GARWOOD, Circuit Judge:
Defendant-appellant Gregory Kuban (Kuban), a convicted felon, pleaded guilty to a charge of knowingly possessing firearms that had been shipped or transported in interstate commerce, in violation of 18 U.S.C. § 922(g)(1). Prior to entering his plea, Kuban filed a motion to dismiss the indictment, challenging the constitutionality of section 922(g)(1). Kuban's plea was conditioned on his right to appeal the district court's denial of this motion to dismiss the indictment. On appeal, Kuban challenges both the constitutionality of section 922(g)(1) and the district court's interpretation and application of the guidelines in computing his sentence.
Facts and Proceedings Below
On the evening of July 1, 1994, Kuban went searching for his fourteen-year-old daughter, Jennifer Kuban. During his search, he came upon a friend of his daughter, sixteen-year-old Kenan Ozen (Ozen), parked in his car with Justin Neelley (Neelley). Kuban pulled his car alongside that of Ozen, pointed a 9mm pistol at Ozen's head, cocked the hammer and demanded that Ozen tell him the whereabouts of his daughter. Kuban was acquainted with Ozen as Ozen had previously worked for him, providing maintenance at Kuban's automobile detail and window tinting business. Directing his litany of threats and questions at Ozen, Kuban apparently left Neelley alone. Ozen and Neelley accordingly led Kuban to his daughter.
When they arrived at the residence where Jennifer Kuban was staying, Ozen and Neelley went inside and told the occupants what had happened. They locked the door and stayed in the house while Kuban sat outside in his car, honking his horn and yelling. Fearing that Kuban would eventually attempt to enter the residence, the occupants called the police, but Kuban departed before the police arrived.
After obtaining a warrant for Kuban's arrest, law enforcement officers proceeded to Kuban's residence and observed him get into his car as if to depart. As five officers ran to Kuban's car, Kuban was seen leaning into the passenger area of his vehicle. One of the officers reported that he then saw a handgun on the front passenger floor. Kuban was instructed to raise his hands and exit the vehicle; when he refused to do so, Kuban was forcibly removed from his car and handcuffed.
In Texas state court, Kuban was charged with aggravated assault with a deadly weapon, in violation of Texas Penal Code §§ 22.01(a)(2), 22.02(a)(2), and felon in possession of a firearm, in violation of Texas Penal Code § 46.04(a)(1). On November 11, 1994, a federal indictment against Kuban was also returned, charging him with felon in possession of a firearm, in violation of 18 U.S.C. § 922(g)(1).
Kuban filed a motion to dismiss the federal indictment, arguing that section 922(g)(1) is an unconstitutional exercise of the government's power to regulate commerce. The district court overruled this motion, and Kuban subsequently entered a conditional guilty plea, reserving his right to appeal the district court's adverse determination of his motion to dismiss.
The presentence investigation report (PSR) recommended: a four-level increase to Kuban's base offense level for Kuban's "use or possess[ion of] any firearm or ammunition in connection with another felony offense", pursuant to U.S.S.G. § 2K2.1(b)(5)
I. Constitutionality of 18 U.S.C. § 922(g)(1)
Kuban's challenges to the constitutionality of section 922(g)(1) as applied to him have been resolved adversely to his contentions by our recent decision in United States v. Rawls, 85 F.3d 240 (5th Cir.1996), which is binding on this panel.
II. Application of the Sentencing Guidelines
We review de novo the district court's "interpretation of the requirements" of the sentencing guidelines. United States v. Lara-Velasquez, 919 F.2d 946, 953 (5th Cir. 1990). However, where the district court has correctly interpreted the relevant guideline provisions, we review the district court's application of the guidelines to the particular facts and circumstances of the case before it for abuse of discretion. See Koon v. United
A."Unusually Vulnerable Victim" Enhancement
The PSR recommended a two-level increase to Kuban's base offense level because Kuban knew or should have known that Ozen was "unusually vulnerable due to age, physical or mental condition, or that [Ozen] was otherwise particularly susceptible to the criminal conduct." U.S.S.G. § 3A1.1. Specifically, the PSR stated that Kuban verbally and physically threatened to kill sixteenyear-old Ozen with a cocked, loaded pistol. The PSR also noted that Ozen had worked for Kuban at Kuban's business. Finally, the PSR observed that Kuban is a fairly large and imposing individual.
The district court adopted the PSR's recommendation. After considering defense counsel's arguments on this point, the district court concluded that Ozen was unusually vulnerable because of his age — "unusually vulnerable, because he's being faced by a fellow who is, perhaps, bigger, certainly older, more experienced, more knowledgeable, more mature, supposedly, as to what he might be able to do to him or with him."
Kuban challenges this adjustment on two grounds: First, Kuban contends that the offense of conviction, felon in possession of a firearm, is a victimless crime; second, Kuban argues that, even assuming arguendo that there could be a victim of his offense of conviction, Ozen was not "unusually vulnerable" within the meaning of section 3A1.1.
