United States v. Fogle , 331 F. App'x 920 ( 2009 )


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  •                                                                                                                            Opinions of the United
    2009 Decisions                                                                                                             States Court of Appeals
    for the Third Circuit
    6-11-2009
    USA v. Fogle
    Precedential or Non-Precedential: Non-Precedential
    Docket No. 08-1737
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    Recommended Citation
    "USA v. Fogle" (2009). 2009 Decisions. Paper 1195.
    http://digitalcommons.law.villanova.edu/thirdcircuit_2009/1195
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    NOT PRECEDENTIAL
    UNITED STATES COURT OF APPEALS
    FOR THE THIRD CIRCUIT
    No. 08-1737
    UNITED STATES OF AMERICA
    v.
    AARON FOGLE,
    Appellant
    On Appeal from United States District Court
    for the District of New Jersey
    (D.C. No.: 3-06-cr-00501-001)
    District Judge: Honorable Mary L. Cooper
    Submitted Under Third Circuit LAR 34.1(a)
    January 6, 2009
    Before: CHAGARES, HARDIMAN, Circuit Judges and GARBIS,* District Judge.
    (Filed: June 11, 2009)
    OPINION OF THE COURT
    *      The Honorable Marvin J. Garbis, Senior District Judge for the United States
    District Court for the District of Maryland, sitting by designation.
    1
    GARBIS, District Judge.
    Appellant, Aaron Fogle (“Fogle”), convicted on a plea of guilty to a violation of 
    18 U.S.C. § 922
    (g)(1) [felon in possession of a firearm], appeals from a sentence of 41
    months of incarceration, imposed by District Judge, Mary L. Cooper of the District of
    New Jersey.
    For the reasons set forth here, we affirm the sentence.
    I.
    Because we write exclusively for the parties, we will recount only those facts
    essential to our decision.
    On November 5, 2005, Fogle, then a convicted felon,1 was involved in an
    altercation with two women and a man inside a bar. Fogle left the bar, waited in his car
    (a green Ford Expedition) and observed one of the women involved in the altercation
    (referred to as “N.R.”) leave the premises and enter her car. Fogle then approached
    N.R.’s vehicle, tapped on the window, brandished a loaded handgun, and made a
    statement, discussed herein, to the effect that the only reason he did not shoot N.R. was
    because she had nothing to do with the altercation. Fogle then returned to his car and
    waited. N.R. called 911 and reported that a male inside a green Ford Expedition had
    pulled a gun. She also called the bar to inform the others of what had happened.
    1
    In 1996, Fogle had been convicted of robbery, theft, and use of an imitation
    weapon for unlawful purposes, all crimes punishable by more than a year of
    imprisonment. He received an 8 year sentence.
    2
    The police arrived promptly and, upon their arrival, the bar owner pointed out
    Fogle’s car. Fogle drove away but was stopped shortly thereafter. He was found to have
    a loaded handgun (later determined to be operable) and admitted that the weapon
    belonged to him.
    Fogle was charged with violating 
    18 U.S.C. § 922
    (g)(1). After Fogle’s motion to
    suppress evidence was denied, he pleaded guilty.
    At sentencing, the District Court found Fogle’s Sentencing Guideline Offense
    Level to be 22, determined as follows:
    Base Offense Level – USSG2 § 2K2.1(a)(4)                20
    Enhancement for use of a firearm in connection
    with another felony – USSG § 2K2.1(b)(6)3               +4
    Acceptance of responsibility – USSG § 3E1.1(a)           -2
    ____
    Total Offense Level          22
    The District Court found Fogle to have five Criminal History Category points,
    resulting in a Criminal History Category III classification. However, the District Court
    granted Fogle’s motion for a downward departure to Criminal History Category II,
    pursuant to USSG § 4A1.3(b)(1), based on her finding that Category III overstated the
    seriousness of his criminal history.
    2
    U.S. Sentencing Guidelines Manual.
    3
    In the November 2007 Guidelines Manual, this provision was renumbered from
    ' 2K2.1(b)(5) to '2 K2.1(b)(6) but not otherwise changed. In the instant opinion, the
    Court will refer to the provision as ' 2K2.1(b)(6).
