United States v. Steven Gray

PRECEDENTIAL

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

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No. 18-3663

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UNITED STATES OF AMERICA

v.

STEVEN GRAY,

Appellant

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On Appeal from the United States District Court

for the Middle District of Pennsylvania

(D.C. No. 1:17-cr-00124-001)

District Judge: Honorable John E. Jones, III

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Submitted Under Third Circuit L.A.R. 34.1(a)

on September 20, 2019

Before: KRAUSE, MATEY, Circuit Judges,

and QUIÑONES ALEJANDRO, District Judge

(Opinion filed: November 8, 2019)



Honorable Nitza I. Quiñones Alejandro, District

Judge, United States District Court for the Eastern District of

Pennsylvania, sitting by designation.

David J. Freed

Scott R. Ford

Office of the United States Attorney

228 Walnut Street, P.O. Box 11754

220 Federal Building and Courthouse

Harrisburg, Pennsylvania 17108

Counsel for Appellee

Heidi R. Freese

Ronald A. Krauss

Office of the Federal Public Defender

100 Chestnut Street, Suite 306

Harrisburg, PA 17101

Counsel for Appellant

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OPINION OF THE COURT

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QUIÑONES ALEJANDRO, District Judge.

Appellant Steven Gray appeals the sentence imposed by

the United States District Court for the Middle District of

Pennsylvania following his conviction for unlawful possession

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

Gray challenges three sentencing enhancements that the

District Court applied in calculating his sentence range under

the advisory United States Sentencing Commission Guidelines

(“Guidelines”). This Court has jurisdiction pursuant to

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28 U.S.C. § 1291 and 18 U.S.C. § 3742(a). For the reasons set

forth below, we will affirm the District Court’s judgment.

I. BACKGROUND

Just after midnight on January 1, 2017, during the New

Year’s Eve fireworks festivities in York City, Pennsylvania,

Police Officer Paul Thorne was patrolling residential

neighborhoods in his police vehicle and, as he turned onto Silk

Avenue from Mulberry Street, he heard gunshots. He drove

west on Silk Avenue and observed a person—later identified

as Appellant Steven Gray—carrying a firearm. Officer Thorne

observed Gray walking down a pathway between two

rowhomes located at 721 and 723 Wallace Street. Officer

Thorne stopped, exited his vehicle, and ran down the pathway

with his firearm drawn, until he was about ten (10) feet behind

Gray. Officer Thorne identified himself as a police officer and

ordered Gray to drop the firearm. Gray turned towards Officer

Thorne, saw that Officer Thorne was pointing a firearm at him

in the “high ready” position, and began running away from the

officer in the direction of Wallace Street. App. 34, 36. As

Officer Thorne ran after him, he observed Gray toss his gun

and run onto the porch of 725 Wallace Street, the residence

next door to Gray’s home. Officer Thorne followed Gray onto

the porch and placed Gray face down. Within a minute or so,

Police Officer Davis arrived at the scene. Gray was handcuffed

and taken into custody.

After a brief search of the area where Officer Thorne

saw Gray toss the firearm—an area where Officer Davis

testified that “less than three” people were outside when he

arrived—Officer Thorne found the firearm on the sidewalk in

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front of 731 Wallace Street. App. 57. The firearm had one

round in the chamber and six rounds in the magazine. Officer

Thorne testified that he was not worried about the firearm

presenting any danger because “[i]t will not hurt anybody

unless someone is squeezing the trigger.” App. 39.

The firearm was identified as a Taurus 9-millimeter

handgun with the serial number TLF58814D. A check with

the National Criminal Information Center (“NCIC”) revealed

that the firearm was stolen in Manchester, New Hampshire, in

1995. After being notified that the firearm was recovered, the

Manchester Police Department attempted to locate the theft

victim without success. Thereafter, on January 30, 2017, the

Manchester Police Department sent the following message to

Officer Thorne via the National Law Enforcement

Telecommunications System (“NLETS”):

OUR DETECTIVES HAVE BEEN UNABLE

TO LOCATE THE ORIGINAL VICTIM IN

THIS CASE AT THIS POINT WE WILL BE

REMOVING THE FIREARM FROM NCIC

AND CONSIDERING THE CASE CLOSED

THE FIREARM IS NOT CONSIDERED

STOLEN AT THIS POINT WE APOLOGIZE

FOR THE DELAY IN RESPONSE.

