Appeal from the United States District Court for the Western District of Wisconsin. No. 92 CR 125--John C. Shabaz, Chief Judge. *fn*
Before FLAUM, KANNE, and ROVNER, Circuit Judges.
ARGUED SEPTEMBER 18, 1995
This case comes to us on appeal for the second time. A two-count indictment charged Ronald Ritsema with possessing a firearm after having previously been convicted of a felony and with the possession of unregistered silencers. Ritsema agreed to plead guilty to the second charge. The district court accepted the plea and sentenced Ritsema to a prison term of 120 months, the high end of the guideline range as the court had calculated it. Ritsema appealed, and we vacated his sentence, concluding that the district court had improperly referenced certain conduct unrelated to the silencer charge in applying the Sentencing Guidelines. United States v. Ritsema, 31 F.3d 559 (7th Cir. 1994) ("Ritsema I"). On remand for resentencing, the district court announced that it had erred in accepting the plea agreement. Over Ritsema's objection, the court ordered the firearm possession charge reinstated and conducted a trial on that charge of the indictment. A jury found Ritsema guilty, and the court subsequently sentenced him to a prison term of 121 months. Ritsema again appeals, arguing that the district court lacked authority on remand to withdraw its approval of the plea agreement. We agree and consequently vacate his conviction and order enforcement of the plea agreement.
The facts underlying the charges against Ritsema were set out fully in Ritsema I, and we shall assume the reader's familiarity with that opinion. We will undertake a summary of only a few pertinent facts, with emphasis upon the unusual procedural history.
In the summer of 1991, the family of fourteen year-old K.J.L., who is mentally handicapped, moved next door to sixty-two year-old Ronald Ritsema. Soon thereafter, Ritsema began to abuse K.J.L. sexually. The abuse culminated in a sexual assault on September 8, 1991, which K.J.L. reported to the Janesville, Wisconsin police on the following day. The police obtained and executed a search warrant for Ritsema's trailer and, among other things, discovered several weapons, including two rifles equipped with homemade silencers.
State prosecutors charged Ritsema with the possession of firearms by a felon and sexual assault on a child. The firearms charge was referred to the federal authorities, and Ritsema pled guilty to sexual contact with a person under the age of sixteen. Shortly after this plea, K.J.L. revealed that after sexually assaulting her on the day before she went to the police, Ritsema had shown her one of the guns equipped with a silencer and warned her that if she told anyone, "a lot of people will get hurt." On September 14, 1992, the state court sentenced Ritsema to a prison term of ten years.
On October 21, 1992, a federal grand jury returned an indictment charging Ritsema with the two weapons offenses. Count I alleged that Ritsema, having previously been convicted of a felony, had possessed firearms that had travelled in interstate commerce. See 18 U.S.C. sec. 922(g)(1). Count II alleged that Ritsema had possessed silencers that were not registered with the federal government. See 26 U.S.C. sec. 5861(d).
Ritsema and the government entered into a written plea agreement on January 27, 1993. Ritsema agreed to plead guilty to Count II of the indictment, the unregistered silencers charge, and the government agreed to dismiss Count I and recommend that Ritsema be given the maximum three-level reduction in his Guidelines offense level for acceptance of responsibility.
On February 3, Ritsema appeared before the court and offered his plea of guilty to Count II. Judge Shabaz accepted the plea and adjudged Ritsema guilty of the unregistered silencers charge, but withheld final acceptance of the plea agreement pending preparation of a presentence report by the Probation Office.
After the probation officer conducted a presentence investigation and prepared her report, Ritsema appeared before the court once again for sentencing. The presentence report disclosed that Ritsema had threatened K.J.L. with a firearm, and at the sentencing hearing, the Probation Officer gave testimony recounting her discussion of this incident with K.J.L. After hearing extensive argument from the parties as to how Ritsema's sentence should be calculated pursuant to the Sentencing Guidelines, Judge Shabaz stated that he accepted the plea agreement with one qualification:
The Court accepts the plea agreement other than the recommendation for the 3-point reduction for acceptance of responsibility and finds the offense of conviction adequately represents the defendant's criminal conduct. R. 39 at 45.
