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Advanced Guideline Issues: Firearms


Hello, and welcome to our program. I’m Rachel Pierce,
and I am joined by my colleague Alan Dorhoffer today. Today is the first in a new series of interactive
broadcasts that are going to deal with Advanced Guideline Issues. Today specifically we’re going to be dealing
with Advanced Guideline Issues in relation to firearms offenses. We’re going to be looking at various fact
patterns that we have received either from the help line, from training programs that
we’ve done in the past, or from faxes that we’ve received prior to the broadcast and during this broadcast
as well. We are going to look at those fact patterns and analyze
them and address some of the issues that we see that come up frequently in dealing with firearms offenses. Now going through our program today, we’re going to start out with a review of relevant
conduct. We’re going to move on after that to a discussion of 2K2.1, the general firearms guideline,
where you find your felon in possession offense cases sentenced. Then we’re going to move on to a discussion of 18
U.S.C. 924(c), which is the use, carry, or possession of a firearm in relation to a crime of violence or a drug trafficking offense. And we’re going to finish up today’s broadcast
with a review of multiple counts in grouping. Now, the majority of our broadcast today is
going to focus on those two guidelines that I mentioned, 2K2.1 and 2K2.4, because that’s the guidelines–those are guidelines
that are used when you’re looking at a majority of firearms offenses. But we’re also going to touch on the subjects of relevant conduct and grouping
of multiple counts, because we’ve found that the majority of issues that come up in
relation to firearms offenses center around the analysis of relevant conduct and the grouping of multiple counts of firearms
offenses. But before we get into the meat of the
program, so to say, Alan, would you mind going over some of the housekeeping issues that
we need to be aware of for today’s broadcast? Sure. We have participant materials which are
listed at the bottom of your screen at the following website, starting with http, and what we would like is, throughout the show
you will be going to see a fax number that comes on the screen, and we would greatly appreciate any faxes that you have
regarding any of these issues. The issues that we get over the help line
and also over the training requests are going to be used in some of the scenarios that Rachel and I
are going to talk about today. But we would like for you to send any questions you have on firearms
or on any guideline issues to the following number that you will be seeing
on the screen today. Thank you, Alan. Now let’s go ahead and get started with a
review of relevant conduct. Any of you who have seen us train in the
past might have heard us use the phrase that relevant
conduct is the cornerstone of guideline application. And the reason why we call it the cornerstone
of guideline application is because really and truly relevant conduct is the foundation on which
all of–or a majority of–your guideline determinations are to be made. Your Chapter 2 base offense levels, specific offense characteristics, the application of cross-references, and the majority of Chapter 3 adjustments
are going to focus and center on the application of relevant conduct. So it’s very important when you have these issues that come up when
you’re applying the guidelines that you have a clear understanding of how relevant conduct works and the analysis that you are going to need to
work through. So, having said that, Alan, why don’t you walk
us through the analysis that we need to be concerned about when we’re
looking at relevant conduct? Sure. As many of you know out there, relevant conduct, the guideline that you’re going
to be looking at, is 1B1.3(a)(1) (a)(2), (a)(3), and (a)(4). We’re going to focus most of our attention
today on 1B1.3(a)(1) and (a)(2) analysis because those are the
subsections that you use most frequently, especially with the firearms guidelines. As with all relevant conduct questions, there are two questions that we would
like to know about–who and when. Who are we going to hold accountable for certain acts? And when are we going to hold those people accountable? The first question deals with 1B1.3(a)(1)(A). We’re going to hold the defendant accountable for
all the acts that that defendant has committed in that offense. With 1B1.3(a)(1)(B), we are going to look to certain acts of others in certain circumstances, particularly conspiracies. There is a
three-part analysis that we’re going to focus on when we look at 1B1.3(a)(1)(B) to look at the scope of the defendant’s
undertaking with his coconspirators. We are also going to look to whether those acts of others were in furtherance of
the defendant’s undertaking. And then third, we’re going to be looking to see whether those
acts were reasonably foreseeable in furtherance of that activity. The second question, as I mentioned, is the “when” question. And what we’re going to be looking at with
“when” is we are going to look to the offense of conviction and certain other parts of that offense of
conviction. We are going to hold the defendant accountable for, under 1B1.3(a)(1), anything that occurred during the offense of
conviction, anything that occurred in preparation of that
offense of conviction, and anything that occurred to avoid detection of that offense of conviction. And let me give a
brief example of something about how 1B1.3(a)(1) operates. If the defendant decides that he’s going to
rob a bank, and before he robs that bank he decides that
he needs a car and steals a getaway car, we are going to hold that defendant accountable for anything
in preparation for that offense of conviction– the bank robbery– and hold that defendant accountable for the fact that he stole that getaway car. We’re also going to hold that defendant accountable
for anything that occurred during that offense of conviction. If the defendant took out a firearm and pointed it at the teller and walked out with
$50,000, we’re going to hold that defendant accountable for that fact. And we are also going to look to anything that that the defendant did to avoid detection
of that offense. So if, as he’s running out of the bank, he hits a teller on the
way out on the steps of the bank, we’re going to hold the defendant accountable
for those actions to avoid detection of the offense. And those are going to be the primary questions that
