United States Court of Appeals
For the First Circuit
No. 01-1446
UNITED STATES OF AMERICA,
Appellee,
v.
ALDRIN DIAZ,
Defendant, Appellant.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF RHODE ISLAND
[Hon. Ronald R. Lagueux, U.S. District Judge]
Before
Torruella, Circuit Judge,
Coffin, Senior Circuit Judge,
and Lipez, Circuit Judge.
Eileen F. Shapiro, by Appointment of the Court, for appellant.
Donald C. Lockhart, Assistant U.S. Attorney, with whom
Stephanie S. Browne, Assistant U.S. Attorney, and Margaret E.
Curran, United States Attorney, were on brief, for appellee.
March 26, 2002
COFFIN, Senior Circuit Judge. Appellant Aldrin Diaz seeks
reversal of his conviction for being a felon in possession of a
firearm in violation of 18 U.S.C. § 922(g)(1). He asserts that the
district court committed plain error by placing the burden on him
to prove his defense of justification. He alternatively challenges
the district court's decision to depart upward from the Sentencing
Guidelines. We find no plain error in the instruction, but detect
flaws in the sentencing that require reconsideration of the
departure. We therefore affirm the conviction, vacate the term of
imprisonment, and remand for re-sentencing.
I. Factual Background
Although certain particulars of the episode underlying this
appeal are disputed, the differences are largely irrelevant to the
issues before us. The essential facts, as the jury could have
found them, are as follows. In the early morning hours of January
28, 2000, appellant and his girlfriend, Christa Calder, dropped off
two friends at a fast-food restaurant in Providence, Rhode Island,
so they could use the restroom. When appellant and Calder drove
back to the restaurant a few minutes later, they found the two
women, Brenda Ruiz and Jenny Vazquez, involved in a dispute with
two other women in the restaurant's vestibule. Appellant stepped
from the car and placed himself between the two pairs of women.
Ruiz reached around him and struck one of the other women,
Stephanie Zoglio, in the face. Ruiz held a broken glass and also
may have possessed a pen with a concealed knife inside it. Zoglio
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may have possessed a box cutter, although appellant testified that
he never saw it.
Unsuccessful in his efforts to separate the combatants,
appellant moved back toward Calder's car. Shortly thereafter,
someone -- perhaps the fourth woman, Diana Villafane -- threw two
objects that hit the car's hood.1 At that point, appellant walked
over to Villafane and shoved her, causing her to fall backward. A
friend of Villafane's, Wayne Pemberton, responded by rushing at
appellant. During the ensuing struggle, Pemberton pushed appellant
onto the hood of Calder's car and fell onto the hood himself.
Appellant rolled onto the ground and yelled to Calder for her gun.
Calder retrieved the loaded gun from the car's glove compartment
and handed it to him. Appellant waved the gun at the crowd that
had gathered, yelling several times "you better run." Pemberton
slipped behind a nearby truck, while making motions suggesting that
he, too, was reaching for a weapon, although he did not have one.
Calder testified that the scene was chaotic, the noise level was
loud, and both Ruiz and Vazquez had blood on them.
Appellant, Calder, and their two friends got back into the
car, with appellant at the wheel while holding the gun.2 Before he
could drive off, uniformed Providence police officers arrived and
directed appellant to drop the gun. He tossed it onto Calder's
lap, complied with the officers' instructions to get on the ground,
1
The objects apparently were a bottle and a barbell.
2
Appellant testified that he had cocked the gun after he saw
Pemberton reach for a weapon.
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and began crawling toward the police. At about the same time,
Cornell Young, an off-duty police officer in plain clothes, emerged
from the restaurant with his gun drawn. The uniformed officers --
apparently not recognizing Young as a fellow officer -- also
ordered him to drop his weapon. He was fatally shot when he failed
to comply.
The gun wielded by appellant was purchased by Calder in Gray,
Maine, in November 1999. She testified that appellant had pointed
the gun at her during an argument in their apartment on January 26,
2000 -- two days before the restaurant incident -- and also had
taken the gun to his mother's house on or about January 7.
