[PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT FILED
________________ U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
No. 03-12961 July 21, 2004
_________________ THOMAS K. KAHN
CLERK
D. C. Docket No. 02-20898-CR-DMM
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
EMMANUEL MARSEILLE,
Defendant-Appellant.
____________________
Appeal from the United States District Court
for the Southern District of Florida
_____________________
(July 21, 2004)
Before BLACK, BARKETT and MAGILL*, Circuit Judges.
MAGILL, Circuit Judge:
Emmanuel Marseille appeals his 210-month sentence for possessing
*
Honorable Frank J. Magill, United States Circuit Judge for the Eighth Circuit, sitting by
designation.
ammunition as a convicted felon and his 120-month sentence for threatening to
retaliate by force against a person who gave information to a federal law
enforcement officer. Marseille argues that the district court mistakenly classified
him as a career offender under § 4B1.1 of the United States Sentencing Guidelines
("USSG")1 and, as a result, determined that his criminal history category was VI
rather than V. Marseille also argues that the district court improperly enhanced his
sentence based on three prior felony convictions that were not charged in the
indictment. We affirm.
I.
This case concerns the treatment, under the Sentencing Guidelines, of a
defendant who pled guilty to possessing ammunition as a convicted felon—a
violation of 18 U.S.C. § 922(g)(1)—and threatening to retaliate against a
confidential informant—a violation of 18 U.S.C. § 1513(b)(2). The government
sought to enhance Marseille's sentence for possessing ammunition under 18
U.S.C. § 924(e) on the basis of his four previous convictions.2 Based on the
district court's determination that Marseille is a career offender under USSG §
1
Citations to the Guidelines, unless otherwise noted, are to the 2002 version, which is the
version that was in effect at the time of Marseille's sentencing.
2
Marseille was previously convicted of (1) attempted murder and carrying a concealed
firearm, (2) burglary with a battery, (3) possessing cocaine with intent to sell it, and (4)
possessing cocaine with intent to sell it.
2
4B1.1 and an armed career criminal under USSG § 4B1.4(a), the district court
sentenced Marseille to 210 months in prison on the possession charge and 120
months in prison on the retaliation charge. The sentences are running
concurrently.
Marseille's troubles began when federal agents in the Bureau of Alcohol,
Tobacco and Firearms ("ATF") came to suspect his involvement in a home-
invasion burglary that resulted in a homicide. As part of its investigation, the ATF
sent a confidential informant ("CI") to infiltrate Marseille's band of brigands. The
CI posed as a plumber and expressed interest in obtaining firearms from Marseille.
Subsequently, the CI made several visits to Marseille's residence, where he
observed weapons and transactions in illegal narcotics. At some point during
these visits, Marseille told the CI that he and his band carried out home-invasion
burglaries. He told the CI that he could "hook him up" with weapons and tools if
the CI was interested in joining the band. This offer opened the door for the CI to
set Marseille up. On May 22, 2002, the CI told Marseille of a burglary job his
brother had proposed, and arranged a meeting between the two for the next day.
On May 23, the CI took Marseille to a meeting with an ATF agent (posing as the
CI's brother) where they discussed tentative plans for a burglary job.
Two weeks later, on June 10, Marseille called the CI and asked him to drop
3
by his house to do some plumbing work. The CI arrived at Marseille's house on
June 11. Once there, two unknown men accosted him, questioned whether he was
an informant, and threatened his life repeatedly. The CI endured harrowing
treatment for roughly an hour without cracking. In the end, the men told the CI he
was free to go and that Marseille would contact him later in the day. Three hours
later, Marseille called the CI and told him he "had passed his test." The two
arranged to meet the next day, but the CI later backed out of the meeting.
On June 20, ATF agents executed a search warrant for Marseille's residence.
The agents did not discover narcotics or firearms, but did discover nineteen rounds
of Remington 9-millimeter ammunition. Based on this discovery and the
knowledge that Marseille had prior felony convictions, the agents obtained a
warrant for Marseille's arrest.
