United States of America v. Scott Norman Balthazar

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v. No. 99-4953
SCOTT NORMAN BALTHAZAR,
Defendant-Appellant.
Appeal from the United States District Court
for the Western District of Virginia, at Abingdon.
James P. Jones, District Judge.
(CR-99-11)
Submitted: May 19, 2000
Decided: June 5, 2000
Before MURNAGHAN and MICHAEL, Circuit Judges,
and HAMILTON, Senior Circuit Judge.
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Affirmed by unpublished per curiam opinion.
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COUNSEL
Daniel R. Bieger, COPELAND, MOLINARY & BIEGER, P.C.,
Abingdon, Virginia, for Appellant. Robert P. Crouch, Jr., United
States Attorney, S. Randall Ramseyer, Assistant United States Attor-
ney, Abingdon, Virginia, for Appellee.
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Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).
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OPINION
PER CURIAM:
Scott Norman Balthazar was convicted of three counts of posses-
sion of a firearm by a convicted felon, in violation of 18 U.S.C.A.
§ 922(g)(1) (West Supp. 1999); one count of possession of ammuni-
tion by a convicted felon, in violation of § 922(g)(1); and one count
of knowing possession of stolen firearms, in violation of 18 U.S.C.A.
§ 922(j) (West Supp. 1994). He received a 78-month sentence and a
supervised release term of three years. Balthazar now appeals, raising
two issues. We affirm.
I
Between September 28, 1995, and June 7, 1998, there were eleven
burglaries in Wythe, Smyth, and Washington Counties, Virginia, and
Sullivan County, Tennessee. Firearms were stolen in all the burgla-
ries, and officials suspected that the burglaries were related. On
December 31, 1997, officers responded to a domestic call at the home
of Scott Balthazar's half-brother, Michael. Several of the stolen fire-
arms were recovered from his home. During an investigation that fol-
lowed, Michael gave a statement that he and the defendant had
purchased the guns and that he knew they had been stolen. Michael
additionally told officers that two of the stolen firearms had been
pawned to his father, Freddie.
Authorities then executed a search of Freddie Balthazar's resi-
dence. The search resulted in the recovery of fifteen of the firearms
stolen during the burglaries. Freddie Balthazar provided a written
statement connecting Scott to two of the firearms.
Scott Balthazar was indicted on eleven charges but convicted only
on Counts One, Four, Five, Seven, and Eleven. The district court
found that his base offense level was 14, see U.S. Sentencing Guide-
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lines Manual § 2K2.1(a)(6) (1998). The level was increased by two
levels because at least one of the firearms was stolen. See USSG
§ 2K2.1(b)(4). The court found that, besides the six firearms and the
ammunition involved in the counts of conviction, seven additional
firearms qualified as relevant conduct. Therefore, Balthazar received
an additional four-level increase, see USSG§ 2K2.1(1)(b)(1)(D), for
a total offense level of 19. With a criminal history of VI, Balthazar's
guideline range was 63-78 months. He received a 78-month sentence.
II
Balthazar first contends that the district court erred when it refused
to allow introduction of a police report to impeach the testimony of
one of the government's witnesses, Gay Phillips. She testified that, as
she was walking home from church, she saw a white car with three
occupants leaving her driveway. When she entered her home, she dis-
covered it had been robbed. Based on her description of the vehicle,
police shortly thereafter stopped a car, driven by the defendant and
containing two other occupants. Deputy Hazelwood testified for the
defense that Mrs. Phillips informed him that the car had only two
occupants. Balthazar asked that Hazelwood's police report, which
relates that Mrs. Phillips said that only two persons were in the car,
be admitted to impeach Mrs. Phillips' testimony. Because Mrs. Phil-
lips was a witness and could have been examined on the point, the
district court properly excluded the report as inadmissible hearsay.
See United States v. Fabio, 394 F.2d 132, 133 (4th Cir. 1968).
III
Under the sentencing guidelines, the offense level is determined by
relevant conduct. See USSG § 1B1.1, comment. (n.1(l)). Under USSG
§ 1B1.3(a)(2), offenses which are groupable under USSG § 3D1.2(d)
are part of a defendant's relevant conduct if they are part of the same
course of conduct or common scheme or plan as the count of convic-
tion. Offenses covered by USSG § 2K2.1 are specifically listed as
offenses to be grouped under USSG § 3D1.2(d). In addition, Applica-
tion Note 9 to USSG § 2K2.1 provides that any unlawfully possessed
firearms should be counted in calculating the number of firearms for
enhancement purposes under subsection (b)(1). Unlawful possession
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of a firearm may be actual or constructive. See United States v. Jack-
son, 124 F.3d 607, 610 (4th Cir. 1997).
Balthazar does not dispute that the six guns and the ammunition
identified in the counts of conviction were properly treated as relevant
conduct. He complains, however, that the district court also included
four guns that were not charged in the indictment and three guns that
were charged but for which he was not convicted.* The record, how-
ever, reflects that these seven guns were stolen in the Virginia and
Tennessee robberies. The district court found credible the testimony
of ATF Special Agent Hall that Michael had stated that he had
received three of the guns from Scott and that Freddie had stated that
he had received two of the guns from Scott. Further, one of the guns,
a Mossberg pump-action shotgun, was stolen from Gay Phillips at the
same time the ammunition that was the subject of Count Seven (a
count of conviction) was stolen. Finally, at trial, Gail Balthazar,
Michael's wife, testified that Michael received the remaining gun
from Scott. Given this evidence, the district court did not clearly err
in including the seven firearms as relevant conduct.
IV
We therefore affirm Balthazar's conviction and sentence. We dis-
pense with oral argument because the facts and legal contentions are
adequately presented in the materials before the court and argument
would not aid the decisional process.
AFFIRMED
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*Counsel incorrectly claims that a Ruger Mini .223 rifle was included
as relevant conduct. However, the record clearly reveals that the district
court excluded this gun when making its calculations.
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