UNITED STATES COURT OF APPEALS

FOR THE DISTRICT OF COLUMBIA CIRCUIT

NO. xx-3087

BRIEF FOR APPELLANT

UNITED STATES OF AMERICA, Plaintiff-Appellee,

v.

xxxxxxxxx, Defendant-Appellant.

JURISDICTION

The district court had jurisdiction over this case pursuant to 18 U.S.C. § 3231. The notice of appeal having been filed within the ten-day period of Fed. R. App. P. 4(b), this Court has jurisdiction pursuant to 28 U.S.C. § 1291 and 18 U.S.C. § 3742(a)(1), (2).

ISSUE PRESENTED FOR REVIEW

Whether the district court erred in calculating Mr. xxxxxx base offense level by ruling that Mr. xxxxx had "two prior felony convictions" pursuant § 2K2.1(a)(1) of the United States Sentencing Guidelines where the two convictions were obtained after the offense conduct in this case.

STATUTES AND REGULATIONS

Pertinent statutes and sentencing guidelines are contained in the addendum to this brief.

On January 30, 1997, the government filed a six-count indictment against Appellant xxxxxxxx charging: (Count 1) possession of an unregistered machine gun in violation of 26 U.S.C. § 5861(d); (Count 2) possession of firearms by a fugitive in violation of 18 U.S.C.

§ 922(g)(2); (Count 3) possession of ammunition by a fugitive in violation of 18 U.S.C. § 922(g)(2); (Count 4) possession with intent to distribute 5 grams or more of crack cocaine in violation of 21 U.S.C. § 841(a)(1) and (b)(1); (Count 5) possession of a prohibited firearm in violation of D.C.C. § 22-3214(a); and (Count 6) carrying a pistol without a license in violation of D.C.C. § 22-3204(a). (App.8-10).¹ Mr. xxxx pled guilty to Count 2, possession of a firearm by a fugitive, on April 28, 1998. (App. 11-14; 4/28/98 Tr. 4, 11).

On July 13, 1998, the district court sentenced Mr. xxxx to the statutory maximum sentence of 120 months incarceration, the sentence to run concurrently to any other sentence Mr. xxxx was then serving. The court further imposed a three-year term of supervised release and a special assessment of $100. (App. 16-19; 7/13/98 Tr. 32).

B. Statement of Facts.

The firearms charges in this case arise from the execution of arrest and search warrants and the subsequent discovery of firearms. In the early morning of June 14, 1996, District of Columbia Metropolitan Police Department officers, United States Marshals and FBI agents executed arrest warrants for Mr. xxxx and a search warrant at an apartment on Robinson Place in Southeast Washington, D.C. A confidential informant had advised the officers that Mr. xxxx was staying at that location. Once inside, police found Mr. xxxx in one of the bedrooms and found a .9 mm pistol under the bed pillow. In the living room they found a short-barreled shotgun and an automatic M-16 rifle. They also recovered ammunition for the firearms and a quantity of crack cocaine. (4/28/98 Tr. 9-10; PSR 3-4).

A year prior to this arrest, on April 26, 1995, the government had indicted Mr. xxxx in D.C. Superior Court for homicide. (PSR 7). At this time, Mr. xxxx was also a suspect in another, unrelated homicide. (PSR 7, 19). Approximately two weeks after being indicted,

After his arrest, Mr. xxxx was convicted in D.C. Superior Court of the two unrelated homicides. Mr. xxxx was sentenced for one homicide on March 7, 1997, and sentenced for the other on February 5, 1998. (PSR 6-7, 19).

Mr. xxxx then pled guilty to the firearm possession charges in this case, and the district court ordered a presentence report prepared. The presentence report assigned Mr. xxxx a base offense level of 26 pursuant to U.S.S.G. § 2K2.1(a)(1), under which a defendant is given a higher base offense level if he has two or more prior felony convictions for either a crime of violence or a controlled substance offense. The report listed his two homicide convictions that were obtained after his instant offense as the two "prior felony convictions" qualifying Mr. xxxx for the higher base offense level. (PSR 4).

Mr. xxxx challenged the use of these two convictions to raise his base offense level as they were not obtained "prior" to the offense conduct in this case. (PSR 16-17; 7/13/98 Tr. 7-12). Defense counsel argued that the plain language of the sentencing guideline prohibited the court from counting convictions obtained after Mr. xxxx’s arrest for possession of firearms. (Id.). The district court ruled that any qualifying convictions obtained prior to sentencing were within the meaning of "prior felony convictions" under § 2K2.1(a)(1) and, therefore, Mr. xxxx’s homicide convictions, obtained after his offense conduct but prior to sentencing, could be counted. The court sentenced Mr. xxxx based on a total offense level of 30 and criminal history category of IV to the statutory maximum term of 120 months, which fell below the guideline range.

