United States v. Shawn M. Olthoff ( 2006 )

United States Court of Appeals
FOR THE EIGHTH CIRCUIT
___________
No. 04-4159
___________
United States of America, *
*
Appellee, *
* Appeal from the United States
v. * District Court for the District
* of Minnesota.
Shawn Michael Olthoff, *
*
Appellant. *
___________
Submitted: October 10, 2005
Filed: February 8, 2006
___________
Before BYE, BEAM, and SMITH, Circuit Judges.
___________
BEAM, Circuit Judge.
Michael Olthoff appeals the sentence imposed by the district court1 following
his guilty plea. We affirm.
I. BACKGROUND
Between November 20 and December 2, 2003, Olthoff and an associate went
on a crime spree, breaking into various homes and cars in Duluth, Minnesota, and
1
The Honorable David S. Doty, United States District Judge for the District of
Minnesota.
stealing firearms. Based on these events, on April 22, 2004, Olthoff pleaded guilty
to a one-count criminal information charging him with being a felon in possession of
a firearm in violation of 18 U.S.C. §§ 922(g)(1) and 924(a)(2). Olthoff's prior felony
offense was burglary, a crime of violence, so his base offense level was adjusted
upward on that basis. His offense level was also increased because he possessed
firearms in connection with another felony offense–the burglaries he committed while
on the "crime spree." After these adjustments, Olthoff's sentencing range was 110 to
120 months. Additionally, the government filed a motion under United States
Sentencing Guidelines § 5K1.1, based upon Olthoff's substantial assistance to law
enforcement.
After considering the guidelines range and the government's section 5K1.1
motion, the district court sentenced Olthoff to 92-months' imprisonment, three years
of supervised release, and a mandatory $100 special assessment. Because Olthoff was
sentenced post-Blakely2 but before the Supreme Court decided United States v.
Booker, 125 S. Ct. 738 (2005), the district court noted that if the guidelines were
ultimately found to be unconstitutional by the Supreme Court, it would consider them
advisory only, and would have sentenced Olthoff to the same sentence. Olthoff
appeals, contending that the district court erred when it adjusted his offense up four
levels for possessing firearms in connection with another felony offense, and by
finding that his prior burglary conviction was a crime of violence. Finally, Olthoff
argues the case should be remanded for resentencing in light of Booker.
II. DISCUSSION
After Booker, we review de novo the interpretation and application of the
guidelines, and we review the district court's factual findings for clear error. United
States v. Mashek, 406 F.3d 1012, 1017 (8th Cir. 2005).
2
Blakely v. Washington, 124 S. Ct. 2531 (2004).
-2-
Firearm Enhancement
The Sentencing Guidelines impose a four-level enhancement for a felon in
possession of a firearm if the defendant "used or possessed any firearm or ammunition
in connection with another felony offense." United States Sentencing Guidelines §
2K2.1(b)(5). The phrase "in connection with" means that the firearm must actually
facilitate the other felony offense and not be merely present by accident or
coincidence. United States v. Fredrickson, 195 F.3d 438, 439-40 (8th Cir. 1999).
Olthoff argues that he should not have received this enhancement because his factual
scenario does not meet the Fredrickson standard. While Olthoff admitted in his plea
agreement that he illegally possessed firearms as a felon after he had stolen them, he
argues that the firearms in no way facilitated the felony burglary.
Our precedent belies Olthoff's argument. In United States v. Howard, 413 F.3d
861 (8th Cir. 2005), we held that a similar3 gun enhancement was properly imposed
where the defendant committed burglary and stole a shotgun–the primary object of the
crime. We found that the stolen gun had the potential of facilitating the burglary
because "[a]t any time during the burglary, [defendant] could brandish the gun or
threaten injury or death, whether or not it was loaded." Id. at 865. See also United
States v. Hedger, 354 F.3d 792, 795 (8th Cir. 2004) (holding that stealing a firearm
from a gun shop justified the enhancement). Like the Howard defendant, Olthoff
could have brandished the weapons that he stole at any point during the burglaries.
Accordingly, we find that the district court correctly applied this enhancement.
