[PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT FILED
________________________
U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
No. 05-11318 November 30, 2005
________________________ THOMAS K. KAHN
CLERK
D. C. Docket No. 04-00194-CR-WS
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
CARLOS DEON WILLIAMS,
a.k.a. Bodacious,
Defendant-Appellant.
________________________
Appeal from the United States District Court
for the Southern District of Alabama
_________________________
(November 30, 2005)
Before ANDERSON, BLACK and CARNES, Circuit Judges.
PER CURIAM:
In this Guidelines interpretation case, we examine the meaning of the word
“any” as it is used in United States Sentencing Guideline § 2K2.1(c)(1), and
conclude that it covers any firearm that is used in connection with the commission
of another offense which is within the relevant conduct of the charged offense.
I. FACTUAL AND PROCEDURAL BACKGROUND
On January 29, 2004, Carlos Williams was arrested for shooting Eric
McCants four days earlier. At the time of the arrest, the officers found two guns in
Williams’s car. Williams was charged in state court for the assault, and the federal
grand jury indicted him for being a felon in possession of a firearm, in violation of
18 U.S.C. § 922(g). Williams pled guilty to possessing one of the firearms without
a plea agreement. The Government did not prove that the firearm in the federal
charge was the same one used in the McCants assault.
In his written objections to the Presentence Report and at sentencing,
Williams objected to the calculation of his base offense level. After hearing
testimony and determining by a preponderance of the evidence that the assault on
McCants was relevant conduct to the federal possession charge, the district court
calculated the base level by cross-referencing from the firearms guideline, § 2K2.1,
to the guideline for aggravated assault, § 2A2.2.1 The district court added ten
1
The cross reference provision in § 2K2.1 instructs the court to apply § 2X1.1 if the
defendant used or possessed any firearm in connection with the commission of another offense
and the resulting base level is higher than it would otherwise be. U.S.S.G. § 2K2.1(c)(1). Section
2X1.1, in turn, instructs the court to use the offense level that is the same as the underlying
offense. The underlying offense, in this case, would be aggravated assault, § 2A2.2.
2
points to the base offense level of fourteen because a firearm was discharged and
the victim sustained serious bodily injury. The court subtracted three points for
acceptance of responsibility. With a base offense level of twenty-one, and a
criminal history level of VI, the suggested Guidelines range was seventy-seven to
ninety-six months; the district court sentenced Williams to ninety-six months’
imprisonment.
II. STANDARD OF REVIEW
Williams was sentenced after the Supreme Court handed down its decision in
United States v. Booker, 543 U.S. __, 125 S. Ct. 738 (2005). We review questions
of law arising under the Guidelines de novo. United States v. Crawford, 407 F.3d
1174, 1178 (11th Cir. 2005). Once the district court has calculated the Guidelines
correctly, we review the sentence for reasonableness. Id. at 1179.
III. DISCUSSION
A. The meaning of “any” in U.S.S.G. § 2K2.1(c)(1).
Williams contends that the word “any” in § 2K2.1(c)(1) is confined to any of
the firearms that he was charged with possessing. Thus, he argued that the district
court erroneously cross-referenced to the aggravated assault guideline, which did
not involve the firearm in the federal charge. The Government counters that “any”
must mean any firearm the defendant possessed, be it the ones charged or not. The
3
section in question reads:
(c) Cross Reference
(1) If the defendant used or possessed any firearm or ammunition in
connection with the commission or attempted commission of
another offense, or possessed or transferred a firearm or
ammunition with knowledge or intent that it would be used or
possessed in connection with another offense, apply--
(A) § 2X1.1 (Attempt, Solicitation, or Conspiracy) in respect to
that other offense, if the resulting offense level is greater than
that determined above . . . .
