IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 94-10196
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
ROBERT LYNN BELL,
Defendant-Appellant.
Appeal from the United States District Court for the
Northern District of Texas
(February 17, 1995)
Before HIGGINBOTHAM, SMITH, and PARKER, Circuit Judges:
ROBERT M. PARKER, Circuit Judge:
The defendant, Robert Lynn Bell, pled guilty to one count of
armed carjacking in violation of 18 U.S.C. § 2119. The district
court accepted an agreed term of imprisonment of twenty years and
imposed Bell's sentence to run consecutively to sentences imposed
in state court for the same conduct. Bell raises two issues on
this appeal: 1) whether 18 U.S.C. § 2119 is constitutional, and 2)
whether the district court should have applied Section 5G1.3 of the
Federal Sentencing Guidelines in determining whether to impose
Bell's sentence concurrent with or consecutive to the sentences
imposed in state court. Bell's first argument is unavailing, but
Bell's second argument has some merit. Thus, we vacate the
sentence imposed by the district court and remand for resentencing.
I. FACTS
On January 20, 1993, at about 7:00 p.m., the defendant
approached an automobile occupied by the victim, LH, in a Dallas,
Texas parking lot, pointed a gun at her, and ordered her to let him
into the vehicle. Bell then abducted the victim at gunpoint, drove
the vehicle to a remote location, and raped her. Bell drove to
another location, released LH, and stole the vehicle.
The defendant was arrested February 17, 1993 by the Dallas
County Sheriff's Office. In relation to his conduct on January 20,
Bell ultimately pled guilty to state charges of aggravated
kidnapping, aggravated robbery with a deadly weapon, and aggravated
sexual assault with a deadly weapon. Bell received concurrent
sentences of fifty years for each of the state offenses.
A federal grand jury returned a three-count indictment against
Bell relating to the same conduct. Pursuant to a written
agreement, the defendant agreed to enter a conditional guilty plea
to one count of armed carjacking.1 As a part of the agreement,
Bell, his attorney, and the Government agreed, under Federal Rule
of Criminal Procedure 11 (e)(1)(c), that a twenty-year term of
imprisonment would be an appropriate disposition of the case. The
agreement provided that Bell would not be allowed to withdraw his
plea if the court sentenced him to twenty years, but also indicated
that the determination of the sentencing range was within the
court's discretion. The plea agreement did not address whether the
1. Bell preserved the right to challenge the
constitutionality of the underlying statute.
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recommended sentence was to be imposed to run concurrent with or
consecutive to sentences imposed in state court for the same
conduct.
The district court conditionally accepted the plea agreement
and ordered the preparation of a presentence report (PSR).
Considering the defendant's use of a firearm, and the physical
injury and financial loss suffered by the victim, as well as Bell's
extensive criminal history, the PSR yielded a sentencing range of
210 to 262 months imprisonment.2 The PSR also noted that an upward
departure might be warranted under section 5K2.3 of the sentencing
guidelines because of the severe psychological injury suffered by
the victim.3
In a sentencing memorandum, Bell informed the district court
of the sentences imposed by the state court for the same conduct.
Bell brought to the court's attention section 5G1.3 of the
sentencing guidelines, and requested that his federal sentence be
imposed to run concurrent with his state sentences under subsection
2. The PSR applied the version of the Guidelines effective
November 1, 1992. Bell was sentenced on February 24, 1994.
Thus, the version of the Guidelines effective November 1, 1993
should have been applied. The error is insignificant, however,
because there were no substantive amendments to the applicable
provisions. All references in this opinion are to the 1993
version of the Guidelines.
3. The PSR indicated that, as a result of the offense, the
victim had been unable to return to her former employment as a
real estate agent due to extreme psychological difficulties she
encounters when having to perform functions inherent in the job,
such as driving in the car with strangers, entering empty houses,
and working alone at night. According to the PSR, the victim
requires regular psychological treatment and takes psychotropic
medications on a daily basis.
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(b) of that guideline. Bell argued that section 5G1.3 (b) should
apply because the conduct underlying the state sentences had been
fully taken into account in calculating his federal offense level.
The Government opposed Bell's request.
At the sentencing hearing, Bell, through his attorney, renewed
his request that the federal sentence run concurrent with his state
sentences. Bell pointed out that the probation officer relied on
the conduct underlying the state offenses to add fourteen levels to
his base offense level. Bell also asserted that he would serve at
least twelve and one-half years in prison on the state charges, and
that unless the court ordered the sentence to run concurrently, he
would serve a total of at least thirty-two and one-half years for
the same offense.
