United States of America v. Benjamin J. Lloyd

PRECEDENTIAL
UNITED STATES COURT OF
APPEALS
FOR THE THIRD CIRCUIT
___________
No. 03-1287
____________
UNITED STATES OF AMERICA
v.
BENJAMIN J. LLOYD,
Appellant
____________________
ON APPEAL FROM THE UNITED
STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF
PENNSYLVANIA
District Court Judge: Honorable Maurice
B. Cohill, Jr.
(No. 02-CR-139)
____________________
Argued: October 22, 2003
Before: ALITO, FUENTES, and
ROSENN, Circuit Judges
(Opinion Filed: March 17, 2004 )
MARK A. SINDLER (Argued)
429 Forbes Avenue, Suite 450
Pittsburgh, PA 15219
Wilmington, DE 19801
Counsel for Appellant
MARY BETH BUCHANAN
BONNIE R. SCHLUETER
KELLY R. LABBY (Argued)
Post Office and Courthouse
700 Grant Street, Suite 400
Pittsburgh, PA 15219
Counsel for Appellee
____________________
OPINION OF THE COURT
____________________
ALITO, Circuit Judge:
Benjamin J. Lloyd appeals a
judgment of conviction and sentence. He
argues that his offense level was
improperly adjusted upward under
U.S.S.G. § 2K2.1(b)(5) as that provision
was interpreted in United States v.
Fenton, 309 F.3d 825 (3d Cir. 2002).
Because we hold that his offense level
was correctly determined, we affirm.
I.
Lloyd was alleged to be part of a
drug ring headed by Armando Spataro.
On July 1, 2001, Spataro was involved in
a dispute with a man named Thomas
Learn, whom he accused of “hitting on”
a woman whom Spataro had been dating.
Several days later, Lloyd, Spataro, and
other members of the drug ring conferred
about how best to get even with Learn.
Some members of the group had
apparently started dabbling in bomb-
making (with the aid of instructions
downloaded from the Internet), and it
was decided that a bomb should be built

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and placed under the fuel tank of Learn’s
truck.
Spataro and another member of
the ring (not Lloyd) accordingly set out
to purchase materials and construct the
bomb. On the morning of July 4, 2001,
Spataro gave the completed bomb to
Lloyd and some others, with instructions
to position the bomb as planned and to
detonate it. Upon arriving at Learn’s
residence, Lloyd, acting alone, placed the
device under the fuel tank of Learn’s car,
lit the fuse (which consisted of a
cigarette), and fled the scene with his
companions. Lloyd was later paid $100
for this act.
Contrary to the wishes of Spataro
and friends, the scheme did not succeed.
Later that day, as Learn was about to
enter the truck, his dog alerted him to the
presence of the undetonated device under
the vehicle. Learn contacted the
authorities, who disassembled and
examined the bomb. The authorities
concluded that the bomb was “capable of
exploding” and would have exploded had
it not been for the “malfunction of the
cigarette.”
Learn informed the police that he
suspected that Spataro might have been
behind the failed plot. Lloyd, Spataro,
and several of their companions were
subsequently apprehended and indicted
by a grand jury sitting in the Western
District of Pennsylvania. Lloyd was
charged under two counts: possession of
an unregistered destructive device, in
violation of 26 U.S.C. § 5861(d), and
conspiracy to violate that provision, in
violation of 18 U.S.C. § 371. Lloyd pled
guilty to both counts.
In the process of calculating
Lloyd’s sentence, the presentence report
recommended that the District Court add
four points to Lloyd’s base offense level
pursuant to U.S.S.G. § 2K2.1(b)(5),
which provides for such an adjustment
when it is found that a defendant “used
or possessed any firearm . . . in
connection with another felony offense;
or possessed or transferred any firearm . .
. with knowledge, intent, or reason to
believe that it would be used or
possessed in connection with another
felony offense . . . .”
Lloyd objected to the proposed
adjustment, contending that the allegedly
felonious conduct on which the proposed
adjustment was based was essentially the
same conduct that formed the basis for
the underlying counts to which he had
pled guilty. This, he argued, was
contrary to this Court’s decision in
United States v. Fenton, 309 F.3d 825
(3d Cir. 2002), which held that
§ 2K2.1(b)(5) requires “another felony
offense,” separate and apart from the
base offense. Id. at 828 (emphasis
added). The District Court, however,
found that the act of placing the bomb
and igniting it was sufficiently different
from the acts of conspiracy and
possession so as to distinguish this case
from Fenton. The District Court
accordingly applied the four-point