Four days later, Marseille called the CI and threatened him. He told the CI
that he knew he was working for the authorities and had set him up. He said that
the police should be protecting him because "otherwise, I'll shoot." The CI
subsequently went into hiding. Marseille also fled when he learned that the ATF
had obtained an arrest warrant.
On October 11, 2002, ATF agents located and arrested Marseille. Two
weeks later, a federal grand jury returned a five-count indictment against him. On
4
January 13, 2003, Marseille pled guilty to the two counts discussed above—counts
IV and V of the indictment. The district court held a sentencing hearing on May
19, 2003, where it adopted the Presentencing Investigation Report ("PSR") and
sentenced Marseille to 210 months' imprisonment on the ammunition possession
charge and 120 months' imprisonment—to run concurrently—on the witness
threatening charge. Marseille objected to the PSR only on the bases that it
referred to prior convictions the government had not alleged in the indictment and
that it counted juvenile convictions as prior convictions.3
The district court, following the approach taken in the PSR, grouped
Marseille's two offenses together under USSG § 3D1.2(c) for the purpose of
assigning him an offense level. Subsection (c) provides for grouping "[w]hen one
of the counts embodies conduct that is treated as a specific offense characteristic
in . . . the guideline applicable to another of the counts." USSG § 3D1.2(c). The
district court grouped Marseille's offenses because, under USSG § 3C1.1, the
witness threatening offense is treated as a specific offense characteristic of the
ammunition possession offense, and increases the applicable offense level by 2.
USSG § 3C1.1. The base offense level for the ammunition possession offense, in
3
Marseille does not appeal the district court's treatment of Marseille's juvenile
convictions.
5
Marseille's circumstances, is 24. USSG § 2K2.1(a)(2).
The district court next applied three adjustments to Marseille's offense level
from Chapter Three of the Guidelines. First, the court increased the offense level
by 2 because Marseille obstructed justice, as discussed above. Second, the court
gave Marseille a 2-level credit for accepting responsibility under USSG §
3E1.1(a). Third, the district court gave Marseille a 1-level credit for pleading
guilty in a timely fashion under USSG § 3E1.1(b)(2). Before considering Chapter
Four enhancements, then, the district court determined that Marseille's offense
level was 23.
Next, the district court applied the criminal history category guideline in
Chapter Four, Part A. USSG § 4A1.1. Marseille had six prior criminal sentences
subject to counting. Those prior sentences yielded 12 criminal history points.
Twelve points is the maximum amount allowable to qualify for a criminal history
category V. USSG § 5A. Consequently, after applying the guidelines in Chapter
Two, Chapter Three, and Part A of Chapter Four, the district court determined that
Marseille had an offense level of 23 and a criminal history category V, which
together yield a sentencing range of 84-105 months.
The district court had yet to apply two important sentencing enhancements
from Chapter Four, Part B, however, and these worked to double Marseille's
6
sentencing range. First, the district court determined that Marseille is a career
offender under § 4B1.1(a). That guideline specifies that a defendant is a career
offender if his crime was a crime of violence, he was at least eighteen years old
when he committed the crime, and he has two or more prior convictions for violent
or drug-related offenses. USSG § 4B1.1(a). The district court found that the
career offender guideline applies to Marseille because his threat against the CI was
a crime of violence, and Marseille's juvenile convictions count as prior convictions
under the guideline.4
Applying the career offender guideline did not change Marseille's offense
level, however, because the maximum penalty for threatening a witness is ten
years, which yields a lower offense level than otherwise applicable. According to
§ 4B1.1(b), the enhanced offense level for a crime punishable by ten years is
24—two levels lower than the 26 it would have been if analyzed solely under
Chapters Two and Three.5 Because subsection (b) of the career offender guideline
requires the court to use the greater offense level, the higher level controlled.
Applying the career offender guideline did, however, change Marseille's
4
The parties agree that Marseille was older than 18 years of age when he made the threat.
5
Both these offense levels are applicable prior to any adjustments for accepting
responsibility. There is a 2-level difference in offense level both before and after these
adjustments.
