Filed: Aug. 10, 2018
Latest Update: Mar. 03, 2020
Summary: FILED United States Court of Appeals UNITED STATES COURT OF APPEALS Tenth Circuit FOR THE TENTH CIRCUIT August 10, 2018 _ Elisabeth A. Shumaker Clerk of Court UNITED STATES OF AMERICA, Plaintiff - Appellee, v. No. 17-7070 (D.C. No. 6:16-CR-00025-RAW-1) JASON WAYNE CAREY, (E.D. Okla.) Defendant - Appellant. _ ORDER AND JUDGMENT* _ Before LUCERO, HARTZ, and MORITZ, Circuit Judges. _ Jason Wayne Carey appeals the district court’s judgment sentencing him to 36 months’ imprisonment, arguing that the
Summary: FILED United States Court of Appeals UNITED STATES COURT OF APPEALS Tenth Circuit FOR THE TENTH CIRCUIT August 10, 2018 _ Elisabeth A. Shumaker Clerk of Court UNITED STATES OF AMERICA, Plaintiff - Appellee, v. No. 17-7070 (D.C. No. 6:16-CR-00025-RAW-1) JASON WAYNE CAREY, (E.D. Okla.) Defendant - Appellant. _ ORDER AND JUDGMENT* _ Before LUCERO, HARTZ, and MORITZ, Circuit Judges. _ Jason Wayne Carey appeals the district court’s judgment sentencing him to 36 months’ imprisonment, arguing that the c..
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FILED
United States Court of Appeals
UNITED STATES COURT OF APPEALS Tenth Circuit
FOR THE TENTH CIRCUIT August 10, 2018
_________________________________
Elisabeth A. Shumaker
Clerk of Court
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v. No. 17-7070
(D.C. No. 6:16-CR-00025-RAW-1)
JASON WAYNE CAREY, (E.D. Okla.)
Defendant - Appellant.
_________________________________
ORDER AND JUDGMENT*
_________________________________
Before LUCERO, HARTZ, and MORITZ, Circuit Judges.
_________________________________
Jason Wayne Carey appeals the district court’s judgment sentencing him to
36 months’ imprisonment, arguing that the court improperly relied on United States
Sentencing Guidelines Manual § 5K2.14 (U.S. Sentencing Comm’n 2015)1 (USSG or
Guidelines) as one of three grounds for a three-level upward departure. Exercising
jurisdiction under 28 U.S.C. § 1291 and 18 U.S.C. § 3742, we affirm.
*
After examining the briefs and appellate record, this panel has determined
unanimously to honor the parties’ request for a decision on the briefs without oral
argument. See Fed. R. App. P. 34(f); 10th Cir. R. 34.1(G). The case is therefore
ordered submitted without oral argument. This order and judgment is not binding
precedent, except under the doctrines of law of the case, res judicata, and collateral
estoppel. It may be cited, however, for its persuasive value consistent with
Fed. R. App. P. 32.1 and 10th Cir. R. 32.1.
1
The district court used the 2015 version of the Guidelines Manual, and all our
citations are to that version.
BACKGROUND
After pleading guilty to one count of felon in possession of an explosive, see
18 U.S.C. § 842(i)(1), Carey was initially sentenced to 60 months’ imprisonment. On
appeal, the parties agreed that due to an intervening change in the law, Carey’s prior
conviction no longer qualified as a crime of violence. Thus, we concluded that the
district court improperly increased his base offense level, and we remanded to the
district court to vacate its judgment and resentence Carey. See United States v.
Carey, 689 F. App’x 627, 628 (10th Cir. 2017).
At resentencing, the district court relied on USSG § 2K1.3(a)(4)(A) to
calculate a base offense level of 16. The court decreased the level to 13 for Carey’s
acceptance of responsibility, resulting in a Guidelines range of 24–30 months. The
court then granted the government’s motion for an upward departure based on three
Guidelines provisions. The first two are in Application Note 10 of the Commentary
to § 2K1.3 and provide: “An upward departure may be warranted in any of the
following circumstances: . . . (B) the explosive materials were of a nature more
volatile or dangerous than dynamite or conventional powder explosives (e.g., plastic
explosives); . . . or (D) the offense posed a substantial risk of death or bodily injury
to multiple individuals.” USSG § 2K1.3 cmt. n.10. The third basis for the upward
departure was § 5K2.14, which reads: “If national security, public health, or safety
was significantly endangered, the court may depart upward to reflect the nature and
circumstances of the offense.”
