1996 Decisions

Opinions of the United

States Court of Appeals

for the Third Circuit

1-12-1996

United States v. Brannan

Precedential or Non-Precedential:

Docket 95-3108

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Recommended Citation

"United States v. Brannan" (1996). 1996 Decisions. Paper 244.

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1 

UNITED STATES COURT OF APPEALS 

FOR THE THIRD CIRCUIT 

_____________________ 

No. 95-3108 

_____________________ 

UNITED STATES OF AMERICA, 

 Appellee, 

v. 

DAVID GEORGE BRANNAN, 

 Appellant. 

_____________________ 

On Appeal from the United States District Court 

for the Western District of Pennsylvania 

(D.C. No. 94-cr-200) 

_____________________ 

Argued September 13, 1995 

Before: SLOVITER, 
2 

Chief Judge, ALITO, Circuit Judge, and 

RENDELL, District Judge*. 

Filed January 12, l996 

_____________________ 

 Thomas S. White 

 Federal Public Defender 

 Karen Sirianni Gerlach 

 (Argued) 

 Assistant Federal Public 

 Defender 

 415 Convention Tower 

 960 Penn Avenue 

 Pittsburgh, Pennsylvania 

 Attorneys for Appellant 

_________________________________________________________________ 

* Honorable Marjorie O. Rendell, United States District Judge 

for the Eastern District of Pennsylvania, sitting by designation. 

 Frederick W. Thieman 

 United States Attorney 

 Bonnie R. Schlueter (Argued) 

 Assistant United States 

 Attorney 

 633 U.S. Post Office & 

 Courthouse 

 Pittsburgh, Pennsylvania 

 Attorneys for Appellee 

_____________________ 

OPINION OF THE COURT 

_____________________ 

RENDELL, District Judge: 
3 

 This appeal is from a judgment of sentence imposed 

after defendant David George Brannan pled guilty to one count of 

being a felon in possession of a firearm in violation of 18 

U.S.C. § 922(g)(1). Brannan raises two grounds in his appeal. 

First, he argues that the district court improperly enhanced the 

offense level by four levels under § 2K2.1(b)(5) of the United 

States Sentencing Guidelines for the use, possession or transfer 

of a firearm in connection with another felony. See United 

States Sentencing Commission, Guidelines Manual §§ 2K2.1(b)(5) 

(1994) (hereinafter "U.S.S.G.").0 Second, he contends that the 

district court failed to properly apply § 5G1.3 of the United 

States Sentencing Guidelines so as to have his federal sentence 

run concurrently with a state court sentence he was serving. See

U.S.S.G. § 5G1.3(c) (Policy Statement) (hereinafter "U.S.S.G. 

§5G1.3(c)"). We find the second ground for attack to be valid, 

and, accordingly, we will remand for resentencing consistent with 

this opinion.0

 

0

We apply the 1994 edition of the Sentencing Guidelines pursuant 

to U.S.S.G. § 1B1.11 which dictates that the version of the 

Guidelines in effect at the time of sentencing is to be used. 

Brannan was sentenced on February 10, 1995. 

0

 The amendments to the Sentencing Guidelines effective 

November 1, 1995 substantially rewrite U.S.S.G. § 5G1.3(c) and 

the Commentary thereto. While the amendments do not affect this 

Court's analysis, the district court in resentencing would 

normally apply the Guideline in effect at the time of 

resentencing. See United States v. Kopp, 951 F.2d 521, 534 (3d 

Cir. 1991). However, if the district court determines that using 

the amended Guideline would violate the Ex Post Facto Clause of 

the United States Constitution in that it would yield a harsher 

result, then it must apply the Guideline in effect at the time 

the offense was committed. See U.S.S.G. § 1B1.11; see also Kopp, 

951 F.2d at 526. 
4 

 The events giving rise to the instant offense involved 

the accidental discharge of a gun while it was being removed from 

the trunk of a car in western Pennsylvania. Brannan testified 

that he was interested in selling the gun; he and a friend, Peter 

Andrulat, traveled on Friday evening, September 11, 1992, to a 

neighboring town because Andrulat believed that his friend, 

Richard Hopkins, would be interested in purchasing it.0 Brannan 

indicated that the three men met briefly at a restaurant and then 

went out to Andrulat's car to show Hopkins the gun; as the gun 

was being removed from the trunk, it accidentally discharged, and 

the bullet struck Hopkins in the upper thigh area, severing his 

femoral artery and causing him to bleed to death. 

