United States Court of Appeals
For the First Circuit
No. 03-2632
UNITED STATES OF AMERICA,
Appellee,
v.
BRIAN BAILEY,
Defendant, Appellant.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS
[Hon. Reginald C. Lindsay, U.S. District Judge]
Before
Torruella, Lipez, and Howard, Circuit Judges.
Evan Slavitt, with whom Richard P. O'Neil and Bodoff & Slavitt
LLP were on brief, for appellant.
Wan J. Kim, Deputy Assistant Attorney General, with whom R.
Alexander Acosta, Assistant Attorney General, Michael J. Sullivan,
United States Attorney, S. Theodore Merritt, Assistant United
States Attorney, Jessica Dunsay Silver and Gregory B. Friel,
Attorneys, Department of Justice, Civil Rights Division, were on
brief, for appellee.
May 3, 2005
HOWARD, Circuit Judge. Brian Bailey was one of seven
jailers charged with federal offenses arising from five incidents
at the Nashua Street Jail in Boston, Massachusetts, where guards
employed excessive force against pretrial detainees and then acted
to conceal their misconduct. The grand jury's superseding
indictment charged all seven defendants with conspiracy to deprive
pretrial detainees of their civil rights in violation of 18 U.S.C.
§ 241 (the “global conspiracy” charge). Bailey was also charged
with assaulting and aiding and abetting the assault of a pretrial
detainee, see 18 U.S.C. § 242; conspiring to obstruct and
obstructing a federal criminal investigation, see 18 U.S.C. §
1512(b)(3) (the witness tampering statute); and perjury (for lying
to a federal grand jury), see 18 U.S.C. § 1623.
Three of the defendants pleaded guilty to the global
conspiracy charge and to their individual substantive charges, and
the trial of the fourth defendant was severed. Bailey and the
other two remaining defendants were tried together. Bailey's two
co-defendants were acquitted on all counts. Bailey was acquitted
of the global conspiracy charge, but was convicted of the other
charges and sentenced to 41 months in prison. He now appeals his
convictions and sentence.
I.
The following facts are either uncontested, or, if
contested, are presented in the light most favorable to the
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verdicts. See United States v. McCann, 366 F.3d 46, 48 (1st Cir.
2004).
Boston's Nashua Street Jail, operated by the Suffolk
County Sheriff's Department, houses pretrial detainees. On
September 24, 1999, Officer Bailey and Officer Michael Ross were
assigned to work in the jail's psychiatric unit. On that day, the
psychiatric unit housed a pretrial detainee who was on suicide
watch. In accordance with jail policy, the detainee was stripped
of his clothes and denied sheets and blankets to prevent their use
in a suicide attempt. His only covering was a paper “johnny.”
During the course of the afternoon, the detainee
complained repeatedly that his cell was cold and that he needed a
blanket. When Ross denied his request, the detainee began
screaming, swearing, and punching and kicking his cell door. He
persisted in this behavior for approximately three hours. At about
4 p.m., Bailey told Ross that “he had [had] enough” of the detainee
and that he was going to “bang him out.” Ross replied that they
should wait until later that evening.
Bailey left the unit for dinner at about 5:30 p.m. While
at dinner, he saw Officer Paul Davis, a member of the Sheriff's
Emergency Response Team. The Team is summoned to jail emergencies
by way of an electronic alarm that all officers carry. Bailey
informed Davis that he was having a problem with an inmate and that
Davis might hear his alarm go off later that night.
-3-
When Bailey returned from dinner, he and Ross discussed
entering the detainee's cell to “slap him around.” Since Ross and
Bailey were not ordinarily authorized to enter a detainee's cell
without permission from a superior, they fabricated a story to
justify their actions. They initially agreed to report that the
detainee had made a mess in his cell, that they had entered the
cell to clean it, and that they were attacked upon entry.
