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United States of America v. Darren Wesley Huff

May 2, 2012

UNITED STATES OF AMERICA, PLAINTIFF,
v.
DARREN WESLEY HUFF, DEFENDANT.



The opinion of the court was delivered by: Thomas A. Varlan United States District Judge

(VARLAN/GUYTON)

MEMORANDUM OPINION AND ORDER

The defendant, Darren Wesley Huff, was charged in a superseding indictment with transporting a firearm in furtherance of a civil disorder in violation of 18 U.S.C. § 231(a)(2) and using a firearm in relation to a felony crime of violence in violation of 18 U.S.C. § 924(c)(1)(A) [Doc. 19]. In October 2011, the defendant proceeded to a jury trial before the undersigned [See Docs. 160--166]. The jury returned a verdict on October 25, 2011, finding the defendant guilty of violating 18 U.S.C. § 231(a)(2), that is, transporting a firearm in furtherance of a civil disorder [Doc. 167].

A Presentence Investigation Report ("PSR") was prepared pursuant to Rule 32 and the United States Sentencing Commission Guidelines Manual (the "Guidelines" or "U.S.S.G."). Noting that the offense of conviction is an offense for which no guideline expressly has been promulgated, the PSR applies U.S.S.G. § 2K2.1(a)(7) as the most analogous offense guideline pursuant to U.S.S.G. § 2X5.1. Section 2K2.1(a)(7), which is the guideline for "Unlawful Receipt, Possession, or Transportation of Firearms or Ammunition; Prohibited Transactions Involving Firearms or Ammunition," calls for a base offense level of 12. The PSR also applies U.S.S.G. § 2K2.1(b)(6)(B), which increases the offense level to 18, because the defendant used or possessed a firearm or ammunition in connection with another felony offense, namely aggravated assault.

The PSR then employs U.S.S.G. § 2K2.1(c), which provides that "[i]f the defendant used or possessed any firearm 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 apply U.S.S.G. "§ 2X1.1 (Attempt, Solicitation, or Conspiracy) in respect to that other offense, if the resulting offense level is greater than that determined above." U.S. Sentencing Guidelines Manual § 2K2.1(c). Pursuant to U.S.S.G. § 2K2.1(c), the PSR applies U.S.S.G. § 2A2.2(a)(1), the guideline for aggravated assault, which provides for a base offense level of 14. The PSR also enhances this base offense level by two levels pursuant to U.S.S.G. § 2A2.2(b)(1) and by three levels pursuant to U.S.S.G. § 2A2.2(b)(2)(C), for an offense level of 19.

In addition, the PSR enhances the defendant's offense level by six levels pursuant to U.S.S.G. § 3A1.2(b), and by two levels pursuant to U.S.S.G. § 3C1.1. Combining the U.S.S.G. § 2A2.2 offense level of 19 with these enhancements, the PSR arrives at a total offense level of 27.

The PSR assigns the defendant a criminal history category of I, and this in conjunction with the total offense level of 27 results in a Guidelines range of 70 to 87 months' imprisonment. The Guidelines range is restricted to 60 months' imprisonment, however, as a result of the statutory maximum set forth in 18 U.S.C. § 231(a).

The parties filed various objections to the PSR, which the Court heard argument on during the first phase of the defendant's sentencing hearing on April 20, 2010. The Court then took the objections under advisement. This memorandum opinion and order addresses those objections. Sentencing is set to continue on Tuesday, May 15, 2012, at 10:00 a.m., in Courtroom 3C.

I. Offensive Conduct Objections

A. Defendant's Objection #1

The defendant objects to the allegations set forth within the "Offense Conduct" portion of the PSR and the allegation that he made the statements that he would "take over the city" or that he would "take over the courthouse." This objection is OVERRULED. Rule 32(c) provides that the PSR contain information relevant to the appropriate kind of sentence or appropriate sentence within the applicable sentencing range, and the statements that the defendant intended to take over the city and the courthouse are relevant in this regard, as they relate to the nature and circumstance of the offense. Also, the Court notes that the information contained in the PSR is taken from the affidavit of complaint, trial testimony, and a review of the United States' Attorney's file.

B. Defendant's Objection #2

The defendant objects to the "Offense Conduct" portion of the PSR in that he does not want to waive his right to rely upon other evidence to establish the entirety of the conduct that he alleges is relevant at sentencing. As the defendant has had and will have the opportunity to present evidence relevant to sentencing, Defendant's Objection #2 is OVERRULED as moot.

