USCA1 Opinion

December 18, 1992

UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT
____________________
No. 92-1940
UNITED STATES,
Appellee,
v.
STEVEN H. SANDERS,
Defendant, Appellant.
____________________
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW HAMPSHIRE
[Hon. Shane Devine, U.S. District Judge]
___________________
____________________
Before
Selya, Cyr and Boudin,
Circuit Judges.
______________
____________________
Ray Raimo and Raimo & Murphy on brief for appellant.
_________
______________

Jeffrey R. Howard, United States Attorney, and Peter E. Pap

__________________
____________
First Assistant United States
Attorney, on Motion for Summ
Disposition.
____________________
____________________

Per Curiam.
___________
being

felon

922(g)(1),

in

Defendant,

possession

of

who pled

guilty to

firearms,

18

from his

sentence.

underlying the second count

in

computing

improperly
injury)

U.S.C.

and (2) using or carrying a firearm during and in

relation to a drug trafficking crime, 18 U.S.C.

appeals

(1)

his

sentence

departed upwards

upon

finding

that

He contends

924(c)(1),

that the

conduct

was unfairly counted three times

and

that

the

under U.S.S.G.
defendant had

district

court

5K2.2 (physical
used

firearm

different from any of those listed in the indictment to shoot

his girlfriend.

Finding no error, we affirm.

I

_
We
argument.
as

first

defendant's

As defendant concedes, he

an armed

felon

address

in

career offender,
possession

count.

triple

counting

was properly sentenced

18 U.S.C.
In

924(e),

these

for the

circumstances,

defendant's guilty plea to using or carrying a firearm during

and

in relation

to a

drug trafficking

crime, 18

U.S.C.

924(c)(1), had three effects on defendant's overall sentence.

First,

defendant's guilty

plea to

the count

two

offense of using or carrying firearms in connection with drug

trafficking required a

minimum mandatory five-year

to be added consecutively to the count 1 sentence.

924(c)(1)

("Whoever, during and in

drug trafficking crime

in

shall . . . be
..

[T]he term

[shall

not]

18 U.S.C.

relation to any

. . . for which he

a court of the United

sentence

. . .

may be prosecuted

States, uses or carries a firearm,

sentenced to imprisonment for five years

of imprisonment
run

concurrently

imposed under
with

any

. .

this section

other

term

of

imprisonment

..");

U.S.S.G.

2K2.4(a)

(term

imprisonment for defendant convicted under 18 U.S.C.

of

924(c)

is that provided by statute).

Second, the
affected

guilty plea

the base offense level

possession offense, raising it

to the count
for the count

from 33 to 34.

two offense
one felon in
The relevant

guideline follows:
4B1.4

Armed Career Criminal

_____________________
. . .

(b)

The offense level for an armed career criminal

is the greatest of:
. . .
(3)

The

district

offense
in

(A)

34,
if
the defendant
used or
possessed the firearm . . . in
connection with a crime of violence
or controlled substance offense . .
.

(B)

33, otherwise.

court chose

subsection

(3)(A),

with a

base

level of 34, on the ground that, the firearms listed

counts one

plea to using

and two

being identical,

or carrying firearms

trafficking established

that the

defendant's guilty

in connection with
firearms had been

drug

used or

possessed in connection with a controlled substance offense.

-3-

Third, the count

history category on
to VI.

two offense

raised the

count one (felon in possession)

criminal
from IV

The relevant provision follows:

(c)

The criminal history category for

career criminal is the greatest of:

an armed

. . .
(2)

U.S.S.G.

Category VI, if the defendant used or

possessed the firearm . . . in connection
with a crime of violence or controlled
substance offense . . .

4B1.4(c).

Defendant

points which, absent section

had nine

criminal history

4B1.4(c), would have placed him

in criminal history category IV, rather than VI.

A
_
Turning first
34 rather than 33) and

to the second (the

selection of BOL

the third (criminal history category)

increases, we see no impermissible double counting.

same

guideline, U.S.S.G.

these
uses

increases.
or

carries

trafficking
(under

An armed
a

plainly directs

career criminal

firearm

offense will

subsection

4B1.4,

in

have both

(b)(3)(A))

and

connection
his base
his

circumstance
thought

where, through

that double

with

drug

offense level
history

This is not a

cross-referencing, it

counting unintentionally

both of

who unlawfully

criminal

category (under subsection (c)(2)) augmented.

