United States Court of Appeals

FOR THE EIGHTH CIRCUIT

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No. 03-2903

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United States of America, *

*

Appellee, *

* Appeal from the United States

v. * District Court for the 

* District of Nebraska.

Shane L. Borer, *

*

Appellant. *

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Submitted: June 15, 2004

Filed: January 5, 2005 (Corrected 1/13/05)

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Before SMITH, BEAM, and COLLOTON, Circuit Judges.

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COLLOTON, Circuit Judge.

Shane Borer pled guilty to possession of firearms while subject to one or more

domestic-violence protection orders, in violation of 18 U.S.C. § 922(g)(8). The

firearms were discovered at Borer's home on July 26, 2002, after a fire at his

residence. At that time, Borer was subject to two protection orders. Borer pled guilty

to the charge on April 10, 2003.

At Borer's sentencing hearing on July 2, 2003, the district court calculated the

base offense level under the United States Sentencing Guidelines at 14, see USSG

§ 2K2.1(a)(6)(A), and then added two levels for the number of firearms involved. See
1

Prior to an amendment effective on April 30, 2003, § 3E1.1(b) stated: 

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USSG § 2K2.1(b)(1)(A). The court then granted a two-level reduction for acceptance

of responsibility, see USSG § 3E1.1, resulting in a total offense level of 14. The

court found that Borer's criminal history category was III, and that the applicable

sentencing range was 21 to 27 months. The court sentenced Borer to 24 months

imprisonment and three years of supervised release.

On appeal, Borer asserts several errors in the calculation of his sentence. He

contends that the district court erred in denying a three-level reduction for acceptance

of responsibility under USSG § 3E1.1(b), assessing one criminal history point for a

prior criminal mischief conviction, and denying a six-level reduction under USSG

§ 2K2.1(b)(2) for possessing the firearms solely for sporting purposes or collection.

Borer further argues that the government breached a plea agreement by failing to

recommend a sentence in the middle of the guideline range. Finally, Borer argues

that his trial counsel was ineffective because he did not object to the court's failure

to grant Borer an additional level for acceptance of responsibility and to the

government's alleged breach of the plea agreement. We affirm in part, reverse in part,

and remand for resentencing.

I.

The Presentence Investigation Report ("PSR") prepared by the United States

Probation Office did not recommend a reduction to Borer's sentence for acceptance

of responsibility, and Borer properly objected. At the sentencing hearing, the district

court found that Borer had accepted responsibility and reduced his offense level by

two levels under USSG § 3E1.1(a). On appeal, Borer contends that the district court

committed clear error by not awarding a three-level reduction under § 3E1.1(b), as

it existed at the time of his offense,1

 because he "timely notif[ied] authorities of his
If the defendant qualifies for a decrease under subsection (a), the offense

level determined prior to the operation of subsection (a) is level 16 or

greater, and the defendant has assisted authorities in the investigation or

prosecution of his own misconduct by taking one or more of the

following steps: 

(1) timely providing complete information to the government

concerning his own involvement in the offense; or 

(2) timely notifying authorities of his intention to enter a plea of

guilty, thereby permitting the government to avoid preparing for trial

and permitting the government and the court to allocate its resources

efficiently, 

decrease the offense level by 1 additional level.

USSG § 3E1.1(b) (Nov. 1, 2002).

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intention to enter a plea of guilty, thereby permitting the government to avoid

preparing for trial and permitting the court to allocate its resources efficiently."

USSG § 3E1.1(b)(2) (Nov. 1, 2002).

The government concedes that Borer timely notified authorities of his intention

to enter a plea of guilty, and thereby permitted the government to avoid preparing for

trial. The district court gave no reason for denying a third level reduction under

§ 3E1.1(b)(2), and we find nothing in the record to support a finding that although the

notification was timely for purposes of the government, it was somehow untimely

with respect to the court. Accordingly, we conclude that the district court's denial of

a decrease of one additional level under § 3E1.1(b)(2) was clearly erroneous.

