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United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued March 18, 2003 Decided April 11, 2003
No. 02-3020
UNITED STATES OF AMERICA,
APPELLEE
v.
JASON HART,
APPELLANT
Appeal from the United States District Court
for the District of Columbia
(No. 01cr00198–01)
Erica J. Hashimoto, Assistant Federal Public Defender,
argued the cause for the appellant. A. J. Kramer, Federal
Public Defender, was on brief. Maria D. Jankowski, Assis-
tant Federal Public Defender, entered an appearance.
Michael T. Truscott, Assistant United States Attorney,
argued the cause for the appellee. Roscoe C. Howard, Jr.,
United States Attorney, John R. Fisher, Roy W. McLeese III
Bills of costs must be filed within 14 days after entry of judgment.
The court looks with disfavor upon motions to file bills of costs out
of time.
2
and Catherine Sheehan, Assistant United States Attorneys,
were on brief.
Before: SENTELLE, HENDERSON and TATEL, Circuit Judges.
Opinion for the court filed by Circuit Judge HENDERSON.
Concurring opinion filed by Circuit Judge SENTELLE.
KAREN LECRAFT HENDERSON, Circuit Judge: The appellant,
Jason Hart, seeks reversal and remand of the district court’s
January 2002 judgment sentencing him to 82 months in
prison. See App. of Appellant at 50–56; Sentencing Tr. at
131–39. He contends that the court: (1) erred as a matter of
law in interpreting section 2K2.1(b)(5) of the United States
Sentencing Guidelines (U.S.S.G. or Guidelines) to apply to a
‘‘felony offense’’ neither temporally nor factually related to
the offense of conviction, see Br. of Appellant at 14–20; (2)
admitted unreliable hearsay evidence and placed an imper-
missible burden on him to demonstrate the hearsay declar-
ant’s lack of bias against him, see id. at 28–33; and (3) failed
to make clear the specific factual basis on which it rested its
conclusion that a four-level enhancement was appropriate
under section 2K2.1(b)(5), see id. at 20–28. Although Hart’s
first two challenges are unavailing, the third has merit.
Accordingly, and for the reasons set forth in Part II.C, infra,
we reverse and remand the case for resentencing with in-
structions to resolve the ambiguities in the sentencing court’s
application of section 2K2.1(b)(5).
I.
Hart was arrested in April 2001 while in possession of a .32
caliber Colt semiautomatic handgun and a .38 caliber Colt
special revolver. In June a grand jury indicted him on one
count of unlawful possession of a firearm and ammunition by
a felon, in violation of 18 U.S.C. § 922(g)(1). See App. of
Appellant at 6. Hart pleaded guilty. At sentencing the
government sought an upward adjustment in his Guidelines
offense level pursuant to U.S.S.G. § 2K2.1(b)(5), which pro-
vides for a four-level enhancement
3
[i]f the defendant used or possessed any firearm or
ammunition in connection with another felony of-
fense; or possessed or transferred any firearm or
ammunition with knowledge, intent, or reason to
believe that it would be used or possessed in connec-
tion with another felony offenseTTTT
U.S.S.G. § 2K2.1(b)(5). The government asserted that Hart
‘‘used or possessed’’ the .32 caliber gun ‘‘in connection with’’
the February 25, 2001 homicide of one David Jones.1 See
App. of Appellant at 41–44; see also Br. of Appellee at 10.
The district court conducted an evidentiary hearing in Janu-
ary 2002 to determine whether there was a factual basis for
the four-level enhancement.
A.
At the hearing, the government offered the testimony of
four police officers—Todd Gray, Nicholas Viggiani, Kerry
Jernigan and Jeffrey Eckrich—from the Washington, D.C.
Metropolitan Police Department and the Prince George’s
County Police Department. It also introduced a hearsay
statement by Theodore Scott, who allegedly sold Hart the .32
Colt in January 2001, and several ballistics reports indicating
that the gun was used in a number of shootings that took
place in January and February 2001. The evidence can be
summarized as follows:
First, Detective Viggiani investigated the January 18, 2001
shooting of Danielle Duncan and he arrested and interviewed
Scott in connection therewith. See Sentencing Tr. at 31–40
(Det. Viggiani). During Viggiani’s questioning, Scott admit-
ted that he shot Duncan—with a .32 Colt—but claimed it was
an accident. See id. at 38 (Det. Viggiani); see also id. at 42–
43 (ballistics report confirming a .32 caliber handgun used).
He told Viggiani that he sold the gun to Hart a day or two
after the Duncan shooting:
1 The .38 caliber gun was not at issue during sentencing because
it was inoperable at the time it was seized incident to Hart’s arrest.
See Sentencing Tr. at 132; Br. of Appellant at 3 & n.3; Br. of
Appellee at 7.
4
Q: Who did you give it to?
A: A dude named Jay Rock. I think somebody
called him Jason. His brother is Antoine Hart. I
worked at the Palm Tree Caf´ with him. Their little
e
brother Justin got killed in DC and I don’t know
who did it. He was like 17 years old. I heard when
the DC police had went to Jason’s house he ran out
with the guns or something and he got locked up.
