United States of America v. Kyle Irvin

PRECEDENTIAL
IN THE UNITED STATES COURT OF
APPEALS
FOR THE THIRD CIRCUIT
______________
No. 03-1862
_______________
UNITED STATES OF AMERICA
v.
KYLE IRVIN,
Appellant
_____________________________
On Appeal from the United States
District Court
for the Eastern District of Pennsylvania
Criminal No. 99-cr-00566
District Judge: Honorable Stewart
Dalzell
______________________________
Argued March 26, 2004
Before: AMBRO, CHERTOFF and
BECKER, Circuit Judges
(Filed May 25, 2004 )
MAUREEN KEARNEY ROWLEY
Chief Federal Defender
DAVID L. MCCOLGIN
Assistant Federal Defender
Supervising Appellate Attorney
DINA CHAVAR (Argued)
Research & Writing Specialist
Federal Court Division
Defender Association of Philadelphia
Suite 540 West - Curtis Center
Independence Square West
Philadelphia, PA 19106
Attorneys for Appellant
PATRICK L. MEEHAN
United States Attorney
LAURIE MAGID
Deputy United States Attorney
For Policy and Appeals
ROBER A. ZAUZMER
Assistant United States Attorney
Senior Appellate Counsel
FRANK R. COSTELLO, JR. (Argued)
Assistant United States Attorney
615 Chestnut Street
Suite 1250
Philadelphia, PA 19106
Attorneys for Appellee
________________________
OPINION OF THE COURT
________________________
BECKER, Circuit Judge.
This is an appeal by Kyle Irvin from
a judgment in a criminal case entered
pursuant to a plea of guilty to two counts
of being a previously convicted felon in
possession of a firearm in violation of 18
U.S.C. § 922(g). Irvin was sentenced to
seventy-two months in prison. The appeal,
which presents three sentencing issues,
arises out of the tragic accidental shooting

-- 1 of 10 --

2
of Irvin’s three-year-old son, Daequan, on
June 9, 1998, at the home of Irvin’s
mother, Dollie Irvin, where Irvin and
Daequan were living. While playing,
Daequan found a .40 caliber Smith &
Wesson pistol that Irvin kept in their room,
and accidentally shot himself with it.
Daequan died four days later in the
hospital. Police recovered the gun that
Daequan accidentally fired after Irvin told
them where it could be found.
Irvin was prosecuted by the
Commonwealth of Pennsylvania for
endangering the welfare of children and
involuntary manslaughter, and by the
federal government on the felon-in-
possession charge. He entered guilty pleas
in both cases. The issues on appeal pertain
to sentencing determinations made by the
District Court regarding the number of
weapons Irvin had in his possession
(which bears on his Sentencing Guidelines
range); whether he accepted responsibility;
and whether inclusion of the state offenses
in his criminal history calculation was
plain error. We reject Irvin’s first two
assignments of error, but conclude that the
District Court plainly erred in including
the state offenses in the criminal history
calculation. We will therefore vacate the
judgment of the District Court and remand
for resentencing.1
I.
The District Court enhanced Irvin’s
offense level un der U.S .S.G . §
2K2.1(b)(1)(B) for possessing eight
firearms, and, because Irvin denied
possession of those firearms, refused to
grant a reduction under U.S.S.G. § 3E1.1
for acceptance of responsibility. Irvin
contends that this was error in view of the
lack of direct proof that he exercised
dominion and control over all of the
firearms. In our view, however, neither
the District Court’s finding that Irvin
constructively possessed the other six guns
charged in count II, nor its finding that
Irvin was not entitled to an adjustment for
acceptance of responsibility, was clearly
erroneous.2
A.
On the day of the shooting Irvin
advised the first officer on the scene that
his son found his gun and accidentally
fired it, that he did not have a license for
the gun, and that he had thrown the gun
out the back bedroom window. He was
1The judgment of the District Court
was originally entered on June 12, 2000,
but on M arch 19, 2003, the District Court
denied Irvin’s motion under 28 U.S.C. §
2255 for resentencing. Irvin’s notice of
appeal on March 26, 2003, was therefore
timely, and we have jurisdiction under 28
U.S.C. § 1291 and 18 U.S.C. § 3742(a).
2We exercise plenary review over a
district court’s legal interpretation of the
Sentencing Guidelines, but our review of
the factual findings supporting a district
court’s application of the Guidelines is
only for clear error. See United States v.
Fenton, 309 F.3d 825, 827 n.2 (3d Cir.
2002) (citing United States v. Butch, 256
F.3d 171 (3d Cir. 2001)).

