976 F.

2d 844
61 USLW 2256

UNITED STATES of America

v.
Aubrey JOSHUA, Appellant.
No. 91-3286.

United States Court of Appeals,

Third Circuit.
Argued Dec. 4, 1991.
Decided Oct. 5, 1992.

John H. Benham, III (argued), Watts, Streibich & Benham, Charlotte

Amalie, St. Thomas, U.S. Virgin Islands, for appellant.
Terry M. Halpern, U.S. Atty., Susan R. Via (argued), Asst. U.S. Atty.,
Kim L. Chisholm, Special Asst. U.S. Atty., Charlotte Amalie, St. Thomas,
U.S. Virgin Islands, for appellee.
Before: STAPLETON, HUTCHINSON and NYGAARD, Circuit Judges.
OPINION OF THE COURT
STAPLETON, Circuit Judge:

The indictment in this case includes a charge of armed bank robbery, weapons
charges in connection with the bank robbery, and a charge of possession of a
firearm by a convicted felon. The defendant challenges the district court's
refusal to sever the possession charge, and the fine and sentence imposed by
the court.

I.
2

In November 1990, a masked man robbed the First Pennsylvania Bank on St.
Thomas, Virgin Islands at gun point. According to witnesses, the robber carried
a silver, semi-automatic pistol with which he threatened bank employees and
customers. He pointed the pistol as well as the revolver that he had taken from

the bank guard at the heads of several tellers, ordering them to stuff money into
a brown canvas bag.
3

A witness saw the robber leave the bank, remove his mask, and drive off in a
white car. He noted the car's license number which was immediately provided
to the Virgin Islands Police through the bank manager. A squad car pursued the
vehicle on a high speed chase through a residential area. Minutes later, after he
had sideswiped several unfortunate cars in his path, the robber lost control of
his vehicle, and it flipped. One of the officers later testified that, as he and his
partner approached the car, the robber reached for his nine-millimeter pistol,
which the officer managed to secure before the robber reached it. The police
found in the car the bank guard's revolver and a brown bag containing
approximately $19,000. A number of nine-millimeter ammunition rounds and a
mask were found in the suspect's pockets. The apprehended suspect was later
identified as the defendant, Aubrey Joshua.

Joshua was charged in a four count indictment as follows: Count One--armed

bank robbery, 18 U.S.C. 2113(a) & (d)1 ; Count Two--use of a firearm during
a crime of violence, 18 U.S.C. 924(c)(1); Count Three--receipt of a firearm
with an obliterated serial number, 18 U.S.C. 922(k) & 924(a)(1)(B); and
Count Four--possession of a firearm by a convicted felon, 18 U.S.C. 922(g)
(1) and 924(e). 2

Prior to trial, Joshua moved to sever the trial of Count Four of the indictment
from the remaining counts. He feared that exposure of the jury to evidence of
his prior criminal record might unfairly influence its decision concerning the
first three counts. The government acquiesced in this motion. The court denied
the motion but ordered a bifurcated trial. The jury first heard evidence and
deliberated concerning the first three counts, and then heard evidence of the
defendant's criminal record and deliberated concerning Count Four.

After the presentation of the evidence on the first three counts, the jury was
unable to reach verdicts on Counts One and Two and returned a verdict of not
guilty on Count Three. The government then tendered to the jury a stipulation
that the defendant was a convicted felon. After closing arguments and
instructions on Count Four, the jury returned a verdict of guilty.

Before Counts One and Two could be retried, Joshua and the government
entered a plea agreement under which they exchanged a guilty plea to armed
bank robbery for a dismissal of the charge of use of a firearm during a crime of
violence. The court sentenced Joshua to 300 months in prison for the armed

bank robbery charge. On Count Four, he received a sentence of 365 months in

prison. The court also assessed a $3,000 fine and ordered that the sentences of
imprisonment be served concurrently.
8

The district court had jurisdiction under 48 U.S.C. 1612(a). We review the
final judgment of conviction and sentence pursuant to 28 U.S.C. 1291.

II.
9

Joshua's first argument3 is that the district court erred in denying his
uncontested motion to sever Count Four--felon in possession of a firearm--from
the remaining counts of the indictment.4 Severance decisions under Rule 14
require the district court to weigh the potential for prejudice to the defendant
from joinder against the conservation of judicial resources that joinder will
occasion. Striking the appropriate balance is within the sound discretion of the
district courts. Accordingly, we review such decisions for an abuse of that
discretion. United States v. Sandini, 888 F.2d 300, 305 (3d Cir.1989), cert.
denied, 494 U.S. 1089, 110 S.Ct. 1831, 108 L.Ed.2d 959 (1990).

10

Joshua maintains that the district court's procedure prejudiced him because the
same jury that heard the evidence in the first part of the trial was then asked to
decide Count Four--raising the possibility of improper spill-over of evidence.
Moreover, he claims that severance was mandated by our opinion in United
States v. Busic, 587 F.2d 577 (3d Cir.1978), rev'd on other grounds, 446 U.S.
398, 100 S.Ct. 1747, 64 L.Ed.2d 381 (1980).

