Professional Documents
Culture Documents
No. 13-4108
Appeal from the United States District Court for the Eastern
District of North Carolina, at Raleigh.
Terrence W. Boyle,
District Judge. (5:05-cr-00166-BO-1)
Argued:
Decided:
June 9, 2014
Affirmed in
part,
reversed
in
part,
and
remanded
with
instructions by published opinion.
Judge King wrote the
opinion, in which Judge Wilkinson and Judge Floyd joined.
ARGUED:
Joseph
Edward
Zeszotarski,
Jr.,
GAMMON,
HOWARD,
ZESZOTARSKI, PLLC, Raleigh, North Carolina, for Appellant. Seth
Morgan Wood, OFFICE OF THE UNITED STATES ATTORNEY, Raleigh,
North Carolina, for Appellee.
ON BRIEF:
Thomas G. Walker,
United States Attorney, Jennifer P. May-Parker, Assistant United
States Attorney, Kristine L. Fritz, Assistant United States
Attorney, OFFICE OF THE UNITED STATES ATTORNEY, Raleigh, North
Carolina, for Appellee.
of
conviction
entered
against
him
by
the
district
convictions.
As
described
in
particular
below,
we
calculated
we
do
not
remand
for
Barefoot
to
be
resentenced.
I.
A.
Acting on information supplied by a confidential informant
to the Bureau of Alcohol, Tobacco and Firearms (the ATF), a
deputy
of
the
Johnston
County,
North
Carolina
Sheriffs
quite
two
hours
later,
the
ATF
executed
search
with
several
explosive
cartridges
freezer.
Daniel,
others,
turned
wrapped
eighteen
in
years
up
two
newspaper
old
and
Kinestik
and
binary
stored
Klansman
in
in
a
his
fathers group, told federal agents that Barefoot had given him
the explosives, which other residents referred to as liquid
dynamite.
On August 20, 2002, Barefoot was indicted in the Eastern
District of North Carolina on a single count of possessing a
firearm while subject to a domestic violence restraining order,
in violation of 18 U.S.C. 922(g)(8).
Attorney
for
the
Eastern
3
District
of
North
Carolina
Paragraph 4
and
4.f
referred
truthfully
to
in
Barefoots
interviews
obligation
with
to
Government
disclose
agents,
Plea
activities, the ATF and FBI had come to suspect him of a number
of crimes.
the
Sheriffs
Department
and
other
law
enforcement
agencies.
The district court accepted Barefoots guilty plea at a
hearing on January 21, 2003, after which the debriefing mandated
by the
Plea
having
obtained
hunting
dog.
Agreement
the
took
place.
Kinestik
Barefoot
There,
cartridges
also
recounted
in
a
Barefoot
admitted
exchange
meeting
for
with
Glen
J.A. 70.
J.A. 71.
hours later to inform Barefoot that Denning had shot and killed
Petit,
with
the
corpse
having
been
buried
in
hayfield
Denning
had
been
arrested
and
charged
with
the
murder,
and
Barefoot,
Sharon,
and
Gautier
assisted
in
The next
Upon his
jury
in
the
Eastern
District
of
North
Carolina.
The
in
Count
One
with
conspiracy
to
receive,
possess,
in
damaging
and
destroying
by
explosive
the
Johnston
charge
of
improperly
storing
explosive
materials,
state
murder
proceedings
had
expressed
concern
over
before
it
and
on
its
own
Based on the
observations
of
See 18
the
report
professionals,
delusional
and
the
governments
diagnosed
disorder,
delusions),
traits).
who
of
mixed
from
Barefoot
type
mental
as
suffering
(persecutory
personality
disorder,
health
and
NOS
from
grandiose
(antisocial
to
the
Attorney
improvement.
consequence
charge
See
of
was
the
General
18
U.S.C.
courts
dismissed
to
on
determine
his
4241(d).
finding,
the
December
6,
As
state
prospects
a
collateral
court
2007,
for
murder
subject
to
reinstatement.
