At page 614 Applying statutory construction to guideline provisions25 citing casesIt is a basic rale of statutory construction that one provision should not be interpreted in a way which is internally contradictory or that renders other provisions of the same statute inconsistent or meaningless.” (internal quotation marks and citation omitted)
- United States v. Ruslan Kirilyuk, 29 F.4th 1128 (9th Cir. 2022).published Lastly, we’ve determined that an Application Note can’t render a part of the Guidelines “meaningless.” United States v. Powell, 6 F.3d 611, 614 (9th Cir. 1993).
- In re Billy Joe Johnson, No. EC-13-1094-JuTaKu (B.A.P. 9th Cir. June 6, 2014).unpublished (noting 8 that courts avoid a statutory construction that would render 9 another part of the same statute superfluous)
- Meyers v. Gov't of the Virgin Islands, 48 V.I. 461 (D.V.I. 2006).publishedWhile the unauthorized possession of a firearm “may in and of itself be a victimless crime, the use or, as in this case, the intended use of that firearm may create circumstances where there are specific victims of the offense.” United Sta…
- United States v. Rex K. Degeorge, 380 F.3d 1203 (9th Cir. 2004).published(concluding that the district court must ignore the note and apply the Guideline whenever the two are inconsistent)
- United States v. Floyd Lovell Fish, 368 F.3d 1200 (9th Cir. 2004).publishedIt is a “basic rule of statutory construction that one provision should not be interpreted in a way which ... renders other provisions of the same statute inconsistent or meaningless.” United States. v. Powell, 6 F.3d 611, 614 (9th Cir.199…
- United States v. Leon H., 365 F.3d 750 (9th Cir. 2004).publishedUnited States v. Powell, 6 F.3d 611, 614 (9th Cir.1993); see also Lau Ow Bew v. United States, 144 U.S. 47, 59 , 12 S.Ct. 517 , 36 L.Ed. 340 (1892) (“Nothing is better settled than that statutes should receive a sensible construction, such…
- Ali Padash v. Immigr. & Naturalization Serv., 358 F.3d 1161 (9th Cir. 2004).publishedIn this regard, we must “mak[e] every effort not to interpret [the] provision [at issue] in a manner that renders other pro *1171 visions of the same statute inconsistent, meaningless or superfluous.” Boise Cascade Corp. v. EPA, 942 F.2d 1…
- United States v. Fidel Luna-Madellaga, 315 F.3d 1224 (9th Cir. 2003).published Such analysis is contrary to the directive that “we avoid any statutory interpretation that renders any section superfluous and does not give effect to all of the words used by Congress.” United States v. Powell, 6 F.3d 611, 614 (9th Cir.1…
- Ctr. for Biological Diversity v. Norton, 208 F. Supp. 2d 1044 (N.D. Cal. 2002).publishedPlaintiffs argue that because the non-discretionary 12-month window runs from the day the petition was received, the 90-day finding must be made before it expires because an initial finding must be made before the final determination. 3 In…
- Barrett v. Yearwood, 63 F. Supp. 2d 1245 (E.D. Cal. 1999).publishedIf the word “State” were read to modify both “post-conviction” and “other collateral review,” the latter phrase would have no meaning because, as noted above, “State post-conviction review” means all collateral review of a conviction provi…
Show 13 more citing cases
- United States v. Guillermo Lara-Aceves, 183 F.3d 1007 (9th Cir. 1999).published"It is a basic rule of statutory construction 'that one provision should not be interpreted in a way which is internally contradictory or that renders other provisions of the same statute inconsistent or meaningless.’” United Stales v. Pow…
- United States v. Alberto Mendez-Verdejo, 114 F.3d 1196 (9th Cir. 1997).unpublished(affirming lower court's decision to apply § 3A1.2(b) for assault during or in flight from "victimless" crime of being felon in possession of a firearm)
- United States v. Robinson, 94 F.3d 1325 (9th Cir. 1996).publishedUnited States v. Powell, 6 F.3d 611, 614 (9th Cir.1993).
- 96 Cal. Daily Op. Serv. 6623, 96 Daily Journal D.A.R. 10,838 United States of Am. v. Sandra Patricia Robinson, Aka: Sandra Robinson, United States of Am. v. Warren Giles, 94 F.3d 1325 (9th Cir. 1996).publishedUnited States v. Powell, 6 F.3d 611, 614 (9th Cir.1993).
