Appeal from the United States District Court for the Western District of Washington. D.C. No. CR-92-1175-JET. Jack E. Tanner, District Judge, Presiding
Before: Wallace, Chief Judge, Boochever, and Noonan, Circuit Judges.
Raul Olquin Montalvo appeals his sentence of 27 months following his plea of guilty to five counts of firearm violations. He claims that the district court erred by not grouping together all five counts under the Sentencing Guidelines. We affirm.
The indictment charged Montalvo, a convicted rapist, with one count of being a felon in possession of a Winchester shotgun in violation of 18 U.S.C. §§ 922(g)(1) and 924(a)(2) (1988); two counts of being a felon in possession of a "KK" brand shotgun in violation of the same statutes as above; one count of making a false statement in the acquisition of the "KK" brand shotgun (when reclaiming it from a pawnbroker), in violation of 18 U.S.C. §§ 922(a)(6) and 924(a)(1)(B) (1988); and one count of possessing an unregistered sawed-off shotgun, in violation of 26 U.S.C. §§ 5841, 5861(d) and 5871 (1988). The sawed-off shotgun was the same "KK" brand shotgun named in all but the first count. Montalvo had sawed off the barrel of the shotgun himself, after reclaiming it from the pawnbroker. All the offenses occurred between February 1991 and the end of June 1991.
Montalvo pled guilty to all five counts. At his sentencing on July 24, 1992, the district Judge grouped the first count involving the Winchester shotgun separately from the four remaining counts involving the "KK" brand shotgun. Montalvo was sentenced to 27 months imprisonment and two years supervised release.
We review de novo the district court's application of the Sentencing Guidelines. United States v. Kohl, 972 F.2d 294, 297 (9th Cir. 1992).
A. The applicable version of the Sentencing Guidelines
Firearm offenses such as Montalvo's are governed by Section 2K2.1 of the United States Sentencing Guidelines. Section 3D1.2 of the United States Sentencing Guidelines provided, both at the time of Montalvo's offenses and at the time of his sentencing, that "all counts involving substantially the same harm shall be grouped together into a single Group for the purposes of sentencing. U.S.S.G. § 3D1.2 (Nov. 1990 & Nov. 1991). The version of the Guidelines in effect when Montalvo committed his crimes in 1991 ("1990 Guidelines") left it up to the district court to determine case-by-case whether firearm offenses under § 2K2.1 should be grouped. U.S.S.G. § 3D1.2(d) (Nov. 1990). The district court applied the 1990 Guidelines and declined to group Count 1, involving the Winchester, with the other four counts involving the "KK" brand shotgun.
Montalvo claims that the district court should have applied the version in effect at his sentencing in 1992 ("1991 Guidelines"), under which offenses covered by § 2K2.1 automatically are grouped together. U.S.S.G. § 3D1.2(d) (Nov. 1991). If the court had grouped all the counts, Montalvo's total offense score would have been one point lower, with a range of 24-27 months imprisonment, rather than the 27-33 month range he received.
Normally, a district court applies the version of the Sentencing Guidelines in effect on the date of sentencing. United States v. Warren, 980 F.2d 1300, 1304 (9th Cir. 1992), cert. denied, S. Ct. (U.S., Nov. 1, 1993) (No. 93-5755). If the retroactive application of the Guidelines in effect at sentencing would disadvantage the defendant, however, then the prohibition against ex post facto laws requires the district court to apply the Guidelines in effect at the time of the offense. Id.
The district court cannot apply the Guidelines piecemeal; all the provisions of the appropriate version must be used in sentencing. Id. at 1306. Assuming, without deciding, that all Montalvo's five counts would be grouped under the 1991 Guidelines, the application of all the 1991 Guidelines would make his overall sentence considerably higher.
Under Guideline § 2K2.1(a)(3) (Nov. 1991) governing firearms offenses at the time of Montalvo's sentencing, when "the defendant had one prior felony conviction of . . . a crime of violence . . . and the instant offense involved a firearm listed in 26 U.S.C. § 5845(a)" (which includes a sawed-off shotgun), the base offense score for Montalvo's possession of the unregistered sawed-off shotgun would have been 22. This is a 4-point increase from the base offense level of 18 provided for in the 1990 Guidelines in effect at the time Montalvo committed his offense. See U.S.S.G. § 2K2.1(a)(1) (Nov. 1990). Following the remaining calculation of his sentence under the Guidelines, Montalvo's overall score would have ...