F I L E D
United States Court of Appeals
Tenth Circuit
PUBLISH MAY 8 2002
UNITED STATES COURT OF APPEALS PATRICK FISHER
Clerk
FOR THE TENTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v. No. 01-3154
LARRY JERMAINE BATTLE, JR.,
Defendant - Appellant.
Appeal from the United States District Court
for the District of Kansas
(D.C. No. 00-CR-10059-01-JTM)
Vicki Mandell-King, Assistant Federal Public Defender, Chief, Appellate
Division (Michael G. Katz, Federal Public Defender, with her on the briefs),
Denver, Colorado, for Defendant-Appellant.
Lanny D. Welch, Assistant United States Attorney (James E. Flory, United States
Attorney, D. Blair Watson, Assistant United States Attorney, with him on the
brief), Wichita, Kansas, for Plaintiff-Appellee.
Before SEYMOUR , ALARCÓN , * and ANDERSON, Circuit Judges.
*
The Honorable Arthur L. Alarcón, Senior United States Circuit Judge for
(continued...)
_________________________
ALARCÓN , Circuit Judge.
Larry Jermaine Battle, Jr. (“Battle”) appeals from the judgment of
conviction and the sentence imposed for obstructing or delaying interstate
commerce by committing a robbery in violation of 18 U.S.C. § 1951 (“Hobbs
Act”), and for causing the death of Edward S. Lee by use of a firearm during the
commission of a robbery in violation of 18 U.S.C. §§ 924(c)(1) and (j)(1).
He seeks reversal of the Hobbs Act violation on the ground that the robbery
of a local convenience store is not an economic activity that has a substantial
effect on interstate commerce. He appeals from the court’s sentencing decision
on the ground that it erred in imposing consecutive sentences, in computing the
applicable Sentencing Guidelines range, and in denying him an additional
reduction for acceptance of responsibility.
We affirm the judgment of conviction because we conclude that the Hobbs
Act is violated even if the robbery of a convenience store does not have a
substantial effect on interstate commerce. We also hold that the sentence imposed
*
(...continued)
the Ninth Circuit, sitting by designation.
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by the court was consistent with §§ 924(c)(1) and (j)(1) and the Sentencing
Guidelines.
I
The evidence viewed in the light most favorable to the Government
demonstrates that on March 29, 2000, Battle and Dius T. Lorance (“Lorance”)
entered Lee’s Phillips 66, a gas station and convenience store, located in Wichita,
Kansas that was owned by Edward S. Lee (“Mr. Lee”) and his wife, Van Thu Ho
(“Ms. Ho”). Battle and Lorance wore bandanas that covered their faces. At that
time, Mr. Lee was behind the counter, and Ms. Ho was in a back room eating
lunch. Battle was armed with a short barreled shotgun. He ordered Mr. Lee to
give them the money in the cash register. While opening the cash register, Mr.
Lee also pressed the alarm button to summon the police. Lorance jumped over
the counter, took approximately $320.00, and then ran out of the store. Ms. Ho
watched the robbery via a television monitor connected to the store’s security
cameras. She also activated the store’s alarm system.
As Battle was backing away from the counter, he ordered Mr. Lee not to
move. Mr. Lee did not move. Nevertheless, Battle fired the shotgun at Mr. Lee.
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He was struck in the right upper torso. As a result of the wounds he received
from the shotgun blast, Mr. Lee died approximately three hours later.
The police officers who responded to the alarm and Ms. Ho’s 911 call
followed Battle’s footprints to a house two or three blocks away where they
arrested Battle. A search of the house revealed shotgun shells and currency.
Along the footprint path, the officers found a sawed-off shotgun, gloves, and a
bandana.
Battle was taken to the FBI Violent Crime Task Force office. When
interrogated, he admitted that he had committed the robbery and had shot Mr.
Lee. He refused to disclose the identity of his accomplice. He also stated that he
fired the shotgun because Mr. Lee moved toward him.