Q: What did you get in return for the .32 from
Jason?
A: $50.
Q: Did Jason tell you that DC police got the .32?
A: No, I never talked to him. I just heard he got
locked up with two guns. He may have even gotten
rid of the .32. I don’t know.
Q: So did Jason have the gun, the .32, from about
January 19th to the 20th, 2001, until April 18th,
2001?
A: I don’t know. I guess he did, but he could have
gotten rid of it.
Q: Can you describe Jason?
A: Black male about 20, 21 years old, about five
foot ten to six one. Skinny, light brown skin. He
wears his hair all kinds of ways; probably a bush.
Has facial hair.
Id. at 36–37 (Det. Viggiani). When Viggiani showed Scott a
photograph of Hart, Scott stated ‘‘That’s Jay Rock. That’s
the one I gave the gun to. So that’s Jason Hart, Jay Rock.’’
Id. at 39–40 (Det. Viggiani).
Second, in early 2001 Hart lived in a section of Washington,
D.C. known as Riggs Road and associated with a group of
people from the same area. See id. at 19–22 (Det. Gray). At
that time there was an ongoing dispute between the Riggs
Road group and a group from the Fleetwood Village section
of nearby Hyattsville, Maryland. See id. (Det. Gray). The
dispute, or ‘‘beef,’’ between the Riggs Road group and the
5
Fleetwood Village group manifested itself through several
violent incidents. Id. at 20 (Det. Gray); see id. at 71–72 (Det.
Jernigan). For instance, on February 21, 2001 Ricardo Sel-
don—a friend of Hart and a member of the Riggs Road
group—was shot in the abdomen, apparently by members of
the Fleetwood Village group. See id. at 14–15 (Det. Gray).
The next day Anthony Grissett and Larry Lucey, two mem-
bers of the Riggs Road group, allegedly robbed Gregory
Wallace and Willie Smith at gunpoint. See id. at 15–18 (Det.
Gray). Wallace was associated with the Fleetwood Village
group but was friends with certain members of the Riggs
Road group as well. See id. at 18 (Det. Gray); id. at 132–33.
Third, on February 25 two men shot and killed David
Jones while Jones and his girlfriend were entering a vehicle.
See id. at 65 (Det. Jernigan). Jones was in the Fleetwood
Village area at the time but was not a member of the
Fleetwood Village group. See id. at 132. Jones’s girlfriend
was unable to identify the shooters from a lineup but gave the
police a general description of the two men. See id. at 65–68
(Det. Jernigan). Her description of one resembled Michael
Freeman, another of Hart’s friends and a member of the
Riggs Road group. See id. at 67–68 (Det. Jernigan). The
police recovered .32 caliber and .38 caliber shell casings from
the scene of the homicide. See id. at 68–70 (Det. Jernigan).
A ballistics analysis confirmed that the casings from the .32
caliber gun ‘‘matched’’ the .32 Colt that was in Hart’s posses-
sion when he was arrested. Id. at 70 (Det. Jernigan).
Fourth, on February 26 Gregory Wallace was shot in
Hyattsville. Detective Eckrich attempted to interview Wal-
lace on February 27 but was unsuccessful because Wallace
was heavily sedated and in pain. See id. at 93–94 (Det.
Eckrich). Eckrich was unable to speak to Wallace until
nearly two months later, at which time Wallace—when shown
individual photographs of Hart and Freeman—identified the
two as his attackers. See id. at 94, 99–100 (Det. Eckrich).
The police recovered .38 caliber casings from the scene of the
Wallace shooting. See id. at 68–69 (Det. Jernigan). A ballis-
tics analysis confirmed that the casings were ‘‘consistent
with’’ the .38 caliber casings found at the scene of the Jones
6
homicide. Id. at 73–75 (Det. Jernigan). Given that analysis,
along with Wallace’s statement and the statement of Jones’s
girlfriend, the police considered Hart and Freeman as sus-
pects in the Jones homicide. The two men were also indicted
in the Wallace shooting and were awaiting trial in Maryland
at the time of the evidentiary hearing. See id. at 106–07
(Det. Eckrich).
B.
The district court credited the testimony of Detectives
Gray, Viggiani, Jernigan and Eckrich. See id. at 132. Find-
ing nothing in the record to rebut Scott’s hearsay statement
and no evidence of bias on his part, the district court credited
his testimony as well. See id. at 133–34. Applying a prepon-
derance-of-the-evidence standard, the court found that Scott
sold Hart the .32 Colt in late January and that Hart had the
same gun in his possession when he was arrested on April 17.
See id. at 137–38.
Because Hart claims on appeal that the district court failed
to make clear the specific factual basis on which it rested its
conclusion that a four-level enhancement was appropriate
under section 2K2.1(b)(5), see infra Part II.C, we quote the
court’s pertinent statements at length:
In terms of my conclusions. I’ve broken it down
into sort of two parts. The first part is the link of
the defendant’s gun to a felony.