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adjustment prescribed under
§ 2K2.1(b)(5). Lloyd now disputes that
holding on appeal.
II.
A.
Section 2K2 of the Sentencing
Guidelines governs sentence
determinations for convictions based on
violations of federal firearms laws. In
particular, § 2K2.1(b)(5) of the
Sentencing Guidelines provides for a
four-offense-level adjustment for a
firearms offense if the defendant used or
possessed any firearm “in connection
with another felony offense” or “with
reason to believe that it would be used or
possessed in connection with another
felony offense.”
The use in § 2K2.1(b)(5) of the
phrase “another felony offense” — as
opposed to “any felony offense” —
represents an attempt by the drafters of
the Sentencing Guidelines to avoid the
“double counting” of certain elements of
criminal activity already incorporated
into the base offense level. For example,
if a defendant is convicted of the crime
of being a fugitive in possession of a
firearm (a felony under 18 U.S.C.
§ 922(g)(2)), it would make little sense to
adjust the defendant’s offense level
upward because he possessed the firearm
in connection with the very felony of his
conviction (that is, fugitive possession of
a firearm). The word “another” avoids
just such an absurd result.
Nevertheless, while it is clear that
a felony conviction leading to a sentence
cannot be bootstrapped to enhance itself
under § 2K2.1(b)(5), it is equally clear
that the guideline was not intended to
exclude only the technical offense of
conviction from the scope of “another
felony offense.” In this regard, it is
instructive to note that the Supreme
Court has held that where two crimes
each require proof of some element that
the other does not, they may be
considered effectively distinct in a
variety of contexts: in determining
whether there has been a violation of the
Fifth Amendment prohibition against
double jeopardy, Brown v. Ohio, 432
U.S. 161, 164-166 (1977); in identifying
the offenses to which the Sixth
Amendment right to counsel attaches,
Texas v. Cobb, 532 U.S. 162 (2001); and
in deciding as a matter of statutory
interpretation when Congress intended to
affix multiple punishments to the same
conduct, Blockburger v. United States,
284 U.S. 299 (1932). Analogizing from
this line of cases, at least one court of
appeals has explicitly employed the
“Blockburger” element-based analysis in
the context of § 2K2.1(b)(5) for the
purposes of determining when a crime is
“another felony offense.” United States
v. Blount, 337 F.3d 404 (4th Cir. 2003);
see id. at 409 (noting that Blockburger is
easier to apply than any “vague iterations
of the ‘closely related to’ or ‘inextricably
intertwined with’ test,” citing Cobb, 532
U.S. at 173). Although we have not
heretofore applied Blockburger in
connection with § 2K2.1(b)(5), we

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believe that the “distinction in time or
conduct” test set forth in Fenton requires
that a felony offense must at least satisfy
Blockburger before it may be used to
adjust a sentence upward under
§ 2K2.1(b)(5).
On the other hand, we also
explained in Fenton that Application
Note 18 to U.S.S.G. § 2K2.1 (“Note 18”)
suggests, at least with respect to a certain
category of cases, a slightly narrower
understanding of the phrase “another
felony offense” — an understanding that
yields a more limited scope for
§ 2K2.1(b)(5) than would result from a
strict application of Blockburger across
the board. Note 18 explicitly elaborates
on the meaning of “another felony
offense”:
As used in subsection[]
(b)(5) . . . “another felony
offense” . . . refers to
offenses other than . . .
firearms possession or
trafficking offenses.
However, where the
defendant used or
possessed a firearm or
explosive to facilitate
another firearms or
explosives offense (e.g.,
the defendant used or
possessed a firearm to
protect the delivery of an
unlawful shipment of
explosives), an upward
departure under § 5K2.6
(Weapons and Dangerous
Instrumentalities) may be
warranted.
U.S.S.G § 2K2.1, cmt. n.18 (emphasis
added).1 In other words, regardless of
the interpretation given to the word
“another” in 2K2.1(b)(5), “firearms
possession or trafficking offenses” are
categorically removed from the set of
crimes that may constitute “another
felony offense.”2
Thus, in United States v.
Boumelhem, 339 F.3d 414 (6th Cir.
2003), the Sixth Circuit held that the
offense level of a man convicted of a
firearms possession felony could not be
adjusted under § 2K2.1(b)(5) on the basis
of a conspiracy to violate 18 U.S.C.
§ 922(e) (delivery of a firearm or
1Commentary to the Sentencing
Guidelines is authoritative unless it
violates the Constitution or a federal
statute or is clearly inconsistent with the
text of the Guidelines. Stinson v. United
States, 508 U.S. 36, 40-48 (1993).
2While some criminal defendants have
attempted to argue that the term
“trafficking offenses” should be read as
referring only to drug trafficking
offenses, courts have uniformly rejected
such arguments. See, e.g., United States
v. Gomez-Arrellano, 5 F.3d 464, 466
(10th Cir. 1993) (“[The phrase]
‘trafficking offenses’ as used in . . . Note
18 refers only to weapons trafficking
offenses, and not to drug trafficking
offenses.”).