The court then proceeded to determine the appropriate sentencing range for Ritsema's conviction on the silencers charge using the 1990 Guidelines.
The sentencing range, as the district court calculated it, derived from a complex series of cross-references. The court looked first to section 2K2.1 of the 1990 Guidelines ("Unlawful Receipt, Possession or Transportation of Firearms or Ammunition"), which would have specified a base offense level of 18. However, section 2K2.1(c)(2) directs the court to Guidelines section 2X1.1 ("Attempt, Solicitation or Conspiracy") when the defendant "used or possessed the firearm in connection with commission . . . of another offense." Here the district judge determined that Ritsema had used firearms equipped with silencers to intimidate K.J.L. into silence about the sexual abuse and thus to obstruct justice. Following 2X1.1(a)'s instruction to consult "the guideline for the substantive offense," the court thus looked to the guideline for obstruction of justice, section 2J1.2. When the defendant has "obstruct[ed] the investigation or prosecution of a criminal offense," section 2J1.2(c) directs the court to the guideline for an accessory after the fact, section 2X3.1. That guideline instructs the court to set the base offense level six levels below the base level for the underlying offense, here the offense that Ritsema had attempted to cover up--criminal sexual abuse. Section 2A3.1 specifies a minimum base offense level of 27 for that offense. However, pursuant to 2A3.1(b)(1), the court increased that level by four points, finding that Ritsema had accomplished the sexual abuse by displaying a dangerous weapon. It added an additional two points because the victim, K.J.L., was under the age of 16. sec. 2A3.1(b)(2). This yielded a base offense level of 33. In accord with section 2X3.1, the court decreased that by six points and assigned Ritsema a base offense level of 27. The court applied a two-point vulnerable victim enhancement (sec. 3A1.1) given K.J.L.'s mental limitations. It also denied Ritsema a two-point reduction under section 3E1.1 for acceptance of responsibility, noting that Ritsema had attempted to obstruct justice, that he had denied threatening K.J.L. with a gun, and that he had not evinced acceptance of responsibility in a timely manner. The resulting adjusted offense level of 29, coupled with a criminal history category of II, called for a sentence of 97 to 121 months. The statutory offense to which Ritsema had pled guilty capped the sentence at ten years, however. Judge Shabaz sentenced Ritsema to that maximum term of 120 months, the sentence to run concurrently with the tenyear sentence imposed by the Wisconsin court for statutory rape.
Ritsema appealed, and we vacated his sentence. We concluded that the district court had erred in cross-referencing the obstruction of justice guideline pursuant to section 2K2.1(c), "because the act of threatening K.J.L. bore a too attenuated connection with the mere possession of silencers themselves" for one to say that Ritsema had possessed the silencers "in connection with" the obstruction of justice. 31 F.3d at 565. We noted that although a silencer was physically connected to the barrel of the rifle that Ritsema had used to threaten K.J.L., there was no evidence that Ritsema had used the silencer itself to threaten her or that she even knew the gun was equipped with a silencer. Id. "As the silencer alone cannot cause injury, nor does the device itself look like a weapon, we believe that under the facts of this case, the silencer could not have been used in connection with threatening K.J.L. to obstruct justice." Id. Nor were we persuaded that Ritsema's threats amounted to relevant conduct under section 1B1.3(a). Among other reasons, we noted that the possession of unregistered silencers and the obstruction of justice have different victims. Id. at 566. Moreover, the threats against K.J.L. were not a harm that resulted from the possession of the silencers, nor were they the object of the possession. Id. Finally, the threats were not issued either in preparation for the silencer possession, to avoid detection of it, or in furtherance of the possession. Id. We recognized that the threats against K.J.L. were contemporaneous with the silencer possession. Id. Nonetheless, we believed that a construction of section 1B1.3 under which temporal proximity alone was enough to make conduct relevant for sentencing purposes "would lead to untenable results, and twist in an unintended way the guidelines' attempt to introduce real-offense principles through the Relevant Conduct provision." Id. We also found the vulnerable victim enhancement and the denial of a two-point reduction in the offense level for acceptance of responsibility to be improper. The vulnerable victim enhancement was erroneous because the possession of unregistered ...