App. 117.

II. PROCEDURAL HISTORY

A federal grand jury returned a one-count Indictment

charging Gray with unlawful possession of a firearm by a

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felon, in violation of 18 U.S.C. § 922(g)(1). Gray pled not

guilty, and the court held a two-day jury trial. At the trial, the

two primary witnesses were Officer Thorne and Gray.

Pertinently, Officer Thorne testified that he observed Gray in

possession of a firearm, which Gray discarded while running

away from him. Gray, on the other hand, testified repeatedly

that he did not have a gun. The jury found Gray guilty.

In advance of the sentencing, the United States

Probation Office prepared and submitted a Presentence

Investigation Report (“PSR”) which, inter alia, calculated

Gray’s Total Offense Level as 30 and his Criminal History

Category as IV, yielding a Guidelines range of 135 to 168

months’ incarceration. However, because the statutory

maximum sentence for violating § 922(g) is 120 months, the

Guidelines sentence was fixed at 120 months. U.S.S.G.

§ 5G1.1(a).1

Gray filed objections to the PSR, challenging three two-

level enhancements:

(i) possession of a stolen firearm, under U.S.S.G.

§ 2K2.1(b)(4);

(ii) recklessly creating a risk of serious bodily injury

in the course of fleeing from law enforcement,

under U.S.S.G. § 3C1.2; and

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This section provides “[w]here the statutorily

authorized maximum sentence is less than the minimum of the

applicable guideline range, the statutorily authorized

maximum sentence shall be the guideline sentence.” U.S.S.G.

§ 5G1.1(a).

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(iii) obstruction of justice for committing perjury at

trial, under U.S.S.G. § 3C1.1.

By Memorandum and Order dated November 7, 2018,

the District Court overruled Gray’s objections. Gray argues

that had the District Court sustained his objections, the

Guidelines calculation would have resulted instead in a

sentencing range of 77 to 96 months’ incarceration. After

considering the sentencing factors of 18 U.S.C. § 3553(a), the

District Court granted Gray a downward variance of 36 months

and sentenced him to 84 months’ incarceration.

III. ANALYSIS

When reviewing challenges to the application of

sentence enhancements, this Court exercises plenary review

over the District Court’s legal conclusions and reviews the

District Court’s factual findings for clear error. See United

States v. Pawlowski, 682 F.3d 205, 211 (3d Cir. 2012); United

States v. Richards, 674 F.3d 215, 219-20 (3d Cir. 2012).

A. Enhancement for Possession of a Stolen

Firearm

Gray challenges the District Court’s two-level

enhancement of his sentence for possession of a stolen firearm.

Specifically, Gray argues that the Government failed to carry

its burden of demonstrating by a preponderance of the evidence

that the firearm found in Gray’s possession was stolen. He also

argues that the doctrine of legal impossibility precluded such a

finding. Gray’s arguments are misplaced.

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Section 2K2.1(b)(4) of the Guidelines provides “[i]f any

firearm . . . was stolen, increase by 2 levels.” To apply this

enhancement, a sentencing court must find by a preponderance

of the evidence that the firearm was stolen. United States v.

Fisher, 502 F.3d 293, 307, 310 (3d Cir. 2007). The

determination of whether a firearm has been stolen is a factual

finding, which this Court reviews for clear error. Id. at 305,

308.

Here, the Government introduced an NCIC report that

indicated a firearm bearing the same serial number as the

firearm which Officer Thorne saw in Gray’s possession was

reported stolen in 1995 in Manchester. After being advised of

the discovery of the firearm, the Manchester Police

Department attempted to locate the original owner, without

success. As a result of its inability to locate the owner of the

firearm, the Manchester Police Department notified Officer

Thorne that “at this point” it no longer considered the firearm

stolen and would now consider the stolen firearm case closed.

App. 117. This mere change in designation by the Manchester

Police Department, however, did not change the fact that the

gun had been reported stolen in 1995 and appeared on the

NCIC list as stolen until recovered in Gray’s possession more

than twenty years later.

Although we have not previously addressed the issue in

a precedential opinion, at least one of our sister circuits has

found that the introduction of a police report regarding the theft

of a firearm is sufficient to meet the Government’s evidentiary

burden with respect to the “stolen” status of a firearm. See

United States v. Sanchez, 507 F.3d 532, 538-39 (7th Cir. 2007).

We agree and therefore conclude that the introduction of the

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reliable NCIC report was sufficient to meet the Government’s

burden with respect to the stolen status of the firearm.

Moreover, Gray presented no evidence to rebut the NCIC

report. See United States v. Napolitan, 762 F.3d 297, 309 (3d

Cir. 2014) (holding that burden shifts to defendant once

Government has made out a prima facie case for a sentencing

enhancement); United States v. Diallo, 710 F.3d 147, 151 (3d

Cir. 2013) (holding the same). Because the NCIC report was

a reliable authority to establish the firearm’s status at the time

Gray possessed it, and Gray produced no evidence to rebut it,

this Court cannot conclude that the District Court committed

clear error in finding that the Government had established by a

preponderance of the evidence that the firearm was stolen.

Thus, the two-level enhancement was appropriate.

Gray’s reliance on the doctrine of legal impossibility is

equally without merit. While acknowledging that this doctrine

has become “disfavored,”2 Gray argues that because the

firearm found in his possession was not stolen, he could not

have possessed a stolen firearm. As set forth above, the

District Court’s conclusion that the firearm was stolen was

legally sound. As such, Gray’s legal impossibility argument

misses the mark.

2

See United States v. Tykarsky, 446 F.3d 458, 468 (3d

Cir. 2006) (recognizing the “disfavored” status of the doctrine

of legal impossibility).

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B. Enhancement for Creating Substantial Risk

of Serious Bodily Injury While Fleeing

Next, Gray challenges the District Court’s two-level

enhancement for creating a substantial risk of serious bodily

injury while fleeing law enforcement. Section 3C1.2 of the

Guidelines provides:

[i]f the defendant recklessly created a substantial

risk of death or serious bodily injury to another

person in the course of fleeing from a law

enforcement officer, increase by 2 levels.

Gray argues that the Government failed to carry its

burden of demonstrating by a preponderance of the evidence

that he was fleeing law enforcement and that he recklessly

created a substantial risk of death or serious bodily injury to

another. Gray’s arguments are without merit.

Initially, Gray contends that the evidence was

insufficient to establish that he was “fleeing” law enforcement.

Specifically, Gray argues that his reaction of running away

from Officer Thorne when the officer approached him from

behind with a raised firearm was merely a reasonable

“reflexive response to move away from this approaching

danger.” Appellant’s Br. at 17. He also contends that the fact

that he only ran as far as the porch of the house next door to his

own home indicates he was not fleeing.

However, the record belies this argument. Immediately

after Officer Thorne identified himself as a police officer, Gray

turned, ran away from the officer, and threw a loaded,

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chambered firearm seventy feet down a sidewalk in a

residential neighborhood. In light of these established facts,

this Court cannot conclude that the District Court’s finding that

Gray fled law enforcement was clear error.

Next, Gray argues that there was insufficient evidence

from which the District Court could conclude that he created a

substantial risk of death or serious bodily injury because: (1) he

tossed the firearm four or five rowhouses down the street, and

(2) Officer Thorne testified that he was “not worried” about the

firearm discharging after it had been thrown. App. 39.

However, the record shows, and Gray does not dispute, that he

threw a loaded firearm down a street in a residential

neighborhood in the vicinity of a police officer and at least one

civilian. This act alone is sufficient to create a substantial risk

of serious bodily injury since the loaded firearm could have

been picked up and fired by one of the people in the vicinity or

discharged when thrown. Officer Thorne’s testimony that he

was “not worried” about the firearm discharging absent

“someone[] squeezing the trigger,” App. 39, does not negate

the danger created by the act of throwing the loaded firearm.

As such, there is no factual or legal basis on which to overturn

the District Court’s conclusion or application of the two-level

enhancement for reckless endangerment during flight.

C. Enhancement for Perjury

In his final challenge, Gray argues that the District

Court erred in applying a two-level enhancement for willfully

obstructing justice by committing perjury during his trial.

Section 3C1.1 of the Guidelines provides:

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[i]f (1) the defendant willfully obstructed or

impeded, or attempted to obstruct or impede, the

administration of justice with respect to the

investigation, prosecution, or sentencing of the

instant offense of conviction, and (2) the

obstructive conduct related to (A) the

defendant’s offense of conviction and any

relevant conduct; or (B) a closely related offense,

increase the offense level by 2 levels.

