United States v. Irvin

Opinions of the United
2004 Decisions States Court of Appeals
for the Third Circuit

5-25-2004

USA v. Irvin
Precedential or Non-Precedential: Precedential

Docket No. 03-1862

Follow this and additional works at: http://digitalcommons.law.villanova.edu/thirdcircuit_2004

Recommended Citation
"USA v. Irvin" (2004). 2004 Decisions. Paper 644.
http://digitalcommons.law.villanova.edu/thirdcircuit_2004/644

This decision is brought to you for free and open access by the Opinions of the United States Court of Appeals for the Third Circuit at Villanova
University School of Law Digital Repository. It has been accepted for inclusion in 2004 Decisions by an authorized administrator of Villanova
University School of Law Digital Repository. For more information, please contact Benjamin.Carlson@law.villanova.edu.
 Research & Writing Specialist
PRECEDENTIAL Federal Court Division
Defender Association of Philadelphia
Suite 540 West - Curtis Center
IN THE UNITED STATES COURT OF Independence Square West
APPEALS
Philadelphia, PA 19106
FOR THE THIRD CIRCUIT
______________
Attorneys for Appellant
No. 03-1862
_______________ PATRICK L. MEEHAN
United States Attorney
UNITED STATES OF AMERICA LAURIE MAGID
Deputy United States Attorney
For Policy and Appeals
v. ROBER A. ZAUZMER
Assistant United States Attorney
KYLE IRVIN, Senior Appellate Counsel
FRANK R. COSTELLO, JR. (Argued)
Appellant
Assistant United States Attorney
_____________________________
615 Chestnut Street
Suite 1250
On Appeal from the United States
Philadelphia, PA 19106
District Court
for the Eastern District of Pennsylvania
Attorneys for Appellee
Criminal No. 99-cr-00566
________________________
District Judge: Honorable Stewart
Dalzell
OPINION OF THE COURT
______________________________
________________________
Argued March 26, 2004
BECKER, Circuit Judge.
Before: AMBRO, CHERTOFF and
BECKER, Circuit Judges
This is an appeal by Kyle Irvin from
(Filed May 25, 2004 ) a judgment in a criminal case entered
pursuant to a plea of guilty to two counts
MAUREEN KEARNEY ROWLEY of being a previously convicted felon in
Chief Federal Defender possession of a firearm in violation of 18
DAVID L. MCCOLGIN U.S.C. § 922(g). Irvin was sentenced to
Assistant Federal Defender seventy-two months in prison. The appeal,
Supervising Appellate Attorney which presents three sentencing issues,
DINA CHAVAR (Argued) arises out of the tragic accidental shooting
of Irvin’s three-year-old son, Daequan, on I.
June 9, 1998, at the home of Irvin’s
The District Court enhanced Irvin’s
mother, Dollie Irvin, where Irvin and
offense le vel un der U.S .S.G . §
Daequan were living. While playing,
2K2.1(b)(1)(B) for possessing eight
Daequan found a .40 caliber Smith &
firearms, and, because Irvin denied
Wesson pistol that Irvin kept in their room,
possession of those firearms, refused to
and accidentally shot himself with it.
grant a reduction under U.S.S.G. § 3E1.1
Daequan died four days later in the
for acceptance of responsibility. Irvin
hospital. Police recovered the gun that
contends that this was error in view of the
Daequan accidentally fired after Irvin told
lack of direct proof that he exercised
them where it could be found.
dominion and control over all of the
Irvin was prosecuted by the firearms. In our view, however, neither
Commonwealth of Pennsylvania for the District Court’s finding that Irvin
endangering the welfare of children and constructively possessed the other six guns
involuntary manslaughter, and by the charged in count II, nor its finding that
federal government on the felon-in- Irvin was not entitled to an adjustment for
possession charge. He entered guilty pleas acceptance of responsibility, was clearly
in both cases. The issues on appeal pertain erroneous.2
to sentencing determinations made by the
A.
District Court regarding the number of
weapons Irvin had in his possession On the day of the shooting Irvin
(which bears on his Sentencing Guidelines advised the first officer on the scene that
range); whether he accepted responsibility; his son found his gun and accidentally
and whether inclusion of the state offenses fired it, that he did not have a license for
in his criminal history calculation was the gun, and that he had thrown the gun
plain error. We reject Irvin’s first two out the back bedroom window. He was
assignments of error, but conclude that the
District Court plainly erred in including
the state offenses in the criminal history timely, and we have jurisdiction under 28
calculation. We will therefore vacate the U.S.C. § 1291 and 18 U.S.C. § 3742(a).
judgment of the District Court and remand
2
for resentencing.1 We exercise plenary review over a
district court’s legal interpretation of the
Sentencing Guidelines, but our review of
1
The judgment of the District Court the factual findings supporting a district
was originally entered on June 12, 2000, court’s application of the Guidelines is
but on M arch 19, 2003, the District Court only for clear error. See United States v.
denied Irvin’s motion under 28 U.S.C. § Fenton, 309 F.3d 825, 827 n.2 (3d Cir.
2255 for resentencing. Irvin’s notice of 2002) (citing United States v. Butch, 256
appeal on March 26, 2003, was therefore F.3d 171 (3d Cir. 2001)).