2
The court found that by a preponderance of the evidence the circumstances of
the case supported an upward departure: Carey possessed “four separate and highly
volatile chemicals,” and based on testimony at the first sentencing hearing by a
special agent from the Bureau of Alcohol, Tobacco, and Firearms (ATF), the court
found that all of the chemicals were “more dangerous than normal explosives.”
R., Vol. V at 29–30.2 These chemicals were improperly stored at Carey’s residence
and therefore “had the potential to significantly endanger the health and safety of
first responders, law enforcement, and anyone in or near the residence, including
neighbors in the surrounding area.” Id. Responding personnel were placed at
“substantial risk” when they were “exposed to these and other chemicals” in the
residence.
Id. at 30. The ATF agent “experienced skin irritation” after exposure
“to a bottle labeled hexamine containing nitric acid.”
Id. Accordingly, the court
departed upward three levels to 16, which resulted in a Guidelines range of 33–
41months, and sentenced Carey to 36 months’ imprisonment. Carey appeals.
DISCUSSION
Carey raises one issue on appeal. He argues that the district court erred in
departing upward based on § 5K2.14’s public health or safety ground because
2
The four chemicals were “HMTD [hexamethylenetriperoxidediamine],
MEKP [methyl ethyl ketone peroxide], RDX [cyclotrimethylenetrinitramine, also
known as Royal Demolition Explosive or Research Department Explosive], and
picric acid.” R., Vol. V at 29; see also Supp. R., Vol. I at 28.
3
§ 2K1.3 already takes danger to public health or safety[3] into account by virtue of the
inherent danger in explosives. But in his discussion of this single issue, we see two:
facial and as-applied challenges to the district court’s reliance on § 5K2.14. His
stated issue asserts a facial challenge—i.e., the base offense level established by
§ 2K1.3 already takes into account the inherent risk that possession of explosives
poses to public health and safety. Thus, his facial challenge maintains that § 5K2.14
doesn’t lie outside the “heartland” of § 2K1.3, and the district court improperly relied
on § 5K2.14.4 But Carey also states an as-applied challenge in that he argues the
district court failed to make any findings justifying a conclusion that § 5K2.14’s
public health and safety factor was present substantially in excess of § 2K1.3’s
heartland.5 He doesn’t challenge the district court’s reliance on Application Note
10(B) or (D) of § 2K1.3 in support of the departure, but he claims that reliance on
3
Section 5K2.14’s national security ground isn’t at issue.
4
See, e.g., Aplt. Opening Br. at 9 (“It is obvious that explosives are capable of
exploding and injuring people who are nearby. This [i.e., § 2K1.3] is essentially the
same factor that § 5K2.14 is concerned with—that public health and safety has been
significantly endangered.”); Aplt. Reply at 6 (“A departure based on endangerment of
public health or safety does not identify a feature outside the heartland [of § 2K1.3],
much less a feature substantially in excess of that which is in the heartland.”).
5
See, e.g., Aplt. Opening Br. at 12 (arguing that the district court “made no
findings to justify a conclusion that the factor in § 5K2.14 was present to a degree
substantially in excess of that which ordinarily is involved in a § 2K1.3 offense,” and
therefore “a basis for the departure was not established in the record”).
4
§ 5K2.14 wasn’t harmless because there’s a likelihood that the degree of departure
would be lower if there were fewer grounds supporting it.6
The facial challenge—whether § 5K2.14 lies outside the heartland of
§ 2K1.3—is essentially a legal question. Therefore, our review of that issue is
plenary. See United States v. Robertson, 568 F.3d 1203, 1211 (10th Cir. 2009);
United States v. Montgomery,
550 F.3d 1229, 1233 (10th Cir. 2008).
The Guidelines describe the “heartland” of a guideline as “a set of typical
cases embodying the conduct that each guideline describes.” USSG Ch.1, Pt. A,
§ 1(4)(b) (internal quotation marks omitted). Section 2K1.3 is partially entitled
“Unlawful Receipt, Possession, or Transportation of Explosive Materials,” and sets a
base offense level of 16 if the defendant was, like Carey, “a prohibited person at the
time [he] committed the instant offense.” USSG § 2K1.3(a)(4)(A).7 The title of Part
K, in which § 2K1.3 appears, is “Offenses Involving Public Safety.” USSG Ch. 2,
Pt. K (emphasis added) (typeface altered). Given the potential danger explosives can
pose to public health or safety and the title of Part K, it’s therefore logical to
conclude that the “heartland” of § 2K1.3(a)(4)(A)’s base level includes cases
6
The government claims that Carey’s appeal “hinges on” whether the district
court in effect engaged in impermissible double counting of the same sentencing
factor when it relied on § 2K1.3 cmt. n.10 and § 5K2.14 to depart upward. Aplee.
