1The Honorable Richard H. Kyle, United States District Judge for the District of

Minnesota, sitting by designation.

2 The Honorable Charles B. Kornmann, United States District Judge for the

District of South Dakota.

United States Court of Appeals

FOR THE EIGHTH CIRCUIT

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No. 97-4163

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United States of America,

Appellee,

v.

Christopher Todd Drapeau,

Appellant.

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Appeal from the United States

District Court for the

District of South Dakota.

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Submitted: October 23, 1998

 Filed: August 20, 1999

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Before McMILLIAN and HANSEN, Circuit Judges, and KYLE,1 District Judge. 

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HANSEN, Circuit Judge.

Christopher Todd Drapeau pleaded guilty to one count of unlawfully making a

firearm in violation of 26 U.S.C. § 5861(f) (1994). The district court2 sentenced

Drapeau to 120 months' imprisonment, the statutory maximum sentence. On appeal
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from Drapeau's sentence, a prior panel affirmed in part, reversed in part, and remanded

to the district court for additional findings related to application of a three-level

enhancement under United States Sentencing Guideline §3A1.2(a) (1995) (official

victim enhancement). See United States v. Drapeau, 121 F.3d 344 (8th Cir. 1997). On

remand, the district court again sentenced Drapeau to 120 months' imprisonment.

Drapeau appeals his resentence, and we affirm.

I.

The factual background of this case is set forth in this court's prior decision. See

Drapeau, 121 F.3d at 345-47. The following is a brief summary. In December 1995,

Drapeau and several friends were consuming alcohol when Drapeau stated that he

wanted to "get" Joe Sazue, a local tribal police officer who had recently arrested a

relative of Drapeau. Under Drapeau's direction, the group proceeded to make at least

four firebombs, each made from gasoline, liquid dish soap, a cloth wick, and a glass

bottle. After testing two of the firebombs, one of which ignited and sustained a fire,

Drapeau directed two of his cohorts to firebomb Officer Sazue's car, which was parked

in the driveway of Officer Sazue's home. The two individuals used two firebombs in

an attempt to destroy the car. Although they lit the wicks of both firebombs, neither

ignited. The next morning, Officer Sazue discovered one firebomb still intact and the

broken remains of the other on his driveway.

Drapeau was charged with unlawfully making and unlawfully possessing a

firearm. He initially pleaded not guilty and proceeded to trial. After one day of trial,

at which one of his coconspirators testified against him, Drapeau changed his plea and

entered a plea of guilty to Count I of the indictment, charging him with unlawfully

making a firearm in violation of 26 U.S.C. § 5861(f). At sentencing, the district court

applied USSG § 3A1.2(a), which provides in relevant part: "If . . . the victim was a

government officer or employee . . . and the offense of conviction was motivated by

such status . . .increase by 3 levels."
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 The panel noted and discussed Judge Reinhardt's concurring opinion in an

unpublished Ninth Circuit per curiam decision, United States v. Klump, 1994 WL

143943 (9th Cir. 1994). See Drapeau, 121 F.3d at 349 n.3.

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Drapeau appealed. A panel of this court affirmed in part and, on the basis of the

section 3A1.2(a) enhancement, reversed in part and remanded the case for further

proceedings. Upon reviewing the sentencing transcript, the panel found it apparent that

the district court applied section 3A.1.2(a) "because of Drapeau's conduct after he

constructed the firebombs–specifically, Drapeau's attempt to commit arson against

Officer Sazue's property." Drapeau, 121 F.3d at 348. After carefully examining the

language of the guideline, its commentary, and a related guideline provision, the panel

held that "[USSG] § 3A1.2(a)'s enhancement is proper only where a government

official is the victim of a defendant's offense of conviction. Because § 3A1.2 specifies

that only the offense of conviction is to be considered, the district court erred in

considering other relevant conduct." Id. at 349 (citing USSG § 1B1.3(a)). In other

words, the panel held that, for purposes of applying the section 3A1.2(a) enhancement,

the district court should only have considered whether Officer Sazue was a victim of

Drapeau's conduct in unlawfully making the firebombs, not his other relevant conduct

such as attempted arson. The panel recognized that "[t]his appears to be, almost, a

question of first impression." Id. at 349 n.3.3

 

The panel remanded the case to the district court "for a determination of whether

Officer Sazue was a victim of Drapeau's offense of conviction." Id. at 349. The panel

explained that remanding the case to the district court was the appropriate course of

action because "[w]hether Officer Sazue was a victim of Drapeau's violation of [26

U.S.C.] § 5861(f) is a question of fact for the district court to answer in the first

instance." Id.