They have a ballistics report that the .32 caliber
bullets recovered from the Jones homicide on Febru-
ary 25th matched the defendant’s .32 caliber gun
recovered from the defendant on April 17th.
[Second,] as to the link as to whether the defendant
knew or somehow is associated or had knowledge
that this .32 gun was used in a felony—in other
words, we have the gun linked, but do we have the
defendant—we have Mr. Scott’s statement that on
either January 19th or 20th—as I’ve credited, I’ve
indicated why I could credit his statement—that he
7
sold, which is criminal conduct, this .32 caliber gun
to the defendant. And we know that a .32 caliber
gun was used by Mr. Scott in his shooting of Ms.
Duncan.
And, as I said, we then have evidence that the
defendant is involved in the beef between the Riggs
Road and Fleetwood area.
We have the Wallace shooting where he identifies
the defendant and Mr. Freeman, and I’ve indicated
why I would accept that statement.
We have [Hart’s] mother linking the defendant to
the Riggs Road group through [Hart’s] friends, and
Mr. Seldon’s shooting seems to start the beef.
We have links between the Jones and Wallace shoot-
ing, which are one day apart. It’s circumstantial
evidence. But the defendant is identified by Wallace
and Mr. Freeman is also identified as the shooters.
Although it’s not the .32 caliber gun, there is the
same gun in terms of the .38[ ] shell casings that
[are consistent] in the Jones homicide and the Wal-
lace shooting. And, as I’ve indicated, there’s two
shootings in both — two shooters in both shootings.
So I would conclude — we’re talking about a prepon-
derance of the evidence. I don’t think it’s clear and
convincing evidence, and it certainly isn’t beyond a
reasonable doubt, but whether it’s more likely than
not, I think that the defendant — there’s several
possibilities. The defendant used the gun in the
Jones shooting or let someone else use it and got it
back and would have known it.
We have the defendant had a .32 caliber gun that
matches a shooting and, therefore, there’s evidence
that he had the gun before and after the shooting
and he’s involved in the surrounding incidents be-
tween those dates.
I would also note that even if the defendant, as
[defense counsel] argues, acquired the .32 gun after
8
the Jones shooting, his involvement in the beef he
would have reason to believe that it was used in the
Jones shooting or one of these other instance [sic].
I mean, who would the defendant have acquired the
gun from after the shooting?
So I think under the circumstances that there’s
enough — much of it is circumstantial as to the
defendant’s link. There’s a clear link of the gun.
But I think it’s sufficient for a preponderance of the
evidence. So I would grant the four levels.
Sentencing Tr. at 136–39 (emphases added). On January 24,
2002 the district court sentenced Hart to 82 months in prison
and three years of supervised release and it imposed a special
assessment of $100. See App. of Appellant at 50–57.
II.
Hart timely filed an appeal of his sentence pursuant to 18
U.S.C. § 3742(a)(1) and (2), see App. of Appellant at 57–58,
raising three challenges. In reviewing his challenges—which
we address in turn below—we ‘‘accept the findings of fact of
the district court unless they are clearly erroneous’’ and we
‘‘give due deference to the district court’s application of the
[G]uidelines to the facts.’’ 18 U.S.C. § 3742(e); see United
States v. Yeh, 278 F.3d 9, 13 (D.C. Cir. 2002). We review
issues of law de novo. See Yeh, 278 F.3d at 13; United States
v. Drew, 200 F.3d 871, 876 (D.C. Cir. 2000).
A.
As noted, section 2K2.1(b)(5) of the Guidelines provides for
a four-level enhancement
[i]f the defendant used or possessed any firearm or
ammunition in connection with another felony of-
fense; or possessed or transferred any firearm or
ammunition with knowledge, intent, or reason to
believe that it would be used or possessed in connec-
tion with another felony offenseTTTT
9
U.S.S.G. § 2K2.1(b)(5). Hart claims that section 2K2.1(b)(5)
is inapplicable as a matter of law because the ‘‘[ ]other felony
offense’’ to which it refers in this case, the homicide of David
Jones, is not factually and temporally related to the offense of
which Hart was convicted — unlawful possession of the .32
Colt.2 We disagree.
Proceeding as we must from ‘‘the fundamental canon that
statutory interpretation begins with the language of the stat-
ute itself,’’ Seattle Opera v. NLRB, 292 F.3d 757, 761 (D.C.
Cir. 2002) (quotation omitted); see United States v. Cutler, 36
F.3d 406, 408 (4th Cir. 1994) (interpreting section 2K2.1(b)(5)
and declaring ‘‘the Sentencing Guidelines should be applied as
written’’), we acknowledge that at least one definition of the
phrase ‘‘in connection with’’ lends support to Hart’s view.
See WEBSTER’S THIRD NEW INTERNATIONAL DICTIONARY, UNA-
BRIDGED 481 (1993) (‘‘connection’’ implies ‘‘cause and effect,
logical sequence, mutual dependence or involvement’’). We
also recognize that section 2K2.1(b) is entitled ‘‘Specific Of-
2 To illustrate his point, Hart provides an example of ‘‘another
felony offense’’ he believes the Guideline would cover:
Clearly, if Mr. Hart had been in the process of committing
another felony when he was arrested for possession of a
firearm, the enhancement would apply. If, for instance, on
the date of his arrest Mr. Hart was dealing narcotics while
in possession of the .32 caliber firearm, § 2K2.1(b)(5)
would properly be invoked.