-- 2 of 10 --

3
arrested and taken into custody. Later that
same day at the station house, Irvin told
officers that, in fact, the gun could be
found in the back bedroom underneath the
mattress with some other guns. When a
search of M rs. Irvin’s home was conducted
pursuant to a warrant, six guns were
recovered from her house in addition to the
.40 caliber Smith & Wesson pistol. Just as
he had told the police, Irvin’s pistol was
found in the upstairs back bedroom
underneath the mattress. Two other guns
were also under the mattress, and two
more were under the bed. A sixth gun was
found in the closet of that same bedroom.
A seventh gun was found in the living
room of the home.
There was in fact no direct evidence
(e.g., fingerprints, purchase receipts) that
Irvin had dominion and control over the
other guns—five of which were found in
the back bedroom, which was where
Irvin’s cousin Lucius Joe resided, and one
of which was found in the common area
living room. Irvin testified that he kept the
gun his son used in the middle bedroom
where they slept; that after the tragedy he
“instinctively” hid the gun used by his son
under the mattress in the back bedroom;
that he did not know the other two guns
were under the mattress until he saw them
while hiding the gun; that he was unaware
of the presence of any of the other four
weapons found in the house (one of which
was found in the open in the living room);
that Lucius Joe had previously showed him
three of the guns that were found in the
back bedroom on June 9, 1998; and that
the six other guns found on June 9, 1998
were not his.
The District Court discredited
Irvin’s tes ti m ony concerning his
knowledge, possession, and ownership of
the other six firearms and set forth the
reasons for its findings. The Court
concentrated on (1) Irvin’s initial lie to the
police (he told them that he had thrown the
gun out the window); (2) the fact that
rather than get medical help for his son,
Irvin first hid the gun and spent shell,
because he knew he could not legally have
possession of a gun; and (3) its conclusion
that Irvin’s testimony that it was his
“instinct” to put the gun in the back
bedroom and that “I don’t know why I had
a gun” was unworthy of belief. The Court
ultimately determined that Irvin possessed
a total of eight firearms.3 It then
concluded that Irvin was not entitled to a
reduction in his offense level for
acceptance of responsibility because he
had offered false testimony, stating that “a
defendant who has . . . presented
absolutely fantastic testimony . . . is not
one who has shown acceptance of
responsibility.”
B.
The government had the burden to
prove, by a preponderance of the evidence,
3The foregoing catalog only lists seven
firearms. The eighth was recovered by
police following a separate incident
almost a year before in a consent search
of Irvin’s residence at the time. This
incident was charged in a separate count
of the indictment.

