United States of America v. Alonzo Thornton

PRECEDENTIAL
Filed October 3, 2002
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
No. 02-1324
UNITED STATES OF AMERICA
v.
ALONZO THORNTON
Appellant
Appeal from the United States District Court
for the Middle District of Pennsylvania
(D.C. Criminal Action No. 00-cr-00289)
District Judge: Honorable William W. Caldwell
Submitted Under Third Circuit LAR 34.1(a)
August 2, 2002
Before: ROTH, RENDELL and AMBRO, Circuit Judge s
(Opinion filed October 3, 2002)
Matthew R. Gover, Esquire
2411 North Front Street
Harrisburg, PA 17110
Counsel for Appellant
Martin C. Carlson
United States Attorney
William A. Behe
Assistant United States Attorney
Federal Building
228 Walnut Street
Harrisburg, PA 17108
Counsel for Appellee
OPINION OF THE COURT
AMBRO, Circuit Judge:
Appellant Alonzo Thornton pled guilty to one count of
conspiracy to distribute and possess with intent to deliver
fifty grams or more of crack cocaine contrary to 21 U.S.C.
S 841(a)(1), in violation of 21 U.S.C. S 846, and the District
Court imposed, inter alia, a 180-month term of
imprisonment. Thornton now appeals, contending that the
District Court erred by applying offense level enhancements
pursuant to United States Sentencing Guidelines

-- 1 of 6 --

("U.S.S.G.") SS 2D1.1(b)(1) and 3B1.4. We exercise appellate
jurisdiction pursuant to 28 U.S.C. S 1291. Finding
Thornton’s arguments unpersuasive, we affirm.
I.
U.S.S.G. S 2D1.1(b)(1) dictates a two-level enhancement
"[i]f a dangerous weapon (including a firearm) was
possessed" during the defendant’s offense. This
enhancement applies if the Government shows, by a
preponderance of the evidence, that "the weapon was
present, unless it is clearly improbable that the weapon
was connected with the offense." U.S.S.G. S 2D1.1 cmt. n.3.
See United States v. Price, 13 F.3d 711, 733 (3d Cir. 1994)
(stating, in dicta, that the Government has the burden of
showing that it is not "clearly improbable" that the weapon
was connected to the offense); United States v. Khang, 904
F.2d 1219, 1223 n.7 (8th Cir. 1990) (same). But see United
States v. Alexander, 292 F.3d 1226, 1231 (10th Cir. 2002)
(stating that once the Government presents its prima facie
2
evidence supporting a S 2D1.1(b)(1) enhancement, the
defendant must rebut by showing that it is "clearly
improbable that the weapon was connected to the offense");
United States v. Berkey, 161 F.3d 1099, 1103 (7th Cir.
1998) (same); United States v. Hill, 79 F.3d 1477, 1485 (6th
Cir. 1996) (same); United States v. Hall, 46 F.3d 62, 63
(11th Cir. 1995) (same); United States v. Corcimiglia, 967
F.2d 724, 727-28 (1st Cir. 1992) (same); United States v.
Restrepo, 884 F.2d 1294, 1296 (9th Cir. 1989) (same).
Thornton raises two arguments against the imposition of
this enhancement. First, he contends that the District
Court violated his plea agreement by considering his post-
cooperation statements in applying the enhancement.
Second, Thornton argues that, absent his post-cooperation
statements, there is insufficient evidence supporting the
enhancement’s application.
Approximately five months after his indictment, Thornton
entered a plea agreement in which he "agree[d] to cooperate
fully with the United States." In exchange, the Government
"agree[d] that any statements made by the defendant
during the cooperation phase of this agreement shall not be
used against the defendant in any subsequent prosecutions
or in the determination of the sentence under the U.S.
Sentencing Guidelines." Id. (emphasis added).
In enhancing Thornton’s sentence under S 2D1.1(b)(1),
the District Court relied in part on the fact that"the
defendant’s own admissions at one time confirmed the fact
that the guns were in the house." Thornton offered this
information while cooperating with the Government, and
therefore the District Court’s consideration of it violated his
plea agreement as well as U.S.S.G. S 1B1.8.
Thornton, however, did not object to the District Court’s