11

In Busic, we dealt with a similar factual situation. The defendant was charged
with various drug offenses and with being a felon in possession of a firearm.
Claiming prejudice if the jury were aware of his prior convictions, the
defendant moved to sever the weapons possession charge. The district court
denied the defendant's motion and he appealed. This court upheld the district
court's decision on the grounds that the evidence was independently admissible
on the other counts of the indictment and additionally that any error was
harmless beyond a reasonable doubt. However, we went on to advise the
district courts that:

12 think that in ruling on a pre-trial motion to sever the district court should
[W]e
determine whether evidence of the prior convictions would be independently
admissible on the other counts. If it is determined that the convictions would not be
admissible on the other counts--that were these counts to be tried alone the jury
would not hear this evidence--then severance should be granted.

13

14

Id. at 585 (footnote omitted).5 We recognized that the district courts may have
difficulty making these determinations in a pre-trial setting; however, "if the
government chooses to join such counts, it must be prepared to justify the
joinder to the trial judge by showing that the prior convictions would be
admissible even absent joinder." Id. at 585 n. 9.
The parties disagree on whether the procedure followed in this case was
condoned or forbidden by Busic. Although in Busic we noted that bifurcation
was a "novel approach" to the problem, id. at 585 (citing United States v.
Franke, 331 F.Supp. 136 (D.Minn.1971)), we have not yet squarely addressed
the issue of its propriety. Moreover, the district courts in this circuit have
reached contrary conclusions on that issue. In United States v. Vastola, 670
F.Supp. 1244, 1263 (D.N.J.1987), the court interpreted our reference to
bifurcation as a "novel approach" to mean that we approved of this procedure.
However, in United States v. Edwards, 700 F.Supp. 837, 838 (W.D.Pa.1988),
the court refused to read Busic "so loosely" and held that the bifurcated trial
procedure replaced one kind of prejudice to the defendant with another:

15
Rather
than determining the guilt or non-guilt of the defendant as to Counts One and
Two with knowledge of a prior felony conviction, the jury would determine the guilt
or non-guilt of the defendant as to Count Three after hearing testimony relating to,
and possibly convicting the defendant of Counts One and Two.
16

Id.

17

We conclude that the procedure adopted by the district court here strikes an
appropriate balance between the concern about prejudice to the defendant and
considerations of judicial economy. Our concern in Busic was that the necessity
of introducing evidence of the defendant's criminal record in order to prove the
weapons possession charge would prejudice the defendant during the jury's
deliberations on other counts. The bifurcated trial procedure adopted here
addresses that concern. The defendant's criminal past is not made known to the
jury until after they have reached a verdict with respect to the other charges. At
the same time, this procedure is considerably more efficient than conducting an
entire new jury trial on the weapon possession charge at a later date.

18

The potential for the type of prejudice that concerned the court in Edwards and
of which Joshua complains is the same potential for prejudice that every
criminal defendant faces when multiple counts are tried together. Here, for
example, the potential for prejudice to Joshua from the jury having the
evidence regarding armed bank robbery available to it in the first part of the

trial when it decided Count Three (receipt of a firearm with an obliterated serial
number) is precisely the same potential for prejudice that arose when the jury
had that same evidence available to it while deciding the unlawful possession
of a firearm charge in the second phase. Thus, the logical extension of Joshua's
argument is that a defendant is entitled to separate trials on all charges against
her because she will suffer prejudice if the jury hears evidence regarding more
than one charge in a given trial. This is clearly an untenable position that we
decline to endorse.
19

All of the charges contained in Joshua's indictment arose out of the same,
uninterrupted series of transactions, making it highly efficient to try all of them
together. This is the kind of situation in which all charges are normally joined
for trial in the absence of a showing of substantial potential for prejudice. See
F.R.Cr.P. 8(a) & 14. There was no such showing here. United States v.
Thomas, 610 F.2d 1166, 1171 (3d Cir.1979) (Although in moving to sever,
defendant correctly identified danger inherent when related charges are tried
together, "absent special justification, juries are relied on to recall and sort
through a broad range of evidence to which they are exposed.") Accordingly,
we conclude that the bifurcation procedure employed in this case was well
within the discretion of the district court.

III.
20

We now turn to the sentencing guidelines and their application in this particular
case. Joshua argues that the district court erred in its application of the
guidelines and that we should remand for resentencing.

A.
21

In order to understand the arguments in this case, it is necessary to retrace the

path through the briar patch of guidelines and commentary trod by the
probation officer and the district court in arriving at Joshua's sentence. We start
with U.S.S.G. 4B1.4, the Armed Career Criminal Guideline, which provides
in part:

22 A defendant who is subject to an enhanced sentence under the provisions of 18

(a)
U.S.C. 924(e) is an armed career criminal.
(b) The offense level for an armed career criminal is the greatest of:
23
(1) the offense level applicable from Chapters Two and Three; or
24
(2) the offense level from 4B1.1 (Career Offender) if applicable; or
25

26

(3)(A) 34, if the defendant used or possessed the firearm or ammunition in

connection with a crime of violence or controlled substance offense, as defined
in 4B1.2(1), or if the firearm possessed by the defendant was of a type
described in 26 U.S.C. 5845(a); or