Battle was convicted by a jury on two counts: (1) interfering with or
obstructing interstate commerce by committing a robbery (in violation of the
Hobbs Act), and (2) causing the death of Mr. Lee with a firearm during the
commission of that robbery (in violation of 18 U.S.C. § 924(c)(1) and
§ 924(j)(1)). Battle was sentenced on May 9, 2001. The district court calculated
Battle’s sentence by grouping the two counts pursuant to United States Sentencing
Guidelines (“U.S.S.G.”) § 3D1.2(b), with a base offense level of 43. The district
court then adjusted the base offense level by two points for acceptance of
responsibility, yielding a total offense level of 41. It found that Battle was
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subject to criminal history category II. Battle was sentenced to serve consecutive
sentences of 240 months in prison for the Hobbs Act violation and life
imprisonment pursuant to §§ 942(c)(1) and (j)(1).
II
The district court had jurisdiction over this case pursuant to
18 U.S.C. § 3231. This court has jurisdiction over Battle’s timely appeal pursuant
to 28 U.S.C. § 1291.
III
Battle seeks reversal of the judgment of conviction on the ground that the
Hobbs Act cannot be applied to the robbery of a local convenience store. He also
contends that the district court erred in failing to instruct the jury that the
Government has to persuade it that the robbery of a local convenience store had a
substantial impact on interstate commerce.
The Hobbs Act provides in pertinent part:
“[w]hoever in any way or degree obstructs, delays, or
affects commerce or the movement of any article or
commodity in commerce, by robbery or extortion or
attempts or conspires so to do, or commits or threatens
physical violence to any person or property in
furtherance of a plan or purpose to do anything in
violation of this section shall be fined under this title or
imprisoned not more than twenty years, or both.
18 U.S.C. § 1951(a) (emphasis added).
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This court has recently rejected contentions similar to Battle’s in United
States v. Morris , 247 F.3d 1080, 1085 (10th Cir. 2001). In Morris , this court held
that “the fact that any robbery may have had only a de minimis effect on interstate
commerce does not render regulation of that activity an unconstitutional exercise
of congressional power.” Id. at 1087.
The Government presented evidence that products sold to Lee’s Phillips 66
for resale were produced outside of Kansas. Some of the money taken during the
robbery would have been used to purchase products produced in other states.
This interstate nexus satisfied the requirement of the Hobbs Act that interstate
commerce be affected in “any way or degree” by a robbery. See United States v.
Nguyen , 155 F.3d 1219, 1224 (10th Cir. 1998) (applying the Hobbs Act where a
local restaurant purchased products originating from out-of-state and the money
taken during the robbery would have been used to purchase out-of-state items).
The district court did not err in rejecting Battle’s proposed jury instructions that
stated that the Government was required to persuade the jury that the robbery of
Lee’s Philips 66 had a substantial effect on interstate commerce.
Battle forthrightly acknowledges that his challenge to the application of the
Hobbs Act to the robbery of a local business “has been repeatedly rejected by
different panels of this court.” He also concedes that “[a]bsent an intervening
change in the law, which is not present in this case, or en banc review, we cannot
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review the judgment of another panel of this court.” United States v.
Chanthadara , 230 F.3d 1237, 1260 (10th Cir. 2000). Battle has properly
preserved this issue only for possible en banc review. We must reject it based on
the law of this circuit.
IV
Battle argues that the district court erred as a matter of law in sentencing
him to consecutive sentences for violating the Hobbs Act and using a firearm that
resulted in the death of Mr. Lee. He contends that Congress did not require that
consecutive sentences be imposed for use of a firearm that results in the death of
the victim during the commission of a Hobbs Act robbery. He also argues that
multiple punishments under these circumstances violates the Double Jeopardy
Clause. Because these questions were not presented to the district court, we must
apply the plain error standard of review. United States v. Malone , 222 F.3d 1286,
1292 (10th Cir. 2000). In applying the plain error standard we must first
determine whether “there indeed be an ‘error.’” United States v. Olano , 507 U.S.
725, 732 (1993).
A.