At 6:30 p.m., Officer Brian Murphy arrived at the
psychiatric unit to relieve Ross so that the latter could go to
dinner. Ross notified Murphy of the plan to enter the detainee's
cell. Murphy replied that he wanted no part of it and that they
had “better write a good report.” Undeterred, Ross and Bailey put
on gloves and entered the detainee's cell. Ross approached the
detainee and yelled at him to be quiet. When the detainee refused,
Ross slapped his face several times and then delivered multiple
“knee strikes,” driving his knee into the victim's thigh. Bailey
joined the attack by punching the detainee several times in the
ribs and shoulder. As he was being struck, the detainee cried and
complained of back pain. The detainee was then pushed down onto
his bed, and Bailey and Ross attempted to handcuff him. At no
point during the altercation did the detainee assault the officers
or make any threatening gestures. He did not fight back other than
to resist the handcuffing.
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Bailey's alarm was activated at some point during the
melee. The Emergency Response Team, including Davis and Deputy
Anthony Nuzzo, arrived shortly thereafter. They placed handcuffs
on the detainee and strapped him in a restraint chair. While
secured in the chair, the detainee cried and complained of back
pain. Bailey informed Ross later that night that he had slapped
the detainee while he was restrained in the chair. Bailey also
bragged to Davis that he and Ross had “beat the fuck out of” the
detainee.
Shortly after the incident, Bailey consulted with Nuzzo,
who told him that the story about entering the detainee's cell to
clean up a mess was not adequate cover for the beating. Nuzzo
advised Bailey to report that he and Ross had entered the
detainee's cell because of an apparent medical emergency, only to
be attacked upon their entrance. After further discussion, Bailey
and Ross decided to go with this revised “medical emergency”
fabrication in their incident reports. They stood by this story
when subsequently questioned by Sheriff's Department investigators
who were conducting an internal inquiry. Relying in part on what
they were told by Bailey and Ross, the investigators filed a report
concluding that the officers had acted appropriately. This report,
containing the false statements, was subsequently obtained by the
FBI in connection with an investigation of a separate incident of
excessive force at the Nashua Street Jail.
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In October 2000, Bailey was summoned to testify before a
federal grand jury about the September 24, 1999 incident. He
testified that he had entered the detainee's cell because he
thought the detainee was having a seizure, that the detainee jumped
up and attacked him, and that no one struck the detainee during the
incident. At trial, however, Bailey admitted that he had
intentionally lied to the grand jury in an effort to protect
himself and Ross.
II.
A. Obstruction of Justice
As set forth above, Bailey was convicted of violating and
conspiring to violate the federal witness tampering statute by
knowingly engaging in misleading conduct with the intent to prevent
the communication of information concerning the commission of a
federal crime to a federal law enforcement officer. See 18 U.S.C.
§ 1512(b)(3). Bailey argues that the prosecution failed to prove
the intent element of this crime, and that the jury was improperly
instructed on this point. Underlying Bailey's argument is the
premise, rejected by the district court, that the intent required
by the statute cannot be found when there was no federal
investigation extant or imminent at the time of the alleged
misleading conduct.1
1
In making this argument, Bailey also suggests that his
conduct did not fall within the statute's sweep because his
misstatements were made to Sheriff's Department investigators who,
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Bailey's interpretation of § 1512(b)(3) is not consistent
with its plain language, which reads:
Whoever knowingly uses intimidation,
threatens, or corruptly persuades another
person, or attempts to do so, or engages in
misleading conduct toward another person, with
intent to . . . hinder, delay, or prevent the
communication to a law enforcement officer or
judge of the United States of information
relating to the commission or possible
commission of a Federal offense . . . shall be
fined under this title or imprisoned not more
than ten years, or both.