(B) 33, otherwise.*

27

It is undisputed that Joshua is subject to the sentence enhancement provisions

of 18 U.S.C. 924(e) and is therefore an armed career criminal. Accordingly,
we first apply Chapters Two and Three of the guidelines pursuant to 4B1.4(b)
(1). Those provisions yield an adjusted offense level of 27. 6This offense level
did not figure into Joshua's sentence because the other provisions of 4B1.4
produce greater offense levels.
We next turn to the Career Offender Guideline, 4B1.1 7 and make that
calculation. This provision provides for enhanced penalties for a defendant who
stands convicted of a "crime of violence" or a "controlled substance offense" if
that defendant has at least two prior felony convictions of either a crime of
violence or a controlled substance offense and is at least 18 years of age. These
enhanced penalties are based upon the statutory maximum term of
imprisonment associated with the particular crime of violence or controlled
substance offense that is the offense of conviction.
The presentence report established an offense level under this section by
considering both the weapons possession charge and the bank robbery charge
as "crimes of violence." An application note under this section directs that "[i]f
more than one count of conviction is a crime of violence or controlled
substance offense, use the maximum authorized term of imprisonment for the
count that authorizes the greatest maximum term of imprisonment." U.S.S.G.
4B1.1, comment. (n. 2). The statutory maximum term of imprisonment for the
robbery count is 25 years. See supra note 1. Because 18 U.S.C. 922(g) &
924(e)8carry a mandatory minimum sentence of "not less than 15 years," and
include no express statement of the maximum sentence, the report concluded
that the offense statutory maximum of the unlawful possession charge was life
imprisonment. Accordingly, the presentence report recommended that Joshua
receive an offense level of 37. This level was decreased by two under 3E1.1
for acceptance of responsibility. The district court accepted the analysis of the
presentence report in sentencing Joshua.
Because the offense level of 35 derived from the Career Offender provision

was greater than those otherwise applicable under the other provisions of the
Armed Career Criminal guideline, the district court sentenced Joshua on that
basis. Offense level 35 with a criminal history category of VI yields a
sentencing rage of 292-365 months. The district court sentenced Joshua within
this range, imposing a sentence of 365 months for the unlawful weapons
possession charge and 300 months for the armed bank robbery charge.
B

Joshua makes two arguments regarding the application of the career offender
guideline. First, he argues that the statutory maximum penalty under 18 U.S.C.
924(e) is not life imprisonment but some term of years in excess of 15 years.
The language of the section provides only a mandatory minimum sentence of
fifteen years and supplies no maximum. However, as the government points
out, every court of appeals that has considered the question, including this one,
has concluded that the maximum sentence authorized under 924(e) is life
imprisonment. United States v. Williams, 892 F.2d 296, 304 (3d Cir.1989)
("When Congress provided for 'imprisonment of not less than fifteen years [in
924(e)(1) ],' it meant a maximum of life."), cert. denied, 496 U.S. 939, 110
S.Ct. 3221, 110 L.Ed.2d 668 (1990); see also United States v. Fields, 923 F.2d
358, 362 (5th Cir.), cert. denied, --- U.S. ----, 111 S.Ct. 2066, 114 L.Ed.2d 470
(1991); United States v. Alvarez, 914 F.2d 915, 919 (7th Cir.1990), cert.
denied, --- U.S. ----, 111 S.Ct. 2057, 114 L.Ed.2d 462 (1991); United States v.
Carey, 898 F.2d 642, 646 (8th Cir.1990); United States v. Blannon, 836 F.2d
843, 845 (4th Cir.), cert. denied 486 U.S. 1010, 108 S.Ct. 1741, 100 L.Ed.2d
204 (1988). Therefore, if the court's conclusion is correct that the weapons
possession charge is properly considered a crime of violence under the
guidelines, then the offense level of 37 prior to any acceptance of responsibility
adjustment is also correct.

This brings us to Joshua's second argument, that possession of a firearm by a

convicted felon is not a crime of violence, and therefore should not have been
considered when calculating the defendant's offense level under 4B1.1. The
term "crime of violence" is defined in 4B1.2:
The term "crime of violence" means any offense under federal or state law
punishable by imprisonment for a term exceeding one year that(i) has an
element the use, attempted use, or threatened use of physical force against the
person of another, or
(ii) is burglary of a dwelling, arson, or extortion, involves use of explosives, or
otherwise involves conduct that presents a serious potential risk of physical
injury to another.