At oral argument, the government asserted that Borer was ineligible for a threelevel reduction under § 3E1.1(b), because under the guideline as amended by the
2

Prosecutorial Remedies and Tools Against the Exploitation of Children Today

Act of 2003 ("PROTECT Act"), Pub.L.No. 108-21, § 401(g), 117 Stat. 650, 671-72

(April 30, 2003).

3

See, e.g., Brief for the United States at 16, United States v. Zavala-Santillanez,

(9th Cir. filed May 28, 2004) (No. 04-50034) (government agreed that the application

of the post-Protect Act version of USSG § 3E1.1(b) to the defendant would violate

the constitutional prohibition against ex post facto laws); Brief for the United States

at 13 n.5, United States v. Kolbe, (8th Cir. filed Dec. 17, 2003) (No. 03-3458)

(government did not urge application of amended § 3E1.1(b) to offense committed

before PROTECT Act due to "ex post facto concerns"); PROTECT Act Substantially

Alters Availability of Third Acceptance of Responsibility Point, Federal Public

Defender Report (Federal Public Defender, Western District of New York), Oct.

2003, at 21-22, http://www.frontiernet.net/ ~fpdnywro/news/2003-10.pdf (reprinting

policy of United States Attorney for Western District of New York to apply amended

§ 3E1.1(b) only to offenses committed after April 30, 2003); see also United States

v. Lester, 268 F. Supp. 2d 514, 515 n.2. (E.D. Pa. 2003) (government agreed that Ex

Post Facto Clause barred application of restrictions on departures in PROTECT Act

to sentencing for offense that occurred before enactment).

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PROTECT Act in April 2003,2

 the third level reduction is available only upon motion

of the government, and no such motion was filed at Borer's sentencing hearing. Borer

argues that retrospective application of the new motion requirement would violate the

Ex Post Facto Clause of the Constitution, and that the guidelines in effect at the time

of his offense should be applicable. See USSG § 1B1.11(b). We have located only

one precedent concerning application of the new motion requirement of § 3E1.1(b)

to offenses committed prior to April 30, 2003. United States v. Briceno, No. 01

CR.943 LTS, 2003 WL 22025870, at *6 n.6 (S.D.N.Y. Aug. 23, 2003) (unpublished)

(declining to apply PROTECT Act amendment to § 3E1.1(b), because "application

of the amended Guideline would result in a harsher sentence than would application

of the Guideline in effect at the time of the offense conduct"). We suspect that may

be due to a policy of the United States not to seek retrospective application of the

amendment for constitutional reasons.3

 But despite conceding that Borer satisfied the

timely notice requirement of § 3E1.1(b), the government in this case nonetheless
4

We observe that if the government were correct that the amended version of

§ 3E1.1(b) applies, then there would be a serious question whether the government's

failure to file a motion was rationally related to any legitimate government end. See

Wade v. United States, 504 U.S. 181, 186 (1992). As noted, the government

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insists that a three-level reduction is not permissible, because the United States

Attorney did not file a motion under amended § 3E1.1(b).

We think it evident that the government's position is inconsistent with the Ex

Post Facto Clause. The addition of the motion requirement changes the operation of

the guideline to Borer's detriment after his commission of the offense. The

PROTECT Act amendment made it materially more difficult for Borer to earn a

reduction for acceptance of responsibility by adding a requirement that the

government authorize the court to grant a third level reduction. As a result, the

statute was "retrospective and more onerous than the law in effect on the date of the

offense." Weaver v. Graham, 450 U.S. 24, 30-31 (1981). The amended guideline

would result in a substantial disadvantage to Borer because he would receive a longer

sentence for the same conduct simply because he did not receive a motion from the

government. See Miller v. Florida, 482 U.S. 423, 431-33 (1987) (defendant was

"substantially disadvantaged" by change in calculation of primary offense points

under sentencing guidelines which altered his presumptive sentence from 31⁄2 - 41⁄2

years to 51⁄2 - 7 years); Weaver, 450 U.S. at 33 (statute reducing the amount of "gaintime" credits a prisoner could receive was unconstitutional as an ex post facto law);

Lindsey v. Washington, 301 U.S. 397, 400-01 (1937) (change in punishment from a

range of years with a maximum of 15 years to a mandatory sentence of 15 years

violated the Ex Post Facto Clause); cf. Carmell v. Texas, 529 U.S. 513, 530 (2000)

(change in rule of evidence that decreased burden on government to prove crime

violated the Ex Post Facto Clause when applied to a defendant's case retrospectively).