On November 26, 2008, the district court convened another
hearing
to
decide
whether
Barefoot
should
be
involuntarily
Barefoot
9,
2010,
we
vacated
that
ruling
and
remanded
for
resolved
question
could
condition
was
remitted.
determined
on
to
remand,
have
however,
spontaneously
Barefoots
partially
made
during
his
January
21,
2003
debriefing.
The
court
order
counsel
then,
filed
moved
on
August
for
March
8,
22,
reconsideration
2012,
832
(1975)
denied
on
Barefoot
2011,
them.
February
filed
Barefoots
21,
pro
se
2012,
motion
and
to
(recognizing
criminal
defendants
Sixth
See
By separate order
as
moot
after
the
government
agreed
not
to
use
the
the
concerning
evidence).
2
district
his
court
involvement
The
in
limine
to
the
Petit
had
previously
in
government
exclude
murder
any
evidence
(the
given
Petit
notice,
Trial commenced on
September
empaneled
excused.
24,
2012,
with
the
jury
being
and
then
and concluded the following day, with the jury finding Barefoot
guilty of all six counts.
The district court, on February 6, 2013, entered judgment
on
the
jurys
verdict,
sentencing
Barefoot
to
60
months
in
II.
Barefoot
maintains
that
his
district
courts
rulings:
trial
and
sentencing
was
denying
his
motion
to
Petit
evidence;
(3)
declaring
the
governments
evidence
thus
leading
to
the
denial
of
his
motions
for
judgments
of
in
which
his
sentence
was
calculated
pursuant
to
the
Sentencing Guidelines. 3
In order to accurately determine whether the accused may
competently exercise his constitutional right to defend himself,
realistic
account
of
the
particular
defendants
mental
tailored
particular
defendant.
absent
discretion
palpable
in
that
to
the
individualized
Id.
abuse,
We
the
regard. 4
circumstances
therefore
district
The
same
will
courts
not
of
disturb,
exercise
of
abuse-of-discretion
Barefoots
Abdulwahab,
715
F.3d
convictions.
521,
528
See
(4th
Cir.
United
2013).
States
v.
Though
we
charged
beyond
reasonable
doubt.
Id.
at
528-29
Plea
Agreement
and
the
Guidelines,
at
least
insofar
as
of
the
plea
agreement
interpretation
turns
of
on
contract
unambiguous
principles
[provisions]
or
12
To
the
extent,
however,
that
the
courts
rulings
F.3d at 626.
III.
A.
The Supreme Court has disavowed the use of a single mental
competency standard for deciding both (1) whether a defendant
who
is
whether
represented
a
represent
(2008).
defendant
himself.
by
counsel
who
can
proceed
goes
to
trial
Indiana
v.
Edwards,
to
must
trial
be
554
and
permitted
U.S.
164,
(2)
to
175
district
court,
fell
contemplated by Edwards.
within
Id.
that
Barefoot, according to
category
of
defendants
13
motion
to
converse
with
him
and
to
perceive
his
F.3d 583, 591 (4th Cir. 2013) (explaining that the district
court
was
in
the
best
position
to
observe
[the
defendants]
The
Faretta
insistence
that
he
could
cross-examine
the
governments
The court
it
came
comprehended.
to
regard
At
that
message
hearings
as
end,
neither
the
received
court
nor
remained
Id. at 4. 5
14
Moreover,
the
district
court
expressed
concern
that
The
court
adverted
to
the
forensic
evaluation
prepared
submitted
on
March
9,
2011,
then
to
the
court
to
to
understand
the
nature
and
consequences
of
the
health had been at issue before the court, at the time of its
ruling, for more than five years.
15
evidence
its
commensurate
weight.
Dr.
Newmans
2011
to
juxtaposed
with
personally
the
observe
Barefoot,
affirmative
evidence
however,
of
and
Barefoots
Barefoot
was
not
sufficiently
competent
to
represent
himself at trial.