18 U.S.C. § 1512(b)(3). Nothing in this provision implies that a
federal investigation must be imminent or underway at the time of
the actus reus. To the contrary, and as several circuits have
recognized, the statutory language suggests that Congress intended
§ 1512(b)(3) not merely to safeguard the integrity of ongoing or
imminent federal investigations, but more broadly to facilitate
federal law enforcement's ability to gather information about
he argues, were not federal “law enforcement officer[s]” for the
purposes of the statute. This argument misunderstands the
government's case theory. The government did not allege that the
Sheriff's Department investigators were the federal "law
enforcement officers” to whom the statute refers; the government
alleged that the investigators were the witnesses who ultimately
relayed Bailey's misinformation to federal law enforcement
officers. See United States v. Baldyga, 233 F.3d 674, 680 (1st
Cir. 2000) (holding that the requirements of the statute are
satisfied so long as the possibility exists that the defendant's
misinformation will eventually be communicated to federal
officials). That these witnesses were themselves county law
enforcement personnel does not change the analysis. See United
States v. Veal, 153 F.3d 1233, 1245 (11th Cir. 1998) (holding that
state police investigators “become witnesses as a matter of course
in each investigation in which they are involved”).
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possible federal crimes -- including federal crimes that are not
yet under investigation at the time of the offense. See, e.g.,
United States v. Guadalupe, 402 F.3d 409, 411 (3d Cir. 2005)
(“[P]roving a violation of 18 U.S.C. § 1512(b)(3) does not depend
on the existence or imminency of a federal investigation but rather
on the possible existence of a federal crime and a defendant's
intention to thwart an inquiry into that crime by officials who
happen to be federal.”); United States v. Perry, 335 F.3d 316, 321
(4th Cir. 2003) (finding a violation of § 1512(b)(3) where the
defendant provided false information to local police intending to
prevent the initiation of a federal investigation into his status
as a felon in possession of a firearm), cert. denied, 124 S. Ct.
1408 (2004); United States v. Veal, 153 F.3d 1233, 1250 (11th Cir.
1998) (“By its wording, § 1512(b)(3) does not depend on the
existence or imminency of a federal case or investigation but
rather on the possible existence of a federal crime and a
defendant's intention to thwart an inquiry into that crime.”).2
2
Bailey argues that three extra-circuit cases interpreting §
1512(a)(1)(C) -- United States v. Emery, 186 F.3d 921 (8th Cir.
1999); United States v. Causey, 185 F.3d 407 (5th Cir. 1999); and
United States v. Bell, 113 F.3d 1345 (3d Cir. 1997) -- have
implicitly recognized that a federal investigation must be at least
imminent, if not underway, to support a conviction under the
witness tampering statute. But none of these cases implies such a
rule. They merely require the government to prove that the
defendant was at least partially motivated by a desire to prevent
communication between a witness and a law enforcement officer
concerning the commission or possible commission of a federal
offense, and that the officer was in fact a federal officer. See
Emery, 186 F.3d at 925; Causey, 185 F.3d at 421-23; Bell, 113 F.3d
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Accordingly, we reject Bailey's argument that § 1512(b)(3) requires
an existing or imminent federal investigation at the time of the
defendant's misleading conduct.
In reaching this conclusion, we acknowledge Bailey's
argument that 18 U.S.C. § 1512(f)(1) supports reading a pending-or-
imminent-federal-investigation requirement into § 1512(b)(3).
Section 1512(f)(1) provides that, for purposes of certain
provisions of the obstruction of justice statute, “an official
proceeding need not be pending or about to be instituted at the
time of the offense.” Bailey would have us draw a negative
inference from Congress's explicit statement that an "official
proceeding” need not be underway or imminent -- i.e., that Congress
contemplated that a federal investigation, contrary to an official
proceeding, must be pending or about to be instituted at the time
of the offense.
Such a negative inference is not warranted. For one
thing, § 1512(f)(1) does not apply to § 1512(b)(3) because §
1512(b)(3) does not require that the proscribed conduct occur in
the context of an "official proceeding.” See Veal, 153 F.3d at
1250. And even if § 1512(f)(1) did apply, its application would
at 1348-49; see also United States v. Stansfield, 171 F.3d 806,
816-18 (3d Cir. 1999). Nothing logically precludes these statutory
elements from being satisfied where, as here, the misleading
conduct reasonably could be found to have been intended to prevent
the commencement of what would prove to be a federal investigation
into a federal offense.