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5
ammunition to a common carrier for
shipment without written notice to the
carrier). The defendant argued that the
§ 922(e) charge was not “another felony
offense” for the purposes of
§ 2K2.1(b)(5), since the “conspiracy to
ship or transport firearms and
ammunition in foreign commerce [was] a
‘firearms trafficking offense’ as that
phrase is used in [Note 18].” Id. at 427.
The Court agreed, and the sentence was
vacated and remanded for
reconsideration. In order to understand
this decision, it is important to note that,
while § 922(g) and § 922(e) clearly
constitute distinct felonies under
Blockburger (since each requires proof
of an element that the other does not),
Note 18 operated nonetheless to take the
conspiracy to violate § 922(e) outside the
scope of the term “another felony
offense.” Similarly, in United States v.
English, 329 F.3d 615 (8th Cir. 2003),
where a defendant’s sentence for felony
firearm possession had been enhanced
because the defendant had sold the guns
associated with the possession offense,
the Eighth Circuit pointed out that the
sale of firearms constituted “trafficking”
under Note 18, and that, accordingly, the
sale could not be counted as “another
felony offense.” Id. at 617.
While it is thus clear that a
“firearms possession or trafficking
offense” cannot be “another felony
offense” under § 2K2.1(b)(5), it is
equally clear that there is some narrow
disagreement among the courts of
appeals regarding the precise scope of
the term “firearms possession . . .
offense.” For example, the Eighth
Circuit has held that “a firearms offense
is necessarily an offense which contains,
as an element, the presence of a firearm.”
English, 329 F.3d at 618. Under this
view, felony crimes of theft or burglary
are not considered firearms possession
offenses, even if the objects taken
happened to be firearms. United States
v. Kenney, 283 F.3d 934, 937-38 (8th
Cir. 2002) (“[B]ecause [the defendant's]
burglary offense is not specifically
excluded from consideration [under Note
18], it constitutes ‘another felony
offense’ in addition to the firearms
possession offense.”); see also English,
329 F.3d at 618 (“The Kenney Court
read [Note 18] narrowly . . . .”).
Likewise, the felony of “possession of
stolen property,” while undoubtedly a
possession offense, would not be a
firearms possession offense, and so
would fall outside the scope of Note 18.
English, 329 F.3d at 619 (“[T]he gist of
[Iowa Code § 714.1(4)] is the knowing
possession of property of a certain value,
whether or not that property happens to
be a gun.”).
By contrast, our Court and the
Sixth and Seventh Circuits have taken a
broader view of what constitutes a
firearms possession offense. For
example, in United States v. Szakacs,
212 F.3d 344 (7th Cir. 2000), the
Seventh Circuit, while noting that the
language of Note 18 was somewhat
“equivocal,” ultimately held that the fact
that the burglary in that case involved the