    3
    Accordingly, Fogle’s Sentencing Guideline range after the departure was 46 to 57
    months, for Offense Level 22, Criminal History Category II.
    However, the District Court granted Fogle’s request for a downward variance and
    imposed a sentence of 41 months of incarceration, five months below the low end of
    Fogle’s Guideline range.
    On appeal, Fogle contends that the District Court erred by applying the USSG §
    2K2.1(b)(6) enhancement and that the Judge, while granting a downward variance as
    requested, did not vary downward enough.
    II.
    The Sentencing Guidelines provide, with respect to a defendant convicted of
    certain crimes involving firearms or ammunition, including Fogle’s crime of conviction:
    If the Defendant used or possessed any firearm . . . in connection
    with another felony offense . . . increase [the Base Offense
    Level] by 4 levels.
    USSG ' 2K2.1(b)(6).
    The Application Notes state that the enhancement applies “if the firearm . . .
    facilitated . . . another felony offense.” USSG § 2K2.1 cmt. 14(A) (2007). The term
    “another felony” means “any Federal, state, or local offense, other than the . . . [crime of
    conviction in the case] . . . punishable by imprisonment for a term exceeding one year,
    regardless of whether a criminal charge was brought, or a conviction obtained.” Id. at
    cmt. 14(C) (2007).
    4
    The District Court found that by his actions vis-à-vis N.R., Fogle had violated a
    New Jersey statute providing:
    Any person who has in his possession any firearm with a
    purpose to use it unlawfully against the person or property of
    another is guilty of a crime of the second degree.
    N.J. Stat. Ann. § 2C:39-4(a) (2005)(“the New Jersey Statute”).
    A defendant violates the New Jersey Statute if (1) the object possessed was a
    firearm; (2) the defendant possessed the firearm; (3) the defendant’s purpose in
    possessing the firearm was to use it against the person or property of another; and (4) the
    defendant intended to use the firearm in a manner that was unlawful. New Jersey v. Diaz,
    
    677 A.2d 1120
    , 1123 (N.J. 1996).
    Fogle, acknowledging that he possessed a firearm, contends that he did not have a
    purpose to use it unlawfully against the person or property of another.
    At the sentencing hearing, defense counsel stated that “what is alleged is that a
    statement is made by Mr. Fogle when he supposedly is carrying a weapon saying the only
    reason I don’t pop one off at you is because I don’t think you had anything to do with it.
    You are quite cute but [the other women] and her boyfriend, and then he walks away.”
    4 App. 401
    . Fogle contended that since he expressly stated that he was not going to shoot
    N.R., he could not be held to have possessed the firearm with a purpose to use it
    4
    Fogel states in his brief, “According to ¶ 15 of the Presentence Report, [while
    tapping on he window of N.R.’s car] Fogle told [N.R.] that she was ‘quite cute, but [the
    other woman] and her boyfriend (the defendant did not complete this statement as he
    walked away).’” App. Br. 17.
    5
    unlawfully against another person. The district judge disagreed, stating:
    [T]he firearm actually is possessed here, with a purpose to use
    it unlawfully against the person of another, [and] it is actually
    used in this case. So it goes beyond the mere possession with
    intent to use it unlawfully against -- [the purpose] is
    demonstrated by use, namely brandishing it. Which takes it
    beyond mere possession.
    App. 411-12.
    The district court properly found that Fogle used the firearm by brandishing it and,
    therefore, properly held that Fogle possessed the firearm with a purpose to use it
    unlawfully against the person of another. Thus, Fogle violated the New Jersey Statute.
    Fogle, alternatively, argues that even if he violated the New Jersey Statute, the
    violation cannot be considered a predicate offence under USSG § 2K2.1(b)(6) because it
    is not distinct from the underlying federal offense [violation of 
    18 U.S.C. § 922
    (g)(1)].