Br. of Appellant at 17. Hart goes on to state that ‘‘in all of the
cases this court has reviewed involving § 2K2.1(b)(5), the trial court
applied the enhancement to just [that] type of [scenario].’’ Id.
(citing, inter alia, In re Sealed Case, 246 F.3d 696, 697–702 (D.C.
Cir. 2001); United States v. Bowie, 198 F.3d 905, 907, 913 (D.C. Cir.
1999)). While his assertion appears to be correct, it is beside the
point; the fact that we have had no occasion to address a case in
which ‘‘another felony offense’’ is not temporally or factually related
to the offense of conviction does not preclude us from applying
section 2K2.1(b)(5) to such a case. See Br. of Appellee at 17 (‘‘None
of the cases cited [by Hart] actually addresses the question whether
‘another felony offense’ is limited to the offense of conviction.’’).
10
fense Characteristics,’’ i.e., the circumstances that attend the
offense of conviction. See generally U.S.S.G. § 2K2.1(b); see
also, e.g., id. § 2K2.1(b)(1) (‘‘[i]f the offense [of conviction]
involved three or more firearms,’’ court should increase of-
fense level according to graduated enhancements listed in
accompanying table); id. § 2K2.1(b)(3) (‘‘[i]f the offense [of
conviction] involved a destructive device,’’ court should in-
crease offense level by two). Not all of the language found in
section 2K2.1(b)(5) supports Hart’s reading, however; the
fact that the provision incorporates the phrase ‘‘another felo-
ny’’—meaning a felony ‘‘that is different [or] separate,’’ WEB-
STER’S THIRD, supra, at 89 (defining ‘‘another’’) (emphasis
added)—seriously undermines his interpretation. Nor are we
the first court to consider whether section 2K2.1(b)(5) re-
quires an identity—or at least a tight factual or temporal
link—between the offense of conviction and ‘‘another felony
offense.’’ In United States v. Sanders, 162 F.3d 396 (6th Cir.
1998), for example, the Sixth Circuit reasoned that
a logical reading of the § 2K2.1(b)(5) Guideline term
‘‘another felony offense’’ would TTT require, as a
condition precedent to the application of a major
four level [G]uideline enhancement, a finding of a
separation of time between the offense of conviction
and the other felony offense, or a distinction of
conduct between that occurring in the offense of
conviction and the other felony offense. Otherwise,
the word ‘‘another’’ is superfluous, and of no signifi-
cance to the application of that provision.
Id. at 400 (footnote omitted) (emphases added); see Qi–Zhuo
v. Meissner, 70 F.3d 136, 139 (D.C. Cir. 1995) (reaffirming
‘‘endlessly reiterated principle of statutory construction TTT
that all words in a statute are to be assigned meaning, and
that nothing therein is to be construed as surplusage’’).
Likewise, in United States v. Draper, 24 F.3d 83 (10th Cir.
1994), the Tenth Circuit rejected in no uncertain terms the
same argument Hart proffers today:
11
[C]ounsel suggests that [U.S.S.G. § 2K2.1(b)(5)]
does not permit a four-level enhancement of a base
offense level where the other alleged felony offense,
in our case drug offenses, occurred ‘‘weeks or
months prior to the offense of conviction which
occurred on March 15, 1993.’’ We do not agreeTTTT
The [G]uidelines do not require that the other of-
fense occur on the same date as the offense for
which the defendant was indicted and found guilty,
or be otherwise closely related thereto.
Id. at 85. Significantly, the Tenth Circuit’s interpretation has
stood for nearly ten years without any effort by the Sentenc-
ing Commission—despite multiple amendments of other
Guidelines provisions—to amend the provision to a different
effect; this is reason enough not to break rank with our sister
courts. See United States v. Bruce, 285 F.3d 69, 73–74 (D.C.
Cir. 2002) (per curiam) (declining to adopt Guideline interpre-
tation inconsistent with that of other circuits where prevailing
interpretation was longstanding and ‘‘neither the Congress
nor the Commission ha[d] done anything to call [it] into
question’’). We therefore conclude the Jones homicide quali-
fies as ‘‘another felony offense’’ under section 2K2.1(b)(5)
even though it occurred ‘‘months prior’’ to Hart’s arrest for
possession of the .32 Colt. Draper, 24 F.3d at 85.
B.
Next, Hart contends that the district court impermissibly
shifted to him the burden of demonstrating that Scott’s
hearsay statement lacked the requisite indicia of reliability
and that, in any event, the court erred in admitting the
statement because it was, in fact, unreliable. Again, Hart’s
argument is unavailing.
At the evidentiary hearing, as Detective Viggiani began to
read Scott’s statement into the record, Hart’s counsel inter-
rupted and stated:
12
Your Honor, just to clarify my lack of objection. I
would just note that [the statement] is double hear-
say, and obviously we can attack the credibility of
both the hearsay declarant and the manner in which
it was taken, but I just want to preserve that.