Reviewing Kuban's first contention de novo, we hold that the district court did not err by characterizing Ozen as a "victim" of Kuban's conduct. In United States v. Roberson, 872 F.2d 597 (5th Cir.), cert. denied, 493 U.S. 861, 110 S.Ct. 175, 107 L.Ed.2d 131 (1989), this Court held that, in the present context, "[T]he [Sentencing] Commission has chosen not to require a nexus between the offense of conviction and the victim." Id. at 608. This Court reached this conclusion after observing that the commentary to section 3A1.1 did not require the vulnerable victim to be a victim of the offense of conviction: "[W]hen the Commission has wished to require a link between the offense of conviction and a factor the court could consider in sentencing, it has expressly included that requirement in the Guidelines." Id. At the time that this Court decided Roberson, the commentary to section 3A1.1 explained that the vulnerable victim enhancement "applie[d] to any offense where the victim's vulnerability played any part in the defendant's decision to commit the offense." Id. Based on this language, this Court held in Roberson that the (deceased) individual whose credit card had been used by the defendant after the card owner's death in order to commit the charged "credit card fraud" — the offense of conviction — was a "victim" under section 3A1.1, particularly in that the decedent "certainly suffered indignity in having his corpse abused and his good name brought into this whole sordid affair." Id. at 609.
In the instant case, the district court concluded that Ozen was unusually vulnerable because of his age — "unusually vulnerable, because he's being faced by a fellow who is, perhaps, bigger, certainly older, more experienced, more knowledgeable, more mature, supposedly, as to what he might be able to do to him or with him." Additionally, it was brought to the district court's attention that Ozen had previously been employed by Kuban, adding yet another nuance to the relationship between these two individuals. Although the issue is indeed a close one, and the concept of vulnerability has arguably been taken virtually to its outer limits, nevertheless, in light of all the foregoing circumstances and the deference due the district court, we ultimately conclude that its application of section 3A1.1 must stand.
B. Enhancement for Use of Firearm to Commit Felony
Finally, the district court also applied a four-level increase to Kuban's base offense level because "the defendant used or possessed [a] firearm or ammunition in connection with another felony offense ..." U.S.S.G. § 2K2.1(b)(5). In this case, the "[other] felony offense" was aggravated assault with a deadly weapon, violative of Texas Penal Code §§ 22.01(a)(2), § 22.02(a)(2). The parties correctly agree that the second state offense with which Kuban was charged, felon in possession of a firearm, violative of Texas Penal Code § 46.04(a)(1), cannot constitute the "[other] felony offense" underlying the district court's [section 2K2.1(b)(5)] four-level enhancement. However, it appears that the district court relied on the state aggravated assault with a deadly weapon charge to increase Kuban's base offense level pursuant to section 2K2.1(b)(5)
At sentencing, defense counsel objected to the PSR's recommendation of section 2K2.1(b)(5) enhancement, arguing principally that Kuban was being "doubly punished" for his possession of firearms. Counsel further contended that "the aggravated assault  in the state court would not have been an aggravated assault but for the use of the firearm." However, when the district court asked defense counsel whether someone could "be charged with aggravated assault for some other reason other than the use of a firearm?", counsel correctly responded, "Yes,
For the foregoing reasons, Kuban's conviction and sentence are AFFIRMED.
DeMOSS, Circuit Judge, dissenting in part.
I am unable to concur with the summary disposition which the majority makes as to Kuban's challenge to the constitutionality of § 922(g)(1) as applied to him, and write to respectfully register my reasons for this partial dissent.
First, I do not regard the opinion in Scarborough v. United States, 431 U.S. 563, 97 S.Ct. 1963, 52 L.Ed.2d 582 (1977), as "barring the way" as the majority notes in footnote 4 above. In Scarborough the Supreme Court interpreted the language of 18 U.S.C.App. § 1202(a)(1) which fixed the punishments for a convicted felon "who receives, possesses or transports in commerce or affecting commerce ... any firearm." The writ of certiorari in Scarborough was limited to the question of whether a conviction under 18 U.S.C.App. § 1202(a) "is sustainable merely upon a showing that the possessed firearm has previously at any time however remote traveled in interstate commerce." Concluding that the legislative history of § 1202(a) gave no indication "that Congress intended to require any more than the minimal nexus that the firearm has been, at some time, in interstate commerce," the Supreme Court affirmed the conviction, but without any real analysis of whether the "minimal nexus" was constitutionally sufficient.
In 1986, § 1202(a), along with the various congressional findings which the Court cited in Scarborough as supporting the "minimal nexus" conclusion, was repealed by Congress.
18 U.S.C. § 922(g).
It seems critically important that we note the clear differences between the current statute (§ 922(g)(1)) under which Kuban was indicted and the old statute (18 U.S.C.App. § 1202(a)(1)) which was construed in Scarborough. First, as the Supreme Court has held, under the old statute the phrase "in commerce or affecting commerce" applied to each of the three verbs: "receives, possesses or transports."