The very

might be

resulted, but

rather

the case of one guideline

expressly directing that a

single factor -- possession of a firearm in connection with a

-4-

controlled

substance

The district
the

offense --be

considered in

court correctly followed the

guideline

in

selecting

BOL 34

and

two ways.

plain language of
criminal

history

category VI.
B
_
Next is

defendant's contention that the

offense conduct (using

relation to

firearm during and

drug trafficking) was unfairly

first raising
count

or carrying a

his offense level

from 33 to 34

in

counted twice in

on the felon

and in then

count two

in possession

adding a minimum five-year

sentence to the felon in possession sentence.

Citing to U.S.S.G.
well as

to several cases, defendant argues

counting is improper.
applies

2K2.4, application note 2, as

to defendants

924(c) (using a

that this double

Application note 2 to U.S.S.G.

sentenced

for both

an

2K2.4

18 U.S.C.

firearm during and in relation to a crime of

violence or

drug trafficking crime) offense

underlying the

924(c)

in the base offense

made

for

offense.

and the offense

It directs that

increases

level for the underlying offense

__________________

possession

or

use

of

firearm

in

not be
certain

circumstances:
Where a sentence under this section is
imposed in conjunction with a sentence
for an underlying offense, any specific
offense
characteristic
for
the
possession, use, or
discharge of
a
firearm
(e.g.,
2B3.1(b)(2)(A)-(F)
____
(Robbery)), is not to be applied in

-5-

respect
to
the
underlying offense.
U.S.S.G.

2K2.4, application

an exception

to

guideline
note 2.

the exception,

for

the

The note

which we

then states

need not

address

since we conclude application note 2 is not applicable.

This application note does not apply to defendant's
count
whether

1 (felon in possession) offense.

the felon

in possession

First, it is unclear

offense is

an "underlying

offense," within the

meaning of application

note 2, of

using or carrying a firearm during and in relation to

trafficking offense count.
offense

which would

offense.

Rather, it is a

most clearly

be a

during and in

underlying the using

relation to

hence no occasion arises

defendant been
offense,

the

drug trafficking

sentenced for the

or carrying of

a drug

a drug

relevant underlying

Defendant, however, has not been

drug offense

a firearm

trafficking offense,

to apply application note 2.

separately charged
application

defendant's use of a weapon

note

with the
would

the

and
(Had

underlying drug

have

directed

that

not be considered in calculating

the offense level for the drug offense.)

Second, even if the felon in possession charge were
viewed

as an offense underlying

firearm during

and in relation

offense, the literal

defendant.

The note

the using or
to a drug

application of
directs

that

note 2

carrying of a

trafficking crime
would not

any "specific

help

offense

characteristic" for the underlying offense not be utilized in

-6-

calculating the guideline

range for the underlying

offense.

Unlike, for example, the guidelines for aggravated assault (

2A2.2), kidnapping
which

list use

2A4.1), or drug

or possession

offense characteristic"
in possession

characteristic"
possession of
section

the

weapon is

4B1.4(b)(3)(A)

denominated

2K2.1, 4B1.4)

a single weapon as a

raising
a

firearm as

2D1.1)

a "specific

raising the offense level, the felon

guidelines (

possession or use of

of a

trafficking (

offense

use

"specific

"specific offense
level.1

an element

where

do not designate

of the

is

Rather,
crime.

considered

offense

And

is

not

characteristic."

Consequently, application note 2 does not assist defendant.

Even
applied

to

if application

help

defendant,

note 2

can not

defendant

be literally

contends

that

the

guidelines as a whole and case law prohibit double counting.

The

strongest case on

his contention

which defendant

that unforseen or

relies for

unintended double counting

occurs when use of a firearm during and in relation to a drug

trafficking offense
level for a felon in
year consecutive

is used both in

calculating the offense

possession count and in adding a

sentence is United States v. Bell,

______________
____

Supp. 1207 (D. Minn. 1989).

five716 F.

