*fn*.,Thomas S. White Federal Public Defender Karen Sirianni Gerlach (Argued) Assistant Federal Public Defender 415 Convention Tower 960 Penn Avenue Pittsburgh, Pennsylvania,UNITED STATES OF AMERICA, APPELLEE, v. DAVID GEORGE BRANNAN, APPELLANT." />

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U.S. v. Brannan

January 12, 1996

UNITED STATES OF AMERICA, APPELLEE,

v.

DAVID GEORGE BRANNAN, APPELLANT.



On Appeal from the United States District Court for the Western District of Pennsylvania (D.C. No. 94-cr-200)

Before: SLOVITER, Chief Judge, ALITO, Circuit Judge, and

RENDELL, District Judge *fn*.

Argued September 13, 1995

Filed January 12, l996

OPINION OF THE COURT

The events giving rise to the instant offense involved the accidental discharge of a gun while it was being removed from the trunk of a car in western Pennsylvania. Brannan testified that he was interested in selling the gun; he and a friend, Peter Andrulat, traveled on Friday evening, September 11, 1992, to a neighboring town because Andrulat believed that his friend, Richard Hopkins, would be interested in purchasing it.*fn3 Brannan indicated that the three men met briefly at a restaurant and then went out to Andrulat's car to show Hopkins the gun; as the gun was being removed from the trunk, it accidentally discharged, and the bullet struck Hopkins in the upper thigh area, severing his femoral artery and causing him to bleed to death.

Brannan pled guilty to involuntary manslaughter in the Court of Common Pleas of Washington County and was sentenced to 18-60 months, less one day, of imprisonment, which he began to serve on June 6, 1994. On August 30, 1994, nearly two years after the underlying incident occurred, Brannan was indicted in federal court for having been a felon in possession of a firearm. He pled guilty on October 31 and was sentenced on February 10, 1995. At the time of his sentencing, Brannan was serving the sentence for involuntary manslaughter.

The presentence report prepared for sentencing Brannan recommended a four-level enhancement pursuant to U.S.S.G. Section(s) 2K2.1(b)(5), which provides for such an enhancement where the defendant "used or possessed any firearm . . . in connection with another felony offense." The probation officer gave the following reason to justify the enhancement:

During the course of the instant offense, the firearm that the defendant possessed discharged, striking Mr. Hopkins and killing him. This resulted in the defendant's conviction of Involuntary Manslaughter.

Brannan filed two objections to the presentence report prior to sentencing. First, he objected to the four-level enhancement of his offense level under Section(s) 2K2.1(b)(5). Second, he argued that he should have been given credit for the time he had spent incarcerated in Washington County on the manslaughter conviction under U.S.S.G. Section(s) 5G1.3, which would have reduced his sentence for the federal offense by several months.

In addition to objecting to the presentence report, Brannan also requested a downward departure based on his family ties, his employment history, and his employment prospects, relying upon U.S.S.G. Section(s) 5K2.0, 5H1.5, and 5H1.6. The government, in turn, requested an upward departure under U.S.S.G. Section(s) 4A1.3, arguing that Brannan's criminal history category under-represented the seriousness of his criminal history.

At the time of sentencing, Brannan argued that U.S.S.G. Section(s) 2K2.1(b)(5) requires a showing of his intent to use a firearm in order for the enhancement to be applicable. Section 2K2.1(b)(5) provides that if a defendant used or possessed a firearm in connection with another felony or if a defendant possessed or transferred a firearm with knowledge or intent that it would be used or possessed in connection with another felony, the offense level should be increased by four levels.

He argued that the knowledge and intent element in the second clause should be interpreted to apply to the concept of "used or possessed" in the first clause. Under Brannan's interpretation, the alleged negligent handling of the firearm involved in the instant set of facts should not have given rise to the four-level increase in offense level.

The sentencing judge indicated his concern with applying the four-level enhancement under Section(s) 2K2.1(b)(5) to the negligent use of a firearm involved in this set of facts. In applying the section as written, however, he found that no element of intent was necessary under the Guidelines, ...


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