 Brannan pled guilty to involuntary manslaughter in the 

Court of Common Pleas of Washington County and was sentenced to 

18-60 months, less one day, of imprisonment, which he began to 

serve on June 6, 1994. On August 30, 1994, nearly two years 

after the underlying incident occurred, Brannan was indicted in 

federal court for having been a felon in possession of a firearm. 

He pled guilty on October 31 and was sentenced on February 10, 

1995. At the time of his sentencing, Brannan was serving the 

sentence for involuntary manslaughter. 

 The presentence report prepared for sentencing Brannan 

recommended a four-level enhancement pursuant to U.S.S.G. 

§ 2K2.1(b)(5), which provides for such an enhancement where the 

 

0

Brannan was on probation at the time. He had been told by his 

parole officer earlier in the day that he could not keep the gun, 

a .357 handgun which belonged to his wife, in his home. 
5 

defendant "used or possessed any firearm . . . in connection with 

another felony offense." The probation officer gave the 

following reason to justify the enhancement: 

During the course of the instant offense, the 

firearm that the defendant possessed discharged, 

striking Mr. Hopkins and killing him. This 

resulted in the defendant's conviction of 

Involuntary Manslaughter. 

 Brannan filed two objections to the presentence report 

prior to sentencing. First, he objected to the four-level 

enhancement of his offense level under § 2K2.1(b)(5). Second, he 

argued that he should have been given credit for the time he had 

spent incarcerated in Washington County on the manslaughter 

conviction under U.S.S.G. § 5G1.3, which would have reduced his 

sentence for the federal offense by several months. 

 In addition to objecting to the presentence report, 

Brannan also requested a downward departure based on his family 

ties, his employment history, and his employment prospects, 

relying upon U.S.S.G. §§ 5K2.0, 5H1.5, and 5H1.6. The 

government, in turn, requested an upward departure under U.S.S.G. 

§ 4A1.3, arguing that Brannan's criminal history category underrepresented the seriousness of his criminal history. 

 At the time of sentencing, Brannan argued that U.S.S.G. 

§ 2K2.1(b)(5) requires a showing of his intent to use a firearm 

in order for the enhancement to be applicable. Section 

2K2.1(b)(5) provides that if a defendant used or possessed a 

firearm in connection with another felony or if a defendant 

possessed or transferred a firearm with knowledge or intent that 
6 

it would be used or possessed in connection with another felony, 

the offense level should be increased by four levels. 

 He argued that the knowledge and intent element in the 

second clause should be interpreted to apply to the concept of 

"used or possessed" in the first clause. Under Brannan's 

interpretation, the alleged negligent handling of the firearm 

involved in the instant set of facts should not have given rise 

to the four-level increase in offense level. 

 The sentencing judge indicated his concern with 

applying the four-level enhancement under § 2K2.1(b)(5) to the 

negligent use of a firearm involved in this set of facts. In 

applying the section as written, however, he found that no 

element of intent was necessary under the Guidelines, and he 

found no alternative other than to impose the four-level 

enhancement. 

 Brannan next argued that U.S.S.G. § 5G1.3(c) gave the 

court the authority to impose a sentence to run concurrently with 

his state court sentence from the date when the state sentence 

was imposed, giving credit for time served. Section 5G1.3(c) 

addresses the situation in which a defendant who is serving an 

undischarged term of imprisonment is being sentenced for another 

crime. This section, together with the accompanying Commentary 

and Application Notes, sets forth a methodology the court should 

follow in determining the extent to which the second sentence 

should run concurrently with, or consecutive to, the sentence 

already being served. The government argued that he should serve 

his Guideline sentence for the instant offense concurrently with 
7 

the remainder of the unexpired term of imprisonment for this 

state conviction. 