U.S.S.G. § 2K2.1(c)(1). (emphasis added)
Although this court has not reached this issue precisely, it has discussed the
meaning of the same key words used in another provision of the Guidelines, i.e. §
2K2.1(b)(5).2 In United States v. Sutton, 302 F.3d 1226 (11th Cir. 2002), this court
examined the meaning of “the firearm or ammunition” in the U.S.S.G. §
4B1.4(b)(3)(A) sentencing enhancement for § 922(g) violations. It determined that
“the” meant that the firearm had to be the one which was charged in the violation
of §922(g). In reaching this conclusion, the court first noted that the plain
language of the guideline must be followed. Id. at 1227. Then it continued:
2
Section 2K2.1(b)(5) reads: “If the defendant used or possessed any firearm or
ammunition in connection with another felony offense; or possessed or transferred any firearm or
ammunition with knowledge, intent, or reason to believe that it would be used or possessed in
connection with another felony offense, increase by 4 levels. If the resulting offense level is less
than level 18, increase to level 18.”
4
While the word "any" is general and nonspecific, the word "the" is
particular and specific. The Sentencing Guidelines themselves evince
an understanding of this distinction. When any firearm or ammunition
will do, the Guidelines use the nonspecific phrases "any firearm or
ammunition," see, e.g., USSG § 2K2.1(b)(5), or "a firearm or
ammunition," see, e.g., § 2K1.1(c)(1), rather than the specific phrase
"the firearm or ammunition." The use of "the firearm or ammunition"
in § 4B1.4(b)(3)(A), then, indicates that this Guideline applies only to
a particular firearm.
Id. at 1227-28.
Two other circuits have found this reasoning persuasive when interpreting
parts of § 2K2.1. In the first of them, the Eighth Circuit cited Sutton approvingly
when it held that § 2K2.1(b)(5) did not require the “any firearm” to be the one
charged in the indictment. United States v. Mann, 315 F.3d 1054, 1056 (8th Cir.
2003). The court characterized § 2K2.1(b)(5)’s “reference to ‘any firearm’” as
unambiguous. Id. The court also noted that the defendant’s construction of the
“any” to mean the charged firearm would lead to an absurd result, i.e. it would
reward those criminals who had the foresight to get rid of the weapon. Id. at 1057.
Although Mann did not involve the precise provision at issue here, it did involve a
provision of the same guideline that used the same key words, “any firearm.”
Thus, Mann is persuasive authority.
In United States v. Jardine, 364 F.3d 1200 (10th Cir. 2004), the Tenth Circuit
addressed § 2K2.1(c)(1), the very provision at issue here, and determined that it
5
referred to any firearm possessed by the defendant.3 The court started with the
plain language, noting that the Guidelines did not provide a definition of the term.
Id. at 1207. It cited Mann and Sutton for their discussion of the Guidelines’ use of
“the” and “any.” Id. at 1208. It held that the term “any firearm” was unambiguous.
Id. Finally, the court pointed to two further considerations: the fact that the
Guidelines require the court to consider all relevant conduct when sentencing and
the fact that the defendant’s interpretation would lead to an absurd result for the
same reason cited in Mann. Id.
By contrast, in United States v. Gonzales, 996 F.2d 88 (5th Cir. 1993), the
Fifth Circuit in dicta rejected the plain meaning of “any firearm,” reasoning that it
did not fit with the “overall context of section 2K2.1.” 996 F.2d at 92 n.6. The
court reasoned that the “any firearm” must be at least related to the one charged in
the indictment. Id. Like Judge Arnold in his dissent in Mann, the court pointed to
the language in § 2K2.1(b)(4), which enhanced the sentence if “any firearm” was
stolen, and reasoned that this can only logically be the charged firearms or it would
not make sense. Id.4
3
The Supreme Court vacated this decision and on remand, the Tenth Circuit reinstated
its opinion but remanded for resentencing consistent with Booker. United States v. Jardine, 406
F.3d 1261 (10th Cir. 2005).
4
The context of § 2K2.1(b)(4), enhancing the offense level of the possession by two if
the firearm was stolen, may suggest that it refers to the charged firearm as having been stolen.
6
We join the Eighth and Tenth Circuits to hold that “any firearm” truly means
any firearm.5 As we earlier held in Sutton, the Sentencing Commission uses “the”
and “any” purposely and makes distinctions depending on which word it uses.
302 F.2d at 1227. There is nothing in the language or context of subsection (c)(1)
that modifies the words “any firearm,” nor is there anything in the application notes
that suggests a different interpretation. Therefore, “any,” as used in subsection
(c)(1), can apply to firearms not named in the indictment.
