1995 Decisions

Opinions of the United

States Court of Appeals

for the Third Circuit

6-12-1995

United States v Bush

Precedential or Non-Precedential:

Docket 94-2025

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Recommended Citation

"United States v Bush" (1995). 1995 Decisions. Paper 163.

http://digitalcommons.law.villanova.edu/thirdcircuit_1995/163
 UNITED STATES COURT OF APPEALS 

 FOR THE THIRD CIRCUIT 

 

 No. 94-2025 

 

 UNITED STATES OF AMERICA 

v. 

 THERESA J. BUSH 

 Theresa Bush, 

 Appellant

 

 On Appeal from the United States District Court 

 for the Eastern District of Pennsylvania 

 (D.C. Crim. No. 94-0185) 

 

 Submitted under Third Circuit LAR 34.1(a) 

 May 22, 1995 

 BEFORE: GREENBERG, ROTH, AND ALDISERT, Circuit Judges

 (Filed: June 12, 1995) 

 

 David L. McColgin 

 Assistant Federal Defender 

 Elaine De Masse 

 Senior Appellate Counsel 

 Maureen Kearney Rowley 

 Chief Federal Defender 

 Defender Association of 

 Philadelphia 

 Federal Court Division 

 437 Chestnut St., Suite 800 

 Lafayette Building 

 Philadelphia, PA 19106 

 Attorneys for Appellant

 Michael R. Stiles 

 United States Attorney 
 Walter S. Batty, Jr. 

 Ronald H. Levine 

 Assistant United States 

 Attorneys 

 Suite 1250 

 615 Chestnut Street 

 Philadelphia, PA 19106 

 Attorneys for Appellee

 

 

 OPINION OF THE COURT 

 

GREENBERG, Circuit Judge. 

 I. Introduction

 On April 26, 1994, a federal grand jury returned a 

multi-count indictment charging Theresa J. Bush with five counts 

of making false statements in connection with the acquisition of 

a firearm in violation of 18 U.S.C. § 922(a)(6) (the false 

statement counts), and five counts of possession of a firearm by 

a convicted felon in violation of 18 U.S.C. § 922(g)(1) (the 

possession counts). On July 13, 1994, Bush plead guilty to one 

false statement count and one possession count. However, Bush 

stipulated to having committing the other eight charged offenses, 

and "agree[d] that, for the purpose of determining [her] 

Sentencing Guidelines range, . . . these additional offenses 

shall be treated as if the [she] had been convicted of additional 

counts charging these offenses." App. 14. 
 The prosecutor and the defense attorney submitted 

sentencing memorandums addressing two issues to the district 

court: (1) which Sentencing Guidelines Manual applies to Bush's 

sentence; and (2) how the multiple counts should be grouped. At 

the October 14, 1994, sentencing hearing the prosecutor conceded 

that because of potential ex post facto problems, the 1990 

Guidelines Manual should apply. See, e.g., United States v. 

Bertoli, 40 F.3d 1384, 1403 (3d Cir. 1994) (although 

"[g]enerally, the sentencing court must apply the Guidelines 

Manual in effect at the time of sentencing . . . '[w]here such 

retroactivity results in harsher penalties, Ex Post Facto Clause 

problems arise, and courts must apply the earlier version.'") 

(citation omitted).1 The district court then divided the offense 

conduct into three separate groups, and, pursuant to U.S.S.G. § 

3D1.4, computed Bush's offense level to be 13.2 

 The district court thereupon sentenced Bush to 

concurrent 16-month custodial terms, to be followed by concurrent 

3-year terms of supervised release. On October 21, 1994, Bush 

 

1. The 1990 Guidelines Manual was in effect at the time Bush 

committed the crimes to which she pleaded guilty. The 1993 

Guidelines Manual is substantially different with respect to 

firearms offenses, but those differences are not relevant here. 

In this opinion our citations are to the 1990 manual. 

2. The relevant firearms guideline, section 2K2.1(a)(2), 

provided a base offense level of 12. When three groups are 

created that charge equally serious offenses, section 3D1.4 

directs a court to increase the offense level by 3 which the 

district court did. The court then subtracted 2 levels pursuant 

to section 3E1.1 because it found that Bush had accepted 

responsibility for her criminal conduct. Thus, the district 

court computed the offense level to be 13. 
filed a timely notice of appeal of her sentence. We have 

jurisdiction pursuant to 28 U.S.C. § 1291 and 18 U.S.C. § 

3742(a). The district court had jurisdiction pursuant to 18 

U.S.C. § 3231. We will affirm. 

