United States v. Whitehead

F I L E D
United States Court of Appeals
Tenth Circuit
PUBLISH
October 3, 2005
UNITED STATES COURT OF APPEALS
Clerk of Court
TENTH CIRCUIT

UNITED STATES OF AMERICA,

Plaintiff-Appellee,
v. No. 04-4252
ALLAN WHITEHEAD,

Defendant-Appellant.

APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF UTAH
(D.C. No. 1:03-CR-83 DAK)

Submitted on the Briefs: *

Julie George, Salt Lake City, Utah, for the defendant-appellant.

Dave Backman, Assistant United States Attorney and Paul M. Warner, United
States Attorney, District of Utah, Salt Lake City, Utah, for the plaintiff-appellee.

Before BRISCOE, LUCERO , and MURPHY , Circuit Judges.

BRISCOE , Circuit Judge.

*
After examining the briefs and appellate record, this panel has determined
unanimously that oral argument would not materially assist the determination of
this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is
therefore ordered submitted without oral argument.
 Defendant Allan Whitehead pled guilty to possession of a firearm by a

convicted felon, in violation of 18 U.S.C. § 922(g), and was sentenced to a term

of imprisonment of forty-one months. Whitehead now appeals, claiming the

district court erred in calculating his base offense level. We exercise jurisdiction

pursuant to 28 U.S.C. § 1291 and affirm.

On June 19, 2003, a six-count indictment was returned against Whitehead

charging him with five firearms-related offenses and one drug-related offense.

On July 26, 2004, Whitehead pled guilty to Count 5 of the indictment, which

alleged that “[o]n or about April 18, 2003,” Whitehead, “having been convicted of

a crime punishable by imprisonment for more than one (1) year, did knowingly

possess, in and affecting interstate commerce, a firearm, to wit: a 9 mm handgun;

in violation of 18 U.S.C. § 922(g)(1).” ROA, Vol. I, Doc. 1, at 3. A presentence

investigation report (PSR) was subsequently prepared that proposed the

imposition of a base offense level of 20 pursuant to U.S.S.G. § 2K2.1(a)(4)(B)

because, in pertinent part, Whitehead “possessed a prohibited firearm described in

18 U.S.C. § 921(a)(30).” ROA, Vol. III, PSR, Addendum at 1. At the sentencing

hearing on October 6, 2004, Whitehead objected to this base offense level,

arguing that, because § 921(a)(30) had been repealed, § 2K2.1(a)(4)(B) was

inapplicable. The district court rejected Whitehead’s argument, adopted the

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PSR’s calculations, and sentenced Whitehead to forty-one months’ imprisonment,

a term at the bottom of the guideline range.

Whitehead renews his argument on appeal, contending the district court

should have imposed a lower base offense level because, at the time of his

sentencing, the firearm he was convicted of possessing was not, and indeed could

not have been, listed in § 921(a)(30). Because Whitehead’s argument involves

the legal interpretation of § 2K2.1(a)(4)(B) of the Guidelines, we review the

district court’s ruling de novo. See United States v. Wilson, 416 F.3d 1164, 1167

(10th Cir. 2005).

Section 2K2.1(a)(4)(B) of the Sentencing Guidelines requires imposition of

a base offense level of twenty “if . . . the offense involved a firearm described in .

. . 18 U.S.C. § 921(a)(30) . . . and the defendant . . . was a prohibited person at

the time [he] committed the instant offense . . . .” It is undisputed that Whitehead

was a convicted felon, and thus qualified as a “prohibited person,” at the time he

committed the offense of conviction. Therefore, his appeal hinges on whether the

offense of conviction “involved a firearm described in . . . 18 U.S.C. §

921(a)(30).”

At the time of Whitehead’s offense (i.e., April 18, 2003), § 921(a)(30)

defined the term “semiautomatic assault weapon.” That definition included

various specific firearms as well as firearms that bore certain specific

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characteristics. It is uncontroverted that the firearm Whitehead was convicted of

possessing fell within this definition. Notably, however, § 921(a)(30) was

repealed after the Violent Crime Control and Law Enforcement Act of 1994, 108

Stat. 1796, expired on September 13, 2004 (approximately three weeks before

Whitehead was sentenced).

Whitehead contends that, because § 921(a)(30) had been repealed at the

time of his sentencing, § 2K2.1(a)(4)(B) was effectively inapplicable and the

district court therefore should have imposed a lower base offense level. We

disagree. The language of § 2K2.1(a)(4)(B), in particular its reference to whether

“the offense [of conviction] involved a firearm described in . . . § 921(a)(30),”

was clearly intended, in our view, to focus on the circumstances in existence at

the time the offense of conviction was committed. See generally United States v.

Gay, 240 F.3d 1222, 1231 (10th Cir. 2000) (noting that Sentencing Guidelines,

like criminal statutes, “are given their fair meaning in accord with the manifest

intent of the lawmakers.”) (internal quotations omitted). In other words, just as it

asks whether the defendant was a prohibited person at the time he committed the

offense of conviction, § 2K2.1(a)(4)(B) focuses on whether, at the time the

offense of conviction was committed, the firearm involved in the offense fell

within the definition of “semiautomatic assault weapon” outlined in § 921(a)(30).

Our interpretation is bolstered by the fact that, in the most recent version of

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the Guidelines Manual (i.e., the version that became effective on November 1,

2004), the Sentencing Commission made no changes to the wording of §

2K2.1(a)(4)(B). Thus, notwithstanding the repeal of § 921(a)(30), §

2K2.1(a)(4)(B) continues to require the imposition of a base offense level of

twenty if the defendant was a prohibited person at the time he committed the

offense and the firearm involved in the offense fell within the definition of

“semiautomatic assault weapon” outlined in § 921(a)(30). Had the Sentencing

Commission intended § 2K2.1(a)(4)(B) to focus on the status of the firearm at

issue at the time of sentencing rather than at the time the offense of conviction

was committed, then the continued reference to § 921(a)(30) would be

superfluous, as would § 2K2.1(a)(4)(B) itself.

For these reasons, we conclude the district court did not err in interpreting

§ 2K2.1(a)(4)(B) or in applying that provision to Whitehead’s case.

The judgment of the district court is AFFIRMED.

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