The opinion
[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FILED
FOR THE ELEVENTH CIRCUIT U.S. COURT OF APPEALS
________________________ ELEVENTH CIRCUIT
MAY 3, 2006
No. 05-15709 THOMAS K. KAHN
Non-Argument Calendar CLERK
________________________
D. C. Docket No. 04-00195-CR-4
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
BRANDON DASS,
Defendant-Appellant.
________________________
Appeal from the United States District Court
for the Southern District of Georgia
_________________________
(May 3, 2006)
Before BIRCH, CARNES and PRYOR, Circuit Judges.
PER CURIAM:
Brandon Dass appeals his sentence of 72 months of imprisonment and three
years supervised release following his guilty plea to possession of machine guns, in
violation of 18 U.S.C. § 922(o)(1). He argues (1) that the district court clearly
erred in enhancing his offense level pursuant to U.S.S.G. § 2K2.1(b)(1)(B) and
(b)(4) (2004) based on its finding that he possessed nine qualifying firearms; and
(2) that his sentence, which exceeds the advisory Guidelines range by 15 months,
is unreasonable based on the evidence in the record. Finding no reversible error,
we AFFIRM.
I. BACKGROUND
Twenty-year old Dass and his father were arrested at Fort Stewart, Georgia,
where they were observed on a restricted artillery range. Three firearms,
including a Century Arms rifle and RG Industries revolver, and assorted
ammunition were discovered in the back of a truck owned by Dass’s father. In
addition, authorities found a video camera in the truck that contained a tape of
Dass’s father firing a handgun in numerous restricted areas at Fort Stewart.
After their arrest, an explosion occurred near the residence that they shared.
A truck driver for the Savannah Sanitation Department was emptying a
commercial dumpster when a large quantity of military explosives detonated. The
driver sustained minor injuries when he jumped from the vehicle. The sanitation
truck, the dumpster, and nearby structures were damaged. Other explosives that
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did not detonate were also found in the dumpster. According to a special agent
with the Bureau of Alcohol, Tobacco and Firearms (“ATF”) and the range manager
at Fort Stewart, the explosives found in the dumpster were commonly fired at the
restricted training area where Dass and his father were arrested.
After the explosion, ATF agents obtained a search warrant for Dass’s
residence. They found 18 firearms and 10 types of ammunition in the house. All
of the firearms, including a Colt rifle and North Industries rifle, were found in the
attic, with the exception of two that were recovered from Dass’s bedroom. The
explosives seized from the residence were consistent with the explosives seized
from the scene of the dumpster. ATF agents later found a high explosive, anti-tank
rocket in the crawl space under the house that was accessible from Dass’s
bedroom. In addition, in Dass’s bedroom, they found hand-drawn pictures of
weapons and instructions detailing how to convert firearms from semiautomatic to
full automatic. ATF agents also found a 30mm HEDP M789 round in a box in the
garage. The explosives found in their home were commonly used on the Fort
Stewart artillery range.
Authorities interviewed Dass’s mother and a classmate. His mother relayed
concerns over Dass’s mental health and his close relationship with his father.
Dass’s former classmate and friend reported that Dass converted a semiautomatic
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assault rifle into a fully automatic rifle and made parts for firearms. The classmate
also stated that Dass reported that he and his father had begun to collect
ammunition, casings, and hand grenade parts from Fort Stewart.
Brandon Dass later pled guilty to possession of a machine gun, in violation
of 18 U.S.C. § 922(o)(1). When Dass was interviewed by a probation officer, he
admitted that he and his father possessed firearms in the attic of their house and
that some of the weapons were assault weapons. He also acknowledged that he
knew that the firearms should be registered. He stated that most of the firearms
were purchased from flea markets and garage sales and admitted that he purchased
an 84mm rocket, anti-personnel rounds, and grenades. In addition, he admitted
that he placed explosives in the dumpster. Dass’s father, age 49, is disabled and is
currently incarcerated. Until his arrest, Dass lived with his father from 1993.