Sentencing Tr. at 35. And when the government finished
presenting its case for the four-level enhancement, counsel for
Hart asserted that
[t]he government’s evidentiary presentation was al-
most entirely hearsay, and under the [G]uidelines
they are certainly entitled to present hearsay evi-
dence at a sentencing hearing, but when they [do so]
it’s got to at least be reliable. And I think the
evidence in this case, first of all, did not provide the
necessary links.
The government’s only evidence that Mr. Hart pos-
sessed the .32 prior to April 17, 2001, was the
hearsay testimony of, essentially, of Theodore Scott
who, first of all, gave an incredible story about
where he got the gun.
I mean, he said he found it in a park in a paper bag
and he gave an incredible story about why he was
hanging on to it, which was that he was going to
turn it into a gun buy back.
As [Detective Viggiani] testified, he had TTT no way
to verify or corroborate that information, and there
is nothing to suggest that [Scott’s] story about what
he did with the gun after January 18th was any
more credibleTTTT
I mean, there’s no reason to believe that he was not
the person involved and was just not trying to push
it off on Jason Hart.
Id. at 119–20. The foregoing comments notwithstanding, the
government contends that Hart never made a clear objection
to the admissibility of Scott’s statement and ‘‘certainly did not
make any objection as to who bore the burden of establishing
[its] admissibility.’’ Br. of Appellee at 29. It argues, there-
13
fore, that we should review for plain error the district court’s
decision to admit the statement. See id. (citing United States
v. Robinson, 198 F.3d 973, 979 (D.C. Cir. 2000)). We need
not decide, however, whether Hart preserved his hearsay
objection — the district court did not err, plainly or other-
wise, in admitting Scott’s hearsay testimony.
First, nothing in the record supports Hart’s assertion that
the court ‘‘found that the defense had failed to show ‘evidence
of bias on [Scott’s] part specifically against Mr. Hart.’ ’’ Br.
of Appellant at 31 (quoting Sentencing Tr. at 134). The court
made no reference to what ‘‘the defense had failed to show.’’
Indeed, the transcript page to which Hart refers reveals the
court stated merely that ‘‘I TTT have no evidence of bias on
[Scott’s] part specifically against Hart.’’ Sentencing Tr. at
134 (emphasis added). Neither this observation nor any
other indicates the court shifted from the government to Hart
the burden of proof as to the veracity of Scott’s statement.
Second, it is well-settled that ‘‘[t]he district court’s credibili-
ty determinations are entitled to the greatest deference from
this court on appeal.’’ Carter v. Bennett, 840 F.2d 63, 67
(D.C. Cir. 1988); see 18 U.S.C. § 3742(e) (‘‘The court of
appeals shall give due regard to the opportunity of the
district court to judge the credibility of the [sentencing]
witnessesTTTT’’); see also United States v. Anderson, 881
F.2d 1128, 1142 (D.C. Cir. 1989) (‘‘credibility determinations
TTT are not for us to second guess’’). No case of which we
are aware suggests (much less holds) that deference is less
appropriate where the sentencing court, as here, credits a
hearsay statement as opposed to in-court testimony. Cf.
U.S.S.G. § 6A1.3(a) (‘‘In resolving any dispute concerning a
factor important to the sentencing determination, the court
may consider relevant information without regard to its ad-
missibility under the rules of evidence applicable at tri-
alTTTT’’); Nichols v. United States, 511 U.S. 738, 747 (1994)
(‘‘As a general proposition, a sentencing judge may appropri-
ately conduct an inquiry broad in scope, largely unlimited
either as to the kind of information he may consider, or the
source from which it may come.’’ (quotation omitted)). The
district court, therefore, had broad latitude to admit Scott’s
14
statement. See United States v. Rouse, 168 F.3d 1371, 1376–
77 (D.C. Cir. 1999) (deferring to sentencing court’s conclusion
that witness lacked credibility because ‘‘[a]lthough the evi-
dence TTT might support a different conclusion, that possibili-
ty does not warrant a finding that the district court abused its
discretion’’). Nothing in the record justifies our disturbing
the court’s determination that Scott’s statement was suffi-
ciently credible to admit into evidence. As the government
demonstrates, see Br. of Appellee at 31–32, Detective Viggiani
was in fact able to corroborate much of what Scott said —
through a statement given by Duncan and, more importantly,
through ballistics evidence linking the .32 Colt to Hart, see
Sentencing Tr. at 59 (Det. Viggiani). Those two indicia of
reliability are enough to satisfy us that the court did not
abuse its discretion in admitting the hearsay evidence.
C.
Hart’s remaining argument—that the district court failed
to make clear the specific factual basis on which it rested its
conclusion that section 2K2.1(b)(5) applied—gives us concern.
As before, see supra Part II.B, the government contends that
Hart failed to preserve his objection and that a plain-error
standard of review applies, see Br. of Appellee at 19. We
disagree. On receiving the probation office’s initial presen-
tence report, the government objected to the absence of a
four-point enhancement pursuant to section 2K2.1(b)(5).