 The sentencing court determined that the applicable 

offense level of 25 and criminal history category of V for the 

weapon possession offense gave rise to a Guideline sentencing 

range of 100 to 120 months. The court acknowledged that the 

issue was governed by § 5G1.3(c) but framed this issue as a 

choice of either a consecutive or a concurrent sentence, with a 

related question as to whether "credit" could be given for time 

already served on the state sentence. 

 The court appears to have read § 5G1.3(c) as indicating 

that if the court felt an incremental punishment was required, 

then the sentence should run consecutively, otherwise it should 

be concurrent. See Appendix, pp. 118-20. The court could find 

no authority whereby it could "give credit" for the state 

sentence.0 See Appendix, pp. 124-25. It concluded therefore 

that the sentence it would give -- the minimum it believed it 

could give, namely, 100 months -- would be concurrent with the 

remainder of the state sentence. See Appendix, pp. 119, 120, 

125. In making its ruling, the court did not refer to the 

 

0

The district court repeatedly noted its discomfort with the 

length of sentence to be imposed: "I do think that the sentence 

presented here is one heck of a wack [sic]"; "My only difficulty 

is the difficulty, I think, with the duration of it. The 

guideline is longer than what I would impose were the discretion 

in me"; "I'm not sure there needs to be incremental punishments 

for that fortuitous event when we're talking about a sentence as 

serious as this one. I wish that all of the violent criminals I 

prosecuted in the days that I was a prosecutor had gotten tagged 

with as much time as what Mr. Brannan is going to get merely for 

this charge"; "If anything, the federal sentence is the tail 

wagging the dog." Appendix, pp. 119, 120, 125, 136. 
8 

Commentary to the Guidelines, or the sentencing methodology under 

§ 5G1.3(c) described in Application Note 3 thereof, nor did it 

have the benefit of this court's opinion in United States v. 

Holifield, 53 F.3d 11 (3d Cir. 1995), as to how that methodology 

can or should be applied. 

 Brannan also argued that the two-year delay in bringing 

the charges should be taken into account and also presented 

evidence as to the innocent nature of this incident and his 

character as an employed and responsible family man as grounds 

for a departure. The court rejected these considerations as not 

sufficient to warrant any relief for Brannan under the 

Guidelines.0 

 As indicated above, on appeal Brannan presses the need 

for a finding of intent as a prerequisite for the four-level 

enhancement under § 2K2.1(b)(5) and raises the implications of 

Holifield on the sentencing in this case. The government 

counters that the plain meaning of the Guidelines supports the 

enhancement. Further, the government focuses its opposition to 

Brannan's argument under § 5G1.3(c) on his failure at sentencing 

to request a "downward departure" for time served in prison and 

its view that the sentencing court properly applied § 5G1.3(c). 

DISCUSSION

I. 

 

0

Brannan does not challenge these rulings on appeal. 
9 

 The district court's interpretation of the Guidelines 

and the extent of its power to depart downward are legal 

questions subject to plenary review. See United States v. 

Holifield, 53 F.3d 11, 12-13 (3d Cir. 1995); United States v. 

Higgins, 967 F.2d 841, 844 (3d Cir. 1992). However, if a 

defendant has failed to request a departure and first raises the 

issue on appeal, our review of the record is limited to a 

determination of whether plain error had been committed. See

United States v. Pardo, 25 F.3d 1187, 1193 (3d Cir. 1994). 

 The government argues that we should apply the "plain 

error" standard of review to the issue raised under § 5G1.3(c), 

arguing that Brannan did not specifically request a "downward 

departure" before the district court under that Guideline, and 

the issue is being raised for the first time on appeal. The 

government does concede, however, that Brannan requested 

application of § 5G1.3(c) to grant him 18 months' credit for time 

served. See Appendix, pp. 121-23. 

 We find Brannan's request that his existing sentence 

and time served be taken into account was sufficient to preserve 

this issue on appeal. We will not require recitation of magic 

words, or specific request for departure, in connection with 

§5G1.3, especially because, as is discussed more fully below, the 

ability of the court to depart under § 5G1.3(c) is inherent in 

the section itself. That is, departure may be the result of the 

court's application of the methodology under this section, rather 

than an extraneous factor to be applied or considered after the 
10 

appropriate sentence has been determined.0 Further, the 

relationship between § 5G1.3(c) and departures had not yet been 

explored by this Court in Holifield at the time this sentencing 

occurred. We conclude, therefore, that plenary review of both 

issues raised is warranted. 