The Probation Office prepared a Pre-Sentence Investigation Report (“PSI”)
and set Dass’s base offense level at 18, pursuant to U.S.S.G. § 2K2.1, which calls
for a base offense level of 18 if the offense involved firearms described in 26
U.S.C. § 5845(a) or 18 U.S.C. § 921(a)(30). The Probation Office then increased
the offense level four levels because the offense involved nine qualifying weapons,
which included four illegal explosives, pursuant to U.S.S.G. § 2K2.1(b)(1)(B);
two levels because the offense involved destructive devices, pursuant to U.S.S.G.
4
§ 2K2.1(b)(3)(B), and two levels because the offense involved a firearm with an
obliterated serial number, pursuant to U.S.S.G. § 2K2.1(b)(4). Dass was granted a
three-level reduction for his acceptance of responsibility pursuant to U.S.S.G.
§ 3E1.1(a)-(b). The Probation Office also noted that an aggravating circumstance
(the explosives placed in the dumpster) might warrant an upward departure
pursuant to U.S.S.G. § 5K2.6.1 With a total offense level of 23 and a criminal
history category of I, the Probation Office calculated Dass’s advisory Guidelines
range to be 46 to 57 months of imprisonment and two to three years of supervised
release.
After receiving the PSI, Dass filed a motion to withdraw his guilty plea,
which the court denied. In Dass’s objections to the PSI, he objected to being held
responsible for five of the qualifying weapons, which included an illegal explosive,
for the purpose of increasing his offense level pursuant to U.S.S.G.
§ 2K2.1(b)(1)(B) and (b)(4).2 Specifically, Dass argued that he did not possess the
following: (1) Century Arms, Incorporated, Model C15 Sporter, .223 caliber rifle;
(2) RG Industries, Model RG23, .22 LR caliber revolver with obliterated serial
1
According to U.S.S.G. § 5K2.6, “If a weapon or dangerous instrumentality was used or
possessed in the commission of the offense the court may increase the sentence above the authorized
guideline range.”
2
Dass made other objections to the PSI that are not relevant to this appeal and were not raised
in his brief.
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number; (3) Colt, Model Match Target, .223 caliber semiautomatic rifle; (4) North
China Industries, Model MAK-90 short-barrel semiautomatic rifle; and (5) 30mm
HEDP M789 anti-material and anti-personnel round. Dass also objected to the
PSI’s suggestion that an upward departure pursuant to U.S.S.G. § 5K2.6 might be
warranted.
At his sentencing hearing, Dass renewed his objections. The district court
overruled Dass’s objections and found that Dass had constructive and joint
possession of the above-referenced firearms and the 30mm HEDP M789 round.
Before imposing a sentence, the district court heard victim impact statements from
the garbage truck driver, who was injured in the explosion, and the vehicle
maintenance director for the city of Savannah. The garbage truck driver testified
that he sought counseling and experienced nightmares after the explosion. The
vehicle maintenance director testified that the damage to the garbage truck from
the explosion totaled $58,000. At the conclusion of the sentencing hearing, Dass’s
attorney asked the court to consider Dass’s devotion to his father and his father’s
negative influence over him. Dass also addressed the court, admitted that he had
made a mistake, and stated that he did not pursue his education because he had to
care for his father.
The district court sentenced Dass to 72 months of imprisonment and three
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years of supervised release. The court explained it sentenced Dass above the
Guidelines range because it perceived that Dass would likely reoffend since “[a]
sense of value and a sense of duty to others has not been instilled.” R4 at 47. The
court noted that placing explosives in a public dumpster was a calculated act done
without regard for the consequences, which resulted in harm to the truck driver and
the city of Savannah. While the court acknowledged that the advisory Guidelines
are an important consideration in every case, it found that Dass’s case warranted a
higher sentence. The court did not address the PSI’s upward departure suggestion
pursuant to U.S.S.G. § 5K2.6. At the conclusion of the sentencing hearing, Dass
renewed his previous objections.
II. DISCUSSION
A. Standard of Review
The district court is obligated to consult and correctly calculate the
Guidelines even though United States v. Booker, 543 U.S. 220, 125 S. Ct. 738
(2005), rendered the Guidelines advisory. United States v. Crawford, 407 F.3d
1174, 1178 (11th Cir. 2005). Booker does not alter our previously established
standards of review of the district court’s implementation of the Guidelines.