There, a defendant sentenced for

____________________
1. Possession of three or more
level of persons sentenced
Defendant's offense level was
2K2.1(b)(1), but rather under
-7-

weapons can raise the offense

pursuant to
2K2.1(b)(1).
not calculated pursuant to
4B1.4.

prison

escape

4A1.1(d),

objected to

which

criminal history
under any
an

for

score when

application

a two-point

criminal

could

only be

justice sentence,

status was

so

to

the

committed while

Defendant argued that

committed

while under

the offender's

necessarily already included in

Consequently, considering it again

was improper double counting.

of U.S.S.G.

addition

an offense was

criminal justice sentence.

escape offense

level.

called

the

incarcerated

the base offense

under

4A1.1(d)

After reviewing various places

throughout the guidelines where

provisions are made to avoid

double counting, the district court substantially agreed with

defendant, reasoning as follows:
The underlying principle is that if one
provision of the guidelines accounts for
an element of the offense or a specific
offense characteristic, another provision
designed to account for the same factor
should not apply.
All courts of appeals confronted with the situation
in Bell have disagreed
____
language

of the

with Bell and have applied

____

guidelines.

See, e.g.,
___ ____

the plain

United States
_____________

v.

Thomas,
______

930

cases).

F.2d

13-14 (8th

Nevertheless, there

courts

of

appeals

literally when it
been

12,

used

guidelines

have

United States
______________

refused to

v.

the

the double

Hudson,
______

apply

them that a

even though

called for

1991)

(collecting

are other situations

seemed to

twice,

Cir.

972

the

guidelines

single factor

had

language of

the

plain

enhancement.
F.2d

in which

504

See, e.g.,
___ ____

(2d

Cir.

1992)

-8-

(impermissible

double

inherently dangerous
aggravated

one

characteristic

counting
weapon (car)

and
4

where

resulted

level

of

both made the

in

increase

the use

of

non-

assault an

specific

for use

offense
dangerous

weapon); United States v. Romano, 970 F.2d 164, 167 (6th Cir.
_____________
______
1992)

("if certain conduct is used

sentence

under

one

enhancement

should not be penalized

separate

to enhance a defendant's
provision,

the

for that same conduct again

provision whether or

not the

defendant
under a

Guidelines expressly

prohibit taking the same conduct into consideration under two

separate

provisions";

separate

organizer or manager and

as

enhancements

for

being an

more than minimal planning improper

more than minimal planning

is required to

qualify as an

organizer).
Other courts,
in

which a

guidelines

single

however, when faced

factor has

to compute

been

with situations

used twice

sentence have

under

the

rejected claims

of

unfair double counting and have concluded that the guidelines

should

be applied as written.

Ellen,
_____

961 F.2d 462, 468 (4th Cir. 1992) (rejecting argument

that

a defendant

permit

should

discharge
factors

and
were

convicted

not receive
discharge
elements

See, e.g.,
___ ____

of filling
upward

without
of

Guidelines are explicit when

the

United States v.
_____________

wetlands without

adjustments
a permit

offense;

even

for ongoing
if

those

"[b]ecause

'the

double counting is forbidden, .

-9-

. . [a]n adjustment that clearly applies to the conduct of an

offense

must

be

imposed

unless

the Guidelines

expressly

exclude its
(1992);
1992)
an

applicability'"), cert.
_____

United States
_____________

denied, 113 S.
______

v. Williams, 954
________

F.2d 204

Ct. 217
(4th Cir.

(acknowledging that the use of a metal chair to commit

assault was counted twice -- first, in selecting the base

offense level and

dangerous

second in adding four levels

weapon --

but concluding

that as

for use of a
the guidelines

have been explicit where double counting is to be avoided, an

exception should not be created where none is stated); United
______
States v. Goolsby, 908 F.2d 861 (11th Cir. 1990) (even though
______
_______
enhancement factors are required elements of the crime itself
(escape

from custody)

court

will not

where the Commission has not);

create an

exception

United States v. Vickers, 891

_____________
_______

F.2d 86, 88 (5th Cir. 1989) (same).