you’re going to look for when you’re looking at 1B1.3, the “who” and the “when.” And then there’s a second prong for certain types of offenses dealing with
1B1.3(a)(2) that will look to the same course of conduct, common scheme, or plan. Rachel, do you want to give a little description
about how 1B1.3(a)(2) operates? Sure. As Alan was talking about, the relevant conduct
analysis is different depending on what types of offenses you’re looking at. And by
that we mean that for certain types of offenses, the court will be able to look beyond that
offense of conviction. Remember, the offense of conviction time frames are during the offense, in preparation
for that offense, or in order to avoid detection or responsibility. But when you have (a)(2) of relevant conduct, the court can look beyond, or expand, that offense of conviction to look at things
that are part of the same course of conduct, common scheme, or plan. Now, one of the things to remember–and we’ll
talk a little bit more about this when we talk about grouping, because grouping of multiple
counts at Rule D and expanded relevant conduct are very much
intertwined– but when you’re specifically looking at
firearms offenses, we can look at 3D1.2(d) and
see that 2K2.1, which is one of the primary firearms guidelines, is listed as groupable under Rule (d). Now what does that mean? Obviously, it means that we’re going to group it at Rule (d),
but it also means that it’s subject to expanded relevant conduct. Now, expanded relevant conduct is not a term
that you’re going to see in the guideline manual itself. It is actually another one of the
training terms similar to “cornerstone of guideline application,” that we’ve kind of coined in the training
unit to describe what actually happens when the
court looks beyond the offense of conviction to include certain acts in the determination of relevant conduct. If you look a little bit more closely at
the guideline, Application Note 9 of 1B1.3 will guide the court in how to determine what
offenses are same course of conduct, common scheme, or plan. The court will be looking at things such as
do the offenses have similar modus operandi, do they have close proximity between
time in the offenses, are they regular offenses, this type of thing. Those are the determinations that the court is going
to be making to determine whether or not something is part of the same course of conduct, common scheme, or plan. Now, the reason why this is so important with these types of offenses, and specifically
firearms offenses, is that you may be able to look at, in this case, other weapons that are outside that offense of conviction and include
those in your relevant conduct determination. So why don’t we just discuss a scenario to see how this will play itself out? I think that’s a great idea. And I think, as with all guideline
applications, scenarios are a good way to illustrate certain points that we all try to make when we’re looking to the
guideline applications. So why don’t we look at a scenario in which a defendant has been charged with an 18 U.S.C. 922(g) felon in possession? The indictment cites 1 firearm for that offense. However, a subsequent search of the defendant’s
house yielded an additional 14 weapons that were found at that house. One of the questions is, Does the enhancement for number of weapons at
2K2.1(b)(1) apply? During the course of this broadcast, we’re going
to talk about a number of the specific offense characteristics at the 2K2.1
guideline. One of them involves the number of weapons.
And there is an enhancement for if the offense involved 3 or
more weapons. Here you have a situation where the indictment
cites 1 count– the indictment cites 1 firearm; however, there were an additional 14 firearms
that were found at the individual’s house. In the course of the fact that the individual
was a felon in possession and should not have been possessing any of those weapons, not only are we going to hold the defendant accountable for that 1 weapon, we’re are also going to hold the defendant
accountable for those additional 14 weapons, which would be a grand total of 15 weapons. At that enhancement, at 2K2.1(b)(1), the number would be 15 weapons, which would equate
to a 4 level increase for having 15 weapons, which is between the
8 and the 24 enhancement at that guideline. So that is how the relevant conduct works, is that you don’t just count the weapon at the indictment, then maybe beyond, or as Rachel mentioned earlier, that same course
of conduct, common scheme, or plan. OK, Alan, you mentioned one of the specific offense
characteristics at 2K2.1. But let’s back up just a little bit and
look at the guideline itself at 2K2.1. 2K2.1 is the guideline that deals
with unlawful receipt, possession, or transportation of firearms or prohibited transactions involving
firearms, and I’ve mentioned already that this is the felon in possession guideline and one
that is used very often. Let’s just talk a minute about that guideline. Those of you who are familiar with that guideline
know that there are alternative base offense levels at 2K2.1, depending on the defendant’s criminal history, the status of the defendant, is the defendant a prohibited person. And then there are a number of specific offense
characteristics Alan touched on already, a table at 2K2.1 that deals with number of firearms. So there are incremental
increases based on the number of firearms involved in the offense. I’d also like to point out here that in November of 2006, the Commission
made a number of amendments to the guideline at 2K2.1. And for those of you are interested in reading
the reader-friendly version of those amendments and finding out a little bit more about them, we do have a link to those reader-friendly
amendments provided for you at the site where you
register for your participant materials. So you can download the reader-friendly
version of those amendments. Now, what you’ll see when you look at that
is a couple of things. A new specific offense characteristic, for example, for trafficking of firearms was added as a result of that amendment. A circuit split was resolved regarding (b)(6) and (c)(1),
and we’ll go into a lot more detail about that in just a few moments. You will also see changes in determining base
offense levels for the certain types of offenses that are listed at 18 U.S.C. section
921(a)(30). Those of you who are familiar with these offenses