United States v. Ellis, 419 F.3d 1189, 1192 (11th Cir. 2005). We review a
sentencing court’s factual findings for clear error and review de novo that court’s
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application of the sentencing Guidelines to the facts. United States v. Jackson, 276
F.3d 1231, 1233 (11th Cir. 2001). “When a defendant objects to a factual finding
that is to be used as a basis for sentencing, the government bears the burden to
establish the disputed fact by a preponderance of the evidence.” United States v.
Agis-Meza, 99 F.3d 1052, 1055 (11th Cir. 1996).
B. Possession of Firearms and Explosive
Dass argues that there was insufficient evidence to prove that five of the
illegal firearms were in his possession and that the district court thereby erred in
applying the enhancements under U.S.S.G. § 2K2.1(b)(1)(B) and (b)(4). First, he
contends that he did not possess the two eligible firearms found in his father’s
truck, which included the revolver with the obliterated serial number, because he
was merely a passenger. Second, he contends that he did not possess the two other
illegal firearms found in the attic of his residence because he did not occupy that
room. Third, he argues that there is no evidence that he possessed the 30mm
HEDP M789 round, an illegal explosive device, found in the garage of his
residence.
The Guidelines provide for a four-level increase if the offense involved
between 8 and 24 qualifying firearms. U.S.S.G. § 2K2.1(b)(1)(B). For purposes
of calculating the number of firearms in this section, the court can only count those
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firearms that were “unlawfully sought to be obtained, unlawfully possessed, or
unlawfully distributed.” Id. § 2K2.1(b)(1)(B) cmt. n.6. The Guidelines also
provide for a two-level increase if the firearm was stolen or had an obliterated
serial number. Id. § 2K2.1(b)(4).
“Possession may be actual or constructive, joint or sole.” United States v.
Gunn, 369 F.3d 1229, 1234 (11th Cir.) (per curiam) (considering sufficiency of the
evidence regarding an 18 U.S.C. § 924(c) conviction), cert. denied sub nom., 543
U.S. 937, 125 S. Ct. 324 (2004). For actual possession, the defendant must have
“physical possession of or personal dominion over the thing allegedly possessed.”
United States v. Leonard, 138 F.3d 906, 909 (11th Cir. 1998). For constructive
possession, the defendant must have “ownership, dominion, or control over an
object itself or dominion or control over the premises or vehicle in which the
object is concealed.” Id.
Dass primarily relies on Leonard and United States v. Pedro, 999 F.2d 497
(11th Cir. 1993), to support his argument that he did not have actual or
constructive possession of the disputed firearms and destructive device. In
Leonard, the defendant at issue was a passenger in the backseat of a station wagon.
138 F.3d at 909. After the police searched the vehicle, they discovered cocaine
and a firearm hidden in the tailgate. We reversed that defendant’s conviction
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because “[t]he record only show[ed] that [the defendant] was a passenger in the
back seat of the station wagon when it was stopped” and therefore “there [was] no
evidence to indicate that [the defendant] ever had ownership, dominion or control
over the cocaine, the gun, or the vehicle in which they were concealed.” Id.
In Pedro, two defendants were arrested in connection with a burglary of an
apartment. 999 F.2d at 498. When they were arrested outside the apartment, one
of the defendants had a suitcase which contained a firearm that was stolen during
the burglary. Id. at 498-99. The other defendant was subsequently convicted of
possession of a firearm by a convicted felon based on the firearm in the suitcase.
We reversed the latter’s conviction because “the record [was] devoid of any
evidence of [the defendant’s] knowledge of the firearm.” Id. at 502. We reasoned
that even “[a]ccepting the Government’s argument that [the two defendants] were
engaged in joint burglary, it would be highly unlikely that both of the men would
scour each room side-by-side, aware of what the other was picking up.” Id.
Whether Dass possessed these firearms is a factual finding that we review
for clear error. See Jackson, 276 F.3d at 1233. Here, there is no clear error.
