US v. Hatten

Filing 920070705

Opinion

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UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 06-4240 UNITED STATES OF AMERICA, Plaintiff - Appellee, versus CHARLES EDWARD HATTEN, Defendant - Appellant. Appeal from the United States District Court for the Southern District of West Virginia, at Huntington. Robert C. Chambers, District Judge. (3:02-cr-00232-02) Submitted: May 21, 2007 Decided: July 5, 2007 Before WILKINSON, SHEDD, and DUNCAN, Circuit Judges. Affirmed by unpublished per curiam opinion. Travis R. Fitzwater, LAW OFFICE OF TRAVIS R. FITZWATER, Morgantown, West Virginia, for Appellant. Charles T. Miller, United States Attorney, Miller A. Bushong III, Assistant United States Attorney, Beckley, West Virginia, for Appellee. Unpublished opinions are not binding precedent in this circuit. PER CURIAM: Charles Edward Hatten appeals the sentences imposed following remand for resentencing. In our prior decision, we affirmed Hatten's convictions of conspiracy to manufacture and distribute more than fifty grams of methamphetamine, in violation of 21 U.S.C. 846 (2000), and using, carrying, and discharging a firearm in relation to a drug trafficking offence, thereby causing death, in violation of 18 U.S.C.A. 924(c)(1)(A)(iiii), (j)(1) (West 2000 & Supp. 2007). We also vacated Hatten's sentence and remanded for resentencing in light of United States v. Hughes, 401 F.3d 540 (4th Cir. 2005). On remand, treating the sentencing guidelines as advisory only and considering the factors in 18 U.S.C.A. 3553(a) (West 2000 & Supp. 2007), the district court applied the same guideline calculations used in the first sentencing. Utilizing the first degree murder cross-reference provision, Hatten's base offense level for the conspiracy offense was 43 because he shot and killed a man during the course of the conspiracy. See U.S. Sentencing The court applied Guidelines Manual 2D1.1(d)(1), 2A1.1 (2002). a two-level increase under USSG 3B1.1(c) for Hatten's role as a leader and organizer, and a three-level reduction for acceptance of responsibility under USSG 3E1.1 for acceptance of responsibility, resulting in a total offense level of 42. With criminal history category II, Hatten's guideline range for the 846 conviction was 360 months to life imprisonment. Turning to the 924(c), (j) firearm conviction, the district court found that the murder cross- 2 - reference from USSG 2K2.1(c)(1)(B) to USSG 2A1.2, the second degree murder provision, applied, establishing a base offense level of 33. The court applied the three-level reduction for acceptance of responsibility, and Hatten's total offense level became 30. With criminal history category II, Hatten's guideline range for the 924(c), (j) offense was 108 to 135 months in prison, with a statutory mandatory minimum 120-month sentence to be served consecutively to the conspiracy sentence. The district court 400 months on sentenced Hatten to a total of 520 months in prison: the conspiracy conviction and a consecutive 120 months on the firearm conviction. Hatten timely appealed. As he claimed in the district court, Hatten argues that the cross-reference to the first degree murder guideline for his conspiracy conviction was improper because the conduct to which he pled guilty amounted to second degree murder, which he argued called for a lower offense level. Under USSG 2D1.1(d)(1), "[i]f a victim was killed under circumstances that would constitute murder under 18 U.S.C. 1111 [2000] had such killing taken place within the territorial or maritime jurisdiction of the United States, apply 2A1.1 (First Degree Murder)." Section 1111 defines murder to include murder in both the first and second degree. The commentary to 2A1.1 also provides that this guideline section is not limited to premeditated murder. USSG 2A1.1, cmt. n.1. Courts analyze the federal sentencing guidelines under the rules that apply to statutory construction. Mendez-Villa, 346 F.3d 568, 570 (5th Cir. 2003). - 3 United States v. "The language of the Sentencing Guidelines is to be given its plain and ordinary meaning, unless to do so would produce an absurd result contrary to the drafter's manifest intent." United States v. Zapata, 139 F.3d 1355, 1359 (11th Cir. 1998) (citation and internal quotation