UNITED STATES COURT OF APPEALS
For the Fifth Circuit
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No. 00-41360
___________________________
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
VERSUS
STEVE JOHN CALBAT,
Defendant-Appellant.
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Appeal from the United States District Court
For the Southern District of Texas
Corpus Christi Division
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September 18, 2001
Before DAVIS and JONES, Circuit Judges, and BARBOUR, District
Judge*,
W. EUGENE DAVIS, Circuit Judge:
Steve John Calbat appeals various aspects of his sentence
imposed after he pled guilty to intoxication assault, a violation
of 18 U.S.C. §§ 7 and 13, the Assimilative Crimes Act, involving
§49.07 of the Texas Penal Code. Based on our conclusion that the
district court abused its discretion in setting the timing of
restitution payments, we vacate this aspect and remand for further
consideration of restitution. In all other respects, Calbat’s
sentence is affirmed.
*
District Judge of the Southern District of Mississippi,
sitting by designation.
I.
On July 1, 2000, Steve John Calbat drove his vehicle while he
was intoxicated and struck Robert Hanson, a ranger at the Padre
Island National Seashore Park. Hanson had just moved his car near
the entrance to the park when he saw the lights of another car
approaching. Calbat’s car came over the curb and hit Hanson’s car.
Hanson had put his left leg back inside of his car and was facing
Calbat’s car when he was struck. Hanson suffered extensive
injuries in the accident; two of his ribs were broken, and his
right leg had to be amputated between the knee and ankle. Calbat
asserted that the accident occurred when he had reached and looked
down and lost control of the vehicle.
Calbat was indicted on one count of intoxication assault, a
violation of § 49.07 of the Texas Penal Code and 18 U.S.C. §§ 7 and
13, the Assimilative Crimes Act (the “ACA”). Calbat pleaded guilty
to the charge contained in the indictment in accordance with a
written plea agreement. In this agreement, the Government agreed
to recommend that Calbat receive a sentencing reduction for
acceptance of responsibility and the minimum applicable Guidelines
sentence.
The district court agreed with the probation office’s
determination that the guideline that was most analogous to the
Texas offense of intoxication assault was U.S.S.G. § 2A2.2(a), the
aggravated-assault guideline. Under the provisions of that
guideline, the district court then upwardly adjusted the offense
level on the grounds that Calbat had caused serious bodily injury
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and had used more than minimal planning in attempting to conceal
the offense. The latter enhancement was based on a finding that
Calbat had tried to conceal the crime by fleeing. The district
court granted Calbat a downward adjustment for acceptance of
responsibility. These adjustments resulted in a sentencing range
of 33-41 months. The district court sentenced Calbat to 36 months
in prison and a 3-year term of supervised release. The district
court also ordered Calbat to make restitution in the amount of
$250,000 over the course of his prison term and supervised release.
Calbat filed a timely notice of appeal.
II.
Calbat argues that the district court erred in its application
of the guidelines in determining his sentence. Calbat’s main
argument is that the district court erred in selecting the
aggravated assault guideline, § 2A2.2, as the most analogous
guideline applicable to the Texas offense of intoxication assault.
He contends that the involuntary manslaughter guideline, at §
2A1.4, is more analogous to his conduct because it, like the Texas
Penal Code provision for intoxication assault, § 49.07, encompasses
recklessly driving a vehicle while intoxicated. We disagree.
The ACA’s basic purpose is one of borrowing state law to fill
gaps in the federal criminal law that applies on federal enclaves.
Lewis v. United States, 523 U.S. 155, 160, 118 S. Ct. 1135, 1139
(1998). The ACA provides that the defendant shall be guilty of a
“like offense” and subject to a “like punishment” as that provided
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by state law. 18 U.S.C. § 13(a). Consequently, “state law fixes
the range of punishment, but the Sentencing Guidelines determine
the actual sentence within that range.” United States v.