Application note 2 of 4B1.2 as it existed at the time of Joshua's sentencing

read as follows:
"Crime of violence" includes murder, manslaughter, kidnapping, aggravated
assault, forcible sex offenses, robbery, arson, extortion, extortionate extension
of credit, and burglary of a dwelling. Other offenses are included where (A) that
offense has an element the use, attempted use, or threatened use of physical
force against the person of another, or (B) the conduct set forth in the count of
which the defendant was convicted involved the use of explosives or, by its
nature, presented a serious potential risk of physical injury to another.
Between the time of Joshua's sentence and his appeal, the Sentencing
Commission promulgated a "clarifying" amendment to this commentary.9As the
actual text of guideline was not changed, the Commission did not present this
amendment to Congress in accordance with the amendment procedures
contained in 28 U.S.C. 994(p).10See 56 Fed.Reg. 22,762 (1991). The
amendment, however, now makes explicit that the Sentencing Commission
does not intend unlawful possession of a firearm by a felon to be considered a
crime of violence. Moreover, the amendment also demonstrates the
Commission's intent that sentencing courts make the determination whether a
crime "otherwise involves conduct that presents a serious potential risk of
physical injury" by looking only at the indictment charging the defendant. The
commentary accompanying the amendment states that, "[t]his amendment
clarifies that the application of 4B1.2 is determined by the offense of
conviction (i.e., the conduct charged in the count of which the defendant was
convicted); [and] clarifies that the offense of unlawful possession of a weapon
is not a crime of violence for the purposes of this section ..." Appendix C,
Guidelines Manual at 254 (1991). Joshua argues that because, in the
Sentencing Commission's own words, this amendment is not a substantive
change to the guideline and merely a clarification of the Commission's intent,
that it should apply to him despite the fact that the effective date of the
amendment is after the date of his sentence. See United States v. Ofchinick,
877 F.2d 251, 257 n. 9 (3d Cir.1989) ("Inasmuch as the amendment to the
guideline [which is not yet in effect] is intended to clarify the meaning of the
existing guideline, we may give it substantial weight in determining the
meaning of the existing guideline.")
Unfortunately, this amendment to the commentary urges us to interpret the
guideline in a manner inconsistent with two recent decisions of this court upon
which the government relies. In United States v. John, 936 F.2d 764 (3d
Cir.1991), we held that, because of the facts proved at trial, the defendant's
prior Virgin Islands grand larceny conviction was appropriately considered a
11

crime of violence. This holding was based upon the following reasoning:
We think it plain ... that the Sentencing Commission essentially envisioned
three independent ways by which a prior conviction will be considered a "crime
of violence": (1) the prior conviction is for a crime that is among those
specifically enumerated (murder, manslaughter, kidnapping, etc.); (2) the prior
conviction is for a crime that, although not specifically enumerated, has as an
element of the offense the use, attempted use, or threatened use of physical
force; or (3) the prior conviction is for a crime that, although neither
specifically enumerated nor involving physical force as an element of the
offense, involves conduct posing a serious potential risk of physical injury to
another.
Id. at 767. Under this interpretation, the court went on to hold that whether the
offense fits within this third category is determined by looking beyond the facts
charged in the indictment and through to the defendant's underlying conduct.
Id. at 768 (citing United States v. Williams, 892 F.2d 296, 304 (3d Cir.1989)).
Therefore, all relevant conduct under 1B1.3 should be considered. Because
the defendant's grand larceny conviction in John involved threatening the
victims with guns, the court concluded that it should be considered a crime of
violence under the third prong.12
The recent amendment to the commentary clearly indicates the Sentencing
Commission's intent that in determining whether a particular offense "otherwise
involves conduct that presents a serious potential risk of physical injury to
another," the sentencing court will look only to that conduct expressly charged
in the indictment, see supra note 9, a view of the guideline we explicitly
rejected in John. We stated there:
[I]t is not only impermissible, but pointless, for the court to look through to the
defendant's actual criminal conduct under the first two prongs. All that the
court needs to know can be gleaned from the fact of conviction and the
charging paper. However, in our view, the third prong quite clearly permits the
court to examine the defendant's actual conduct to ascertain whether that
conduct posed a sufficient potential risk of physical injury to another to elevate
the crime to a "crime of violence."
John, 936 F.2d at 767-68 (citation omitted).
The second of our cases that is in tension with the amended commentary is
United States v. Williams, 892 F.2d 296 (3d Cir.1989), cert. denied, 496 U.S.

939, 110 S.Ct. 3221, 110 L.Ed.2d 668 (1990). There, we held that possession of
a firearm by a felon may or may not be a crime of violence depending upon the
circumstances. Relying on the application notes relevant at that time, the court
held that "possessing a gun while firing it [at a person] is a crime of violence;
possession without firing the weapon is not." Every other court of appeals that
addressed the question before the amendment to the commentary in question
had reached a similar conclusion: at least in some circumstances, a felon in
possession charge could be considered a crime of violence. See United States v.
O'Neal, 937 F.2d 1369, 1372 (9th Cir.1991) (possession of a firearm by a felon
is per se a crime of violence); United States v. Stinson, 943 F.2d 1268 (11th
Cir.1991) (same); United States v. Walker, 930 F.2d 789 (10th Cir.1991)
(Court should look to the facts of the case to determine whether possession of a
firearm by a felon is a crime of violence); United States v. Alvarez, 914 F.2d
915 (7th Cir.1990) (same), cert. denied, --- U.S. ----, 111 S.Ct. 2057, 114
L.Ed.2d 462 (1991); United States v. Goodman, 914 F.2d 696 (5th Cir.1990)
(same). However, the amended commentary establishes a bright-line rule with
respect to the crime of felon in possession of a firearm. According to the
commentary, under no circumstances is this crime to be considered a crime of
violence for purposes of the Career Offender Guideline.
The guidelines themselves provide that a court is generally required to apply
the guidelines and commentary in effect at the time of sentencing. 18 U.S.C.
3553(a)(4)-(5). In addition, sentencing courts may look to subsequent
amendments to the guidelines and commentary, even those that have not
become effective at the time of sentencing, as strong indications of the
Sentencing Commission's intent in promulgating a relevant guideline. United
States v. Ofchinick, 877 F.2d 251, 257 n. 9 (3d Cir.1989); Early v. United
States, --- U.S. ----, 112 S.Ct. 330, 116 L.Ed.2d 270, 271 (1991) (White, J.,
dissenting from denial of certiorari) (collecting cases).13At the same time, this
panel and the district courts in this circuit are duty bound to adhere to the prior
decisions of this court. See Internal Operating Procedure 9.1 (1990). Because
John and Williams cannot be reconciled with the Sentencing Commission's
most recent announcement regarding the meaning of 4B1.1, the issue to be
decided here is whether we, as a panel, are free to consider the Commission's
new commentary and, based thereon, to reach a decision contrary to the
holdings of John and Williams.
The courts of appeals that have considered analogous issues have reached
differing conclusions. In United States v. Saucedo, 950 F.2d 1508 (10th
Cir.1991), the court addressed the Commission's amendment to the
commentary to 3B1.1, giving that guideline a construction that conflicted
with existing Tenth Circuit precedent. The court concluded that:

