Lee Lawless, St. Louis, MO, argued, for appellant.

Suzanne Modlin, St. Louis, MO, argued (Stephen B. Higgins and Joseph M. Landolt, St. Louis, MO, on the brief), for appellee.

Before WOLLMAN and LOKEN, Circuit Judges and HUNTER,* Senior District Judge.

ELMO B. HUNTER, Senior District Judge.

On March 5, 1992, Tyrone Cooper was charged in a four count indictment for various firearm violations. On July 16, 1992, pursuant to a plea agreement, Cooper pled guilty to Counts I, II and IV. Count III was dismissed. Count I charged Cooper with being a felon in possession of a firearm on August 24, 1991, in violation of 18 U.S.C. Sec. 922(g)(1); Count II charged Cooper with possession of a short-barrelled shotgun on September 24, 1991, in violation of 26 U.S.C. Secs. 5841, 5861(d) and 5871; and Count IV charged Cooper with being a felon in possession of three separate firearms on January 23, 1992, again in violation of 18 U.S.C. Sec. 922(g)(1).

The district court sentenced Cooper on all three counts under the United States Sentencing Guidelines, as amended November 1, 1991.1 Cooper objected to application of the November 1, 1991, version of the Sentencing Guidelines to the crimes charged in Counts I and II, on the basis that the offense conduct charged in these two counts occurred prior to the effective date of the amendments. He contends that he should have been sentenced under the Sentencing Guidelines in effect prior to the 1991 amendments. The 1991 amendments generally increased the offense levels for the firearms crimes charged in Counts I, II and IV. Specifically, the base offense levels for violations of 18 U.S.C. Sec. 922(g)(1) and 26 U.S.C. Sec. 5861(d) were increased, and the grouping rules for multiple violations of these firearm statutes were changed to require the sentencing court to adjust the offense level in consideration of the total aggregated amount of harm or loss, which in the instant case would require the court to combine the total number of firearms involved in all three counts.

On appeal, Cooper complains that: (1) application of the Sentencing Guidelines, as amended November 1, 1991, to the offenses committed prior to the effective date of the amendments violates the ex post facto clause of the United States Constitution;2 (2) the district court misapplied the Sentencing Guidelines in its determination of the total number of weapons involved for sentencing purposes; and (3) the November 1991 amendments to Sec. 2K2.1 of the Sentencing Guidelines were promulgated in violation of the enabling legislation and Congressional intent. We disagree and therefore AFFIRM the district court.I.

This court has previously determined that the Sentencing Guidelines are subject to the ex post facto clause of the United States Constitution. United States v. Bell, 991 F.2d 1445, 1449-52 (8th Cir.1993). Generally, the sentencing court should apply the Sentencing Guidelines in effect at the time of sentencing unless doing so is violative of the ex post facto clause. United States v. Reetz, 18 F.3d 595, 597 (8th Cir.1994) (citation omitted). The ex post facto clause proscribes application of a law that changes punishment in a manner that inflicts greater punishment than the law annexed to the crime at the time of its commission. Calder v. Bull, 3 U.S. (3 Dall.) 386, 390, 1 L. Ed. 648 (1798).

The Supreme Court has set out a two pronged test to determine whether a criminal law falls within the ex post facto prohibition of the Constitution: (1) it must apply to events that occurred before its enactment; (2) it must disadvantage the affected offender. Miller v. Florida, 482 U.S. 423, 430, 107 S. Ct. 2446, 2451, 96 L. Ed. 2d 351 (1987) (citing Weaver v. Graham, 450 U.S. 24, 29, 101 S. Ct. 960, 964, 67 L. Ed. 2d 17 (1981)). "[C]entral to the ex post facto prohibition is a concern for 'the lack of fair notice and governmental restraint when the legislature increases punishment beyond what was prescribed when the crime was consummated.' " Id. (quoting Weaver, 450 U.S. at 30, 101 S. Ct. at 965). The ex post facto clause makes sure that "legislative Acts give fair warning of their effect and permit individuals to rely on their meaning until explicitly changed." Weaver, 450 U.S. at 28-29, 101 S.Ct. at 964.

