United States v. David Kevin Cox

7 F.3d 1458 62 USLW 2355 UNITED STATES of America, Plaintiff-Appellee, v. David Kevin COX, Defendant-Appellant. No. 92-50476. United States Court of Appeals, Ninth Circuit. Argued and Submitted July 14, 1993. Decided Nov. 1, 1993. George A. Winkel, El Cajon, CA, for defendant-appellant. Roger W. Haines, Jr., Asst. U.S. Atty., San Diego, CA, for plaintiff-appellee. Appeal from the United States District Court for the Southern District of California. Before: WOOD, Jr., * REINHARDT and RYMER, Circuit Judges. HARLINGTON WOOD, Jr., Circuit Judge: 1 David Kevin Cox appeals the sentence imposed by the district court after a jury convicted him of possessing and manufacturing two destructive devices in violation of 18 U.S.C. § 2 , 26 U.S.C. § 5822 (must obtain approval from Secretary of Treasury and pay tax to manufacture firearms), 5861(d) (possession) & (f) (manufacture), & 5871. Cox appeals the court's seven-level upward departure; the denial of two points for acceptance of responsibility; the addition of two points for obstruction of justice; and the order that Cox's federal sentence run consecutively with a state sentence he is now serving. We find the court's…

David Kevin Cox appeals the sentence imposed by the district court after a jury convicted him of possessing and manufacturing two destructive devices in violation of 18 U.S.C. § 2 , 26 U.S.C. § 5822 (must obtain approval from Secretary of Treasury and pay tax to manufacture firearms), 5861(d) (possession) & (f) (manufacture), & 5871. Cox appeals the court’s seven-level upward departure; the denial of two points for acceptance of responsibility; the addition of two points for obstruction of justice; and the order that Cox’s federal sentence run consecutively with a state sentence he is now serving. We find the court’s reliance on U.S.S.G. § 2B1.1(b)(1), a guideline table that raises offense levels based upon the amount of property damage or destruction done, was an unreasonable basis under the circumstances for the upward departure.

I.

On September 15, 1990, shortly after midnight, a bomb exploded in front of the main doors to the United States courthouse in San Diego, California. Remnants of the bomb included a freon canister, metal welding rods, a pyrotechnic fuse, and a mixture of homemade gunpowder. On February 15, 1991, a police officer found a canister type bomb in Cox’s…

concurring in part and dissenting in part:

Because we review the reasonableness of sentences, not the reasonableness of analogies, I dissent from Part 11(A) of the majority’s opinion.

The i'ssue on appeal is supposed to be whether the district court abused its discretion in arriving at a particular point of departure. United States v. Martinez-Gonzalez, 962 F.2d 874, 875 (9th Cir.1992). Instead, the majority focuses on whether the district court selected the single most suitable analogy. There is no authority for such an approach.

The Sentencing Reform Act provides that a court of appeals “shall set aside [a] sentence” if it “is outside the applicable guideline range and is unreasonable.” 18 U.S.C. § 3742 (f)(2). Otherwise, the court of appeals “shall affirm the sentence.” Id. § 3742(f)(3). The Supreme Court has stated that “[t]he development of the guideline sentencing regime has not changed our view that, except to the extent specifically directed by statute, ‘it is not the role of an appellate court to substitute its judgment for that of the sentencing court as to the appropriateness of a particular sentence.’” Williams v. United States, — U.S. -, -, 112 S.Ct. 1112, 1121 ,…