- United States v. Frank F. Colacurcio, Sr., 84 F.3d 326 (9th Cir. 1996).publishedAs wé have stated before, we cannot construe “one provision ... in a way which is internally contradictory or that renders other provisions of the same statute inconsistent or meaningless.” United States v. Powell, 6 F.3d 611, 614 (9th Cir…
- Diaz v. Schiltgen, 946 F. Supp. 762 (N.D. Cal. 1996).published(statute must not be interpreted to be internally contradictory or in a way that renders, one section meaningless)
- Sierra Club v. Babbitt, 65 F.3d 1502 (9th Cir. 1995).publishedTo overlay section 9 enforcement with section 7 consultation creates a redundancy that is contrary to a basic rule of statutory construction: "one provision should not be interpreted in a way which is internally contradictory or that rende…
- Sierra Club Headwaters, Inc. Forest Conservation Council & Oregon Nat. Resources Council v. Bruce Babbitt, Sec'y, U.S. Dep't of Interior, & Seneca Sawmill Co., an Oregon Corp., Defendant-Intervenor-Appellant. Sierra Club v. Bruce Babbitt, Sierra Club v. Bruce Babbitt, & Seneca Sawmill Co., an Oregon Corp., Defendant-Intervenor-Appellee, 65 F.3d 1502 (9th Cir. 1995).publishedTo overlay section 9 enforcement with section 7 consultation creates a redundancy that is contrary to a basic rule of statutory construction: "one provision should not be interpreted in a way which is internally contradictory or that rende…
- United States v. Ortiz-Granados, 12 F.3d 39 (5th Cir. 1994).published (Note 1 does not preclude application of the official victim enhancement where an official victim is assaulted within the meaning of subsection (b)
- United States v. Victoria L. Ray, 375 F.3d 980 (9th Cir. 2004).published (noting that it is a "basic rule of statutory construction that one provision should not be interpreted in a way which ... renders other provisions of the same statute inconsistent or meaningless" (internal quotation mar…)
- United States v. Lawyer Lee Walker, 149 F.3d 238 (3d Cir. 1998).publishedSee United States v. Powell, 6 F.3d 611, 614 (9th Cir.1993); cf. United States v. Wong, 3 F.3d 667, 670 (3d Cir.1993) (applying doctrine of “expressio un-ms est exclusio alterius”).
- United States v. Walker, No. 97-7368 (3d Cir. July 24, 1998).See United States v. Powell, 6 F.3d 611, 614 (9th Cir. 1993); cf. United States v. Wong, 3 F.3d 667, 670 (3d Cir. 1993) (applying doctrine of "expressio unius est exclusio alterius").
- Zazzali v. United States (In RE DBSI, Inc.), 869 F.3d 1004 (9th Cir. 2017).published(It is a basic rale of statutory construction that one provision should not be interpreted in a way which is internally contradictory or that renders other provisions of the same statute inconsistent or meaningless.” (i…)
At page 613 Limiting guideline enhancement based on victim status8 citing casescourts must ignore commentary to U.S.S.G. § 3A1.2 in situations where the underlying crime is felon in possession of a firearm, because in such circumstances the commentary and guideline are inconsistent
- United States v. Blackwell, 323 F.3d 1256 (10th Cir. 2003).published See, e.g., United States v. Goolsby, 209 F.3d 1079, 1081-82 (8th Cir.2000) (holding where offenses of conviction were conspiracy to distribute cocaine base and possession with intent to distribute, defendant’s assault of officer during esc…
- United States v. Maldonado-Quijada, 34 F. App'x 285 (9th Cir. 2002).unpublishedHowever, there is no legally significant distinction between “subsequent” versus “course of’ the offense, because the Guidelines only require the assaultive conduct to occur “proximate in time to the commission of the offense.” U.S.S.G. §…
- United States v. James Scott Daly, 116 F.3d 1487 (9th Cir. 1997).unpublishedIn addition, Daly's contention that the district court erred by adjusting his offense level upward pursuant to U.S.S.G. § 3A1.2 for attempting to murder an official victim is foreclosed by United States v. Powell, 6 F.3d 611, 613-14 (9th C…
- United States v. Oscar Anderson, Jr., 82 F.3d 436 (D.C. Cir. 1996).published (courts must ignore commentary to U.S.S.G. § 3A1.2 in situations where the underlying crime is felon in possession of a firearm, because in such circumstances the commentary and guideline are inconsistent)
- United States v. Ortiz-Granados, 12 F.3d 39 (5th Cir. 1994).published See United States v. Fleming, 8 F.3d 1264 (8th Cir.1993) (affirming § 3A1.2(b) enhancement even though defendant argued that his offense— being a felon in possession of a firearm — "ha[d] no official victim since the ‘victim’ [was] society…
- State v. McConnell, 2019-Ohio-3736.published(being a felon in possession of a firearm is a ‘victimless crime’)
- United States v. Rising Sun, 522 F.3d 989 (9th Cir. 2008).published See United States v. Powell, 6 F.3d 611, 613 (9th Cir. 1993) (citation omitted).
At page 612 Applying victim enhancement to felon in possession offense2 citing cases“Because we conclude that the district court correctly applied the official victim enhancement, we affirm.”