3
Howard involved the enhancement in U.S.S.G. § 4B1.4(b)(3)(A), which
requires that the defendant "used or possessed the firearm . . . in connection with . . .
a crime of violence." In Howard, we held that using a firearm in connection with a
particular crime could be analyzed the same way for purposes of section
4B1.4(b)(3)(A) and section 2K2.1(b)(5). 413 F.3d at 865.
-3-
Crime of Violence
Olthoff next argues that his prior felony conviction for third-degree burglary
in Minnesota should not be construed as a "crime of violence" for sentencing
purposes. In the spring of 2003, Olthoff broke into the then-unoccupied Lutsen
Mountain Ski Resort ticket office and stole a safe. Burglarizing a commercial
building is a crime of violence. United States v. Peltier, 276 F.3d 1003, 1006 (8th Cir.
2002). Furthermore, even if this unoccupied structure was somehow not considered
a commercial building, we have repeatedly held that felony burglary is a crime of
violence, regardless of whether the burglary involved intent to harm or actual harm
to individuals. E.g., United States v. Mathijssen, 406 F.3d 496, 499 (8th Cir. 2005).
Olthoff's attempt to distinguish his burglary in the face of our precedent is unavailing.
Resentencing after Booker
Finally, Olthoff argues that he should be resentenced in light of Booker and
challenges the reasonableness of his sentence. As noted above, the district court
sentenced Olthoff post-Blakely and pre-Booker. Uncertain about the future of the
guidelines, the district court calculated Olthoff's mandatory guidelines sentence, but
also announced that even if the guidelines were ultimately found to be
unconstitutional, he would have given Olthoff the same sentence under an advisory
regime. Olthoff correctly preserved his Booker issue at sentencing, and we therefore
review for harmless error, with the government bearing the burden of proof. United
States v. Mendoza-Mesa, 421 F.3d 671, 672-73 (8th Cir. 2005). Because the error
was not of constitutional magnitude,4 the government must prove that there is no
"grave doubt" as to whether the error substantially influenced the outcome of the
proceedings. United States v. Haidley, 400 F.3d 642, 644-45 (8th Cir. 2005). Based
4
As noted in the previous section, Olthoff admitted the factual allegations which
supported the enhancement. United States v. Alvarado-Rivera, 412 F.3d 942, 946 n.3
(8th Cir. 2005) (en banc), cert. denied, 74 U.S.L.W. 3392 (Jan. 9, 2006).
-4-
on the district court's pronouncement, we find that the government can meet its burden
in this case. We have no grave doubt that the district court's ultimate sentence would
have been the same had it been laboring under the advisory scheme established in
Booker. The district court expressly said that it would, despite defense counsel's
entreaties for a lower advisory sentence. The district court's error in applying the
mandatory guidelines was harmless.5
Olthoff next argues that his sentence was unreasonable because the district
court did not explicitly address the sentencing factors listed in 18 U.S.C. § 3553(a).
"A district court's ruling may be unreasonable if it fails to consider a relevant factor
that should have received significant weight, gives significant weight to an improper
or irrelevant factor, or considers only appropriate factors but nevertheless commits a
clear error of judgment by imposing a sentence that lies outside the limited range of
choice dictated by the facts of the case." United States v. Dieken, 432 F.3d 906, 909
(8th Cir. 2006).
We do not think the district court's sentence is plagued by any of the foregoing
pitfalls. And to the extent that Olthoff argues the district court was required to
"categorically rehearse" the factors in section 3553(a), we disagree. Id. In comparing
the sentencing transcript with section 3553(a), we find that the district court had those
factors in mind when sentencing Olthoff. At several points in the transcript the
district court referred to Olthoff's relatively young age, and his hope that Olthoff could
use his time in prison productively and start anew when released. See 18 U.S.C. §
3553(a)(1) & (2)(D). The court also noted the severity of the crime in deciding where
in the spectrum to place the final sentence. Id. § 3553(a)(2)(A). In sum, we find that
the district court properly considered the relevant factors, and that Olthoff's ultimate
92-month sentence was reasonable.
5
Olthoff's pending motion for remand for resentencing is denied.
-5-
III. CONCLUSION
We affirm the district court.
______________________________
-6-