will recall that that was a repealed statute dealing with
the ban on assault weapons. So we have provided an alternative way to determine what base offense levels would be
for those types of offenses that were originally listed at that statute. Having talked about that, let’s go ahead and dive in
to some of the application issues that we really want to focus on today. And I mentioned the 2K2.1(b)(6) and 2K2.1(c)(1), which is the cross- reference discussion. Let’s start by looking at 2K2.1(b)(6). The language itself at 2K2.1(b)(6)
says that if the defendant used or possessed any firearm or ammunition in connection with
another felony offense, or possessed or transferred any firearm or ammunition with knowledge, intent, or reason to believe
that it would be used or possessed in connection with another felony offense, increase by 4 levels. Now as I said, Alan, the Commission resolved a
circuit split regarding specifically the application of (b)(6) and (c)(1). Why don’t you tell us a little bit about how the
Commission resolved that circuit split? Yes, the Commission looked into examining
the firearms guideline last year, and there were three circuit conflicts involved with
the 2K2.1(b)(6) guideline. It is amendment 691 if you want to look at Appendix C
to explain why the Commission did certain things with this guideline,
particularly the circuit conflict. The first circuit conflict it had to address
was the actual standard to be used in looking to 2K2.1(b)(6). Many of you that are watching will realize that 2K2.1(b)(6)
used to be 2K2.1(b)(5). But it has been renumbered based on the fact that we have added that trafficking specific offense
characteristic that Rachel just briefly mentioned. There was a split in the circuits on what is
the standard for possessing or using a firearm in connection with another offense in that application. The majority of circuits used a standard that was the firearm must serve some purpose or facilitate the felonious conduct,
rather than being merely coincidental. Two other circuits, though, used a little bit more
of a broader standard, which was that the enhancement applies if the firearm reflects an increased danger of violence unless it was clearly improbable
that the weapon was connected with the offense. The Commission examined this; it looked closely at a Supreme Court case
called Smith v. United States back in 1993, and in Application Note 14 of the guideline, the Commission went in and put in a new standard, and that standard is if the firearm facilitated, or had the
potential of facilitating, another felony offense or another offense, then the
enhancement would apply. Let me just give a brief little example of how this operates. If a defendant committed a bank robbery but was only convicted of that felon in possession, this guideline at 2K2.1(b)(6)
in this characteristic will look to whether the defendant committed another
offense with that felon in possession charge. If the defendant used that weapon in the bank robbery, then we’re going to apply that enhancement at 2K2.1(b)(6). The Second Circuit conflict that the Commission
resolved involved a burglary situation. What to do in the situation where a defendant burglarizes a home or sporting goods store and while in the midst of the burglary steals a firearm. Some circuits had held that during that burglary if the defendant steals
that firearm and walks out of the house and there’s no other activity, that that enhancement still could apply because
of the increased danger of that individual having that weapon during that
burglary. Some other circuits had said that the burglary would not rise up to that other offense at 2K2.1(b)(6). The Commission resolved this with a bright line rule to state that in the case of a defendant who takes a firearm during the course of a
burglary, even if the defendant did not engage in any other conduct with that firearm during the course of the
burglary, then at that particular point the enhancement would apply. And the Commission had another circuit conflict
that it had to address, which was with the drug trafficking situation. The Commission resolved the circuit conflict to state another bright line rule that when a firearm is found in close proximity to drugs, drug manufacturing materials, or drug paraphernalia, that the enhancement at 2K2.1(b)(6) automatically applies. An example of this would be if the defendant
is arrested in his house with the firearm next to the drugs that he is selling out of his house, that enhancement at 2K2.1(b)(6) applies. And the reason that the
Commission did this was because of the increased danger with both the burglary and the drug context with firearms. Okay. Thank you, Alan. Let’s move on now to talk a little bit more
about the cross-reference, and then we’ll talk in a few more minutes about the similarities,
because people are going to notice when we go over the language at 2K2.1(c)(1), that there are a lot of similarities
in the language. Having said that, let’s just go ahead and look
at the language of the guideline: If the defendant used or possessed any firearm or
ammunition in connection with the commission or attempted commission of another offense, or possessed or transferred a firearm or
ammunition with knowledge or intent that it would be used or possessed in connection with
another offense, then the cross-reference would apply. Now, I would
like to point out here that the cross-reference only applies if the
offense level that results is greater. Okay? Another point I want to make is that even since the Booker decision came down, the
standard of sentencing–the standard of evidence at sentencing–is preponderance. So while we’re looking at applying specific
offense characteristics and cross-references, we still have the same standard
of evidence in a post-Booker world, which is preponderance of the evidence. So cross-references are still alive and
well, and especially in relation to this guideline
because we see a lot of instances in which a defendant is charged with a felon in possession
or an underlying offense. So we’re going to be seeing a lot of these things happen. A couple of other things I want to point out when we talk about applying the cross-reference at 2K2.1(c)(1). 1B1.5, which is the interpretation
of references to other offense guidelines, says that if there are two offenses to which a cross-reference could apply, then what you need to do according to Application
Note 3 is apply the cross-reference based only on the most serious of those offenses.