B. Does the conduct used in the § 2K2.1(c) cross reference have to fall
within the relevant conduct definition?
The relevant conduct provision of the Guidelines expressly provides that
“[u]nless otherwise specified . . . cross references in Chapter Two . . . shall be
However, there is no similar context in the instant § 2K2.1(c)(1) to override the plain meaning of
the word "any."
5
It is not absolutely clear where the Sixth Circuit fits with respect to these issues. In
United States v. Settle, 414 F.3d 629 (6th Cir. 2005), reinstating in part 394 F.3d 422 (6th Cir.
2005), the Sixth Circuit seemed to agree with the Eighth Circuit in Mann and the Tenth Circuit in
Jardine that "any firearm" meant any firearm used by the defendant in connection with another
offense within the relevant conduct of the charged offense, see id. at 633. However, on the next
page, the court seemed to also require that the firearm itself, which was used in connection with
the other offense, must have some "clear connection" with the firearm possessed in the charged
offense. Id. at 634. It is not absolutely clear that the connection between the two firearms would
be deemed sufficiently clear if the only connection is that the different firearm is used in
connection with another offense which is within the relevant conduct of the charged offense. If
the answer to that question is in the affirmative, then the Sixth Circuit is aligned with the Eighth
Circuit and the Tenth Circuit, and with our holding in this case.
7
determined on the basis of the following . . . [describing four categories of relevant
conduct].” Section 1B1.3(a).6 Thus, the short answer to the question is yes, the
other offense cross-referenced in Section 2K2.1(c) must be within the relevant
conduct of the charged offense “unless otherwise specified.”
Like the question about the meaning of “any firearm,” a split has developed
among the circuits regarding the question of whether the cross-referenced offense
in § 2K2.1(c) must be within the relevant conduct of the charged offense. The
6
Section 1B1.3(a) reads:
Chapters Two (Offense Conduct) and Three (Adjustments). Unless otherwise specified,
(i) the base offense level where the guideline specifies more than one base offense level,
(ii) specific offense characteristics and (iii) cross references in Chapter Two, and (iv)
adjustments in Chapter Three, shall be determined on the basis of the following:
(1)(A) all acts and omissions committed, aided, abetted, counseled, commanded,
induced, procured, or willfully caused by the defendant;
...
that occurred during the commission of the offense of conviction, in preparation
for that offense, or in the course of attempting to avoid detection or responsibility
for that offense.
(2) solely with respect to offenses of a character for which § 3D1.2(d) would
require grouping of multiple counts, all acts and omissions described in
subdivisions (1)(A) and (1)(B) above that were part of the same course of conduct
or common scheme or plan as the offense of conviction;
(3) all harm that resulted from the acts and omissions specified in subsections
(a)(1) and (a)(2) above, and all harm that was the object of such acts and
omissions; and
(4) any other information specified in the applicable guideline.
8
Seventh Circuit has consistently held that § 1B1.3's relevant conduct definition
must be applied to the conduct contained in the § 2K2.1(c) cross reference. See,
e.g., United States v. Jones, 313 F.3d 1019, 1022 (7th Cir. 2002). To support this
reading, the Seventh Circuit cited the language of § 1B1.3, which states that cross
references under Chapter Two have to fit under the relevant conduct test: “‘Unless
otherwise specified, . . . (iii) cross references in Chapter Two . . . shall be
determined on the basis of the following [definitions of relevant conduct].’”
United States v. Ritsema, 31 F.3d 559, 564 (7th Cir. 1994) (quoting U.S.S.G. §
1B1.3(a)). This language makes § 1B1.3 “a general application principle that
governs both cross references in Chapter Two offenses and offense level
adjustments in Chapter Three, provided those sections do not specify to the
contrary.” Id. The commentary to § 1B1.3, the court noted, provides that only
where there are “more explicit instructions” should the relevant conduct not be
used. Id. at 565. The court in Ritsema held that the language in § 2K2.1(c), “in
connection with,” failed to provide the necessary “more explicit instruction[].” Id.
Therefore, it held that the relevant conduct requirements found in § 1B1.3
governed the use of the § 2K2.1 cross reference. Id.
