Opinions of the United
2003 Decisions States Court of Appeals
for the Third Circuit
5-23-2003
USA v. Jennings
Precedential or Non-Precedential: Non-Precedential
Docket 02-3106
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"USA v. Jennings" (2003). 2003 Decisions. Paper 533.
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NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT
No. 02-3106
UNITED STATES OF AMERICA
v.
JAVON JENNINGS,
Appellant
On Appeal from the United States District Court
for the District of New Jersey
(D.C. No. 02-cr-00240-1)
District Judge: Hon. Jerome B. Simandle
Submitted Under Third Circuit LAR 34.1(a)
May 22, 2003
Before: SCIRICA, Chief Judge, SLOVITER and NYGAARD, Circuit Judges
(Filed: May 23, 2003)
OPINION OF THE COURT
SLOVITER, Circuit Judge.
Javon Jennings, who pled guilty to one count of armed robbery and one count of
use of a firearm during a crime of violence, appeals alleging that the District Court
misapplied the Sentencing Guidelines by enhancing his sentence for brandishing a
firearm. Jennings did not raise this issue in the District Court, so we review only under
the plain error standard.
I.
BACKGROUND
Jennings was involved in a series of armed robberies. He pled guilty to Count One
of the Information, which charged Jennings with the December 9, 2000 armed robbery of
a Gulf Gas Station in Collingswood, New Jersey, in violation of 18 U.S.C. § 1951, and to
Count Two, which charged him with using and carrying a short-barreled shot gun during
and in relation to a crime of violence (the armed robbery of a Gas Mart in Haddon
Township, New Jersey on December 20, 2000) in violation of 18 U.S.C. § 924(c)(1)(B).
In his plea agreement, Jennings stipulated that in addition to the December 9 armed
robbery, he committed or aided and abetted the commission of three other armed
robberies on November 20, 2000, December 16, 2000 and December 20, 2000, and one
attempted armed robbery on December 2, 2000. Jennings further stipulated that a firearm
was brandished during and in relation to the commission of these other offenses, and that
a firearm was discharged during and in relation to the commission of the December 9,
2
2000 robbery to which he pled guilty.
The District Court adopted the Sentencing Guideline calculations in the
Presentence Investigation Report. Pursuant to U.S.S.G. § 1B1.2(c), the Probation Officer
treated the three uncharged armed robberies and one attempted armed robbery as though
Jennings had been convicted of these offenses. After determining the base offense level
for each of the armed robbery offenses, the Probation Officer, pursuant to U.S.S.G. §§
2B3.1(b)(2) and 1B1.3(a)(1), increased that level based upon the specific offense
characteristic of discharging or brandishing a firearm during and in relation to the
commission of the offense.
The Probation Officer, however, did not increase the base offense level for the
December 20, 2000 armed robbery based upon the brandishing of a firearm because
Jennings pled guilty to use of a firearm in connection with this robbery in violation of 18
U.S.C. § 924(c). The Probation Officer recognized that, under U.S.S.G. § 2K2.4, the
guideline sentence for a violation of § 924(c) is the minimum term of imprisonment
required by statute, and that Application Note 2 provides that when a sentence is imposed
for a violation of § 924(c) in conjunction with a sentence for an underlying offense, a
weapons enhancement should not be applied when determining the sentence for the
underlying offense.
After making adjustments for the multiple counts and Jennings’ acceptance of
responsibility, the Probation Officer determined that the guideline range for imprisonment
3
for Count One is 108 to 135 months and the guideline sentence for Count Two is the
minimum term of imprisonment required by statute to be imposed to run consecutively to
the term of imprisonment imposed for Count One. The District Court sentenced Jennings
to 108 months imprisonment on Count One and 120 months imprisonment on Count Two,
to be served consecutively, followed by a five year term of supervised release. The
District Court also ordered payment of restitution in the amount of $21,107.17 and a
special assessment of $200.00. This appeal followed.
Jennings’ counsel filed a brief pursuant to Anders v. California, 386 U.S. 738
(1967). To satisfy the Anders requirements, appellant’s counsel must “satisfy the court
that he or she has thoroughly scoured the record in search of appealable issues” and
“explain why the issues are frivolous.” United States v. Marvin, 211 F.3d 778, 780 (3d
Cir. 2000). Under Anders, if, after review of the district court record and a conscientious
investigation, counsel is convinced that the appeal presents no issue of arguable merit,
counsel may properly ask to withdraw while filing a brief referring to anything in the
record that might arguably support the appeal. 386 U.S. at 744. The defendant is given
an opportunity to file a brief, and Jennings filed a pro se brief.
II.
DISCUSSION
Relying on United States v. Knobloch, 131 F.3d 366 (3d Cir. 1997), Jennings
argues that the District Court erred by applying the weapons enhancements at sentencing
4
because he received a consecutive sentence for using and carrying a firearm during and in
relation to the December 20, 2000 armed robbery. Although the government did not
respond as to Knobloch, we find that case distinguishable.
In Knobloch, the defendant pled guilty to a drug distribution offense and to using
and carrying a handgun during and in relation to the drug distribution offense. He also
acknowledged responsibility for possession with intent to distribute the drugs and for the
use of two other guns during and in relation to the possession offense. In calculating the
defendant’s sentence for the distribution offense, the district court determined the base
offense level for that offense and applied a specific offense characteristic enhancement
for possession of the two guns related to the drug possession offense. The district court
also imposed a mandatory consecutive sentence for the use and carrying of a gun during
and in relation to the drug distribution offense in violation of § 924(c).
This court held that the district court committed plain error when it applied the
weapons enhancement. Id. at 371. Application Note 2 to U.S.S.G. § 2K2.4 provides in
relevant part:
If a sentence under this guideline is imposed in conjunction
with a sentence for an underlying offense, do not apply any
specific offense characteristic for possession, brandishing, use
or discharge of an explosive or firearm when determining the
sentence for the underlying offense. A sentence under this
guideline accounts for any explosive or weapon enhancement
for the underlying offense of conviction, including any such
enhancement that would apply based on conduct for which the
defendant is accountable under § 1B1.3 (Relevant Conduct).
Do not apply any weapon enhancement in the guideline for
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the underlying offense, for example, if (A) a co-defendant, as
part of the jointly undertaken criminal activity, possessed a
firearm different from the one for which the defendant was
convicted under 18 U.S.C. § 924(c); or (B) in an ongoing drug
trafficking offense, the defendant possessed a firearm other
than the one for which the defendant was convicted under 18
U.S.C. § 924(c).
U.S.S.G. § 2K2.4, Application Note 2.
We explained, “Application Note 2 to U.S.S.G. § 2K2.4 plainly prohibits a two-
level enhancement under these circumstances for possession of any firearm – whether it
be the one directly involved in the underlying offense or another firearm, even one in a
different location. If the court imposes a sentence for a drug offense along with a
consecutive sentence under 18 U.S.C. § 924(c) based on that drug offense, it simply
cannot enhance the sentence for the drug offense for possession of any firearm.” Id. at
372.
The situation presented in Knobloch was not repeated here. Because Jennings pled
guilty to use and carrying of a firearm in connection with the December 20, 2000 armed
robbery and received a consecutive sentence for that offense under 18 U.S.C. § 924(c),
the District Court did not enhance the base offense level for the December 20, 2000
armed robbery. Rather, the District Court, in adopting the Presentence Investigation
Report, only applied weapon enhancements to the armed robberies with no related
conviction for a § 924(c) offense. See U.S.S.G. § 2K2.4, Application Note 2 (“[I]f a
defendant is convicted of two armed bank robberies, but is convicted under 18 U.S.C. §
6
924(c) in connection with only one of the robberies, a weapon enhancement would apply
to the bank robbery which was not the basis for the 18 U.S.C. § 924(c) conviction.).
Thus, there was no error in imposing sentence on Jennings.
Accordingly, we will affirm the judgment of conviction and sentence. We will
grant counsel’s motion to be relieved.
TO THE CLERK:
Please file the foregoing opinion.
/s/ Dolores K. Sloviter
Circuit Judge