2
arrested and taken into custody. Later that were not his.
same day at the station house, Irvin told
The District Court discredited
officers that, in fact, the gun could be
Irvin’s tes ti m ony concerning his
found in the back bedroom underneath the
knowledge, possession, and ownership of
mattress with some other guns. When a
the other six firearms and set forth the
search of M rs. Irvin’s home was conducted
reasons for its findings. The Court
pursuant to a warrant, six guns were
concentrated on (1) Irvin’s initial lie to the
recovered from her house in addition to the
police (he told them that he had thrown the
.40 caliber Smith & Wesson pistol. Just as
gun out the window); (2) the fact that
he had told the police, Irvin’s pistol was
rather than get medical help for his son,
found in the upstairs back bedroom
Irvin first hid the gun and spent shell,
underneath the mattress. Two other guns
because he knew he could not legally have
were also under the mattress, and two
possession of a gun; and (3) its conclusion
more were under the bed. A sixth gun was
that Irvin’s testimony that it was his
found in the closet of that same bedroom.
“instinct” to put the gun in the back
A seventh gun was found in the living
bedroom and that “I don’t know why I had
room of the home.
a gun” was unworthy of belief. The Court
There was in fact no direct evidence ultimately determined that Irvin possessed
(e.g., fingerprints, purchase receipts) that a total of eight firearms.3 It then
Irvin had dominion and control over the concluded that Irvin was not entitled to a
other guns—five of which were found in reduction in his offense level for
the back bedroom, which was where acceptance of responsibility because he
Irvin’s cousin Lucius Joe resided, and one had offered false testimony, stating that “a
of which was found in the common area defendant who has . . . presented
living room. Irvin testified that he kept the absolutely fantastic testimony . . . is not
gun his son used in the middle bedroom one who has shown acceptance of
where they slept; that after the tragedy he responsibility.”
“instinctively” hid the gun used by his son
B.
under the mattress in the back bedroom;
that he did not know the other two guns The government had the burden to
were under the mattress until he saw them prove, by a preponderance of the evidence,
while hiding the gun; that he was unaware
of the presence of any of the other four
3
weapons found in the house (one of which The foregoing catalog only lists seven
was found in the open in the living room); firearms. The eighth was recovered by
that Lucius Joe had previously showed him police following a separate incident
three of the guns that were found in the almost a year before in a consent search
back bedroom on June 9, 1998; and that of Irvin’s residence at the time. This
the six other guns found on June 9, 1998 incident was charged in a separate count
of the indictment.