- United States v. Jose Manuel Pinto, United States of Am. v. Edgar Florez, 48 F.3d 384 (9th Cir. 1995).publishedUnited States v. Powell, 6 F.3d 611, 612 (9th Cir. 1993).
- United States v. Ronald J. Klump, 21 F.3d 1117 (9th Cir. 1994).unpublished We review de novo the district court's legal interpretation of the Sentencing Guidelines, United States v. Powell, 6 F.3d 611, 612 (9th Cir.1993), and for clear error its factual findings, id 2 Klump also argues that Application Note 3 to…
v.
John Robert POWELL, Defendant-Appellant
I
OVERVIEW
John Robert Powell (Powell) appeals the sentence imposed as a result of his guilty[*612] plea to being a felon in possession of a firearm in violation of 18 U.S.C. § 922(g). He contends that the district court erred in applying the official victim enhancement which added three points to his base offense level. Because we conclude that the district court correctly applied the official victim enhancement, we affirm.
II
FACTS AND PROCEDURAL HISTORY
On July 24, 1991, Officer DePretto (De-Pretto), a Washington State Patrol officer, and his partner were investigating a lead on a stolen vehicle. When they pulled into a driveway behind a green station wagon, De-Pretto identified himself as a police officer to the driver, Powell, and his passenger. Because Powell was extremely nervous and evasive, and because DePretto felt Powell may have wanted to talk to him about the stolen vehicle, DePretto asked Powell to step out of the car. It was beginning to rain so DePret-to suggested that Powell bring his coat. Powell “scooped up” his coat. As DePretto approached Powell, he saw that Powell had a handgun in his right hand. Officer DePretto then screamed, “Gun!” and attacked Powell in an effort to separate Powell from the weapon.
Powell was indicted on March 11, 1992, for being a felon in possession of a firearm in violation of 18 U.S.C. §§ 922(g) and 924(a)(2) (Count I), and for using or carrying a firearm in relation to a drug trafficking crime in violation of 18 U.S.C. § 924(c) (Count II). Powell pled guilty to being a felon in possession of a firearm and Count II was dismissed.
At sentencing, Powell’s explanation of the incident was that he had forgotten the gun was in the coat when he' got out of the car, and that he had not intended to shoot De-Pretto. Officer DePretto testified that just before he disarmed Powell, Powell was attempting to bring the gun to bear on DePret-to. The district court found that Officer DePretto was the more credible witness and accepted his version of the events. The district court judge concluded that Powell had “assaulted” Officer DePretto because he had created a substantial risk of serious bodily injury. Accordingly, he increased Powell’s base offense level pursuant to U.S.S.G. § 3A1.2(b), which provides for a three-level enhancement when a law enforcement officer is assaulted during the course of another offense. Powell was sentenced to thirty-seven months imprisonment. He appeals, contending that Application Note 1 of the Guideline precludes this adjustment.
Ill
DISCUSSION
We review de novo the district court’s legal interpretation of the Sentencing Guidelines and accept its factual findings unless they are clearly erroneous. United States v. Sanchez, 914 F.2d 1355, 1361 (9th Cir.1990), cert. denied, 499 U.S. 978, 111 S.Ct. 1626, 113 L.Ed.2d 723 (1991). We “give due regard to the opportunity of the district court to judge the credibility of the witnesses ... [and] due deference to the district court’s application of the guidelines to the facts.” Id. (internal quotation omitted).
We must determine whether the three-level official victim enhancement properly applies where the crime of being a felon in possession of a firearm is “victimless.” We conclude that it does.
Section 3A1.2 of the Sentencing Guidelines provides:
If—
(a) the victim was a law enforcement or corrections officer; a former law enforcement or corrections officer; an officer or employee included in 18 U.S.C. § 1114; a former officer or employee included in 18 U.S.C. § 1114; or a member of the immediate family of any of the above, and the offense of conviction was motivated by such status; or
(b) during the course of the offense or immediate flight therefrom, the defendant or a person for whose conduct the defendant is otherwise accountable, knowing or having reasonable cause to believe that a person was a law enforcement or corrections officer, assaulted such officer in a manner creating a substantial risk of serious bodily injury,[*613] increase by 3 levels. [1]
Subdivision (a) is clearly inapplicable in this case because the “offense of conviction,” felon in possession of a firearm, was not motivated by the official status of the law enforcement officer. See U.S.S.G. § 3A1.2(a); see, e.g., United States v. Morrow, 925 F.2d 779, 782 (4th Cir.1991). Thus, the only issue is whether the enhancement was properly applied in accordance with subsection (b).