At trial, appellant sought to justify his use of the weapon
during the fracas at the restaurant as an attempt to break up the
escalating fight. He testified that he felt surrounded, dazed from
having been punched in the face, and in fear for his life because
he thought he saw Pemberton reaching for a gun. The district court
charged the jury that appellant had asserted a defense of
justification and that he was obliged to prove the defense by a
fair preponderance of the evidence. When discussing the issue at
the charging conference, the judge specifically referred to
conflicting precedent on whether the defendant or government bore
the burden of proof on the justification defense, concluding that
circuit and Supreme Court precedent required that affirmative
defenses be proven by the defendant. Neither the government nor
defense counsel objected to the instruction, either at the charging
conference or after the actual charge was given to the jury.
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Appellant was sentenced to the statutory maximum of 120 months
in prison. The district court relied on three separate guidelines
provisions for a four-level departure in the base offense level,
which represented an increase of at least thirty-three months in
appellant's sentence.
On appeal, appellant first claims that the district court
erred in placing the burden on him to prove justification. He
acknowledges that, having failed to object at trial to the
instruction, he must demonstrate that the error was plain. If he
fails to meet this standard, he seeks review of his sentence,
asserting that the district court had no legitimate basis to depart
upward from the guidelines. We address these issues in sequence.
II. Justification and the Burden of Proof
Appellant's effort to set aside his conviction based on the
district court's justification instruction is severely hampered by
his failure to interpose a contemporaneous objection. To vault the
high hurdle imposed by the plain error standard, appellant must
demonstrate that an error occurred and that it was clear or
obvious. United States v. Olano, 507 U.S. 725, 732 (1993); United
States v. Paniagua-Ramos, 251 F.3d 242, 246 (lst Cir. 2001).3 To
obtain relief from his conviction, therefore, appellant must show
not only that the justification instruction was incorrect but also
3
The four-part test also requires a showing that the error
affected substantial rights and "so seriously impaired the
fairness, integrity, or public reputation of the proceedings as to
threaten a miscarriage of justice." Paniagua-Ramos, 252 F.3d at
246.
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that it was obviously so. The state of the law forecloses such a
conclusion.
Three circuit courts have explicitly considered whether the
prosecution or defense bears the burden of proof on a justification
defense to a felon-in-possession charge, and they have reached
different conclusions. See United States v. Dodd, 225 F.3d 340,
350 (3d Cir. 2000); United States v. Deleveaux, 205 F.3d 1292, 1300
(11th Cir. 2000); United States v. Talbott, 78 F.3d 1183, 1186 (7th
Cir. 1996) (per curiam). The Third and Eleventh Circuits held that
the defendant must prove the defense by a preponderance of the
evidence, while the Seventh Circuit ruled that the government must
negate the defense beyond a reasonable doubt. If a circuit
conflict exists on a question, and the law is unsettled in the
circuit in which the appeal was taken, any error cannot be plain or
obvious. United States v. Gerrow, 232 F.3d 831, 835 (11th Cir.
2000); see United States v. Gilberg, 75 F.3d 15, 21-22 (lst Cir.
1996).
Appellant asserts that this sudden-death principle is
inapplicable here because First Circuit law is settled in his
favor. He invokes two decisions that involved a defense of duress
to drug charges, United States v. Arthurs, 73 F.3d 444, 448 (lst
Cir. 1996), and United States v. Amparo, 961 F.2d 288, 291 (lst
Cir. 1992). We held in Amparo that if the defendant produces
sufficient evidence to warrant a duress instruction, the government
must prove beyond a reasonable doubt that the defendant's criminal
acts were not in fact the product of duress. See 961 F.2d at 291.
-6-
The same result was reached in Arthurs, in reliance on Amparo. See
73 F.3d at 448. Appellant cites, in addition, the First Circuit's
pattern jury instructions, which state that the government has the
burden of disproving the defenses of self-defense and duress once
they have been properly raised. First Circuit Pattern Criminal
Jury Instructions §§ 5.04 and 5.05 (1998) ("First Circuit
Instructions").
While these First Circuit authorities seem facially apropos to
appellant's position, closer scrutiny reveals their shortcomings.
The court in Amparo explicitly limited its holding on the
government's burden of disproving duress to those cases in which
"the charged crime requires mens rea," 961 F.2d at 291. In both
Amparo and Arthurs, the defendants were charged, inter alia, with
"knowingly or intentionally" possessing cocaine with the intent to
distribute it. The pattern jury instructions reflect a similar
limitation; although some portions of the instructions express a
broader proposition,4 the Comment to the provision on "Duress,"
§ 5.05, echoes the Amparo qualification that "[t]he burden of
persuasion remains with the government, at least if the charged
crime requires mens rea." This allocation of the burden is logical
4
For example, the Introductory Comment on the section
covering defenses states:
Except for the insanity defense, the defendant need only
meet a burden of production, in which event the burden of
persuasion is on the prosecution to negate the defense
beyond a reasonable doubt.