-- 3 of 10 --

4
see United States v. Evans, 155 F.3d 245,
253 (3d Cir. 1998), that Irvin knew of the
guns’ presence and had control or the
power and intention to exercise control
over them, see United States v. Iafelice,
978 F.2d 92, 96 (3d Cir. 1992). Some of
our cases involving possession of
controlled substances have held that mere
evidence of presence in a house where
drugs were found, proximity to the drugs
(and knowledge that they were there), and
association with other residents are not
enough to establish dominion and control.
See United States v. Jenkins, 90 F.3d 814
(3d Cir. 1996); United States v. Brown, 3
F.3d 673 (3d Cir. 1993).
In this case, however, there was
more: Irvin hid the gun his son had used
right next to two other handguns, in the
same room that a shotgun and two other
rifles were discovered. Further, he initially
lied to the police about the location of the
gun his son had used, saying that he had
thrown it out the window. Additionally,
Irvin had a prior firearms possession, as
reflected by the predicate conviction for
the felon-in-possession charge—a 1995
state conviction for carrying a firearm in a
public place and carrying firearms without
a license. See United States v. Jernigan,
341 F.3d 1273, 1281-82 (11th Cir. 2003)
(prior convictions involving knowledge of
presence of gun); United States v. Cassell,
292 F.3d 788, 793 (D.C. Cir. 2002);
United States v. Moorehead, 57 F.3d 875,
878 (9th Cir. 1995). With respect to the
gun found in the living room, it was out in
the open, and found in the very box that
the gun Irvin admittedly possessed had
originally been purchased in. While the
question is quite close, at least with respect
to the gun found in the closet in Lucius
Joe’s bedroom, which there is no evidence
Irvin ever saw, we think that this evidence
was sufficient so that the District Court’s
findings were not clearly erroneous.4
We also find no merit in Irvin’s
contention that the District Court
improperly shifted the burden of proof by
requiring him to disprove that he
possessed the six firearms at issue and
failed to make the “required findings”
concerning the issue of possession. This
simply did not happen. We defer to the
District Court’s discrediting of Irvin’s
denial of possession of the disputed six
guns, and its concomitant denial of the
a d j u s t m e n t f o r a c c e p t a n c e o f
responsibility. See United States v.
Cianscewski, 894 F.2d 74, 83 (3d Cir.
1990) (determination that defendant did
not accept responsibility will be reversed
only if “clearly erroneous”). At all events,
we agree that when a defendant denies
relevant conduct that the district court
subsequently determines to be true, a
district court may properly deny a
downward adjustment for acceptance of
responsibility. See U.S.S.G. § 3E1.1
Application Note 1(a).
4Reversing the District Court’s finding
regarding Irvin’s possession on any one
of the six disputed guns would not be
harmless because U.S.S.G. §
2K2.1(b)(1)(B), under which Irvin’s
sentence was enhanced, requires a
minimum of eight firearms.

-- 4 of 10 --

5
II.
We turn to the last issue on
appeal—whether Irvin’s criminal history
score erroneously included one point for
the sentence he received for the
involuntary manslaughter conviction in
state court. Irvin contends that that
offense conduct was part of the same
course of conduct as the instant offense,
and therefore should not have counted as a
prior sentence pursuant to U.S.S.G. §
4A1.2(a)(1). We agree.
A.
Shortly after Daequan’s death, the
Commonwealth of Pennsylvania charged
Irvin with endangering the welfare of
children, involuntary manslaughter, and
related offenses. It is not disputed that the
conduct that was the subject of these
charges was Irvin’s leaving the pistol in a
place where his three-year-old son could
easily reach the firearm. On November
10, 1998, Irvin pleaded guilty to the
endangering and manslaughter charges
before Court of Common Pleas Judge
Carolyn Temin. During the guilty plea
colloquy, Judge Temin advised Irvin that
in order for the Commonwealth to prove
involuntary manslaughter, it would have to
prove that Irvin “did something . . . in a
highly negligent manner, and in this case
that would involve leaving a gun that
could be fired in a place where a small
child could pick it up and fire it.” On
December 22, 1998, Judge Temin
sentenced Irvin to seven years’ probation
on the involuntary manslaughter charge
and suspended sentence on th e
endangering charge.
On September 14, 1999, Irvin was
indicted in the District Court on two
counts of being a felon in possession of a
firearm in violation of 18 U.S.C. §
922(g)(1). Count II of the indictment
charged Irvin with possession of the .40
caliber Smith & Wesson pistol that
Daequan accidentally fired on June 9,
1998.5 This gun was recovered by
Philadelphia police that same day and
formed the basis for the state involuntary
manslaughter charge. Irvin entered into a
plea agreement which provided that he
would plead guilty to both counts.
However, on the second count, which
listed the seven guns recovered from his
mother’s home, Irvin agreed only to
possessing the gun listed first in that
count—the .40 caliber Smith & Wesson
pistol that he told police on June 9, 1998,
belonged to him. The plea agreement also
included stipulations that Irvin would
receive a two point reduction for
acceptance of responsibility under
U.S.S.G. § 3E1.1(a), and an additional one
point reduction for timely notifying the
government of his intention to plead guilty
under U.S.S.G. § 3E1.1(b).
At sentencing, the District Court
adopted the criminal history calculation in
the presentence report, which added one
point to Irvin’s criminal history score
under U.S.S.G. § 4A1.1(c) for the state
5Count I of the indictment was the
earlier and unrelated possession offense
alluded to supra note 3.