Application Notes 1 and 5 are relevant to this determination. Note 1 limits application of the enhancement: “This guideline applies when specified individuals are victims of the offense. This guideline does not apply when the only victim is an organization, agency, or the government.” U.S.S.G. § 3A1.2, comment. (n.l) (Nov. 1990) (emphasis added). Application Note 5 interprets subdivision (b) as follows:
Subdivision (b) applies in circumstances tantamount to aggravated assault against a law enforcement or corrections officer, committed in the course of, or in immediate flight following, another offense, such as bank robbery. While this subdivision may apply in connection with a variety of offenses that are not by nature targeted against official victims, its applicability is limited to assaultive conduct against law enforcement or corrections officers that is sufficiently serious to create at least a “substantial risk of serious bodily injury” and that is proximate in time to the commission of the offense.
Id., § 3A1.2, comment, (n.5) (emphasis added). Powell contends that Note 1 precludes application of the enhancement because being a felon in possession of a firearm is a victimless crime. We disagree.
It is true that we have held that being a felon in possession of a firearm is a “victimless crime” because “[sjection 922(g) protects society against those determined unqualified to possess firearms.” United States v. Barron-Rivera, 922 F.2d 549, 555 (9th Cir.1991) (emphasis added); see also Morrow, 925 F.2d at 782 (if there is a victim of felony possession, it is society). However, when interpreting the Guidelines, we must apply the Commentary unless it is inconsistent with the Guideline: “commentary ... that interprets or explains a guideline is authoritative unless it violates the Constitution or a federal statute, or is inconsistent with, or a plainly erroneous reading of, that guideline.” Stinson v. United States, — U.S. -, 113 S.Ct. 1913, 1915,123 L.Ed.2d 598 (1993). In the present case, there is an inconsistency between Note 1 and subsection (b). On the face of the Guideline, subsection (b) clearly applies because Powell assaulted a law enforcement officer “during the course of’ the felon in possession offense. [2] Note 1 by its terms would preclude the subsection (b) enhancement because the individuals specified in subsection (a) were not the victims of the offense of conviction.
This inconsistency can perhaps be explained by examining the history of the official victim adjustment. As originally promulgated, Guideline § 3A1.2 included only a truncated version of what is now subsection (a):
[I]f the victim was any law-enforcement or corrections officer, any other official as defined in 18 U.S.C. § 1114, or a member of the immediate family thereof, and the crime was motivated by such status, increase by 3 levels.
In 1988, the Guideline was amended and subsection (b) added. The Sentencing Commission did not alter Note 1; however, it added Note 5 to interpret subsection (b). Reading the Guideline in conjunction with the Commentary, it appears that the Commission intended that Note 1 would apply only to subdivision (a), as was the situation in the original version. Unfortunately, the Commission did not amend Note 1 when it amended the Guideline.
[*614] In any instance where the offense of conviction is a victimless crime, Note 1 would render subdivision (b) of the Guideline meaningless, even though it would otherwise apply. We apply the rules of statutory construction to the Guidelines. See, e.g., United States v. Helmy, 951 F.2d 988, 996 (9th Cir.), cert. denied, — U.S. -, 112 S.Ct. 2287, 119 L.Ed.2d 211 (1992); United States v. Lopez-Cavasos, 915 F.2d 474, 478-79 (9th Cir.1990); United States v. Behnezhad, 907 F.2d 896, 898 (9th Cir.1990). It is a basic rule of statutory construction “that one provision should not be interpreted in a way which is internally contradictory or that renders other provisions of the same statute inconsistent or meaningless.” Hughes Air Corp. v. Public Util. Comm’n, 644 F.2d 1334, 1338 (9th Cir.1981). Moreover, “[w]e avoid any statutory interpretation that renders any section superfluous and does not give effect to all of the words used by Congress.” Central Mont. Elec. Power Co-op., Inc. v. Administrator, Bonneville Power Admin., 840 F.2d 1472, 1478 (9th Cir.1988). These same principles apply here. Preclusion of the enhancement because the offense of conviction was a victimless crime would render subsection (b) meaningless in cases such as this one where an officer is assaulted during the course of the “victimless” crime.
Although being a felon in possession of a firearm may in and of itself be a victimless crime, the use or, as in this case, the intended use of that firearm may create circumstances where there are specific victims of the offense. Subsection (b) covers just this kind of case where during the course of that offense, an official is a victim.
Therefore, we conclude that because Note 1 and subsection (b) are inconsistent, Note 1 does not preclude application of the official victim enhancement where an official victim is assaulted within the meaning of subsection (b). In those instances, the sentencing court must ignore Note 1 and apply § 3A1.2(b). This is precisely what the district court did here.
AFFIRMED.
. Subsection (a) was amended effective November, 1992. The amendment does not bear on the issue presented in this appeal.
. The district court did not clearly err in finding that Powell “assaulted” Officer DePretto. It found Officer DePretto’s testimony credible and the record supports its finding that Powell's conduct created "at least a 'substantial risk of serious bodily injury.'” U.S.S.G. § 3A1.2, comment. (n.5).