Now again, relevant conduct is very important in determining what cross-references are at 2K2.1. And if you’ve got a couple of different offenses that the defendant has committed–
let’s say, for example, the defendant is in possession of a weapon, robs a bank, shoots a teller throughout the course of the event, and actually kills that teller. You’ve got a federal offense for felon in possession
of a firearm. Now regardless of whether or not the defendant is convicted of the robbery
or the murder of the teller– sometimes they will be and sometimes they won’t– there are 2 offenses that that defendant attempted; he committed another offense with that weapon. So you are going to look to the most serious of
the two offenses, which is the murder, obviously, of the teller, and cross-reference on the basis
of that offense as opposed to the robbery of the bank. Okay. We’ve looked at the language differences; we’ve
looked at the language of 2K2.1(b)(6) itself and the language at
the cross-reference. Let’s talk about some of those differences and some of those
similarities, if you will, right now, Alan. Right. And one point I do want to make that Rachel
just made is to emphasize both for the specific offense characteristic
and the cross-reference, no conviction is necessary because that’s an important point to keep in mind is that the defendant does
not need to be even charged in some situations with that
other offense. The court will have to make a determination if that other offense rises up to the level of another
felony offense at (b)(6) or the cross-reference that we’re going to look at at (c)(1). So no charge is necessary for that enhancement. Exactly. Some of the differences between the cross-reference and the specific offense characteristic–the
first difference is the specific offense characteristic at 2K2.1(b)(6) looks to whether the defendant used or possessed any firearm in connection with another felony offense. The cross-reference, though, looks to the use
or possession of any firearm in connection with the commission or attempted commission of another offense. So we’re looking
at the commission or attempted commission and also of another offense, meaning it could be a misdemeanor. It doesn’t have to be, but it could be a felony or a misdemeanor for the
cross-reference, so in that situation, it is a little bit more broad because of the misdemeanor language. At 2K2.1(b)(6) and 2K2.1(c)(1) another difference is at the specific offense characteristic, the weapon needs to be possessed
or transferred with the knowledge, intent, or reason to believe that it would be used or possessed in connection
with another offense, whereas at the cross-reference, it’s the possession or transfer of the firearm with
knowledge or intent that it would be used or possessed in connection with another offense. So we are looking at both again, and the “reason to believe” language is at 2K2.1(b)(6), and that language is not at 2K2.1(c)(1). But those are two of their differences. In general, though, there really
aren’t that many practical differences between the two. As a matter of fact, even if you use
a misdemeanor to cross-reference to look to see whether it applies, you’re not normally going to cross-reference
because the misdemeanor offense is unlikely to result in a greater offense level than what was at
the 2K2.1 offense level calculation that you had done
in connection with that offense at 2K2.1. Why don’t we look at a scenario, Rachel, to illustrate this point? We’ll look at a scenario where the defendant is charged with 18 U.S.C. 922(g). The facts of this scenario indicate that the defendant
robbed a fast food restaurant with a firearm and, of course, that firearm is listed in the charging
instrument, the violation of 18 U.S.C. 922(g). Now, the defendant has been charged and convicted
for robbery at the state level and actually sentenced
to 11 years on that robbery. So the question comes up as to whether or not 2K2.1(b)(6),
in connection with another felony offense, and/or the cross-reference at 2K2.1(c)(1)
apply. So let’s look at the application on this count
of conviction. The 2K2.1, felon in possession,
guideline results in a base offense level of 18. We are going to apply the enhancement at 2K2.1(b)(6),
as the defendant did use the firearm in connection with the robbery. He
used the firearm to rob the fast food restaurant. That is a 4 level increase. Now, before the cross-reference, we have an
offense level of 22. Now, if we were to apply the cross-reference
on the basis of that other offense, in this case a felony offense, we would apply the robbery guideline. The robbery guideline, of course, is at 2B3.1. It provides a base offense level of 20. We’re going to give the specific offense characteristic
at (b)(2) for the defendant possessing a firearm in connection with that offense. It is a 5 level increase.
So in this case, we see that we would be cross-referencing out. And
I think the point that we really need to make here is that anytime you’re looking at the application
of 2K2.1(b)(6), you should also necessarily be looking at
the application or possible application of the cross-reference at (c)(1). Even though there are some differences in the
language, and if it’s a misdemeanor offense that
you’re looking at, you know the cross-reference is going to unlikely apply because it won’t result
in a greater offense level, you still need to be looking at the application
of both at the same time. We’ve got another scenario that we can look
at to illustrate some of the issues that come up. Alan, do you want to take the lead on this? And the reason we’re spending a lot of time
on this specific offense characteristic is this is a characteristic that actually applies in
about 20 percent of all cases that are sentenced under the 2K2.1 guideline.
And we get a lot of helpline calls, and in a lot of training when we’re doing the training programs,
there are a lot of questions on this. So we are going to do another scenario now to illustrate the example of both the specific
offense characteristic and the cross-reference. In this scenario, which is from an actual helpline call, the defendant was armed at the time that he walked into a bar. He entered the bar with his girlfriend. He got into a fight with the waiter and hit the waiter with a bottle. While the defendant was driving away he was pulled over by a police officer, who noticed the firearm in the front seat
of the vehicle. At that particular point, the defendant was arrested and charged and convicted of 18 U.S.C.
922(g), felon in possession. In looking to the actual guideline, the question
is, does 2K2.1(b)(6) and/or the cross-reference at 2K2.1(c)(1) apply? Once again, in looking at the analysis for this particular guideline application, 2K2.1 is going to be the guideline
that you’re going to look at. The base offense level–we’ll put this defendant
at a base offense level of 18. And at 2K2.1(b)(6), because the individual possessed that firearm
in connection with that assault and that individual hitting that waiter, it’s another 4 level increase. The offense level is 22. Once again, you need to continue on that guideline
to look to the cross-reference to see if the cross-reference
applies. Here, the other offense that took place was the assault. 2A2.2 is the guideline for aggravated
assault, and that base offense level is 14. There is a 3 level enhancement if during the
course of the assault a firearm was possessed or a dangerous weapon. Here we know the firearm was possessed. We are going to give a plus 3, for 3 levels, and then at 2A2.2(b)(3),
bodily injury resulted by the fact that the defendant hit the beer bottle– hit the waiter with the beer bottle. Another 3 levels, making the offense level 20. You do not apply the cross-reference at that
particular point because it’s less, so you’ll stay at the 2K2.1 guideline– when you are calculating the guidelines, you will stay at
2K2.1. I’m glad we looked at the examples of both:
one where we actually do cross-reference because it results in a higher offense level, and one where
we don’t. Even though the other offense in this case could have been
a felony offense, it still didn’t result in a higher offense level. And again, just to reiterate the point that
anytime you’re looking at the application of 2K2.1(b)(6), you must also
look at the application– at the cross-reference. Again, I can’t tell you how many times we’ve gone
out training and people have said we apply (b)(6)
and we don’t go any further than that. Well, that is not applying the entire guideline, and so you always have to remember to do that. So anything else you want to add before we– Yeah, one other point to make with
these characteristics. There are a lot of these characteristics that apply
in these firearms cases. Some people have said you need to pay close attention to the fact
that the number of weapons and the trafficking specific offense characteristics
can both be applying. And the same thing with stolen weapons– there’s an enhancement for stolen weapons, and there is also a number of weapons. So if the individual stole 50
weapons, he’s going to get hit with an enhancement for the fact that he stole 50 weapons, and he’s also going to get hit
with the 2 level increase for possessing a stolen weapon. So you need to pay close attention when you’re looking
to these specific offense characteristics that you could have more than one applying based
on the facts of the particular case. Great. Okay. So far we’ve discussed the review of relevant conduct, we’ve discussed the firearms guideline at
2K2.1 and some of the issues that occur there. Before we move on, however, to discussion
of the 924(c) violations, I want to address just one more issue that was actually in a fax
we received prior to the broadcast from the Southern
District of Georgia. Thank you to Suzanne Mingledorff and Stephen Highsmith, and I am sorry
if I butchered those names. But thank you for submitting this question.