3
see United States v. Evans, 155 F.3d 245, originally been purchased in. While the
253 (3d Cir. 1998), that Irvin knew of the question is quite close, at least with respect
guns’ presence and had control or the to the gun found in the closet in Lucius
power and intention to exercise control Joe’s bedroom, which there is no evidence
over them, see United States v. Iafelice, Irvin ever saw, we think that this evidence
978 F.2d 92, 96 (3d Cir. 1992). Some of was sufficient so that the District Court’s
our cases involving possession of findings were not clearly erroneous.4
controlled substances have held that mere
We also find no merit in Irvin’s
evidence of presence in a house where
contention that the District Court
drugs were found, proximity to the drugs
improperly shifted the burden of proof by
(and knowledge that they were there), and
requiring him to disprove that he
association with other residents are not
possessed the six firearms at issue and
enough to establish dominion and control.
failed to make the “required findings”
See United States v. Jenkins, 90 F.3d 814
concerning the issue of possession. This
(3d Cir. 1996); United States v. Brown, 3
simply did not happen. We defer to the
F.3d 673 (3d Cir. 1993).
District Court’s discrediting of Irvin’s
In this case, however, there was denial of possession of the disputed six
more: Irvin hid the gun his son had used guns, and its concomitant denial of the
right next to two other handguns, in the a dj u s tm e n t f o r a c c e p t a n c e o f
same room that a shotgun and two other responsibility. See United States v.
rifles were discovered. Further, he initially Cianscewski, 894 F.2d 74, 83 (3d Cir.
lied to the police about the location of the 1990) (determination that defendant did
gun his son had used, saying that he had not accept responsibility will be reversed
thrown it out the window. Additionally, only if “clearly erroneous”). At all events,
Irvin had a prior firearms possession, as we agree that when a defendant denies
reflected by the predicate conviction for relevant conduct that the district court
the felon-in-possession charge—a 1995 subsequently determines to be true, a
state conviction for carrying a firearm in a district court may properly deny a
public place and carrying firearms without downward adjustment for acceptance of
a license. See United States v. Jernigan, responsibility. See U.S.S.G. § 3E1.1
341 F.3d 1273, 1281-82 (11th Cir. 2003) Application Note 1(a).
(prior convictions involving knowledge of
presence of gun); United States v. Cassell,
4
292 F.3d 788, 793 (D.C. Cir. 2002); Reversing the District Court’s finding
United States v. Moorehead, 57 F.3d 875, regarding Irvin’s possession on any one
878 (9th Cir. 1995). With respect to the of the six disputed guns would not be
gun found in the living room, it was out in harmless because U.S.S.G. §
the open, and found in the very box that 2K2.1(b)(1)(B), under which Irvin’s
the gun Irvin admittedly possessed had sentence was enhanced, requires a
minimum of eight firearms.

4
 II. endangering charge.
We turn to the last issue on On September 14, 1999, Irvin was
appeal—whether Irvin’s criminal history indicted in the District Court on two
score erroneously included one point for counts of being a felon in possession of a
the sentence he received for the firearm in violation of 18 U.S.C. §
involuntary manslaughter conviction in 922(g)(1). Count II of the indictment
state court. Irvin contends that that charged Irvin with possession of the .40
offense conduct was part of the same caliber Smith & Wesson pistol that
course of conduct as the instant offense, Daequan accidentally fired on June 9,
and therefore should not have counted as a 1998.5 This gun was recovered by
prior sentence pursuant to U.S.S.G. § Philadelphia police that same day and
4A1.2(a)(1). We agree. formed the basis for the state involuntary
manslaughter charge. Irvin entered into a
A.
plea agreement which provided that he
Shortly after Daequan’s death, the would plead guilty to both counts.
Commonwealth of Pennsylvania charged However, on the second count, which
Irvin with endangering the welfare of listed the seven guns recovered from his
children, involuntary manslaughter, and mother’s home, Irvin agreed only to
related offenses. It is not disputed that the possessing the gun listed first in that
conduct that was the subject of these count—the .40 caliber Smith & Wesson
charges was Irvin’s leaving the pistol in a pistol that he told police on June 9, 1998,
place where his three-year-old son could belonged to him. The plea agreement also
easily reach the firearm. On November included stipulations that Irvin would
10, 1998, Irvin pleaded guilty to the receive a two point reduction for
endangering and manslaughter charges acceptance of responsibility under
before Court of Common Pleas Judge U.S.S.G. § 3E1.1(a), and an additional one
Carolyn Temin. During the guilty plea point reduction for timely notifying the
colloquy, Judge Temin advised Irvin that government of his intention to plead guilty
in order for the Commonwealth to prove under U.S.S.G. § 3E1.1(b).
involuntary manslaughter, it would have to
At sentencing, the District Court
prove that Irvin “did something . . . in a
adopted the criminal history calculation in
highly negligent manner, and in this case
the presentence report, which added one
that would involve leaving a gun that
point to Irvin’s criminal history score
could be fired in a place where a small
under U.S.S.G. § 4A1.1(c) for the state
child could pick it up and fire it.” On
December 22, 1998, Judge Temin
sentenced Irvin to seven years’ probation
5
on the involuntary manslaughter charge Count I of the indictment was the
a n d suspended sentence on th e earlier and unrelated possession offense
alluded to supra note 3.