9
Several other circuits have joined this interpretation.7 The Tenth Circuit in
Jardine married its broad interpretation of “any firearm” to the Guidelines’
requirement that the cross-referenced conduct be within the relevant conduct. 364
F.3d at 1209. The Sixth Circuit also requires that the other offense cross-
referenced by § 2K2.1(c)(1) be within the relevant conduct of the charged firearm
offense. Settle, 414 F.3d at 633-34.
By contrast, the Fifth Circuit has held that § 1B1.3's strictures on relevant
conduct do not apply to § 2K2.1(c)(1)’s cross-referenced conduct. Gonzales, 996
F.2d at 91-92. The court stated: “the broad language of section 2K2.1(c)(1),
particularly its unlimited references to 'another offense,' indicates that it is not
restricted to offenses which would be relevant conduct but embraces all illegal
conduct performed or intended by defendant concerning a firearm involved in the
charged offense.” Id. at 92.
We join with the circuits that have held that the cross-referenced conduct
7
In justifying its broad interpretation of "any firearm" to mean truly any firearm, the
Eighth Circuit, in Mann, relied upon the Guidelines' instruction that other offenses referred to in
specific offense characteristics (and cross references) are limited to such other offenses as fall
within the relevant conduct of the charged offense. 315 F.3d at 1056. Mann dealt with the §
2K2.1(b)(5) enhancement for possessing any firearm in connection with another felony. Section
1B1.3 states that specific offense characteristics, of which § (b)(5) is one, are to be governed by
the same relevant conduct provision as are cross references. Additionally, because the language
of (b)(5) is essentially the same as (c)(1), the Eighth Circuit would likely regard the language in
(c)(1) as not being explicit enough to warrant disregarding the strictures of § 1B1.3.
10
must fall under the definitions of relevant conduct found in § 1B1.3. Section 1B1.3
specifically provides that offenses cross-referenced in Chapter Two mean offenses
within the relevant conduct, unless otherwise specified. The language of §
2K2.1(c) – “[i]f the defendant used . . . any firearm . . . in connection with the
commission . . . of another offense” – does not specify, one way or the other,
whether the other offense should be within the relevant conduct. In other words,
the mere reference to “another offense” does not resolve the question of whether
the other offense must be within the relevant conduct of the charged offense. Thus,
we readily conclude that § 2K2.1(c) does not “otherwise specify,” and therefore the
general principle of §1B1.3 applies to require that such other offenses must be
within the relevant conduct of the charged offense.
C. Is the aggravated assault on McCants within the relevant conduct of the charged
firearm offense?
In the case before us, the Government argues that the assault on McCants
falls under the relevant conduct provision found at § 1B1.3(a)(2). This is the
provision that applies to “offenses of a character for which § 3D1.2(d) would
require grouping of multiple counts.” U.S.S.G. § 1B1.3(a)(2). However, §
11
3D1.2(d) specifically excludes assault from being grouped.8 Therefore, the
definition of relevant conduct found in § 1B1.3(a)(2) is not available to the
Government.9 See Jones, 313 F.3d at 1023 n.3 (rejecting an argument that an
armed robbery/felony murder was relevant conduct under § 1B1.3(a)(2) because
that provision requires that the other offense be one for which § 3D1.2(d) would
require grouping, and because the armed robbery/felony murder was specifically
excluded from the grouping operation of § 3D1.2(d)); accord Settle, 414 F.3d at
632 n.2; see also Ritsema, 31 F.3d at 566 (rejecting use of § 1B1.3(a)(2) because §
2K2.1 and § 2J1.2 (obstruction of justice) were not listed as offenses that were to
be grouped together).
Because this was the theory upon which the Government relied below to
show relevant conduct, and apparently was the only rationale relied upon by the
district court, we vacate Williams’s sentence and remand for resentencing. The
district court shall examine the other provisions of § 1B1.3 to determine if the
assault is relevant conduct to the possession, and craft a reasonable sentence under
8
Section 3D1.2(d) specifically excludes from its operation “all offenses in Chapter Two,
Part A,” which encompasses assault offenses.