Without addressing the applicability of section 5G1.3, the
district court rejected Bell's request, stating:
[I]f you had tried this case and Mr. Bell had been found
guilty . . . I would be giving him the maximum punishment
of 25 years. And I would have, without any hesitation,
stacked the punishment. So by the fact that he's pled
guilty and accepted his responsibility, that's the only
reason I'm accepting the plea agreement where the
government recommended the 20 years.
Because if I didn't accept it and I put this case to
trial, I would still stack these cases and have them
running consecutive to the state cases and I would give
him the maximum in this case. This is an extremely
aggravated case.4
The court then imposed the recommended twenty-year sentence to run
consecutively to Bell's state sentences. This appeal followed.
4. Record, Volume 5, at 5-6.
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II. DISCUSSION
Bell's first argument on appeal is that 18 U.S.C. § 2119 is
unconstitutional because it lacks any rational nexus with
interstate commerce, and thus is not a valid exercise of
congressional authority under the Commerce Clause. A panel of this
Court recently rejected this argument. In United States v. Harris,
25 F.3d 1275 (5th Cir.), cert. denied, 115 S. Ct. 458 (1994), we
said that "[b]ecause of the obvious effect that carjackings have on
interstate commerce, we hold that the carjacking statute is a valid
exercise of Congress's Commerce Clause powers." Id. at 1280
(citing United States v. Johnson, 22 F.3d 106 (6th Cir. 1994)).
Bell's second argument is that section 5G1.3 (b) of the
sentencing guidelines applied, and thus the district court was
required to impose the federal sentence concurrent with his state
sentences. The defendant is half right. We agree with Bell that
section 5G1.3 (b) does apply. However, Bell's federal sentence
cannot be imposed concurrently without remand for further
consideration because the district court may, in its discretion,
depart from this guideline requirement in appropriate
circumstances.
Section 5G1.3 (b) provides that
[i]f . . . 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."
5
U.S.S.G. § 5G1.3 (b).5 Application note 2 under that section
explains that
[s]ubsection (b) . . . addresses cases in which the
conduct resulting in the undischarged term of
imprisonment has been fully taken into account under
§1B1.3 (Relevant Conduct) in determining the offense
level for the instant offense. This can occur, for
example, where a defendant is prosecuted in both federal
and state court, or in two or more federal jurisdictions,
for the same criminal conduct or for different criminal
transactions that were part of the same course of
conduct.
U.S.S.G. § 5G1.3, app. note 2.
In this case, the defendant was prosecuted in both state and
federal court for the same criminal conduct. Bell correctly points
out that the PSR, adopted by the district court, took the conduct
underlying the state offenses into account, under the Relevant
Conduct guideline and the Specific Offense Characteristics under
the Robbery guideline.6 Since the state and federal charges arose
from the same criminal conduct, all of the defendant's conduct
underlying the state charges would have fallen within the
5. Subsection (b) of section 5G1.3 can apply only "[i]f
subsection (a) does not apply." U.S.S.G. § 5G1.3 (b).
Subsection (a) applies if the instant offense was committed while
the defendant was serving a term of imprisonment, or was on work
release, furlough, or escape status, or after sentencing but
before commencement of the term of imprisonment. U.S.S.G. §
5G1.3 (a). The defendant and the Government agree that
subsection (a) does not apply.
6. Specifically, the offense level calculation in the PSR
included a six level enhancement pursuant to section 2B3.1
(b)(2)(B) for the use of a firearm, a four level enhancement
pursuant to section 2B3.1 (b)(3)(B) for serious bodily injury,
and a four level enhancement pursuant to section 2B3.1 (b)(4)(A)
for the abduction of a person.
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definition of "relevant conduct" under the guidelines.7
The Government argues that because there was no offense level
enhancement for the psychological harm suffered by the victim in
this case, we should hold that the "offenses" were not "fully taken
into account in the determination of the offense level" as required
by section 5G1.3 (b). Therefore, the Government contends,
subsection (b) does not apply, and subsection (c) allowed the
district court the discretion to impose the instant sentence
consecutively. We disagree.8
7. In relevant part, section 1B1.3 (Relevant Conduct)
provides:
(a) . . . Unless otherwise specified, (i) the base
offense level . . . , (ii) specific offense
characteristics and (iii) cross references in Chapter
Two, and (iv) adjustments in Chapter Three, shall be
determined on the basis of . . .