It is undisputed that this enhancement is triggered where a

defendant provides perjured testimony during the course of his

criminal proceedings.3 Here, the District Court expressly

found that the elements for perjury were satisfied in light of the

jury’s verdict because Gray had repeatedly testified that he did

not possess a stolen firearm. This Court reviews the District

Court’s factual finding of willful obstruction of justice for clear

error. United States v. Powell, 113 F.3d 464, 467 (3d Cir.

1997).

A defendant qualifies for the perjury enhancement when

he gives “false testimony concerning a material matter with the

3

The commentary to this section specifically notes that

the enhancement applies when a defendant is “committing,

suborning, or attempting to suborn perjury, including during

the course of a civil proceeding if such perjury pertains to

conduct that forms the basis of the offense of conviction.”

U.S.S.G. § 3C1.1 cmt. n.4(B); see also United States v.

Dunnigan, 507 U.S. 87, 94-95 (1993) (holding that the

enhancement is triggered by a defendant’s perjury during his

criminal trial).

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willful intent to provide false testimony, rather than as a result

of confusion, mistake, or faulty memory.” United States v.

Dunnigan, 507 U.S. 87, 94 (1993). As this Court previously

held when considering a challenge to this sentencing

enhancement, “a guilty verdict, not set aside, binds the

sentencing court to accept the facts necessarily implicit in the

verdict.” United States v. Boggi, 74 F.3d 470, 478-79 (3d Cir.

1996) (quoting United States v. Weston, 960 F.2d 212, 218 (1st

Cir. 1992)). Though “it is preferable for a district court to

address each element of the alleged perjury in a separate and

clear finding, express separate findings are not required.” Id.

at 479 (internal quotation marks and citation omitted). Here,

the District Court expressly found the existence of each of the

three elements for the perjury enhancement.

First, the District Court correctly found that the

elements of falsity and materiality were implicit in the jury’s

guilty verdict for possession of a firearm. Obviously, the jury

could not have convicted Gray of possession of a firearm

without finding that he had in fact possessed a firearm.

Further, if the jury had believed Gray’s testimony that he did

not possess a firearm, the jury would not have convicted him

of unlawful possession of a firearm. As such, there can be no

question that the relevant findings with respect to the falsity

and materiality of Gray’s testimony were necessarily made by

the jury. Boggi, 74 F.3d at 479 (concluding the defendant’s

trial testimony was false and “necessarily material” because

the jury would not have convicted him if the jury had believed

the testimony); United States v. Fiorelli, 133 F.3d 218, 224

(3d Cir. 1998) (affirming district court’s finding that falsity

was implicit in jury’s verdict and, thus, sufficient to carry

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Government’s burden). Accordingly, the District Court’s

finding that Gray’s testimony was false and material cannot be

disturbed on appeal.

Moreover, based on the record, there was ample support

beyond the jury’s conviction for the District Court’s finding

that Gray provided false testimony regarding his possession of

a firearm. In particular, Officer Thorne testified that he

observed Gray holding a firearm. This testimony, found

credible by the judge, stood in direct contrast with Gray’s

repeated self-serving testimony that he never possessed a

firearm.

The District Court went on to expressly find that Gray’s

false testimony was willfully given. In support of this

willfulness finding, the District Court pointed to the absence of

any evidence that Gray’s false testimony was due to confusion

or mistake and cited three specific examples where Gray

testified clearly but falsely with respect to possessing a firearm.

Due to the clarity of Gray’s repeated false testimony, the

District Court found that Gray willfully gave false testimony.

In light of the District Court’s findings, all of which are amply

supported by the record, this Court will not overturn the

District Court’s application of the sentencing enhancement.

In a final challenge to the perjury enhancement, Gray

attempts to breathe life back into an argument that he, himself,

acknowledges has been rejected by both the Supreme Court

and this Court. Gray suggests that the perjury enhancement

should not be applied to his case because such an enhancement

deters a defendant from exercising his fundamental right to

testify on his own behalf at trial. As correctly noted by Gray,

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this argument has been soundly rejected, and we again reject it

here. See Dunnigan, 507 U.S. at 96 (“Respondent cannot

contend that increasing her sentence because of her perjury

interferes with her right to testify, for we have held on a

number of occasions that a defendant’s right to testify does not

include a right to commit perjury.”); Napolitan, 762 F.3d at

312-13.

IV. CONCLUSION

For the foregoing reasons, we will affirm the District

Court’s judgment.

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