 II. Discussion 

 The sole issue on this appeal is whether the district 

court erred in dividing the offense conduct into three groups. 

"This contention requires a construction of the guidelines so 

that our scope of review . . . is plenary." United States v. 

Riviere, 924 F.2d 1289, 1304 (3d Cir. 1991). Of course, we 

review the district court's findings of fact leading to its 

grouping determination only for clear error. 

 Section 3D1.1(a) of the Sentencing Guidelines directs 

courts to combine multiple counts of conviction into "'distinct 

Groups of Closely Related Counts'" when certain criteria are met. 

United States v. Bertoli, 40 F.3d at 1401 (quoting U.S.S.G. § 

3D1.1(a)). This practice of "grouping," as it has come to be 

called, was designed "to prevent multiple punishment for 

substantially identical offense conduct, while still ensuring 

incremental punishment for significant additional criminal 

conduct." United States v. Wessells, 936 F.2d 165, 168 (4th Cir. 

1991). In accommodating these concerns, courts must distinguish 

between occasions when increasing the punishment for an 

additional count would punish the defendant for conduct taken 

into account in another count and those occasions when the added 

counts reflect additional criminal culpability. The guidelines 
provide in this regard that "[a]ll counts involving substantially 

the same harm shall be grouped together into a single Group", 

U.S.S.G. § 3D1.2, and define "substantially the same harm" as 

follows: 

 (a) When counts involve the same victim and 

the same act or transaction. 

 (b) When counts involve the same victim and 

two or more acts or transactions connected by 

a common criminal objective or constituting 

part of a common scheme or plan. 

 (c) When one of the counts embodies conduct 

that is treated as a specific offense 

characteristic in, or other adjustment to, 

the guideline applicable to another of the 

counts. 

 (d) When the offense level is determined 

largely on the basis of the total amount of 

harm or loss, the quantity of a substance 

involved, or some other measure of aggregate 

harm, or if the offense behavior is ongoing 

or continuous in nature and the offense 

guideline is written to cover such behavior. 

U.S.S.G. § 3D1.2. While section 3D1.2 contains lists of specific 

offenses that should and should not be grouped, firearm offenses 

fall into neither category. Therefore, in firearms cases "a case 

by case determination must be made based upon the facts of the 

case and the applicable guidelines (including specific offense 

characteristics and other adjustments) used to determine the 

offense level." Section 3D1.2(d). We previously have noted the 

relevance of application note 2 to firearms offenses, which 

provides that when crimes involve "indirect or secondary victims 

'the grouping decision must be based primarily upon the nature of 
the interest invaded by each offense.'" United States v. 

Riviere, 924 F.2d at 1304 (citing U.S.S.G. § 3D1.2). 

 The parties do not dispute the facts constituting the 

offense conduct: On ten occasions between September 29, 1990, 

and November 29, 1990, Bush travelled to Lou's Loan of Upper 

Darby, Pennsylvania, a licensed gun dealer. On five of those 

trips she applied to buy various handguns, and in so doing, 

failed to acknowledge a prior felony conviction. On the other 

five trips she purchased the guns for which she had applied. 

 The district court grouped each false statement count 

with its corresponding possession count; after that grouping, the 

district court chronicled Bush's actions as follows: 

 10/04/90: Bush purchases her first handgun,a 

.32 New England revolver. 

 10/12/90: Bush purchases her second handgun, 

a .380 caliber Davis semiautomatic; 

 10/13/90 Bush purchases her third handgun, a 

9mm caliber Taurus semi-automatic; 

 11/01/90 Bush purchases her fourth handgun, 

a .380 caliber Beretta semiautomatic; 

 11/29/90 Bush purchases three .380 caliber 

Davis semi-automatic handguns and 

one 9 mm caliber Tanfoglio semiautomatic handgun. 