Accordingly, we hold that the version of § 3E1.1(b) in effect at the time of Borer's

offense should be applied, and that Borer is entitled to an additional one-level

reduction under § 3E1.1(b)(2).4
conceded that Borer timely notified authorities of his intention to enter a plea of

guilty, and permitted the government to allocate its resources efficiently. 

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II.

Borer contends that the district court improperly assessed one criminal history

point based on a conviction in November 2002 for criminal mischief under Nebraska

law. The conviction arose out of an incident during which Borer became upset with

his estranged wife when he was picking up his children, grabbed a cell phone from

one of his children, and broke the phone by throwing it on the ground. He was

sentenced to six months probation and required to pay $80 in restitution. Borer

argues that this misdemeanor offense is "similar to" the offenses of disorderly

conduct and disturbing the peace, which are excluded from counting under USSG

§ 4A1.2(c)(1), and that the district court should have refrained from assessing a

criminal history point on that basis. We review de novo the district court's

construction and interpretation of the criminal history provisions of the sentencing

guidelines, and we review for clear error the district court's application of the

guidelines to the facts. United States v. Jones, 87 F.3d 247, 248 (8th Cir. 1996).

Under USSG § 4A1.2(c)(1), an offense that is "similar to" disorderly conduct

or disturbing the peace would not be counted in Borer's case unless the sentence was

a term of probation of at least one year or a term of imprisonment of at least thirty

days. We have held previously that the offense of "Assault and Criminal Damage to

Property" is not similar to the offenses of disorderly conduct or disturbing the peace

for purposes of § 4A1.2(c)(1). United States v. Russell, 913 F.2d 1288, 1294 (8th Cir.

1990). We now reach the same conclusion regarding the offense of criminal mischief

under Nebraska law.

To determine whether two crimes are "similar" for purposes of § 4A1.2(c), we

have endeavored to "compare the resemblance and character of the offenses." United
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States v. Webb, 218 F.3d 877, 881 (8th Cir. 2000); see also United States v. Mitchell,

941 F.2d 690, 691 (8th Cir. 1991) ("similar to" must be given its normal meaning, i.e.,

"nearly corresponding; resembling in many respects") (internal quotation omitted).

This approach places us in the camp of those circuits that have opted to compare the

"elements" or "essential characteristics" of the subject offenses to determine whether

they have the requisite similarity. See United States v. Perez de Dios, 237 F.3d 1192,

1198 (10th Cir. 2001) (favorably citing Mitchell in adopting an "essential

characteristics" approach); United States v. Elmore, 108 F.3d 23, 27 (3d Cir. 1997)

(elements); United States v. Harris, 128 F.3d 850, 854-55 (4th Cir. 1997) (same);

United States v. Unger, 915 F.2d 759, 763 (1st Cir. 1990) (same). We continue to

believe that this approach is in keeping with the overall purpose of the Sentencing

Reform Act to achieve consistency in sentencing and to reduce disparities in

sentencing among similarly situated offenders. We thus decline Borer's suggestion

that we adopt a multi-factor approach championed by the Fifth Circuit and others,

which also considers the underlying facts of the defendant's offense, as well as such

matters as a "comparison of punishments imposed for the listed and unlisted offenses,

the perceived seriousness of the offense as indicated by the level of punishment, . . .

the level of culpability involved, and the degree to which the commission of the

offense indicates a likelihood of recurring criminal conduct." United States v.

Hardeman, 933 F.2d 278, 281 (5th Cir. 1991); see also United States v. MartinezSantos, 184 F.3d 196, 205-06 (2d Cir. 1999); United States v. Booker, 71 F.3d 685,

689 (7th Cir. 1995). We share the concern of the Fourth Circuit that some of the

factors used in these multi-factor tests are vague, subjective, or lacking in unifying

principle, such that they "leave the law indeterminate." See Harris, 128 F.3d at 854-

55.