5
sentence that Irvin had received on the instant offense.” Such was the case here:
involuntary manslaughter charge resulting The conduct constituting the instant
from the accidental shooting that occurred offense (i.e., the felon-in-possession
on June 9, 1998. The Court did so even conviction) occurred, per the indictment,
though U.S.S.G. § 4A1.2(a)(1), and on June 9, 1998; sentencing for the instant
Application Note 1 thereto, direct that only offense occurred on June 13, 2000; but
prior sentences involving conduct that was sentencing on the state manslaughter
not part of the instant offense are counted conviction occurred prior thereto, on
for criminal history purposes. Irvin argues December 22, 1998.
that the state manslaughter conviction
Application Note 1 further explains
should not have been included in his
that “[c]onduct that is part of the instant
criminal history calculation because it was
offense means conduct that is relevant
predicated on conduct that was part of the
conduct to the instant offense under the
instant offense. Without the inclusion of
provisions of § 1B1.3 (Relevant
the one point he received for the state
Conduct).” Thus, if the conduct leading to
manslaughter conviction, Irvin would have
the manslaughter conviction would be
been placed in criminal history category I.
relevant conduct under § 1B1.3, then the
Instead, Irvin was sentenced within the
manslaughter conviction cannot be
guideline range for a criminal history
counted towards Irvin’s criminal history
category II offender. Correcting this error
score. The government conceded this in
reduces Irvin’s guidelines range from
its papers filed in connection with Irvin’s
sixty-three to seventy-eight months to
28 U.S.C. § 2255 hearing, see supra note
fifty-seven to seventy-one months.
1, stating that “the death of defendant’s
B. son could have been included as relevant
conduct, see Sections 2K2.1(c)(1)(B) and
The key section before us is
2A1.4(a)(1) of the Guidelines, [but] it
U.S.S.G. § 4A1.2. Subsection (a) defines
would not have increased the defendant’s
“prior sentences” for the purposes of
offense level.” App. 147a.
determining which sentences should be
included in a defendant’s criminal history As we see it, the essence of both
score: “The term ‘prior sentence’ means offenses was Irvin’s criminal possession of
any sentence previously imposed upon the .40 caliber Smith & Wesson pistol. He
adjudication of guilt . . . for conduct not was convicted of the involuntary
part of the instant offense.” Application manslaughter of his son as a result of his
Note 1 to § 4A1.2 elaborates that “[a] criminally negligent conduct in leaving
sentence imposed after the defendant’s within reach of his son the pistol which his
commencement of the instant offense, but son accidentally fired. The present offense
prior to sentencing on the instant offense, involves the federal prosecution for Irvin’s
is a prior sentence if it was for conduct illegal possession of that same gun. We do
other than conduct that was part of the not see how one can separate the prior