We

do not think we

this case where

the Commission

might be convicted
firearm
relation

and

should fashion an exception in

has not.

of both being a felon

using or

carrying

to drug trafficking

That a

in possession of a

the firearm

does not seem

circumstance as to escape the

defendant

during

and in

such an unusual

Commission's attention.

It is

not our place to rewrite the Guidelines.

II
__
With the deduction of
responsibility,

two levels for acceptance of

defendant's offense

level was 32

which, at

-10-

criminal history category VI, called for a sentence of 210 to

262

months for the armed career criminal felon in possession

offense.

The district court

the felon

in possession

did not sentence

count within this

guideline range,

but rather

departed upwards

under U.S.S.G.

months, 38

months above the

maximum guideline

departure

was

based on

U.S.S.G.

5K2.2,

defendant on

5K2.2

to 300

range.

which

The

reads in

material part as follows:

Physical Injury (Policy Statement)
_______________
If significant physical injury resulted,
the court may increase the sentence above
the authorized guideline range.
The
extent of the increase ordinarily should
depend on the extent of the injury, the
degree to which it may prove permanent,
and the extent to which the injury was
intended or knowingly risked.
When the
victim
suffers
a
major,
permanent
disability and when such
injury was
intentionally inflicted, a substantial
departure may be appropriate. . . .
Defendant challenges this departure.

We turn to the evidence

of physical injury.
Defendant's girlfriend was

shot in the head

early

on October 19, 1991 in her apartment.

victim's

building

implicated

defendant's apartment
Uncovered

After residents of the

defendant

was searched

in

pursuant

the

shooting,

to a

warrant.

in a closet were the three firearms (a Beretta .22

caliber pistol, a Raven Arms .25 caliber pistol, a Marlin .22

caliber rifle) which underlay

both counts of the indictment.

There is no evidence that any of those

firearms were used in

-11-

the shooting.

The bullet remains

lodged beyond the victim's

left eye, and the only evidence concerning the assault weapon
was

a doctor's

opinion

that it

was

an approximately

.30

caliber one.
There
is

in

shooting.

was uncontradicted evidence

permanent vegetative

state

as

that the victim

a

result of

the

After hearing eighteen witnesses at the sentencing

hearing, the court found "by a preponderance

of the evidence

that defendant shot [victim] and that the shooting was not an
accident. . . . "
Defendant does not

argue that the

court's finding

that

defendant intentionally

erroneous.

shot

the

victim

is

clearly

Nor would there be any basis for such an argument

as the evidence in support of the court's findings was ample.

Rather, defendant contends that his sentence can not properly
be enhanced on the basis of uncharged conduct taking place at
a different

location (the girlfriend's

circumstances
defendnt's

(possession

of

three

apartment) underlying

apartment) from
guns in

felon

in

the

the

closet

at

possession

count.
Defendant argues
for possession of the

that because he was

not indicted

weapon used to shoot the

victim, that

shooting

is an unrelated,

can

properly be

not

departure.

separate, uncharged offense which

considered as

basis for

an upward

We disagree.

-12-

Even
girlfriend was

if

the

not one

weapon

which

of those listed

defendant's

possession of

it

U.S.S.G.

1B1.3(2), to

the

wounded

defendant's

in the

indictment,

was relevant
felon

conduct,

in possession

under
charge.

Section 1B1.3(2)

directs a

defendant's offense level

to be

determined as follows:
(2) solely with respect to offenses of a
character for which
3D1.2(d) would
require grouping of multiple counts, all
such acts and omissions that were part of
the same course of conduct or common
scheme
or plan
as the
offense of
conviction . . .
This section is applicable
are

subject

Consequently,

to
so

since felon in possession charges

grouping
long

firearm used on his

as

under

Section

defendant's

3D1.2(d).

possession

girlfriend was part of the

of

the

"same course

of conduct" as the possession of the three firearms listed in

the indictment, it is relevant conduct properly considered in
setting defendant's sentence.
"The 'same course of

conduct' concept . . .

to whether the

defendant repeats the

same type of

activity

time.

require

over

It

does

'connected together' by common

scheme."
Cir.