Marmolejo, 915 F.2d 981, 984 (5th Cir. 1990). If there is no
guideline for a particular offense, including an ACA offense, the
court is to use “the most analogous offense guideline.” § 2X5.1
and comment. This court reviews a district court’s determination
of the most analogous guideline under the de novo standard. United
States v. Hornsby, 88 F.3d 336, 338 (5th Cir. 1996).1
The background comment to § 2X5.1 suggests that the most
analogous guideline is the one that covers the “type of criminal
behavior” of which the defendant was convicted. “Whether there
is a sufficiently analogous guideline to a particular crime is
generally a task of comparing the elements of the defendant’s
crime of conviction to the elements of federal offenses already
1
We acknowledge the logic of the approach adopted by the 8th
Circuit in United States v. Osborne, 164 F.3d 434 (8th Cir. 1999)
and United States v. Allard, 164 F.3d 1146 (8th Cir. 1999). The
Eighth Circuit reviews the district court’s decision as to whether
there is a sufficiently analogous guideline under U.S.S.G. § 2X5.1
de novo, but the decision as to which of two or more sufficiently
analogous guidelines is the most analogous with due deference.
Both Osborne and Allard involved convictions for vehicular battery
resulting from drunk driving. The same district court and appeals
panel decided both cases. The cases held that both the aggravated
assault guideline and the involuntary manslaughter guideline were
sufficiently analogous to the assimilated crime of vehicular
battery. In Osborne, the defendant’s sentence under the aggravated
assault guideline was affirmed. In Allard, the defendant’s
sentence under the involuntary manslaughter guideline was affirmed,
although the district court’s decision to add the enhancements from
the aggravated assault guideline was reversed. However, we are
bound by prior precedent in this circuit requiring de novo review
of this inquiry.
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covered by a specific guideline.” United States v. Nichols, 169
F.3d 1255, 1270 (10th Cir.), cert. denied, 528 U.S. 934, 120
S.Ct. 336 (1999). Calbat pled guilty to intoxication assault,
which is a third degree felony under Texas Penal Code § 49.07.
The elements of intoxication assault are that a person, by
accident or mistake, while intoxicated, operates a motor vehicle
and by reason of that intoxication causes serious bodily injury
to another. Although the federal assault statute at 18 U.S.C. §
113 does not specifically address driving while intoxicated, it
does contain a provision which closely matches the crime of
intoxication assault. Section 18 U.S.C. 113(a)(6) punishes
“assault resulting in serious bodily injury.”
In contrast to the other forms of aggravated assault under
18 U.S.C. §113 (assault with intent to commit murder, §113(a)(1),
with intent to commit any felony except murder, §113(a)(2), with
a dangerous weapon, with intent to do bodily harm, §113(a)(3)),
aggravated assault involving serious bodily injury is a general
intent crime. United States v. Davis, 237 F.3d 942, 944 (8th
Cir. 2001), United States v. Benally, 146 F.3d 1232, 1237-38
(10th Cir. 1998). A specific intent to do harm is not an
element of the offense. Id. Accordingly, the voluntary
consumption of alcohol followed by the operation of a motor
vehicle while in a state of voluntary intoxication can satisfy
the mens rea element of a violation under § 113(a)(6). United
States v. Loera, 923 F.2d 725, 727 (9th Cir. 1991); United States
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v. Osborne, 164 F.3d 434, 440 (8th Cir. 1999). This is
sufficiently analogous to the Texas crime of intoxication assault
for which no culpable mental state is required. Stidman v.
Texas, 981 S.W.2d 227, 230 (Tex. Crim. App. 1998). The guideline
provision for 18 U.S.C. § 113 is § 2A2.2, the provision for
aggravated assault applied by the district court.
We reject Calbat’s argument contending that the most
analogous guideline to the offense of intoxication assault is
that for involuntary manslaughter at § 2A1.4. The
involuntary-manslaughter guideline does address the specific
behavior of driving while intoxicated. Application note 1 to §
2A1.4 provides that a homicide resulting from driving while
intoxicated should be considered reckless conduct and will thus
receive a base offense level of 14. § 2A1.4 (comment) n.1.
However, the involuntary manslaughter guideline contains an
element not present in this case, the death of the victim. We
acknowledge the anomaly that the use of the aggravated assault
guideline results in a higher sentence than the use of the
involuntary manslaughter guideline. However, it is not our role
to second guess the sentences established in the guidelines.
