Filed: Jul. 19, 2006
Latest Update: Mar. 02, 2020
Summary: Opinions of the United 2006 Decisions States Court of Appeals for the Third Circuit 7-19-2006 USA v. Hertzog Precedential or Non-Precedential: Non-Precedential Docket No. 05-2932 Follow this and additional works at: http://digitalcommons.law.villanova.edu/thirdcircuit_2006 Recommended Citation "USA v. Hertzog" (2006). 2006 Decisions. Paper 730. http://digitalcommons.law.villanova.edu/thirdcircuit_2006/730 This decision is brought to you for free and open access by the Opinions of the United Stat
Summary: Opinions of the United 2006 Decisions States Court of Appeals for the Third Circuit 7-19-2006 USA v. Hertzog Precedential or Non-Precedential: Non-Precedential Docket No. 05-2932 Follow this and additional works at: http://digitalcommons.law.villanova.edu/thirdcircuit_2006 Recommended Citation "USA v. Hertzog" (2006). 2006 Decisions. Paper 730. http://digitalcommons.law.villanova.edu/thirdcircuit_2006/730 This decision is brought to you for free and open access by the Opinions of the United State..
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Opinions of the United
2006 Decisions States Court of Appeals
for the Third Circuit
7-19-2006
USA v. Hertzog
Precedential or Non-Precedential: Non-Precedential
Docket No. 05-2932
Follow this and additional works at: http://digitalcommons.law.villanova.edu/thirdcircuit_2006
Recommended Citation
"USA v. Hertzog" (2006). 2006 Decisions. Paper 730.
http://digitalcommons.law.villanova.edu/thirdcircuit_2006/730
This decision is brought to you for free and open access by the Opinions of the United States Court of Appeals for the Third Circuit at Villanova
University School of Law Digital Repository. It has been accepted for inclusion in 2006 Decisions by an authorized administrator of Villanova
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NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
No: 05-2932
UNITED STATES OF AMERICA
v.
RONALD W. HERTZOG,
Appellant
Appeal from the United States District Court
for the Middle District of Pennsylvania
(Crim. No. 02-cr-00153)
District Court: Hon. James F. McClure, Jr.
Submitted Pursuant to Third Circuit LAR 34.1(a)
March 27, 2006
Before: McKEE and VAN ANTWERPEN, Circuit Judges,
and POLLAK*, Senior District Judge.
(Filed: July 19, 2006)
___________________
OPINION
___________________
McKEE, Circuit Judge.
Ronald Hertzog appeals from the judgment of sentence that was imposed
following his guilty plea to charges arising from his illegal possession of firearms. For
the reasons the follow, we will affirm.
*
The Honorable Louis H. Pollak, Senior District Judge of the United States District
Court for the Eastern District of Pennsylvania, sitting by designation.
I.
Because we write primarily for the parties, it is not necessary to recite the facts of
this case. We previously remanded this matter so that the district court could reconsider
its sentence in the light of Blakely v. Washington, 542 U.S. 296 (2004) and United States
v. Booker,
543 U.S. 220 (2005). On remand, the district court again sentenced Hertzog to
seventy months of incarceration. We have jurisdiction pursuant to 28 U.S.C. § 1291.
We conclude that each of the claims of error Hertzog raises are meritless.
A. Reasonableness of the Sentence in Light of 18 U.S.C. § 3553(a) Factors.
In determining whether the district court imposed an unreasonable sentence, we
must be satisfied that the court exercised its discretion by appropriately considering the
sentencing factors set out in 18 U.S.C. § 3553(a). United States v. Cooper, 437 F.3d 324
(3d. Cir. 2006). Thus, courts must “impose a sentence sufficient, but not greater than
necessary, to comply with the purposes set forth in paragraph (2) of [that] subsection.”
18 U.S.C. § 3553(a) (2000). We do not presume that the district court properly
considered these factors merely because a sentence falls within the applicable guidelines
range.