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support our ruling because the federal grand jury investigation to
which Bailey's misstatements eventually led (which, per §
1512(f)(1), need not have been underway or imminent at the time of
the offense) constitutes an “official proceeding” within the
meaning of § 1512(f)(1). See 18 U.S.C. § 1515(a)(1)(A) (defining
an official proceeding for purposes of § 1512(f)(1) as, among other
things, a proceeding before a federal grand jury); United States v.
Frankhauser, 80 F.3d 641, 651 (1st Cir. 1996) (“Both a federal
trial and a federal grand jury investigation are 'official
proceedings' within the meaning of the statute.”).
Before concluding, we also acknowledge Bailey's argument
that a failure to read a pending-or-imminent-federal-investigation
requirement into § 1512(b)(3) raises due process and ex post facto
concerns because it leaves open the possibility of a prosecution
for conduct that no defendant could have understood to constitute
a federal offense at the time of its commission. We do not see how
this is so. Section 1512(b)(3) requires that the misleading
conduct affect the communication of information "relating to the
commission or possible commission of a federal offense.”
Therefore, the statute applies only to obstructive behavior that
the defendant knows could impede an investigation into conduct that
could constitute a federal crime at the time of its commission.3
3
Of course the statute does not require that the defendant
specifically know that the underlying conduct could constitute a
federal offense. See Baldyga, 233 F.3d at 681.
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Here there can be no claim that it would be unconstitutional to
apply the statute to Bailey, whom the jury reasonably found was
aware of the conduct giving rise to the eventual federal civil
rights charges at the time he misled the Sheriff's Department
investigators.
B. Aiding and Abetting
The prosecution presented two theories for conviction on
the substantive civil rights charge: that Bailey was a principal,
or, alternatively, that he aided and abetted Ross in the assault.
Bailey argues that the jury instruction on aiding and abetting was
erroneous. Because the verdict form does not specify the theory
under which the jury found Bailey guilty, and because Bailey's
claim is one of legal error rather than sufficiency of the
evidence, the availability of an alternate theory of conviction
would not save the jury's verdict. See Griffin v. United States,
502 U.S. 46, 59 (1991) (“Jurors are not generally equipped to
determine whether a particular theory of conviction submitted to
them is contrary to law.”); United States v. Boots, 80 F.3d 580,
589 (1st Cir. 1996) (general verdict that may have been grounded on
legally erroneous theory requires setting aside verdict on all
grounds). We thus assume arguendo that the guilty verdict was
grounded on the challenged aiding-and-abetting theory.
Bailey raises two issues regarding the aiding-and-
abetting instructions. Primarily, he contends that the jury was
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wrongly instructed to find him guilty if it found that he failed to
act when he had a legal obligation to do so, because, he says, an
affirmative act must be proved. Alternatively, he argues that it
was not appropriate to give a failure-to-act instruction in this
case because the prosecution presented no evidence or argument that
Bailey had a legal obligation to act. Because Bailey failed to
object to the instructions with the requisite specificity, see Fed.
R. Crim. P. 30(d), our review is only for plain error, see Fed. R.
Crim. P. 52(b); United States v. Olano, 507 U.S. 725, 732-36
(1993). A defendant alleging plain error must show that an error
occurred which was clear or obvious and which not only affected the
defendant's substantial rights, but also seriously impacted the
fairness, integrity, or public reputation of judicial proceedings.
Olano, 507 U.S. at 732-36.
Bailey has fallen well short of meeting the demanding
plain-error test. The district court provided the jury with a
seven-paragraph aiding-and-abetting instruction. Within this
comprehensive instruction, the court stated:
In order to aid and abet another to commit a
crime, a defendant must willfully and
knowingly have associated himself in some way
with the crime, and willfully and knowingly
have sought by some act to help make the crime
succeed. Participation in a crime is willful
if action is taken voluntarily and
intentionally, or, in the case of a failure to
act, with the specific intent to fail to do
something the law requires to be done.