II. 

 The first issue presented is whether § 2K2.1(b)(5) 

requires that the "use or possession" be intentional. If intent 

is necessary, the alleged negligent use or possession of the 

firearm in this instance would not have resulted in application 

of this section, and Brannan would not have received a four-level 

enhancement of his offense level. Section 2K2.1(b)(5) of the 

Guidelines provides: 

If the defendant used or possessed any firearm or 

ammunition in connection with another felony 

offense; or possessed or transferred any firearm 

or ammunition with knowledge, intent, or reason to 

believe that it would be used or possessed in 

connection with another felony offense, increase 

by 4 levels. 

U.S.S.G. § 2K2.1(b)(5). 

 

0

The concept of departure in § 5G1.3(c) seems to vary slightly 

from the concept elsewhere in the Guidelines. A departure under 

this section means that the court recognizes time already served 

for another offense if and to the extent appropriate. For 

example, by imposing a 24-month sentence where the Guideline 

sentence for the second offense calls for a 48-month sentence but 

the defendant has served 36 months on another charge, the court 

does not reduce the punishment as such based on some extraneous 

factor. Instead, it arrives at an appropriate sentence by 

recognizing punishment for one crime as serving the purpose of 

punishment for another. 
11 

 Brannan makes three arguments: 

 First, he argues that the semicolon in this section 

should be ignored and the word "or" be read to mean "in other 

words." 

 Second, he contends that use or possession "in 

connection with" another felony implies an element of intent. 

 Third, he relies upon Staples v. United States, 114 

S. Ct. 1793 (1994), and Ratzlaf v. United States, 114 S. Ct. 655 

(1994), for the proposition that before imposing this incremental 

punishment, mens rea is required for the underlying felony. 

 The court at sentencing was unsure of the policy behind 

this Guideline but felt certain both that its meaning was clear 

and that it applied to Brannan's conduct. We too have little 

difficulty in determining that the plain meaning of the provision 

applies to Brannan and that the provision cannot be read to 

include, imply, or otherwise require that the use or possession 

was with the intent to commit a crime. We view "or" as a 

disjunctive, connecting phrases with different meanings. See

Reiter v. Sanotone Corp., 442 U.S. 330, 339 (1979). What follows 

the "or" in § 2K2.1(b)(5) is not merely an explication of what 

preceded it, as Brannan urges. 

 That the Sentencing Commission intended that "or" be 

read as a disjunctive term is clear upon review of the amendments 

made to § 2K2.1 since its adoption. Section 2K2.1 initially 

provided for an increased offense level "[i]f the defendant used 

the firearm in committing or attempting another offense." See

U.S.S.G. Appendix C, Amendment 189. An amendment to this 
12 

Guideline provided for an increased sentence "[i]f the defendant 

used or possessed the firearm in connection with commission or 

attempted commission of another offense." Id. A separate 

Guideline was introduced "to address transfer of a weapon with 

intent or knowledge that it will be used to commit another 

offense." Id. On November 1, 1991, these Guidelines were 

consolidated and became § 2K2.1(b)(5). The first part of 

§ 2K2.1(b)(5) addresses use or possession of a firearm in 

connection with another felony; the second part addresses 

attempts and transfers. See U.S.S.G., Appendix C, Amendment 374. 

Accordingly, the Sentencing Commission intended § 2K2.1 to 

provide for a four-level enhancement for two different types of 

conduct. 

 As to the contention that "in connection with" another 

felony implies an element of intent, we can divine no such 

implication. We agree with other circuit courts which have 

considered the issue that "terms used within the federal 

sentencing guidelines and not specifically defined therein 

generally should be given their common usage." United States v. 

DeLuca, 17 F.3d 6, 9 (1st Cir. 1994). Thus, "connection," as 

used in section § 2K2.1(b)(5), is defined as a "causal or logical 

relation or sequence." Webster's Ninth New Collegiate Dictionary

278 (1990). We find that the plain meaning of "in connection 

with" in § 2K2.1(b)(5) does not suggest that criminal intent need 

be shown in order to apply this sentencing enhancement provision. 

