition of "explosives,"
insofar as it incorporates the statutory definition of "destructive

16
device," excludes small caliber handguns with a bore of one-half inch
or less. Davis's .380 caliber handgun is therefore excluded from the
"destructive device" category of explosives.

The majority contends that Davis used explosives because the bul-
lets he fired were propelled by a charge of gunpowder, which is an
explosive. But in common parlance Davis used a gun, not gunpowder.
The majority's strained and overly technical read of the word "use"
in "use of explosives" misses the basic intent of the guideline phrase.
Again, it means the use of explosives to blow something apart. It does
not mean the use of gunpowder to propel a bullet, as the majority
argues. If the majority is right, then ramming a two-ton truck into a
house would be property damage by use of explosives. It would be
because the truck is propelled by the explosion of gasoline in the
engine block just as a bullet is propelled by the explosion of gunpow-
der in a gun's chamber. Thus, the majority's construction lacks practi-
cal and predictable limits.

A scan through the guidelines reveals that there is a difference
between using a gun and using explosives. Offenses involving explo-
sives and offenses involving firearms are often treated separately. For
example, § 2K1.3 covers the "Unlawful Receipt, Possession, or
Transportation of Explosive Materials" (emphasis added). A separate
guideline, § 2K2.1, covers the "Unlawful Receipt, Possession, or
Transportation of Firearms or Ammunition" (emphasis added). If the
term "explosives" included all guns, there would be no need for sepa-
rate guidelines. Language in individual guidelines also differentiates
between the use of explosives and the use of firearms. Section 2K2.4
is typical. It applies to "Use of Firearm, Armor-Piercing Ammunition,
or Explosive During or in Relation to Certain Crimes." See also
USSG § 2B1.1(c)(1) (referring to theft, receipt, possession, etc. of "a
firearm, destructive device, explosive material, or controlled sub-
stance") (emphasis added).

Common sense and the structure of the guidelines both dictate that
use of a handgun and use of an explosive are different acts. Because
Davis damaged property (an occupied dwelling) by using his handgun
to shoot small caliber bullets into it, he should not be sentenced under
§ 2K1.4 for property damage by use of explosives.

17
II.

I recognize that the district judge struggled to find a guideline with
a sentencing range long enough to match Davis's crime. The problem
is this: any guideline that fits neatly, such as § 2B1.3 (Property Dam-
age or Destruction) or § 2A2.2 (Aggravated Assault), carries a lighter
sentence. Nonetheless, we do a disservice to the guidelines system
when we stretch the meaning of one guideline in order to increase the
sentence to a level that appears to be deserved. A major purpose of
the guidelines is to bring predictability to sentencing. The majority
ignores that purpose today.

All would not be lost if Davis was sentenced under another guide-
line with a lower base offense level. In particular, an upward depar-
ture could be considered because Davis fired a semi-automatic
weapon in the residential area of a military base. As a result, § 5K2.6
(Weapons and Dangerous Instrumentalities) or § 5K2.17 (High-
Capacity, Semiautomatic Firearms) might apply. These guideline pol-
icy statements allow for a substantial upward departure when a gun
is fired and its use endangers lives or increases the likelihood of death
or injury. I do not know whether the district judge on resentencing
would reach the original sentence of 170 months, but Davis's original
sentence should still be vacated. The guidelines would be better
served in the long run, and the process of guideline development
could work the way Congress intended. The Sentencing Commission
could study the matter and, if warranted, write a new guideline with
punishment that takes better account of the seriousness of the crime
Davis committed. See 28 U.S.C. § 994(o).

I would remand for resentencing.

18