UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
_____________________
No. 95-40993
Summary Calendar
_____________________
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
MICHAEL WAYNE HORNSBY,
Defendant-Appellant.
_________________________________________________________________
Appeal from the United States District Court
for the Eastern District of Texas
(1:95-CR-79-1)
_________________________________________________________________
July 5, 1996
Before DAVIS, BARKSDALE and DeMOSS, Circuit Judges.
PER CURIAM:
Primarily at issue is whether the sentencing guideline for
kidnapping was the guideline most analogous to the offense conduct
to which Michael Wayne Hornsby pleaded guilty -- interstate
domestic violence -- and for which no guideline had been
promulgated. Hornsby challenges his sentence on this and two other
bases; we AFFIRM.
I.
On June 13, 1995, in Brookeland, Texas, Hornsby approached his
former girlfriend and asked to speak to her. When she refused,
Hornsby choked her until she was unconscious, placed her in her
automobile, and took her to Louisiana, where he was apprehended.
Hornsby was indicted for kidnapping, in violation of 18 U.S.C.
§ 1201, and for interstate domestic violence, in violation of 18
U.S.C. § 2261. In exchange for his plea of guilty to interstate
domestic violence, the kidnapping charge was dismissed. A person
commits the crime of interstate domestic violence by, inter alia,
“caus[ing] a spouse or intimate partner to cross a State line ...
by force, coercion, duress, or fraud and, in the course or as a
result of that conduct, intentionally commit[ting] a crime of
violence and thereby caus[ing] bodily injury to the person’s spouse
or intimate partner”. 18 U.S.C. § 2261(a)(2).
At sentencing, the district court, over Hornsby’s objections,
applied the base offense level for kidnapping to the interstate
domestic violence offense. The court also found, over Hornsby’s
objections, that he was a career offender; and that, because
Hornsby committed the instant offense while on state parole, his
sentence for the federal offense should run consecutively to his
state sentence. Hornsby was sentenced to the statutory maximum of
60 months imprisonment, to run consecutively to his state sentence.
II.
Hornsby challenges use of the kidnapping guideline, the career
offender finding, and his federal sentence being served
consecutively.
A.
Hornsby contends that, rather than using the base offense
level for kidnapping, the district court should have used that for
assault or aggravated assault. He asserts that those guidelines
2
are more closely analogous to his offense conduct because each
necessarily involves bodily harm, while kidnapping can occur
without violence. We review de novo the ruling that the kidnapping
guideline is the most analogous guideline. United States v.
Smertneck, 954 F.2d 264, 265 (5th Cir.), cert. denied, 506 U.S. 833
(1992).
The district court sentenced Hornsby under the 1994 version of
the Guidelines, which do not specify a base offense level for
interstate domestic violence. Pursuant to 18 U.S.C. § 3553(b) and
U.S.S.G. § 2X5.1 (1994)(court should apply the most analogous
offense guideline for an offense for which no guideline has been
promulgated), the district court applied the kidnapping guideline,
finding that it was the most analogous to Hornsby’s offense
conduct. The court rejected Hornsby’s contention that the assault
or aggravated assault guideline should have been used instead,
adopting the PSR’s reasoning that the kidnapping guideline was the
only one that addressed the elements of abduction and crossing a
state line.
Because Hornsby was sentenced on November 15, 1995, the 1995
version of the Guidelines, effective that November 1, should have
been used. 18 U.S.C. § 3553(a)(4)(A); see United States v.
Castaneda-Cantu, 20 F.3d 1325, 1336 (5th Cir. 1994) (sentencing
court must apply version of guidelines in effect at sentencing
unless such application would violate Ex Post Facto clause).
Appendix A of those Guidelines, which specifies the guideline
section applicable to the statute of conviction, references several
3
applicable guidelines for violations of 18 U.S.C. § 2261, including
those for assault and kidnapping. U.S.S.G. App. A (1995). The
introduction to Appendix A states that, if more than one guideline
section is referenced for the particular statute, the court should
use the one most appropriate for the nature of the offense conduct
charged in the offense for which the defendant was convicted. Id.
Accordingly, the analysis is the same whether under the 1994 or
1995 version. (This applies equally to all of the guidelines cited
here. Accordingly, the 1995 version is used.)