Response Br. at 13. But this characterization misinterprets Carey’s argument, and in
his reply brief, he affirmatively disclaims any double-counting argument.
7
A “prohibited person” is defined as “any person described in 18 U.S.C.
§ 842(i),” USSG § 2K1.3 cmt. n.3, which is the statute Carey pleaded guilty to
violating—a convicted felon in possession of an explosive.
5
involving some measure of risk to public health or safety inherent in a prohibited
person’s possession of explosive materials.
Application Note 10, however, makes clear that the heartland of § 2K1.3
doesn’t encompass the potential degree of risk to public health or safety posed by all
the possible circumstances that could accompany the possession of explosive
materials. As relevant to our analysis, Note 10 acknowledges that “[a]n upward
departure may be warranted” if “(A) the quantity of explosive materials significantly
exceeded 1000 pounds”; “(B) the explosive materials were of a nature more volatile
or dangerous than dynamite or conventional powder explosives (e.g., plastic
explosives)”; or “(D) the offense posed a substantial risk of death or bodily injury to
multiple individuals.” USSG § 2K1.3, cmt. n.10 (emphasis added). By recognizing
these grounds for departing upward, Note 10 makes clear that the heartland of
§ 2K1.3 doesn’t include offenses involving extremely large quantities of explosive
materials or explosive materials more volatile or dangerous than the baseline
established in 10(B), either of which could pose a greater risk to public health or
safety than might be present in the set of typical cases; or offenses involving a
substantial risk of bodily injury or death to multiple people. It therefore logically
follows that the heartland of § 2K1.3 doesn’t include the significant endangerment to
public health or safety referred to in § 5K2.14.
We next consider Carey’s as-applied challenge to the sufficiency of the district
court’s factual finding that the circumstances of Carey’s offense warranted an upward
departure under § 5K2.14. We agree with Carey that the district court didn’t
6
expressly identify the heartland of § 2K1.3 and explain why Carey’s offense fell
outside of it. But Carey failed to preserve this issue below, so we review his
as-applied challenge for plain error. See United States v. Gantt, 679 F.3d 1240,
1246–47 (10th Cir. 2012). To prevail under the plain-error doctrine, there must be an
“error” that “was plain—that is, obvious under current well-settled law,” and that
affected his “substantial rights” and “seriously affected the fairness, integrity, or
public reputation of judicial proceedings.”
Id. (brackets and internal quotation marks
omitted).
Here we conclude there was no error. The district court heard evidence and
made findings germane to whether Carey’s offense presented circumstances
“substantially in excess of . . . that which ordinarily is involved in that kind of
offense,” as is necessary when “the circumstance that forms the basis for the
departure is taken into consideration in determining the guideline range,” USSG
§ 5K2.0(a)(3). The court heard extensive testimony from the ATF special agent who
was part of the team that processed Carey’s residence. The agent testified that the
explosives found inside the residence were more powerful than dynamite or
conventional powder explosives. Moreover, because the explosives were improperly
stored, they were subject to detonation through a variety of means such as static,
shock, and friction, thereby posing significant danger to public health or safety, as
well as responding personnel. The agent noted that one of the explosives, HMTD, is
four times more powerful than a blasting cap and used only by hobbyists and certain
terrorist organizations. Another, MEKP, had never been recovered in the United
7
States. The agent also described the additional danger to public health or safety
posed by the proximity of other chemicals, some of which were also improperly
stored, if any of the explosives had detonated. He discussed the skin irritation he
immediately felt upon opening a small refrigerator that, like the room itself, had a
strong chemical odor. Photographs admitted into evidence confirmed the agent’s
description of the bedroom laboratory’s condition as “deplorable.” R., Vol. IV at 65;
see also Supp. R., Vol. I at 2–18.
The district court relied on the agent’s testimony in finding that the
circumstances of Carey’s offense justified an upward departure under § 5K2.14.
Although the court didn’t recite all the relevant portions of that testimony or
expressly make the more particularized finding that Carey’s offense presented
circumstances substantially in excess of those ordinarily involved in possession of
explosives by a felon, it did make findings consistent with our view that § 2K1.3’s
heartland is informed by § 2K1.3’s Application Note 10. Specifically, the district
court found that the explosives were more dangerous than dynamite or conventional
powder explosives and were stored improperly, thereby posing a significant danger to
public health or safety. The agent’s testimony provided more than adequate support
for those findings. Therefore, the district court did not err in basing the upward
departure, in part, on § 5K2.14.
8
CONCLUSION
The district court’s judgment is affirmed.
Entered for the Court
Nancy L. Moritz
Circuit Judge
9