    See United States v. Fenton, 
    309 F.3d 825
    , 826 (3d Cir. 2002) (“[A] state law crime,
    identical and coterminous with the federal crime, cannot be considered as ‘another felony
    offense’ within the meaning of the Sentencing Guidelines.”).
    In United States v. Navarro, this Court stated:
    [A] two-part standard may be distilled for determining whether
    an offense committed in connection with possession of a firearm
    may support an enhancement under [section 2K2.1(b)(6)]. The
    first part of the test . . . is legal in nature and asks whether the
    predicate offense and the firearms possession crime each have
    an element that is not shared by the other. The second part of
    the test . . . is essentially factual in nature and asks whether more
    than mere possession of the firearm - brandishment or other use
    - was an integral aspect of the predicate offense. If these two
    questions are answered in the affirmative, then the four-level
    6
    enhancement under [section 2K2.1(b)(6)] should apply.
    
    476 F.3d 188
    , 196 (3d Cir. 2007), cert. denied, 
    128 S. Ct. 1065
     (2008) (footnote and
    citations omitted).
    The statute of conviction, 
    18 U.S.C. § 922
    (g)(1), and the New Jersey Statute
    contain different elements. Section 922(g)(1) is violated if a person who is a convicted
    felon merely possesses a firearm. In contrast, the New Jersey Statute is violated if any
    person possesses a firearm with a purpose to use it unlawfully. Accordingly, the statutes
    are distinct and pass the first part of the Navarro test. See United States v. Lloyd, 
    361 F.3d 197
    , 204-05 (3d Cir. 2004).
    As to the second part of the Navarro test, the District Court reasonably concluded
    that the use of the firearm was an integral aspect of the violation of the New Jersey
    Statute. The evidence was sufficient to support the finding that brandishing the firearm
    was a significant aspect of Fogle’s intimidating N.R., and putting her reasonably in fear
    that Fogle might fire the gun or otherwise cause serious injury.
    Accordingly, the District Court properly applied the four level Offense Level
    enhancement provided by USSG § 2K2.1(b)(6).
    III.
    The District Court determined that Fogle’s Guideline Sentence range was 46 to 57
    months, the range for Offense Level 22, Criminal History Category II.5 The District
    5
    After downward departure from III.
    7
    Court granted Fogle’s request for a downward variance from the Guideline range in
    consideration of the 
    18 U.S.C. § 3553
    (a) factors.
    The District Judge stated that she recognized that Fogle’s offense warranted a
    severe sentence because he unlawfully possessed a gun and brandished it in threatening
    circumstances in the middle of the night outside of a bar with people around.
    Nevertheless, the District Judge stated that “a slight variance below the Guideline range is
    appropriate here for a combination of reasons.” App. 448. These reasons included
    Fogle’s long period of military service, long history of gainful employment, and the way
    in which he accepted responsibility in the case. Thus, the District Judge exercised her
    discretion under 
    18 U.S.C. § 3553
    (a) to reduce the Guideline range by one level (resulting
    in a range of 41 to 51 months) and sentenced Fogle at the low end of that range.
    This Court reviews the sentence imposed by the District Court for
    unreasonableness, and will not reverse absent an abuse of discretion. United States v.
    King, 
    454 F.3d 187
    , 194 (3d Cir. 2006). Fogle has the burden of demonstrating
    unreasonableness but provides no more than his view that the District Court should have
    weighed the stated mitigating factors more heavily and should have varied downward to a
    greater extent. The District Court’s decision must be accorded great deference where the
    sentence is premised upon appropriate and judicious consideration of the relevant factors.
    United States v. Lessner, 
    498 F.3d 185
    , 204 (3rd Cir. 2007). “The decision by the
    [District Court], . . . not to give [the] mitigating factors the weight that [Fogle] contends
    they deserve does not render h[is] sentence unreasonable.” 
    Id.
    8
    This Court holds that the District Court’s exercise of discretion with regard to the
    extent of the variance granted, was reasonable. There was no abuse of discretion in the
    District Court’s imposition of a 41 month variant sentence.
    For the foregoing reasons, we affirm the District Court’s 41 month sentence.
    9