July 8th, 1998

Precedential

97-3068

                                  United States Court of Appeals,

                                          Eleventh Circuit.

                                            No. 97-3068

                                      Non-Argument Calendar.

                        UNITED STATES of America, Plaintiff-Appellee,

                                                  v.

    Huguster MELLERSON, a.k.a. Anthony Edwards, a.k.a. Gregory Mellerson, a.k.a. Gus,
Defendant-Appellant.

                                            July 8, 1998.

Appeal from the United States District Court for the Middle District of Florida. (No. 96-293-CR-T-
25C), Thomas A. Wiseman, Jr., Judge.

Before BLACK, CARNES and HULL, Circuit Judges.

       PER CURIAM:

       After a jury trial, Huguster Mellerson was found guilty of possession of a firearm by a

convicted felon in violation of 

18 U.S.C. §§ 922

(g)(1) and 924(e)(1), and he was sentenced to life

imprisonment. He appeals both his conviction and sentence.

       We affirm Mellerson's conviction without comment, because his arguments about it are

clearly meritless. He contests his sentence on two grounds: 1) that the district court abused its

discretion by adjusting his offense level upward by three levels after finding the Sentencing

Guidelines' Criminal History Category VI (the highest category) did not adequately take into

account his criminal history; and 2) that the district court erred by setting his base offense level at

34 under U.S.S.G. § 4B1.4(b)(3)(A), because his possession of a firearm was not in connection with

a crime of violence for which he had been convicted. Mellerson's first contention is foreclosed by

one of our prior decisions. His second contention is a matter of first impression. As to it, we follow
the reasoning of the First and Sixth Circuits and hold that the government need only prove that the

defendant possessed a firearm in connection with a crime of violence, not that he has been convicted

for that crime of violence.

                                        I. BACKGROUND

       Mellerson showed up at a house in Tampa, Florida, where his wife and daughter were.

While at the house, Mellerson became angry with his wife and verbally threatened her. At one

point, he stated, "I'm going to kill you, bitch!" During the dispute, while in front of the house,

Mellerson took out a revolver and fired one or two shots into the air. He then came back in the

house, grabbed his daughter, and left with her in a stolen automobile. His wife called the Tampa

police, and they went to her house. By the time they arrived, Mellerson was there. They found him

and two firearms at that house. A later inventory search of the stolen car Mellerson had been driving

turned up a third gun.

       State authorities began prosecuting Mellerson for aggravated assault and armed burglary

stemming from that day's events. The state charges were later nol prossed, but a federal grand jury

indicted Mellerson on three counts of possession of a firearm by a convicted felon, in violation of

18 U.S.C. §§ 922

(g)(1) and 924(e)(1). He was convicted of the federal charges in this case.

       The presentence investigation report reviewed Mellerson's criminal history and determined

that he had a total of 40 criminal history points, 27 more than necessary to put him in the highest

possible criminal history category, Category VI. In addition, the PSI recommended that because

Mellerson possessed the firearm in connection with crimes of violence, namely the aggravated

assault and armed burglary, and was an Armed Career Criminal (ACC), he should receive the ACC

enhancement pursuant to U.S.S.G. § 4B1.4(b)(3)(A), which would set his base offense level at 34.

       Mellerson objected to the use of the ACC § 4B1.4(b)(3)(A) enhancement because he had not
been actually convicted of any offense of violence connected with his firearm possession; the

aggravated assault and armed burglary charges had been nol prossed. The district court overruled

Mellerson's objection and found that he had committed a crime of violence—albeit one for which

he had not been convicted—in connection with his firearm possession. As a result, the court set his

base offense level at 34. The court then, over Mellerson's objection, upwardly departed three levels

pursuant to U.S.S.G. § 4A1.3 because the criminal history category of VI did not adequately reflect

the seriousness of his criminal history. After determining that his adjusted offense level was 37, and

that his criminal history category was VI, the court sentenced Mellerson to life imprisonment, which

was within his sentencing range of 360 months to life. Mellerson appealed.

                                          II. DISCUSSION

        We review the district court's application of the sentencing guidelines de novo. See United

States v. Barakat, 

130 F.3d 1448

, 1452 (11th Cir.1997); United States v. Lewis, 

115 F.3d 1531

,

1536 (11th Cir.1997). We accept the district court's findings of fact related to sentencing unless they

are clearly erroneous, see Barakat, 

130 F.3d at 1452

, and we review departures from the Sentencing

Guidelines under the abuse of discretion standard, see Koon v. United States, 

518 U.S. 81

, 96-100,

116 S.Ct. 2035

, 2046-47, 

135 L.Ed.2d 392

 (1996).

                                                  A.

         Mellerson's first sentencing argument, that the district court abused its discretion by

departing upward because of his criminal history, is foreclosed by our decision in United States v.