United States v.
______________

1991).

activity --

separate

firearms

did repeat

he illegally

when

criminal

that acts

be

participants or by an overall

Perdomo, 927 F.2d

_______

Here, defendant

criminal

not

looks

victim

-13-

111, 115

(2d

the same

type of

possessed three

or four

was

shot.

We

have

no

difficulty viewing the illegal possession of the four weapons

as all part of the same course of conduct.
The

next

question

is whether

uncharged

conduct

(here, illegal possession of, arguably, a fourth firearm used

to

shoot victim)

U.S.S.G.

which constitutes

relevant

conduct under

1B1.3 may properly be considered as a basis for an

upwards departure.
It

is

true that

specifically says
determining
chapter 3)
direct

the
to

the

that relevant
base

offense

base offense

relevant

conduct guideline

conduct is
level

level;

to

and

be used

adjustments

it does

not

courts

U.S.S.G.

1B1.3.

have approved

uncharged

conduct.

F.2d 4 (1st

expressly

upward

Nevertheless, we
departures

and other

based on

relevant

See, e.g., United States v. Figaro, 935

___ ____ ______________
______

Cir. 1991)

(upward departure based

in part

circumstance that defendant, charged with illegal entry,

on
had

attempting to smuggle aliens at the time of the illegal

entry,
crime).

separate

and more

United States
_____________

resulting

in

preclude departures

serious

v. Kim, 896
___

1990) ("We conclude that, with

not

(in

whether relevant conduct may be a basis for an upward

departure.

been

in

conviction,

--

but uncharged

F.2d 678,

--

684 (2d Cir.

respect to acts of misconduct

the Commission

for acts bearing no

intended

to

relationship to the

offense of conviction, but to permit departure for

relate

acts that

in some way to the offense of conviction, even though

-14-

not

technically

conduct.");

covered

the

definition

of

relevant

United States v. Shields, 939 F.2d 780, 782 (9th

_____________
_______

Cir. 1991) (departure

counts of

by

based on relevant conduct

conviction).

The principles of

not part of

these cases amply

cover and support a departure here on the basis of uncharged,

relevant conduct.
Defendant argues that sentencing
in

part, of an

uncharged shooting is

him on the basis,

unconstitutional.

He

contends he is being punished for the shooting without a jury

having

determined beyond

victim or the other

reasonable doubt

that he

shot

procedural protections which would apply

had defendant been indicted

and tried for the shooting.

have rejected similar arguments

We

and adhere to that position.

United States v. Wright, 873 F.2d 437, 441-42 (1st Cir. 1989)
_____________
______
(government need not prove facts used in sentencing

beyond a

reasonable

doubt).

See also
___ ____

United States v. Galloway, 976

_____________
________

F.2d 414 (8th Cir. 1992) (sentencing by considering relevant,

uncharged conduct

under

U.S.S.G.

1B1.3(a)(2)

does

not

violate the

constitutional rights to indictment, jury trial,

and

beyond

proof

Pennsylvania, 477
____________
minimum
proved

a
U.S. 79

sentence below
beyond

satisfies

due

reasonable

(1986) (factors

the

reasonable

process

and

doubt);

McMillan
________

used to

statutory maximum
doubt;
right

v.

raise a

need not

be

preponderance standard
to

jury

trial

is

not

-15-

implicated).2

Defendant has not received

a sentence beyond

the statutory maximum.

Last, defendant asserts, without
that

the degree

of departure was

much elaboration,

unreasonable.

The court

departed thirty-eight

months above the top

of the guideline

range.

statement

advised

The

policy

expressly

that

"substantial" departure may be warranted for an intentionally

inflicted major,
in

a permanent

difficult

permanent disability.
vegetative

to imagine.

intentionally

causing

state.

Here,

worse disability

thirty-eight month

such

the victim is

grievous

is

departure for

injury

is

not

unreasonable.
The

government's motion for summary disposition is

granted and the judgment is affirmed.

________

____________________
2. We note further that there is no possibility that
defendant will be unfairly punished twice for shooting the
girlfriend.
As acknowledged in the plea agreement, the
Attorney General of New Hampshire agreed that defendant's
federal guilty plea would
"satisfy any state criminal
liability in regard to the defendant's involvement in the
shooting of [victim]. . . . "
-16-