B.
The
government
offered
the
Petit
evidence
in
connection
murder,
recounted
trial
against
Sheriff
at
Bizzell.
that
Barefoot
Barefoot
harbored
blamed
Bizzell
grudge
for
the
Barn,
which
one
witness
16
described
as
backwoods
J.A. 663.
all
of
it.
Id.
at
600.
Subsequently,
Bizzell
denied
to
Gautier,
Barefoot
spoke
several
times
of
J.A.
599-600.
Gautier
elaborated
on
one
specific
conversation along those lines that took place during the autumn
of 2001:
Q.
A.
Q.
A.
Q.
A.
Q.
A.
Yes.
Id. at 601-02.
To be sure, [e]vidence of a crime, wrong, or other act is
not admissible to prove a persons character in order to show
that on a particular occasion the person acted in accordance
with the character.
Evidence of
Id. 404(b)(2).
287,
295
(4th
2013)
(internal
quotation
marks
omitted).
In
before
particular,
Rule
proceeding.
other
than
404(b)
there
are
evidence
four
can
be
defendants
general
18
prerequisites
admitted
in
to
a
fulfill
criminal
(2)
probative
so
emotion
provocative
in
the
that
it
factfinding
tends
to
process.
subordinate
reason
to
See
States
v.
United
Williams, 740 F.3d 308, 314 (4th Cir. 2014) (incorporating with
respect to fourth factor Rule 403 requirement that probative
value of evidence not be substantially outweighed by prospect of
confusing factfinder or unfairly prejudicing defendant).
At closing argument, defense counsel sought to downplay his
clients approach of Gautier as insubstantial and fanciful talk,
reminding the jury that witnesses had described Barefoot as a
nut and a braggart.
J.A. 794.
Barefoots efforts
murder
demonstrated
to
the
jury
that
these
were
not
merely men who talk, but men who act however despicable those
acts may be.
The Petit evidence was thus relevant to show that Barefoot
was devising a serious scheme to blow up the courthouse, thereby
demonstrating
his
culpable
intent
assistance.
in
soliciting
Gautiers
jury,
testimony
at
of
face
course,
value
was
and
entitled
to
to
regard
credit
his
Gautiers
impressions
as
access
to
boat
and
eventual
procurement
of
being
successfully
executed
powerfully
corroborated
during
their
subsequent
discussion
concerning
the
2010)
(acknowledging
that
admission
of
evidence
of
an
dealers
fatal
shooting
of
customer
was
substantially
Rule
defendants
403
balance
uncharged
murder
to
evidence
the
in
jury
serve
to
favor
of
of
admitting
informant
in
evidence
of
furtherance
of
its
its
consideration
prejudicial
of
effect.
Rule
See
United States v. Wilson, 624 F.3d 640, 655 (4th Cir. 2010).
When the subject of the murder investigation was initially
broached with the governments first witness an ATF agent
the district court immediately interrupted the questioning to
inform the jury that the Petit evidence was not offered to
prove that [Barefoot] is a bad person or that hes a person of
bad character, pointedly instructing the jurors that they were
not to allow it to prejudice you about the crimes that are on
trial in this case.
J.A. 549.
Petits murder.
district
court
abused
its
discretion
evidence
after
determining
that
its
in
admitting
probative
the
value
Petit
was
not
foregoing
discussion
of
the
Rule
404(b)
evidence
against
violation
of
property
the
or
laws
against
of
the
the
person
United
of
another
States
and
in
under
18 U.S.C.
373(a).
From
elements
the
of
statutory
373(a)
as:
language,
(1)
22
we
derive
the
solicitation,
essential
command,
or
With respect to
explained
that
373(a)
is
designed
to
cover
any
(1st Cir. 1988) (quoting S. Rep. No. 97-307, 97th Cong., 1st
Sess. 183-84 (1982)).
Count Three of the indictment alleged two federal felonies
as the subjects of the solicitation, each set forth in 844 of
the criminal code.