We thus reject Brannan's first two arguments as contrary to the 

plain language and meaning of the section. 
13 

 Brannan's last argument is premised upon two Supreme 

Court cases which are easily distinguishable. Staples and 

Ratzlaf dealt with the requisite intention for conviction of a 

crime, not for purposes of imposing an enhanced sentence under 

the Guidelines. They are clearly inapposite. Brannan has not 

cited, and we cannot find, any authority for the proposition that 

mens rea must exist in connection with a particular attribute or 

behavior that will result in enhancement of an offense level for 

purposes of sentencing. Further, we are unwilling to read this 

requirement into the Guidelines. We find, therefore, that the 

district court properly enhanced the offense level under 

§ 2K2.1(b)(5). 

III. 

 The second issue presented by Brannan involves the 

application of § 5G1.3(c) of the Guidelines, recently explored by 

this Court in Holifield. As indicated above, § 5G1.3 addresses 

the situation in which a defendant already subject to an 

undischarged term of imprisonment is being sentenced for another 

offense.0 Before the district court and on appeal, Brannan 

 

0

Section 5G1.3 has three subsections. Subsection (c) applies if 

(a) and (b) do not. Section 5G1.3(a) provides that if the second 

offense was committed while defendant was serving, or after 

sentencing but before service of, a term of imprisonment, the 

sentence for the second offense is to run consecutively from the 

sentence for the first offense. Section 5G1.3(b) provides that 

if (a) does not apply and if the offense giving rise to the 

undischarged term of imprisonment was fully taken into account in 

determining the offense level for the second offense, then the 

sentence for the second offense shall run concurrently to the 

undischarged term of imprisonment. Section 5G1.3(c) is labeled a 

"Policy Statement"; we note that "[t]he policy statements and 
14 

argued that subsection (c) applies to the instant situation.0

Subsection (c) provides: 

[T]he sentence for the instant offense shall be 

imposed to run consecutively to the prior 

undischarged term of imprisonment to the extent 

necessary to achieve a reasonable incremental 

punishment for the instant offense. 

U.S.S.G. § 5G1.3(c). 

 The trial judge read the section literally and, finding 

no basis for incremental punishment, sentenced Brannan to the 

Guideline sentence for the instant offense -- 100 months, at the 

lowest end of the sentencing range -- to run concurrent with the 

undischarged term being served for the manslaughter conviction. 

The trial judge did not believe he had the power to do anything 

else. See Appendix, pp. 124-25. 

 Section 5G1.3(c) is a Policy Statement that is further 

explored and explained in the Commentary to the Guidelines.0 As 

is reflected in the Commentary to § 5G1.3(c), specifically 

Application Note 3, the sentence that the court imposes under 

this section should be the result of a methodology that can 

produce a sentence different from that required by the strict 

application of the Guideline criminal offense level and criminal 

history category of the isolated second offense. Application 

Note 3 indicates that the court should examine the sentence that 

 

commentary contained in the guidelines are binding on the federal 

courts." United States v. Holifield, 53 F.3d 11, 13 n.2 (3d Cir. 

1995). 

0

We therefore do not address the question whether U.S.S.G. 

§5G1.3(b) applies to this case. 

0

As noted above, both the Policy Statements and the Commentary in 

the Sentencing Guidelines are binding on the federal courts. See

United States v. Holifield, 53 F.3d 11, 13 n.2 (3d Cir. 1995). 
15 

would have resulted if all of the offenses -- in this instance, 

the manslaughter offense and the possession of a firearm by a 

convicted felon -- had been federal offenses for which sentences 

were being imposed at the same time under § 5G1.2. See U.S.S.G. 

§ 5G1.2 (Sentencing on Multiple Counts of Conviction). 

 This determination can require an approximation. As 

noted in the Application Note, where the sentence being served is 

a state sentence, as in the instant situation, information 

available may permit only a rough estimate of the total 

punishment that would have been imposed under the Guidelines. The 

methodology calls for the court to engage in a fiction, that is, 

to approach sentencing as if both offenses were being sentenced 

at once. 