Santos, 

93 F.3d 761

, 763 (11th Cir.1996), cert. denied, --- U.S. ----, 

117 S.Ct. 1437

, 

137 L.Ed.2d

544

 (1997). In that case, we upheld a district court's two-level upward departure where the

defendant's 21 criminal history points "far exceeded the [thirteen] points needed for a Criminal

History Category VI" determination. See 

id.

 We see no basis to distinguish Santos from this case
in which the district court gave Mellerson a three-level upward departure because he had 40 criminal

history points. As the district court said:

       [Mellerson] has proved over time that he is incorrigible. He had 26 arrests during three
       years as a juvenile, and even after all of his convictions for firearms, he had three firearms
       for which he was prosecuted in this case.

             He was on parole at the time from a previous firearms conviction at the time this was
       committed. He was in a stolen auto when this offense was committed.

              While he's been in jail, he possessed a steel shank which is a dangerous weapon. He
       has committed residential burglaries where the people, the victims, were in the homes. This
       Court considers that to be a crime of violence, [a violation of] the homes of individuals.

              It just appears that you're incorrigible, Mr. Mellerson.... This man has 27 points more
       than the 13 necessary for a category of VI. That would give him .... a criminal history
       category of 15, if there were such a thing under the guidelines. There is not.

We find no abuse of discretion in the district court's departure where Mellerson's criminal history

points nearly double those of the defendant in Santos (and triples the number necessary for a

Criminal History Category VI).

                                                 B.

       The PSI reported that state law charges had been filed against Mellerson for aggravated

assault and armed burglary in connection with the circumstances surrounding his firearms

possession. The PSI determined that those crimes were crimes of violence committed in relation

to Mellerson's firearm possession and therefore that his base offense level should be set at 34 under

§ 4B1.4(b)(3)(A) of the guidelines, part of the ACC provisions. Although not contesting that he

committed the aggravated assault and armed burglary and that those were crimes of violence,

Mellerson objected to the determination that the § 4B1.4(b)(3)(A) provision applied. He argued that

because he had not been convicted of those charges they should not be considered in sentencing him.

Instead, under his view the base offense level should be set at 33 pursuant to § 4B1.4(b)(3)(B),

which covers firearms possession not involving a crime of violence. The district court rejected that
argument, found Mellerson was involved in a crime of violence while he possessed the firearms, and

set his base offense level at 34.

        Whether or not a person must actually be convicted of a crime of violence to warrant the

base offense level set by § 4B1.4(b)(3)(A) is a question of first impression in this Circuit. However,

in United States v. Rutledge, 

33 F.3d 671

, 673-74 (6th Cir.1994), and United States v. Gary, 

74 F.3d

304

, 316 (1st Cir.1996), the Sixth and First Circuits both held that as long as the government proves

by a preponderance of the evidence that a crime of violence was committed in connection with the

firearms possession, § 4B1.4(b)(3)(A) applies regardless of whether the connected crimes led to a

conviction. We agree.

        Section 4B1.4(b)(3)(A) states that 34 is the proper offense level "if the defendant used or

possessed the firearm ... in connection with a crime of violence." The language includes no mention

of a conviction. By contrast, the language of § 4B1.1, the section that defines a career offender,

specifically requires that a defendant have "at least two prior felony convictions of either a crime

of violence or a controlled substance offense." (emphasis added). The difference between the two

sections indicates that the Sentencing Commission knew how to make a conviction the prerequisite

for application of a provision. See Russello v. United States, 

464 U.S. 16

, 23, 

104 S.Ct. 296

, 300,

78 L.Ed.2d 17

 (1983)("[W]here Congress includes particular language in one section of a statute but

omits it in another section of the same Act, it is generally presumed that Congress acts intentionally

and purposefully in the disparate inclusion or exclusion."); see also Field v. Mans, 

516 U.S. 59

, 67-

75, 

116 S.Ct. 437

, 442-46, 

133 L.Ed.2d 351

 (1995)(discussing the "negative pregnant" rule of

statutory construction, that the inclusion of a term in one section of a statute implies its intentional

exclusion from another section). That is the same reasoning the Sixth Circuit used. See Rutledge,

33 F.3d at 674

. Therefore, we hold that § 4B1.4(b)(3)(A) applies even if the defendant was not
actually convicted of the crime of violence in connection with which he possessed the firearm.

Instead, the government need only prove that a crime of violence was committed in connection with

the firearm possession, and that proof can be by a preponderance of the evidence. See, e.g., United

States v. Shenberg, 

89 F.3d 1461

, 1476 (11th Cir.1996)(holding that the government must prove the

facts used in sentencing by a preponderance of the evidence). In this case, the government met its

burden. As the district court found from the evidence it heard at trial: "he was involved in a crime

of violence, he threatened his wife, he abducted his child, he was in possession of a stolen

automobile when he fired shots in the neighborhood." That being so, the district court appropriately

used § 4B1.4(b)(3)(A) to set the base offense level at 34.

                                                III.

       Mellerson's conviction and sentence are AFFIRMED.