7
criminal history category. Subsection (b) provides that a "career offender's
criminal history category in every case under this subsection shall be Category
VI." USSG § 4B1.1(b). Thus, the district court's finding that Marseille is a career
offender increased his criminal history category from V to VI, but left his offense
level unchanged at 23.
Finally, the district court found that Marseille is an armed career criminal
under § 4B1.4. That guideline applies to any "defendant who is subject to an
enhanced sentence under the provisions of 18 U.S.C. § 924(e)." USSG §
4B1.4(a). It requires a district court to enhance such a defendant's offense level
and criminal history category above those provided for in other guidelines. The
district court found Marseille was an armed career criminal on the basis of his
prior convictions and his commission of a crime under 18 U.S.C. § 922. The
guideline specifies that the offense level for an armed career criminal is the
greatest of: (1) the offense level from Chapters Two and Three (26 in this case);
(2) the offense level from the career offender guideline (24 in this case); or (3) 33.6
In this case, the default offense level of 33 is greatest, and the district court
6
The offense level may be 34 if, as was not the case here, the defendant used the
ammunition "in connection with either a crime of violence . . . or a controlled substance offense
. . . or if the firearm possessed by the defendant was of a type described in 26 U.S.C. § 5845(a)."
USSG § 4B1.4(b)(3)(A).
8
determined it applies to Marseille. The court reduced the offense level by
three—to 30—for Marseille's timely acceptance of responsibility. Similarly,
subsection (c) of the armed career criminal guideline directs the court to apply the
greatest criminal history category otherwise applicable. USSG § 4B1.4(c). Since
the career offender guideline called on the court to assign Marseille the highest
criminal history category, the district court found Marseille's category to be a VI.
Having concluded that Marseille's criminal history category is VI under the
career offender guideline, and that his offense level is 30 under the armed career
criminal guideline, the district court sentenced Marseille to 210 months on the
ammunition possession charge, the highest possible sentence under the applicable
168-210 sentencing range.
II.
Marseille first argues that the district court improperly determined him to be
a career offender under § 4B1.1(a). That conclusion, he argues, led the court to
decide his criminal history category is VI under § 4B1.1(b), and increase his
sentencing range to 168-210 months from 151-188 months. Because the district
court sentenced him to 210 months, Marseille asks us to reverse and remand for
resentencing.
The thrust of Marseille's first argument is that he cannot be considered a
9
career offender under § 4B1.1(a) because § 3D1.2 required the district court to
group Marseille's two convictions together. Once grouped, he argues, the district
court should have treated the ammunition possession offense as the predicate
offense for all guideline calculations; any consideration of the threat conviction
was improper, except as specifically required by a Chapter Three guideline.7 The
career offender guideline applies to a defendant only if her "instant offense of
conviction is a felony that is either a crime of violence or a controlled substance
offense." USSG § 4B1.1(a). Marseille contends that the "instant offense of
conviction" is the offense treated as the predicate offense under the grouping
guidelines in Chapter Three—in this case, the ammunition possession conviction.
Since ammunition possession is not a crime of violence, the career offender
guideline should not apply. We disagree, and hold that the district court properly
considered both convictions in deciding whether Marseille was a career offender.
7
Even under the guideline that calls for a 2-level adjustment for obstructing justice, the
ammunition offense is the predicate offense, as the language of the guideline makes clear:
If (A) the defendant willfully obstructed or impeded, or attempted to obstruct or
impede, the administration of justice during the course of the investigation,
prosecution, or sentencing of the instant offense of conviction, and (B) the
obstructive conduct related to (i) the defendant's offense of conviction and any
relevant conduct; or (ii) a closely related offense, increase the offense level by 2
levels.
USSG § 3C1.1.