In this case, on August 24, 1991, Cooper committed the firearm violation charged in Count I. On September 24, 1991, he committed a second firearm violation charged in Count II. And on January 23, 1992, he committed the third violation, involving multiple firearms, charged in Count IV. At the time Cooper elected to commit the third firearms violation he was clearly on notice of the 1991 amendments to the Sentencing Guidelines and the fact that they increased the offense levels for the firearm crimes in question and required the aggregation of firearms in Counts I, II and IV. In our view, Cooper had fair warning that commission of the January 23, 1992, firearm crime was governed by the 1991 amendments that provided for increased offense levels and new grouping rules that considered the aggregate amount of harm. Utilizing the Miller analysis, it was not the amendments to the Sentencing Guidelines that disadvantaged Cooper, it was his election to continue his criminal activity after the 1991 amendments became effective. Cooper could have easily avoided coming under the amended Sentencing Guidelines by desisting in his repeated criminal possession of firearms prior to November 1, 1991.

In support of his position, Cooper cites a number of cases from this Circuit.3 On the basis of this authority, Cooper urges that a violation of the ex post facto clause occurs if a defendant is sentenced under the Sentencing Guidelines in effect at the time of sentencing and application of those Sentencing Guidelines produces a harsher sentence than would have been permitted under the Sentencing Guidelines in effect at the time the crime was committed. See, e.g., Bell, 991 F.2d at 1452. Of course, this proposition is true in the context of the cited authorities. These cases, however, involved convictions for a single offense or convictions for multiple offenses all of which were completed prior to the effective date of the Sentencing Guidelines in question. Such is not the case here. The instant case involves a series of three firearm offenses: two that were committed prior to the effective date of the Sentencing Guidelines in question; and one that was committed after the effective date of the Sentencing Guidelines in question. As such, the authority cited by Cooper is inapposite in this case.

This court's ex post facto-Guidelines jurisprudence has recognized a distinction between the application of a particular version of the Sentencing Guidelines to offense conduct occurring exclusively before the effective date of that version of the Sentencing Guidelines and application to an offense or offenses whose conduct occurs both before and after the version's effective date. The former implicates the ex post facto clause, the latter does not.

It is well settled that habitual offender statutes do not offend the ex post facto clause, even though such statutes impact imposition of an instant sentence in consideration of past criminal conduct. Gryger v. Burke, 334 U.S. 728, 732, 68 S. Ct. 1256, 1258, 92 L. Ed. 1683 (1948). This is so because the enhanced sentence is considered to impose a stiffer penalty for the latest crime, which is considered to be an aggravated offense due to its repetitive nature. Id. Likewise, "[i]t is well established that a statute increasing a penalty with respect to a criminal conspiracy which commenced prior to, but was continued beyond the effective date of the statute, is not ex post facto as to that crime." United States v. Campanale, 518 F.2d 352, 365 (9th Cir.1975), cert. denied, 423 U.S. 1050, 96 S. Ct. 777, 46 L. Ed. 2d 638 (1976). Similarly, it has been held that applying the Sentencing Guidelines to a conspiracy that straddles the Sentencing Guidelines' effective date is not violative of the ex post facto clause. United States v. White, 869 F.2d 822, 826 (5th Cir.), cert. denied, 490 U.S. 1112, 109 S. Ct. 3172, 104 L. Ed. 2d 1033 (1989); see also United States v. Stewart, 878 F.2d 256, 259 (8th Cir.1989). We have noted that with conspiracy and other continuing offenses it is the completion date of the offense that controls the version of the Sentencing Guidelines to be applied. United States v. Reetz, 18 F.3d 595, 598 (8th Cir.1994). We have also noted that a " 'common scheme or plan' by an individual and the 'same course of conduct' by an individual are the unilateral equivalents to the continuing group offense of conspiracy." Id. (citation omitted).4 As such, the date the crimes are completed determines the version of the Sentencing Guidelines to be applied.

We think the logic of this approach applies to the instant case. The offense conduct to which Cooper pled guilty involved a series of firearm offenses spanning from August 24, 1991, to January 23, 1992. As with the analogous cases referenced above, application of the Sentencing Guidelines in effect at the time Cooper completed the last offense does not violate the ex post facto clause.