6
state offense from the instant offense. In reaching our decision, we noted
that the conduct underlying the two
There is no perfectly analogous
offenses was connected in that the
case. The most apposite is our decision in
defendant “could not have forged a check
United States v. Hallman, 23 F.3d 821 (3d
until he had stolen the checks.” Id. Just as
Cir. 1994). The defendant there was
Hallman could not have forged the check
arrested for passing a stolen check at a
until he had stolen it, Irvin could not have
hotel. A search of his car uncovered
exercised criminally negligent control over
checks and credit cards stolen from the
his Smith & Wesson pistol on June 9, 1998
mail. Id. at 823. It was apparent that the
unless he was in possession of it on the
stolen check passed at the hotel had been
same date. Following Hallman, the
stolen from the mail. Id. at 826. The
conduct underlying Irvin’s manslaughter
defendant pled guilty to the state forgery
conviction was relevant conduct for the
charge based on passing the stolen check,
instant offense, and thus the manslaughter
and was sentenced. He later pled guilty to
conviction should not have been included
a federal indictment charging possession
in his criminal history.
of stolen mail. At the sentencing on the
federal charge, the state sentence on the The government urges, however,
forgery charge was included in defendant’s that we approach the case by determining
criminal history score as a prior sentence. whether the conduct of the present offense
W e reversed an d remanded f o r is “severable” from that of the prior
resentencing, holding that the forgery was offense, in which case the prior offense
“related” to the mail fraud in that it was may be considered in the criminal history
part of the same plan or scheme—thus calculation. It cites United States v.
making it “relevant conduct,” and Banashefski, 928 F.2d 349, 352-53 (10th
excluding it from the criminal history Cir. 1991), which concluded that it was
computation.6

on the same occasion, (B) were part of a
6
We put “related” in quotation marks single common scheme or plan, or (C)
to distinguish its usage here from its were consolidated for trial or
usage as a term of art in the Guidelines’ sentencing.” Id. Application Note 3. In
similar, but distinct, concept of a “related Hallman, the Court explicitly stated that
case.” Under U.S.S.G. § 4A1.2(a)(2) there was no Application Note 3 “related
two (or more) related cases are counted cases” argument to be made because the
as only one prior offense for purposes of defendant had only one prior sentence.
computing an offender’s criminal history 23 F.3d at 825. Here, it is undisputed
score. Unless the offenses were that Irvin’s manslaughter conviction and
separated by an intervening arrest, “prior his endangering conviction were related
sentences are considered related if they cases; the issue we address is their
resulted from offenses that (A) occurred relationship to Irvin’s federal conviction.

7
proper to include a state conviction for contrast, in count II the government did
possession of a stolen car in the criminal not indict Irvin for, nor did it at any time
history score for sentencing on a felon-in- adduce evidence of, Irvin’s possession of
possession offense, even though the a firearm at any time other than June 9,
firearm in question was found in the car at 1998. Moreover, as a legal matter, we
time of the defendant’s arrest for driving have not adopted the severability test;
the stolen car. The government asserts indeed in Hallman we declined to adopt it.
that factors that should be considered in
The government also relies on
this analysis include temporal and
United States v. Oser, 107 F.3d 1080 (3d
geographical proximity, the identity of the
Cir. 1997), for the proposition that where
victims, and the applicable societal harms.
a defendant’s prior offense played no part
It also relies on another Tenth Circuit case,
in the determination of his sentence on the
United States v. Browning, 252 F.3d 1153,
instant offense, the conduct for which he
1159 (10th Cir. 2001), where the Court
was previously sentenced was not
applied this test and held that because the
“relevant conduct” for guidelines
defendant unlawfully possessed a firearm
purposes, and that the prior sentence
before, as well as during and in
therefore need not be excluded from the
conjunction with, the commission of a
calculation of his criminal history
state drug trafficking offense, the state
category. The defendant in Oser was
offense was not part of the firearm
convicted of a drug conspiracy and money
offense, and thus was properly considered
laundering, and argued that his prior
as a prior conviction.
conviction for underreporting of currency
We find these cases both should not have been included in his
distinguishable on their facts and at odds criminal history computation because the
with our jurisprudence. The Court of conduct underlying the underreporting-of-
Appeals in both Banashefski and Browning currency conviction was relevant conduct
made clear that, as a factual matter, there to the drug conspiracy and money
was evidence that the defendant possessed laundering.
the firearm in question at a time before
Irvin argues that Oser is
commission of the offense that the
distinguishable. In Irvin’s submission, the
government sought to include in the
reasoning of Oser depended on the factual
defendant’s criminal history score. See
determination that no connection was
Browning, 252 F.3d at 1159 (“[Browning]
shown between the underreporting of
admitted to getting the gun in Arizona
currency and the drug conspiracy / money
before he [engaged in illegal drug
laundering offense. Because this
activity].”); Banashefski, 928 F.2d at 352
connection was absent, the conduct
(explaining that Banashefski’s felon-in-
underlying the underreporting-of-currency
possession offense “was complete before
offense was not relevant conduct to Oser’s
he approached the car [that he stole]”). In
instant offense, and so the sentence for

