United States of America v.  Jaron Reevey

PUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
 UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v. No. 02-4984 
JARON REEVEY,
Defendant-Appellant. 
Appeal from the United States District Court
for the District of Maryland, at Baltimore.
Frederic N. Smalkin, Senior District Judge.
(CR-02-146-S)
Argued: February 27, 2004
Decided: April 7, 2004
Before WILLIAMS, KING, and DUNCAN, Circuit Judges.
Affirmed in part, vacated in part, and remanded by published opinion.
Judge King wrote the opinion, in which Judge Williams and Judge
Duncan joined.
COUNSEL
ARGUED: Kelli Colleen McTaggart, Assistant Federal Public
Defender, Greenbelt, Maryland, for Appellant. Christine Manuelian,
Assistant United States Attorney, Baltimore, Maryland, for Appellee.
ON BRIEF: James Wyda, Federal Public Defender, Greenbelt,
Maryland, for Appellant. Thomas M. DiBiagio, United States Attor-
ney, Baltimore, Maryland, for Appellee.

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OPINION
KING, Circuit Judge:
Jaron Reevey appeals from his convictions and sentences in the
District of Maryland for carjacking, kidnapping, and possessing a
firearm in furtherance of a crime of violence. Reevey was sentenced
to prison for concurrent terms of 121 months on the carjacking and
kidnapping offenses, and he was sentenced to a consecutive eighty-
four months on the firearms charge. On appeal, Reevey maintains that
the district court erroneously denied his motions for substitution of
counsel and for a continuance, that it erred in refusing to permit him
to introduce evidence on the circumstances surrounding his arrest, and
that it erroneously enhanced his sentence by two levels based on a
threat of death. We reject Reevey’s first two contentions and thus
affirm each of his convictions. As explained below, however, we
vacate his sentences for carjacking and kidnapping and remand for
appropriate resentencing.
I.
A.
Reevey and his girlfriend, Sabrina Wright, travelled by bus and
train from New Jersey to Richmond, Virginia, in January 2002, stay-
ing for about a week at the home of Leon Parker. A friend of Parker’s,
Aaron Jones, agreed to drive Reevey and Wright to the Richmond bus
station for their return to New Jersey. When Jones arrived at Parker’s
home to take Reevey and Wright to the bus station, Reevey obtained
the keys to Jones’s car and carried luggage to the vehicle. Reevey
then returned to Parker’s house and requested Jones to drive Reevey
and Wright to New Jersey instead of to the bus station. Jones declined
to do so, asserting that his car was in no condition for a long trip. In
response, Reevey again requested that Jones drive them to New Jer-
sey and offered to pay him for the trip. When Jones again declined,
Reevey pulled a handgun, pointed it at Jones, and instructed Wright
to draw a second weapon (which she did). Reevey directed Jones to
lie down on the floor and used plastic "flex-cuffs" to secure his wrists
behind his back. Reevey then ordered Jones to walk to the car and
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stated that he would be shot if he did not comply. When they reached
the vehicle, Reevey forced Jones into the trunk and closed it.
After several stops between Richmond and Baltimore for fuel,
food, and directions, Reevey stopped at a Baltimore bus station to use
its restroom and to seek a refund on a bus ticket. When Reevey and
Wright exited the vehicle, Jones, who had freed himself, made his
way out of the trunk. When Reevey saw what was happening, he
threatened to shoot Jones if he did not calm down. A nearby police
officer then walked towards Reevey and Jones, and Jones stated that
he had been abducted.
Reevey and Wright promptly reentered the car and tried to leave,
but the policeman, Officer Murphy, drew his service weapon to pre-
vent their escape. Murphy opened the passenger door of the car and
heard Reevey hollering to Wright, "give me the gun." By this time,
several officers had responded to Officer Murphy’s call for support,
and they blocked Reevey’s path with a police cruiser. Reevey then
rammed the cruiser, creating space to maneuver, and attempted to
drive away. The officers pursued, catching up with Reevey and
Wright when they crashed into a wall. Reevey then exited the vehicle,
looked at Officer Murphy, and drew a handgun. On hearing shots,
several officers fired on Reevey. When Reevey collapsed, the officers
stopped firing and arrested him.
During these events, six officers fired forty-two shots at Reevey,
who sustained eight wounds and was hospitalized for several weeks.