Following the remand, the district court held a hearing and gave each party an

opportunity to present additional evidence and oral argument. Each party declined to
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present additional evidence. After hearing the parties' oral arguments, the district court

made an express finding, based on the evidence at trial and at the original sentencing

hearing, "that Officer Sazue was a victim of the offense of conviction, namely, the

violation of Section 5861(f)." (Resentencing Tr. at 9 (Nov. 10, 1997).) The district

court stated the "factual basis" for its conclusion as follows:

I find specifically that Mr. Drapeau told the other participant that

he wanted to "get" Joe Sazue, a local police officer. They obviously

targeted Mr. Sazue because of Mr. Sazue's official status as the police

officer who had arrested other members of Mr. Drapeau's family or, at

least, one other member of Mr. Drapeau's family previously. He was the

target and he was the reason these firebombs were constructed and

possessed by this defendant.

This offense of making the firebomb was, as I've indicated,

motivated by Officer Sazue's status as a police officer and he was the

victim. He was a government official.

Id.

The district court sentenced Drapeau to 120 months' imprisonment, three years

of supervised release, a special assessment of $50, and a fine of $1,000 (the same

sentence as previously imposed) and entered judgment. Drapeau timely filed the

present appeal.

II.

"The district court's interpretation of the Sentencing Guidelines is a question of

law subject to de novo review, while its factual determinations are subject to review

only for clear error." United States v. Larson, 110 F.3d 620, 627 (8th Cir. 1997). 
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Section 3A1.2(a) requires a three-level enhancement if the victim of the crime

of conviction was a government official, and the crime of conviction was motivated by

the victim's status as a government official. See USSG §3A1.2(a); Drapeau, 121 F.3d

at 349. The prior panel plainly stated that "[USSG] § 3A1.2(a)'s enhancement is proper

only where a government official is the victim of a defendant's offense of conviction."

Drapeau, 121 F.3d at 349 (emphasis added). Thus, the panel held that the district court

erred when it considered other relevant conduct in assessing the three-level

enhancement pursuant to section 3A1.2(a). Id. This holding is not only the law of the

case, but is also now the law of this circuit unless changed by the Eighth Circuit en

banc or by the Supreme Court. Our task in this appeal is to determine whether the

district court clearly erred on remand when it found that Officer Sazue was the victim

of Drapeau's crime of conviction--unlawfully making a firearm. 

Drapeau argues that, as a legal matter, his section 5861(f) offense may not be the

basis for applying the "official victim" enhancement because there can be no victim of

making a bomb. Certainly if one of the bombs exploded during its construction,

injuring one of Drapeau's cohorts, the cohort would be a "victim" of making the bomb.

Further, firebombs are inherently dangerous. There is no peaceful purpose for making

a bomb. Felony offenses that involve explosives qualify as "violent crimes" for

purposes of enhancing the sentences of career offenders. See 18 U.S.C. §

924(e)(2)(B)(ii) (defining a "violent felony" as: "any crime punishable by imprisonment

for a term exceeding one year . . . that . . . involves use of explosives"). Courts have

found possession of a bomb to be a crime of violence based on the lack of a nonviolent

purpose for a bomb and the fact that, by its very nature, there is a substantial risk that

the bomb would be used against the person or property of another. See United States

v. Newman, Nos. 97-1294, 97-1295, 1997 WL 603740, at *1 (10th Cir. Oct. 1, 1997)

(unpublished) (holding that possession of a pipe bomb is a crime of violence for

purposes of 18 U.S.C. § 3142(f)(1)); United States v. Dodge, 846 F. Supp. 181, 183-84

(D. Conn. 1994) (same for purposes of 18 U.S.C. § 3156(a)(4)(B)). We agree with this
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 Our position is not inconsistent with Judge Reinhardt's concurring opinion in

Klump, where he concluded that being a felon in possession of a firearm was a

victimless crime. See Klump, 1994 WL 143943, at *2. The offense of being a felonin-possession of a firearm focuses on society's determination that certain individuals--

felons--are unqualified to possess firearms, even for lawful purposes. See United

States v. Baeza-Suchil, 52 F.3d 898, 900 (10th Cir. 1995). The offense of unlawfully

making a bomb, however, focuses on the inherent dangerousness of, and lack of a

legitimate purpose for, the bomb itself. See Dodge, 846 F. Supp. at 184. See also

United States v. Fortes, 141 F.3d 1, 7-8 (1st Cir.) (holding that possession of a sawedoff shotgun under 26 U.S.C. § 5861(d) is a crime of violence and noting that Congress

found certain firearms--sawed-off shot guns and grenades--to be inherently dangerous

and lacking in usefulness other than for violent and criminal purposes), cert. denied,

118 S. Ct. 2387 (1998); United States v. Montalvo, No. 92-30300, 1993 WL 478403,

at *3 (9th Cir. Nov. 18, 1993) (unpublished) (refusing to group possession of a sawedoff shotgun with felon-in-possession charges because the first was a crime of violence

while the latter was not).

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assessment. Because a crime of violence necessarily contemplates a victim, we reject

Drapeau's contention that making a bomb is a victimless crime.4

We now turn to the question of whether the district court clearly erred in its

finding that Officer Sazue was a "victim" of making the firebombs. Because the

Sentencing Guidelines do not define the term "victim," we look to the term's plain and

ordinary meaning in interpreting the Guidelines. See United States v. Honken, Nos.