And the issue is this, the defendant has been charged with a violation
of 18 U.S.C. 922(g) and is also a prohibited person. When applying 2K2.1, there is a reduction if the offense
was solely for lawful sporting purposes. If the weapon was possessed solely for lawful
sporting purposes, there’s a reduction that could apply. And the question is, if the defendant is a
convicted felon, how and in what circumstances would this reduction
ever apply? Alan, do you have any thoughts on that? Yes, and
this reduction, which is pretty significant for some defendants because it takes it down
to a level 6 for some of these individuals, what the court looks to is the guideline
itself at Application Note 6. It talks about the circumstances for the court– certain circumstances for the court– to focus on: the number and type of firearms that are involved
in the offense, the amount and type of ammunition, the location and circumstances of the possession
or actual use. It will look to the defendant’s criminal history and
see if he has other felony convictions dealing with firearms in
his past, and the extent that the possession is restricted by local law. And in this, this is a specific offense characteristic, and there is some case law out there that I think
would be helpful to individuals to look at this. There is a case out of the Eighth Circuit in
a case called United States v. Massey, and there’s a case out of the Tenth Circuit in a case called United States v. Mojica which I think would be very helpful
to individuals in looking to this application at 2K2.1(b)(2) because it is something that, for defendants, it can take them down to
that level 6. So it is a pretty significant decrease for those individuals down to particular type of offenses. Okay, good. Again, thank you for that fax prior to the
broadcast. If you have questions as you’re watching us now, go ahead and fax those to us, and
we’ll try to get to them at the end of the broadcast. If we don’t, we will
call you back after the show or at some point during this week,
hopefully, and answer those questions. Now, let’s go head and move on to a discussion of 18 U.S.C.
924(c) offenses. Now, of course, I mentioned earlier in the broadcast 18 U.S.C. 924(c), and the guideline at 2K2.4, deals with the use, carry, or possession of a firearm in
relation to a crime of violence or a drug trafficking offense. Those of you who are aware of 924(c)s
and have dealt with them in the past, excuse me, know that the 924(c) statute is a unique statute. As a result, the guideline at 2K2.4
is a unique guideline, and it does not operate in the same fashion as an overwhelming
majority of Chapter 2 guidelines, and we’ll talk about that. But let’s talk a
little bit about the statutory construction first, because that’s really
what drives the application of the guideline itself. So, Alan, why don’t you tell us
a little bit about the statutory construction of a 924(c)? Yes, this is a unique statute because it’s
got different mandatory minimums; it’s got one statutory
maximum, the statutory maximum is life, but mandatory minimums depend on certain type
of conduct, type of weapons that the defendant possessed, and also potentially some prior
924(c)s. One of first questions the court’s going to
look to is, what is the mandatory minimum that is appropriate
for this individual? 18 U.S.C. 924(c) has varying lengths of mandatory minimums, but none are less than 5 years. So at a minimum, the defendant will be facing 5 years’ imprisonment. The judge will make a determination if the
defendant possessed, used, carried, brandished, or discharged,
and the mandatory minimum term depends on what the defendant did in that offense. The reason the judge makes that decision, it’s from a case called U.S. v. Harris from
the Supreme Court. As a matter of fact, we are going to see a couple of the Supreme
Court cases. This statute–18 U.S.C. 924(c)– has been the subject of a number of cases
before the Supreme Court. Also with this, the brandished carries the 7 years, used carries the 10 year mandatory minimum. For prior 924(c) convictions, those will increase the mandatory minimum length that the court will
also be giving at that particular point. And then we will also be looking at the type
of firearm. Certain types of firearms lead to increased mandatory minimums. And
that is something that will be in the indictment of that individual. So, for example, a machine gun carries a 30 year mandatory minimum, different than if it was
just a regular pistol. The other area that is unique about this statute deals with if an individual has a second or subsequent
conviction. This second or subsequent conviction of
a 924(c) can occur at the same sentencing, so the defendant could be charged with two counts of 924(c). Or he could have had one in his past and one now, but that second or subsequent conviction will lead to an increased mandatory minimum. The Supreme Court said that it was acceptable for
the second or subsequent one to occur at the same sentencing in the case Deal v. U.S., the cite on your screen as you can see. For the second or subsequent conviction, the mandatory minimum is typically 25 years. The other point, and this is a very important point
that we are going to emphasize, if the defendant is convicted of 924(c), that sentence must be consecutive to any and
all other sentences. And that’s specifically cited in the
statute and also in the U.S. v. Gonzales case. And one other important point to remember is even though it’s carrying a weapon or using a weapon in connection
with a certain type of offense, you could actually just have a conviction
for this statute alone. You do not need a conviction for that other offense. That is an important point to be aware of–that then, obviously, the mandatory minimum will control. As a result of this particular statutory construction,
as I said before, the guideline operates a little bit differently