A district court has the discretion to impose concurrent or consecutive
sentences where a defendant is convicted of separate crimes pursuant to
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18 U.S.C. § 3584. 1
In exercising its discretion to impose consecutive sentences, a
district court must state its reasons so that its decision may be meaningfully
reviewed for abuse. United States v. Rose , 185 F.3d 1108, 1112-13 (10th Cir.
1999). Here, the district court did not state its reasons for imposing consecutive
sentences. This omission would, in certain cases, compel us to vacate the
sentences and remand the case. See id. (holding that consecutive sentences must
be vacated if an appellate court is unable to determine whether the district court
abused its discretion). We are not, however, compelled to vacate the district
court’s sentencing decision if it was mandated by §§ 924(c)(1) and (j)(1) to
impose consecutive sentences because Battle caused the death of a person through
the use of a firearm during the commission of a crime of violence in violation of
the Hobbs Act. Battle has failed to discuss the discretionary authority of a court
to impose consecutive sentences pursuant to § 3584 and the requirement under
Rose that the court state its reasons for doing so. Instead, Battle has assumed that
1
Section 3584 provides in pertinent part:
If multiple terms of imprisonment are imposed on a
defendant at the same time . . . the terms may run
concurrently or consecutively. . . . Multiple terms of
imprisonment imposed at the same time run concurrently
unless the court orders or the statute mandates that the
terms are to run consecutively.
18 U.S.C. § 3584(a) (2000).
-8-
the district court imposed consecutive sentences because it believed it was
mandated to do so.
Battle contends that § 924(j)(1) “does not, by its express terms, require
consecutive sentences.” He argues that “[t]he language in § 924(j) refers to a
§ 924(c) violation , and not to that subsection’s penalty provision.” He further
asserts that “[ t]he structure of § 924 supports the view of § 924(j) as charging an
aggravated crime different from § 924(c) .” He maintains that because § 924(j)
does not expressly incorporate the prohibition against the imposition of
concurrent sentences contained in §924(c)(1)(D)(ii), the district court was
required to order concurrent sentences. In his reply brief, he requests that “Mr.
Battle’s case . . . be remanded for imposition of concurrent sentences.” We must
resolve the question whether Congress mandated consecutive sentences where the
death of a person occurs through the use of a firearm during the commission of a
violent crime. We can then determine whether we must affirm the district court’s
sentencing decision, or vacate Battle’s sentence and remand this matter with
instructions to the district court to set forth the reasons, if such exist, for the
exercise of its discretion to impose consecutive sentences pursuant to § 3584.
Battle’s main contention is that § 924(j) sets forth a different crime with
corpus delicti elements not contained in § 924(c). Section 924(c) provides in
pertinent part:
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[A]ny person who, during and in relation to any crime of
violence or drug trafficking crime . . . for which the
person may be prosecuted in a court of the United
States, uses or carries a firearm, or who, in furtherance
of any such crime, possesses a firearm, shall, in addition
to the punishment provided for such crime of violence or
drug trafficking crime–
(i) be sentenced to a term of imprisonment of not less
than 5 years;
(ii) if the firearm is brandished, be sentenced to a term
of imprisonment of not less than 7 years; and
(iii) if the firearm is discharged, be sentenced to a term
of imprisonment of not less than 10 years.
18 U.S.C. §924(c)(1)(A) (2000).
In enacting §924(c), Congress made it a crime to use or carry a firearm in
furtherance of a crime of violence. Section 924(c) also mandates the punishment
for this crime be “in addition to” that prescribed for a crime of violence or drug
trafficking. 18 U.S.C. § 924(c)(1)(A). The term “in addition to” is defined as
“over and above.” Webster’s Third International Dictionary 24 (1976).
Section 924(c) also sets forth a series of aggravating sentencing factors whose
presence determines the additional punishment that must be meted out by the
court.
Section 924(j) provides:
A person who, in the course of a violation of subsection
(c), causes the death of a person through the use of a
firearm, shall–
(1) if the killing is a murder (as defined in section
1111), be punished by death or by imprisonment for any
term of years or for life; and
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(2) if the killing is manslaughter (as defined in section
1112), be punished as provided in that section.