Although Hornsby’s offense conduct involved violence and
bodily injury, which would make the guidelines for assault and
aggravated assault applicable, see U.S.S.G. §§ 2A2.2, 2A2.3, it
also involved abducting and carrying the victim across a state
line. The offense guideline for kidnapping, which includes
increases in the offense level if the victim suffered certain
degrees of bodily injury, is the only guideline which takes into
consideration all of these specific offense characteristics. See
U.S.S.G. § 2A4.1. Therefore, because the kidnapping guideline is
the most analogous to Hornsby’s offense conduct, the district court
did not err by using it to determine the offense level for
interstate domestic violence.
B.
The career offender finding is challenged next. Hornsby
asserts that the PSR, which the district court adopted, contains no
evidence or factual basis for the conclusion that the offenses on
which career offender status is based involved the use, attempted
4
use, or threatened use of physical force, such that they were
crimes of violence within the meaning of U.S.S.G. § 4B1.1.
We review the interpretation of § 4B1.1 de novo, and the
factual findings for clear error. United States v. Shano, 955 F.2d
291, 294 (5th Cir. 1992). A defendant is a career offender if,
inter alia, he has at least two prior felony convictions for either
a crime of violence or a controlled substance offense. U.S.S.G. §
4B1.1. A “crime of violence” is a felony offense that has as an
element the use, attempted use, or threatened use of physical force
against another. U.S.S.G. § 4B1.2(1)(i). A “crime of violence”
also includes, inter alia, burglary of a dwelling. U.S.S.G. §
4B1.2(1)(ii).
The PSR stated that one of Hornsby’s prior theft charges was
filed initially as a burglary of a habitation and that one of his
burglary offenses also involved burglary of a habitation. Hornsby
offered no evidence to rebut this.
A presentence report generally bears sufficient indicia of
reliability to be considered as evidence by the trial judge in
making guideline determinations, especially when there is no
evidence in rebuttal. United States v. Alfaro, 919 F.2d 962, 966
(5th Cir. 1990). Because burglary of a habitation is considered a
crime of violence, the court did not err in holding that Hornsby
had the two requisite prior crimes of violence for career offender
status. See U.S.S.G. § 4B1.2(1)(ii) & comment. (n.2) (conduct of
which defendant was convicted is focus of inquiry).
C.
5
The final issue concerns Hornsby’s federal sentence being
served consecutively to an undischarged state sentence.
1.
Hornsby asserts that, because his state conviction was used to
determine his base offense level for the instant offense, he should
have been sentenced under U.S.S.G. § 5G1.3(b). It provides that,
if “the undischarged term of imprisonment resulted from offense(s)
that have been fully taken into account in the determination of the
offense level for the instant offense, the sentence for the instant
offense shall be imposed to run concurrently to the undischarged
term of imprisonment”. U.S.S.G. § 5G1.3(b). Hornsby’s state
conviction was used in calculating his criminal history score, but
not in determining his base offense level. Accordingly, § 5G1.3(b)
is inapplicable.
The district court ordered a consecutive sentence, pursuant to
U.S.S.G. § 5G1.3(c), p.s., which provides:
(Policy Statement) ... the sentence for the
instant offense may be imposed to run
concurrently, partially concurrently, or
consecutively to the prior undischarged term
of imprisonment to achieve a reasonable
punishment for the instant offense.
U.S.S.G. § 5G1.3(c), p.s. The commentary to § 5G1.3 provides that
[i]f the defendant was on ... state ... parole
... at the time of the instant offense, and
has had such ... parole ... revoked, the
sentence for the instant offense should be
imposed to run consecutively to the term
imposed for the violation of ... parole ... in
order to provide an incremental penalty for
the violation of ... parole....
U.S.S.G. § 5G1.3, comment. (n.6).
6
When Hornsby committed the instant offense, he was on state
parole until June 5, 1998, for three burglaries. His parole was
revoked on September 5, 1995. Note 6 of the commentary, quoted
above, squarely addresses this situation. Therefore, the court did
not err by ordering a consecutive sentence.
2.
Hornsby’s contention that due process forbids a consecutive
sentence because his state parole had not been revoked at the time
of the commission of the instant offense and entry of his plea is
meritless. He does not explain how his due process rights have
been violated; nor does he support his contention with citations to
any authority. See FED. R. APP. P. 28(a)(6).
III.
For the foregoing reasons, the sentence is
AFFIRMED.
7