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10/31/89 United States of America v. Tony Burke

October 31, 1989

UNITED STATES OF AMERICA

v.

TONY BURKE, APPELLANT 1989.CDC.336 DATE DECIDED: OCTOBER 31, 1989



UNITED STATES COURT OF APPEALS FOR THE DISTRICT OF COLUMBIA CIRCUIT

Appeal from the United States District Court for the District of Columbia, D.C. Crim. No. 88-360.

APPELLATE PANEL:

Mikva, Edwards and Williams, Circuit Judges. Opinion for the Court filed by Circuit Judge Edwards.

DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE EDWARDS

This case requires us to examine several issues relating to application of the Federal Sentencing Guidelines, reprinted in 18 U.S.C.A. App. at 353 (West Supp. 1989) ("Guidelines"). Appellant Tony Burke pleaded guilty to possession of 100 grams of heroin with intent to distribute and was sentenced to 92 months of imprisonment. In fixing this sentence, the District Court added two "offense level" increments for the "specific offense characteristic" of possession of a firearm. See Guidelines § 2D1.1(b). Burke appeals his sentence on the ground that the District Court did not find that he "knowingly" possessed the gun discovered in his tote bag. Because we find that the District Court mistakenly concluded that the increments authorized by section 2D1.1(b) could be imposed without a showing of scienter, we reverse the trial court's ruling on sentencing and remand the case for further proceedings. I. BACKGROUND

The facts underlying this case are not in dispute. On September 7, 1988, Burke travelled from New York to Washington, D.C., by train, arriving at Union Station in the late afternoon. There Burke attracted the attention of law enforcement officers when he sought directions from the officers. Following a brief conversation with Burke, the officers' suspicions were aroused, so they asked for and were given permission by Burke to search his tote bag. The agents found several packets of heroin as a result of their search. They then arrested Burke and brought him to a nearby police station. At the station, an additional search uncovered more heroin and a gun inside Burke's tote bag. See Tr. of Hearing (Oct. 19, 1988) at 2-17. Burke was ultimately indicted for one count of possession of heroin with intent to distribute, see 21 U.S.C. § 841(a)(1), (b)(1)(i) (1982 & Supp. V 1987); one count of carrying a firearm in connection with a drug offense, see 18 U.S.C. § 924(c) (Supp. V 1987); and one count of possession of a firearm by a convicted felon, see 18 U.S.C. § 922(g) (Supp. V 1987).

Following the District Court's rejection of Burke's suppression motion, Burke agreed to plead guilty to the drug charge in exchange for the recommended dismissal of the weapons charges, and the case was docketed for sentencing. The presentence report prepared by the probation officer recommended a 92 to 115 month sentence based, inter alia, on a "base offense level" of 26 for the drug possession, see Guidelines 2D1.1(a)(3), and a two-level increment for the "specific offense characteristic" of possession of a firearm, see Guidelines § 2D1.1(b). See Presentence Report at 3-4; id. at Worksheet A.1 At the sentencing hearing, defense counsel raised the issue of whether the Government was obliged to show that Burke knowingly possessed the gun found in his tote bag before the court could add the two-level increment provided for under section 2D1.1(b). See Tr. of Hearing (Dec. 6, 1988) at 4.2 The court then asked the prosecutor whether it was "reasonable to infer that [Burke] could have felt" the gun in the bag, and the prosecutor responded that she did not "know whether that would be a reasonable inference." Id. at 5. Following a side-bar consultation between the court and the probation officer, the court announced:

On the firearm issue, the charge is not that [Burke] intended to possess it, but that he possessed it, and the two points are added not because he intended to possess it, but because he possessed it.

I find that the two points are justified, even if the Government has not proved intent by clear and convincing evidence. They certainly proved possession by clear and convincing evidence, and, of course, you have a right to appeal from any element of this sentence that you wish to appeal from.

Id. at 7. The court then imposed a ninety-two month sentence, see id. at 11,3 and this appeal ensued. II. ANALYSIS

Section 2D1.1(b) of the Guidelines instructs the court to increase the defendant's offense level by two increments "if a firearm or other dangerous weapon was possessed during commission of [a drug] offense." Burke argues that the District Court erred by adding this two-level increment without finding that he knowingly possessed the gun found in his tote bag. We agree.4

At the sentencing hearing, the District Court clearly distinguished "possession" from "intent to possess" under section 2D1.1(b), and ruled that the prosecution need show only the former to justify the court's addition of the two-level increment. Thus, the trial court's simple finding that Burke "possessed" a gun cannot be construed to incorporate implicitly a finding that Burke knew of the gun's presence in his tote bag.5 In addressing the adequacy of the District Court's sentencing determination, we must therefore address the issue of whether section 2D1.1(b) authorizes imposition of a two-level increment for even the unwitting possession of a firearm. Because this is a purely legal question, we review the District Court's ruling de novo. See 18 U.S.C. 3742(e)(2) (Supp. V 1987); United States v. Otero, 868 F.2d 1412, 1414 (5th Cir. 1989).

A. The Requirement of Scienter under Section 2D1.1(b) of the Guidelines

The United States conceded at oral argument that section 2D1.1(b) should not be read to apply in the absence of scienter, and we find this concession to be well founded. Although section 2D1.1(b) itself is silent as to scienter, section 1B1.3 ...


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