On Appeal from the United States District Court for the District of New Jersey. (D.C. Criminal No. 93-00518-2).
Before: Becker, Lewis and Garth Circuit Judges.
Danny Bass appeals the 37 month sentence imposed by the district court under the 1989 version of the Sentencing Guidelines (U.S.S.G. §§ 2K2.1 and 2K2.2) following his plea of guilty to charges of conspiracy to purchase and transport firearms in violation of 18 U.S.C. § 371 and 18 U.S.C. § 922(a)(5)-(6). Bass argues that the district court erred in three respects: (1) that the court clearly erred in finding that he was a "leader or organizer" as defined in U.S.S.G. § 3B1.1; (2) that the court impermissibly departed upward four levels when it held that Bass "should have been possessed of knowledge or had reason to believe that they [the weapons Bass purchased] would be utilized to commit other types of felony crimes," app. 123; and (3) that the court violated the Fifth Amendment's due process clause by sentencing him at the top of the sentencing range based on the court's belief that Bass perjured himself.
The district court had jurisdiction pursuant to 18 U.S.C. § 3551. We have appellate jurisdiction over the resulting sentence pursuant to 18 U.S.C. § 3742.
We find no merit in Bass' first and third challenges to his sentence and thus will affirm those aspects of the court's determination with only a brief Discussion. Nonetheless, we conclude that the 1989 version of U.S.S.G. §§ 2K2.1 and 2K2.2 already took into account the foreseeable criminal use of the weapons sold in the conspiracy. Because the guidelines do not permit an upward departure on this basis, we will vacate the sentence and remand for resentencing consistent with this opinion.
From late 1989 to October 1990, Danny Bass conspired with Milton Lodge, Sam Gilbert, Katrina Huskersen, Tim Crumm, and James Reid to buy firearms in Richmond, Virginia and to transport the guns for undocumented resale in Newark, New Jersey. The conspirators performed various functions in this plan, including the solicitation of straw buyers in Virginia, the transfer of funds from New Jersey to Virginia to pay for the purchases, the purchase and transportation of at least 81 guns to Newark, New Jersey, and the subsequent sale of the guns in the Newark area. The weapons sold in the course of the conspiracy included an undisclosed number of automatic firearms such as "Tec-9s." App. 54.
While the government presented no evidence that Bass purchased, transported, or sold firearms himself, the government produced evidence that Bass worked with Lodge and Gilbert to organize the New Jersey operation and that Bass assisted in the Virginia operation. For example, Lodge testified that on at least two occasions he either delivered guns to Bass or notified Bass of the delivery of weapons in New Jersey. App. 82-84; 77-80. By means of various wire transfers and personal transactions, Bass provided approximately $4,300 to $4,600 to Gilbert for the purpose of purchasing weapons in Virginia. App. 61-66. A government expert testified that this amount of money would purchase approximately 50 semiautomatic handguns in Virginia. App. 62. The record suggests that other monetary transfers occurred but the amounts transferred were not known.
Grand jury testimony of Katrina Huskerson, a straw buyer in Virginia, was submitted at the sentencing hearing. In addition to other testimony, Huskerson testified that Bass and Sam Gilbert purchased the most firearms during the conspiracy. App. 199.
On October 21, 1993, the United States indicted Danny Bass and Samuel Gilbert for conspiring to purchase firearms illegally and to transport them in interstate commerce in violation of 18 U.S.C. § 371 and 18 U.S.C. § 922(a)(5)-(6). Bass pled guilty to the conspiracy on the condition that the government not seek a two level upward adjustment for obstruction of Justice.
At sentencing, the district court calculated Bass' base offense level as six under the 1989 version U.S.S.G § 2K2.1. The court adjusted the sentence upward six levels based on the number of guns involved in the conspiracy. The court adjusted the sentence downward two levels for acceptance of responsibility.
After a hearing, the district court found that Bass had bankrolled a substantial part of the conspiracy's firearm purchases and/or other expenses and directed a significant portion of the conspiracy's New Jersey operations. The court thus found that Bass was a leader or organizer within the meaning of U.S.S.G. § 3B1.1 and adjusted the sentence upward an additional four levels.
The district court departed upward still another four levels because Bass "should have been possessed of knowledge or had reason to believe that [the guns] would be utilized to commit other types of felony crimes." App. 123. The court based this decision to depart upward on two factors. First, the court felt that the type of weapons sold in the conspiracy were "the favored weapons of the underworld." App. 119. Second, the court believed that the 1991 amendments to the guidelines, which now permit a four level adjustment in the offense level when "the defendant . . . possessed or transferred any firearm . . . with knowledge, intent, or reason to believe that it would be used or possessed in connection with another felony offense . . .," U.S.S.G. § 2K2.1(b)(5) (1994), demonstrated that the 1989 guidelines did not take into account Bass' knowledge of the possible illegal uses of the firearms. The district court also noted that weapons attributable to the conspiracy had been linked to a police shootout and the murder of a New Jersey assistant district attorney.
Finally, the district court chose to sentence Bass at the top of the applicable sentencing range because the court found that Bass had perjured himself at an earlier suppression hearing.
Following these adjustments, the district court, having a range of 30-37 months from which it could sentence Bass, then sentenced Bass to 37 months in prison and three years ...