-- 5 of 10 --

6
sentence that Irvin had received on the
involuntary manslaughter charge resulting
from the accidental shooting that occurred
on June 9, 1998. The Court did so even
though U.S.S.G. § 4A1.2(a)(1), and
Application Note 1 thereto, direct that only
prior sentences involving conduct that was
not part of the instant offense are counted
for criminal history purposes. Irvin argues
that the state manslaughter conviction
should not have been included in his
criminal history calculation because it was
predicated on conduct that was part of the
instant offense. Without the inclusion of
the one point he received for the state
manslaughter conviction, Irvin would have
been placed in criminal history category I.
Instead, Irvin was sentenced within the
guideline range for a criminal history
category II offender. Correcting this error
reduces Irvin’s guidelines range from
sixty-three to seventy-eight months to
fifty-seven to seventy-one months.
B.
The key section before us is
U.S.S.G. § 4A1.2. Subsection (a) defines
“prior sentences” for the purposes of
determining which sentences should be
included in a defendant’s criminal history
score: “The term ‘prior sentence’ means
any sentence previously imposed upon
adjudication of guilt . . . for conduct not
part of the instant offense.” Application
Note 1 to § 4A1.2 elaborates that “[a]
sentence imposed after the defendant’s
commencement of the instant offense, but
prior to sentencing on the instant offense,
is a prior sentence if it was for conduct
other than conduct that was part of the
instant offense.” Such was the case here:
The conduct constituting the instant
offense (i.e., the felon-in-possession
conviction) occurred, per the indictment,
on June 9, 1998; sentencing for the instant
offense occurred on June 13, 2000; but
sentencing on the state manslaughter
conviction occurred prior thereto, on
December 22, 1998.
Application Note 1 further explains
that “[c]onduct that is part of the instant
offense means conduct that is relevant
conduct to the instant offense under the
provisions of § 1B1.3 (Relevant
Conduct).” Thus, if the conduct leading to
the manslaughter conviction would be
relevant conduct under § 1B1.3, then the
manslaughter conviction cannot be
counted towards Irvin’s criminal history
score. The government conceded this in
its papers filed in connection with Irvin’s
28 U.S.C. § 2255 hearing, see supra note
1, stating that “the death of defendant’s
son could have been included as relevant
conduct, see Sections 2K2.1(c)(1)(B) and
2A1.4(a)(1) of the Guidelines, [but] it
would not have increased the defendant’s
offense level.” App. 147a.
As we see it, the essence of both
offenses was Irvin’s criminal possession of
the .40 caliber Smith & Wesson pistol. He
was convicted of the involuntary
manslaughter of his son as a result of his
criminally negligent conduct in leaving
within reach of his son the pistol which his
son accidentally fired. The present offense
involves the federal prosecution for Irvin’s
illegal possession of that same gun. We do
not see how one can separate the prior