18 U.S.C. § 924(j) (2000).
We agree with Battle that the words used in § 924(j) by Congress are
unambiguous. We disagree, however, with his contention that § 924(j) sets forth
“an aggravated crime different from § 924(c). ” We also note that this argument is
inconsistent with Battle’s earlier contention that “[t]he language in § 924(j) refers
to a § 924(c) violation .”
The plain meaning of the words used in § 924(j) unequivocally provide that
if the evidence shows a violation of § 924(c) (i.e. the use or carrying of a firearm
in the commission of a crime of violence or a drug trafficking crime), a district
court must impose a consecutive sentence over and above the punishment
prescribed for the violent crime. The length of the additional punishment depends
upon proof of any of the escalating sentencing factors set forth in § 924. 2
Section
924(j) describes the sentencing factors that must be proved in order to impose a
consecutive sentence of death, life imprisonment or a term of years.
In construing §§ 924(c) and (j), we recognize that “[a] federal court must
‘give effect to the will of Congress, and where its will has been expressed in
reasonably plain terms, that language must ordinarily be regarded as conclusive.’”
2
Section 924 is headed “Penalties.”
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United States v. Kammersell , 196 F.3d 1137, 1139 (10th Cir. 1999) (citation
omitted). “‘[A]s long as the statutory scheme is coherent and consistent, there
generally is no need for a court to inquire beyond the plain language of the
statute.’” Id. (citing United States v. Ron Pair Enterprises , 489 U.S. 235, 240-241
(1989)). This court has also recognized that “[s]tatutory construction . . . is a
holistic endeavor. A provision that may seem ambiguous in isolation is often
clarified by the remainder of the statutory scheme–because . . . only one of the
permissible meanings produces a substantive effect that is compatible with the
rest of the law.” United States v. Rowlett , 23 F.3d 300, 304 (10th Cir. 1994)
(internal quotations and citation omitted).
Imposing a concurrent sentence for a violation of the crime set forth in
§ 924(c) would not be over and above the sentence imposed for the commission of
a crime of violence. Citing United States v. Lanzi , 933 F.2d 824 (10th Cir. 1991),
Battle concedes that “[i]t is well settled that sentences under 18 U.S.C. § 924(c)
are to run consecutively to other sentences imposed.” In Lanzi , this court held
that § 924(c)(1) authorizes “an additional sentence over and above that imposed
for the underlying felony, even if the underlying felony contained an enhancement
provision.” 933 F.2d at 826. This circuit’s conclusion that § 924(c)(1) mandates
a consecutive sentence for the use of a firearm in the commission of a violent
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crime is supported by the Ninth Circuit’s opinion in United States v. Blocker , 802
F.2d 1102, 1105 (9th Cir. 1986). In Blocker , the court reasoned as follows:
Amended § 924(c) provides, in unambiguous language,
that among those to receive a mandatory five-year
sentence for possession of a firearm during commission
of a crime of violence are those convicted of “a crime of
violence which provides for an enhance punishment if
committed by the use of a deadly or dangerous weapon.”
18 U.S.C. § 924(c). This mandatory sentence is to be
imposed “in addition to the punishment provided for
such crime of violence.”
Id. at 1105. In support of its conclusion that the imposition of a consecutive
sentence is mandated for a violation of § 924(c), the Ninth Circuit relied on the
legislative history of § 924(c).
The Senate Judiciary Committee’s report regarding the 1984 amendment of
§ 924(c) contains the following illustration of the intended application of
§ 924(c):
[T]he Committee intends that the mandatory sentence
under the revised subsection 924(c) be served prior to
the start of the sentence for the underlying or any other
offense. For example, a person convicted of armed bank
robbery in violation of section 2113(a) and (d) and of
using a gun in its commission . . . would have to serve
five years . . . less only good time credit for proper
behavior in prison, before his sentence for the
conviction under section 2113(a) and (d) could start to
run.
