On Appeal from the United States District Court for the Eastern District of Pennsylvania. (D.C. No. 94-cr-00083).
Before: Cowen, Lewis and Garth Circuit Judges.
In this appeal, we are asked to decide whether the district court erred: (1) in ruling that eight firearm counts in the indictment formed five separate groups under U.S.S.G. § 3D1.2, instead of a single group; and (2) when, in sentencing the defendant under the more favorable 1990 sentencing guidelines, it failed to accord the defendant an additional point for acceptance of responsibility as is permitted under § 3E1.1 pursuant to the 1993 sentencing guidelines. Because we conclude that the district court did not err in applying and interpreting the Sentencing Guidelines, we will affirm the sentence of appellant in all respects.
I. FACTUAL AND PROCEDURAL HISTORY
Between May 22, 1989 and June 26, 1991, appellant Gregory Griswold ("Griswold") purchased seven firearms from a licensed firearms dealer in Philadelphia. Specifically, he purchased two firearms on May 22, 1989, two more on August 8, 1989, and one each on October 6, 1989, March 4, 1991, and June 26, 1991. On the first three occasions, Griswold used the fictitious name of "Julius H. Collier, Jr." The last two times he used the name "Robert Saunders." For each firearm, he completed the standard "Firearms Transaction Record" of the Bureau of Alcohol, Tobacco, and Firearms. On the form, he misrepresented that he had never been convicted in any court of a crime punishable by imprisonment for a term exceeding one year, when, in fact, he had previously been convicted of third degree homicide. On July 11, 1991, Philadelphia Police Officers, while executing a search warrant at a residence in Philadelphia, found Griswold in possession of two of the illegally purchased firearms.
On February 23, 1994,*fn1 a federal grand jury in the Eastern District of Pennsylvania returned an indictment charging Griswold with seven counts of making false statements to a licensed dealer in connection with the acquisition of a firearm, in violation of 18 U.S.C. § 922(a)(6), and one count of unlawful possession of firearms by a previously convicted felon, in violation of 18 U.S.C. § 922(g)(1).*fn2 Griswold entered into a plea agreement with the government and on May 16, 1994, he entered a plea of guilty to all eight counts. The plea agreement contained several stipulations relevant to the computation of Griswold's sentencing guideline range. Because the Commission had amended § 2K2.1 after Griswold committed the charged offenses, the 1993 version would have resulted in a harsher sentence than the version in effect when he committed the offenses, raising a possible ex post facto challenge. Both parties agreed that the version of U.S.S.G. § 2K2.1 effective November 1, 1990 was the applicable guideline for determining the offense level of the firearms offenses.*fn3 The parties further stipulated that the eight firearms offenses constituted a single group under U.S.S.G. § 3D1.2.*fn4
However, over Griswold's objection at sentencing, the probation office concluded and the district court agreed, that the application of U.S.S.G. § 3D1.2 to the eight firearms offenses yielded five separate groups, not a single group as the parties had stipulated. As a result of the district court's grouping of the firearms offenses into five groups, Griswold's offense level was increased to 17, which would have made him eligible for a three-level reduction for acceptance of responsibility under § 3E1.1 of the 1993 guidelines. However, the district court concluded that the 1990 version of § 3E1.1 was controlling and granted only a two-level reduction. This appeal followed.
The district court had jurisdiction to entertain this criminal matter pursuant to 18 U.S.C. § 3231 insofar as the defendant was charged with offenses against the laws of the United States under 18 U.S.C. §§ 922(a)(6), 924(a), and 922(g)(1). Our jurisdiction is premised on 28 U.S.C. § 1291 (appeal from a final judgment of a district court) and 18 U.S.C. § 3742(a)(2) (appeal from a final sentence).
A district court's application and interpretation of the Sentencing Guidelines is subject to plenary review. United States v. Mobley, 956 F.2d 450, 451-52 (3d Cir. 1992); see United States v. Riviere, 924 F.2d 1289, 1304 (3d Cir. 1991) (construction of § 3D1.2 is a legal issue subject to plenary review). However, a determination of whether various offenses are part of one overall scheme is essentially a factual issue which we review under a clearly erroneous standard. United States v. Cusumano, 943 F.2d 305, 313 (3d Cir. 1991), cert. denied, 502 U.S. 1036, 112 S. Ct. 881, 116 L. Ed. 2d 785 (1992) (citing United States v. Ortiz, 878 F.2d 125, 126-27 (3d Cir. 1989). Finally, when reviewing the appropriateness of a grouping, deference must be given to the district court. United States v. Seligsohn, 981 F.2d 1418, 1426 (3d Cir. 1994), cert. denied, __ U.S. __, 115 S. Ct. 1143 (1995) (citing United States v. Beard, 960 F.2d 965, 969 (11th Cir. 1992)).