Case: 09-20563 Document: 00511372888 Page: 1 Date Filed: 02/04/2011
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
February 4, 2011
No. 09-20563 Lyle W. Cayce
Clerk
UNITED STATES OF AMERICA
Plaintiff-Appellee
v.
FREDERICK LEE BOWMAN, JR.,
Defendant-Appellant
Appeal from the United States District Court
for the Southern District of Texas
USDC No. 4:96-cr-00143
Before DAVIS, WIENER, and BENAVIDES, Circuit Judges.
FORTUNATO P. BENAVIDES, Circuit Judge:
This appeal is from a district court’s denial of a motion to reduce a
sentence filed pursuant to 18 U.S.C. § 3582(c)(2). The issue is whether the
Sentencing Guidelines preclude the application of a four-level enhancement for
aggravated sexual abuse by force or threat pursuant to U.S.S.G. § 2A3.1(b)(1)
when Appellant was also sentenced for his use of a firearm during a crime of
violence pursuant to his 18 U.S.C. § 924(c) conviction. Finding no reversible
error, we AFFIRM.
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No. 09-20563
I. BACKGROUND
The facts of the instant offenses were set forth as follows in the plea
agreement signed by Appellant Frederick Lee Bowman, Jr. (“Appellant”). On
July 9, 1996, the female victim, R. C., and her boyfriend, A. S., were standing in
the driveway of her home in Missouri City, Texas.1 Appellant and his
codefendant, Dewayne Everett Martin (“Martin”), rode by the house together on
one bicycle and then returned to ask the victims whether they knew where to
find a certain person who lived in the neighborhood. When the victims replied
“no,” Martin pulled a pistol and ordered them into A. S.’s car. Appellant was in
the passenger side front seat and directed A. S. to drive to Louisiana. R. C. and
Martin sat in the back seat. While driving in Texas, Martin forced R. C. to
perform oral sex twice and raped and sodomized her. At different times during
the trip to Louisiana, both Martin and Appellant had physical possession of the
pistol. Near Lafayette, Louisiana, the car was stopped by a Louisiana Highway
Patrol Trooper. A. S. walked back to the police car and told the trooper that he
and his girlfriend were being kidnapped. While A. S. and the trooper were
talking, Appellant drove away in A. S.’s car. Other units of the Louisiana
Highway Patrol joined the pursuit. R. C. was rescued after A. S.’s car
sideswiped another car and then crashed into a fire hydrant. Appellant and
Martin had run away from the crashed vehicle but were soon apprehended by
the officers. Additionally, the officers located the gun, a loaded HiPoint, Model
G, 9mm semi-automatic pistol.
A grand jury in the Southern District of Texas issued an indictment
charging Appellant with: kidnapping (18 U.S.C. § 1201); carjacking (18 U.S. C.
§ 2119); use of a firearm during a crime of violence (18 U.S.C. § 924(c)); and
felon-in-possession (18 U.S.C. §§ 922(g) and 924(a)(2)). Appellant pleaded guilty
1
The record reflects the full names of the victims; however, for obvious reasons, we
have chosen to use only their initials.
2
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to kidnapping the victims in violation of 18 U.S.C. § 1201 and one count of using
a firearm in connection with a crime of violence in violation of 18 U.S.C.
§ 924(c).2 The probation officer initially calculated a base offense level of 24 for
the kidnapping offense. Presentence Report (“PSR”) ¶¶ 16-17; U.S.S.G.
§ 2A4.1(a) (1995). However, because Appellant’s codefendant forced one victim
to perform sexual acts during the course of the kidnapping, the higher base
offense level for criminal sexual abuse was used. PSR ¶¶ 3, 5-6, 17;
§ 2A4.1(b)(7)(A). Thus, the base offense level was 27. PSR ¶ 17; U.S.S.G.
§ 2A3.1(a). The base offense level was then increased two levels because the
victim sustained serious bodily injury, four levels because the victim was
abducted, and two levels because the defendant recklessly created a substantial
risk of death or serious bodily injury to another in the course of fleeing from a
law enforcement officer. PSR ¶¶ 19-20, 23, 25; §§ 2A3.1(b)(4), (b)(5); § 3C1.2.
At issue on appeal is another increase in the offense level based on the
aggravated sexual abuse committed during the kidnapping. § 2A3.1(b)(1) (citing
18 U.S.C. § 2241(a), (b)). More specifically, Appellant’s offense level was
increased an additional four levels “[p]ursuant to U.S.S.G. § 2A3.1(b)(1),
[because] the offense was committed by means set forth in 18 U.S.C. § 2241(a)
or (b) (including, but not limited to, the use or display of any dangerous
weapon).” PSR ¶ 18; § 2A3.1(b)(1). Those means include, in relevant part,
“using force against the victim [or by] threatening or placing the victim in fear
that any person will be subject to death, serious bodily injury, or kidnapping.”
§ 2A3.1, cmt. n.2; see § 2241(a)(1), (2). Finally, based on Appellant’s timely
acceptance of responsibility, he received a three-level reduction.
2
Pursuant to the agreement, the government dismissed the counts alleging carjacking
and felon-in-possession. Martin was charged in the same indictment and also pleaded guilty
to the same counts.
3
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With a total offense level of 36 and a criminal history category of IV,
Appellant’s guidelines range on count one was 262 to 327 months of
imprisonment. PSR ¶¶ 28, 34-37, 50; U.S.S.G. Ch. 5, Pt. A. The firearm offense
carried a mandatory 60-month consecutive sentence. PSR ¶¶ 15, 49; § 924(c)(1).
Appellant objected to the four-level increase under § 2A3.1(b)(1) because
he was subject to a mandatory consecutive five-year sentence for the firearm
offense. R. 1, 72; see § 2K2.4, cmt. n.2 (Nov. 1995) (providing that where the
defendant is subject to a mandatory consecutive sentence under § 924(c) (and
other specified statutes), any specific offense enhancement “for the possession,
use, or discharge an explosive or firearm . . . is not to be applied to the guideline
for the underlying offense”). The probation officer responded that § 2A3.1(b)(1)
sanctioned sexual abuse as set forth in § 2241, which punished sexual abuse that
used force, or threats to place the victim in fear that any person will be subject
to death, serious bodily injury, or kidnapping. PSR Addendum, 2. The probation
officer noted that the use or display of a dangerous weapon was not an element
of § 2241 and asserted that, although § 2A3.1(b)(1) referenced as an example the
use or display of a dangerous weapon in the commission of criminal sexual
abuse, the definition was not limited to the use of a weapon. Id.
The district court adopted the factual findings and guideline application
in the PSR, R. 2, 151, and sentenced Appellant to 262 months of imprisonment
(at the bottom of the guidelines range that included the challenged
enhancement) on count one and to 60 months of imprisonment on count three,
to run consecutively to each other for a total term of 322 months of
imprisonment. R. 2, 145, 151. Appellant did not file a direct appeal.
In 2008, Appellant filed a pro se motion for review of his sentence in light
of an amendment to the commentary to § 2K2.4. Id. at 156-61; see U.S.S.G. App.
C, vol. II, Amend. 599 (2000). He asserted that he should be resentenced
because, pursuant to Amendment 599, the guidelines for his underlying
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kidnapping offense could no longer be increased for his use of a firearm because
he was sentenced under § 2K2.4 for his § 924(c) offense. Id. at 159. The
government agreed that if the kidnapping offense had been increased for using
or possessing a firearm, Appellant would qualify for retroactive application of
Amendment 599. Id. at 169. It argued, however, that the four-level increase in
PSR ¶ 18 was not for such use or display of a firearm but was “based upon the
evidence that [Appellant] used force, threats and created a concern that the
victims[] were subject to death, serious bodily injury or kidnapping.” Id. Thus,
it asserted that Appellant’s sentence did not violate Amendment 599. Id.
The district court construed Appellant’s motion as a § 3582(c)(2) motion
and denied it. Id. at 173-75. The court noted that Amendment 599 applied
retroactively. Id. at 173. The court recognized that Amendment 599 provided
that, if a defendant was convicted of violating § 924(c)(1) along with an
underlying offense, the court would be prohibited from applying any specific
offense characteristic for possessing, brandishing, using or discharging a
firearm. Id. The court determined that it had not applied such a prohibited
increase in the instant case. Id. at 173-74. It explained that the four-level
enhancement was added under § 2A3.1(b)(1) because the aggravated sexual
abuse that occurred during the course of the kidnapping was committed by one
of the means set forth in § 2241(a) or (b). Id. at 174. The court noted that
“although the use or brandishment of a dangerous weapon is given as one
example of how such force or threats of force may be employed, neither the
statute nor the guideline was limited to the use of a weapon.” Id. Accordingly,
the court concluded that Amendment 599 did not apply to Appellant’s sentence
because the court did not apply a sentencing enhancement for possessing,
brandishing, using, or discharging a firearm. Id. at 174-75. The court also noted
that Appellant had raised the same double-counting argument at sentencing and
that it had rejected the argument for these same reasons. Id. at 174.
