United States Court of Appeals,
Eleventh Circuit.
No. 94-8150
Non-Argument Calendar.
UNITED STATES of America, Plaintiff-Appellee,
v.
Carl Leslie HOLDEN, Defendant-Appellant.
Aug. 21, 1995.
Appeal from the United States District Court for the Northern
District of Georgia. (No. 1:93-CR-319), Horace T. Ward, Judge.
Before BIRCH, BLACK and CARNES, Circuit Judges.
PER CURIAM:
I. Introduction
Carl Leslie Holden pleaded guilty to possession of a
destructive device—a Claymore anti-personnel mine—in violation of
26 U.S.C. 5861(d). He now appeals the sentence resulting from that
guilty plea. Having considered the several issues that Holden
raises on appeal, we find that none presents grounds for a
reversal. In this opinion, we specifically address only a few of
those issues.1
II. Discussion
1
We do not further address Holden's contention on appeal
that the district court erred by failing to apply §§ 2K2.1(b)(2),
2K2.1(a)(7), comment. (n. 8), and 5K2.11 of the United States
Sentencing Guidelines. Because we reject Holden's argument that
he properly raised the application of these Guideline provisions
before the district court, absent plain error, we will not
reverse his sentence based upon these three provisions. See
United States v. Newsome, 998 F.2d 1571, 1579 (11th Cir.1993)
(ruling absent plain error argument not raised at sentencing is
waived on appeal), cert. denied, --- U.S. ----, ----, 114 S.Ct.
734, 737, 126 L.Ed.2d 698, 700 (1994). No plain error exists in
this case.
A. THE U.S.S.G. §§ 2K2.1(b)(4) AND 2K2.1(b)(3) ENHANCEMENTS
At sentencing, pursuant to U.S.S.G. §§ 2K2.1(b)(4) and
2K2.1(b)(3), the district court enhanced Holden's sentence after
finding that the mine that he had possessed was a stolen,
destructive device. Holden disputes this characterization.
1. Section 2K2.1(b)(4)
As to the district court's finding that the device was
stolen, Holden challenges a finding of fact, and "[w]hen reviewing
a sentence for which a sentencing guideline has been issued ...
this Court accepts the district court's findings of fact unless
they are clearly erroneous...." United States v. Marin, 916 F.2d
1536, 1538 (11th Cir.1990) (per curiam). The district court's
factual findings about the mine are not clearly erroneous, because
they are supported by evidence in the record. Army explosives
expert Sergeant Richard Nimmerrichter testified that individuals
who were not under "proper military control" lack the authority to
possess a Claymore mine, thus raising the inference that the mine
which Holden, who was not under military control, possessed was
stolen property. Holden himself testified that Michael Cantrell,
a former military policeman who had given Holden the mine to
dispose of, had told Holden it was stolen. The district court was
entitled to credit this portion of Holden's testimony, even though
Cantrell himself denied telling Holden that it was stolen.
More fundamentally, knowledge that such a device is stolen
property is not a prerequisite to the application of § 2K2.1(b)(4),
anyway. See U.S.S.G. § 2K2.1, comment. (n. 19) ("The enhancement
under subsection (b)(4) for a stolen firearm [including a mine] ...
applies whether or not the defendant knew or had reason to believe
that the firearm was stolen...."); see also United States v.
Richardson, 8 F.3d 769, 770 (11th Cir.1993), cert. denied, --- U.S.
----, 114 S.Ct. 1321, 127 L.Ed.2d 670 (1994).
2. Section 2K2.1(b)(3)
As to the district court's finding that the mine Holden
possessed was a "destructive device," Holden argues that because
the mine he possessed was not fully assembled and operative, it was
not a "destructive device" within the meaning of U.S.S.G. §
2K2.1(b)(3). That section states that "[i]f the offense involved
a destructive device, increase by 2 levels." Unlike Holden's
argument concerning § 2K2.1(b)(4), this contention goes to the
district court's interpretation of the Guidelines and their
application to the facts; accordingly we conduct a de novo review
of the § 2K2.1(b)(3) enhancement. See United States v. Rojas, 47
F.3d 1078, 1080 (11th Cir.1995). Our own review leads us to the
same conclusion reached by the district court: even unassembled,
this mine should be considered a destructive device. Application
note 4 in the commentary to § 2K2.1 defines a destructive device to
include a "mine" without explicitly excepting "unassembled" mines.
The district court found that Holden possessed all of the necessary
components of this device. And, Holden failed to proffer any
evidence that this particular mine could not quickly be assembled
to make it fully operative.
Deterring the possession of destructive devices, such as
anti-personnel mines, is the purpose of the § 2K2.1(b)(3)
enhancement. That purpose would be undermined by permitting
defendants to evade the enhancement by leaving such devices in a
temporarily unassembled state. Cf. United States v. Hamrick, 43
F.3d 877, 886 (4th Cir.1995) (rejecting argument that because
letter bomb was "dysfunctional," it did not constitute a
"destructive device" for sentencing purposes under 18 U.S.C. §
924(c)), petition for cert. filed, --- U.S.L.W. ---- (U.S. Apr. 6,
1995) (No. 94-8773). Accordingly, the district court did not err
in holding that the unassembled mine was a destructive device.
B. THE REJECTED U.S.S.G. §§ 5K2.13 AND 5K2.0 DEPARTURES
Holden also contends that the district court erroneously
refused to depart downward, pursuant to either U.S.S.G. § 5K2.13 or
§ 5K2.0, based upon his suffering from post-traumatic stress
disorder and other "mitigating" factors2 present in this case.
Although we generally may not review the merits of a district
court's refusal to grant a downward departure, see United States v.
Hadaway, 998 F.2d 917, 919 (11th Cir.1993), we may conduct a de
novo review of a defendant's claim that the district court
mistakenly believed it lacked the authority to grant such a
departure, see United States v. Williams, 948 F.2d 706, 708 (11th
Cir.1991). As Holden notes, the district court did state that it
lacked discretion to depart downward in this case, presumably under
either § 5K2.13 or § 5K2.0. However, our close examination of the
record and of the context in which that statement was made
2
Holden emphasized to the district court that: he had
exemplary police and military records; he fully cooperated with
the police; he suffered psychologically from his service in
Vietnam; he was not involved with the sale of explosives; he
stored the mine safely, avoiding danger to the community; he did
not commit a violent crime; and, he had no criminal history.
convinces us that the court was not unaware of its discretion to
depart downward under proper circumstances. Instead, as we explain
below, the district court's statements reflect its decision not to
depart downward under these circumstances.
1. Section 5K2.13
As to the district court's refusal to depart downward
pursuant to § 5K2.13, that section provides:
If the defendant committed a non-violent offense while
suffering from significantly reduced mental capacity not
resulting from voluntary use of drugs or other intoxicants, a
lower sentence may be warranted to reflect the extent to which
reduced mental capacity contributed to the commission of the
offense....
U.S.S.G. § 5K2.13 (emphasis added). In order to grant a departure
pursuant to this section, the district court must find that the
defendant's diminished capacity contributed to his offense. In
this case, the district court found that the evidence presented by
Holden in support of a departure under this section—evidence that
he suffered from post-traumatic stress disorder—went to the wrong
question. Holden's evidence tended to show that his diminished
capacity might have explained his dealings with other individuals
which led to the discovery of the mine at his home; but the
district court found that the evidence failed to establish that the
disorder caused him to possess the mine, which is the offense for
which he was being sentenced. Because the district court found
that the facts did not sufficiently link the disorder to the
offense, no § 5K2.13 departure was appropriate, in any event.
2. Section 5K2.0
As to the district court's refusal to grant a § 5K2.0
departure, that section states:
Under 18 U.S.C. § 3553(b) the sentencing court may impose a
sentence outside the range established by the applicable
guideline, if the court finds "that there exists an
aggravating or mitigating circumstance of a kind, or to a
degree, not adequately taken into consideration by the
Sentencing Commission in formulating the guidelines that
should result in a sentence different from that described."
U.S.S.G. § 5K2.0, p.s. Thus, a judge has no discretion to depart
downward pursuant to this section unless he finds that mitigating
circumstances exist that were "not adequately taken into
consideration by the Sentencing Commission." As with the § 5K2.13
departure request, in refusing to grant a § 5K2.0 departure, the
district court considered all of the evidence presented by Holden
in light of the Guidelines before denying the downward departure.
In its discussion of the departure request based upon Holden's
psychological problems, the court stated:
Look, I would like to depart if I could, but I don't have
any basis. I find that I don't have any discretion under
the—I want it to be clear for the record because, if the judge
finds it doesn't have discretion and it does, then that's
reversible error. So I don't want to muddy the waters. So I
find that, based on all the statements and presentations made,
that I cannot find first that this particular situation is one
or this particular set of circumstances surrounding Mr. Holden
are circumstances and facts which are not—which were not
considered by the Sentencing Commission.
And I have—you know, Mr. Holden has had a long and
distinguished career, a military career, and a police career
particularly. I would like to consider all those things, but
I am not in a position to do what federal judges could do
before. I can consider them, but I can't depart on the basis
of them. In other words, let's make it clear for the record.
Okay. I have considered these issues, and I find that,
of all of the issues raised, the total group, taken one by
one, would not justify a departure under the law and under the
rules; and taken together, any reading of the rules and the
law will not justify a departure.
Having considered all of Holden's evidence of mitigating factors,
from his military service to his psychological problems, the
district court determined, within its discretion, that none of
those factors, taken individually or together, constituted atypical
grounds which could serve as a basis for a departure. We may not
review the merits of that decision.
III. Conclusion
Holden's sentence is AFFIRMED.