 Once the court determines -- whether by approximation, 

estimation, or otherwise -- what sentence would be called for 

under the Guidelines, the court then examines whether, in view of 

the sentence that would have resulted, some incremental 

punishment for the instant offense is warranted. This 

incremental punishment is apparently intended to add consecutive 

punishment where the sentence already imposed for the prior 

offense would not suffice as the total sentence using § 5G1.2, so 

that some recognition of the incremental effect of the later 

offense, consecutive to the original sentence, is warranted. 

 As noted in Holifield, the result of these calculations 

can, however, be a departure; that is, the sentence actually 

imposed for the second offense, which results from the 

methodology discussed above, can be different from, and in some 
16 

instances less than, what would otherwise have been called for 

under strict application of the Guidelines in sentencing for the 

second offense alone. The focus of this Guideline section is to 

determine the appropriate sentence, and if as a result the 

sentence is less than the Guideline sentence for the second 

offense, the Guidelines and Holifield permit -- but do not 

require or even encourage -- this result. 

 In the instant setting, the application of this 

methodology could have led to a different result. As sentenced, 

Brannan will serve a total of 108 months for the two offenses.0

Under the methodology advocated by the Commentary, the court 

could have determined, hypothetically, that the Guideline 

sentence for manslaughter and gun possession, if sentenced 

together, would have been 100 months; that no incremental penalty 

was warranted and therefore a concurrent sentence was called for; 

and that because Brannan had already served eight months for the 

first offense, it would sentence him to only 92 months for the 

second offense (to run concurrently with the remaining 

undischarged term, and consecutive thereafter).0

 

0

Brannan started serving his manslaughter sentence on June 6, 

1994 and was sentenced to serve 100 months for the second offense 

on February 10, 1995, concurrent with the remainder of the first 

offense term. 

0

This court noted in Holifield that while departure from the 

Guidelines was not required, the General Counsel to the 

Sentencing Commission had stated in a letter to a United States 

Probation Officer that it could be justified: 

Occasionally, a downward departure may be necessary to 

make this provision work properly. For example, where 

the defendant has been in state custody for a long 

time, a downward departure may be the only feasible way 

to achieve an appropriate total punishment, assuming 
17 

 The Commentary states that the "methodology does not, 

itself, require the court to depart from the guideline range 

established for the instant federal offense." U.S.S.G. § 5G1.3 

(Commentary). However, as noted by the court in Holifield, the 

court can depart if the court believes it should do so in order 

to arrive at the appropriate sentence.0 Each case will be 

different, depending on the application of the methodology to the 

facts. 

 Therefore, this methodology rests discretion in the 

trial court in the "as if" scenario, to take into account both 

offenses, how they would be treated under § 5G1.2 if they were 

multiple counts, and whether incremental punishment is necessary. 

If the sentencing court engages in this exercise as recommended 

by the methodology, it is not constrained by the concept of 

"giving credit" for prior time but can give recognition to time 

served by following the procedures suggested. The result of the 

methodology dictates the attributes of the appropriate sentence. 

The examples set forth in the Illustrations following the 

Application Notes clarify the methodology. 

 

the court wishes to employ a departure to achieve the 

desired objective. 

Holifield, 53 F.3d at 14 n.5 (citation omitted). 

0

Other circuits agree that courts may depart from the Guideline 

sentencing range under § 5G1.3(c) when sufficient justification 

exists. See United States v. Whiteley, 54 F.3d 85, 91 (2d Cir. 

1995) (stating that a court may impose a sentence lower than the 

sentencing range if it departs downward); United States v. 

Gullickson, 981 F.2d 344, 349 (8th Cir. 1992) (stating that 

district court may depart from sentencing range if sufficient 

justification exists). 
18 

 We indicated in Holifield that the sentencing court is 

not required to apply the methodology and is not required to 

depart. In the instant case, the sentencing court clearly was 

uncomfortable with the length of sentence and was searching for a 

way to reduce it. However, that court believed it had no power 

to sentence Brannan to anything other than the applicable 

Guideline sentence for the second offense to run concurrent from 

the date of sentencing. See supra, n. 5. We conclude that the 

district court did have the power to depart under the § 5G1.3(c) 

methodology, and we therefore will remand so that the district 

court will have the opportunity to vacate the sentence and 

resentence consistent with this opinion. 

_________________________