Circuit courts are empowered to determine whether sentences are imposed in

accordance with the law and whether the guidelines have been properly
applied. 18 U.S.C. 3742(f). Our jurisdictional grant of authority necessarily
implies that our interpretation of a guideline has the force of law until such time
as the Sentencing Commission or Congress changes the actual text of the
guideline. The Sentencing Commission's post hoc clarification of its intent does
not invalidate our pre-amendment interpretation of the guideline.
Id. at 1515.
The Court of Appeals for the Eleventh Circuit took precisely the same view in a
case factually on all fours with ours. United States v. Stinson, 957 F.2d 813,
815 (11th Cir.1992) ("If there is no change to a particular guideline, but the
Commission alters that section's commentary, there is no evidence that
Congress reviews it or is even notified of the alteration.... We decline to be
bound by the change in section 4B1.2's commentary until Congress [or the
Sentencing Commission with congressional approval] amends section 4B1.2's
language to exclude specifically the possession of a firearm by a felon as a
'crime of violence.' ") (footnote omitted).
On the other side of the issue are the Courts of Appeals for the Fifth and
District of Columbia Circuits. In United States v. Fitzhugh, 954 F.2d 253 (5th
Cir.1992), the court decided the fate of one of its prior decisions, United States
v. Goodman, 914 F.2d 696 (5th Cir.1990) (sentencing court is permitted to look
beyond the face of the indictment at the underlying conduct to determine
whether an offense is a crime of violence), in the face of the subsequent
amendment to the commentary. With little discussion, the court concluded that
the amendment took precedence and that "Goodman is no longer controlling."
Fitzhugh, 954 F.2d at 255. The D.C. Circuit, also with limited discussion,
reached a similar conclusion in United States v. Caballero, 936 F.2d 1292, 1299
(D.C.Cir.1991) (reasoning in earlier precedent was "nullified by the clarifying
amendment"), rev'g United States v. Williams, 891 F.2d 921 (D.C.Cir.1989).
In pondering which side to take in this disagreement among the courts of
appeals, we have been significantly influenced by what we understand to be the
Commission's role in the statutory scheme. In addition to promulgating the
guidelines, the Commission has a continuing obligation to "review and revise,
in consideration of comments and data coming to its attention, the guidelines
promulgated pursuant to the provisions of this section." 28 U.S.C. 994(o). In
light of this obligation and the Commission's authority to determine the
retroactive effect of an amendment to the guidelines that reduces a term of
imprisonment, see 28 U.S.C. 994(u); U.S.S.G. 1B1.10, the Supreme Court

refused to resolve a split of authority among the courts of appeals over the
meaning of U.S.S.G. 1B1.2 because the Commission had already requested
public comment on an amendment to resolve the conflict. Braxton v. United
States, --- U.S. ----, 111 S.Ct. 1854, 114 L.Ed.2d 385 (1991). The Court
concluded that, "Congress necessarily contemplated that the Commission
would periodically review the work of the courts, and would make whatever
clarifying revisions to the Guidelines conflicting judicial decisions might
suggest." Id. --- U.S. at ----, 111 S.Ct. at 1858. Clearly, the Commission has a
part to play when courts, interpreting the same language, reach contrary
conclusions.
Given the statutory scheme and the Commission's role in it, we think it
important to distinguish two situations both of which are illustrated by this case.
Where the Commission adopts an interpretive commentary amendment that the
text of the guideline cannot reasonably support, the Commission circumvents
the process Congress has established for amending the guidelines. When this
happens, we should decline to follow its lead. Here, for example, 4B1.2
clearly calls for different approaches when applying subparagraph (i) and
subparagraph (ii). Subparagraph (i) calls upon the sentencing court to focus on
the elements of the offense of conviction to determine whether they include the
use, attempted use or threatened use of physical force. Subsection (ii), however,
directs the sentencing court to look to the "conduct " involved in the offense
and to determine whether that "conduct " presents a serious potential risk of
physical injury. Because possession of a weapon by a felon does not have an
element of physical force, the courts, under subsection (ii), have looked either
to the conduct alleged in the indictment or the conduct evidenced by the record
to determine whether the defendant committed a crime of violence. As we have
previously noted, no court prior to the commentary amendment had interpreted
the guideline to mean that possession of a firearm by a felon is never a crime of
violence. Therefore, to the extent the amendment in question purports to make
possession of a firearm by a felon never a crime of violence, we conclude that
the text of the guideline will not support this interpretation. Thus, we decline to
give it any effect.
Quite another issue is presented, however, where a guideline is ambiguous and
the Commission adopts a commentary that resolves or "clarifies" the
ambiguity. Here, for example, 4B1.2(1)(ii) is reasonably susceptible to two
interpretations: 1) that the sentencing court should look only to the conduct
alleged in the relevant count of the indictment, or 2) that the court should look
to all conduct revealed by the available evidence. This court, when confronted
with the ambiguity, interpreted it to mean the latter. It is now apparent,
however, that the Commission thinks the proper construction is the former.