In defining the character of the listed offenses, we look to federal law and

consider such generic sources as the Model Penal Code and legal dictionaries to

define these offenses. See Elmore, 108 F.3d at 25-26; cf. Taylor v. United States, 495

U.S. 575, 598 & n.8 (1989) (citing the Model Penal Code as support for the generic
5

The Model Penal Code provides that: 

A person is guilty of disorderly conduct if, with purpose to cause public

inconvenience, annoyance or alarm, or recklessly creating a risk thereof,

he

(a) engages in fighting or threatening, or in violent or

tumultuous behavior; or

(b) makes unreasonable noise or offensively coarse

utterance, gesture or display, or addresses abusive language

to any person present; or

(c) creates a hazardous or physically offensive condition by

any act which serves no legitimate purpose of the actor.

Model Penal Code § 250.2(1) (1980). 

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definition of "burglary"). We observe that a person may be convicted of disorderly

conduct if, with purpose to cause public inconvenience, annoyance or alarm, he

"makes unreasonable noise or offensively coarse utterance, gesture or display, or

addresses abusive language to any person present." Model Penal Code § 250.2(1)

(1980).5

 "Disturbing the peace" is similarly defined as "[t]he criminal offense of

creating a public disturbance or engaging in disorderly conduct, particularly by

making an unnecessary or distracting noise." Black's Law Dictionary 183 (7th ed.

1999). These offenses typically are directed at the public at large, and need not

involve any specific threat of property damage or personal injury.

Criminal mischief, in our view, is an offense of a different and more serious

character. To violate the Nebraska statute, a person must (a) intentionally or

recklessly damage the property of another; (b) intentionally tamper with property of

another so as to endanger person or property; or (c) intentionally or maliciously cause

another to suffer pecuniary loss by deception or threat. Neb. Rev. Stat. § 28-519(1).
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Criminal mischief thus involves an intent to cause property damage, and a conviction

signifies that a defendant has done "more than merely disturb the public order."

Elmore, 108 F.3d at 26. None of the enumerated offenses in § 4A1.2(c)(1) involves

property damage or personal injury, and we conclude that the requirement of

intentional property damage or pecuniary loss renders criminal mischief in Nebraska

categorically more serious than disorderly conduct or disturbing the peace.

Accordingly, we hold that the district court did not err in assessing a criminal history

point for Borer's conviction for criminal mischief. Accord United States v. May, 343

F.3d 1, 10 (1st Cir. 2003). 

III.

Borer also argues that he was entitled to a six-level reduction under USSG

§ 2K2.1(b)(2), which provides that a defendant's offense level should be reduced if

the defendant possessed the firearms solely for lawful sporting purposes or collection,

and did not unlawfully discharge or use such firearms. When considering the purpose

for which the firearms were possessed, we consider "the number and type of firearms,

the amount and type of ammunition, the location and circumstances of possession and

actual use, the nature of the defendant's criminal history . . . and the extent to which

possession was restricted by local law." USSG § 2K2.1, comment (n. 10). 

We conclude that the district court did not clearly err in finding that Borer

failed to satisfy his burden of proof to qualify for the sporting purposes and collection

reduction. Although it would have been helpful for the district court to set forth its

reasoning for the ruling on this point, we infer from the record that the court must

have given weight to evidence presented from the defendant's ex-wife concerning

alleged unlawful use of the firearms, and found unreliable the defendant's contrary

explanations for his possession of the guns.
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There was evidence from which the court could have inferred that Borer

possessed the firearms for an unlawful purpose. The government submitted affidavits

from Borer's ex-wife, which were prepared in 2001 and 2002 to support her

applications for domestic-violence protective orders against Borer. In those

affidavits, Borer’s ex-wife asserted that Borer threatened her with a "rifle" while they

were living in Ohio by holding the gun to her head. Although Borer now contends

that his ex-wife was lying, he never contested the facts at the time the protective

orders were entered. In a June 2003 affidavit, an agent of the Bureau of Alcohol,

Tobacco, Firearms and Explosives stated that Borer's ex-wife had repeated her claim

that Borer held a gun to her head, and that she was "pretty certain, but not 100%

positive" that the weapon Borer held to her head was one of the guns at issue in this

case. Borer claimed that he never possessed in Ohio the firearms charged in the

indictment, and pointed out that the charged firearms were shotguns, while the exwife had specified use of a "rifle." Borer's father, however, told the ATF agent that

Borer may have possessed the charged firearms in Ohio, and Borer's ex-wife averred

in her statement to the ATF agent that the threatening weapon was "either a shotgun

or a rifle."