It seems important to note that the current statute (§ 922(g)(1)) does not use any words or phrases which refer to or are a derivative of the phrase used in the question certified on writ of certiorari in Scarborough: "that the possessed firearm has previously at any time however remote traveled in interstate commerce." (Emphasis added.) Nor are there any words or phrases in the current statute referring to the holding of the Supreme Court in Scarborough that the "firearm had been, at some time, in interstate commerce". In putting together § 922(g), Congress could easily have inserted the phrase "at any time" after the words "shipped or transported" in Element C as it did in § 922(k), and the absence of any phrase as to the remoteness in time of the shipment or transportation in interstate commerce leads me to the conclusion that Congress chose not to rely upon the "minimal nexus" of Scarborough, but rather crafted § 922(g) to have clear and unambiguous connections with interstate commerce.
The second reasons why I would not consider that Scarborough stands in the way of a thorough examination of the constitutionality of § 922(g)(1) in this case is that the precise holding in Scarborough is in fundamental and irreconcilable conflict with the rationale of the United States Supreme Court in United States v. Lopez, ___ U.S. ___, 115 S.Ct. 1624, 131 L.Ed.2d 626 (1995).
Finally, I would proceed to reach the constitutionality of § 922(g)(1) in this case because the facts are so compellingly local in nature. The events which ultimately resulted in this federal indictment started out as a quarrel between a father (Kuban) and his 14-year-old daughter which deteriorated into a "family disturbance" (so characterized in the factual stipulation filed by the United States Attorney and the Presentence Report prepared by the Probation Department). The events took place in the residential areas of a small town in Travis County, Texas. When the witnesses and victims felt the need of police assistance, they called the sheriff of Travis County and the police department of the local town. They did not call the FBI, the DEA, the ATF or any other federal law enforcement agency. Ultimately, the local police officers found and arrested Kuban and took him into state custody on various state criminal charges, including the state charge of being a felon in possession of a gun. All of these events took place on July 1, 1994. Four months later, the United States Bureau of Alcohol, Tobacco and Firearms initiated a federal investigation regarding the weapons and Kuban was named as a defendant in a one-count federal indictment charging him with being a felon in possession of a firearm. At the time of the issuance of this federal indictment, Kuban was still in state custody and the United States Attorney issued an application for writ of habeas corpus ad prosequendum in order to bring Kuban from custody in the Travis County jail to arraignment on the federal charges.
The federal indictment charges that Kuban, "a person who had previously been convicted of a crime punishable by imprisonment for a term exceeding one year, did knowingly possess a firearm that had been shipped and transported in interstate commerce and affecting commerce, specifically a Browning 9 mm pistol and a Ruger Red Hawk .41 Magnum caliber revolver, in violation of Title 18, United States Code, § 922(g)(1)." The language of the indictment is a hodgepodge cut-and-paste mixing of the elements of criminal conduct under § 922(g)(1). The prohibited verb "possess" is out of Element B; the phrase "that had been shipped and transported in interstate commerce" is out of Element C, but the word "had" is substituted for the word "has", a not insignificant change of the tenses of the verb. The phrase "and affecting commerce" is out of Element B and as placed in the indictment language it is impossible to determine whether this phrase modifies "possess" or "shipped and transported." The indictment uses only the prohibited verb "possess" and does not mention "receives." The indictment does not contain any allegation about the conduct "substantially" affecting commerce.
In the factual basis filed by the United States Attorney the only grounds upon which the government offered to prove that the conduct involved had anything to do with interstate commerce was the tender of proof that the firearms involved "had previously traveled in interstate commerce as the Browning 9 mm semi-automatic pistol was manufactured in Belgium and the Ruger Red Hawk .41 Magnum revolver was manufactured in Connecticut." The fact that a firearm was manufactured originally in Belgium or Connecticut and is later found in possession of a felon in Texas cannot constitute proof beyond a reasonable doubt that such firearm was ever "shipped or transported in interstate commerce," for it is just as plausible that the firearm was purchased by its original owner where it was manufactured and brought or carried to Texas by such original owner as part of his personal property and not as part of any interstate shipment. The government's theory might hold water if the statute prohibited a felon from possessing
If the government is correct that all it takes to get a conviction under § 922(g)(1) is to show that a felon possessed a firearm which at some time in past history was shipped in interstate commerce, then all of the other elements of § 922(g)(1) are rendered surplusage and meaningless. Lopez reiterates the warning issued earlier by the Supreme Court in Jones & Laughlin Steel:
NLRB v. Jones & Laughlin Steel Corp., 301 U.S. 1, 37, 57 S.Ct. 615, 624, 81 L.Ed. 893 (1937). I would hold that the "affecting commerce" mantra of Scarborough has been changed by Lopez's requirement of a substantial affect on commerce and Scarborough's "minimal nexus" can no longer satisfy Lopez's requirement that the regulated activity must exert a substantial economic effect on interstate commerce.
For these reasons I would address the constitutional issue and hold that under the facts of this case there is no substantial effect on interstate commerce to satisfy the indictment under § 922(g)(1).
In relevant part, section 22.01, entitled "Assault", states: