United States v. Fortier

F I L E D
United States Court of Appeals
Tenth Circuit
PUBLISH
MAR 16 2001
UNITED STATES COURT OF APPEALS
PATRICK FISHER
Clerk
TENTH CIRCUIT

UNITED STATES OF AMERICA,

Plaintiff - Appellee,
v. No. 99-6381

MICHAEL J. FORTIER,

Defendant - Appellant.

Appeal from the United States District Court
for the Western District of Oklahoma
(D.C. No. 95-CR-111-VB)

Michael G. McGuire, Tulsa, Oklahoma for the Defendant-Appellant.

Sean Connelly, Special Attorney to the United States Attorney General, Denver,
Colorado for the Plaintiff-Appellee.

Before EBEL, PORFILIO, and LUCERO, Circuit Judges.

LUCERO, Circuit Judge.

Defendant-appellant Michael Fortier pleaded guilty to several offenses

stemming from his involvement with Timothy McVeigh and Terry Nichols prior

to their bombing of the Murrah Federal Building in Oklahoma City in 1995.

Fortier appealed his original sentence, and this Court vacated and remanded for
resentencing. See United States v. Fortier , 180 F.3d 1217, 1232 (10th Cir. 1999).

On remand, Fortier was resentenced to an identical prison term and a reduced

fine. Fortier appeals his second sentence claiming the district judge was

vindictive and erred in applying an upward departure. 1
Exercising jurisdiction

pursuant to 28 U.S.C. § 1291 and 18 U.S.C. § 3742, we affirm.

I

Our prior opinion, see Fortier , 180 F.3d at 1219-23, discusses the facts

culminating in Fortier’s guilty plea and original sentencing; we reiterate relevant

facts for context. Fortier knew McVeigh and Nichols from their service together

in the Army. McVeigh informed Fortier of the plan to bomb the Murrah building

and provided him with many details of the operation months before the bombing.

Although Fortier refused to take part in the conspiracy and has not been charged

as a co-conspirator, he did sell some firearms Nichols had stolen from a gun

collector and gave McVeigh $2000 of the proceeds. The government has

1
Fortier also challenged the district court’s application of the U.S.S.G.
§ 2K2.1(c)(1) cross reference. The district court’s reasoning regarding
application of the cross reference is unclear. Although stating that the cross
reference applied, the court’s calculation of Fortier’s offense level started with
the offense level for the firearms offenses, rather than either of the involuntary
manslaughter offense levels. Thus, despite its suggestion to the contrary, it
appears that the district court did not utilize the § 2K2.1(c)(1) cross reference
when actually calculating Fortier’s offense level. Perhaps recognizing this,
Fortier abandoned that claim in his reply brief, stating that discussion of the issue
was “irrelevant.” (Appellant’s Reply Br. at 13.)

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stipulated that it cannot trace any of that money to specific expenditures made in

furtherance of the bombing.

After the bombing, Fortier pleaded guilty to conspiring to transport stolen

firearms in violation of 18 U.S.C. § 371, transporting stolen firearms in violation

of 18 U.S.C. §§ 922(i), 924(a)(2), making a false statement to the FBI in

violation of 18 U.S.C. § 1001, and misprision of a felony in violation of 18

U.S.C. § 4. Fortier also assisted the government in prosecuting McVeigh and

Nichols and testified against them at their trials.

At his original sentencing, the district judge sentenced Fortier to 144

months in prison and a $200,000 fine, applying the cross reference in

§ 2K2.1(c)(1) of the 1994 2
United States Sentencing Guidelines Manual to

calculate Fortier’s offense level. Section 2K2.1(c)(1) states that if a defendant

used or possessed a firearm in connection with another crime that resulted in

death, the court must apply the most analogous homicide guideline from U.S.S.G.

Chapter 2A1. The district court applied § 2A1.1, the first-degree murder

guideline.

2
All references to the United States Sentencing Guidelines are to the 1994
Guidelines Manual unless otherwise indicated. The 1994 Guidelines Manual was
the version in effect at the time Fortier committed his crimes and the one used in
his sentencing. See Fortier, 180 F.3d at 1224 n.1.

