United States Court of Appeals
Fifth Circuit
F I L E D
UNITED STATES COURT OF APPEALS April 16, 2004
FOR THE FIFTH CIRCUIT
Charles R. Fulbruge III
_______________________ Clerk
NO. 03-30417
_______________________
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
ISREAL C. EDWARDS,
Defendant-Appellant.
_________________________________________________________________
Appeal from the United States District Court
for the Western District of Louisiana
02-50069-01
________________________________________________________________
Before JOLLY, JONES and PRADO, Circuit Judges.
PER CURIAM:*
I. BACKGROUND
On September 1, 2002, Isreal Edwards was attending a rap
concert in Shreveport, Louisiana, along with fellow gang members.
During the course of the concert, members of Edwards’s gang and a
rival gang exchanged words. The dispute escalated and weapons were
drawn. In the ensuing gunfight, several bystanders and gang
members were injured, some seriously. Tragically, a 16-year-old
female bystander, Tatum Strogen, was shot and killed. Testimony at
*
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opinion should not be published and is not precedent except under the limited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.
trial indicated that Edwards was carrying a 9-mm pistol he had
obtained before the concert. On appeal, it is undisputed that
while Edwards was involved in the gun battle, the bullet that
killed Strogen did not come from his gun.
Following Edwards’s conviction for being a felon in
possession of a firearm in violation of 18 U.S.C. § 922(g)(1), the
government filed a motion for an upward departure based on
Strogen’s death. The district court granted the government’s
motion and sentenced Edwards to 120 months imprisonment, the
maximum allowable statutory sentence, well above the original
guidelines range of 70 to 87 months. Edwards now appeals, arguing
that the district court’s findings were inadequate and that the
government did not show a sufficient nexus between his actions and
Strogen’s death to support an upward departure.
After carefully reviewing the record, we affirm the
district court’s upward departure.
II. DISCUSSION
A. Standard of Review
The Prosecutorial Remedies and Other Tools to end the
Exploitation of Children Today Act of 2003 (“PROTECT Act”) was
signed into law and became effective on April 30, 2003. The
PROTECT Act made a variety of changes to existing law. Some of
these changes relate to the responsibilities of a district court at
the initial sentencing hearing, the standard of review to be
2
applied by the courts of appeal, and the scope of the district
court’s discretion on remand. See 18 U.S.C. § 3553 (responsi-
bilities of a district court at sentencing); 18 U.S.C. § 3742(e)
(standard of review to be applied by the court of appeals);
18 U.S.C. § 3742(g) (scope of a district court’s discretion on
remand).
In this circuit, the PROTECT Act’s standard of review
provisions, which effected procedural changes in the law, may be
applied retroactively. See United States v. Bell, 351 F.3d 672,
674-75 (5th Cir. 2003). Thus, while Edwards was sentenced on
April 23, 2003, his appeal was pending on the effective date of the
PROTECT Act, and we must analyze any challenge to his sentence
under the Act. See, e.g., Lindh v. Murphy, 521 U.S. 320, 327
(1997) (noting that procedural changes typically apply to pending
cases).
Before the enactment of the PROTECT Act, we reviewed all
departures under a unitary abuse of discretion standard. See
United States v. Harris, 293 F.3d 863, 871 (5th Cir. 2002); United
States v. Koon, 518 U.S. 81, 96-100 (1996). The PROTECT Act alters
this standard of review.1 A number of the courts of appeals have
1
The relevant portion of the PROTECT Act provides that:
(e) Consideration - Upon review of the record, the court of
appeals shall determine whether the sentence
(1) was imposed in violation of law;
(2) was imposed as a result of an incorrect application of the
sentencing guidelines;
(3) is outside the applicable guideline range, and
(A) the district court failed to provide the written
3
held that the PROTECT Act authorizes de novo review of all
departures. See, e.g., United States v. Stockton, 349 F.3d 755,
764 (4th Cir. 2003); United States v. Mallon, 345 F.3d 943, 948
(7th Cir. 2003); United States v. Frazier, 340 F.3d 5, 14 (1st Cir.
2003); United States v. Hutman, 339 F.3d 773, 775 (8th Cir. 2003);
United States v. Jones, 332 F.3d 1294, 1299-1300 (10th Cir. 2003).