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Appellant filed a motion for reconsideration of the district court’s order
denying his § 3582(c)(2) motion. Id. at 176-77. Appellant argued that his
sentence violated Amendment 599 because the increase under § 2A3.1(b)(1) was
based on the use or display of a dangerous weapon. Id. at 177. The government
opposed the motion, id. at 187-89, and the district court denied it, id. at 191.
Appellant filed a timely notice of appeal. Id. at 208-09.
II. ANALYSIS
Appellant challenges the district court’s denial of his § 3582(c)(2) motion
to modify his sentence. Although a district court’s decision whether to reduce a
sentence pursuant to § 3582(c)(2) ordinarily is reviewed for an abuse of
discretion, the court’s interpretation and application of the Guidelines are
reviewed de novo. United States v. Doublin, 572 F.3d 235, 237 (5th Cir.), cert.
denied, 130 S. Ct. 517 (2009). Section 3582(c)(2) provides that:
in the case of a defendant who has been sentenced to a term of
imprisonment based on a sentencing range that has subsequently
been lowered by the Sentencing Commission . . . the court may
reduce the term of imprisonment, after considering the factors set
forth in section 3553(a) to the extent that they are applicable, if
such a reduction is consistent with applicable policy statements
issued by the Sentencing Commission.
§ 3582(c)(2). The applicable policy statement, § 1B1.10, provides that the court
has the authority to reduce a term of imprisonment pursuant to § 3582(c)(2) if
the defendant is serving a term of imprisonment, the applicable guidelines range
has been lowered as the result of an amendment to the Guidelines, and the
amendment is listed in § 1B1.10(c). § 1B1.10(a)(1). If the amendment “does not
have the effect of lowering the defendant’s applicable guideline range,” a
sentence reduction is not consistent with § 1B.10 and is not authorized by
§ 3582(c)(2). § 1B1.10(a)(2)(B). It is undisputed that Appellant is serving a term
of imprisonment and that Amendment 599 is listed in § 1B1.10(c). Thus, the
6
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only question is whether the amendment lowers the applicable guideline range.
We conclude that it does not actually lower Appellant’s guideline range.
Appellant was sentenced in1996. Appellant argues that Amendment 599,
which became effective in 2000, clarified that when a defendant is sentenced
under § 924(c), a sentence for the underlying offense conduct should never be
enhanced based on conduct that involved the use of a firearm. Amendment 599
amended application note 2 of the commentary to § 2K2.4. See United States v.
Dixon, 273 F.3d 636, 643 (5th Cir. 2001). At the time of Appellant’s original
sentencing, application note 2 provided that when a defendant is sentenced for
a § 924(c) offense, “any specific offense characteristic for the possession, use, or
discharge of an explosive or firearm . . . is not to be applied in respect to the
guideline for the underlying offense.” § 2K2.4 cmt. n.2. After Amendment 599,
note 4 (formerly note 2) provided in relevant part that, “[i]f a sentence under this
guideline [§ 2K2.4] is imposed in conjunction with a sentence for an underlying
offense, do not apply any specific offense characteristic for possession,
brandishing, use or discharge of an explosive or firearm when determining the
sentence for the underlying offense.” § 2K2.4 cmt. n.4. Thus, an increase in the
offense level for possessing or using firearms was prohibited at the time
Appellant was sentenced, and Amendment 599 did not affect that rule. See
United States v. Issac, No. 10-40144, 2010 WL 3736228, at *1 (5th Cir. Sept. 16,
2010) (unpublished) (“Although Amendment 599 altered and clarified the text
of the relevant Application Note, it did not change the general rule against
applying the firearms enhancements to the underlying offense where the
defendant also was convicted under § 924(c).”). In other words, at the time of
Appellant’s sentencing, it was already prohibited to give a weapons
enhancement on a sentence for an underlying violent crime when there was also
a § 924(c) sentence. Indeed, during the original sentencing proceedings,
Appellant’s defense counsel specifically objected to the PSR by asserting that the
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“defendant should not be increased an additional four levels because he has
plead[ed] guilty to Count Three of the indictment which makes an additional 5
years mandatory for the use of a handgun in commission [of] the crime.” R. 1,
72. Accordingly, Amendment 599 did not actually lower Appellant’s guideline
range, and thus a reduction in Appellant’s sentence would neither be consistent
with policy statement § 1B1.10(a)(2) nor authorized under § 3582(c)(2). Issac,
No. 10-40144, 2010 WL 3736228, at *1.3
Moreover, the district court determined that it had not given Appellant a
weapon enhancement; instead, the district court increased the sentence based
on the aggravated sexual abuse that occurred during the kidnapping. As
previously stated, pursuant to § 2A3.1(b)(1), because the kidnapping offense was
committed by means set forth in the aggravated sexual abuse statute, § 2241,
Appellant’s sentence was increased four levels. Those means include, in relevant
part, “using force against the victim [or by] threatening or placing the victim in
fear that any person will be subject to death, serious bodily injury, or
kidnapping.” § 2A3.1, cmt. n.2. Appellant contends that the display of the gun
was the force or threat of force used to commit the aggravated sexual abuse, and
therefore the four-level increase should be prohibited as double counting. See
United States v. Franks, 230 F.3d 811, 813-14 (5th Cir. 2000) (holding that an
enhancement for an express threat of death may not be applied to the sentence
for robbery when the threat is related to the use of the firearm and the
3
We recognize that Amendment 599 did lower the guideline range in certain
circumstances. For example, if a defendant’s underlying offense had been enhanced based on
the increase for felon-in-possession in addition to the sentence under § 924(c) for use of a
firearm during a violent crime, then that would be double counting. See United States v.