Cooper, 437 F.3d at 330. Although a sentence within the applicable range is more
likely to be reasonable than one outside of it, a sentence within the suggested range is not
reasonable per se; the fact that a sentence falls within that range is one factor that must be
considered in reviewing a sentence for reasonableness.
Id. at 330-31. Moreover, the
defendant bears the burden of establishing that the sentence was unreasonable.
Id. at 332.
On remand, the district court considered the mandates of Booker and reexamined
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the original sentence. App. 382-83. The court concluded that that sentence was
consistent with the sentencing factors set forth in § 3553(a). Given our deferential review
of that determination, see Cooper, 437 F.3d at 330, we find no merit to Hertzog’s claim
that the sentence that was reimposed was unreasonable.
B. Information After the First Sentence.
18 U.S.C. § 3661 provides, “No limitation shall be placed on information
concerning the background, character, and conduct of a person convicted of an offense
which a court of the United States may receive and consider for the purposes of imposing
an appropriate sentence.” Pursuant to U.S.S.G. § 5K2.19, post-sentencing rehabilitation
does not furnish a basis for a downward departure. U.S.S.G. § 5K2.19. Before the
current version of § 5K2.19 was enacted, we concluded that a defendant’s rehabilitative
effort while incarcerated had to be extraordinary to warrant a downward departure.
United States v. Yeaman, 248 F.3d 223, 228-29 (3d Cir. 2001).
Following remand, the district court acknowledged that Hertzog had participated
in educational, religious, and substance abuse programs. The court considered those
laudable efforts in light of Booker, but refused to grant a downward departure. The court
explained that such a downward departure in cases remanded following Booker would
unfairly disadvantage defendants who were ineligible for re-sentencing and therefore had
no opportunity to bring their rehabilitative efforts before the sentencing court. In refusing
to grant a departure for those efforts, the court recognized its discretion to do so, but
concluded that it would not be appropriate to exercise its discretion in that manner given
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the circumstances here. We find no error in the resulting sentence.
C. Increase in Hertzog’s Criminal History Category.
U.S.S.G. § 4A1.3(a) advises that an upward departure may be warranted when
“reliable information indicates that the defendant’s criminal history category substantially
under-represents the seriousness of the defendant’s criminal history or the likelihood that
the defendant will commit other crimes.”** U.S.S.G. § 4A1.3. In considering a district
court’s decision to increase a defendant’s criminal history category, we afford deferential
review to the sentence imposed. United States v. Kikumura, 918 F.2d 1084, 1098 (3d Cir.
1990).
Initially, Hertzog’s criminal history category was I because he had no prior
convictions. Pursuant to U.S.S.G. § 4A1.3, the district court determined that category did
not adequately reflect the likelihood that Hertzog would commit other crimes based upon
statements Hertzog made to undercover officers prior to his arrest and internet postings,
the district court determined that category I substantially under-represented the likelihood
that Hertzog would commit other crimes. Accordingly, the court exercised its discretion
to and increased the criminal category. Given our deferential review of the court’s
sentence, and the record’s support for the enhancement, we conclude that the resulting
sentence was reasonable.
D. Enhancement for Special Skill.
**
Even under the mandatory sentencing guideline regime, this departure was within the
sentencing court’s discretion, as evidenced by the language “may be warranted.”
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U.S.S.G. § 3B1.3 suggests an upward departure when a defendant’s special skill is
a significant factor in facilitating a crime. The accompanying commentary defines
“special skill” as “skill not possessed by members of the general public and usually
requiring substantial education, training or licensing.”
Here, the district court determined that Hertzog’s skill in converting multiple types
of legal, semi-automatic weapons into illegal automatic weapons qualified as a special
skill justifying a more severe sentence. Herzog also used raw materials to create
prohibited silencers and explosive devices. It is clear that the special skill qualifying for
an enhancement under U.S.S.G. § 3B1.3 does not require formal education or training.
United States v. Urban, 140 F.3d 229, 236 (3d Cir. 1998) (“[A] § 3B1.3 sentence
enhancement is not limited to persons who have received substantial formal education,
training from experts, or who have been licensed to perform a special skill.”)