10
The core problem for Marseille's argument is that the grouping guidelines
make it clear that grouping controls the guideline calculations in Chapters Two
and Three, but not Chapter Four. Guideline § 3D1.1 directs the court to group
closely related convictions according to the rules in § 3D1.2 and to calculate an
offense level for the group by applying the rules in § 3D1.3. Guideline § 3D1.2
states that a conviction that is "treated as a specific offense characteristic in, or
other adjustment to, the guideline applicable to another of the counts" should be
grouped with that other conviction. USSG § 3D1.2(c). Marseille's witness
threatening conviction is treated as an adjustment to his ammunition possession
conviction, so the two convictions should be grouped. USSG § 3C1.1. The
Guidelines then direct the court to determine the offense level for the grouped
convictions by determining which conviction carries the greatest offense level.
USSG § 3D1.3(a). Crucially, § 3D1.3(a) specifies that the "offense level
applicable to a Group is the offense level, determined in accordance with Chapter
Two and Parts A, B, and C of Chapter Three."8 USSG § 3D1.3(a). Marseille's
ammunition possession conviction, including an obstruction of justice adjustment,
yields an offense level of 26. Guideline 3D1.5 directs the court to "[u]se the
8
Commentary note 1 to § 3D1.3 defines "offense level" for purposes of the guideline as
"the offense level from Chapter Two after all adjustments from Parts A, B, and C of Chapter
Three." USSG § 3D1.3, cmt. n.1.
11
combined offense level to determine the appropriate sentence in accordance with
the provisions of Chapter Five" (the sentencing table). USSG § 3D1.5. The
commentary to that same guideline notes, however, that "[t]he combined offense
level is subject to adjustments from Chapter Three, Part E (Acceptance of
Responsibility) and Chapter Four, Part B (Career Offender and Criminal
Livelihood)." USSG § 3D1.5, cmt. n. As we read this language, the grouping
guidelines do not control Chapter Four enhancements. They provide that the
sentencing court determine the offense level applicable to the grouped convictions
and afterward consider whether any adjustments or enhancements apply due to the
offender's criminal history. That is precisely the procedure the district court
followed in this case. It determined that as an armed career criminal, Marseille's
offense level should be enhanced from 26 to 33, and that as a career offender his
criminal history category should be enhanced from V to VI.
As a consequence, we hold that the district court correctly considered the
witness threatening conviction to be an "instant offense of conviction" under §
4B1.1. Because the witness threatening conviction was a crime of violence, the
district court correctly found that Marseille is a career offender under that
guideline. In so holding, we agree with the Ninth Circuit that where a defendant is
being sentenced on two offenses, both are "instant offenses" under the career
12
offender guideline in Chapter Four. United States v. Newland, 116 F.3d 400, 403
(9th Cir. 1997). The grouping rules no longer require the court to treat only one of
the instant convictions as the predicate offense, and the offense level that derives
from a Chapter Four enhancement for either individual offense may supersede the
offense level calculated using the guidelines in Chapters Two and Three for the
grouped offenses.9
It is perfectly sensible that both Marseille's convictions should interact to
produce a sentence that reflects both independent wrongs. Insofar as Marseille
suggests that the grouping guidelines required the court to disregard his witness
threatening conviction entirely, he could not be more mistaken. Even under the
district court's initial Chapter Two and Chapter Three calculations, the witness
threatening conviction increased Marseille's offense level two levels, from 24 to
26. This adjustment, if not overridden, would have yielded an increase of twenty-
two months in maximum possible sentence.10 The district court increased
Marseille's maximum sentence by an identical number of months by enhancing his
9
We disagree with the Ninth Circuit in one respect; we do not think the grouping rules
control calculations under Chapter Four. We believe that it follows from, rather than despite, the
fact that the grouping rules do not control Chapter Four calculations that any single current
offense of conviction constitutes an "instant offense" for the purpose of deciding whether a
defendant is a career offender under § 4B1.1.
10
The increase is 22 months if Marseille's criminal history category were V, as it would
have been had the career offender enhancement from Chapter Four not applied.
