Argued and Submitted, San Francisco, California:
February 11, 2014.
Appeal from the United States District Court for the Northen District of California. D.C. No. 5:10-cr-00729-EKD-1. Edward J. Davila, Presiding.
Steven G. Kalar, Federal Public Defender, Candis Mitchell (argued), Assistant Federal Public Defender, and Steven J. Koeninger, Research and Writing Attorney, San Francisco, CA, for defendant-appellant.
Melinda Haag, United States Attorney, Barbara J. Valliere, Chief, Appellate Division, and Owen P. Martikan (argued), Assistant United States Attorney, San Francisco, CA, for plaintiff-appellee.
Before: REINHARDT and THOMAS, Circuit Judges, and SESSIONS, District Judge.[*]
SESSIONS, District Judge:
Steven Lee Vargem was convicted of possessing an unregistered machine gun and sentenced to 30 months in prison. On appeal, the government concedes that the district court miscalculated Vargem's base offense level under the United States Sentencing Guidelines (" Guidelines" ). We hold that the district court also erred in applying a six-level enhancement on the basis of other weapons found at Vargem's home. We therefore vacate and remand for resentencing.
On June 19, 2010, San Jose police responded to a domestic assault call at the Vargem residence. When the officers arrived, Vargem's wife Lynda reported that her husband had physically assaulted her. Vargem was no longer at the house. The police subsequently contacted a Santa Clara County judicial officer and obtained an emergency protective order (" EPRO" ) on Lynda's behalf. The EPRO, valid through June 25, 2010, stated that Vargem must not " contact, molest, harass, attack, strike, [or] threaten" his wife, and ordered him to stay at least 300 yards away from his residence. The EPRO further stated that persons subject to a restraining order are prohibited from owning, possessing, purchasing, receiving, or attempting to purchase or receive a firearm.
San Jose police officer Duane Tuell was assigned to investigate the incident. Officer Tuell reviewed a law enforcement database and discovered that Vargem had twelve firearms registered in his name. On June 24, 2010, Officer Tuell contacted Lynda about the firearms, and learned that they were in safes to which she did not have access. Lynda also told Officer Tuell that she had seen her husband put a pistol into a gun safe approximately two months prior to the assault. In a subsequent conversation that same day, Lynda described for Officer Tuell the vehicles to which her husband might have access, including a white van registered to his business.
Officer Tuell then telephoned Vargem to ask about the firearms. He identified himself as a police officer, and told Vargem that pursuant to the EPRO all firearms must be surrendered. Vargem acknowledged that he was aware of the EPRO, and stated that he did not know what weapons were in the house. When Officer Tuell asked for consent to search three safes in the house, Vargem replied that he wished to discuss the request with his lawyer. Officer Tuell informed Vargem that absent consent he would obtain a search warrant, at which point Vargem asked if he could call right back. Officer Tuell agreed, but Vargem did not call back.
After not hearing from Vargem, Officer Tuell sent a patrol unit to the Vargem residence. When the officers arrived, they saw a white van registered to Vargem parked in the driveway, and Vargem loading unknown items into the van. They waited for him to drive away from the residence and conducted a vehicle stop a few blocks away. The officers arrested Vargem for violating the EPRO, searched the van, and discovered an unloaded pistol.
Officer Tuell then obtained a warrant to search the home. The search revealed 28 firearms. One of the firearms was an unregistered machine gun. Vargem later admitted that he owned the gun, and that he had converted it from a semi-automatic pistol to a machine gun. He was ultimately indicted for unlawful possession of a machine gun in violation of 18 U.S.C. § § 922(o) and 924(a)(2), and unlawful possession of an unregistered firearm in violation of 26 U.S.C. § § 5841, 5861(d), and 5871. Both counts were predicated upon the same weapon, and no charges were brought with respect to any of the remaining guns.
Vargem waived his right to a jury trial and agreed to a stipulated-testimony bench trial. The district court convicted him of the two charged counts. At sentencing, and based upon the recommendations set forth in the Pre-Sentence Investigation Report (" PSR" ), the court found a base offense level of 20 for possession of a machine gun by a prohibited person. U.S.S.G. § 2K2.1(a)(4)(B). The court also applied a six-level enhancement for multiple firearms, based upon the 28 firearms found in Vargem's home, under § 2K2.1(b)(1)(C). With a criminal history category II, the resulting Guideline range was 70 to 87 months. Defense counsel argued for a 21-month sentence, the government for 77 months. The court considered sentencing factors under 18 U.S.C. § 3553 and imposed a 30-month sentence. According to Vargem's current counsel, Vargem's projected release date is August 12, 2014.
I. The District Court's Calculation of Vargem's Base Offense Level Constituted ...