We believe the 10th and 11th Circuits misstate the issue when they ask, in
effect, whether the Commission has the authority to overturn their prior
precedents. Obviously, the Commission is not so authorized. On the other hand,
the Commission is authorized to interpret the guidelines by issuing commentary
without going through the amendment process. See United States Sentencing
Commission Annual Report 1991 at 5 (Fifteen amendments that clarify
commentary, including amendment at issue, "did not require submission to
Congress."); 28 U.S.C. 994(p) (requiring that the Commission submit to
Congress only amendments to the guidelines themselves.) The issue for
resolution is whether a court may properly consider such amended commentary
in the course of determining what a guideline means and whether it may reach
a result with the benefit of that amended commentary contrary to that which a
prior panel reached without such assistance. We believe this issue should be
resolved in the affirmative.14
It seems to us that the situation is no different than the one a court confronts
when an administrative agency authorized to administer and enforce a statute,
takes a position on the correct interpretation of an ambiguous provision of the
statute. Normally, courts give deference to such an interpretation. Just as with
the proposed guideline commentary in Ofchinick, this court would normally
consider and, indeed defer to, a new agency interpretation of an ambiguous
governing statutory provision if it represents a reasonable reading of that
provision.
Where a prior panel of this court has interpreted an ambiguous statute in one
way, and the responsible administrative agency later resolves the ambiguity
another way, this court is not bound to close its eyes to the new source of
enlightenment. In addition to securing the expertise of the agency, this approach
tends to promote uniformity in the application of the statute. Both of these
benefits would result from our treating a commentary in the same manner as a
statutory interpretation of an agency having the responsibility of administering
the statute. If anything, the case for taking note of new commentary is more
compelling here because of the Commission's role as the entity that initiates
sentencing guidelines.
We join the Courts of Appeals for the Fifth and District of Columbia Circuits in
holding that we may consider a new commentary regarding an ambiguous
guideline in determining how that guideline should be applied. We further hold
that a panel may consider new commentary text where another panel of this
court has already resolved the ambiguity and that a second panel is entitled to
defer to the new commentary even when it mandates a result different from that
of the prior panel.

We conclude that the reading of 4B1.2 reflected in the new commentary is a

permissible reading of that guideline and, based on Ofchinick, that this court in
Williams and John would have so interpreted 4B1.2 if it had had the benefit
of the new commentary. Accordingly, we further hold that a sentencing court
should look solely to the conduct alleged in the count of the indictment
charging the offense of conviction in order to determine whether that offense is
a crime of violence under subsection (ii) of the guideline.
D

We now turn to the effect on Joshua's sentence of the above discussion. Count
Four of the indictment in this case simply lists Joshua's prior felony offenses
and charges him with possession of a firearm and ammunition. There is no
conduct alleged that posed "a serious potential risk of physical injury to
another." Accordingly, Joshua's sentence under the career offender guideline
cannot stand. We recognize that the district court correctly sentenced Joshua
according to the guidelines and our interpretation of the guidelines in effect at
the time of sentencing; nevertheless, we will remand to give the district court
an opportunity to resentence in a manner consistent with this opinion.
IV.
Joshua's final claim on appeal is that the district court erred in imposing a
$3,000 fine. This argument is without merit.
The initial presentence report prepared after the trial but before the plea
agreement indicated that Joshua had no assets and was therefore unable to pay
a fine. The government objected to this aspect of the report. Joshua was a
judgment creditor of the Virgin Islands as the result of the settlement of a
lawsuit. He was owed $3,000.
Under the guidelines, the court must "impose a fine in all cases, except where
the defendant establishes that he is unable to pay and is not likely to become
able to pay any fine." 5E1.2. In United States v. Demes, 941 F.2d 220, 223
(3d Cir.), cert. denied, --- U.S. ----, 112 S.Ct. 399, 116 L.Ed.2d 348 (1991), we
reversed the imposition of a fine where the court "made no finding as to Demes'
ability to pay the fine." The defendant argues that the same error occurred here.
This argument mischaracterizes the record. During the sentencing hearing, the
court stated, "[a] fine of $3,000 is imposed as the defendant will be in receipt of
such funds by virtue of a judgment heretofore entered in his favor and against
the Virgin Islands on December 28, 1990, the same to be paid when the funds
become available." App. at 593. It is clear from this statement that the court

considered the defendant's ability to pay. The imposition of the fine will
therefore be affirmed.15
V

In accordance with the above discussion, we will affirm Joshua's conviction,

vacate the district court's judgment of sentence, and remand for resentencing
consistent with this opinion.