The officers reported that Reevey had fired the first two shots; how-
ever, the weapon Reevey had drawn, as well as a second handgun in
his possession, were inoperable.
B.
On March 26, 2002, Reevey was charged in a three-count indict-
ment with carjacking (in violation of 18 U.S.C. § 2119), kidnapping
(in violation of 18 U.S.C. § 1201(a)(1)), and possessing a firearm in
furtherance of a crime of violence (in violation of 18 U.S.C.
§ 924(c)(1)(A)).1 On the morning of September 3, 2002, as his trial
1Pursuant to § 924(c)(1)(A), which underlies Count Three of the
Indictment:
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was called, Reevey made oral motions for substitution of counsel and
for a continuance in order to obtain such counsel (collectively the
"Motions"). In connection with the Motions, Reevey’s appointed law-
yers acknowledged that they had disagreed with Reevey on certain
strategy issues and on whether to file certain motions; however, they
advised the court that they were ready for trial. The court denied the
Motions.
Two days later, the jury found Reevey guilty on all three counts of
the Indictment. He thereafter filed two motions for a new trial, con-
tending (1) that the court had erred in denying his Motions, and (2)
that the court had erred in refusing to admit evidence on the circum-
stances of his arrest. The court denied both motions.
On December 9, 2002, the district court conducted a sentencing
hearing. At the hearing, the court calculated Reevey’s sentence based
on the recommendations set forth in the Presentence Investigation
Report ("PSR"). In so doing, the court grouped the carjacking and
kidnapping offenses pursuant to § 3D1.2(d) of the Sentencing Guide-
lines, which provides that "[a]ll counts involving substantially the
same harm shall be grouped together into a single Group." As the
Guidelines explain, counts involve substantially the same harm "when
the offense level is determined largely on the basis of total amount of
harm or loss . . . or some other measure of aggregate harm. . . ." See
U.S. Sentencing Guidelines Manual § 3D1.2(d). Accordingly, as
explained in the PSR, the court utilized the Robbery Guideline (which
applies to carjacking offenses) in its sentencing, "since the Kidnap-
[A]ny person who, during and in relation to any crime of vio-
lence . . . uses or carries a firearm, or who, in furtherance of any
such crime, possesses a firearm, shall, in addition to the punish-
ment provided for such crime of violence . . . — (i) be sentenced
to a term of imprisonment of not less than 5 years; (ii) if the fire-
arm is brandished, be sentenced to a term of not less than 7
years; and (iii) if the firearm is discharged, be sentenced to a
term of imprisonment of not less than 10 years.
18 U.S.C. § 924(c)(1)(A). The underlying crimes of violence were Count
One (carjacking) and Count Two (kidnapping). Reevey was sentenced
under § 924(c)(1)(A)(ii) for brandishing the firearm.
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ping was undertaken to facilitate the Carjacking and the [Robbery]
Guidelines include an adjustment for Kidnapping." PSR at 6. Reevey
then received a four-level enhancement for abducting Jones to facili-
tate a robbery and a two-level enhancement because the robbery
involved carjacking. See U.S. Sentencing Guidelines Manual
§ 2B3.1(b)(4)(A) (authorizing four-level enhancement "[i]f any per-
son was abducted to facilitate commission of the offense or to facili-
tate escape"); id § 2B3.1(b)(5) (authorizing two-level enhancement
"[i]f the offense involved carjacking"). Over objection, the court also
imposed a two-level enhancement for "a threat of death," pursuant to
§ 2B3.1(b)(2)(F) of the Robbery Guideline.2
The court sentenced Reevey to concurrent terms of 121 months in
prison on the carjacking and kidnapping offenses, as grouped
together, and to a consecutive eighty-four months on the firearms
charge. Reevey filed a timely notice of appeal, and we possess juris-
diction pursuant to 28 U.S.C. § 1291.
II.
We review for abuse of discretion a district court’s rulings on a
motion to substitute counsel and on a request for a continuance.
United States v. Corporan-Cuevas, 35 F.3d 953, 956 (4th Cir. 1994).