The district court was also presented with conflicting evidence regarding the

purposes for which Borer possessed the firearms in Nebraska. Borer initially testified

that all three guns were "for hunting purposes only." He then seemed to contradict

himself, however, by saying that he had not used the Ithaca and the Winchester

shotguns for several years -- since he was in high school and 12 years old,

respectively. He further testified that he had never used the Westernfield shotgun for

hunting, and that it was merely a "collector's gun."

Borer and his father also provided inconsistent information about why the guns

were at Borer's residence in Nebraska. Borer's father first told the ATF agent that he

was storing the firearms at Borer's residence for the safety of his grandchildren. He

then admitted, however, that he had purchased one of the firearms not for himself, but
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for Borer. At the sentencing hearing, Borer testified that his father transferred the

guns because he did not have enough storage space. Borer further emphasized that

his father only had one gun case, while Borer had several individual cases in which

to store the guns, but when the guns were found, none of them was stored in an

individual gun case. Given the ambiguities in this evidence, we conclude that it was

not clearly erroneous for the district court to find that Borer failed to meet his burden

of proof. See United States v. Truelson, 169 F.3d 1173, 1174 (8th Cir. 1999)

(defendant's equivocal answer regarding collection supported denial of reduction

under §2K2.1(b)(2)).

IV.

Finally, Borer contends that the government violated the plea agreement by

concurring with the recommendation of the presentence report to sentence Borer in

the middle of the applicable sentencing guideline range, rather than recommending

a sentence at the low end of the applicable range. Issues concerning the interpretation

and enforcement of a plea agreement are reviewed de novo. United States v. Johnson,

241 F.3d 1049, 1053 (8th Cir. 2001). "Plea agreements are contractual in nature, and

should be interpreted according to general contract principles." United States v.

DeWitt, 366 F.3d 667, 669 (8th Cir. 2004). 

Given the unusual language of the plea agreement in this case, we conclude

that the government did not breach a material term of the agreement. The plea

agreement stated: "Absent a departure or other downward sentencing benefit to the

defendant from the guideline range anticipated by the Presentence Report, the United

States Attorney agrees to recommend a sentence at the low end of the applicable

Guideline range." (Plea Agreement ¶ 1c) (emphasis added). Here, the guideline

range "anticipated by the Presentence Report" did not include a downward adjustment

for acceptance of responsibility. Borer then received this "downward sentencing

benefit" when the district court sustained his objection to the report. Accordingly,
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under the plain language of the plea agreement, the government was not required to

recommend a sentence at the low end of the sentencing range, and there was no

breach of the agreement.

V.

Just as this opinion was ready for filing, Borer filed a motion for leave to file

a supplemental brief arguing that Blakely v. Washington, 124 S. Ct. 2531 (2004),

renders the United States Sentencing Guidelines unconstitutional. Although Borer's

sentence was imposed without any upward adjustments to his offense level under the

guidelines based on facts other than those admitted by Borer at his guilty plea, Borer

wishes to argue that the sentencing guidelines may not be followed in any case after

Blakely, and that his sentence under the guideline constitutes a "plain error" that

should be corrected by this court. See United States v. Olano, 507 U.S. 725, 732-34

(1993). Whatever the ramifications of Blakely, we will not reach that issue until after

the Supreme Court issues its opinions in United States v. Booker and United States

v. Fanfan, if Borer wishes to pursue the matter through a petition for rehearing. See

Administrative Order regarding Blakely issues entered on September 27, 2004. 

* * *

For the foregoing reasons, we uphold the district court's ruling with respect to

most of the disputed sentencing issues, but we vacate Borer's sentence and remand

for resentencing with a three-level reduction for acceptance of responsibility.

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