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(emphasis added). Bailey argues that the instruction misstates the
law to the extent that it countenances criminal liability for a
failure to act. He cites a number of cases for the proposition
that an aider and abettor must have “affirmatively participated” in
the crime. See, e.g., United States v. Martin, 228 F.3d 1, 18 (1st
Cir. 2000); United States v. Indelicato, 611 F.2d 376, 385 (1st
Cir. 1979).
But the government did not allege that Bailey merely
stood by while his partner attacked the detainee. Rather, the
government's theory, elucidated in closing argument, was that
Bailey struck the detainee himself, or, at a minimum, that he
actively participated in his partner's assault by “[g]oing into a
locked cell for no legitimate reason, knowing that force was going
to be used and then assisting [Ross], whether [by] holding [the
detainee] down or really just emboldening [Ross] by preventing the
inmate from defending himself.”
Because the government did not proceed on a failure-to-
act theory, the court's instruction on that point was extraneous.
But it is highly unlikely that this extraneous reference, when read
in the context of an otherwise correct seven-paragraph instruction,
misled the jury to believe that it could convict Bailey simply for
failing to intervene in the attack. See Jones v. United States,
527 U.S. 373, 391 (1999) (“[Jury] instructions must be evaluated
not in isolation but in the context of the entire charge.”). This
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is especially so given the clarifying instruction that immediately
followed the passage to which Bailey objects:
The mere presence of a defendant where a crime
is being committed, even coupled with
knowledge by the defendant that a crime is
being committed, or the mere acquiescence by a
defendant in the criminal conduct of others,
is not sufficient to establish aiding and
abetting. An aider and abettor must have some
interest in the criminal venture.
This instruction properly safeguarded against any misapplication of
the failure-to-act instruction. See id. (holding that
instructions that may appear problematic when read in isolation
“can be cured when read in conjunction with other instructions”).4
C. Bodily Injury
Bailey next contends that the prosecution failed to
introduce evidence sufficient to permit a rational jury finding of
bodily injury for the purposes of his felony conviction under 18
U.S.C. § 242. In determining the evidentiary sufficiency of a
guilty verdict, we review the totality of the evidence in the light
4
We note, too, that the extraneous instruction was not
substantively wrong. Indeed, the language to which Bailey objects
is a standard definition of willfulness that federal courts
regularly employ in aiding-and-abetting instructions. See, e.g.,
United States v. Gordon, 290 F.3d 539, 543 (3d Cir.), cert. denied,
537 U.S. 1063 (2002); United States v. Brown, 151 F.3d 476, 486
(6th Cir. 1998); United States v. Monteiro, 871 F.2d 204, 208 (1st
Cir. 1989). It is a hornbook definition. See, e.g., 1 L. Sand, et
al., Modern Federal Jury Instructions, Instr. 11-2 (2004)
(“Participation in a crime is willful if done voluntarily and
intentionally, and with the specific intent to do something which
the law forbids or with the specific intent to fail to do something
the law requires to be done; that is to say, with a bad purpose
either to disobey or to disregard the law.”) (emphasis added).
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most favorable to the government, and then ask whether “any
rational trier of fact could have found the essential elements of
the crime beyond a reasonable doubt.” United States v. Henderson,
320 F.3d 92, 102 (1st Cir. 2003) (quoting United States v.
Woodward, 149 F.3d 46, 56 (1st Cir. 1998)).