First Circuit Instructions § 5, intro. cmt.
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in light of the government's obligation to prove all elements of a
crime, including the specified criminal intent.5
Whether Amparo's articulation of the burden extends to a case
in which the only charge is possession of a firearm by a felon --
a strictly worded crime without a specific mens rea -- is at least
debatable in light of its qualifying language. Indeed, were we to
reach the merits, we think it problematic whether Amparo's holding
would survive in this different context. We particularly note the
thoughtful analyses of the Third and Eleventh circuits, which led
those courts to conclude that the burden to prove justification
constitutionally and pragmatically is properly placed on the
defendant in a felon-in-possession case. See Dodd, 225 F.3d at
343-350; Deleveaux, 205 F.3d at 1298-1301.6 It strikes us as good
sense to examine both the particular crime and the particular
defense at issue in assigning the burden of proof. See Dodd, 225
F.3d at 349 (noting the "diversity of analytical solutions that the
appellate courts have reached with respect to various affirmative
5
Indeed, the Due Process Clause of the Fourteenth Amendment
requires the government to disprove beyond a reasonable doubt any
defenses that negate an element of the charged offense. See
Patterson v. New York, 432 U.S. 197, 210 (1977).
6
Both courts initially noted that there was no constitutional
bar to placing the burden on the defendant. See Dodd, 225 F.3d at
344; Deleveaux, 205 F.3d at 1298-99. Both also pointed to
Congress's intent to broadly prohibit possession of firearms by
convicted felons, see Dodd, 225 F.3d at 350; Deleveaux, 205 F.3d at
1300, and they recognized that the defendant "will usually be best-
situated to produce evidence relating to each element of this
affirmative defense," Deleveaux, 205 F.3d at 1300 (quoted in Dodd,
225 F.3d at 347, 350). The Third Circuit further observed that
placing the burden on the defendant was consistent with the common
law, which placed the burden on the defendant to prove all
affirmative defenses. See Dodd, 225 F.3d at 348.
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defenses," and rejecting the argument that consistency required the
court to follow entrapment precedents that place the burden on the
government).
We need delve no further into the merits of the issue. What
we have said thus far suffices to show that the law is unsettled,
both within and outside the First Circuit, and appellant is
therefore unable to meet the plain error standard. Even if it were
error to place the burden of proving justification on appellant --
a proposition we doubt -- any such error was not plain.
Consequently, we affirm the judgment of conviction.
III. Sentencing Departures
The district court invoked three provisions of the Sentencing
Guidelines to increase appellant's sentence from the term specified
for his base offense level and criminal history category -- a range
of 70 to 87 months7 -- to the statutory maximum of 120 months.
This represented an upward departure of four levels. We review de
novo whether the district court utilized a proper basis for
departure, United States v. Chapman, 241 F.3d 57, 63 (1st Cir.
2001), but apply the clear error standard to the court's
determination that the circumstances "warrant[ed] the departure in
the case at hand," id. The extent of the departure will be upheld
as reasonable unless it reflects a manifest abuse of discretion.
United States v. Amirault, 224 F.3d 9, 14 (lst Cir. 2000).
7
This calculation included a separate two-level enhancement
for obstruction of justice, bringing appellant's base offense level
to 20.
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As we discuss below, the district court's erroneous reliance
on one basis for departure, combined with lack of advance notice of
its use of a second departure provision and the uncertain
sufficiency of the third provision as the sole basis for the
departure, requires that the case be remanded for re-sentencing.
We explain our conclusion by addressing each of the three relevant
provisions of the guidelines.
A. The Departure under U.S.S.G. § 4A1.3, p.s.
This provision allows a district court to depart from the
otherwise applicable sentencing range "[i]f reliable information
indicates that the criminal history category does not adequately
reflect the seriousness of the defendant's past criminal conduct or
the likelihood that the defendant will commit other crimes . . . ."
