United States v. Holden

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.