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theft of weapons “arguably [made] the
burglary a ‘possession or trafficking
offense’ in the general sense that [Note
18] uses the phrase.” Szakacs, 212 F.3d
at 350. The Szakacs court found that the
phrase “possession and trafficking
offenses” suggested “a level of generality
. . . to indicate that breaking into and
entering a building to steal weapons
would be one of the ‘possession and
trafficking offenses’ excluded from
‘another felony offense.’” Id.; see also
United States v. Scolaro, 299 F.3d 956,
961 n.6 (8th Cir. 2002) (Bright, J.,
dissenting) (criticizing Kenney’s analysis
of Note 18, comparing Application Note
12 to § 2K2.1 and noting the relatively
broad, unspecific language used in Note
18 to describe the offenses excluded
under § 2K2.1(b)(5)).
The Sixth Circuit and our Court
have similarly found that the theft or
burglary of firearms is effectively a
firearms possession offense. See United
States v. Sanders, 162 F.3d 396, 399 (6th
Cir 1998) (“[Note 18] states that ‘another
felony offense’ refers to offenses other
than the firearms possession or
trafficking offenses. In this case there
was one offense — the burglary of the
pawnshop — which resulted in
Defendant’s possession of the instant
firearms.”); Fenton, 309 F.3d at 827
(“[Note 18] refers to offenses other than
the firearms possession offense. In this
case, there was no other offense. . . .
Fenton’s conduct was essentially stealing
objects from the sporting goods store . . .
.”); see also United States v. King, 341
F.3d 503, 507 (“[T]he defendants in
Sanders inevitably possessed firearms
upon completion of the burglary because
the firearms were among the items taken
during the burglary.”).
We read Fenton (as well as
Sanders and Szakacs, upon which Fenton
relied) as standing for the proposition
that, where a defendant is convicted for
possession of firearms resulting from a
theft of those same firearms, that theft is
effectively a “firearms possession . . .
offense” under Note 18, since that crime
necessarily involves a taking and
carrying away of the firearms involved.
Accordingly, under Fenton, sentences
resulting from such convictions may not
be adjusted upwards under
§ 2K2.1(b)(5), because there does not
exist “another felony offense.”3
B.
Our reading of Fenton must also
be understood as rejecting an approach
that would read too much into its
“distinction of time or conduct”
requirement. In fact, the Sixth and
Seventh Circuits, from which we
originally borrowed the “distinction of
3Of course, Note 18 acknowledges
that where firearms are used to facilitate
a firearms possession or trafficking
offense, the sentence may still be
adjusted upwards in appropriate cases
under § 5K2.6 (Weapons and Dangerous
Instrumentalities).

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time or conduct” language, have both
since implicitly disavowed any
understanding of that language that
would so limit the scope of § 2K2.1(b)(5)
as to contravene the intent of the drafters
of the Guidelines. See King, 341 F.3d at
503; United States v. Purifoy, 326 F.3d
879 (7th Cir. 2003). For example, in
King, the defendant (King) had gotten
into a heated argument with a neighbor,
and the argument culminated in King’s
going home, obtaining a shotgun, and
returning to the neighbor’s driveway,
where he proceeded to point the gun
threateningly at the neighbor’s face and
chest until the police arrived. King, 341
F.3d at 506. King argued that it was
improper to apply § 2K2.1(b)(5) in his
case, because the “conduct upon which
he was convicted (felon in possession)
was the same conduct the court used to
enhance his sentence.” Id. at 505. The
Sixth Circuit found that “[t]he incredulity
of [King’s] argument renders it wholly
unpersuasive.” Id. at 507.
Similarly, in Purifoy, the
defendant (Purifoy), who had been
surprised by the sudden entry of police
officers to execute a search warrant, ran
into a bedroom, grabbed a loaded gun,
and pointed it at one of the officers for
15 seconds before ultimately dropping it.
Purifoy argued that the “aggravated
assault was not ‘another crime’ for
purposes of § 2K2.1(b)(5) because it
occurred simultaneously with his federal
offense of possession of a firearm by a
felon.” Purifoy, 326 F.3d at 880. The
Seventh Circuit rejected this argument
fairly summarily, finding a distinction in
conduct despite the practical
contemporaneity of the possession and
the assault. Id. at 881.
We agree with the common-sense
outcomes of King and Purifoy, although
not necessarily with all of the reasoning
used to arrive at those outcomes. For
example, the King court, in
distinguishing Sanders, emphasized the
temporal sequence and separability of
King’s actions: “Appellant first
possessed the gun (offense of conviction)
and then used the gun (enhancement
conduct).” King, 341 F.3d at 506
(emphasis in original). But King did not
explain why this same analysis would not
just as easily have barred application of
§ 2K2.1(b)(5) in Sanders, as well. After
all, it could be argued that the Sanders
defendant first broke into the pawn shop
with the intent to commit a felony
(enhancement conduct) and then took
and possessed the gun (offense of
conviction). Under Sanders, it would
seem that the mere fact that a criminal
episode may be broken down into a
series of separate actions would not
necessarily be enough to create a
“distinction in time or conduct.”
With respect to Purifoy, there is
some suggestion that the Court was
willing to find a distinction between the
firearm possession and the assault simply
because of “the increased danger created
by [the assault].” Purifoy, 326 F.3d at
881. While that increased danger would
no doubt “justif[y]” an increased