9
The Government also makes an argument that it is not the assault that would be
grouped but rather the firearm used in the assault. This in not correct: § 2K2.1(c)(1) refers to
another offense in which a firearm was used. Therefore, it is the other offense which must be
subject to the rules regarding grouping because it is the assault guideline that is used to calculate
the offense level.
12
the advisory Guidelines.
Accordingly, Williams’s sentence is VACATED and REMANDED for
resentencing.
13
CARNES, Circuit Judge, concurring:
Concurring in the judgment and joining the opinion of the Court, I write
separately to comment on where we are after the decision in Booker v. United
States, 543 U.S. ___, 125 S. Ct. 738 (2005), and to offer a suggestion to the district
courts which may help avoid unnecessary resentence proceedings.
The Booker decision did not free us from the task of applying the Sentencing
Guidelines, some provisions of which are mind-numbingly complex and others of
which are just mind-numbing. Because the post-Booker regime requires “accurate
advice” from the guidelines, we have held that the guidelines must be applied
correctly. United States v. Ellis, 419 F.3d 1189, 1192 (11th Cir. 2005); United
States v. Jordi, 418 F.3d 1212, 1215 (11th Cir. 2005); United States v. Crawford,
407 F.3d 1174, 1178 (11th Cir. 2005). The sword dance must still be done. Its
steps can be intricate and the music unrelenting, as this case shows.
The defendant, a convicted felon, was caught red-handed in possession of
two firearms. Few crimes are easier to prove, and the defendant pleaded guilty to
violating 18 U.S.C. § 922(g)(1). The most important facts for sentencing purposes
are that the defendant had two prior felony convictions and an adult lifetime full of
convictions for lesser offenses; he was on supervised release at the time of this
crime; he possessed not one but two weapons when arrested; and he had shot a man
14
four days before he was caught possessing these firearms. The district court
sentenced the defendant to 96 months imprisonment, a reasonable sentence that, if
anything, is on the light side in view of the facts. In a simpler—and some would
say more rational—system of sentencing and review, that would have been the end
of it. But here we are vacating an unquestionably reasonable sentence and sending
the case back to the district court for another sentence proceeding in which, after
the defendant is hauled from prison into court again, and more scarce resources are
spent, the district court will be free to pronounce the same 96-month sentence it
imposed the first time around. And, of course, the defendant will have nothing to
lose from appealing that sentence again.
We do all of this because the sentencing system in place forces us to review
for any perceived mistake each step the district court took in dancing its way
through the intricate guidelines, advisory though they be. If convinced that the
district court made it through the guidelines without a misstep, which is to say that
it interpreted those provisions exactly the way we do, we also assess the
reasonableness of the actual sentence imposed. The Booker decision has added
that issue to those that we review. The reality is, however, that our reversals stem
from interpretation of the guidelines, not from the unreasonableness of the
sentences that district courts are imposing. Without much exception, in the post-
15
Booker world we send cases back for resentencing because of some difference of
opinion about the advice that the guidelines provided the district court, not because
we think the sentence imposed is unreasonable.
This case is a good example of how we are spending our sentence review
time. In the course of reviewing the sentence in this simple-crime case, we have
decided three guidelines issues, at least two of which are difficult enough to have
produced circuit splits. The first issue has to do with the meaning of one word in
one clause of one subdivision of one subsection of one guideline. See U.S.S.G. §
2K2.1(c)(1)(“[i]f the defendant used or possessed any firearm or ammunition in
connection with another felony offense . . .”) (emphasis added). As the Court
explains, two other circuits appear to be on one side of this interpretive issue, one
circuit is on the other side of it, and the opinion of yet another circuit is confusing
enough that we cannot tell where it stands on the issue. The second issue is a
different one involving the same cross-reference provision, § 2K2.1(c), and its
relation to another provision, § 1B1.3, and that issue has also produced a circuit
split.
The district court’s misstep, if any, involves not those two guidelines issues
but instead the relevant conduct provision of § 1B1.3(a)(2) and § 3D1.2(d), which
§ 1B1.3(a)(2) incorporates by reference, and the effect of those provisions on the
16
calculation of the advisory guidelines sentencing range in this case. Because of our
reading of the guidelines provisions, we are setting aside a perfectly reasonable
sentence and sending the case back for more proceedings which probably will
result in the same sentence being imposed again. We do not even hold that the
relevant conduct provision is inapplicable but instead direct the district court to
examine other theories under which it might be applied. However that court
resolves the relevant conduct issue on remand, whatever it decides the advisory
guidelines range is in light of what we have said, it still must consider the same 18
U.S.C. § 3553(a) factors that it did initially in deciding the appropriate sentence in
this case.