Report of Senate Committee on the Judiciary, S. Rep. No. 98-225, at 313-14
(1983), reprinted in 1984 U.S.C.C.A.N. 3182, 3492 (footnote omitted).
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Battle contends that consecutive sentences are not required where the
evidence shows that during a violation of § 924(c), the defendant caused the death
of a person through the use of a firearm. As noted above in advancing this
argument, Battle contends that § 924(j) “ establishes a different aggravated
offense , with elements in addition to those in § 924(c) .” We disagree. Section
924(j) does not set forth a discrete crime. It does not apply unless the
Government presents evidence demonstrating a violation of § 924(c). As
discussed above, Congress has expressly provided that the punishment imposed
for a violation of § 924(c) must be “in addition to” the punishment for a crime of
violence or a drug trafficking crime.
Battle argues that the failure of Congress to incorporate in § 924(j) the
language contained in § 924(c)(1)(D)(ii) demonstrates that the district court was
not required to impose consecutive sentences. Section 924(c)(1)(D)(ii) provides
in relevant part that “[n]otwithstanding any other provision of law . . . no term of
imprisonment imposed on a person under this subsection shall run concurrently
with any other term of imprisonment imposed for the crime of violence or drug
trafficking crime during which the firearm was used, carried, or possessed.”
18 U.S.C. § 924(c)(1)(D)(ii). Battle also maintains that since § 924(j) is not a
subsection within § 924(c), the prohibition against imposing concurrent sentences
set forth in § 924(c)(1)(D)(ii) is inapplicable to § 924(j). The failure to repeat the
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prohibition against concurrent sentences set forth in § 924(c)(1)(D)(ii) does not
demonstrate that Congress has determined that the penalty set forth in § 924(j)
should not be imposed “in addition to” the punishment for the commission of a
violent crime in violation of the Hobbs Act. In disposing of a similar contention,
this court stated:
The mere fact that section 2119 was enacted after
section 924(c)(1), but does not reference section
924(c)(1), does not alter our conclusion that Congress
intended cumulative punishments under the two statutes.
“Congress may make a plain statement of its intent to
stack punishments in a specified class of crimes as it did
in § 924(c)(1). Once Congress does that, it need not
reiterate that intent in any subsequent statutes that fall
within the previously defined class.”
United States v. Overstreet , 40 F.3d 1090, 1095 (10th Cir. 1999) (quoting United
States v. Singleton , 16 F.3d 1419, 1427-28 (5th Cir. 1994)).
Since, as Battle forthrightly concedes, § 924(c)(1)(A) mandates the
imposition of consecutive sentences, the prohibition against concurrent sentences
set forth in § 924(c)(1)(D)(ii) merely emphasizes and reiterates the requirement
that consecutive sentences be imposed if the defendant has used a firearm in the
commission of a violent crime. Id. We note that in United States v. Allen ,
appellant Allen argued that:
[Section] 924(j) should be construed independently of
§ 924(c) because it does not contain the same “in
addition to” language, the legislative history suggests
Congress only intended to authorize the death penalty
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for violation of § 924(j) if the death penalty was not
already authorized for the underlying violent offense,
and any ambiguity must be resolved in favor of a
defendant based on the rule of lenity.”
United States v. Allen , 247 F.3d 741, 769 (8th Cir. 2001). In rejecting these
contentions, the Eighth Circuit held the rule of lenity was inapplicable “because
Congress’s intent is quite clear and not ambiguous.” Id. In concluding that
§ 924(j) is not independent from § 924(c), the Eighth Circuit reasoned:
[W]hen read in context of the criminal scheme set forth
in § 924(c), we think § 924(j) is fairly interpreted as an
additional aggravating punishment for the scheme
already set out in § 924(c). We reach this conclusion
because of § 924(j)’s explicit reference to § 924(c) and
because each subsection of the statute is designed for the
same purpose–to impose steeper penalties on those
criminals who use firearms when engaging in crimes of
violence. Moreover, Allen’s proposed interpretation of
§ 924(j) would lead to the odd result that a defendant
convicted under § 924(c) is subject to an additional
consecutive sentence only in situations that do not result
in a death caused by use of the firearm. We think it
unlikely that Congress, which clearly intended to impose
additional cumulative punishments for using firearms
during violent crimes in cases where no murder occurs,
would turn around and not intend to impose cumulative
punishments in cases where there are actual murder
victims.
