*

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

of Minnesota, sitting by designation.

United States Court of Appeals

FOR THE EIGHTH CIRCUIT

___________

No. 01-1798

___________

United States of America, *

*

Plaintiff-Appellee, *

* Appeal from the United States

v. * District Court for the Southern

* District of Iowa.

Harry Lee Barber, *

*

Defendant-Appellant. *

___________

Submitted: September 11, 2001

Filed: November 26, 2001

___________

Before MORRIS SHEPPARD ARNOLD, BRIGHT, Circuit Judges, and KYLE,*

District Judge.

___________

BRIGHT, Circuit Judge.

Harry Lee Barber pled guilty to six counts of an indictment stemming from his

manufacture of five pipe bombs, which he placed around the city of Des Moines,

Iowa, in an attempt to create the appearance of a mad bomber. After an evidentiary

hearing, the district judge accepted Barber’s guilty plea and imposed a term of

imprisonment of ninety-six months to be followed by a three-year term of supervised
1

We find no merit in Barber's argument that 18 U.S.C. § 844(d) is an unlawful

extension of Congress' Commerce Clause power. This court has consistently rejected

this type of challenge to a similar statute, 18 U.S.C. § 922(g). See, e.g., United States

v. Holman, 197 F.3d 920 (8th Cir. 1999); see also United States v. Flaherty, 76 F.3d

967, 974 (8th Cir. 1996).

2

The district court properly considered the relevant conduct of Barber's crimes

in choosing applicable offense guidelines. See Sentencing Guideline § 1B1.2(a)

(instructing that in the case of a plea agreement, the sentencing court is to determine

the appropriate offense guideline section from Chapter Two that is applicable to the

stipulated offense). Furthermore, there was substantial evidence to support the

district court's enhancement for more than minimal planning under § 2A2.2(b)(2) and

for a bomb used during the commission of a felony under § 2K2.1(b)(5). 

3 The counts are:

 Date Offense Count

Title & Section Nature of Offense Concluded Number(s)

18:844(d) Transporting an explosive device 

with . . . intent . . . 11/02/99 One

26:5861(f) Manufacture . . . destructive device 11/02/99 Two

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release. Barber appeals his conviction based upon the district court’s lack of

jurisdiction. Barber also appeals his sentence claiming the district court erred in

applying the grouping rules under the United States Sentencing Guidelines and in

applying enhancements for more than minimal planning and the use of a bomb in the

commission of another felony offense. We reject Barber's arguments that the district

court lacked jurisdiction1

 and erred in enhancing his sentence,2 but we remand for

resentencing for the following reasons.

The district court’s application of the United States Sentencing Guidelines is

reviewed de novo, United States v. Lewis, 200 F.3d 1177 (8th Cir. 2000). 

At sentencing, the district court found that there were five groups based on the

six counts to which Barber pled guilty.3

 The court used § 3D1.2 of the United States
 Date Offense Count

Title & Section Nature of Offense Concluded Number(s)

26:5861(f) Manufacture . . . destructive device 11/16/99 Five

26:5861(f) Manufacture . . . destructive device 11/30/99 Eight

26:5861(f) Manufacture . . . destructive device 12/03/99 Eleven

[Volaire]

26:5861(f) Manufacture . . . destructive device 12/03/99 Fourteen

[Steel Pipe] 

Appellant's Add. at 29. While Barber claims that all the manufacturing counts should

be grouped together for sentencing purposes, the district court rejected that analysis

because the bombs were individually constructed, placed around the city, and directed

at different targets. We conclude that the district court did not err in this decision.

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Guidelines to group Counts One and Two because they related to the same pipe bomb

and incident. Each group had an offense level of 26.

Turning to § 3D1.4 in order to determine Barber's combined offense level, the

district court increased Barber's offense level by five levels. We determine that this

increase was erroneous because under § 3D1.4(a) the number of units was five or

less, keeping in mind that Counts One and Two are combined into a single group.

Therefore, the combined offense level should have been increased by only four levels.

Barber's sentence range based on a final offense level of 28 was 78-97 months.

He was sentenced to ninety-six months concurrently. He should have been sentenced

based on a final offense level of 27, which has a range of 70-87 months.

For the foregoing reasons, we remand to the district court for resentencing

consistent with this opinion.
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A true copy.

Attest:

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