 Then the court analyzed which of the offenses were 

distinct and which were coextensive and therefore involved 

substantially the same harm. Beginning with the premise that if 

Bush bought the guns for different purposes then different harms 
were involved, the court reviewed the record and determined that 

she had given inconsistent explanations for the purchases. On 

December 4, 1992 she informed agents of the Bureau of Alcohol 

Tobacco and Firearms (ATF) that she bought the guns because she 

and her husband liked to target shoot at "Colosimo's range," see

PSR at 2 ¶ 7.3 But she told the probation officer during the 

presentence investigation that she bought the guns as protection 

for her mother and sisters. See PSR at 2 ¶ 10. The district 

court partially believed Bush's explanations, but concluded that 

"these lawful purposes only account for four of the guns. They 

cannot plausibly explain the purchase of four additional semiautomatic weapons on November 29, 1990." Op. at 6. The court 

thus inferred that there was a third "mystery motive" for the 

purchases. 

 Additionally, relying on the chart quoted above, the 

court characterized Bush's gun-purchasing activity as naturally 

dividing into three time frames: October 4 through October 13, 

1990; November 1, 1990; and November 29, 1990. Reasoning that 

while in a broad sense Bush's purchases could be considered 

"ongoing, . . . their temporal separation cannot fairly be 

regarded as continuous," op. at 7, the court concluded that 

"[t]he timing and manner of Bush's purchases confirms our 

creation of three groups." Op. at 6. The district court found 

 

3. At the sentencing hearing, defense counsel offered no 

objections to the factual findings in the PSR, other than to the 

probation officer's conclusion that the 1993 Sentencing 

Guidelines Manual should apply. App. 66. 
still further support for its grouping decision in its 

observation that "the handguns . . . are of three different 

calibers and from five different manufacturers." Op. at 6. 

 Bush first argues that the general thrust of the 

guidelines supports a single group. In this regard, she points 

to the application note to U.S.S.G. § 3D1.2 for the proposition 

that firearms offenses presumptively should be grouped together. 

That application note states: 

 Subsection (d) likely will be used with the 

greatest frequency. It provides that most 

property crimes . . ., firearms offenses, and 

other crimes where the guidelines are based 

primarily on quantity or contemplate 

continuing behavior are to be grouped 

together. The list of instances in which 

this subsection should be applied is not 

exhaustive. 

U.S.S.G. § 3D1.2 application note 6. 

 Bush's reliance is misplaced. Immediately following 

the application note, the guideline contains examples of when 

grouping is appropriate which shed light on the point the 

Sentencing Commission was making in the application note. The 

pertinent example states that if "[t]he defendant is convicted of 

three counts of unlicensed dealing in firearms . . . [a]ll three 

counts are to be grouped together." Suppose, for example, a 

defendant, unlicensed to deal in firearms, owns a pawn shop and 

has three guns for sale. It might be unfair to increase the 

punishment for each additional gun, because the shopowner really 

was running a single business and engaged in a single continuous 

course of conduct. Dividing the crime into three subdivisions 
artificially would increase the punishment based not on 

additional criminal conduct but on the fortuity of the number of 

guns being sold. That is precisely the type of result against 

which grouping is intended to guard, and it is the kind of 

situation covered by the application note. 

 But that grouping principle cannot be applied to all 

multiple firearms violations, for such an application would 

eviscerate the Commission's direction that such crimes are to be 

grouped on a case by case basis. Moreover, it defies logic to 

say that all firearms violations committed by an individual in a 

narrow time frame necessarily involve substantially the same harm 

and invade the same protected interests. People possess firearms 

for various reasons with various intentions. While, broadly 

speaking, society is the victim of all possession crimes, each 

crime has its own nuances and must be evaluated on its own. See

United States v. Cousens, 942 F.2d 800, 808 (1st Cir. 1991) (a 

defendant "who purchased different firearms on different 

occasions for different purposes using funds from different 

sources, readily may be distinguished from a defendant who pleads 

guilty to three counts of unlicensed dealing in firearms") 

(pointing out limited utility of application note); see generally

United States v. Griswold, No. 94-1979, slip op. at 9-10 (3d Cir. 

Jun. 5, 1995) (discussing application note). 