at 2K2.4 because of this. It is actually kind of straightforward what we tell you
to do at 2K2.4. We say apply the mandatory minimum for a 924(c) count
or counts, and again, that’s going to depend on the behavior that the defendant was involved in–did he possess the weapon, did he brandish the weapon, what did he do? Do not apply, for 924(c) counts,
any Chapter 3 adjustments or Chapter 4 to the 924(c)
count. Of course, as there are exceptions to every rule, there’s
an exception if the 924(c) count could make
the defendant a career offender, but that is going to be a subject for another
day. We’re not going to discuss that 924(c) career offender today. A couple of things I do want to point out when you
do have 924(c) convictions is that the application of specific offense
characteristics can be impacted as well. For example, if you’ve got a 924(c) violation
and an offense of conviction for the underlying offense
could be a drug trafficking offense or a crime of violence, you are not going to apply any firearms specific offense
characteristics for that underlying offense. And, of course, those of you who are familiar with the drug
guideline know that there’s an increase at 2D1.1(b)(2)
for possession of a weapon. If you have a drug count in connection with a 924(c),
you are not going to be giving that weapon enhancement because the 924(c)
is going to count for that underlying conduct. In addition, if there’s a codefendant who’s carried a weapon as part of a drug conspiracy, but the defendant has not– okay, the defendant has not–carried a weapon, you are not going to be giving any SOC increases for weapons based on codefendants’
behavior. You might have had a 924(c) that was originally
charged and then dismissed, or something like that. But if you have the 924(c), you’re not giving that at all. In addition, did you want to–Yeah, just one point with that. There is one point to make, and that is a defendant
can be convicted, though, of 924(c) based on that codefendant actually carrying the weapon. So that is one thing to
keep in mind is that the codefendant can lead to the conviction at
924(c), but it is a little bit of a different analysis
when you get to the actual guidelines themselves. Right. In addition, a lot of times in these type of cases we see also
a conviction for felon in possession of a firearm. So you’re going to be applying the guideline at
2K2.1. Again, don’t give the specific offense characteristic
at (b)(6), which is in connection with another felony offense, because again the 924(c)
is going to account for that behavior, whether it’s the defendant’s behavior, behavior he’s responsible for through the
application of relevant conduct. It doesn’t, however, affect any of the other specific
offense characteristics or the base offense level or the cross-reference. I just want to make that point. Let’s take a look at another scenario. In this scenario we have a defendant who is charged
with selling cocaine in violation of 21 U.S.C. 841(b)(1)(B), also carrying a firearm in connection with
that offense in violation of 18 U.S.C. 924(c), and an additional charge of felon in possession of
a firearm in violation of 922(g). A subsequent search of the defendant’s house
yielded an additional 3 weapons that he had carried– there was evidence that he had carried–in past drug
sales. The question here being does 2K2.1(b)(6) apply? Alan, what would you say? Yes. In dealing with this situation, because
once again you’re looking to the defendant’s relevant conduct, we’re not going to apply that characteristic
based on that 924(c) conviction. So with this situation you’re not going to
be applying those characteristics. And that’s why it is very important
to pay close attention to the facts of that particular case, because you may have a situation where the defendant is charged with 3 bank
robberies, and at those situations where the 924(c)
only accounts for one of the bank robberies, you might actually at that particular point be
counting for certain other bank robberies some of the characteristics as well. But bank
robbery is different than a felon in possession because of the grouping rules. Okay. So let me just make sure I understand
you. Even though these offenses that were found at the weapons’ house– the weapons were found at the defendant’s house– could be considered as part of expanded relevant
conduct based on earlier conversations that we had, we’re not going to give the enhancement at
(b)(6) because of the 924(c) conviction. Correct. Right.
And that’s why it’s very important when you’re looking at 924(c) to look to the relevant conduct of that offense, because that
will really determine whether these characteristics apply. The other thing I think that is important to
make also, I know when Rachel and I go around the country talking about firearms is there are other enhancements, though, that could
potentially occur because of the 924(c) conviction that you still may give if an injury results from a firearm being shot, or something along those lines,
you would still give that enhancement. We’re talking about weapon enhancements are being precluded by 924(c). Okay. I think that kind of covers the gamut of what we
wanted to talk about with 2K2.1 and 2K2.4. So I guess now we are going to move on to a discussion
of grouping. Let’s start off our discussion of grouping with
looking at the grouping rules themselves and, of course, you will find
these grouping rules at 3D1.2. And they are listed as (a), (b), (c), or (d). Rule (a) deals with counts that involve the same
victim or the same act. For example, if a defendant has kidnapped and assaulted a victim, that could be grouped under Rule (a). Rule (b) deals with the same victim, 2 or more acts.
A lot of times you’ll see a conspiracy count and substantive counts that relate to that
conspiracy grouped under Rule (b). Rule (c) deals with conduct treated by characteristic.