C. Government's Objection #5

The government objects to paragraph 10 of the PSR in that it is not complete. The government states it should include the statement the defendant made to the officers during his traffic stop, that is: "We fully intend to proceed forward with those citizen's arrests . . . I've got my 45 because ain't no government official gonna go peacefully." As the PSR was amended to include this statement, Government's Objection #5 is OVERRULED as moot.

II. Guidelines Calculations Objections

A. Government's Objection #1

The government submitted an objection to paragraph 18 of the PSR, which identifies the base offense level as 14 pursuant to U.S.S.G. §§ 2K2.1 and 2X5.1. At the hearing on April 20, 2012, however, the government withdrew this objection to the extent the Court utilizes U.S.S.G. § 2K2.1(c). As explained, infra, Section II.B., the Court will employ U.S.S.G. § 2K2.1(c). Government's Objection #1 is therefore OVERRULED as moot.

B. Government's Objections #2 and #3 and Defendant's Objections #3, #4, #5, and #6

Interrelated are the government's objections to paragraphs 19 and 20 of the PSR and the defendant's objections to paragraphs 19, 20, 21, and 22 of the PSR. The Court addresses them together.

The defendant objects to paragraph 19 (Defendant's Objection #3), which enhances the defendant's offense level pursuant to U.S.S.G. § 2K2.1(b)(6)(B) because the defendant possessed a firearm or ammunition in connection with another felony offense, namely a civil disorder. The defendant states a civil disorder is not a felony offense under state or federal law.*fn1 He also objects to paragraph 20 (Defendant's Objection #4), which applies U.S.S.G. § 2A2.2(a)(1) (the guideline for aggravated assault), pursuant to U.S.S.G. §§ 2K2.1(c) and 2X1.1. The defendant states it is inappropriate to apply U.S.S.G. § 2A2.2 because there was no assault, or aggravated assault, nor an attempt, conspiracy, or solicitation to commit an assault. In addition, at the sentencing hearing, the defendant argued that neither U.S.S.G. § 2K2.1(b)(6)(B) nor U.S.S.G. § 2K2.1(c) should apply in light of the plain language of Application Note 14.

The government objects to paragraph 19 (Government's Objection #2), asserting that the "other felony offense" for purposes of U.S.S.G. § 2K2.1(b)(6)(B) should be aggravated kidnapping under Tennessee law. The government also objects to paragraph 20 (Government's Objection #3),*fn2 submitting that the cross reference pursuant to U.S.S.G. § 2K2.1(c) should be to the guideline for the crime of aggravated kidnapping.*fn3 The government argues that the defendant's intent to unlawfully arrest government officials would constitute confining them unlawfully, substantially interfering with their liberty. Also, the government states the defendant intended to possess a deadly weapon while conducting the unlawful arrests and he told officers during the traffic stop: "We fully intend to proceed forward with those citizen's arrests . . . I've got my 45 because ain't no government official gonna go peacefully." The government further states the defendant intended to conduct the unlawful arrests for the purpose of interfering with the performance of government officials. Thus, the government submits, the defendant committed aggravated kidnapping under Tennessee law.

The first issue the Court must address is the defendant's argument that neither U.S.S.G. § 2K2.1(b)(6)(B) nor U.S.S.G. § 2K2.1(c) apply here because there was no "other offense" under the language of Application Note 14. Section 2K2.1(b)(6)(B) enhances a defendant's offense level by 4 levels, or to level 18 if the resulting offense level is less than 18 after adding four levels, 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." U.S. Sentencing Guidelines Manual § 2K2.2(b)(6)(B) (emphasis added). Section 2K2.1(c) provides that "[i]f 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, apply . . . § 2X1.1(Attempt, Solicitation, or Conspiracy) in respect to that other offense, if the resulting offense level is greater than that determined [pursuant to U.S.S.G. § 2K2.1.]" U.S. Sentencing Guidelines Manual § 2K2.1(c)(1)(A) (emphasis added).

Application Note 14 explains when these guidelines should apply. In general, the guidelines apply "if the firearm or ammunition facilitated, or had the potential of facilitating, another felony offense or another offense, respectively." U.S. Sentencing Guidelines Manual § 2K2.1 cmt. n.14(A). "Another felony offense," is "any federal, state, or local offense, other than the explosive or firearms possession or trafficking offense, punishable by imprisonment for a term exceeding one year, regardless of whether the criminal charge was brought, or a conviction obtained." U.S. Sentencing Guidelines Manual § 2K2.1 cmt. n.14(C) (emphasis added). "Another offense" is "any federal ,state, or local ...


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