Accordingly, we believe the district court was justified in enhancing Hertzog’s sentence
pursuant to U.S.S.G. § 3B1.3 based upon the skill he employed in committing the instant
offense.
E. Attempted Obstruction of Justice.
U.S.S.G. § 3C1.1 suggests a two-level enhancement if a defendant “willfully
obstructed or impeded, or attempted to obstruct or impede, the administration of justice
during the course of the investigation, prosecution, or sentencing of the instant offense of
conviction” and such conduct was related to defendant’s offense of conviction or a
closely related offense. U.S.S.G. § 3C1.1. “Willful” implies a specific intent to obstruct
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justice. United States v. Hernandez, 83 F.3d 582, 585 (2d Cir. 1996). In determining
whether the defendant acted willfully, the district court is entitled to rely on
circumstantial evidence and to draw all reasonable inferences from the facts. United
States v. Cassiliano,
137 F.3d 742, 746 (2d Cir. 1998).
Here, law enforcement officers took pains to conceal their identity even during
Hertzog’s arrest. Following his arrest, Hertzog told his daughter to post an email to
members of the Pennsylvania Militia to inform them of his arrest and advise them that
some members of his group were actually undercover officers. The email that was sent
warned members not to trust the named officers, and announced that the media reports
about Hertzog’s arrest for a traffic violation were false. Herzog’s post-arrest conduct
significantly hampered the officers’ ability to continue the investigation into illegal
purchases of weapons that had involved Hertzog. Although Hertzog denies any intent to
interfere with the investigation, the record supports the district court’s conclusion to the
contrary, and we conclude that the court did not err in enhancing Hertzog’s sentence for
this conduct.
F. Possession of Machine Guns, Armor-Piercing Ammunition, and Black Powder.
Hertzog claims that his sentence was the result of “double counting” because the
district court applied a provision of the guidelines to increase his sentence for a harm
already considered under another provision that was also applied. See United States v.
Kenney, 283 F.3d 934, 936 (8th Cir. 2002). 18 U.S.C. § 3553(a) directs the district court
to consider a number of factors when imposing a sentence. “[T]he nature and
6
circumstances of the offense;” “the need for the sentence imposed . . . to reflect the
seriousness of the offense, to promote respect for the law, and to provide just punishment
for the offense;” and “the kinds of sentence and the sentencing range established for . . .
the applicable category of offense committed by the defendant as set forth in the
guidelines. . . ” seem particularly relevant to this aspect of the district court’s inquiry. 18
U.S.C. § 3553(a).
Possession of multiple firearms, armor-piercing ammunition, and items that
present a substantial risk to others are all distinct factors that counsel a sentence
enhancement. See U.S.S.G. § 2K2.1 (suggesting an upward departure for possession of
multiple firearms and commentary suggesting upward departure for large amounts of
armor piercing ammunition); U.S.S.G. § 5K2.14 (suggesting an upward departure when
“national security, public health, or safety [are] significantly endangered). Moreover, we
have allowed upward departure based upon the types of firearms involved, as distinct
from the number. United States v. Alers, 852 F. Supp. 310, 313-14 (D.N.J. 1994), aff’d,
40 F.3d 1241 (3d Cir. 1994).
The district court increased Hertzog’s sentence for possessing multiple machine
guns, armor-piercing ammunition, and other items which posed substantial risk of safety
to others. These are distinct offenses and the court’s sentence recognized that by
imposing sentencing enhancements in accordance with § 3553(a) factors. Under Alers,
the district court could also consider the types of weapons Hertzog possessed, here
machine guns. Specifically, the district court based its departure for substantial risk to
7
others upon the fact that Hertzog permitted a five-year-old to be present while his parents
fired a Sten gun. He also possessed a loaded gun on his person and another in his
minivan, and maintained ten pounds of black powder in his trailer that could have been
ignited by his frequent smoking. Accordingly, these enhancements were reasonable in
light of the § 3553(a) factors.
III.
For all of the above reasons, we will affirm the district court’s judgment of
sentence and conviction.
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