If you have a specific offense characteristic or other Chapter 3 adjustment that incorporates the conduct of that other
count, that’s going to be a Rule (c) grouping. And then last, but certainly not least, as it is used in
the majority of the cases, is grouping under Rule (d), which is grouping offenses based on an aggregate. We talked a little bit earlier about how we
have a list of offenses at Rule (d) that are groupable under Rule (d). And you will see when you look at these offenses
that they are firearms offenses, drugs, fraud offenses–types of offenses where
you are adding money or drugs or guns, adding things up
and applying the guideline based on some sort of aggregate behavior. Now, when we look at grouping offenses at Rule (d), we know that 2K2.1 is listed
at Rule (d). So multiple counts of 2K2.1 and multiple counts of
of felon in possession are going to group pursuant to Rule (d). Well, now how does that
work? How it works is that you only have a single application
for 2K2.1 and you base it on all
of the relevant conduct. So if we take a look at an example, we have 4 counts here of felon in possession
of a firearm, and conceivably in each of these 4 counts
the indictment is going to list a different weapon. But what we do when we apply the guideline at
2K2.1 is we apply 1 application based on all of the weapons that are noted
in that count of conviction. And, of course, this may impact whether or not one of the weapons was
used in connection with another offense, the number of weapons in that offense, one of
the weapons could be a destructive device and trigger the application of that specific offense
characteristic. So, when you’re looking at applying the guideline, you do one guideline
application– 2K2.1–based on all of the relevant conduct. However, Rule (d) is not the only rule that is impacted when
we’re looking at firearms offenses. Other grouping rules can be implicated. Alan, would you like to show us an example
of a case where it’s not going to be a Rule (d) grouping? Sure. A Rule (d) grouping obviously applies in a lot of these situations, but there are going to be other times where other rules may come into
play. Let’s give a couple of scenarios of what we mean by that. In the first scenario we are going to have a defendant who is
convicted of 2 counts, one dealing with drug trafficking, 21 U.S.C.
841, another dealing with 18 U.S.C.
922(g). Count 1, the drug count, we’ll do an offense level of 28 for
the amount of drugs, plus 2 for the fact that the defendant had a weapon involved in that offense, offense
level 30. Count 2, which is 2K2.1, that’s level 24. We’re going to give a 4 level increase because
the defendant possessed that weapon in connection with another
felony offense, which is the drug charge at 21 U.S.C. 841, and that gives him an offense level of 28. However, as we emphasized earlier in the broadcast, you have to look to see if that cross-reference
applies. When you look to 2K2.1(c)(1), you’re going to apply that cross-reference because
he possessed that weapon in connection with another offense. We are going to cross-reference over to the 2D1.1
guideline, and now you’re essentially going to have 2 counts–the guidelines are going to treat
this as 2 counts of drug trafficking–and your offense level is going to be 30. And now we are going to group under 3D1.2(a), the rule that talks about the same victim, same act. So even though drugs and firearms can’t be
aggregated together, that is a situation where they can be grouped
under 3D1.2(a) because of the application of the cross-reference. Right, and that is because when you apply that
cross-reference, what you end up having is the same act, which is the distribution
of the drugs, which could result in the Rule (a) grouping. Right. What happens, however, if you don’t apply the cross-reference?
Does that affect the grouping decision? Yes, because as we know, there are going to be
times when the cross-reference doesn’t apply. So let’s look at basically a similar situation. The facts are a little bit different this time
in which there are 2 counts of conviction again. The defendant is charged with 21 U.S.C. 841. His offense level, though, this time comes out
to a 20, based on an 18 offense level plus 2 for the use of the weapon– for the weapon being involved in the offense. 2K2.1, though, this time the offense level comes out higher. 24 for the offense level, plus 4 for the actual using the weapon in connection with another
felony offense–28. You would still look to see if the cross-reference
applies. However, because the offense level is higher
at 2K2.1 than it is at 2D1.1, that particular point means you will not cross-
reference over to the 2D1.1 guideline, so you are going to stay at 2K2.1. So you cannot group under 3D1.2(a). But as Rachel mentioned earlier, there are other rules–3D1.2(c), which look to see whether the conduct has been embodied in another specific offense characteristic or Chapter 3 enhancement, which in this particular case because of that 2D1.1 guideline, that weapon caused a 2 level increase at 2D1.1(b)(1) based on that felon in possession weapon that was there. We’re going to group the two under 3D1.2(c)
because that conduct at the drug guideline at 2D1.1 involving that weapon had been embodied also at the 2K2.1 guideline. So we would be group cross-referencing–we
would not be cross-referencing– but you could still group those 2 counts of conviction together under 3D1.2(c). Another example of the importance of applying
the cross-reference because it impacts all sorts of things, including grouping decisions. Now let’s look at, what if we throw 924(c)
in the mix? We have Count 1 here is a drug count; the guideline
is 2D1.1. The base offense level is 18, of course, driven by the quantity of drugs. Normally, we would give–because the defendant
possessed a weapon– we would give the 2 level increase, but we
can’t here because we have a 924(c) conviction. Moving on–so we have an offense level, then, of 18. Moving on to look at Count 2, which is the felon
in possession, the guideline is 2K2.1. The base offense level is 20. Again, normally
we would give an increase at (b)(6) for using a weapon in connection with another
felony offense, in this case the drugs, but we can’t do that because of the 924(c)
conviction. We still have to move on to determine if the cross-reference
would apply. And in this case it does not apply because the offense
level at 2K2.1 is a 20. And because we can’t give that 4 level
increase and the offense level of the drug count is 18, we’re
not applying the cross-reference. We would then group these counts, as you mentioned
earlier, under 3D1.2(c) and then tack the 924(c)
on at the end. So there’s, in this case, 5 years that runs consecutive to those other 2 counts that have been grouped
under Rule (c). And I think that’s a great way to look at 924(c) and try to wrap
up what we’ve been talking about with 924(c). Because of that consecutive language at the statute there are a couple things that you need to do that are
very important because 924(c) looks not only to 2K2.4, but you are
also going to be looking to 3D1.1(b) and to 5G1.2(a) at the particular guidelines. A 924(c) count, remember, you must exclude from grouping with
any other count. Also very important, the sentence for the 924(c)
count must be imposed independently and consecutive to those other counts for the guideline applications. And then also other counts where the firearms
specific offense characteristic was not applied may still, though, group under 3D1.2(c).