8
underreporting of currency could be have already noted in distinguishing
counted as a prior sentence for purposes of Banashefski and Browning, the federal
calculating Oser’s criminal history score. indictment does not so allege, nor was any
In contrast, Irvin points out, his criminally proof offered to that effect, so that
negligent control of the Smith & Wesson argument fails.
“occurred during the commission” of his
C.
illegal possession of that firearm, U.S.S.G.
§ 1B1.3(a)(1), and hence the state sentence In sum, Irvin’s sentence on the state
on the involuntary manslaughter charge manslaughter conviction should not have
was relevant conduct. We agree; the been included in his criminal history
offense committed by Irvin, as charged in computation. But for this error, Irvin
both the state and federal indictments, would have been sentenced as a criminal
centered on the passive act of possessing a history category I offender, with a
firearm on June 9, 1998. correspondingly lower guideline range. As
noted above, we review for plain error. To
Mo reover, the government’s
establish plain error, a defendant must
characterization of Oser misreads that case
prove that there is “(1) ‘error,’ (2) that is
and Application Note 1 to U.S.S.G. §
‘plain,’ and (3) that ‘affects substantial
4A1.2. The test is not whether a separate
rights.’ If all three conditions are met, an
offense “played [a] part” in determining
appellate court may then exercise its
the offense level (presumably in the sense
discretion to notice a forfeited error, but
of arithmetically altering the offense
only if (4) the error ‘seriously affects the
level), but rather whether the underlying
fairness, integrity, or public reputation of
conduct was “relevant conduct.” Even
judicial proceedings.’” Johnson v. United
though not all relevant conduct affects the
States, 520 U.S. 461, 467 (1997) (citations
ultimate offense level, Application Note 1
omitted). With respect to this final step,
excludes from the criminal history
we have held that we will generally
computation sentences based on relevant
exercise our discretion to recognize a plain
conduct. In essence, the government
error in the (mis)application of the
argues that it should be able to elect to
Sentencing Guidelines. See United States
treat, at its option, certain activity either as
v. Knight, 266 F.3d 203, 206 n.7 (3d Cir.
relevant conduct, or as a prior offense.
2001) (“[A] sentence resulting from a
This “heads I win, tails you lose” gambit
plainly erroneous misapplication of the
simply has no basis in the regime of the
Guidelines gives rise to at least a
Sentencing Guidelines.
presumptively appropriate occasion for
The government’s final argument is exercise of our discretionary power to
that the federal crime differs from the state correct the error.”).
crime because Irvin possessed the weapon
As we have shown, there was error
before June 9, 1998, but after his 1995
here. It was also plain. We have
predicate felony conviction. But as we

9
explained that this prong of the test “is met
if the error is ‘obvious’ or ‘clear under
current law.’” United States v. Vazquez,
271 F.3d 93, 100 (3d Cir. 2001) (en banc)
(quoting United States v. Olano, 507 U.S.
725, 734 (1993)). Coupled with the
relative clarity of the Sentencing
Guidelines, our decision in Hallman is
sufficiently on-point to satisfy the
requirement that error be “plain.” Finally,
the error affected Irvin’s substantial rights:
Without the addition of the criminal
history point for the manslaughter
conviction, Irvin now falls in the guideline
range for category I, offense level 25,
which is fifty-seven to seventy-one
months. Irvin received a seventy-two
month sentence, and so was prejudiced by
the Court’s error as his sentence exceeded
the guideline range which should have
been applied. See United States v.
Knobloch, 131 F.3d 366, 373 (3d Cir.
1997) (plain error affected defendant’s
“substantial right to suffer no greater an
imposition on his liberty than the
Guidelines allow” when error resulted in
higher sentencing range).
Accordingly, the judgment of
sentence will be vacated and the case
remanded for resentencing.

10