When the enhancement was included in the final presentence
report, Hart then objected. During the evidentiary hearing,
after the government presented its case, Hart again objected
to the enhancement on the ground that ‘‘the evidence just
doesn’t bear TTT out in this case’’ the application of the
Guideline. Sentencing Tr. at 118. Although the government
argues that ‘‘[a]t no time’’ during the hearing ‘‘did [Hart]
object on the basis that the district court’s findings were TTT
inadequate,’’ Br. of Appellee at 19 n.5, the lack-of-clarity
argument Hart raises on appeal is essentially the same
argument he raised during the hearing — that the facts (as
they have been found and summarized by the sentencing
15
court) do not clearly ‘‘bear TTT out’’ the enhancement. Hart
thus preserved his current contention, one that we find
meritorious for the reasons discussed below.
* * *
We have long required the district court to explain clearly
the factual basis on which it relies in applying an enhance-
ment to a defendant’s base offense level. See, e.g., In re
Sealed Case, 108 F.3d 372, 374 (D.C. Cir. 1997) (per curiam)
(requiring ‘‘detailed findings with respect to the evidentiary
links tying a particular defendant to the amount of drugs for
which the district court finds him responsible’’ under Guide-
lines (quotation omitted)); United States v. Caballero, 936
F.2d 1292, 1299–1300 & n.9 (D.C. Cir. 1991) (remanding to
sentencing court ‘‘for clarification and application of the cor-
rect legal standard’’ where appellate court could not discern
from findings whether ‘‘the evidence before the trial judge
was insufficient as a matter of law to support a TTT downward
adjustment’’), cert. denied, 502 U.S. 1061 (1992); United
States v. Lam Kwong–Wah, 924 F.2d 298, 307 (D.C. Cir. 1991)
(remanding to sentencing court ‘‘for resentencing and for
clarification of the factual findings’’ regarding Guidelines en-
hancement where appellate court ‘‘would have difficulty dis-
cerning from the paper record’’ what factual inferences sen-
tencing court drew). In this vein, we have reminded district
judges that
[a]lthough it is easy to understand how a sentencing
court, with knowledge obtained during plea proceed-
ings or TTT after a lengthy trial, knows well the
evidence that supports its sentence, on review that
knowledge is not discernible except through specific
findings. TTT Regardless how [knowledgeable] it is,
the court must lay out its factual findings in detail
sufficient to make clear the basis for the sentence
imposed. TTT
Ultimately, it is the district court’s responsibility to
ensure the clarity and thoroughness of its findings.
As has the Seventh Circuit, we encourage the dis-
16
trict court to ‘‘adopt the practice of setting forth [its]
findings TTT in a sentencing memorandum in order
to avoid needless misinterpretation by this court on
appellate review.’’ United States v. Billops, 43 F.3d
281, 289 (7th Cir. 1994), cert. denied, 514 U.S. 1030
(1995). If written findings prove too cumbersome, it
nevertheless is essential that the district court enun-
ciate its findings in detail sufficient to allow this
court to conduct its review without struggling to find
evidentiary links.
United States v. Dudley, 104 F.3d 442, 447 (D.C. Cir. 1997).
Likewise, we have made clear that where the sentencing
court suggests alternative factual bases to support an en-
hancement—one of which is legally sufficient and at least one
of which is not—but does not plainly choose among them, the
proper course on appeal is to remand to that court for
clarification of its findings and application of the proper legal
standard. See United States v. Barry, 938 F.2d 1327, 1333
(D.C. Cir. 1991) (citing Caballero, 936 F.2d at 1299–1300;
Lam Kwong–Wah, 924 F.2d at 307); cf. United States v.
Hazel, 928 F.2d 420, 422–23 (D.C. Cir. 1991) (‘‘[A] reviewing
court can review effectively a departure only if it is made
aware of the justifications for that departure.’’ (citing, inter
alia, United States v. Allen, 898 F.2d 203, 204–05 (D.C. Cir.
1990))).
Here, as Hart contends, a remand is necessary because it is
unclear whether the district court based its application of the
section 2K2.1(b)(5) enhancement on a legally sufficient factual
foundation. As we have seen, supra Part I.B, the court
divided its conclusions into two parts, the first of which
analyzed ‘‘the link of the defendant’s gun to [another] felony.’’
Sentencing Tr. at 137. At this step, the court was perfectly
precise; it found, no more and no less, ‘‘that the .32 caliber
bullets recovered from the Jones homicide on February 25th
matched the defendant’s .32 caliber gun recovered from the
defendant on April 17th.’’ Id. We can be certain from the
foregoing statement that, in the district court’s view of the
facts, the ‘‘[ ]other felony offense’’ within the meaning of
17
section 2K2.1(b)(5) was, solely, the February 25 Jones homi-
cide.