marks omitted). Thus, courts begin with the plain meaning of the guidelines. United States v. Hargrove, 478 F.3d 195, 206 (4th Cir. 2007) (applying plain meaning analysis to guideline interpretation); United States v. Ivory, 475 F.3d 1232, 1234-35 (11th Cir. 2007) (same). Here, 2D1.1 expressly directs the application of the 2A1.1 first degree murder provision if the killing "constitute[s] murder," without distinguishing between murder in the first and second degree. We conclude that the plain meaning of 2D1.1(d)(1) indicates that the murder cross reference to 2A1.1 applies if there is any murder as defined by 1111--not just murder in the first degree. Accordingly, we find that the district court properly applied the 2D1.1(d)(1) cross-reference to 2A1.1 in Hatten's case. Hatten also challenges the district court's finding that he was subject to a two-level enhancement under USSG 3B1.1(c) for his role as a leader or organizer. A defendant qualifies for a two-level role adjustment if he was a leader, organizer, manager, or supervisor in any criminal activity that did not involve five or more participants and was not otherwise extensive. United States v. Sayles, 296 F.3d 219, 224 (4th Cir. 2002). For a role adjustment to be given because a defendant was a leader, the - 4 - defendant must have controlled others. 300 F.3d 415, 426 (4th Cir. 2002). United States v. Carter, A defendant is an organizer if United he coordinates others to promote the criminal activity. States v. Picanso, 333 F.3d 21, 23-24 (1st Cir. 2003). A defendant who is deemed a manager or supervisor must have directed the activities of others. (5th Cir. 2003). According to the testimony of three of Hatten's coconspirators, they viewed Hatten as the leader of the conspiracy and stated that he initiated it. Hatten developed the plan for United States v. Turner, 319 F.3d 716, 725 stealing the anhydrous ammonia used in cooking the methamphetamine and directed others in gathering the basic ingredients. The co- conspirators also testified that Hatten was the main cook of methamphetamine. We find that under the facts of this case, the district court did not clearly err in enhancing Hatten's base offense level by two levels under 3B1.1(c). Finally, Hatten challenges the district court's decision to impose consecutive rather than concurrent sentences for his conspiracy and firearm convictions. Section 924(c) requires that any sentence imposed for using, carrying, or possessing a firearm during and in relation to a crime of violence or drug trafficking offense must be "in addition to the punishment provided for such crime." 18 U.S.C.A. 924(c)(1). Section 924(j) is the penalty provision for individuals who aggravate their 924(c) offense by killing someone with a firearm in the course of committing a 924(c) offense. Hatten contends that because 924(j) is silent - 5 - as to whether a sentence imposed under that provision should run concurrently or consecutively the crime of violence or drug trafficking offense, the district court should have directed the sentences to run concurrently. Viewed in the context of 924(c), "[t]he plain meaning of the words used in 924(j) unequivocally provide that if the evidence shows a violation of 924(c) . . . , a district court must impose a consecutive sentence over and above the punishment prescribed for the violent crime." F.3d 661, 666 (10th Cir. 2002). United States v. Battle, 289 Moreover, to adopt Hatten's argument would create the absurd result that a defendant who merely violated 924(c) by using or carrying a firearm during a crime of violence or drug trafficking offense could face a longer punishment by virtue of having his sentences run consecutively as directed by 924(c), than a defendant who commits murder in the course of a 924(c) offense because, under Hatten's interpretation of 924(j), that individual's sentences could run concurrently. United States v. Allen, 247 F.3d 741, 769 (8th Cir. 2001), vacated on other grounds, 536 U.S. 953 (2002). Accordingly, we affirm Hatten's sentences. We dispense with oral argument because the facts and legal contentions are adequately presented in the materials before the Court and argument would not aid the decisional process. AFFIRMED - 6 -

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