A felony conviction under 18 U.S.C. § 242 requires proof
that the defendant “willfully subject[ed] [a] person . . . to the
deprivation of any rights, privileges, or immunities secured or
protected by the Constitution or laws of the United States, . . .
if bodily injury results [from such deprivation].” Although the
statute does not define “bodily injury,” the term is defined
identically in four other provisions of Title 18. See 18 U.S.C. §§
831(f)(5); 1365(h)(4); 1515(a)(5); 1864(d)(2) (all defining “bodily
injury” as “(A) a cut, abrasion, bruise, burn, or disfigurement;
(B) physical pain; (C) illness; (D) impairment of [a/the] function
of a bodily member, organ, or mental faculty; or (E) any other
injury to the body, no matter how temporary”). The Eleventh
Circuit has applied this definition in § 242 cases. See United
States v. Myers, 972 F.2d 1566, 1572 (11th Cir. 1992) (noting that
“[w]hen Congress uses, but does not define a particular word, it is
presumed to have adopted that word's established meaning”) (citing
Davis v. Michigan Dep't of Treasury, 489 U.S. 803, 813 (1989)). We
follow suit and adopt the established definition of “bodily injury”
for the purposes of § 242. The district court's jury instruction
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regarding bodily injury, although not identical, was consistent
with this definition.5
Bailey argues that the only proof of bodily injury was
the evidence that the detainee cried after the assault. He argues
that people cry for a variety of reasons, and, therefore, crying
alone could not establish physical pain. But the record reflects
that the evidence of physical pain goes beyond the detainee's post-
attack crying. The prosecution elicited testimony that the
detainee suffered multiple blows to the head, shoulder, ribs, and
thighs, and that he cried both during and after the attack.
Moreover, Ross testified that the detainee specifically complained
of back pain during and after the incident. Bailey himself stated
after the incident that he and Ross had “beat the fuck out of [the
detainee].” Taken together, the evidence above provides a
sufficient basis for a rational trier of fact to find bodily injury
for the purposes of a § 242 felony conviction.
D. Prejudicial Spillover
Bailey asserts that the majority of his trial was
centered on the government's theory that there was a global
conspiracy among the guards at the Nashua Street Jail that involved
beating detainees and then covering up their crimes by filing false
5
With no objection from Bailey, the district court instructed
the jury that a bodily injury could include “any injury to the
body, no matter how minor, slight or temporary, and includes burns,
cuts, abrasions, bruises or physical pain.”
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reports and lying to investigators. According to Bailey, when the
jury acquitted all three defendants of this global conspiracy, the
district court should have “taken a step back” to reassess the
prejudicial impact of the conspiracy evidence on the separate
substantive charges. In essence, he argues that the conspiracy
evidence tainted the jury's consideration of the substantive
charges and therefore entitles him to a new trial on those charges.
Bailey's argument is specious. As an initial matter,
Bailey had ample opportunity to seek severance prior to trial
pursuant to Fed. R. Crim. P. 14. To the extent that the prejudice
Bailey alleges could not be detected prior to trial, he could also
have moved for a mistrial, though “mistrials grounded on spillover
prejudice are rare.” United States v. Houlihan, 92 F.3d 1271, 1284
(1st Cir. 1996). Bailey raised his claim of spillover prejudice
for the first time in his motion for a new trial, and even then, in
the vaguest of terms. In this case, the record demonstrates that
the district court took appropriate measures to safeguard against
potential spillover prejudice by instructing the jury to consider
the evidence separately as to each count. Cf. United States v.
Houle, 237 F.3d 71, 76 (1st Cir. 2001) (instructions to the jury to
consider the evidence separately as to each defendant were an
adequate safeguard against the possibility of prejudicial
spillover). We presume that jurors follow such instructions. See
United States v. Freeman, 208 F.3d 332, 345 (1st Cir. 2000). And,
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indeed, the verdict in this case suggests that the jury was able to
“distinguish among the various counts.” Id. Bailey's two co-
defendants at trial, who were also charged with the global
conspiracy, were acquitted on all counts. Such a discriminating
verdict is strong evidence that the jury successfully
compartmentalized the evidence and applied the appropriate evidence
to the appropriate counts and defendants. Houle, 237 F.3d at 76;
Freeman, 208 F.3d at 345-46.