18 U.S.C. 2113 provides in relevant part:

(a) Whoever, by force and violence, or by intimidation, takes, or attempts to
take, from the person or presence of another, or obtains or attempts to obtain by
extortion any property or money or any other thing of value belonging to, or in
the care of, custody, control, management, or possession of, any bank, credit
union, or any savings and loan association ...
Shall be fined not more than $5,000 or imprisoned not more than twenty years,
or both.
(d) Whoever, in committing, or in attempting to commit, any offense defined in
subsections (a) and (b) of this section, assaults any person, or puts in jeopardy
the life of any person by the use of a dangerous weapon or device, shall be
fined not more than $10,000 or imprisoned not more than twenty-five years, or
both.

18 U.S.C. 922(g) provides:

It shall be unlawful for any person-(1) who has been convicted in any court of a crime punishable by imprisonment
for a term exceeding one year ...
to ship or transport in interstate or foreign commerce, or possess in or affecting
commerce, any firearm or ammunition; or to receive any firearm or ammunition
which has been shipped or transported in interstate or foreign commerce.
18 U.S.C. 924(e) provides:
(1) In the case of a person who violates section 922(g) of this title and has three
previous convictions by any court referred to in section 922(g)(1) of this title
for a violent felony or a serious drug offense, or both, committed on occasions
different from one another, such person shall be fined not more than $25,000
and imprisoned not more than fifteen years....

The defendant also raised a prosecutorial misconduct issue on appeal, claiming

that the prosecutor's argument to the jury on the felon in possession charge
misstated the law and impermissibly referred to evidence presented during the
first part of the bifurcated trial. We conclude that this claim is without merit;
the prosecutor made a rational legal argument based upon the facts in evidence
4

Joshua made his motion pursuant to Rule 14 of the Federal Rules of Criminal
Procedure which provides in pertinent part as follows:
If it appears that a defendant or the government is prejudiced by a joinder of
offenses or of defendants in an indictment or information or by such joinder for
trial together, the court may order an election or separate trials of counts, grant
a severance of defendants or provide whatever other relief justice requires....

This so-called "per se rule" of Busic has been widely criticized by other courts
of appeals and no other court has adopted the procedure spelled out there. See,
e.g., United States v. Lewis, 787 F.2d 1318, 1322 (9th Cir.1986); United States
v. Daniels, 770 F.2d 1111, 1117 (D.C.Cir.1985); United States v. Silva, 745
F.2d 840, 843 (4th Cir.1984), cert. denied, 470 U.S. 1031, 105 S.Ct. 1404, 84
L.Ed.2d 791 (1985); United States v. Valentine, 706 F.2d 282, 290 (10th
Cir.1983); United States v. Aleman, 609 F.2d 298 (7th Cir.1979), cert. denied,
445 U.S. 946, 100 S.Ct. 1345, 63 L.Ed.2d 780 (1980)

This number is derived first by grouping Count One and Count Four under
3D1.2(c). This guideline provides that closely-related counts should be grouped
when one count embodies conduct that is treated as a specific offense
characteristic of the other. Because use or possession of a weapon is a specific
offense characteristic under the robbery guideline, 2B3.1, these two counts
are grouped. (In fact, this exact scenario is given as an example in Application
Note 5 of 3D1.2: "use of a firearm in a bank robbery and unlawful possession
of that firearm are sufficiently related to warrant grouping of counts under this
subsection."). Then, we determine the offense level applicable to the group
under 3D1.3. In this case, because the bank robbery offense yields the higher
offense level of the counts in the group, it is used. The base offense level is 20,
2B3.1(a). The specific offense characteristics increase the base offense level
as follows: 2-level increase because the offense involved the property of a
financial institution, 2B3.1(b)(1); 3-level increase because a weapon was
brandished, 2B3.1(b)(2) (today, this would be 5-level increase due to an
amendment to the guideline effective November 1, 1991); 1-level increase
because a firearm was taken from the security guard, 2B3.1(b)(5); 1-level
increase because the loss was between $10,000 and $50,000, 2B3.1(b)(6)(B).
To the specific offense characteristic numbers, a 2-point adjustment for reckless
endangerment under 3C1.2 is added and a 2-point adjustment for acceptance
of responsibility is deducted, 3E1.1. This calculation yields an adjusted

offense level of 27
7 U.S.S.G. 4B1.1 provides:
A defendant is a career offender if (1) the defendant was at least eighteen years
old at the time of the instant offense, (2) the instant offense of conviction is a
felony that is either a crime of violence or a controlled substance offense, and
(3) the defendant has at least two prior felony convictions of either a crime of
violence or a controlled substance offense. If the offense level for a career
criminal from the table below is greater than the offense level otherwise
applicable, the offense level from the table below shall apply. A career
offender's criminal history category in every case shall be Category VI.
Offense Statutory Maximum
(A)
Life
(B)
25 years or more
(C)
20 years or more, but less than 25

Offense Level*
37
34
32

***
*

If an adjustment from 3E1.1 (Acceptance of Responsibility) applies, decrease

the offense level by 2 levels.