-- 2 of 6 --

consideration of his statement. Therefore, we review the
District Court’s determination only for plain error. United
States v. Knight, 266 F.3d 203, 206 (3d Cir. 2001); United
States v. Cashman, 216 F.3d 582, 588 (7th Cir. 2000).
Under a plain error standard of review, we reverse only if
(1) error was committed, (2) the error was plain, i.e.,
clear or obvious, and (3) the error affected the
defendant’s substantial rights. In addition, even where
3
plain error exists, our discretionary authority to order
correction is to be guided by whether the error
seriously affects the fairness, integrity or public
reputation of judicial proceedings.
Knight, 266 F.3d at 206. With respect to the third prong,
Thornton must show that the error was "prejudicial," i.e.,
"that the outcome--in this context, the sentence--was
affected, in the sense that it likely would have been
different but for the error." Id. at 207. We find no plain
error because Thornton fails to present any evidence
regarding prejudicial effect.
Indeed, Thornton could not show prejudice arising from
this error for the very reason we reject his second argument
regarding insufficiency of evidence: the Government
presented sufficient evidence, independent of Thornton’s
post-cooperation statements, in support of the
enhancement. According to Thornton’s presentence
investigation report, Joe Anilus, one of Thornton’s co-
conspirators, admitted that "when he, Mr. Thornton and
others were dealing drugs in Carlisle, they were in
possession of two handguns, a .38 caliber snub-nosed and
a .38 caliber long-barrel." See Presentence Investigation
Report ("PSR") at P 14. The District Court could consider
this information without violating Thornton’s plea
agreement. See United States v. Baird, 218 F.3d 221, 231
(3d Cir. 2000).
Anilus’ admission of gun possession constitutes sufficient
evidence supporting Thornton’s S 2D1.1(b)(1) enhancement.
Through it, the Government established that a co-
conspirator possessed weapons during the commission of
the offense. Moreover, it is not "clearly improbable that the
weapon[s] [were] connected with the offense" as "weapons
have become ‘tools of the trade’ in illegal narcotics
operations." United States v. White, 875 F.2d 427, 433 (4th
Cir. 1989) (citation omitted). Most importantly, Thornton is
culpable for Anilus’ possession since, due to Thornton’s
presence during the described drug transaction(s), his co-
conspirator’s actions were "reasonably foreseeable."
U.S.S.G. S 1B1.3(a)(1)(B).
4
II.

-- 3 of 6 --

U.S.S.G. S 3B1.4 (2001) dictates a two-level enhancement
"[i]f the defendant used or attempted to use a person less
than eighteen years of age to commit the offense or assist
in avoiding detection of, or apprehension for, the offense."
The District Court imposed this enhancement because a
minor "sold crack cocaine for Mr. Thornton’s organization."
PSR at P 36.
Thornton contends that S 3B1.4 should not apply
because he had no knowledge that his criminal activity
involved the use of a minor. This is an issue of first
impression before this Court, and our review "of the District
Court’s interpretation and application of the Sentencing
Guidelines is plenary." United States v. Titchell, 261 F.3d
348, 353 (3d Cir. 2001). Two sister circuit courts have
addressed this question, and both concluded thatS 3B1.4
does not include a scienter requirement. United States v.
Gonzalez, 262 F.3d 867, 870 (9th Cir. 2001); United States
v. McClain, 252 F.3d 1279, 1285 (11th Cir. 2001).1 We
agree.
"We follow the clear, unambiguous language of the
Guidelines if there is no discernable manifestation of
contrary intent." United States v. Wong, 3 F.3d 667, 670
(1993). Here, S 3B1.4’s language clearly dictates that "[i]f
the defendant used or attempted to use" a minor in the
commission of the offense, the sentencing enhancement
applies. The enhancement’s unambiguous language does
not contain a scienter requirement, and "[w]e refuse to find
_________________________________________________________________
1. In unpublished non-precedential opinions, four other courts of appeal
have reached the same result. United States v. Mott, 26 Fed. Appx. 8, 10
(1st Cir. 2001) ("There is no scienter element in this guideline [S 3B1.4],
and no Court has seen fit to read one in.") (unpublished opinion); United
States v. Cummings, 18 Fed. Appx. 135, 137 (4th Cir. 2001) (rejecting
S 3B1.4 scienter requirement) (unpublished opinion); United States v. Li,
205 F.3d 1326, 2000 WL 233702, at *3 (2d Cir. 2000) (recognizing that
"a plain reading of S 3B1.4 reveals no such knowledge requirement")
(unpublished opinion); United States v. Padron , 221 F.3d 1345, 2000 WL
748095, at *1 (8th Cir. 2000) ("Nothing in the guideline itself, or the
commentary thereto, even suggests, much less states, that actual
knowledge of the age of the minor is necessary.") (unpublished opinion).
5
ambiguity where none exists to defeat the plain meaning of
the Guidelines." United States v. Mobley, 956 F.2d 450, 453
(3d Cir. 1992).
Moreover, this reading is consistent with Congress’ intent
as expressed by its deliberate omission of language creating
a scienter requirement in S 3B1.4. Id. at 452-53 (applying
the expressio unius est exclusio alterius2 canon of
construction in holding that U.S.S.G. S 2K2.1(b)(2) does not
include a scienter requirement). When Congress wanted to
include such a requirement in the Guidelines, it knew
exactly how to do so. See, e.g., U.S.S.G.S 2K1.3(b)(2)