And it is going to be important when you look to the application and the grouping
rules to apply 3D1.2(c). That’s right. We have covered a lot of information
today: the application of 2K2.1, the application of 2K2.4, some of the issues that arise
in dealing with (b)(6) versus the cross-reference. And now we’ve got some time for faxes. We
actually do have a fax that we received from Karen Collins and Terri Lassiter from the Northern District of Texas. Thank
you for this question. What we have here is we have a defendant
convicted of a drug offense. So 1 count of the drugged behavior. But that count is capped at 5 years. And then
we have an additional count for a 924(c) violation. And the question is, in this particular case,
the guideline range–and let’s say it is 360 to life– is obviously going to be a lot larger than what
the drug count is capped at, which is that 5 year statutory maximum. Is there any way the court can impose more than 5 years on this defendant, or/and in addition to the 5 years that
the 924(c) would carry, tacked onto the 5 years for the drug offense?
Alan, do you have any thoughts on that? I do. And that’s a great question, Karen and Terri.
We’ve gotten that question before. And the Commission made a change to the 2K2.4 guideline to actually address this situation. Under 2K2.4, the sentence is to be the mandatory minimum
for 924(c). If the court’s going to go above what the
mandatory minimum dictates, for example, if the court finds that the defendant brandished a weapon, which would
be a 7 year sentence under the actual statute and under the guidelines, the court can go above that potential guideline–excuse me, that sentence of 7 years from the mandatory
minimum– but it must do it as an upward departure. And at the 2K2.4 guideline at Application Note 2, there is a specific language to address that
exact situation that Terri and Karen both had asked in the question. And that is a very good question to ask,
and it is one that does occur because there are going to be times where a court wants to go above what that mandatory
minimum looks like. So, excellent question. Okay. We actually do have another fax here. The question
is at 2K2.1, Application Note 8, knowledge or reason to believe alludes
that subsection (b)(4) applies regardless if there’s knowledge or reason to believe that the
firearm was stolen or had an altered or obliterated serial number. Does this insinuate that 2K2.1(a)(4)(b)(i), or any other 2K2.1 guideline where knowledge may be an issue, does that
require similar logic as it relates to knowledge and reason? Not necessarily. I think there’s a couple points
involved in this question to try to address. Number 1, and since it was mentioned,
2K2.1, before looking specifically to the obliterated serial number, there is no mens rea requirement. What I mean
by that is a strict liability standard. If the defendant is found in possession of that
weapon that has been stolen, he’s going to get a 2 level increase. He doesn’t have to have knowledge or reason to believe that that
weapon was stolen. And the same thing with the obliterated serial
number, and we specifically addressed that in the guidelines. In dealing with the knowledge requirement, without–elsewhere in the guidelines, you can’t just generalize the knowledge requirements
to the other particular specific offense characteristics. So just because we have said that at 2K2.1(b)(4)– looking to the strict liability standard–
that looking to that specific offense characteristic, that that strict liability standard has come into play. That means that at 2K2.1(b)(6) or the cross-reference, that there is no knowledge. There’s still that knowledge
requirement, or at 2K2.1(b)(6) at least, you’re going to be looking to the reason to believe. And it is also very important to pay close
attention to each application note of that guideline because some of them
address similar– address specific, specific–offense characteristics. Thank you. And that that question actually came
in from Braulio Gloria from the Southern District of Texas, and
again if I didn’t get your name right, I apologize. I think that’s all we’ve got time for
today. We don’t have any more, unless there is another point you want to make. Well, I think just to wrap
up on some of the specific offense characteristic points that Rachel and I’ve been talking about. When you go through this guideline application
at 2K2.1 and when you look to the offense levels themselves,
at the base offense levels, you are going to be looking for a number of different things, such
as prior convictions. The Commission has made a number of amendments
to this guideline Rachel mentioned earlier, Amendment 599, Amendment 691 that we talked about earlier.
That is the one that looks to the specific offense characteristic changes that we made this year, such as 2K2.1(b)(6) and also looking to some of the trafficking specific offense characteristics. When you look to the trafficking specific
offense characteristic, we’re going to look primarily to what the defendant– and that’s going to be very similar to a question
that was just asked dealing with the knowledge requirement– we’re going to look to the knowledge of the
defendant at that guideline as well. So when you look closely to the trafficking specific
offense characteristic, there might be a different knowledge requirement
because you need to look to who that defendant is transferring this to. So that question–I just want to go back and sum up some points
because this is a very good question to illustrate how the interaction between a number of the characteristics may apply based on similar conduct, but the standards are different for each particular
specific offense characteristic, such as trafficking and things like that. So I just wanted to add to that central point. Okay, great. Well, that is going to take care of it for us here
today. If you have any further questions, feel free
to call us on our help line, and that number is 202- 502-4545. Our next segment of Advanced Guideline Application Issues is going
to air in June. If you have any topics that you would like to recommend
that we address, go ahead and note that on your evaluation form. And unless you have anything else to add? I just want to reiterate we thank the
people who faxed in the questions. Keep the questions coming in on our help line
number that was on the screen earlier. And with that– Thank you, and have a great day. Thank you.

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