Dass’s reliance on Leonard and Pedro is misplaced because there is sufficient
evidence that, although Dass did not own the vehicle and residence where the
disputed firearms were seized, he had knowledge of the firearms and exercised
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control over those areas. See Leonard, 138 F.3d at 909. Specifically, Dass
admitted to the probation officer that he and his disabled father possessed various
firearms in the attic of their residence. He also admitted that he placed explosives
in the dumpster, which were similar to the 30mm round found in the garage. These
admissions, coupled with the fact that both he and his father were avid gun
collectors, are sufficient evidence that Dass exercised control over all the firearms
in the house. See United States v. Harris, 20 F.3d 445, 454 (11th Cir. 1994)
(concluding that defendant’s “unrestricted access to the home” allowed the jury to
infer that “he exercised control over the house and therefore maintained
constructive possession of the [illegal item] found at the house”). Rather than
being a “mere passenger” in his father’s truck, the record also supports that Dass
and his father frequented Fort Stewart in the truck to scavenge ordnance and to fire
weapons. Therefore, in light of the undisputed illegal firearms that were found in
his room, the accessibility of the disputed firearms in the residence and truck,
Dass’s close relationship with his father, the history of their firearm collecting and
joint activities in Fort Stewart, and his admissions that he owned firearms in the
attic and disposed of similar explosives in the dumpster, the district court did not
commit clear error when it determined that Dass had at least constructive
possession of the disputed weapons and enhanced Dass’s offense level pursuant to
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U.S.S.G. § 2K2.1(b)(1)(B) and (b)(4).
B. Sentence Exceeding the Advisory Guidelines Range
Dass also argues that his 72-month sentence, which exceeds the advisory
Guidelines by 15 months, is unreasonable because (1) there is nothing to support
the district court’s finding that he will likely commit more crimes and (2) he has no
prior criminal history.
The district court must correctly calculate the sentencing range prescribed by
the Sentencing Guidelines. Crawford, 407 F.3d at 1178-79. Once the district court
has accurately calculated the Guidelines range, it “may impose a more severe or
more lenient sentence” that we review for reasonableness. Id. at 1179. In crafting
a reasonable sentence, the district court must consider the following:
(1) the nature and circumstances of the offense and the history and
characteristics of the defendant; (2) the need to reflect the seriousness
of the offense, to promote respect for the law, and to provide just
punishment for the offense; (3) the need for deterrence; (4) the need to
protect the public; (5) the need to provide the defendant with needed
educational or vocational training or medical care; (6) the kinds of
sentences available; (7) the Sentencing Guidelines range; (8) pertinent
policy statements of the Sentencing Commission; (9) the need to
avoid unwanted sentencing disparities; and (10) the need to provide
restitution to victims.
United States v. Talley, 431 F.3d 784, 786 (11th Cir. 2005) (holding that the
district court’s imposition of a sentence and this Court’s reasonableness inquiry are
guided by the factors outlined in 18 U.S.C. § 3553(a)); see also 18 U.S.C.
12
§ 3553(a). A district court need not explain every § 3553(a) factor before
announcing its sentence. Talley, 431 F.3d at 786. “[A]n acknowledgment by the
district court that it has considered the defendant’s arguments and the factors in
section 3553(a) is sufficient under Booker.” Id.
Here, the record reveals that the district court adequately and properly
considered the § 3553(a) sentencing factors, including the nature and
circumstances of the offense, the need for the sentence imposed to reflect the
seriousness of the offense, the need to protect the public, and the history and
characteristics of the defendant. Further, the court correctly noted that while the
advisory Guidelines are an important consideration, they did not address all of the
court’s concerns, including the grave risk to which Dass exposed the public by
disposing of explosives in a commercial dumpster. Notwithstanding Dass’s lack of
a prior criminal history, we agree with the district court’s observation that there
were “serious and peculiarly dangerous events that occurred here.” R4 at 47.
III. CONCLUSION
Because of the evidence of Dass’s control over areas where the disputed
firearms were seized, we conclude that the district court did not err in increasing
Dass’s offense level under the advisory Guidelines pursuant to U.S.S.G. §
2K2.1(b)(1)(B) and (b)(4). We also conclude that Dass’s sentence, which exceeds
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the sentencing range of the advisory Guidelines, is reasonable. AFFIRMED.
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