Goines, 357 F.3d 469, 473 (4th Cir. 2004) (explaining that the commentary to Amendment 599
demonstrates that “the Sentencing Commission intended to repudiate [United States v.
Flennory, 357 F.3d 1264 (11th Cir. 1998)] and provide that a sentence for a § 922(g) [felon-in-
possession] offense may not be enhanced based on conduct that also resulted in a § 924(c)
conviction”); United States v. Brown, 332 F.3d 1341, 1345 (11th Cir. 2003) (noting that
Amendment 599 abrogated Flennory).
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defendant has a § 924(c) sentence for the same firearm); United States v.
Katalinic, 510 F.3d 744, 748 (7th Cir. 2007) (same). We reject this contention
because we find that there was force independent of the gun used to commit the
aggravated sexual abuse.
In reaching that conclusion, we rely on the actions of Appellant’s
codefendant, Martin.4 This is permissible under U.S.S.G. § 1B1.3(a)(1)(b), which
defines relevant conduct for the Guidelines as, “in the case of a jointly
undertaken criminal activity (a criminal plan, scheme, endeavor, or enterprise
undertaken by the defendant in concert with others, whether or not charged as
a conspiracy), all reasonably foreseeable acts and omissions of others in
furtherance of the jointly undertaken criminal activity.” Appellant and Martin
undertook a criminal activity jointly, and Martin’s sexual assault of R. C. was
reasonably foreseeable.
With respect to aggravated sexual abuse, a “defendant uses force within
the meaning of § 2241 when he employs restraint sufficient to prevent the victim
from escaping the sexual conduct.” United States v. Lucas, 157 F.3d 998, 1002
(5th Cir. 1998). Further, this Court has explained that “pressing the victim
against a table and thereby blocking her means of egress suffices to constitute
force within the meaning of § 2241.” Id. at 1002 n.9.
In the instant case, the PSR provides more details regarding the force used
to commit the aggravated sexual abuse inflicted upon the victim in the back seat
of the vehicle. Martin forced the victim to perform oral sex, and after she
vomited on him, he shoved her against the door. Martin then sodomized and
raped the victim. The PSR also provides that the victim was taken from the
crime scene to the hospital and “treated for neck and back injuries.” By shoving
the victim against the car door and forcing her to engage in sexual conduct,
4
We note that Appellant does not argue that Martin’s conduct was not reasonably
foreseeable.
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Martin clearly employed restraint sufficient to prevent the victim from escaping
from the back seat. Without relying on the use of the gun, we conclude that the
force used to commit the aggravated sexual abuse suffices to constitute force
within the meaning of § 2241. Under those circumstances, enhancing
Appellant’s sentence for aggravated sexual abuse by force does not double count
the use of the gun.5
III. CONCLUSION
For the aforementioned reasons, the district court’s judgment is
AFFIRMED.
5
We also note that Sentencing Commission explained that the rule against double
counting the use of a weapon “is intended to avoid the duplicative punishment that results
when sentences are increased under both the statutes and the guidelines for substantially the
same harm.” Amend. 599, Reason for Amendment, U.S.S.G. App. C at 72 (emphasis added).
We do not believe the harm inflicted from the kidnapping was substantially the same as the
harm inflicted as a result of the aggravated sexual abuse.
10