-- 4 of 6 --

(applying enhancement when "the offense involved any
explosive material that the defendant knew or had reason
to believe was stolen"); U.S.S.G. S 3C1.1 (applying
enhancement when "defendant wilfully obstructed or
impeded, or attempted to impede, the administration of
justice").
Thornton cites three Supreme Court decisions for the
proposition that we should read a scienter requirement into
S 3B1.4. Staples v. United States, 511 U.S. 600, 605 (1994)
(interpreting 26 U.S.C. S 5861(d)); Liparota v. United States,
471 U.S. 419, 426 (1985) (interpreting 7 U.S.C.
S 2024(b)(1)); and Morissette v. United States, 342 U.S. 246,
250-51 (1952) (interpreting 18 U.S.C. S 641). We remain
unpersuaded. All three cases "dealt with the requisite
intention for conviction of a crime, not for purposes of
imposing an enhanced sentence under the Guidelines. They
are clearly inapposite." United States v. Brannan, 74 F.3d
448, 453-54 (3d Cir. 1996) (rejecting similar contention in
holding that U.S.S.G. S 2K2.1(b)(5) does not contain a
scienter requirement).
Finally, applying S 3B1.4 without such a requirement
does not offend Thornton’s due process rights. Gonzalez,
262 F.3d at 870 (rejecting argument that "the absence of a
scienter requirement in section 3B1.4 would violate due
process"); see McMillan v. Pennsylvania, 477 U.S. 79, 87-88
(1986) (establishing the factors to consider in determining
_________________________________________________________________
2. "Expressio unius est exclusio alterius is a Latin maxim that means ‘to
express one is to exclude the other.’ " Abdullah v. American Airlines, Inc.,
181 F.3d 363, 372 (3d Cir. 1999).
6
whether a sentencing enhancement violates due process);
Mobley, 956 F.2d at 456-59 (applying McMillan factors to
enhancement under Sentencing Guidelines). First, the
enhancement did not alter the maximum sentence that
Thornton could receive. See 21 U.S.C. S 841(b)(1)(A)
(establishing maximum sentence of life imprisonment for
violation of 21 U.S.C. S 841(a)(1)); 21 U.S.C.S 846 ("Any
person who . . . conspires to commit any offense defined in
this subchapter shall be subject to the same penalties as
those prescribed for the offense . . . ."). Second, the
enhancement did not negate the presumption of innocence
or relieve the Government’s burden of proving the
underlying offense. Had Thornton not pled guilty, the
Government would have had to prove each element of his
offense beyond a reasonable doubt. Third, S 3B1.4 did not
create a separate offense requiring a separate penalty. The
enhancement did not "have such a disproportionate impact
on the sentence so that it is ‘really’ an element of the
offense for which defendant is being punished." Mobley,
956 F.2d at 456 (citing McMillan, 477 U.S. at 88).
III.

-- 5 of 6 --

For the foregoing reasons, we affirm the District Court’s
sentencing enhancements.
A True Copy:
Teste:
Clerk of the United States Court of Appeals
for the Third Circuit
7

-- 6 of 6 --