E. Sentencing
At Bailey's sentencing, the district court, applying the
then mandatory United States Sentencing Guidelines, raised the
basic offense level of twelve by six because Bailey had acted under
color of law, see U.S.S.G. § 2H1.1(b)(1), by two because Bailey had
obstructed justice, see id. § 3C1.1, and by two because the court
found by a preponderance of the evidence that the victim was
vulnerable, see id. § 3A1.1(b)(1). Bailey's enhanced offense level
of 22 yielded a sentencing range of 41 to 51 months. The court
sentenced Bailey to 41 months in prison, followed by two years of
supervised release.
In Bailey's opening appellate brief, he asserts that the
district court's vulnerable-victim finding was erroneous because
the court failed to make a particularized inquiry into the victim's
situation, instead focusing solely on the victim's generic status
as a prisoner in the psychiatric unit. In subsequent briefs,
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Bailey argues that a remand is necessary in light of the Supreme
Court's recent decisions in Blakely v. Washington, 542 U.S. ___,
124 S. Ct. 2531 (2004) (calling into question the constitutionality
of the Guidelines), and United States v. Booker, 543 U.S. ___, 125
S. Ct. 738 (2005) (severing the provisions making the Guidelines
mandatory in order to preserve the Guidelines as an advisory
system). We consider these arguments in turn.
1. Vulnerable-Victim Finding
Under U.S.S.G. § 3A1.1(b)(1), the base offense level
should be raised two levels if “the defendant knew or should have
known that a victim of the offense was a vulnerable victim.” The
Guidelines define a “vulnerable victim” as “a person (A) who is a
victim of the offense of conviction . . . ; and (B) who is
unusually vulnerable due to age, physical or mental condition, or
who is otherwise particularly susceptible to the criminal conduct.”
U.S.S.G. § 3A1.1, cmt. n.2. “We have interpreted the term
'susceptible to the criminal conduct' as being 'primarily concerned
with the impaired capacity of the victim to detect or prevent the
crime, rather than the quantity of the harm suffered by the
victim.'” United States v. Donnelly, 370 F.3d 87, 92 (1st Cir.
2004) (quoting United States v. Fosher, 124 F.3d 52, 55-56 (1st
Cir. 1997)).
A sentencing judge must make two separate determinations
before imposing a § 3A1.1(b)(1) enhancement: First, the judge must
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conclude “that the victim of the crime was vulnerable, that is,
that the victim had an 'impaired capacity . . . to detect or
prevent the crime.'” Donnelly, 370 F.3d at 92 (quoting Fosher, 124
F.3d at 55-56). Second, the judge must find “that the defendant
knew or should have known of the victim's unusual vulnerability.”
Id. We review the district court's “interpretation and
application” of the Guidelines de novo and its factual findings for
clear error. United States v. Savarese, 385 F.3d 15, 18 (1st Cir.
2004).
Bailey's argument is concerned solely with the first
prong of the test -- whether the victim was vulnerable. There is
overwhelming evidence in the record supporting the district court's
conclusion that he was. As the court explicitly found, the victim
was on suicide watch, was deemed a threat to himself or others, was
stripped of his clothes, was cold, and was not allowed out of his
cell even to get food. In light of these findings, we are at a
loss to comprehend Bailey's suggestion that the court failed to
make a sufficiently particularized inquiry into the victim's
situation.
2. Blakely/Booker Challenge
Bailey next contends that the vulnerable-victim finding
violated his Sixth Amendment right to have a jury find all the
facts impacting upon his sentence beyond a reasonable doubt.
Bailey did not object on these grounds below or so argue in his
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opening brief, but raised the argument for the first time in his
reply brief (which was filed after the Supreme Court's Blakely
decision). While this appeal was under advisement, the Supreme
Court issued its decision in Booker. Thereafter, Bailey and the
government filed supplemental briefs addressing whether, in light
of Booker and our subsequent circuit precedent, Bailey's case
should be remanded to the district court to determine whether re-
sentencing is necessary.