 Bush further argues that subsections 3D1.2(b) and (d) 

required the district court to classify the entire offense 

conduct as one group. She contends that subsection (b) required 

grouping because "[t]he nature of the interest invaded by each of 
the ten counts in this case was exactly the same -- the interest 

in keeping guns out of the hands of convicted felons" and 

therefore "Bush's 'criminal objective' was also the same -- the 

possession of handguns." Br. at 11. She argues subsection (d) 

required grouping because Bush's behavior was "ongoing and 

continuous in nature." Inasmuch as the arguments relating to 

both subsections are quite similar, namely that Bush's criminal 

conduct constituted one quick scheme of purchasing handguns, we 

will address them together.4

 Other than the general principles detailed above, we 

are left with little direction from the Sentencing Commission. 

We take some guidance, though, from the limited case law 

addressing this issue. In Riviere, the defendant pled guilty to 

 

4. In Riviere we pointed out the following inconsistency in the 

Sentencing Guidelines commentary: 

 [T]he clarifying amendment, effective 

November 1, 1989, to the background 

commentary to the application notes to 

guidelines § 3D1.2 . . . provides that 

'[c]ounts involving different victims (or 

societal harms in the case of "victimless" 

crimes) are grouped together only as provided 

in subsection (c) or (d).' However, the 

application note discussing the term 

'victim,' which appears in guidelines § 

3D1.2(a) and (b), provides that, for 

victimless crimes in which society at large 

is the victim, 'the grouping decision must be 

based primarily upon the nature of the 

interest invaded by each offense.' 

Riviere, 924 F.2d at 1305 (citations omitted). This 

inconsistency does not affect our analysis, however, because as 

we state in the text, Bush's arguments regarding (b) and (d) are 

nearly identical. 
possession of a firearm by a felon, delivery of firearms to a 

common/contract carrier, and possession of an altered firearm. 

Relying on the general policies behind grouping, we held that the 

district court should have combined the offenses into a single 

group. First, "[t]he guidelines already provided for enhanced 

punishment for possession of a firearm by a felon if that firearm 

was altered." Riviere, 924 F.2d at 1306. Thus, section 3D1.2(c) 

mandated grouping, because one of the counts "embodies conduct 

that is treated as an . . . adjustment to the guideline 

applicable to another of the counts." Moreover, "grouping of the 

offenses of possession of a firearm by a felon and delivery to a 

common/contract carrier was required because to hold otherwise 

would provide enhanced punishment for Riviere's status as a 

felon, rather than his 'additional conduct that is not otherwise 

accounted for by the guidelines.'" Id. at 1306. Driving the 

analysis in Riviere was the fact that the defendant really pled 

guilty to one instance of unlawful conduct -- carrying altered 

firearms onto a chartered flight when he had been convicted 

previously of a felony -- and he should have been sentenced only 

once for his unlawful act; see Griswold, slip op. at 8 

("[B]ecause no additional conduct was represented by the 

additional counts [in Riviere], it was appropriate to group all 

of the firearms-related offenses."); Cf. U.S.S.G. § 3D1.2(a) 

(grouping appropriate when "counts involve the same victim and 

the same act or transaction"). 

 More analogous is United States v. Cousens, 942 F.2d at 

800. In that case, the court held that in determining how to 
group firearms offenses, courts should consider "'differences in 

place, time, nature of the guns, lack of drugs, and intervening 

arrests.'" Id. at 807 (citation omitted). The court of appeals 

upheld the district court's decision to divide nine firearms 

counts into one group of seven counts, and two groups of one 

count each. The offenses underlying the group of seven occurred 

during a nine-day time period, involved purchases from the same 

cash pool, and were connected by a common scheme. The two 

remaining counts, however, involved, respectively, the purchase 

of a different type of gun from a different seller, and a 

purchase for a different purpose. Id. at 807. In response to 

the defendant's argument that all counts should have been grouped 

together, the court of appeals held that the defendant "did not 

demonstrate that his independent offenses . . . involved 

transactions connected by a common criminal objective or 

constituting part of a common scheme or plan with the grouped 

offenses." Id. at 808; but see United States v. Wessells, 936 

F.2d at 168-69 (district court grouped several weapons purchases 

where the purchases evinced single schemes by the defendant "to 

supply himself with an arsenal"). 

 If the district court in this case refused to group the 

possession counts with their corresponding acquisition counts, we 

would face a Riviere problem -- Bush's sentence would be 

increased because of her status. But this case is not like that 

at all; we do not face a situation in which the court sentenced 

her for discrete criminal acts from one instance of unlawful 

conduct. Nor can the purchases in this case be compared to those 
leading to the single large grouping in Cousens. To the 

contrary, the undisputed facts indicate that Bush made five 

specific firearms purchases over a period of several months -- a 

far cry from the nine-day period in Cousens. And, contrary to 

the Cousens court's finding that the purchases were for a common 

scheme, Bush gave inconsistent explanations for her purchases. 