Similarly, a trial court possesses broad discretion in ruling on the
admissibility of evidence, which we will not overrule in the absence
of an abuse of such discretion. United States v. Bostian, 59 F.3d 474,
480 (4th Cir. 1995). We review de novo a court’s legal interpretation
of the Guidelines, and we assess for clear error its factual determina-
2Section 2B3.1(a) of the Guidelines establishes a base offense level of
twenty for robbery, and § 2B3.1(b)(2) authorizes enhancements for cer-
tain specific offense characteristics, specifically providing:
(A) If a firearm was discharged, increase by 7 levels; (B) if a
firearm was otherwise used, increase by 6 levels; (C) if a firearm
was brandished or possessed, increase by 5 levels; (D) if a dan-
gerous weapon was otherwise used, increase by 4 levels; (E) if
a dangerous weapon was brandished or possessed, increase by 3
levels; or (F) if a threat of death was made, increase by 2 levels.
U.S. Sentencing Guidelines Manual § 2B.3.1(b)(2)(A)-(F).
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tions for applying the Guidelines. United States v. Singh, 54 F.3d
1182, 1190 (4th Cir. 1995).
III.
A.
Reevey first contends that the district court committed reversible
error in denying the Motions. In assessing this issue, we are obliged
to consider three factors: (1) the timeliness of his Motions; (2) the
adequacy of the court’s inquiry into his complaint about counsel; and
(3) whether Reevey and his counsel experienced a "‘total lack of com-
munication preventing an adequate defense.’" United States v. Mul-
len, 32 F.3d 891, 895 (4th Cir. 1994) (quoting United States v.
Gallop, 838 F.2d 105, 108 (4th Cir. 1988)). And we are to weigh
these factors against the trial court’s interest in the orderly administra-
tion of justice. Corporan-Cuevas, 35 F.3d at 956.
First, as to timeliness, Reevey filed his Motions on the first day of
trial. As we have explained, a continuance request for the substitution
of counsel made on the first day of trial is clearly "untimely under all
but the most exigent circumstances." Id.; see Gallop, 838 F.2d at 108
(finding motion made five days before trial untimely); cf. United
States v. Johnson, 114 F.3d 435, 443 (4th Cir. 1997) (finding timeli-
ness factor favored defendant where motion filed over a month and
a half before trial); Mullen, 32 F.3d at 896 (finding timeliness factor
favored defendant where motion was filed twenty-seven days before
trial and would have been heard in adequate time had government not
forgotten to file response). Because Reevey failed to show any exi-
gent circumstances to justify his last-minute requests, the Motions
were untimely.
Second, the court’s inquiry into the basis for the Motions was ade-
quate. The court was informed that Reevey’s counsel had spent an
extensive amount of time with Reevey discussing various aspects of
the case. The court also ensured that his lawyers were prepared for
trial, despite Reevey’s contention that they had spent more time in
plea negotiations than in trial preparations.
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Lastly, the court concluded, after inquiry, that Reevey and his law-
yers had not experienced a lack of communication so substantial that
it precluded an adequate defense. Although his lawyers had experi-
enced some disagreements with Reevey, the court viewed them as
"typical," and the lawyers did not feel that their communications with
Reevey had broken down or that they were obligated to withdraw.
Furthermore, the court observed Reevey and his counsel working
together in the selection of a jury, and it noted that his lawyers had
formulated an inventive trial strategy and had zealously represented
Reevey. See United States v. DeTemple, 162 F.3d 279, 288-89 (4th
Cir. 1998) ("A total lack of communication simply does not exist
where the attorney and the client communicate significantly during
trial."). In these circumstances, the court did not abuse its discretion
in denying the Motions.
B.
Next, Reevey challenges the district court’s exclusion of evidence
concerning the circumstances of his arrest. Specifically, Reevey
sought to introduce evidence challenging the officers’ version of who
fired the initial gunshots. He asserts that, because ballistics evidence
revealed that his weapons were inoperable, he could not have fired the
first shots. Reevey sought to use this evidence to discredit the offi-
cers’ testimony, asserting that they had a motive to portray him as
violent in order to avoid liability for shooting him, and that this
motive "could have potentially tainted every aspect of the investiga-
tion." The court ruled the evidence irrelevant and declined to permit
its introduction.
We are unable to find an abuse of discretion in the court’s ruling.
As the court observed, Reevey was not charged with any offense aris-
ing out of the circumstances surrounding his arrest, and the offenses
charged were completed before the shooting incident occurred. In
these circumstances, the court believed that such evidence may have
confused the issues or misled the jury. These were circumstances that
the trial court had broad discretion to address, see Fed. R. Evid. 403,
and we thus affirm its evidentiary ruling.