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sentence as a matter of policy, id., it is
clear that § 2K2.1(b)(5) does not, by its
own terms, apply only when the “other”
felony poses some threshold risk of
physical harm.4
We believe the better (and
simpler) approach to cases like King and
Purifoy would proceed by following the
analysis of § 2K2.1(b)(5) that we
outlined above. First, there can be no
doubt that “possession of firearms by a
felon” and “assault” are separate offenses
under Blockburger, since each crime
requires proof of at least one element that
the other does not. Second, it is clear
that, whatever the precise scope of the
term “firearms possession and trafficking
offenses” in Note 18, it cannot seriously
be read as including the felony of assault
with a firearm; otherwise, the Note 18
“exception” would effectively swallow
the § 2K2.1(b)(5) rule.5 Accordingly, the
crime of assault involves a sufficient
“distinction . . . in conduct” from the
crime of possession so as to constitute
“another felony offense” for the purposes
of § 2K2.1(b)(5).
C.
Armed with this understanding of
§ 2K2.1(b)(5) and Fenton, we find that
this case quite clearly presents “another
felony offense” as that term from the
Guidelines is to be properly understood.
The felony offense alleged here is that of
criminal mischief under Pennsylvania
state law.6 The government alleges that
4Indeed, even if that were the case, it
would not explain why a crime like
burglary could not meet that threshold.
5There are, in fact, hints of this line of
reasoning in the King and Purifoy cases,
both of which distinguished their
predecessors (Sanders and Szakacs) by
stressing that those earlier cases involved
only possession, rather than “use,” of the
firearms at issue. See King, 341 F.3d at
506 (stating that King’s use of gun went
beyond “mere possession”); Purifoy, 326
F.3d at 881 (“[Purifoy’s] offense of
conviction . . . involved mere possession
of the firearm.”). Such an emphasis is
consistent with the Note 18 analysis that
disallows enhancement under
§ 2K2.1(b)(5) for firearms possession or
trafficking offenses, but not for offences
involving other uses of a firearm (such as
assault).
We note that the characterization
of theft or burglary of a firearm as a
“firearms possession offense” without a
doubt marks the extreme outer limits of
that category. In this sense, the fact
patterns of cases such as Sanders,
Szakacs, and Fenton are practically sui
generis in terms of the inapplicability of
§ 2K2.1(b)(5).
6The government also argues that
Lloyd committed reckless endangerment
in placing and lighting the bomb. See 18
Pa.C.S. § 2705. Because we find the
criminal mischief theory sufficient to
sustain the sentence enhancement, we

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Lloyd possessed the homemade bomb
with “knowledge, intent, or reason to
believe that it would be used . . . in
connection with” an explosion causing at
least $1,000 damage to property
belonging to another. See U.S.S.G.
§ 2K2.1(b)(5); 18 Pa. C.S.A. § 3304.
Criminal mischief is a second-degree
misdemeanor punishable by up to two
years of incarceration when it involves
over $1,000 of damage, and that is
sufficient to constitute a “felony” under
Application Note 7 to § 2K2.1. See
U.S.S.G. § 2K2.1, cmt. n.7 (defining
“felony offense” as “any offense (federal,
state, or local) punishable by
imprisonment for a term exceeding one
year, whether or not a criminal charge
was brought, or conviction obtained”);
18 Pa. C.S.A. § 106(b)(7) (second-degree
misdemeanor punishable by “term of
imprisonment . . . not more than two
years”); 18 Pa. C.S.A. § 3304(b).
There is no question that criminal
mischief is a crime distinct from the
crime of possession of unregistered
explosives under Blockburger. The
former requires proof of damage or
endangerment to person or property,
which is not required for the latter; the
latter requires proof of nonregistration of
a firearm or destructive device in the
National Firearms Registration and
Transfer Record, which is not required
for the former. Moreover, criminal
mischief is clearly not a “firearm
possession offense” under Note 18. The
criminal mischief alleged here is more
similar to the crime of assault (as in King
and Purifoy) than it is to the crimes of
burglary or theft that result in possession
of firearms (as in Sanders, Szakacs, and
Fenton). As with the firearms in King
and Purifoy, the manner in which Lloyd
used the bomb extended far beyond
simple possession or trafficking.
Accordingly, we hold that the
Pennsylvania second-degree
misdemeanor of criminal mischief
constitutes “another felony offense”
distinct from the felony of possession of
an unregistered destructive device.
Although we decide this appeal in
favor of the government, we decline to
adopt the line of reasoning set forth in its
brief, which is similar to that advanced
by the Sixth Circuit in King: “At a
distinct point . . . Lloyd moved beyond
mere possession when he took the bomb
and strategically positioned it under the
fuel tank of Learn’s truck and lit it. At
that point, Lloyd committed ‘another
felony offense’ . . . .” Appellee Br. at 22.
While this focus on the temporal
separation of the events comprising the
larger criminal episode has a certain
appeal, it is quite clearly not the
approach taken in Fenton, where the
Court declined to similarly separate for
analytic purposes the breaking and
entering (burglary) from the taking of the
firearms (possession). Fenton binds this
panel, and we believe that our approach,
which relies instead on Blockburger and
Note 18, is ultimately more faithful to
need not reach this alternative argument.