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 On appeal, this Court held that the district court erred in applying the first-

degree murder guideline and concluded that the involuntary manslaughter

guideline, “although not a perfect fit,” was most analogous to Fortier’s situation.

Fortier , 180 F.3d at 1230. Because Fortier’s base offense level without the

involuntary manslaughter cross reference was higher, the cross reference did not

apply. See id. (“The cross reference provides that the most analogous offense

guideline under Chapter 2A1 must be applied only if ‘the resulting offense level

is greater than that determined’ under the base offense level and specific offense

characteristics found in section 2K2.1.” (quoting U.S.S.G. § 2K2.1(c)(1)(B))). In

remanding for resentencing we stated: “Our decision today . . . requires the

[district] court to begin with a significantly lower [offense level] number. We

expect our holding to dramatically affect Mr. Fortier’s total offense level.” Id. at

1232.

Prior to Fortier’s resentencing, the district judge held three telephone

conferences with counsel to schedule and set the parameters of the resentencing

hearing. During the first two conferences, the hearing was rescheduled at the

request of Fortier’s counsel. At the third conference, held on September 24,

1999, Fortier’s counsel inquired whether he would have the option of calling

witnesses at the resentencing. In response, the district judge stated he “would not

anticipate that we would have any evidence,” (IV ROA at 43), or further

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allocution by either Fortier or the victims of the Oklahoma City bombing at the

resentencing hearing.

Two of the victims of the Oklahoma City bombing, appearing through

counsel, filed a brief prior to Fortier’s resentencing asking the court to impose an

upward departure. Over objection, the district judge permitted the victims’ brief

to be filed as an amicus brief. Victims’ counsel also filed a motion seeking to

participate in oral argument.

At the resentencing hearing, the district judge permitted victims’ counsel to

participate and argue the proper interpretation of the Sentencing Guidelines.

Victims’ counsel urged a substantial upward departure, but asked the court to

impose the same sentence as it had before to avoid additional litigation

concerning the appearance of vindictiveness that might arise if the court ordered

a longer sentence.

Reversing its prior statement, the court allowed defense counsel to present

witnesses, whereupon counsel stated that because the court had previously

indicated that no evidence would be taken at the resentencing, one of his

witnesses was out of town. The district judge asked for a proffer, but defense

counsel never made one. Defense counsel did not call his other potential witness,

Fortier’s wife, although she was present in the courtroom.

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 Fortier was resentenced to 144 months and a $75,000 fine. In so doing, the

court stated it was again applying the U.S.S.G. § 2K2.1(c)(1) cross reference,

although when calculating Fortier’s offense level the court began with the

offense level of twenty-four applicable to the firearms offenses and then departed

upward by thirteen levels. The upward departures were based on several

Sentencing Guidelines sections: § 5K2.1 (multiple deaths); § 5K2.2 (significant

physical injury); § 5K2.3 (extreme psychological injury); § 5K2.5 (property

damage); § 5K2.7 (disruption of governmental functions); and § 5K2.14

(endangerment of public health or safety). Another factor taking the case out of

the 1994 Guidelines’ heartland was the absence of the current terrorism

guideline, § 3A1.4, from the 1994 version of the Guidelines applicable to

Fortier’s case. ( See V ROA at 142 (“In 1994, the Sentencing Commission had

not envisioned a terrorist act in the United States encompassing the magnitude of

death, destruction and devistation [sic] that was experienced in the Oklahoma

City bombing.”).) Fortier’s offense level was then reduced by three levels for

timely acceptance of responsibility, see U.S.S.G. § 3E1.1, and two levels for

substantial assistance, see id. § 5K1.1. As a result of these departures and

adjustments, Fortier’s final offense level was thirty-two, a one-level decrease as

compared to his initial sentencing.

II

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 Constitutional due process guarantees prohibit judges from vindictively

imposing harsher sentences following a successful appeal. See North Carolina v.