Appellant's criminal history score of 19 gave him six points more
than the threshold for Criminal History Category VI, the highest
category in the guidelines. In such a case, a court seeking to
impose a sentence appropriate for the defendant's record may depart
from the guideline range by moving down the sentencing table to a
higher offense level. U.S.S.G § 4A1.3, p.s.; see Chapman, 241 F.3d
at 63. In other words, when the criminal history category cannot
be adjusted upward to account for a defendant's score because he
already is in the top category, a court "may instead adjust upward
the offense level in order to arrive at an appropriate sentence."
Chapman, 241 F.3d at 63. Based on this provision, the district
court moved two levels from offense level 20 to offense level 22,
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which provided a sentencing range of 84 to 105 months, an increase
of eighteen months at the maximum end of the range.
Appellant challenges this departure on two fronts. First, he
contends that his criminal history was not sufficiently "egregious"
to trigger § 4A1.3. See U.S.S.G. § 4A1.3, p.s. (allowing departure
in the case of "an egregious, serious criminal record"). Second,
he argues that he is entitled to a remand because he received no
notice that the district court intended to depart on this basis --
which, as acknowledged by the government, was a violation of
U.S.S.G. § 6A1.3(a), p.s. and Fed. R. Crim. P. 32(c)(1). See Burns
v. United States, 501 U.S. 129, 138-39 (1991); United States v.
Martin, 221 F.3d 52, 55-56 (lst Cir. 2000). He asserts that the
omission was not harmless, as the lack of notice deprived him of
the opportunity to fully demonstrate why this departure was
unwarranted. He further argues that the record fails to show that
the court would have imposed a four-level upward departure even if
§ 4A1.3 were not considered.
We need not evaluate the egregiousness of appellant's record
because we find his notice argument to be dispositive. The court
departed a total of four levels based on three provisions. Two
levels were attributed explicitly to § 4A1.3 -- the basis for which
appellant received no notice. The other departures were not
assigned any particular increase; the court simply moved up to the
statutory maximum in reliance on the two additional provisions. To
find harmless error, as indeed the government argues, we would have
to conclude that the court inevitably would have departed upward by
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four levels based solely on those two other factors. See Williams
v. United States, 503 U.S. 193, 204 (1992) ("[A] remand is
appropriate unless the reviewing court concludes, on the record as
a whole . . . that the error did not affect the district court's
selection of the sentence imposed.").8 One of those provisions,
however, we find inapplicable. See Section B infra. We cannot say
with assurance, based on the factual circumstances, that the court
would have ordered the same upward departure in reliance solely on
the other. See Section C infra. Consequently, we must remand for
re-sentencing.
B. The Departure under U.S.S.G. § 2K2.1
This provision, which governs firearms offenses, establishes
a range of penalties depending upon the particulars of the crime
and the defendant's criminal background. Application Note 16 to §
2K2.1 states that an upward departure may be warranted in four
alternative circumstances: (1) the number of firearms significantly
exceeded fifty; (2) the offense involved multiple military assault
8
In United States v. Jackson, 32 F.3d 1101, 1110 (7th Cir.
1994), the court noted that the harmless error doctrine in lack-of-
notice cases "requires that we decide whether the same sentence
would have been imposed if the district court either: (1) had not
relied on the factor for which no notice was given, or (2) had
given adequate notice." Appellant's criminal background was not so
extensive or serious that we can say that the court certainly would
have imposed the departure, regardless of a fully prepared
objection from appellant. Cf. Chapman, 241 F.3d at 64 (thirty-six
criminal history points deemed "extreme," along with immediate
recidivism and violent crimes); United States v. McKinley, 84 F.3d
904, 910-11 (7th Cir. 1996) (forty points warranted departure);
United States v. Carillo-Alvarez, 3 F.3d 316, 320-23 (9th Cir.
1993) (nineteen points -- the same number as appellant --
insufficient to support departure). We thus must consider whether
the court would have imposed the same sentence without reliance on
U.S.S.G. § 4A1.3.
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type weapons or similarly destructive guns and other devices; (3)
the offense involved large quantities of armor-piercing ammunition,
or (4) "the offense posed a substantial risk of death or bodily
injury to multiple individuals." U.S.S.G. § 2K2.1, cmt. n.16; see
generally United States v. Diaz-Martinez, 71 F.3d 946, 952-53 (lst
Cir. 1995).