Because Bailey made no arguments in the district court
concerning the constitutionality of the Guidelines or the
application of the Guidelines to his sentence under Blakely or
Apprendi v. New Jersey, 530 U.S. 466 (2000), we review only for
plain error. See United States v. Antonakopoulos, 399 F.3d 68, 76
(1st Cir. 2005).6
Under the four-part plain error test outlined in Olano,
we grant relief only if we find (1) an error, (2) that is plain,
and that not only (3) affected the defendant's substantial rights,
but also (4) “seriously affect[ed] the fairness, integrity or
public reputation of judicial proceedings.” Id. at 77 (quoting
6
In so framing the issue, we reject Bailey's suggestion that
his initial challenge to the vulnerable-victim enhancement was
sufficient to preserve his Booker argument for plenary review.
Although we treat “almost any colorable claim” as preserving Booker
error, see United States v. Heldeman, 402 F.3d 220, 224 (1st Cir.
2005), here it is clear that Bailey's objection was directed solely
to the sufficiency of the evidence supporting the district court's
finding.
-21-
Olano, 507 U.S. at 736). The defendant bears the burden of
persuasion with respect to all four elements of the test. See
United States v. González-Mercado, 402 F.3d 294, 302 (1st Cir.
2005) (citing Antonakopoulos, 399 F.3d at 77).
The first two prongs are satisfied where, as here, the
district court treated the Guidelines as mandatory at sentencing.
See Antonakopoulos, 399 F.3d at 77. To meet the third prong of the
test Bailey must show a “reasonable probability” that the district
court would impose a more favorable sentence to Bailey under the
now “advisory” Guidelines. Id. at 75. “[W]e are inclined not to
be overly demanding as to proof of probability where, either in the
existing record or by plausible proffer, there is reasonable
indication that the district judge might well have reached a
different result under advisory guidelines.” United States v.
Heldeman, 402 F.3d 220, 224 (1st Cir. 2005).
Bailey has failed to present us with any argument
regarding the probability of a sentence reduction in his case.
Rather, he invites us to disregard Antonakopoulos and hold instead
that the burden should rest with the government to defend the pre-
Booker sentence, at least where “there was no [guilty] plea and a
variety of sentencing issues were considered by the district
court.” Under such circumstances, Bailey argues, we should presume
that the district court would have analyzed the case differently
were it not for the mandatory nature of the Guidelines.
-22-
We decline Bailey's invitation to ignore Antonakopoulos.
Absent unusual circumstances not present here, panels of this court
are bound by prior circuit decisions. See United States v.
Rodriguez, 311 F.3d 435, 438-39 (1st Cir. 2002).7 Because Bailey
has entirely failed to “advance any viable theory as to how the
Booker error” prejudiced his substantial rights, and because we
find nothing in the record to “suggest a basis for such an
inference,” we deny Bailey's request to remand for re-sentencing.
González-Mercado, 402 F.3d at 303.8
III.
For the reasons set forth herein, we affirm Bailey's
convictions and sentence.
7
To the extent Bailey seeks to distinguish his case from
Antonakopoulos, his effort is unpersuasive. In Antonakopoulos, as
here, the district court imposed a sentence following a jury trial
and conviction; there was no guilty plea. See 399 F.3d at 71; see
also United States v. Carpenter, ___ F.3d ___, 2005 WL 708335 at *1
(1st Cir. Mar. 29, 2005). Moreover, the district court in
Antonakopoulos arguably faced a more complex set of sentencing
issues than were presented here. See Antonakopoulos, 399 F.3d at
82 (noting that the district court had made no less than three
factual findings resulting in sentence enhancements beyond that
authorized by the jury verdict and also denied a request for a
downward departure).
8
For the same reasons we reject Bailey's request for re-
argument concerning his Booker claim.
-23-
United States v. Bailey
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