844(f)(1).
The
second
proscribes
the
same
18
conduct
a.
Barefoot confronts head-on the governments proof of the
threshold solicitation requirement.
J.A. 601.
Moreover,
Barefoots
excerpt
distillation
disserves
the
of
Gautiers
broader
testimony
meaning
to
attributable
single
to
its
entirety.
Certainly, a straightforward request or directive fulfills
the first element of 373(a) by constituting an unambiguous
solicitation
or
however,
inducement
by
command.
and
endeavor to persuade.
persuade
may
entail
element
least
is
also
satisfied,
stringently
sorts
of
communication
friend
with
an
strategies,
by
all
The
wink
and
nod,
discreetly
We may
thrust
24
Gautier
to
help
him
blow
up
the
courthouse
is
not
he was pretty sure that the plan was serious, J.A. 602, and
that Barefoot desired somebody to assist him with it, id. at
601.
Although
inflections,
Gautier
intonations,
could
and
hardly
nonverbal
convey
cues,
Barefoots
there
is
Barefoot
would
not
have
described
his
plan
in
such
sufficient
evidence
for
the
jury
to
find
that
Barefoot
of
the
federal
subtle.
Barefoot
convicted
of
felony
maintains
violating
element
that
373(a)
he
is
considerably
should
because
not
the
have
more
been
governments
misconstrue
precedent.
the
law
and
inadequately
account
for
our
explosive
of
the
Johnston
County
Courthouse.
Aiding
and
143
see
(4th
Cir.
2010);
18
U.S.C.
2(a)
(providing
that
and
abettor
namely,
the
offenses
for
which
he
was
both
of
those
include
the
requisite
element
of
force.
was
therefore
sufficiently
established
as
to
each
essential element. 6
2.
Barefoot
also
contests
the
sufficiency
of
the
evidence
The
statute
of
conviction
provides,
in
pertinent
it
will
individual
or
be
used
unlawfully
to
kill,
to
injure,
damage
or
or
intimidate
destroy
any
any
building,
18 U.S.C. 844(d).
the
Kinestik
cartridges
he
obtained
in
trade
and
then
404(b).
It suffices to say that we would have deemed the
evidentiary issue moot had the proof of Barefoots guilt on
Count Three been insufficient notwithstanding the jury being
allowed to consider his prior bad acts.
7
Indeed,
v. Hassan, 742 F.3d 104, 139 (4th Cir. 2014) (internal quotation
marks omitted).
only
short
courthouse
after
permitted
he
the
solicited
inference
Gautier
that
the
to
bomb
explosives
the
were
had
seen
Barefoot
make
pipe
bombs);
id.
at
597,
630
in
Averys
occasions
his
backyard);
confirmation
his
courthouse).
desire
Giving
id.
that
to
at
599-600,
Barefoot
murder
the
had
Bizzell
government
664
(Gautiers
expressed
by
the
blowing
benefit
on
and
many
up
the
of
all
28
now
address
the
effect
on
this
appeal
of
the
Plea
In construing the
omitted).
1.
There
is
no
dispute
that,
in
exchange
for
Barefoots
Barefoot
United
States,
406
U.S.
441,
453
(1972)
See Kastigar
(explaining
that
In
transactional
illustration
immunity
as
of
that
principle,
protect[ing]
an
we
described
individual
against
1992)
added).
The
comprehensive
bar
from
protects
against
the
governments
use
of
compulsory
Id.
source
to
develop
additional
evidence
in
aid
of
its
self-incrimination,
and
therefore
is
at
453.
