Unpublished Disposition, 928 F.2d 409 (9th Cir. 1991)

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U.S. Court of Appeals for the Ninth Circuit - 928 F.2d 409 (9th Cir. 1991)

UNITED STATES of America, Plaintiff-Appellee,v.Donald Leslie HIRSCHY, Defendant-Appellant.UNITED STATES of America, Plaintiff-Appellee,v.Jerry Wayne CALAME, Defendant-Appellant.

Nos. 90-30203, 90-30325.

United States Court of Appeals, Ninth Circuit.

Submitted March 5, 1991.* Decided March 13, 1991.

Appeal from the United States District Court for the District of Oregon, Nos. CR-89-60048-JMB, CR-89-60048-2-REJ; James M. Burns and Robert E. Jones, District Judges, Presiding.

D. Or.

AFFIRMED.

Before JAMES R. BROWNING, EUGENE A. WRIGHT and FARRIS, Circuit Judges.


MEMORANDUM** 

Donald Leslie Hirschy appeals the district court's denial of his motion to suppress evidence and his sentence upon his guilty plea to manufacturing and possessing an unregistered firearm and silencer, in violation of 28 U.S.C. §§ 5861 and 5871. Jerry Wayne Calame also appeals the denial of the suppression motion. We affirm.

Hirschy was found holding a loaded .22 caliber rifle equipped with a homemade silencer in the trunk of a car driven by Calame. The trunk also contained a loaded sawed-off .22 caliber rifle. Hirschy argues that the evidence should have been suppressed because (1) the police officer did not have founded suspicion to stop Calame; (2) the officer did not have probable cause to believe that evidence of any crime was to be found in the car; and (3) Calame did not consent to the search of the car trunk.

Whether there was founded suspicion to justify an investigatory stop is a mixed question of law and fact that requires de novo review. United States v. Alvarez, 899 F.2d 833, 836 (9th Cir. 1990), cert. denied, 111 S. Ct. 671 (1991). We look to whether the "detaining officers had a particularized objective basis for suspecting the particular person of criminal activity." Id. The record satisfies us that there was founded suspicion for the stop.

The warrantless search of the automobile here must be either supported by probable cause or performed with consent. See Alvarez, 899 F.2d at 839. The district court found that Calame voluntarily consented to the search of the trunk. This factual finding was supported by trial testimony and is not clearly erroneous. United States v. Salvador, 740 F.2d 752, 757 n. 3 (9th Cir. 1984) cert. denied, 469 U.S. 1196 (1985).

Hirschy contests the enhancement of his sentence on the basis of (1) cross-referencing to the base offense level for attempted murder or assault with intent to commit murder; (2) more than minimal planning of the attempted murder or assault with intent to murder; (3) threatened use of a gun in connection with the attempted murder or assault with intent to commit murder; and (4) role as organizer, leader, supervisor or manager of the attempted murder or assault with intent to commit murder.

1. Cross-reference to base offense level for attempted murder or assault with intent to commit murder

We review de novo application of the sentencing guidelines. Underlying factual findings are reviewed for clear error. Section 2K2.1(c) (2) of the 1989 guidelines under which Hirschy was sentenced provides that if the defendant used or possessed a firearm in connection with commission or attempted commission of another offense, the court should cross-reference to the offense level for that other offense.

There was evidence that Hirschy used or possessed the rifles in connection with the attempted murder or assault with intent to murder of Mary Balbo. Calame testified that Hirschy had: (a) conducted surveillance of Balbo and learned the pattern of her daily activities; (b) modified two rifles Calame had given him and equipped one of the weapons with a silencer; (c) stated that he would rather scare Balbo, but would kill her if necessary, and (d) induced Calame to participate in the stakeout of the Safeway parking lot on the pretext that they were meeting persons with information about the death of Hirschy's wife, who had drowned several years earlier. The district court could properly believe Calame's testimony. The cross reference to guideline section 2A2.1 and application of a base offense level of 20 was not clear error.

2. Two level increase for more than minimal planning of the assault with intent to murder or attempted murder

Section 2A2.1(b) (1) provides that the base offense level for assault with intent to commit murder should be increased by 2 levels if the assault involved more than minimal planning. Hirschy argues that to enhance his sentence on this basis constituted counting the planning twice because the planning was the basis for the cross-reference.

We recognize that Hirschy's planning was a factor that tended to establish his intent to commit murder, but the planning and the offense were separate. The two level increase in offense level was not error.

3. Three level upward adjustment for threatened use of a gun in connection with assault or attempted murder

Section 2A2.1(b) (2) (C) provides that if a dangerous weapon including a firearm was brandished or its use was threatened during the course of an assault with intent to murder or attempted murder, the offense level should be increased by three levels. Hirschy argues that to enhance his sentence for the threatened use of the firearm was error because the factor already was considered as the basis for concluding that he had attempted to commit assault or murder.

Section 2X1.1(a), the guideline for attempt, instructs the court to add any adjustment for intended offense conduct that can be established with reasonable certainty. It is uncontroverted that Hirschy was found in the car trunk holding a loaded sawed-off rifle. That Hirschy's threatened use of the weapon was part of the conduct underlying the offense does not exempt Hirschy from the application of the enhancement. The three level increase in offense level was not error.

4. Two level increase in offense level based on Hirschy's role as organizer, leader, manager, or supervisor in the criminal activity

Guideline section 3B1.1 provides for a two level increase in offense level if the defendant was an organizer, leader, manager, or supervisor of the criminal activity. The district court's findings of fact as to Hirschy's role in the offense were not clear error.

There was evidence that Hirschy had made the silencer, cut down the rifles, and persuaded Calame to accompany him on the stakeout of the Safeway parking lot. This established his unrebutted leadership role.

AFFIRMED.

 *

The panel unanimously finds this case suitable for submission without oral argument. See Fed. R. App. P. 34(a); 9th Cir.R. 34-4

 **

This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as provided by Circuit Rule 36-3