Accordingly, we find that the most analogous guideline
applicable to the crime of intoxication assault under the Texas
Penal Code is § 2A2.2, aggravated assault.
III.
Calbat next argues that the district court engaged in
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impermissible double-counting by enhancing his sentence based on
the severity of Hanson’s injuries because “the injury was already
the reason for using the aggravated assault guideline instead of
the driving while intoxicated guideline.” This circuit has
recognized that the guidelines do not contain a general
prohibition against double-counting. United States v. Box, 50
F.3d 345, 359 (5th Cir. 1995). Rather, double-counting is
prohibited only if it is specifically forbidden by the particular
guideline at issue. Id. The prohibition must be in express
language. Id. There is no such prohibition against the
enhancement of which Calbat complains. Thus, even if it is
assumed for the sake of argument that this enhancement
constitutes double-counting, there is still no error.
IV.
Calbat’s final sentencing-related argument is that the
district court erred in enhancing his sentence by two levels
under § 2A2.2(b)(1), based on a finding that it involved more
than minimal planning. Section 2A2.2(b)(1) provides for a
two-level increase of the offense level if the offense involves
"more than minimal planning." "More than minimal planning" is
defined in the commentary to § 1B1.1. See § 2A2.2, comment.
(n.2). According to the commentary to § 1B1.1, this enhancement
should be applied if the defendant undertook “more planning than
is typical for commission in simple form” or if “significant
affirmative steps were taken to conceal the offense.” § 1B1.1,
comment. (n.1(f)). Whether a defendant engaged in more than
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minimal planning is a fact question that is reviewed for clear
error. United States v. Lage, 183 F.3d 374, 384 (5th Cir. 1999),
cert. denied, 528 U.S. 1163 (2000). A factual finding is not
clearly erroneous if it is plausible in light of the record read
as a whole. United States v. Watson, 966 F.2d 161, 162 (5th Cir.
1992).
The district court gave Calbat the enhancement for more than
minimal planning “not because of the planning prior to the
offense, but the planning to cover up the offense that occurred
after the striking of the vehicle and Mr. Hansen.” The district
court’s determination that Calbat attempted to flee the scene of
the crime was supported by adequate evidence and based on a
credibility determination between the witnesses and is thus
entitled to deference. See United States v. Huskey, 137 F.3d
283, 291 (5th Cir. 1998). Accordingly, the district court’s
decision to enhance Calbat’s sentence on the basis that it
involved more than minimal planning is not clearly erroneous.
V.
Calbat next raises three issues related to the district
court’s order of restitution. The district court ordered Calbat
to pay a total of $250,000 in restitution to Hanson and the
United States. The judgment ordered restitution to begin 60 days
after the date of his confinement and that no more than 20
percent of the funds in Calbat’s inmate trust fund be withheld
for this purpose. Calbat is required to pay the balance due upon
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his release from custody in equal monthly installments during his
three year term of supervised release. Additionally, Calbat was
ordered to pay the full amount of his 401k annuity towards
restitution.
Calbat contends that the district court erred in ordering
him to pay the full $2,800 of his § 401K retirement plan towards
restitution because this order was in violation of ERISA’s anti-
alienation clause, citing United States v. Smith, 47 F.3d 681
(4th Cir. 1995). Although Calbat has not waived this issue, as
contended by the Government, Calbat also made no objections to
the surrender of his § 401K account. The plain-error standard of
review thus applies. Under this standard, this court may address
Calbat’s argument only if (1) there is an error, (2) the error is
plain, and (3) the error affects substantial rights. United
States v. Olano, 507 U.S. 725, 732 (1993). If these factors are
established, the decision to correct the forfeited error is
within the sound discretion of the court, and the court will not
exercise that discretion unless the error seriously affects the
fairness, integrity, or public reputation of judicial
proceedings. Id. at 735-36.
This issue is controlled by United States v. Gaudet, 966
F.2d 959, 954 (5th Cir. 1992). Like Calbat, Gaudet argued that
the district court erred in ordering him to relinquish his
pension to satisfy a restitution obligation because this order
violated ERISA’s anti-alienation provision. 966 F.2d at 963.