13
criminal history category based on his witness threatening conviction. His offense
level is 30, whether or not the career offender enhancement applies. Considering
his threat conviction as an "instant offense" under that enhancement has no effect
except to increase Marseille's criminal history category from V to VI. Doing so
increases his sentencing range from 151-188 to 168-210. Taking the threat into
account under the career offender guideline, then, also produces an increase in
maximum sentence of twenty-two months. Thus, considering both concurrent
convictions under the Chapter Four enhancements simply reproduces the
sentencing effect of treating one conviction as an upward adjustment of the other
under Chapters Two and Three.
Failing to consider both offenses as predicate offenses under Chapter Four
strips the threat conviction of any importance whatsoever, which is inconsistent
with the purpose of the Guidelines. Under Marseille's proposed rule, he would
receive the same sentencing range whether he threatened the CI or not. Marseille
should not escape punishment for being a career offender on the basis that he
committed an additional offense. On the contrary, Congress made it clear in the
Sentencing Commission's enabling statute that "[t]he Commission shall assure that
the guidelines specify a sentence to a term of imprisonment at or near the
maximum term authorized for" career offenders, among others. See 28 U.S.C. §
14
994(h). The result Marseille advocates, then, is contrary to the language of the
Guidelines, their commentary, and the express intent of Congress.
III.
Marseille also challenges the district court's determination that his criminal
history category is VI under § 4B1.1 on the basis that his case does not "come
under" subsection (b) of the guideline.11 We have already upheld the district
court's decision that Marseille satisfies the definition of "career offender" provided
in § 4B1.1(a). Having decided that Marseille is a career offender under subsection
(a), the district court turned to § 4B1.1(b), which provides that a "career offender's
criminal history category in every case under this subsection shall be Category VI"
11
Marseille bases his argument on the version of the Guidelines in effect at the time of
his sentencing. The career offender guideline was amended in November of 2002, after
Marseille committed the instant offenses, which raises the question: which version of the
guideline should the district court have applied? The amendment broke the first portion of the
guideline into two subsections and added the "under this subsection" language in subsection (b)
upon which Marseille now relies. Compare USSG § 4B1.1(a) & (b) (Nov. 2002) ("A career
offender's criminal history category in every case under this subsection shall be Category VI.")
(emphasis added), with USSG § 4B1.1 (Nov. 2001) ("A career offender's criminal history
category in every case shall be Category VI."). The amendment also created an entirely new
category of career offender by adding subsection (c), to which subsection (b) does not apply.
USSG § 4B1.1(c); USSG § 4B1.1(b) (excepting cases under subsection (c) from the operation of
subsection (b)). The district court properly applied the version of the guideline in effect at
Marseille's sentencing. According to 18 U.S.C. § 3553(a), "[t]he court, in determining the
particular sentence to be imposed, shall consider . . . the kinds of sentence and the sentencing
range . . . set forth in the guidelines . . . in effect on the date the defendant is sentenced." 18
U.S.C. § 3553(a)(4)(A). This prescription may be overridden by the Ex Post Facto Clause's
proscription against imposing additional penalties for crimes already committed. United States
v. Simmons, 368 F.3d 1335, 1337-38 (11th Cir. 2004). Since the change in the career offender
guideline does not work an increase in Marseille's punishment, the district court properly applied
the version of the guideline in effect at his sentencing. 18 U.S.C. § 3553(a)(4)(A).
15
(emphasis added), to determine that Marseille's criminal history category is
VI—the highest category under the Guidelines. Marseille argues that his case
does not, in the final analysis, come under subsection (b) because the district court
did not apply the offense level table in that subsection to determine Marseille's
offense level. Instead, the district court turned to the armed career criminal
guideline, § 4B1.4, to assign Marseille's crime an offense level of 30. Since §
4B1.1(b) provides that only defendants whose cases come "under this subsection"
have a criminal history category VI, and the district court did not in fact apply the
offense level table in subsection (b), he argues that the district court erred by
assigning him a criminal history category VI.
