UNITED STATES COURT OF APPEALS
For the Fifth Circuit
No. 01-40599
UNITED STATES OF AMERICA,
Plaintiff-Appellant,
VERSUS
JEREMY JEROME ARCLESE,
Defendant-Appellee.
Appeal from the United States District Court
For the Eastern District of Texas
(1:00-CR-96-4)
June 13, 2002
Before DUHÉ, DeMOSS, and CLEMENT, Circuit Judges.
DeMOSS, Circuit Judge:*
The defendant, Jeremy Arclese, along with Cliffon Weber, Andre
McClelland, and Jonathan Williams, was indicted on June 7, 2000,
for carjacking with intent to cause death or serious bodily harm.
On November, 22, 2000, Arclese pleaded guilty to the carjacking,
but specifically disavowed any involvement in his co-defendant
*
Pursuant to 5TH CIR. R. 47.5, the Court has determined that this
opinion should not be published and is not precedent except under
the limited circumstances set forth in 5TH CIR. R. 47.5.4.
Weber’s use of a firearm to shoot the carjacking victim. He did
not dispute the fact that he fled with Weber and the other co-
defendants in the victim’s vehicle after the shooting.
The district court accepted Arclese’s guilty plea and ordered
a pre-sentencing report (PSR) be prepared. The PSR determined
that, pursuant to § 2B3.1 of the United States Sentencing
Guidelines, a base-offense level of 20 applied. See U.S.S.G.
§ 2B3.1 (governing robbery offenses). The PSR also recommended
several specific offense characteristics under § 2B3.1 be applied
to enhance Arclese’s sentence. Specifically, it recommended a 13-
level enhancement because a firearm was discharged (7 points), the
victim sustained serious bodily injury (4 points), and a carjacking
occurred (2 points). See U.S.S.G. § 2B3.1(b)(2), (b)(3)(B), &
(b)(5). Arclese objected to these proposed enhancements, asserting
that he did not join in the shooting and arguing that his very
limited involvement in the crime began after the shooting when he
fled the scene as a passenger in the victim’s car. The district
court sustained Arclese’s objections and declined to enhance his
sentence. The court concluded that the violent acts of Arclese’s
co-conspirator Weber were not sufficiently foreseeable to Arclese
to justify enhancing Arclese’s sentence. See U.S.S.G.
§ 1B1.3(a)(1)(B). Accordingly, Arclese was sentenced, with an
2
offense level of 17,2 to 37 months’ imprisonment and 3 years’
supervised release. The government appeals here.
The government asserts jurisdiction under 18 U.S.C.
§ 3742(b)(2), which permits the government to appeal a final
sentence if it “was imposed as a result of an incorrect application
of the sentencing guidelines.”3 In accordance with § 3742's
requirements, the government secured the Solicitor General’s
approval to prosecute this appeal. Section 3742(e) defines the
parameters of our review here:
The court of appeals shall give due regard to the
opportunity of the district court to judge the
credibility of the witnesses, and shall accept the
findings of fact of the district court unless they
are clearly erroneous and shall give due deference
to the district court’s application of the
guidelines to the facts.
18 U.S.C. § 3742(e).
Having carefully reviewed the entire record in this case, and
having fully considered the parties’ respective briefing, we
conclude that the government has failed to demonstrate that the
district court’s findings were clearly erroneous. Accordingly,
giving “due deference to the district court’s application of the
2
The offense level for robbery in 20, and Arclese received a
3-point downward departure for acceptance of responsibility.
3
The government’s brief asserts jurisdiction under 18 U.S.C.
§3742(b)(1), which permits the government to appeal a final
sentence imposed in “violation of law.” However, the government
clarified during oral argument that it was actually relying on
§3742(b)(2)’s provisions for appealing incorrect sentencing
guideline applications.
3
guidelines to the facts,” see id., we AFFIRM the defendant’s
sentence.
4
Edith Brown Clement, Circuit Judge, dissenting:
Jeremy Arclese pled guilty to participating in a carjacking
conspiracy during which another conspirator, Cliffon Jamail Weber,
shot and injured the car’s owner, John Ruffin. The District Court
rejected the recommendations of the pre-sentencing report that
Arclese’s sentence be enhanced to reflect two specific offense
characteristics: that a firearm was discharged and that the victim
sustained serious bodily injury. The District Court held that since
the shooting was not foreseeable to Arclese, he should not be held
accountable for those specific offense characteristics.
It was clear error for the District Court to conclude that the
shooting was unforeseeable because Arclese pled guilty to
conspiring to commit a crime whose very definition requires an
“intent to cause death or serious bodily harm.” 18 U.S.C. § 2119
(2002). I would reverse.
I.
Under the Sentencing Guidelines, the punishment for a
conspiracy is determined by the base level for the substantive
offense (here, robbery), “plus any adjustments from such guideline
for any intended offense conduct that can be established with
reasonable certainty.” See U.S. SENTENCING GUIDELINES MANUAL § 2X1.1
(2001). However, the “reasonable certainty” standard applies only
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to conduct that was allegedly intended to occur, not conduct that
actually did occur. See United States v. Cabrera, 288 F.3d 163, 169
(5th Cir. 2002); see also U.S. SENTENCING GUIDELINES MANUAL § 2X1.1,
application note 2 (noting the distinction between offense
characteristics “specifically intended” and those that “actually
occurred”). The sentencing enhancements at issue are occurrences,
not intentions, so the first question for the sentencing court is
whether those occurrences happened, and the proper standard is
whether they happened by a preponderance of the evidence. Cabrera,
277 F.3d at 169.
There can be no question that a firearm was discharged and
that bodily injury occurred. Weber was convicted by a jury of the
shooting, and Ruffin, the victim, testified at Arclese’s sentencing
hearing. Arclese does not contest these facts.