As noted above, the sentencing court should apply the Sentencing Guidelines in effect at the time of sentencing unless the court determines that such application would violate the ex post facto clause. Our view, as expressed today, is that in the context of this case the revised version of the Sentencing Guidelines should be applied to the series of firearm offenses committed by Cooper--the first having been committed before, and the last having been committed after the effective date of a Sentencing Guidelines revision--even though such application results in an increased penalty. To hold otherwise could lead to the anomalous result that a particular defendant could be subject to a lower sentence if convicted of multiple offenses spanning a revision of the Sentencing Guidelines, than if convicted of the singular last offense after the revision of the Sentencing Guidelines.5

Review of the current Sentencing Guidelines buttresses our conclusion. Presently the Sentencing Guidelines provide that the sentencing court shall apply the Sentencing Guidelines in effect on the date that the defendant is sentenced, unless to do so would violate the ex post facto clause of the Constitution. U.S.S.G. Sec. 1B1.11(a) & (b)(1). Section 1B1.11(a) provides that "[t]he court shall use the Guidelines Manual in effect on the date that the defendant is sentenced." U.S.S.G. Sec. 1B1.11(a). Section 1B1.11(b)(1) adds that

[i]f the court determines that use of the Guidelines Manual in effect on the date the defendant is sentenced could violate the ex post facto clause of the United States Constitution, the court shall use the Guidelines Manual in effect on the date that the offense of conviction was committed.

U.S.S.G. Sec. 1B1.11(b)(1). While these provisions were not contained in either the 1990 or 1991 version of the Sentencing Guidelines, in our view they do not amount to a substantive change in the law; rather, they merely restate and clarify the existing law.6 Also of interest is the ex post facto discussion and analysis contained in the Commentary to U.S.S.G. Sec. 1B1.11, which supports this court's view regarding whether application of the November 1, 1991, Sentencing Guidelines in the instant case offends ex post facto concerns.7

For the aforementioned reasons, we hold that the district court appropriately applied the November 1, 1991, Sentencing Guidelines.

As his second point on appeal, Cooper urges that the district court misapplied the Sentencing Guidelines because it failed to take evidence and make explicit findings regarding the aggregate number of firearms involved for purposes of determining the appropriate offense level. Five firearms were implicated in the three counts to which Cooper pled guilty. In so pleading, he admitted to at least these five firearms. For purposes of sentencing, the presentence report indicated that Cooper possessed seven firearms. Cooper objected to the inclusion of firearms from the offenses that occurred prior to November 1, 1991, and also to the inclusion of firearms derived from uncharged conduct. On appeal, he argues that it was error for the court to rely on the presentence report assertion that seven firearms were involved without taking additional evidence and making explicit factual findings.

Cooper's first contention that the firearms from the pre-November 1, 1991, counts should not be included is disposed of by our determination above that the November 1, 1991, Sentencing Guidelines were appropriately applied by the district court. Cooper's further contention that the district court erroneously relied on the presentence report to aggregate seven firearms, two derived from uncharged conduct, for sentencing purposes is also without merit. First, the record does not support Cooper's contention that the sentencing court considered the uncharged firearms in determining the appropriate sentencing level. While the presentence report did reflect that Cooper possessed two additional firearms beyond the five charged in Counts I, II and IV, that fact is of no particular moment in determining the appropriate sentence. The district court applied a two-level upward adjustment for the number of firearms. Review of the applicable Sentencing Guidelines section admits that a two-level upward adjustment is called for when the number of firearms involved is between five and seven.8 As noted above, by his plea Cooper admitted to five of the seven firearms referenced in the presentence report. As such, the record clearly supports a finding by the district court that either five or between five and seven firearms were involved. A more specific finding was not required for sentencing purposes.

For the aforementioned reasons, we find no error in the district court's application of the Sentencing Guidelines regarding the number of firearms involved.

Finally, Cooper complains that the district court erred by failing to find that the November 1, 1991, amendment to Sec. 2K2.1 of the Sentencing Guidelines was promulgated in violation of the enabling legislation and Congressional intent. Specifically, Cooper contends that the amendment is invalid because it violates 28 U.S.C. Sec. 991(b)(1)(B)'s directive that unwarranted sentencing disparities are to be avoided in the sentencing of defendants with similar records who have been found guilty of similar criminal conduct. He supports his contention by further arguing that the Commission failed to supply a reasoned explanation to justify the amendment. Simply put, we find this argument to be without merit.