Marseille's argument misrepresents the calculations. He mistakenly
concludes from the fact that § 4B1.1(b) did not produce the offense level the
district court ultimately applied, that the career offender guideline was not
applicable at all. In fact, the district court applied both the career offender and
armed career criminal guidelines, but followed the direction of both guidelines by
holding that a greater offense level overrides a lesser offense level. Subsection (b)
provides for the contingency that some other guideline may override its
assignment of an offense level. USSG § 4B1.1(b). And § 4B1.4(b)(2) specifies
that it may in some cases override the offense level otherwise applicable under §
16
4B1.1(b). USSG § 4B1.4(b)(2). In this case, the offense level called for by the
career offender guideline (24) is lower than the offense level called for by Chapter
Two and Chapter Three (26) and by the armed career criminal guideline (33). We
hold that a case arises under subsection (b) of the career offender guideline in
every case in which the defendant qualifies as a career offender under subsection
(a). The sole exception to this rule is the one provided for by subsection (b) itself,
which explicitly takes those defendants convicted under 18 U.S.C. § 924(c) or 18
U.S.C. § 929(a)12 out of the purview of the subsection. USSG § 4B1.1(b).
Consequently, Marseille's case does arise under the career offender guideline, and
the district court properly determined that Marseille's criminal history category is
VI.
IV.
Finally, Marseille argues that the district court improperly enhanced both
his sentences based on his four prior convictions for violent and drug-related
12
These statutes criminalize carrying firearms or possessing certain kinds of ammunition
to further the commission of a crime of violence or a drug trafficking crime. Guideline 4B1.1(c)
increases the sentences for such defendants. The background note explains that "[t]he Career
Offender Table in subsection (c)(3) provides a sentence at or near the statutory maximum for
these offenders by using guideline ranges that correspond to criminal history category VI and
offense level 37." USSG § 4B1.1, cmt. backg'd. Thus, subsection (b) exempts cases that arise
under subsection (c) because the provisions of subsection (c) make assigning a defendant a
criminal history category superfluous. It is to cases under subsection (c) that subsection (b)
adverts in limiting its assignment of criminal history category VI to cases "under this subsection."
17
felonies. The problem with these decisions, he argues, is that the government did
not allege the prior convictions in the indictment. Marseille argues that the
government operated under a duty to do so based on the reasoning of Apprendi v.
New Jersey, 530 U.S. 466 (2000).
In Almendarez-Torrez v. United States, the Supreme Court held that the
government need not allege in its indictment and need not prove beyond a
reasonable doubt that a defendant had prior convictions for a district court to use
those convictions for purposes of enhancing a sentence. 523 U.S. 224, 228
(1998). Though its later opinion in Apprendi questioned the continuing validity of
the Almendarez-Torrez holding, it explicitly refused to reconsider the issue. 530
U.S. at 489-90. Marseille asks this court to extend Apprendi's rationale and
overrule Almendarez-Torrez. As Marseille acknowledges,13 his wish is beyond
our powers to grant. United States v. Thomas, 242 F.3d 1028, 1034-35 (11th Cir.
2001) (refusing to reconsider the holding of Almendarez-Torrez in the light of
Apprendi because of the "very basic fact that we cannot overrule Supreme Court
decisions"). Marseille admits that he has prior qualifying convictions. He
challenges the district court's determination that he was a career offender only on
13
Marseille seeks only to reserve this issue for the purpose of seeking review of the
Almendarez-Torrez holding in the Supreme Court.
18
the ground that the government failed to allege those convictions in the
indictment.14 We affirm the district court's determination.
V.
For the reasons given above, we AFFIRM the judgment of the district court
in all respects.
14
Marseille has submitted the Supreme Court's recent decision in Blakely v. Washington,
124 S. Ct. 2531 (2004), pursuant to Federal Rule of Appellate Procedure 28(j), suggesting that
the decision impacts his appeal. We have reviewed Blakely and conclude that it is inapposite.
Only two factors increased Marseille's sentence: (1) that he obstructed justice by threatening a
witness against him and (2) that he had prior convictions. Marseille admitted to obstructing
justice as part of his plea. And though the district court found that Marseille had prior
convictions, Blakely does not take such fact-finding out of the hands of the courts. Id. at 2536.
19