In
Kastigar,
the
30
Supreme
sufficient
to
Kastigar, 406
Court
rebuffed
to
privilege
testify
against
in
of
self-incrimination,
information
compelled
directly
indirectly
or
derogation
under
the
derived
the
no
order
from
Fifth
Amendment
testimony
(or
such
any
or
other
information
testimony
or
other
18 U.S.C. 6002.
same
position
as
Amendment privilege.
if
the
witness
had
claimed
the
Fifth
the
statute
controls
only
those
proceedings
in
on
the
application
of
the
government,
federal
or
similar
information.
protections
to
procure
helpful
testimony
or
flexibility
that
in
exchange
inheres
in
for
this
31
truthful
much
more
testimony).
common
method
The
of
securing
cooperation,
in
which
the
witness
is
offered
vest
the
Plea
Agreement
indisputably
granted
Barefoot
of
debriefing.
which
the
government
was
alerted
at
the
2003
only
direct
evidentiary
use
of
his
debriefing
32
the Superseding
Indictment
was
not
barred
under
the
Plea
at
trial
were
those
wherein
he
acknowledged
his
J.A. 93.
During a
pass
this
time
on
anything
he
talks
about
one
Id.
33
Id. at 94.
(Second)
of
Contracts
209
(1981)
See
(hereinafter
See, e.g.,
United States v. Fentress, 792 F.2d 461, 464 (4th Cir. 1986)
([A]
fully
integrated
[plea]
agreement
may
not
be
promises
itself.).
to
him
not
contained
in
the
plea
agreement
effect,
Agreement
the
[a]n
clause
that
representations
takes
precludes
into
inconsistent
integrated
an
interpretation
account
with
agreement
any
its
of
preliminary
written
supersedes
the
oral
form,
because
contrary
prior
statements.
Barefoot
nonetheless
reminds
us
that,
although
we
apply
the
reality
contract
right
is
that
the
defendants
constitutionally
based
and
underlying
therefore
those
Harvey,
791
of
commercial
F.2d
294,
300
contract
(4th
law.
Cir.
1986)
United
(citing
States
v.
Mabry
v.
hashish
plea, Harvey
conspiracy.
was
promised
As
consideration
that
the
for
Government
his
will
guilty
move
to
Id.
The
ruling
from
district
that
prosecution
court
the
plea
only
in
declined
to
agreement
the
enjoin
those
immunized
Eastern
the
District
of
second indictment.
We
vacated
constitutional
and
the
convictions,
supervisory
explaining
concerns
require
that
holding
both
the
36
Government
to
defendant
a
.
greater
.
for
degree
of
responsibility
imprecisions
or
agreements.
in
was
Harvey
ambiguous,
we
than
ambiguities
in
the
plea
determined,
because
it
of
Virginia
contracted.
as
the
party
with
whom
the
defendant
of
Virginia)
was
transactional immunity.
bound
by
the
agreements
grant
of
agreement
preferred
or
which
term
thereof,
operates
against
that
the
meaning
party
who
is
generally
supplies
the
to
the
unlike
Barefoot
here,
did
not
seek
test
parol
statements
as
bearing
on
the
proper
the
outcome
instead
turned
on
our
more
In
focused
latent
ambiguity
37
regarding
the
latitude
immunity.
Indeed,
specifically
the
contemplates
plain
the
language
of
the
possibility
of
Although the
The
been
imposed
prosecutions,
on
but
the
an
defendant
accompanying
to
assist
cover
with
letter
additional
to
defense
956
F.2d
at
42.
few
months
later,
the
He
38
We
granted
relief,
defendant
be
resentenced
and
however,
directing
credited
with
an
that
the
additional
the
parol
evidence
rule,
perceiving
no
avenue
to
Instead, we determined
might
otherwise
be
demanded,
explaining
that
[t]he
We cannot countenance
Id.
rather
unusual
respect
to
happenstance
the
disputed
that
the
provision
could
governments
be
intent
irrefutably
compelled
to
acquiesce
in
the
defendants
account
of
the
facts
before
situation
us,
that
designed to avoid.
by
contrast,
integration
illustrate
clauses
are
the
more
specifically
exchange
for
complete
and
truthful
revelations,
but
on
an
appropriate
sufficient
analogy
case,
to
the
791
F.2d
facts
of
at
300,
Garcia,
and,
lacking
the
dispute
not
afforded
an
expansive
transactional
immunity,
Barefoot was yet entitled under the Plea Agreement to have the
40
government
forbear
from
using
his
debriefing
statements
with
proposition,
but
urges
that
we
construe
the
Plea
immunity,
introducing
maintaining
Barefoots
he
received
that
specific
it
was
barred
statements
as
only
substantive
the
liquid
dynamite
that
was
found
from
at
J.A.