In proceeding to the second part of its inquiry—‘‘as to
whether the defendant knew or somehow is associated or had
knowledge that this .32 gun was used in a felony[,] [or] in
other words, we have the gun linked, but do we have the
defendant,’’ Sentencing Tr. at 137—the court seemed to be-
lieve a preponderance of the evidence placed Hart at the
scene of the Jones homicide:
We have links between the Jones and Wallace shoot-
ing, which are one day apart. It’s circumstantial
evidence. But the defendant is identified by Wallace
and Mr. Freeman is also identified as the shooters.
Although it’s not the .32 caliber gun, there is the
same gun in terms of the .38[ ] shell casings that
[are consistent] in the Jones homicide and the Wal-
lace shooting. And, as I’ve indicated, there’s two
shootings in both—two shooters in both shootings.
Id. at 137–38. So far, we believe the court found that Hart
used or possessed the .32 Colt in connection with the Jones
homicide. But the paragraphs that follow cast doubt:
So I would conclude — we’re talking about a prepon-
derance of the evidence. I don’t think it’s clear and
convincing evidence, and it certainly isn’t beyond a
reasonable doubt, but whether it’s more likely than
not, I think that the defendant — there’s several
possibilities. The defendant used the gun in the
Jones shooting or let someone else use it and got it
back and would have known it.
We have the defendant had a .32 caliber gun that
matches a shooting and, therefore, there’s evidence
that he had the gun before and after the shooting
and he’s involved in the surrounding incidents be-
tween those dates.
I would also note that even if the defendant, as
[defense counsel] argues, acquired the .32 gun after
the Jones shooting, his involvement in the beef he
18
would have reason to believe that it was used in the
Jones shooting or one of these other instance [sic].
I mean, who would the defendant have acquired the
gun from after the shooting?
See id. at 138 (emphases added). On reviewing these com-
ments, we cannot with confidence conclude the court found
that Hart used or possessed the .32 Colt in connection with
the Jones homicide—a factual basis that would plainly sup-
port application of section 2K2.1(b)(5)—because this scenario
(Scenario One) is only one of ‘‘several possibilities.’’ Two
other possibilities the district court posited are that Hart ‘‘let
someone else use [the gun] and got it back and would have
known it,’’ Sentencing Tr. at 138 (Scenario Two), or that he
‘‘acquired the .32 gun after the Jones shooting’’ and ‘‘would
have reason to believe that it was used in the Jones shooting
or one of these other instance[s]’’ given ‘‘his involvement in
the beef,’’ id. (Scenario Three). Neither Scenario Two nor
Scenario Three, however, is a sufficient basis on which to rest
the application of section 2K2.1(b)(5). Neither triggers the
text of the Guideline because, in each case, Hart was on the
ex post end of the transaction. That is, in neither case could
Hart be accused of ‘‘possess[ing] or transferr[ing] any firearm
or ammunition with knowledge, intent, or reason to believe
that it would be used or possessed in connection with another
felony offense.’’ U.S.S.G. § 2K2.1(b)(5) (emphasis added).
As Hart points out, the provision’s text ‘‘is prospective TTT
rather than retrospective in scope’’ and is plainly ‘‘meant to
punish more severely those defendants who enable felony
crimes by providing others with weapons,’’ not those defen-
dants who acquire weapons that were previously used felo-
niously. Br. of Appellant at 26–27.
We acknowledge that Scenario Three is better character-
ized as a hypothetical than a finding. See Sentencing Tr. at
138 (‘‘not[ing]’’ that ‘‘even if the defendant TTT acquired the
.32 gun after the Jones shooting TTT he would have reason to
believe that it was used in the Jones shooting’’ (emphasis
added)). After all, just moments before positing Scenario
Three, the court stated that it was crediting ‘‘Mr. Scott’s
19
statement that on either January 19th or 20th TTT he sold TTT
this .32 caliber gun to the defendant.’’ Id. at 137. Accord-
ingly—and despite the fact that the phrase ‘‘several possibili-
ties’’ does not ordinarily mean only two—we are left with
Scenarios One and Two as the possible findings supporting
the court’s application of section 2K2.1(b)(5).
As between Scenarios One and Two, it is impossible to tell
which theory the district court adopted, or if it even adopted
one to the exclusion of the other. The court stated that ‘‘[t]he
defendant used the gun in the Jones shooting or let someone
else use it and got it back and would have known it.’’ Id. at
138 (emphasis added). The ‘‘or’’ in the preceding sentence is
used in the disjunctive. At oral argument, the government
suggested that it is legally immaterial whether Scenario One
or Scenario Two served as the basis for application of the
Guideline because either supports the four-level enhance-
ment. Regarding Scenario Two, the government argued that
the phrase ‘‘would have known it,’’ id. (emphasis added),
means that Hart let someone else use the .32 Colt knowing
that it would be used in the Jones homicide and then ‘‘got it
back’’ later. We are inclined to agree with Hart, however,
that ‘‘the word ‘it’ in the phrase ‘would have known it’ is the
use of the gun in the Jones shooting’’ and that, under
Scenario Two, ‘‘Hart let someone else use the gun and got it
back knowing that it had been used in the shooting.’’ Reply
Br. of Appellant at 4 n.2 (emphasis added). Hart’s reading is
more consistent with the structure of the sentence than is the
government’s interpretation. Moreover, the fact that the
district court entertained Scenario Three at all—in the mis-
taken belief that a four-level enhancement would be appropri-
ate if Hart had acquired the .32 Colt knowing it had been
used in connection with another felony offense—makes Hart’s
reading of the court’s finding more likely. In any event,
while we may be in doubt about what the court found or
understood, we know that it plainly misunderstood the pro-
spective nature of the Guideline; we must assume, therefore,
that it made the same legal error regarding Scenario Two as
it did Scenario Three.