Pearce , 395 U.S. 711, 725-26 (1969); see also United States v. Sullivan , 967 F.2d

370, 374 (10th Cir. 1992). As this Court has explained,

[t]he Constitution limits, but does not absolutely prohibit, a judge’s
power to impose a harsher sentence upon remand from an appellate
court. In [ Pearce ], the Supreme Court emphasized that due process
“requires that vindictiveness against a defendant for having
successfully attacked his first conviction must play no part in the
sentence he receives after a new trial . . . [and] that a defendant be
freed of apprehension of such retaliatory motivation on the part of
the sentencing judge.” For this reason, “whenever a judge imposes a
more severe sentence upon a defendant after a new trial, the reasons
for his doing so must affirmatively appear” to overcome a
presumption of vindictiveness.

Sullivan , 967 F.2d at 374 (quoting Pearce , 395 U.S. at 725, 726). 3
The Pearce

presumption of vindictiveness does not arise when a sentence after appeal is less

than or equal to the original sentence. See United States v. Flinn , 18 F.3d 826,

830 (10th Cir. 1994). Rather, in such a case, the defendant must present

“evidence of actual vindictiveness” to demonstrate a violation of due process. Id.

3
While Pearce itself considered a resentencing following a successful
appeal of a conviction, we have applied the prohibition against vindictive
resentencing after a successful appeal of a sentence. See United States v. Flinn,
18 F.3d 826, 828, 830 (10th Cir. 1994) (reviewing the district court’s
resentencing after remand from a successful appeal challenging application of the
Sentencing Guidelines); see also 5 Wayne R. LaFave et al., Criminal Procedure
§ 26.8(c), at 829 (2d ed. 1999).

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 Claiming that the resentencing process was plagued “with subtle but

discernable forms of vindictiveness,” Fortier argues that his current sentence is

constitutionally defective. (Appellant’s Br. at 21.) Having failed to raise this

claim below, 4 our review is for plain error. See Flinn , 18 F.3d at 830 (“Because

Defendant did not alert the sentencing judge to his vindictiveness claim, we

review only for plain error.” (citation omitted)); Sullivan , 967 F.2d at 374

(stating that when a defendant does not alert the trial judge to a vindictiveness

claim, “appellate review is limited to correcting plain errors that affect

substantial rights and threaten a miscarriage of justice.” (citation omitted)).

Under the plain error standard of review,

there must be (1) “error,” (2) that is “plain,” and (3) that “affect[s]
substantial rights.” If all three conditions are met, an appellate court
may then exercise its discretion to notice a forfeited error, but only if
(4) the error “seriously affect[s] the fairness, integrity, or public
reputation of judicial proceedings.”

Johnson v. United States , 520 U.S. 461, 467 (1997) (quoting United States v.

Olano , 507 U.S. 725, 732 (1993)) (further internal quotations and citations

omitted). However, “[w]e apply this standard of review with somewhat less

rigidity given [a] claim [that] alleges constitutional error.” United States v.

4
Fortier concedes in his reply brief that he did not raise his vindictiveness
claim below.

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Lindsay , 184 F.3d 1138, 1140 (10th Cir.) (citing United States v. Jefferson , 925

F.2d 1242, 1254 (10th Cir. 1991)), cert. denied , 528 U.S. 981 (1999) .

Relying on our previous panel’s declaration that “[w]e expect our holding

to dramatically affect Mr. Fortier’s total offense level,” Fortier , 180 F.3d at

1232, and his contention that receiving the same sentence on remand “side-

stepped” the Tenth Circuit’s opinion, (Appellant’s Br. at 21), Fortier argues that

we should apply the Pearce presumption. We decline to do so because the Pearce

presumption is inapplicable when a defendant receives the same sentence on

remand. See Flinn , 18 F.3d at 830 (“In the absence of evidence of actual

vindictiveness, resentencing will not be considered vindictive if the defendant

did not receive a net increase in his sentence.”); see also United States v. Smith ,

930 F.2d 1450, 1456 (10th Cir. 1991) (“The argument that a resentencing to the

same term of incarceration is ‘more severe’ because it is supported by different

aspects of defendant’s conduct is simply nonsensical.”).