-- 6 of 10 --

7
state offense from the instant offense.
There is no perfectly analogous
case. The most apposite is our decision in
United States v. Hallman, 23 F.3d 821 (3d
Cir. 1994). The defendant there was
arrested for passing a stolen check at a
hotel. A search of his car uncovered
checks and credit cards stolen from the
mail. Id. at 823. It was apparent that the
stolen check passed at the hotel had been
stolen from the mail. Id. at 826. The
defendant pled guilty to the state forgery
charge based on passing the stolen check,
and was sentenced. He later pled guilty to
a federal indictment charging possession
of stolen mail. At the sentencing on the
federal charge, the state sentence on the
forgery charge was included in defendant’s
criminal history score as a prior sentence.
W e reversed an d remanded for
resentencing, holding that the forgery was
“related” to the mail fraud in that it was
part of the same plan or scheme—thus
making it “relevant conduct,” and
excluding it from the criminal history
computation.6
In reaching our decision, we noted
that the conduct underlying the two
offenses was connected in that the
defendant “could not have forged a check
until he had stolen the checks.” Id. Just as
Hallman could not have forged the check
until he had stolen it, Irvin could not have
exercised criminally negligent control over
his Smith & Wesson pistol on June 9, 1998
unless he was in possession of it on the
same date. Following Hallman, the
conduct underlying Irvin’s manslaughter
conviction was relevant conduct for the
instant offense, and thus the manslaughter
conviction should not have been included
in his criminal history.
The government urges, however,
that we approach the case by determining
whether the conduct of the present offense
is “severable” from that of the prior
offense, in which case the prior offense
may be considered in the criminal history
calculation. It cites United States v.
Banashefski, 928 F.2d 349, 352-53 (10th
Cir. 1991), which concluded that it was
6We put “related” in quotation marks
to distinguish its usage here from its
usage as a term of art in the Guidelines’
similar, but distinct, concept of a “related
case.” Under U.S.S.G. § 4A1.2(a)(2)
two (or more) related cases are counted
as only one prior offense for purposes of
computing an offender’s criminal history
score. Unless the offenses were
separated by an intervening arrest, “prior
sentences are considered related if they
resulted from offenses that (A) occurred
on the same occasion, (B) were part of a
single common scheme or plan, or (C)
were consolidated for trial or
sentencing.” Id. Application Note 3. In
Hallman, the Court explicitly stated that
there was no Application Note 3 “related
cases” argument to be made because the
defendant had only one prior sentence.
23 F.3d at 825. Here, it is undisputed
that Irvin’s manslaughter conviction and
his endangering conviction were related
cases; the issue we address is their
relationship to Irvin’s federal conviction.

-- 7 of 10 --

8
proper to include a state conviction for
possession of a stolen car in the criminal
history score for sentencing on a felon-in-
possession offense, even though the
firearm in question was found in the car at
time of the defendant’s arrest for driving
the stolen car. The government asserts
that factors that should be considered in
this analysis include temporal and
geographical proximity, the identity of the
victims, and the applicable societal harms.
It also relies on another Tenth Circuit case,
United States v. Browning, 252 F.3d 1153,
1159 (10th Cir. 2001), where the Court
applied this test and held that because the
defendant unlawfully possessed a firearm
before, as well as during and in
conjunction with, the commission of a
state drug trafficking offense, the state
offense was not part of the firearm
offense, and thus was properly considered
as a prior conviction.
We find these cases both
distinguishable on their facts and at odds
with our jurisprudence. The Court of
Appeals in both Banashefski and Browning
made clear that, as a factual matter, there
was evidence that the defendant possessed
the firearm in question at a time before
commission of the offense that the
government sought to include in the
defendant’s criminal history score. See
Browning, 252 F.3d at 1159 (“[Browning]
admitted to getting the gun in Arizona
before he [engaged in illegal drug
activity].”); Banashefski, 928 F.2d at 352
(explaining that Banashefski’s felon-in-
possession offense “was complete before
he approached the car [that he stole]”). In
contrast, in count II the government did
not indict Irvin for, nor did it at any time
adduce evidence of, Irvin’s possession of
a firearm at any time other than June 9,
1998. Moreover, as a legal matter, we
have not adopted the severability test;
indeed in Hallman we declined to adopt it.
The government also relies on
United States v. Oser, 107 F.3d 1080 (3d
Cir. 1997), for the proposition that where
a defendant’s prior offense played no part
in the determination of his sentence on the
instant offense, the conduct for which he
was previously sentenced was not
“relevant conduct” for guidelines
purposes, and that the prior sentence
therefore need not be excluded from the
calculation of his criminal history
category. The defendant in Oser was
convicted of a drug conspiracy and money
laundering, and argued that his prior
conviction for underreporting of currency
should not have been included in his
criminal history computation because the
conduct underlying the underreporting-of-
currency conviction was relevant conduct
to the drug conspiracy and money
laundering.
Irvin argues that Oser is
distinguishable. In Irvin’s submission, the
reasoning of Oser depended on the factual
determination that no connection was
shown between the underreporting of
currency and the drug conspiracy / money
laundering offense. Because this
connection was absent, the conduct
underlying the underreporting-of-currency
offense was not relevant conduct to Oser’s
instant offense, and so the sentence for