(1) (A) all acts and omissions committed, aided,
abetted, counseled, commanded, induced, procured, or
willfully caused by the defendant . . .
that occurred during the commission of the offense of
conviction, in preparation for that offense, or in the
course of attempting to avoid detection or
responsibility for that offense; . . .
(3) all harm that resulted from the acts and omissions
specified in subsection[] (a)(1) . . . and harm that
was the object of such acts and omissions; and
(4) any other information specified in the applicable
guideline.
8. We note that even if subsection (c) were the applicable
guideline in this case, we would be required to vacate and remand
for resentencing because the district court failed to use the
methodology prescribed by subsection (c) or to explain why such a
methodology would be impracticable in this case. See United
States v. Johnson, 40 F.3d 1079, 1083 (10th Cir. 1994); United
States v. Redman, 35 F.3d 437, 441-42 (9th Cir. 1994), cert.
denied, 1994 WL 706574 (1995); United States v. Whiting, 28 F.3d
7
The dual prosecution of Bell in state and federal court for
the same criminal conduct is precisely the type of case for which
subsection (b) was designed. U.S.S.G. § 5G1.3, app. note 2. It
would significantly undermine the intent of section 5G1.3 to allow
the district court to avoid its mandatory guidance simply because
there is not a specific offense level enhancement for some element
of harm suffered by the victim. We are not unmindful of the
terrible injuries suffered by the victim in this case. However, if
subsection (b) is to apply in any case, it must be applied in this
one.
The defendant contends that because section 5G1.3 (b) applies
in this case, the district court was required to impose his federal
sentence to run concurrent with his state sentences. This argument
goes too far. Although the language of subsection (b) is
mandatory, it is well established in this circuit that the district
court retains the discretion to impose a sentence consecutively,
even where this guideline applies, by means of a departure. United
States v. Gross, 979 F.2d 1048, 1051-52 (5th Cir. 1992); see also
United States v. Martinez, 950 F.2d 222, 226 (5th Cir. 1991), cert.
denied, 112 S. Ct. 1984 (1992); United States v. Miller, 903 F.2d
341, 345-49 (5th Cir. 1990).
Therefore, the district court could have departed from the
guidelines requirement that the sentence be imposed concurrently,
and could have, in its discretion, imposed the sentence to run
1296, 1311 (1st Cir.), cert. denied, 115 S. Ct. 378 (1994);
United States v. Coleman, 15 F.3d 610, 612 (6th Cir. 1994);
United States v. Gullickson, 981 F.2d 344, 349 (8th Cir. 1992).
8
consecutively to all or part of the defendant's state sentences.
However, "[w]hen the district court departs from the guideline
range, the departure must be reasonable, and the court must offer
reasons justifying the departure in terms of the policies
underlying the sentencing guidelines." United States v. Anderson,
5 F.3d 795 (5th Cir.), cert. denied, 114 S. Ct. 1118 (1993). In
this case, the district court failed to offer any indication that
it was departing from the guidelines, much less reasons expressly
justifying a departure. Since a departure is the only means by
which the district court could have imposed the instant sentence
consecutively, we must remand for an appropriate justification.
We note that one possible ground for departure is the apparent
psychological injury suffered by the victim. This potential basis
for departure, pursuant to guideline section 5K2.3 (policy
statement), was identified in the PSR. A departure may be
warranted under this section if a victim suffers psychological
injury "much more serious than that normally resulting from
commission of the offense." U.S.S.G. § 5K2.3, p.s. On remand, it
will be up to the district court to determine whether the
psychological injury suffered by the victim in this case meets the
standard provided by section 5K2.3.
We also note, however, that such a departure may not be
justified merely on the basis of conclusory statements found in the
PSR. United States v. Lara, 975 F.2d 1120, 1127-28 (5th Cir.
1992). In Anderson, we found a departure under section 5K2.3
sufficiently substantiated by an unrebutted letter from the victim
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describing the events in question and their effects on her life.
At the same time, we indicated that testimony by an expert in
psychology would certainly be helpful on this issue, although not
necessarily a prerequisite. 5 F.3d at 805. We express no opinion
on whether a section 5K2.3 departure might be warranted under the
circumstances in this case and leave that issue for the district
court's consideration on remand.
III. CONCLUSION
The sentence imposed by the district court is VACATED, and
this case is REMANDED for resentencing consistent with this
opinion.
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