Gaudet had not objected to this order in the district court. Id.
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The court held that, although Gaudet had a “substantial legal
argument,” this error was not obvious and thus did not meet the
plain-error standard. Id. at 963-64. Because Calbat is
presenting the same argument under the same standard of review,
he is not entitled to relief on this issue.
Calbat next challenges the district court’s decision not to
credit him for insurance proceeds received by Hanson. Under the
Victim and Witness Protection Act, restitution may be ordered to
victims of an offense. United States v. Hughey, 147 F.3d 423,
437 (5th Cir. 1998); 18 U.S.C. § 3663. An order of restitution
must be limited to the loss stemming from the specific conduct
supporting the conviction. Hughey, 147 F.3d at 437. Section
3664(j)(2) provides that “[a]ny amount paid to a victim under an
order of restitution shall be reduced by any amount later
recovered as compensatory damages for the same loss by the
victim” in any state or federal civil proceeding.
The availability of such an offset depends upon the payment
made in the settlement, whether the claims settled involved the
same acts of the defendant as those underlying his criminal
conviction, and whether the payment satisfies the penal purposes
the court sought to impose. United States v. All Star Indus.,
962 F.2d 465, 477 (5th Cir. 1992). It is the defendant’s burden
to establish an offset to a restitution order. United States v.
Sheinbaum, 136 F.3d 443, 449 (5th Cir. 1998).
Calbat has not met this burden. The record contains no
documentation to detail the terms of this settlement. The only
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mention of these insurance proceeds is Hanson’s testimony at
sentencing that Calbat’s insurance company offered him $25,000,
which was Calbat’s policy limit. Further, even if Calbat had met
this burden, the record shows that Hanson’s medical bills
exceeded the amount of restitution imposed. Calbat has not made
a showing that the restitution order was illegal.
Calbat next argues that the district court erred in ordering
him to pay the full amount of the $250,000 restitution over the
course of his three-year term of imprisonment and his three-year
term of supervised release. The legality of the district court’s
order of restitution is reviewed de novo. Hughey at 436. Once
this court determines that a particular restitution award is
permitted by the pertinent law, the propriety of that award is
reviewed for an abuse of discretion. Id. Under this standard,
this court will reverse a restitution order only if the defendant
shows that it is probable that the court failed to consider one
of the mandatory factors and the failure to consider the factor
influenced the court. United States v. Schinnell, 80 F.3d 1064,
1070 (5th Cir. 1996). Those factors are: the financial resources
and other assets of the defendant; projected earnings and other
income of the defendant; and any financial obligations of the
defendant, including obligations to dependents. 18 U.S.C. §
3664(f)(2). In United States v. Myers, 198 F.3d 160, 169 (5th
Cir. 1999), we held that the MVRA (Mandatory Victims Restitution
Act) “requires that the district court consider the ‘financial
resources of the defendant’ in determining the schedule under
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which the restitution is to be paid. 18 U.S.C. § 3664(f)(2)(A).”
According to the PSR, at the time of the offense, Calbat was
employed as a purchasing manager and earned approximately $39,000
a year. His only assets were a 1995 Pontiac Grand Prix valued at
$4800 and his § 401K account, which was valued at $2800.
Calbat’s debts amount to approximately $1,200. Under the payment
schedule imposed by the district court, the average yearly
payment required of him, over $41,000, is greater than his yearly
income at the time of the offense. The district court noted at
sentencing that “I frankly do not anticipate that he would ever
be able to pay the full $250,000.” Absent a large windfall,
Calbat will not be able to pay the full amount of restitution
within the time ordered by the district court. This unrealistic
payment schedule is particularly troubling in light of the fact
that payment of restitution is one of the conditions of Calbat’s
supervised release. Calbat could thus be sent back to prison for
failure to make restitution payments in a timely manner. Under
these circumstances, we conclude that the district court abused
its discretion in setting the payment schedule for the
restitution order.
VI.
For the foregoing reasons, we VACATE the sentence and REMAND
for resentencing consistent with this opinion.
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