II.
The inquiry does not end there, however, because a defendant
is only accountable for facts which constitute “relevant conduct”
under §1B1.3 of the Sentencing Guidelines. Subsection (a)(1)(B)
provides that “in the case of a jointly undertaken criminal
activity” sentence enhancements shall be determined on the basis of
“all reasonably foreseeable acts and omissions of others in
furtherance of the jointly undertaken criminal activity.”
Because the shooting was both in furtherance of conspiracy and
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reasonably foreseeable, Arclese should have been held accountable.
The district court found that the shooting was not foreseeable, and
we are obliged to defer to the district court’s factfinding unless
“clearly erroneous.” 18 U.S.C. § 3742(e) (2002). This is a case of
clear error.
Arclese was indicted and pled guilty to one count of
conspiracy to violate 18 U.S.C. § 2119(2), the subsection of the
federal carjacking statute that applies when “serious bodily
injury... results.” Carjacking, a form of robbery, is defined as
taking a motor vehicle by either “force and violence” or
“intimidation” with “the intent to cause death or serious bodily
injury.” 18 U.S.C. § 2119. The District Court even granted a 2-
point enhancement to Arclese’s sentencing level because the robbery
involved a carjacking, also defined in the guidelines to require
“force and violence” or “intimidation.” See U.S. SENTENCING GUIDELINES
MANUAL § 2B3.1, application note 1.
It has long been established that “a guilty plea is an
admission of all the elements of a formal criminal charge.” See
McCarthy v. United States, 394 U.S. 459, 466 (1969); see also
United States v. Trevino, 131 F.3d 1140, 1141 (5th Cir. 1997) (“By
entering his plea of guilty, [defendant] admitted all the elements
of the charge contained in this conspiracy count of the
indictment.”). Arclese does not assert that his plea was anything
but knowing and voluntary, so he is deemed to have admitted the
elements of the conspiracy offense.
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One element of a conspiracy charge is that the defendant have
“at least the degree of criminal intent necessary for the
substantive offense itself.” See United States v. Ingram, 360 U.S.
672, 678 (1959) (emphasis in original) (citation omitted); see also
United States v. Peterson, 244 F.3d 385, 389 (5th Cir. 2001);
United States v. Dadi, 235 F.3d 945, 950 (5th Cir. 2000). Arclese
is deemed to have admitted to having had an intent to cause bodily
harm.
Logically speaking, it is impossible that Arclese both
intended to cause bodily harm yet could not have foreseen that it
would actually occur. And practically speaking, the very nature of
a criminal robbery conspiracy is such that one’s co-conspirator
might engage in unplanned violence. The Sentencing Guidelines
reflect this common sense proposition in one of the examples.
For example, two defendants agree to commit a robbery
and, during the course of that robbery, the first
defendant assaults and injures a victim. The second
defendant is accountable for the assault and injury to
the victim (even if the second defendant had not agreed
to the assault and had cautioned the first defendant to
be careful not to hurt anyone) because the assaultive
conduct was in furtherance of the jointly undertaken
criminal activity (the robbery) and was reasonably
foreseeable in connection with that criminal activity
(given the nature of the offense).
§ 1B1.3, application note 2 (emphasis added).
Courts have uniformly agreed that violence is inherent in
robberies and found such occurrences to be foreseeable and
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accountable to a defendant. See United States v. Hickman, 151 F.3d
446, 463 (5th Cir.1998) (murder during a restaurant robbery), reh’g
granted and opinion vacated, 165 F.3d 1020 (1999), aff’d by an
equally divided court, 179 F.3d 230 (1999) (per curiam); United
States v. Parker, 241 F.3d 1114, 1118 (9th Cir. 2001) (physical
restraint in a bank robbery); United States v. Cover, 199 F.3d
1271, 1274-75 (11th Cir. 2000) (carjacking as part of an unplanned
escape); United States v. Lambert, 995 F.2d 1006, 1009 (10th Cir.
1993) (death threat made to bank teller); United States v. Dixon,
982 F.2d 116, 120 (3rd Cir. 1992) (feigned gun possession in a bank
robbery); United States v. Fitzwater, 896 F.2d 1009, 1012 (6th Cir.
1990) (bank teller’s injury from being forced to lie on the floor
during a robbery).
In fact, courts have held defendants accountable for harms
caused by persons not involved in the crime, as long as the
defendant or another conspirator “put into motion” events risking
harm. See United States v. Molina, 106 F.3d 1118, 1122-25 (2d Cir.
1997); United States v. Williams, 51 F.3d 1004, 1011-12 (11th Cir.
1995), overruled on unrelated grounds by Jones v. United States,
526 U.S. 227 (1999). In Molina, defendant was held accountable for
the bodily injury that resulted when, in the course of an armored
car robbery, a guard accidently shot an innocent bystander. 106
F.3d at 1122-25. In Williams, defendant’s attempted carjack ran
afoul when the passenger-side occupant pulled a weapon concealed
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beneath his seat and accidently shot the driver, and the Eleventh
Circuit upheld a sentencing enhancement under the federal
carjacking statute because death resulted. 51 F.3d at 1011-12.
These cases establish that defendants are to be held
accountable for certain risks inherent in the particular criminal
enterprise they undertake because such risks are always
foreseeable. The risk that bodily injury will occur inheres in the
crime of carjacking because the crime involves, by definition,
“intent to cause death or serious bodily harm.” 18 U.S.C. § 2119.
Because the District Court committed clear error in failing to
hold Arclese accountable for the facts which resulted from the
risks inherent in the crime to which he pled guilty, I respectfully
dissent.
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