See id.
Neither of
Barefoots understanding of
but
406
through
also
its
U.S.
at
Judge
use
443.
Butzner,
41
of
any
Scarcely
writing
evidence
a
on
year
derived
later,
behalf
of
we
a
484
F.2d
1215,
1220
(4th
Cir.
1973)
In re
(emphasis
added)
Needless
to
say,
interpretation
of
the
governments
use,
as
set
position
forth
in
on
the
the
Plea
the
use
immunity
context,
as
explained
by
the
Court
in
testimony
or
any
directly or indirectly).
evidence
derived
from
it
either
regarding
the
trade
and
Barefoots
storage
of
the
Barefoot had later removed the explosives from the freezer and
42
length to the trade and the handoff to Daniel during its opening
statement, see J.A. 521-23, candidly acknowledging to the jury
that the entire investigation initially focused on this liquid
explosive, id. at 524.
he
not
mentioned
the
liquid
explosives
during
his
debriefing.
Not long ago, we had occasion to explain that, when the
defendant
is
not
under
judicial
compulsion
to
provide
thereby
afforded
is
matter
of
contract
Cir. 2006).
unambiguously
stipulated
conferred
that
the
use
immunity
government
only
will
because
not
use
it
against
Id.
somewhat
attests
that
the
the
same
fashion.
government
To
would
43
reiterate,
not
use
the
any
Agreement
information
4.f.
Notably,
the
term
crimes
of
Plea Agreement
violence
is
nowhere
Restatement 202.
Most
that
significance.
against
that
each
parsing
[a]
is
given
proper
meaning
and
constitute writings.
that
term
word
contract
components,
which
may
also
changes
meaning
when
it
becomes
part
of
a
A
was
intended
to
convey
the
same
meaning
as
its
are
to
be
construed
against
the
government
as
its
The
(which
possess),
is
the
that
such
government
immunity
acknowledges
means
the
Barefoot
same
in
to
plea
encompasses
derivative
use
immunity.
United
States
v.
Plummer, 941 F.2d 799, 804 (9th Cir. 1991); see United States v.
Harper, 643 F.3d 135, 140 n.1 (5th Cir. 2011) (observing that
[t]his Court has tended to interpret use immunity as a term
of art that covers both direct and derivative use of immunized
statements); United States v. Kilroy, 27 F.3d 679, 685 (D.C.
Cir. 1994) (expressing agreement with Plummer that nothing else
appearing, an informal use immunity afforded by agreement, e.g.,
a plea bargain, includes derivative use immunity equivalent to
that afforded by [18 U.S.C. 6002]). 11
11
near
constrictive
the
impediment
immunity
from
to
its
interests
derivative
use,
the
Presenting
as
the
more
governments
seems
burden
through negotiations.
worth
taking
the
trouble
to
alleviate
on
defendants
Fifth
Amendment
privilege
against
46
event
that
theretofore
defendant.
the
unknown
debriefing
violent
session
misconduct
led
on
it
the
to
part
discover
of
the
in
202(3)(a).
accordance
with
that
meaning.
Restatement
the
Plea
Id. 202(b)(b).
Agreement
was
executed
in
January
2003,
As defined
another.
serious
potential
risk
of
physical
injury
to
receiving
an
USSG 4B1.2(a).
Barefoots
conviction
in
Count
Four
of
Hence,
the
government
was
unquestionably
to
investigate,
charge,
and
convict
him
of
that
offense.