20
In sum, because we cannot be sure whether the district
court relied on Scenario One or Scenario Two as the factual
basis for application of section 2K2.1(b)(5), and because the
latter scenario does not support the four-level enhancement, a
remand is required for clarification and for application of the
proper legal standard. See Barry, 938 F.2d at 1333; see also
United States v. McCoy, 242 F.3d 399, 410 (D.C. Cir.) (re-
manding for clarification because ‘‘[w]hatever the sentencing
court intended to find or could have found, on the record
before us we cannot conclude with confidence that it [correct-
ly applied the] enhancement’’), cert. denied, 534 U.S. 872
(2001).
III.
While we do not and should not expect perfection, especial-
ly from oral findings, we have ‘‘encourage[d] the district court
to adopt the practice of setting forth [its] findings TTT in a
sentencing memorandum in order to avoid needless misinter-
pretation by this court on appellate review,’’ Dudley, 104 F.3d
at 447 (quotation omitted), and we do require a minimum
quantum of ‘‘clarity and thoroughness’’ ‘‘sufficient to allow
this court to conduct its review without struggling to find
evidentiary links,’’ id.; cf. SEC v. Chenery Corp., 318 U.S. 80,
94–95 (1943) (‘‘All we ask of the [agency] is to give clear
indication that it has exercised the [proper] discretionTTTT
We are not suggesting that [it] must justify its exercise of TTT
discretion TTT with artistic refinement.’’). The requisite
quantum of precision is lacking here. We realize the district
court will likely and promptly reinstate the four-level en-
hancement on the legally sufficient ground that ‘‘[t]he defen-
dant used the gun in the Jones shooting.’’ Sentencing Tr. at
138. In sending the case back, however, we are not ‘‘sticking
in the bark of words.’’ Chenery, 318 U.S. at 95. Rather, we
are ensuring that the years of extra prison time Hart will
likely serve for possessing a firearm he ‘‘used TTT in connec-
tion with another felony offense’’3 are not founded on a
misreading of the Guidelines.
3Under the Guidelines, Hart’s criminal history category is IV.
See App. of Appellant at 56. His total offense level with the section
21
The district court’s January 2002 judgment is reversed and
the case is remanded for resentencing consistent with the
instructions set forth in this opinion.
So ordered.
2K2.1(b)(5) enhancement added is 23, see id., a level mandating
between 70 and 87 months in prison, see U.S. Sentencing Guidelines
Manual ch. 5, pt. A (2002). Without the enhancement Hart’s total
offense level is 19, a level mandating between 46 and 57 months in
prison. See id.
1
SENTELLE, Circuit Judge, concurring: While I join the
balance of the court’s opinion without reservation, I join the
court’s interpretation of United States Sentencing Guideline
§ 2K2.1(b)(5) only because I find compelling the court’s con-
cluding statement on the issue:
Significantly, the Tenth Circuit’s interpretation has stood
for nearly ten years without any effort by the Sentencing
Commission—despite multiple amendments of other
Guidelines provisions—to amend the provision to a differ-
ent effect; this is reason enough not to break rank with
our sister courts. See United States v. Bruce, 285 F.3d
69, 73–74 (D.C. Cir. 2002) (per curiam) (declining to
adopt Guideline interpretation inconsistent with that of
other circuits where prevailing interpretation was long-
standing and ‘‘neither the Congress nor the Commission
ha[d] done anything to call [it] into question’’). We
therefore conclude the Jones homicide qualifies as ‘‘an-
other felony offense’’ under section 2K2.l(b)(5) even
though it occurred ‘‘months prior’’ to Hart’s arrest for
possession of the .32 Colt. Draper, 24 F.3d at 85.
I do not find compelling or even convincing the reasoning of
our sister circuits. Contrary to the declaration in United
States v. Sanders, 162 F.3d 396, 400 (6th Cir. 1998), that ‘‘a
logical reading of the 2K2.1(b)(5) Guideline term ‘another
felony’ would TTT require TTT a finding of a separation of time
between the offense of conviction and the other felony of-
fenseTTT,’’ no such logical necessity exists. It is perfectly
possible, and indeed I think contemplated by the Guideline,
that more than one felony can be going on at the same time.
Given that, as the majority notes today, § 2K2.1(b) applies to
‘‘specific offense characteristics,’’ rather than to the criminal
history of the defendant, I think the appellant’s position far
more logical than that of the Sixth Circuit.
Nonetheless for the reasons set forth in the above-quoted
language from the opinion of the court, I join its conclusion.