Id. We agree with the Eighth Circuit that § 924(c) unambiguously mandates the
imposition of a consecutive sentence “in addition to” the punishment ordered for
the use of a firearm during the commission of a crime of violence where the
evidence demonstrates the existence of the aggravating sentencing factors set
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forth in § 924(j). Under the law of this circuit, the rule of lenity “applies only in
cases where there is a grievous ambiguity or uncertainty in the language and the
structure” of the act. United States v. Onheiber , 173 F.3d 1254, 1256 (10th Cir.
1999) (quotations and citations omitted). The district court did not err in
imposing consecutive sentences.
B.
Battle also contends that a construction of § 924(c) and § 924(j) as
authorizing consecutive sentences for the same conduct that is punishable under
the Hobbs Act violates the Double Jeopardy Clause.
In United States v. Pearson , the appellant also contended that “his
convictions under 18 U.S.C. §§ 1951 and 924(c)(1) and (j)(1) violate the Double
Jeopardy Clause because they require proof of the same elements.” United States
v. Pearson , 203 F.3d 1243, 1267 (10th Cir. 2000). This court concluded in
Pearson that in enacting § 924(c)(1) and § 924(j)(1), Congress clearly intended
“to provide multiple punishments to defendants who commit violent crimes while
using or carrying a firearm.” Id. at 1268. In that matter, this court expressly
rejected “Mr. Pearson’s Double Jeopardy Clause challenge to his convictions
under §§ 1951 and 924(c) and (j).” Id. The district court, therefore, did not
violate the Double Jeopardy Clause in the instant case in imposing multiple
punishments.
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V
Battle further contends that the district court erred in applying the
Sentencing Guidelines. He argues that he should have received a third-level
reduction of his base offense level for acceptance of responsibility pursuant to
U.S.S.G. § 3E1.1(b)(1) . He also contends that the district court erred in
grouping his conviction for violation of the Hobbs Act with his conviction for
using a firearm and causing the death of a person in the commission of a violent
crime. These sentencing issues are raised for the first time in this appeal. Battle
did not raise these objections in the district court. We review his contentions for
plain error. United States v. Lindsay , 184 F.3d 1138, 1142 (10th Cir. 1999).
Under the plain error standard, Battle must show clear or obvious error that
affected his substantial rights and seriously affected the integrity of the judicial
proceedings. Johnson v. United States , 520 U.S. 461, 466-67 (1997).
A.
Section 3E1.1 of the U.S.S.G. provides for reductions in the offense level
for acceptance of responsibility. 3
The district court found that Battle qualified
3
Pursuant to U.S.S.G. § 3E1.1:
(continued...)
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for a two-level reduction, pursuant to U.S.S.G. § 3E1.1(a), because he admitted
robbing the convenience store and shooting Mr. Lee.
The probation officer who prepared the presentence report recommended
against a reduction for acceptance of responsibility. The Government also
opposed any reduction for acceptance of responsibility because Battle did not
provide complete information concerning his involvement in the offense. The
record shows that Battle told the FBI that he shot Mr. Lee in self-defense. Battle
said that Mr. Lee advanced toward him and appeared to be reaching for a weapon.
The Government presented witnesses at the sentencing hearing who testified that
Mr. Lee obeyed Battle’s commands and did not advance towards him or make any
threatening gestures. Thus, whether Battle provided complete information to the
Government entitling him to a third-level reduction for acceptance of
3
(...continued)
(a) If the defendant clearly demonstrates acceptance of
responsibility for his offense, decrease the offense level by 2
levels.