This court appears to have reached a different result. Bell, 351
F.3d at 676 (applying the abuse of discretion standard where the
district court departed based on a factor that advanced the
objectives of § 3553(a)(2)). However, under either standard, the
departure applied in this case was proper.
B. Provision of a Written Statement
statement of reasons required by section 3553(c);
(B) the sentence departs from the applicable guideline
range, and
(i) does not advance the objectives set forth in
section 3553(a)(2); or
(ii) is not authorized under section 3553(b); or
(iii) is not justified by the facts of the case; or
(C) the sentence departs to an unreasonable degree from the
applicable guidelines range, having regard for the
factors to be considered in imposing a sentence, as set
forth in section 3553(a) of this title and the reasons
for the imposition of the particular sentence, as stated
by the district court pursuant to the provisions of
section 3553(c); or
(4) was imposed for an offense for which there is no applicable
sentencing guideline and is plainly unreasonable.
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, except with respect to determinations
under subsection (3)(A) or (3)(B), shall give due deference to the
district court’s application of the guidelines to the facts. With
respect to determinations under subsection (3)(A) or (3)(B), the
court of appeals shall review de novo the district court’s
application of the guidelines to the facts.
18 U.S.C. § 3742(e).
4
In sentencing Edwards, the district court stated in
writing that it adopted the factual findings and guideline
application contained in the presentence report. The statement of
reasons specifically indicated that the court concurred with the
government’s motion requesting a departure from the applicable
guideline range because the defendant’s participation in the
offense resulted in the death of an individual. The court based
its upward departure on the policy statement contained in U.S.S.G.
§ 5K2.1. The reasons provided by the district court are sufficient
to satisfy its obligation under § 3553(c) and § 3742(e)(3)(A).
C. District Court’s Upward Departure Under §§ 5K2.0 and 5K2.1
In applying the sentencing guidelines, the courts must
follow both the guidelines and the accompanying policy statements.
See United States v. Urias-Escobar, 281 F.3d 165, 167 (5th Cir.
2002). Under the PROTECT Act, where the decision to depart is
proper and the extent of the departure is neither too high nor too
low, the court of appeals “shall affirm the sentence” imposed by
the district court. See 18 U.S.C. § 3742(f)(3).
In this case, the district court departed upward from the
sentencing guideline range based on the death of Tatum Strogen.
The policy statements accompanying the sentencing guidelines
explicitly provide that “[i]f death resulted [from a crime
punishable under the guidelines], the court may increase the
sentence above the authorized guideline range.” See U.S.S.G. §
5
5K2.1 (2003). Edwards admits that this provision permits the
district court to depart upward, but he argues that the district
court did not adequately consider “matters that would normally
distinguish among levels of homicide, such as the defendant’s state
of mind and the degree of planning or preparation” as required by
the guidelines. See id. In addition, Edwards argues that the
prosecution did not demonstrate a sufficient nexus between the
defendant’s actions and Strogen’s death to warrant the departure.
We disagree with both these contentions.
The sentencing transcript makes it clear that the
district court considered a variety of factors including the
defendant’s efforts to obtain a firearm before the concert, as well
as his contention that he was simply firing his weapon in self-
defense. The district court also considered the “dangerousness of
the defendant’s conduct, [and] the extent to which death or serious
bodily injury was intended or knowingly risked,” as required by the
guidelines, in determining the appropriate extent of the departure.
See id.
Our review of the record confirms that Edwards’s actions
in taking a pistol to the concert, brandishing it during a
firefight, and firing it into a crowded area, significantly
contributed to the course of events that resulted in Tatum
Strogen’s death. This case falls outside the heartland of typical
felon-in-possession convictions. Because the guidelines calcula-
tion for such a conviction does not adequately account for the risk
6
of injury that this defendant’s actions created, an upward
departure was warranted. In addition, the extent of the departure,
from a guideline range of 70-87 months to a sentence of 120 months,
was appropriate given the defendant’s actions. In sum, under any
PROTECT Act standard of review, the record leads us to reach the
same conclusion as the district court: the defendant’s partici-
pation in a gun battle that led to Tatum Strogen’s death justified
this upward departure.
III. CONCLUSION
For the reasons discussed above, the sentence imposed by
the district court is AFFIRMED.
7