Our
conclusion
is
different
with
respect
to
Barefoots
also
his
conviction
under
Count
Six
of
distributing
The storage
question.
Though
the
conduct
charged
is
explosive
materials,
typically
unaccompanied
by
physical
in
of
his
advisory
range
of
imprisonment
under
the
any
connection,
49
for
grouping
purposes,
Six.
The
perceived
association
between
the
stolen
The
encompasses
convicted.
accomplish
all
the
counts
of
which
the
defendant
task,
the
PSR
initially
combined
four
is
To
of
the two
See
are
based
primarily
on
quantity
or
contemplate
solicitation
offense
therein
50
embodie[d]
conduct
that
is
treated
as
adjustment
counts.
specific
to,
the
offense
guideline
USSG 3D1.2(c). 12
characteristic
applicable
to
in,
or
another
other
of
the
Id. 2K2.1(a)(5).
28 U.S.C. 5845(a)(8).
manufactured
he
and
contemplated
detonated
would
house
(as
the
well
as
liquid
whatever
dynamite)
certainly qualify.
The PSR increased Barefoots base offense level by six for
the number of firearms involved, see USSG 2K2.1(b)(1)(C), by
two because of the involvement of a destructive device, see id.
2K2.1(b)(3), and by two because one or more of the firearms
had been stolen, see id. 2K2.1(b)(4).
51
using
minor
3B1.4.
to
assist
him
in
avoiding
detection,
see
id.
referenced
with
Barefoots
criminal
history
category
of
II,
Because
none
of
the
offenses
of
conviction
comported
with
the
advisory
range
by
first
sentencing
other.
The
court
last
addressed
the
Count
Five
protests
that
his
conduct
giving
rise
to
the
of
destructive
devices,
and
thus
the
district
court
was
A compartmentalized approach,
the
separately
considered
solicitation
conviction
in
See USSG
offense
level
of
28
would
have
resulted
in
an
advisory
the
firearms
offenses,
court
was
bound
to
consider
induced,
.
procured,
that
or
occurred
willfully
during
the
caused
commission
by
of
the
the
that
offense.
USSG
1B1.3(a)(1).
In
so
doing,
the
begin
explosives
firearms
with,
took
Barefoots
place
conspiracy.
during
See
conduct
the
McVey,
same
2014
with
respect
to
time
as
ongoing
WL
the
1613908,
at
the
*3
course of conduct).
explosives.
At
more
general
(but
yet
relevant)
in
the
proper
context,
it
is
evident
that
the
That
to
the
firearms
offenses,
and
it
also
supported
the
The
concurrently
through Four.
with
the
same
terms
imposed
on
Counts
Two
concurrent
sentence
imposed
thereon
was
virtually
an
afterthought.
Consequently, as then-Judge Sotomayor observed in a similar
instance on behalf of the court of appeals in Burrell v. United
States, Barefoots circumstances present one of the rare cases
. . . where our reversal of a conviction [does] not affect the
knot of calculations under the Guidelines, obviating any need
to remand for resentencing.
(internal
quotation
marks
As
the
Fifth
Circuit
690 F.3d
358, 372 (5th Cir. 2012); see United States v. Lopez, 42 F.3d
463, 469 (8th Cir. 1994) (acknowledging that defendant need not
be resentenced if conviction vacated on appeal had no effect on
the
determination
of
Guidelines
ranges
(internal
court
defendants
in
Burrell
conviction
for
had
previously
conspiracy
55
to
reversed
distribute
the
crack
other
conviction
for
criminal enterprise.
mandatory
life
district
court
correction
to
dismissal.
Id.
being
organizer
of
continuing
sentence,
for
an
it
enter
the
to
an
Second
Circuit
perform
amended
judgment
remanded
strictly
to
the
ministerial
reflecting
the
Five
misdemeanor
conviction,
see
18
U.S.C.
IV.
Pursuant to the foregoing, we affirm Barefoots convictions
on Counts One through Four, but we reverse his convictions on
Counts Five and Six.
56
57