18 U.S.C. 924(e) provides in part:

In the case of a person who violates section 922(g) of this title and has three
previous convictions by any court referred to in section 922(g)(1) of this title
for a violent felony or a serious drug offense, or both, committed on occasions
different from one another, such person shall be fined not more than $25,000
and imprisoned not less than 15 years, and, notwithstanding any other provision
of law, the court shall not suspend the sentence of, or grant a probationary
sentence to, such person with respect to the conviction under section 922(g),
and such person shall not be eligible for parole with respect to the sentence
imposed under this subsection.

Application Note 2 now provides:

"Crime of violence" includes murder, manslaughter, kidnapping, aggravated
assault, forcible sex offenses, robbery, arson, extortion, extortionate extension
of credit, and burglary of a dwelling. Other offenses are included where (A) that
offense has an element the use, attempted use, or threatened use of physical
force against the person of another, or (B) the conduct set forth (i.e., expressly
charged) in the count of which the defendant was convicted involved the use of
explosives (including any explosive material or destructive device) or, by its
nature, presented a serious potential risk of physical injury to another. Under

this section, the conduct of which the defendant was convicted is the focus of
the inquiry.
The term "crime of violence" does not include the offense of unlawful
possession of a firearm by a felon. Where the instant offense is the unlawful
possession of a firearm by a felon, the specific offense characteristics of
2K2.1 (Unlawful Receipt, Possession, or Transportation of Firearms or
Ammunition; Prohibited Transactions Involving Firearms or Ammunition)
provide an increase in offense level if the defendant has one or more prior
felony convictions for a crime of violence or controlled substance offense; and,
if the defendant is sentenced under the provisions of 18 U.S.C. 924(e),
4B1.4 (Armed Career Criminal) will apply.
See Appendix C, Guidelines Manual, 253-54.
10

28 U.S.C. 944(p) provides:

The Commission, at or after the beginning of a regular session of Congress, but
not later than the first day of May, may promulgate under subsection (a) of this
section and submit to Congress amendments to the guidelines.... Such an
amendment or modification shall be accompanied by a statement of the reasons
therefor and shall take effect on a date specified by the Commission, which
shall be no earlier than 180 days after being so submitted and no later than the
first day of November of the calendar year in which the amendment or
modification is submitted, except to the extent that the effective date is revised
or the amendment is otherwise modified or disapproved by Act of Congress.

11

The court in John was faced with an analogous, but somewhat different
situation from the one facing us. The defendant in John challenged the
characterization of a prior offense as a crime of violence for the purposes of
determining whether the Career Offender provision applied to him in the first
place. The definition of the term "crime of violence" in 4B1.2, however, is
the same regardless of whether the court is concerned with the instant offense
or with a prior felony conviction. But see United States v. Walker, 930 F.2d
789, 794 (10th Cir.1991) (When determining whether prior offenses is a crime
of violence, court may only look to elements of crime as charged in indictment,
but when categorizing instant offense, court may examine actual conduct.)

12

In its short life, John has been criticized by other courts of appeals as ignoring
the clear intent of Sentencing Commission. These courts read 4B1.1 and the
attendant commentary to prohibit the sentencing court from looking to all the
relevant conduct when deciding whether a particular offense is a crime of
violence. These courts hold that this decision is made by 1) comparing the
offense charged with the list of enumerated crimes of violence, 2) determining

whether an element of the offense involves physical force, or 3) looking to the

conduct actually charged in the indictment for evidence of violence. See United
States v. Johnson, 953 F.2d 110, 112-114 (4th Cir.1991) ("In assessing a
particular offense to determine if it is a crime of violence under the 'catchall'
provision of U.S.S.G. 4B1.2, a sentencing court must confine its factual
inquiry to those facts charged in the indictment."); United States v. Fitzhugh,
954 F.2d 253, 255 (5th Cir.1992) (same)
13

It is important to note that we are not here concerned with an amendment that
imposes a harsher penalty than the guidelines and commentary in effect at the
time of the crime. The issue here is whether the defendant gets the benefit of an
amendment that would authorize a lesser penalty. Thus the ex post facto clause
is not implicated. Miller v. Florida, 482 U.S. 423, 107 S.Ct. 2446, 96 L.Ed.2d
351 (1987); United States v. Kopp, 951 F.2d 521, 526 n. 8 (3d Cir.1991)

14

A related question, which we need not resolve, is whether commentary

amendments that are submitted to Congress in accordance with the guideline
amendment procedure should be treated differently than amendments such as
the one in question. We note that despite promulgating the amendment sub
judice in 1991 and indicating that it would take effect November 1 of that year,
the Commission recently submitted the same amendment to Congress. See 57
Fed.Reg. 20148, 20157 (1992) (Amendment 25). According to the
Commission, this "new" amendment "ratifies a previous amendment to the
commentary." In the absence of congressional action, the effective date of this
amendment is November 1, 1992

15

The government notes in its brief and appendix that the fine has already been
paid. The government attached the judgment and was paid directly by the
government of the Virgin Islands. A small amount remained in excess of the
amount of the fine which has been returned to Mr. Joshua

If 3E1.1 (Acceptance of Responsibility) applies, reduce by 2 levels