Furthermore, in light of the fact that we know little about where 

her firearms went,5 her explanations are fairly incredible 

insofar as they apply to all the guns. While Bush apparently 

made all her purchases in cash from the same gun shop, there is 

nothing to indicate that the guns were bought from a particular 

cash pool to be used for a particular purpose. In fact, there is 

nothing in the record demonstrating that the purchases were tied 

in any respect; indeed Bush's shifting explanations support the 

contrary conclusion. In light of these facts, the district court 

probably would have acted well within its discretion had it 

inferred discrete motives from discrete purchases, and created 

five separate groups. See Griswold, slip op. at 8 (discussing 

similar fact pattern) ("We remain unconvinced that the Sentencing 

Commission contemplated grouping these offenses."). 

 Ironically, Bush is taking the district court to task 

because it may have treated her more leniently than she deserved. 

Instead of rejecting her explanations and treating each purchase 

as a separate discrete act, the district court gave Bush the 

 

5. One of the firearms was later found in the possession of a 

confidential informant in the World Trade Center bombing case. 

See app. 78-79. 
benefit of the doubt and believed her explanations in part. And, 

the court added only one "mystery motive" to those explanations 

when it could have added two or three. 

 Nevertheless, Bush argues that the district court's 

"mystery motive" finding was clearly erroneous. She contends 

that the district court concluded that the family "protection" 

motive could not account for all the purchases but that it based 

this conclusion on its erroneous belief that Bush had only one 

sister. See Op. at 6 ("Bush . . . claimed to have purchased 

handguns . . . to give to her mother and sister for selfdefense"). Bush is correct in noting that the district court 

erroneously believed she had only one sister. But the court had 

other justifications for inferring a mystery motive. First, the 

protection explanation was inconsistent with the target practice 

explanation, so the court reasonably could have concluded that 

Bush was trying to hide a third motive. Second, the district 

court plausibly was skeptical that a person would purchase semiautomatic weapons simply for protection. See app. 84 ("[W]hen 

somebody goes in and buys four semiautomatic weapons . . . it 

implies to me yet another purpose. That's what I'm concluding as 

to the basis for this.") (sentencing hearing). Finally, the 

undisputed evidence established that none of the weapons had 

reached the people Bush contended that they intended to protect. 

See PSR at 2 ¶ 10 (Bush "was unable to explain why the guns were 

never delivered to the intended recipients"). The district court 

was well within its discretion in concluding that there was a 

mystery motive. 
 Next, Bush argues that because her explanations 

"applied to all the guns she bought . . . [s]ince [she] never 

ascribed different explanations to different guns, these 

explanations simply cannot be used as a basis for creating 

separate groups." Br. at 13. We disagree. The district court's 

finding must be examined in light of all of the evidence. The 

record establishes both that Bush's husband was registered to 

shoot at Colosimo's Pistol Range, see app. 31, and that Bush has 

a mother and seven sisters. In light of these facts, the 

district court could have believed that Bush's was telling 

partial truths each time she tried to explain the purchases. 

However, Bush's evasive behavior on other occasions belied those 

explanations. When interviewed by the ATF in 1992, Bush "would 

not say where the weapons were" but implied that she knew where 

they were. PSR at 2 ¶ 7. When interviewed on April 26, 1994, 

however, "Ms. Bush expressed that she no longer knew where the 

guns were." PSR at 2 ¶ 7. Along with the inconsistent 

explanations she gave, Bush also told the district court that she 

did not know why she purchased the guns. See app. 93. 

 Moreover, the district court's decision to divide the 

offense conduct into three groups is supported by the timing of 

the offenses. Cf. Griswold, slip op. at 8 (improper to group 

"purchases and possession of eight semi-automatic handguns 

spanning in excess of two years."). The chart we reproduce above 

demonstrates that Bush's purchases occurred in three separate 

bursts of activity. The district court properly relied on that 

fact to support its finding of three motives. 
 The judgment of conviction and sentence entered on 

October 17, 1994, will be affirmed.