SUMMARY OF ARGUMENT

The single issue in this case is whether the district court erred in ruling that convictions obtained after Mr. xxxx’s offense conduct but prior to his sentencing fell within the meaning of "prior felony conviction" in U.S.S.G. § 2K2.1(a)(1) and, therefore, could be used to assign him a higher base offense level pursuant to the guideline. This Court recently decided in United States v. Pugh, 159 F.3d 1308 (D.C. Cir. 1998), that convictions obtained after the offense conduct but before sentencing are "prior felony convictions" under § 2K2.1(a)(1) and thereby decided the issue raised here. Mr. xxxx raises this issue on appeal, however, in order to preserve it for future proceedings.

A. Standard of Review.

This Court reviews questions of interpretation of sentencing guidelines de novo. United States v. Valdez-Torres, 108 F.3d 385, 387 (D.C. Cir. 1997).

B. The District Court Erred in Ruling that Mr. xxxx Was Subject to a Higher Base Offense Level Pursuant to § 2K2.1(a)(1).

Mr. xxxx was sentenced in error when the district court ruled that his prior homicide convictions in D.C. Superior Court qualified as two "prior felony convictions" under U.S.S.G. § 2K2.1(a)(1) and, as a result calculated his base offense level to be 26. The plain language of the guideline allows for only one interpretation -- that "prior felony convictions" include only convictions obtained prior to the offense conduct. See U.S.S.G. § 2K2.1(a)(1); United States v. Barton, 100 F.3d 43, 45 (6th Cir. 1996).

Furthermore, the guideline commentary does not contradict this plain-language interpretation. Application Note 5 defines "prior felony conviction(s)" by referring to Application Note 1 of § 4B1.2. Note 1 in turn does not address the question of what event the "prior felony convictions" must come before. The second sentence in Application Note 5 also does not contradict the guideline’s plain meaning. It directs a court to "count any such prior conviction that receives any points under § 4A1.1 (Criminal History Category)." The directive in that sentence to count "such prior conviction" requires that a court first determine if a defendant has prior felony convictions under § 2K2.1(a) and then count only "such" of those prior convictions as receive points under the criminal history guideline. So, for example, in this case, Mr. xxxx has no "prior convictions" as he did not have any convictions at the time of his offense conduct. There is no need then to look to the criminal history guideline to determine if his prior convictions (of which there are none) receive criminal history points.

The structure of § 2K2.1 further supports Mr. xxxx’s position. The guideline provides increasing base offense levels for defendants who have no prior convictions, defendants who have one prior conviction and defendants who have two or more prior convictions. The logical inference from these distinctions that the Sentencing Commission determined that persons with an extensive criminal history present more of a threat with a firearm than those who have limited or no prior convictions. In order to determine a particular defendant’s dangerousness within this sentencing scheme, courts must determine how many prior convictions he had at the time he possessed the firearm. Post-offense convictions are meaningless under this sentencing scheme.

Finally, even if the guideline and commentary read together are found to be ambiguous, courts should apply the rule of lenity to ambiguous statutes governing criminal conduct. See Bifulco v. United States, 447 U.S. 381, 387 (1980) (courts should "not interpret a federal criminal statute so as to increase the penalty that it places on an individual when such an interpretation can be based on no more than a guess as to what Congress intended." (internal quotations omitted)).

Mr. xxxx acknowledges that this Court’s opinion in United States v. Pugh, 158 F.3d 1308 (D.C. Cir. 1998), precludes his arguments and decides his sentencing issue. He raises the issue here merely to preserve it for a petition for certiorari to the Supreme Court and for any future proceedings before this Court.

CONCLUSION

For the foregoing reasons, Appellant Gregory xxxx would respectfully request that this Court vacate his sentence and remand his case to the district court for resentencing with instructions prohibiting the district court from counting his homicide convictions as "prior felony convictions" under U.S.S.G. § 2K2.1.

Respectfully submitted,

A.J. KRAMER

FEDERAL PUBLIC DEFENDER

________________________________

Evelina J. Norwinski

Assistant Federal Public Defender

625 Indiana Avenue, N.W., Suite 550

Washington, D.C. 20004

(202) 208-7500

Counsel for Appellant xxxxxxx xxxx

CERTIFICATE OF LENGTH

I HEREBY CERTIFY that the foregoing Brief for Appellant does not exceed the number of words permitted by D. C. Circuit Rule 28(d).

_________________________________

Evelina J. Norwinski

Assistant Federal Public Defender

CERTIFICATE OF SERVICE

I HEREBY CERTIFY that on December 29, 1998, two copies of the foregoing Brief for Appellant and one copy of the accompanying Appendices were served by hand on John R. Fisher, Chief, Appellate Section, Criminal Division, United States Attorney's Office, 555 Fourth Street, N.W., Room 8104, Washington, D.C. 20001.

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