C.
Finally, Reevey contends that the two-level sentencing enhance-
ment for a threat of death, combined with his § 924(c) conviction and
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sentence, resulted in an impermissible double counting under the
Guidelines. As explained below, we agree with Reevey on this point.
1.
Pursuant to § 2B3.1(B)(2)(F) of the Guidelines, a sentence on a
robbery conviction may be enhanced on the basis of a threat of death
during the course of the offense.3 See U.S. Sentencing Guidelines
Manual § 2B3.1(B)(2)(F). The sentencing court imposed the threat-
of-death enhancement on Reevey because he twice threatened to
shoot Jones — first when Reevey walked Jones to the car in Rich-
mond, and a second time at the Baltimore bus station when Reevey
told Jones he would shoot him if he did not calm down. Reevey was
not holding a weapon on either occasion, and Jones did not see a
weapon when either threat was made.
Double counting occurs when a provision of the Guidelines is
applied to increase punishment on the basis of a consideration that has
been accounted for by application of another Guideline provision or
by application of a statute. See United States v. Rohwedder, 243 F.3d
423, 426-27 (8th Cir. 2001). Double counting is generally authorized
unless the Guidelines expressly prohibit it. United States v. Crawford,
18 F.3d 1173, 1179 (4th Cir. 1994). In support of his contention that
the threat-of-death enhancement constitutes impermissible double
counting, Reevey relies on the commentary to § 2K2.4 of the Guide-
lines ("Application Note 4"). Application Note 4 provides:
If a sentence under this guideline [governing § 924(c)
offenses] is imposed in conjunction with a sentence for an
underlying offense, do not apply any specific offense char-
acteristic for possession, brandishing, use, or discharge of
. . . [a] firearm when determining the sentence for the
underlying offense."
Id. § 2K2.4, cmt. n.4 (emphasis added). Pursuant to this provision, a
court may not apply an enhancement for possession or use of a fire-
arm if the defendant has also been convicted and sentenced under
3Reevey was convicted of carjacking, in violation of 18 U.S.C. § 2119,
which constitutes a robbery offense for purposes of sentencing.
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§ 924(c) for possession of that firearm in furtherance of a crime of
violence. According to Reevey, the threat-of-death enhancement was
imposed for his possession and use of the firearm underlying his
§ 924(c) conviction — i.e., his threats were to shoot Jones with the
handgun he had previously pointed at Jones. The sentencing court
rejected Reevey’s contention, however, ruling that Application Note
4’s double-counting prohibition did not apply because a threat of
death can occur absent a firearm. See id. § 2B3.1, cmt. n.6 ("‘A threat
of death,’ as used in subsection (b)(2)(F) may be in the form of an
oral or written statement, act, gesture, or combination thereof.").
Although a threat of death can occur absent a firearm, such a possi-
bility does not warrant our application of a blanket rule that the threat-
of-death enhancement can never fall within Application Note 4’s
double-counting prohibition. The relevant inquiry, under Application
Note 4, is whether the threat-of-death enhancement was applied "for
possession, brandishing, use, or discharge of an explosive or firearm."
In this case, both of the threats made by Reevey were to shoot Jones
(with a handgun that Reevey had already displayed), and they
involved the firearm Reevey was convicted of possessing under
§ 924(c). See United States v. Franks, 230 F.3d 811, 813-14 (5th Cir.
2000) (concluding that sentencing court erred in enhancing sentence
under § 2B3.1(b)(2)(F), where it was clear from evidence that threat
of death was related to use of firearm); United States v. Triplett, 104
F.3d 1074, 1081-82 (8th Cir. 1997) (employing similar analysis).4 In
4We also reject the sentencing court’s conclusion that a November
2000 amendment to Application Note 4 mandates a different result. Prior
to being amended, Application Note 4 (then designated as "Application
Note 2") referenced § 2B3.1(b)(2)(F):
Where a sentence under this section is imposed in conjunction
with a sentence for an underlying offense, any specific offense
characteristic for the possession, use, or discharge of an explo-
sive or firearm (e.g., § 2B3.1(b)(2)(A)-(F) (Robbery)) is not to be
applied in respect to the guideline for the underlying offense.