The district court concluded that a departure was appropriate
under the fourth clause of Note 16 because appellant "had a firearm
cocked and pointed, thus posing a substantial risk of death or
bodily injury to a multitude of individuals who were out in front
of that restaurant that night." The judge noted that "[j]ust a
little action on the trigger would have caused the bullet to be
ejected toward a crowd of people and someone could have been
killed."
Appellant asserts that the district court improperly invoked
Application Note 16 for two reasons. First, he contends that his
circumstances do not fit into the category of uniquely dangerous
firearms crimes covered by Note 16. Each of the first three
clauses reflects a concern about extraordinary threats to public
safety based on either the quantity or nature of the firearms at
issue. The fourth clause, he maintains, reflects a similar concern
that is inapplicable to his brandishing of a single .22-caliber
pistol capable of firing only one bullet at a time. Second,
appellant argues that the threat posed by his display of the gun
already was taken into account in computing his sentence. The
court imposed a four-level upward adjustment in his offense level
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under § 2K2.1(b)(5), which provides for such an increase when a
firearm was used or possessed in connection with another felony
offense. The district court explained the basis for this upward
adjustment as follows:
He clearly possessed this firearm in connection with
another felony offense, in fact, multiple felony
offenses. He assaulted a number of people with this
firearm by holding this crowd at bay with the firearm and
cocking the firearm ready to fire. It's a wonder
somebody wasn't killed at that point.
Because the court's expressed rationale for the four-level
adjustment was essentially the same as his reason for imposing a
departure under Note 16, appellant argues that the departure
constituted impermissible double-counting.
We are persuaded that the court's use of Note 16 as a basis
for departure was in error. We agree with appellant that clause
four of the Note, when read in context with the three provisions
that precede it, is reasonably interpreted to authorize departure
for conduct that is dangerous to an extraordinary degree. The
other prerequisites of Note 16 -- firearms exceeding fifty in
number, use of military assault type weapons, or large quantities
of armor-piercing ammunition -- indicate to us an intent that the
threat to multiple individuals of death or bodily injury be more
obvious and potent than the present record reveals. Here, the
court noted the crowd and observed that "someone could have been
killed" had defendant discharged the cocked weapon, but we conclude
that brandishing a single small weapon in a single episode, with no
evidence of an intent to fire, is insufficient to support a
departure aimed at punishing conduct that puts multiple individuals
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at substantial risk of injury or death. By contrast, in Diaz-
Martinez, 71 F.3d at 952-53, we affirmed a Note 16 departure where
the defendant had engaged in a shootout in a congested shopping
center parking lot and had rammed his car into another vehicle.
Surrounding vehicles were riddled with bullet holes. See also
United States v. Brunet, 178 F. Supp. 2d 342, 344-45 (S.D.N.Y.),
aff'd, 275 F.3d 215 (2d Cir. 2001) (applying Note 16(4) where
agents retrieved, inter alia, a block of explosives that could have
destroyed several buildings if detonated); United States v. Alers,
852 F. Supp. 310, 314-16 (D.N.J.), aff'd, 40 F.3d 1241 (3d Cir.
1994) (applying Note 16(4) where defendant caused more than 400
guns to be distributed in the drug underworld).
Thus, even if the reckless brandishing of this type of loaded
handgun could in other circumstances support use of Note 16(4), the
provision's applicability to a limited category of unusually
dangerous firearms crimes renders it inapposite here. Although
some increase beyond the standard sentence for possession of a
firearm by a felon was warranted based on the risk posed by
appellant's reckless conduct, Note 16(4) was not in these
circumstances an available path to reach that result. The court
took advantage of an appropriate alternative when it imposed the
four-level adjustment under § 2K2.1(b)(5). To notch it up again
pursuant to Note 16 would overstate the severity of appellant's
criminal activity by equating it with the extraordinarily dangerous
conduct reflected in the other subsections of Note 16. We
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therefore conclude that the departure under Note 16 of § 2K2.1 was
improper.
C. The Departure under § 5K2.1, p.s.
This provision of the guidelines is a policy statement
providing for an upward departure when death results from the
defendant's criminal activity. Among the factors to be considered
in evaluating whether such a departure is warranted are (1) the
defendant's state of mind, (2) the degree of planning or
preparation, (3) whether multiple deaths resulted, and (4) the
means by which life was taken. U.S.S.G. § 5K2.1, p.s.