The mere fact that Sec. 2K2.1, as amended, creates some disparity in sentencing as between defendants with similar records who commit certain firearm offenses prior to the amendment's effective date and those who commit similar offenses after the amendment's effective date is of no consequence. Such disparity in and of itself does not violate Congress' intent, as expressed in 28 U.S.C. Sec. 991(b)(1)(B). Section 991(b)(1)(B) provides, in pertinent part, that:

The purposes of the United States Sentencing Commission [include] ... to establish sentencing policies and practices for the Federal Criminal System that ... provide certainty and fairness in meeting the purposes of sentencing, avoiding unwarranted sentencing disparities among defendants with similar records who have been found guilty of similar criminal conduct....

28 U.S.C. Sec. 991(1)(b)(B). While Congress expressed a desire to avoid unwarranted disparities in sentencing, and, to be sure, the amendment in question did have the effect of increasing the penalties for certain firearm offenses, we believe Cooper reads too much into this provision. Congress surely envisioned changes to the Sentencing Guidelines that would increase or enhance the penalties for certain offenses.

Congress, among other things, explicitly directed the Sentencing Commission to periodically review and revise the Sentencing Guidelines. 28 U.S.C. Sec. 994(o). Reading the statute in its entirety makes it abundantly clear that Congress authorized and envisioned that such periodic revisions could be either upward or downward.9 To interpret the statute otherwise, would render a substantial portion of the Commission's statutory duties completely superfluous.10

Cooper finally argues that in promulgating the amendment in question, the Commission acted arbitrarily and capriciously because it did not supply a sufficient explanation for the amendment. Guideline amendments submitted to Congress by the Commission are to be accompanied by a statement of reasons for the changes. 28 U.S.C. Sec. 994(p). In explaining the amendment in question here, the Commission offers that the

amendment consolidates three firearm guidelines and revises the adjustments and offense levels to more adequately reflect the seriousness of such conduct, including enhancements for defendants previously convicted of felony crimes of violence or controlled substance offenses.... The effective date of this amendment is November 1, 1991.

U.S.S.G. App. C, Amend. 374 (1991). We believe the Commission's reasons articulated above are sufficient to meet the requirements of 28 U.S.C. Sec. 994(p).

Even if we agreed with Cooper that the above-stated reasons were not sufficient, it is questionable whether this court has jurisdiction to review the manner in which the Commission promulgates its revisions to the Sentencing Guidelines. The Supreme Court has previously observed that Congress reserved the authority to revoke or amend any of the Sentencing Guidelines within a six month period after their promulgation. Mistretta v. United States, 488 U.S. 361, 393-94, 109 S. Ct. 647, 665-66, 102 L. Ed. 2d 714 (1989); see also 28 U.S.C. Sec. 994(p). As such, the Commission is directly accountable to Congress. Id. Furthermore, while Congress has subjected the promulgation of original and revised Sentencing Guidelines to the Administrative Procedure Act's (APA) notice and comment requirements, Congress did not subject the Commission's process to any further provision of the APA, including the provisions for judicial review. 28 U.S.C. Sec. 994(x)11. On this basis, the District of Columbia Court of Appeals has held that courts lack the authority to review the adequacy of the Commission's articulated reasons given in support of a particular Sentencing Guidelines section. See, United States v. Lopez, 938 F.2d 1293, 1297 (D.C.Cir.1991).

For the aforementioned reasons, we find no error on the part of the district court in refusing to find that the November 1, 1991, amendments to Sec. 2K2.1 of the Sentencing Guidelines were promulgated in violation the enabling legislation or congressional intent.

Finding that the November 1, 1991, version of the Sentencing Guidelines applied to Cooper's offenses, that the district court appropriately applied such Sentencing Guidelines regarding the number of firearms involved and further finding no basis for Cooper's contention that the November 1, 1991, amendments to Sec. 2K2.1 of the Sentencing Guidelines were promulgated in violation of the enabling legislation or Congressional intent, we AFFIRM.

WOLLMAN, Circuit Judge, concurring and dissenting.

Because I believe that the facts giving rise to the three firearms offenses constituted discrete offenses rather than the same course of conduct, the ex post facto clause, as explained in United States v. Bell, 991 F.2d 1445 (8th Cir.1993), mandates that the pre-November 1, 1991, version of the Guidelines be applied to Counts I and II. Whether the sentence ultimately imposed upon Cooper would be any different is hard to say, for I agree that the post-November 1, 1991, grouping rules should be applied to all three counts.

I concur in Parts II and III of the court's opinion.