98-1833, 98-1952, 1999 WL 493081, *7 (8th Cir. July 9, 1999) (citing Chapman v.

United States, 500 U.S. 453, 454 (1991)). We also construe the term by looking at

how it has been interpreted in other sections of the Guidelines. See id. at *8. Black's

Law Dictionary defines "victim" as "[t]he person who is the object of a crime or tort,

as the victim of a robbery is the person robbed." Black's Law Dictionary 1085 (Abr.

6th ed. 1990). The term "object" is then defined as the "[e]nd aimed at, the thing to be

accomplished; the aim or purpose." Id. at 740. 
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The thing to be accomplished by Drapeau's offense of making the firebomb was

a firebomb. The aim or purpose of making the firebomb, however, was to "get" Officer

Sazue. Thus, within the plain and ordinary meaning of the term "victim," "the person

who is the object[, or purpose,] of [Drapeau's] crime" of unlawfully making a firearm

is Officer Sazue. Cf. United States v. Terry, 142 F.3d 702, 711-12 (4th Cir. 1998)

(defining "victim" for purposes of a § 5K2.3 enhancement, which also applies only to

victims of the offense of conviction, to include indirect victims, based on the victim's

relationship to the offense), petition for cert. filed, (U.S. June 11, 1999) (No. 98-9790);

United States v. Hildebrandt, 961 F.2d 116, 119 (8th Cir.) (holding that various law

enforcement personnel and judges were "victims" of the crime of making false

statements to a government agency for purposes of §3A1.2(a) where the defendant

made false statements about the officials to the IRS; causing the IRS to investigate the

officials "certainly had the effect of making these individuals [the defendant's]

victims"), cert. denied, 506 U.S. 878 (1992). 

Drapeau argues that there was no victim because no person or property was

injured or damaged. However, an individual need not be harmed, or even

knowledgeable of the crime, to be a victim. See United States v. Polk, 118 F.3d 286,

298 (5th Cir.) (holding a § 3A1.2(a) enhancement applicable to solicitation and attempt

to blow up an IRS building although the plan was never carried out), cert. denied, 118

S. Ct. 456 (1997); United States v. McCaleb, 908 F.2d 176, 179 (7th Cir. 1990)

("Nothing in the . . . guidelines requires that the victim be harmed or made aware of the

threat."). It is enough that the intended victim of the crime was a government official.

Cf. United States v. Duran, 891 F. Supp. 629, 633 (D. D.C. 1995) (holding that a §

3A1.2(a) enhancement was appropriate for attempted murder of the president although

the defendant mistakenly shot at a look-a-like).

As found by the district court, Drapeau and his cohorts had one purpose in mind

when they made the firebombs--to "get" Officer Sazue. That was the sole motive for

the offense of conviction--making the bomb. Without Officer Sazue as the target for
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the firebombs, the bombs would never had been constructed; there would have been

no section 5861(f) offense. The three-level enhancement for an official victim reflects

the seriousness of an offense targeted at a government official. See McCaleb, 908 F.2d

at 179. The enhancement punishes and deters crimes targeted at, i.e., intended for,

government officials and motivated by that status. When an individual illegally makes

a bomb for the sole aim and purpose of retaliating against a police officer who arrested

a relative, the three-level enhancement most assuredly applies. We certainly cannot

say that the district court clearly erred in finding that Officer Sazue was the victim of

Drapeau's actions of making the firebombs. 

Because we conclude that the district court's factual finding is supported by the

record, we reject Drapeau's contention that the district court implicitly based the official

victim enhancement on conduct that followed the making of the firebomb, namely, the

attempted arson. The district court so erred in the first appeal, for which the prior panel

remanded the case for a new factual determination. During the resentencing hearing,

the district court repeated the prior panel's statement that "'[w]e agree with the district

court that Officer Sazue was very much a victim of Drapeau's conduct.'" (Resentencing

Tr. at 7-8 (quoting Drapeau, 121 F.3d at 348).) The district court clearly understood

that it was to focus only on the offense of conviction, i.e., constructing the firebomb,

which it did. On remand, the district court explicitly stated, "I am considering only the

offense of conviction and not other relevant conduct, including what he did afterwards."

(Resentencing Tr. at 9.) The district court found "that Officer Sazue was the victim,

the intended victim by this defendant when he made the firebombs . . . . Therefore, it

makes no difference what he did with the firebombs after he had them . . . ." (Id. at

11.) Thus, the district court correctly looked only to the offense of conviction in

making its factual finding that Officer Sazue was the victim of Drapeau's illegal bombmaking activities.

III.
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For the foregoing reasons, we affirm the district court's judgment. 

A true copy.

Attest:

CLERK, U.S. COURT OF APPEALS, EIGHTH CIRCUIT.