News You Can Use: Tenth Circuit Rules It’s Plain Error to Fail to Group Bank Robbery and Felon in Possession Convictions under USSG §§ 3D1.1-1.5.

In United States v. Rafal, No. 17-4107, 2018 WL 4275865 (10th Cir. Sept. 7, 2018), the Tenth Circuit, on plain error, vacated a sentence where the district court failed to group bank robbery and felon in possession of a firearm convictions under U.S.S.G. §§ 3D1.1-1.5, the Guidelines for determining a single offense level that encompasses all the counts of conviction.

Facts:  Mr. Rafal robbed a bank and had a gun with him when he was arrested minutes later.  He pleaded guilty to one count of bank robbery and one count of being a felon in possession of a firearm.  The PSR did not group his two counts of conviction under U.S.S.G. §§ 3D1.1-1.5.

Instead, in calculating the offense level for the bank robbery, the probation officer applied a base level offense of 20 and then added five more levels because “a firearm was brandished or possessed” during the robbery.  See U.S.S.G. §2B3.1(a) and 2B3.1(b)(2)(C) respectively.

Then, in calculating a total, combined offense level for the two counts, the probation officer erroneously added 1 level for the felon in possession conviction as a “multiple-count adjustment,” pursuant to U.S.S.G. § 3D1.4.  Defense counsel didn’t object, and the district court judge didn’t catch the error either.  When sentencing Mr. Rafal, the district court adopted the probation department’s miscalculation.  The circuit vacated Mr. Rafal’s sentence and remanded his case for resentencing.

Issue:  Was it plain error to fail to group bank robbery and felon in possession convictions under U.S.S.G. §§ 3D1.1-1.5? 

Holding:  Yes, said the Tenth Circuit, “because the felon-in-possession-of-a-firearm count embodies conduct that was treated as a specific offense characteristic of the bank-robbery count.” Op. at 6. 

Takeaways:  This case is unpublished, but it serves as a good reminder: read the Guidelines! No one — not the probation officer, not defense counsel, and not the district court — noticed a plain Guidelines error that was clear and obvious based on the text of the Guidelines alone.  Application note 5 of § 3D1.2 specifically states “use of a firearm in a bank robbery and unlawful possession of that firearm are sufficiently related to warrant grouping of counts under this subsection.” 


Author: COFPD

Federal Public Defender's Office for the Districts of Colorado and Wyoming