The district court found the provision applicable because
appellant
set in motion a whole series of events which ultimately
led to the death of Officer Young. If he hadn't drawn
that pistol, if he hadn't brandished that firearm,
Officer Young would be alive today. The police officers
would not have drawn their weapons. Officer Young
undoubtedly would not have drawn a weapon. This whole
tragedy would have been avoided. So there's a basis for
upward departure.
Appellant argues that Officer Young's death was an
unpredictable occurrence insufficiently related to his criminal
conduct to justify prolonging his term of imprisonment. He notes
that none of the factors cited in the policy statement weigh toward
departure -- not only was his offense conduct spontaneous, but it
also was unforeseeable that Officer Young would neither be
recognized by fellow officers nor respond to their command that he
drop his gun. In sum, he argues, the circumstances do not warrant
punishment based on the unfortunate, but completely chance, death
of the officer.
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Although we can agree that appellant's culpability is at the
low end of the spectrum contemplated by the policy statement, in
that he was an indirect cause of Officer Young's death, we are
unable to conclude that he is outside its scope. By using a
weapon, appellant invited weapon use by others. Unintended
consequences are often the result of reckless behavior, and while
he could not have anticipated the particular sequence of events,
appellant should have foreseen the possibility of serious harm as
a result of his waving a cocked and loaded gun at a crowd of
people. We see no basis for foreclosing departure under § 5K2.1
when a defendant puts into motion a chain of events that risks
serious injury or death, even when an intent to harm is entirely
absent and the defendant was not directly responsible for the
death. See United States v. Fortier, 242 F.3d 1224, 1232-33 (10th
Cir. 2001) (an increased sentence may be imposed for "harms that
were a 'reasonably foreseeable' consequence of a defendant's
conduct even where a defendant did not directly cause the specified
harm") (citation omitted).
Ameliorating factors may, of course, lead some trial judges to
refrain from a departure under § 5K2.1, and, in any event, such
factors should bear on the extent of the departure. Here, the
evidence supports appellant's claim that he had no intent to use
the gun other than as a show of force designed to permit his and
his friends' escape from an escalating confrontation.9 At about
9
Although the evidence was not entirely consistent, most of
the witnesses testified that appellant pointed the gun in the air
when confronting the onlookers.
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the time of the fatal shooting, appellant had released the weapon
and was complying with law enforcement orders that he get down on
the ground and move toward them. The death itself was an
unfortunate tragedy of mis-identification. Given these
circumstances, we think it unlikely that the court would have
departed upward four levels based solely on § 5K2.1. This is
particularly so because, as noted above, the risk of serious injury
from appellant's conduct already was reflected in the four-level
adjustment under § 2K2.1(b)(5).
The government suggests that the district court would have
increased appellant's sentence to the statutory maximum even
without reliance on the three separate departure provisions, citing
the judge's statement that he "would depart upward beyond the
statutory maximum if I had that power." At the time he made that
comment, however, the judge believed he had multiple grounds for
departure. Moreover, the statement reflects the court's
understandable frustration with appellant's allocution, in which
appellant denied any responsibility for Officer Young's death and
repeatedly ignored the judge's and marshal's directives that he
stop his rambling, offensive personal comments, which included
references to the judge's son and brother.
The record therefore does not permit us to conclude that the
lack of notice regarding § 4A1.3 and the error in applying Note 16
of § 2K2.1 were harmless. With the one valid ground of departure
having limited force in the particular circumstances, the sentence
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inevitably reflects reliance on the other two provisions. A remand
for re-sentencing is required.10
IV. Conclusion
We affirm appellant's conviction, rejecting his claim that the
district court committed plain error by instructing the jury that
he bore the burden of proving that his firearm possession was
justified. The circuits are split on the burden of proving
justification in a felon-in-possession case, and First Circuit law
on that particular question is unsettled. The case must be
remanded to the district court for re-sentencing, however, because
two of three provisions on which the court based an upward
departure were utilized improperly.
The judgment of conviction is affirmed, the sentence is
vacated, and the case is remanded for re-sentencing.
10
We note that the court's signed judgment states that the
"Total Offense Level" is 20 and lists only Note 16 of § 2K2.1 and
§ 5K2.1 as the bases for departure -- apparently omitting the two-
level departure based on § 4A1.3, the provision for which appellant
lacked notice. Neither appellant nor the government address the
seeming discrepancy, and because both assume that the sentence
reflected reliance on that provision, we do likewise. In any
event, the lack of clarity further confirms the need for a remand.
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