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Fenton’s spirit.
III.
Lloyd presents one final argument
on appeal. He alleges that, even
assuming that the government has
properly alleged “another felony
offense,” there are still “insufficient facts
by which to find that [he] intended to
commit” criminal mischief. Appellee Br.
at 9. The basis of this argument appears
to be that the District Court never made
any explicit finding that the possible or
expected damage to Learn’s truck would
have exceeded $1,000 if the bomb had
properly detonated. If satisfaction of the
$1,000 threshold cannot be proved,
argues Lloyd, then the criminal mischief
offense would have been of a lower
grade, would not have been punishable
by at least a year of incarceration, and
hence would not constitute a felony
under Application Note 7 to § 2K2.1.
As Lloyd acknowledges, the
government is required to prove facts
underlying a sentence enhancement only
by a preponderance of the evidence.
United States v. Givan, 320 F.3d 452 (3d
Cir. 2003). Moreover, the text of
§ 2K2.1(b)(5) of the Guidelines makes
clear that a defendant need not have
actually committed “another felony
offense” to be eligible for an
enhancement thereunder; rather, it is
sufficient if the defendant “possessed . . .
any firearm . . . with knowledge, intent,
or reason to believe that it would be used
or possessed in connection with another
felony offense.”
The preponderance of the
evidence in this case demonstrates that
Lloyd intended or had reason to believe
that his actions in connection with the
bomb would result in at least $1,000 of
damage to Learn’s truck. Lloyd’s claim
that the record contains “no reference to
the capability of [the] bomb” is plainly
incorrect. The facts disclosed in Lloyd’s
Presentence Report (which the District
Court adopted in full, see App. 20)
indicate that (1) Spataro and an associate
had constructed and successfully
detonated a bomb prior to the
construction of the bomb that was placed
under Learn’s truck, PSR ¶ 11, (2) the
second bomb, like the first, contained a
number of M-80-type explosive devices
filled with a “perchlorate explosive
mixture,” PSR ¶¶ 7, 10, (3) the second
bomb also contained “a quantity of
ammonium nitrate prills, and a number of
shotgun shells,” PSR ¶ 7, and (4) “[i]n
the opinion of the laboratory expert, the
device would have exploded had it been
properly lit,” PSR ¶ 7. Indeed, at his
change-of-plea proceedings held on
September 24, 2002, Lloyd explicitly
acknowledged that the bomb was
“capable of exploding.” App. 43.
Nevertheless, Lloyd contends that
if the bomb had detonated it would have
caused little damage to the truck “by
virtue of most of the heat and/or energy
following paths of least resistance: to any
of the sides of [the] explosive device.”
App. 62. We are not readily convinced

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by this argument, especially given the
placement of the bomb under the fuel
tank, PSR ¶ 13, the newness of the
vehicle (a 2001 Chevrolet Silverado) at
the time of the failed stunt (July 4, 2001),
PSR ¶ 6, and the relatively low $1,000
threshold required under the criminal
mischief statute. Moreover, even
assuming, arguendo, that the bomb
would not have caused $1,000 of damage
had it exploded, what matters for the
purposes of this case is how much
damage Lloyd intended to cause or
believed would be caused by the bomb.
Simply put, we cannot believe that Lloyd
and Spataro would have chosen a bomb
as their instrument of revenge had they
intended to cause only minor harm to
Learn’s vehicle. Nor would Lloyd have
deliberately placed the bomb under the
fuel tank had he not hoped that the bomb
would ignite the gasoline in the tank.
The obvious point of the entire scheme
was to cause significant destruction; it
defies reason to think that Lloyd could
honestly have believed or intended that
the detonation of the bomb beneath the
fuel tank of Learn’s recent-model truck
would result in something less than
$1,000 of damage. The government
satisfied its burden of proof here.
IV.
Because the District Court
properly applied § 2K2.1(b)(5) in
determining Lloyd’s sentence, we affirm.

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