U.S. Sentencing Guidelines Manual § 2K2.4, cmt. n.2 (1999) (emphasis
added). The court concluded that, when the Sentencing Commission
removed the example referring to § 2B3.1(b)(2)(A)-(F) (Robbery), it
removed threats of death from the ambit of Application Note 4. Because
amended Application Note 4, by its plain language, continues to prohibit
the imposition of an enhancement "for possession, brandishing, use, or
discharge of . . . [a] firearm," we must disagree.
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these circumstances, the threat-of-death enhancement was imposed on
Reevey for possession and use of the firearm he was convicted of pos-
sessing under § 924(c), and application of the enhancement thus falls
within the scope of Application Note 4’s double-counting prohibition.
2.
The Government next maintains that, even if Reevey’s threats to
shoot Jones fall within the scope of Application Note 4, there was no
impermissible double counting because Reevey was convicted of two
underlying offenses — kidnapping and carjacking. Pursuant to this
contention, the threat-of-death enhancement applies only to the car-
jacking offense and the § 924(c) conviction applies only to the kid-
napping offense (or vice versa). According to the Government, a
ruling to the contrary would accord Reevey a "bulk discount" for his
criminal activity. See United States v. Griffis, 282 F.3d 443, 446-48
(6th Cir. 2002) (upholding firearm enhancement for different robbery
from that underlying § 924(c) conviction to preclude receipt of a
"bulk discount" for using same weapon). We are unable to agree with
the Government on this point.
When Application Note 4 was amended in November 2000, the
Sentencing Commission did so "to avoid the duplicative punishment
that results when sentences are increased under both the statutes and
the guidelines for substantially the same harm." U.S. Sentencing
Guidelines Manual app. C (Nov. 1, 2000) amend. 599. (emphasis
added). The problem, as the Commission explained, was that "[s]ome
courts interpreted ‘underlying offense’ narrowly to mean only the
‘crime of violence’ or ‘drug trafficking offense’ that forms the basis
for the 18 U.S.C. § 924(c) conviction." Id. To remedy this problem,
the Commission amended Application Note 4 to clarify that the term
"offense" is to be viewed as it is defined in the Guidelines. Id. And
under the Guidelines, the term offense means "the offense of convic-
tion and all relevant conduct under § 1B1.3 (Relevant Conduct)
unless a different meaning is specified or is otherwise clear from the
context." Id. § 1B1.1, cmt. n.1(H). As a result, Application Note 4
now provides that a "sentence under this guideline accounts for any
. . . weapon enhancement for the underlying offense of conviction,
including any such enhancement that would apply based on conduct
for which the defendant is accountable under § 1B1.3 (Relevant Con-
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duct)." Id. § 2K2.4, cmt. n.4. And "relevant conduct" includes con-
duct that constitutes the "same course of conduct" "with respect to
offenses of a character for which § 3D1.2(d) would require grouping
of multiple counts . . . ." Id. § 1B1.3(a)(2).
As to Reevey, the court grouped together the sentences for kidnap-
ping and carjacking under § 3D1.2(d) because they were part of "the
same course of conduct," and they "involved substantially the same
harm." For sentencing purposes, Reevey’s carjacking and kidnapping
offenses thus constitute the same "offense." Application Note 4 pro-
vides that, if a sentence is imposed on a § 924(c) offense in conjunc-
tion with a sentence for an underlying offense (in this case the
grouped kidnapping and carjacking offenses), the sentencing court is
not to "apply any specific offense characteristic for possession, bran-
dishing, use, or discharge of . . . [a] firearm when determining the
sentence for the underlying offense." Accordingly, the threat-of-death
enhancement resulted in an impermissible double counting, and the
sentencing court thereby erred.5
IV.
Pursuant to the foregoing, we affirm Reevey’s convictions. How-
ever, we vacate his sentences for carjacking and kidnapping, and we
remand for resentencing.
AFFIRMED IN PART,
VACATED IN PART, AND REMANDED
5The authorities relied on by the Government to support its "bulk dis-
count" theory are inapplicable because they each involved multiple and
distinct firearms offenses. See Griffis, 282 F.3d at 446-48 (applying
"bulk discount" theory to multiple and distinct firearms offenses); United
States v. Blake, 59 F.3d 138, 139-40 (10th Cir. 1995) (applying same
analysis to two separate bank robberies). Reevey’s convictions for car-
jacking and kidnapping were neither separate nor distinct, and they
involved "substantially the same harm."
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