(b) If the defendant qualifies for a decrease under subsection (a),
the offense level determined prior to the operation of
subsection (a) is level 16 or greater, and the defendant has
assisted authorities in the investigation or prosecution of his
own misconduct by taking one or more of the following steps:
(1) timely providing complete information to the
government concerning his own involvement in the
offense . . .
decrease the offense level by 1 additional level.
U.S.S.G. §3E1.1.
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responsibility pursuant to § 3E1.1(b)(1) was a sharply disputed issue of fact at the
sentencing hearing. Under the law of this circuit, a factual dispute as to whether
a particular guideline applies does not rise to the level of plain error. United
States v. Merritt , 1998 WL 3471, at *2 (10th Cir. Jan. 6, 1998) (unpublished);
United States v. Jones , 80 F.3d 436, 438 (10th Cir. 1996); United States v.
Covarrubias-Garcia , 1994 WL 38647, at *2-3 (10th Cir. Feb. 10, 1994)
(unpublished); United States v. Easter , 981 F.2d 1549, 1556 (10th Cir. 1992); see
also United States v. Deninno , 29 F.3d 572, 580 (10th Cir. 1994) (noting that
failure to object to a presentence report’s statement of fact constitutes a waiver of
the issue). Therefore, we do not reach Battle’s contention that he was entitled to
an additional reduction for acceptance of responsibility for providing complete
information to the Government.
B.
Battle also contends that the district court plainly erred in calculating his
guideline range. His argument appears to be based on the assumption that his
sentence is controlled by 18 U.S.C. § 924(c). As such, he argues that his two
violations should not have been grouped. He also argues that his Hobbs Act
violation should not have been enhanced for weapon use.
We have determined that Battle’s sentence for violating § 924(c) is
controlled by the penalty provisions set forth in § 924(j) for a violation of
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§ 924(c). Therefore, Battle’s reliance on the penalty provisions set forth in
§ 924(c)(1)(A)(iii) for a violation of § 924(c) is misplaced.
A district court is required to apply § 2A1.1 of the U.S.S.G. if a firearm has
been used in a violent crime which causes the death of a person. Section 2A1.1
specifies that the base offense level is 43.
For a violation of the Hobbs Act, a district court is required to apply
§ 2B3.1 of the U.S.S.G. Section 2B3.1 states, “[i]f a victim was killed under
circumstances that would constitute murder under 18 U.S.C. § 1111 . . . apply
§ 2A1.1 (First Degree Murder).” U.S.S.G. § 2B3.1(c). Under § 2A1.1, the base
offense level 43 also applies to Battle’s Hobbs Act violation.
In general, closely related counts may be “grouped” pursuant to § 3D1.2 of
the U.S.S.G. U.S.S.G. § 3D1.2 (stating that “[a]ll counts involving substantially
the same harm shall be grouped together . . .”). Offenses to which § 2A of the
U.S.S.G. applies, however, may not be grouped. Id. (specifically excluding the
offenses in § 2A from the operation of § 3D1.2). Because both of the counts of
which Battle was convicted fall under § 2A, the district court erred when it
grouped the counts.
Instead of grouping the counts, the district court should have determined
Battle’s combined offense level pursuant to § 3D1.4. Section 3D1.4 takes the
highest applicable offense level and then increases it based on the additional
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crimes that were committed. The penalty provisions for Battle’s § 924(c)
violation and his Hobbs Act violation each have a base offense level of 43.
Pursuant to § 3D1.4, Battle’s offense level should have been increased by two
levels because the district court was sentencing him for two crimes of an equal
offense level. U.S.S.G. § 3D1.4. Battle’s combined offense level is therefore 45.
Id. When reduced two levels for acceptance of responsibility, the total offense
level should have been 43. See U.S.S.G. § 1B1.1 (specifying that an adjustment
for acceptance of responsibility may be made after applying the provisions in
§ 3D). The district court erred when it determined the offense level to be 43 and
then reduced it by two points for acceptance of responsibility, yielding a total
offense level of 41.
Even though the district court erred in computing Battle’s offense level, the
error was harmless. Battle was not prejudiced by the district court’s application
of a lower offense level.
CONCLUSION
The judgment is AFFIRMED.
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