Therein runs a thread of madness through the method now in place. We
review and decide close, hair-splitting interpretive issues arising from guidelines
that are only advisory, and we set aside sentences even though the district court,
once its “misunderstanding” of the guidelines is corrected, is free to impose the
same sentence, and usually will do so. The guidelines are based upon decisions
that the Sentencing Commission made after considering the factors set out in
§ 3553(a), which are the same factors the district court must consider in reaching
its decision about the proper sentence in a case after it has calculated the
Commission’s advice in the form of a guidelines range. If a district court
17
misinterprets how the Sentencing Commission has resolved the application of the §
3553(a) factors in a given factual setting—if it misapplies the guidelines—then the
court has misread the advice it is to consider, but it still has the responsibility to
decide for itself how the § 3553(a) factors apply to the case before it. If the federal
court system had endless resources or light dockets, the post-Booker system of
sentence review would make more sense, but the judicial world we inhabit is one of
scarce resources burdened by heavy demands. Of course, neither this Court nor the
district courts can change the Booker guidelines sentencing regime and the
appellate review system that applies to it.
There is, however, something that the district courts can do to minimize
pointless reversals and unnecessary do-overs of sentence proceedings. If a
sentencing court is faced with a guidelines question that may become an issue on
appeal, the court can indicate whether the advice that results from its resolution of
that question makes a difference in the sentence. For example, in this case if the
district court had stated that regardless of how the guidelines relevant conduct issue
was resolved, it would consider the prior assault under § 3553(a)(1) & (2)(C) and
on that basis would still impose the same 96-month sentence, we would not have to
send this case back for more sentence proceedings. The sentencing court might
have stated that its ruling on the relevant conduct issue resulted in a guidelines
18
range of 77 to 96 months, but that if it were wrong about that and the range was
only 27 to 33 months, the sentence still would have been 96 months based on the §
3553(a) factors. On that basis we could and would have affirmed.
This suggestion is not some radical new idea born of frustration churned up
by the Booker decision. The Supreme Court and this Court have long recognized
that it is not necessary to decide guidelines issues or remand cases for new sentence
proceedings where the guidelines error, if any, did not affect the sentence.
See Williams v. United States, 503 U.S. 193, 202, 112 S. Ct. 1112, 1120–21 (1992)
(“[O]nce the court of appeals has decided that the district court misapplied the
Guidelines, a remand is appropriate unless the reviewing court concludes, on the
record as a whole, that the error was harmless, i.e., that the error did not affect the
district court’s selection of the sentence imposed.”); United States v. Blas, 360 F.3d
1268, 1272–73 (11th Cir. 2004) (declining to decide whether the district court
misapplied the guidelines where the district court would have reached the same
sentence regardless of any error); United States v. Hersh, 297 F.3d 1233, 1250–54
(11th Cir. 2002) (holding that the sentence was “without error and need not be
remanded for resentencing” even though the district court erred in applying the
grouping guidelines because the district court had stated that it would have reached
the same result through an upward departure if necessary); United States v.
19
Kendrick, 22 F.3d 1066, 1068 (11th Cir. 1994) (recognizing that if a guidelines
error “did not affect the district court’s selection of the sentence imposed” the
sentence is due to be affirmed) (internal citations and marks omitted).
Of course, if a sentencing court believes that how it resolves a particular
guidelines issue does matter—that the sentence it imposes would have been
different if the guidelines range had been—the court can note that for the record as
well. That kind of information would help us focus our appellate attention on the
issues that matter. And nothing I have said is meant to imply that a district court is
not free to decide a disputed guidelines issue without mentioning, or even
considering, whether the result of that decision actually affects the sentence it
imposes following consideration of the § 3553(a) factors. It is the prerogative of
sentencing courts to speak or remain silent about such matters. The choice is
theirs.
20