-- 8 of 10 --

9
underreporting of currency could be
counted as a prior sentence for purposes of
calculating Oser’s criminal history score.
In contrast, Irvin points out, his criminally
negligent control of the Smith & Wesson
“occurred during the commission” of his
illegal possession of that firearm, U.S.S.G.
§ 1B1.3(a)(1), and hence the state sentence
on the involuntary manslaughter charge
was relevant conduct. We agree; the
offense committed by Irvin, as charged in
both the state and federal indictments,
centered on the passive act of possessing a
firearm on June 9, 1998.
Moreover, the government’s
characterization of Oser misreads that case
and Application Note 1 to U.S.S.G. §
4A1.2. The test is not whether a separate
offense “played [a] part” in determining
the offense level (presumably in the sense
of arithmetically altering the offense
level), but rather whether the underlying
conduct was “relevant conduct.” Even
though not all relevant conduct affects the
ultimate offense level, Application Note 1
excludes from the criminal history
computation sentences based on relevant
conduct. In essence, the government
argues that it should be able to elect to
treat, at its option, certain activity either as
relevant conduct, or as a prior offense.
This “heads I win, tails you lose” gambit
simply has no basis in the regime of the
Sentencing Guidelines.
The government’s final argument is
that the federal crime differs from the state
crime because Irvin possessed the weapon
before June 9, 1998, but after his 1995
predicate felony conviction. But as we
have already noted in distinguishing
Banashefski and Browning, the federal
indictment does not so allege, nor was any
proof offered to that effect, so that
argument fails.
C.
In sum, Irvin’s sentence on the state
manslaughter conviction should not have
been included in his criminal history
computation. But for this error, Irvin
would have been sentenced as a criminal
history category I offender, with a
correspondingly lower guideline range. As
noted above, we review for plain error. To
establish plain error, a defendant must
prove that there is “(1) ‘error,’ (2) that is
‘plain,’ and (3) that ‘affects substantial
rights.’ If all three conditions are met, an
appellate court may then exercise its
discretion to notice a forfeited error, but
only if (4) the error ‘seriously affects the
fairness, integrity, or public reputation of
judicial proceedings.’” Johnson v. United
States, 520 U.S. 461, 467 (1997) (citations
omitted). With respect to this final step,
we have held that we will generally
exercise our discretion to recognize a plain
error in the (mis)application of the
Sentencing Guidelines. See United States
v. Knight, 266 F.3d 203, 206 n.7 (3d Cir.
2001) (“[A] sentence resulting from a
plainly erroneous misapplication of the
Guidelines gives rise to at least a
presumptively appropriate occasion for
exercise of our discretionary power to
correct the error.”).
As we have shown, there was error
here. It was also plain. We have

-- 9 of 10 --

10
explained that this prong of the test “is met
if the error is ‘obvious’ or ‘clear under
current law.’” United States v. Vazquez,
271 F.3d 93, 100 (3d Cir. 2001) (en banc)
(quoting United States v. Olano, 507 U.S.
725, 734 (1993)). Coupled with the
relative clarity of the Sentencing
Guidelines, our decision in Hallman is
sufficiently on-point to satisfy the
requirement that error be “plain.” Finally,
the error affected Irvin’s substantial rights:
Without the addition of the criminal
history point for the manslaughter
conviction, Irvin now falls in the guideline
range for category I, offense level 25,
which is fifty-seven to seventy-one
months. Irvin received a seventy-two
month sentence, and so was prejudiced by
the Court’s error as his sentence exceeded
the guideline range which should have
been applied. See United States v.
Knobloch, 131 F.3d 366, 373 (3d Cir.
1997) (plain error affected defendant’s
“substantial right to suffer no greater an
imposition on his liberty than the
Guidelines allow” when error resulted in
higher sentencing range).
Accordingly, the judgment of
sentence will be vacated and the case
remanded for resentencing.

-- 10 of 10 --