Alternatively, absent a presumption of vindictiveness, Fortier advances

several instances of what he considers actual vindictiveness by the district court:

(1) the resentencing hearing was originally scheduled for a day on which

Fortier’s counsel had a scheduling conflict; (2) the district judge gave interviews

to and was quoted in The Daily Oklahoman newspaper; (3) the district judge

allowed victims’ counsel to participate in the resentencing process through

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briefing and oral advocacy; and (4) the district judge told Fortier’s counsel that

he would not be permitted to present witnesses, and then reversed himself the day

of the hearing, leaving Fortier’s witnesses unprepared and unavailable. Neither

the aggregate of the four reasons advanced, nor any subpart, warrants a

conclusion that the trial court was vindictive.

A. Scheduling

Fortier’s scheduling claim borders on being frivolous. Acknowledging the

conflict, the district judge scheduled pre-sentence telephone conferences to

reschedule the hearing, and moved the hearing to a day requested by Fortier’s

counsel; all of this occurred more than a month before the original hearing date

and more than two months before the rescheduled hearing actually took place.

We do not understand how counsel can claim lack of ample notice. Crediting the

trial court’s willingness to conduct telephone conferences and its prompt

rescheduling of the hearing, nothing remains to support a claim of trial court

vindictiveness.

B. Newspaper Interview

In the wake of the Tenth Circuit opinion vacating Fortier’s first sentence,

The Daily Oklahoman published an article containing an interview with the judge

responsible for sentencing Fortier:

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 [Judge] Van Bebber agreed Wednesday he has options [in
resentencing Fortier] but didn’t know if he could increase Fortier’s
sentenc[e] beyond 51 months.
“We haven’t sat down and re-evaluated the guidelines yet in
view of the opinion. I suppose I could do a lot of things. I guess I
don’t know. . . . That’s a matter I haven’t researched yet,” he said
from the courthouse in Kansas City, Kan.

Nolan Clay, Fortier’s Sentence Tossed Out , The Daily Oklahoman, July 1, 1999,

at 1. Fortier cites Judge Van Bebber’s comments as demonstrating a vindictive

state of mind.

We read Judge Van Bebber’s statements as benign: they express no

opinion, indicate no animus towards Fortier, and demonstrate only that the judge

was uncertain of his decision. Although not cited by Fortier, the government

notes that the judge’s statements may implicate Canon 3A(6) of the Code of

Conduct for United States Judges, which states that “[a] Judge should abstain

from public comment about a pending or impending proceeding in any court.”

While that language is broad, courts construing it have held that a judge’s public

comment does not create a per se appearance of bias. See In re Barry , 946 F.2d

913, 914 (D.C. Cir. 1991) (“[W]hile the district judge’s extrajudicial voicing of

his views . . . may be a violation of the Code of Conduct for United States

Judges, see Canon 3(A)(6) (1990), . . . any such violation does not necessarily

create an appearance of personal bias or partiality . . . .” (citing United States v.

Haldeman , 559 F.2d 31, 132-36 (D.C. Cir. 1976) (en banc) (per curiam))). But

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cf. United States v. Cooley , 1 F.3d 985, 995 (10th Cir. 1993) (finding that the

judge’s impartiality was questionable when he “appear[ed] on national television

to state his views regarding the ongoing protests, the protesters, and his

determination that his injunction was going to be obeyed”).

As for Fortier’s claim that “Nolan Clay, the writer, had numerous

[additional] interviews with Judge Van Bebber while this re-sentencing was

pending, as Clay advised this counsel and others,” (Appellant’s Br. at 23), Fortier

provides no affidavit from Clay or any other support for his contention that other

interviews took place. The lack of evidentiary support precludes review of that

claim. See Scott v. Hern , 216 F.3d 897, 912 (10th Cir. 2000) (“Where the record

is insufficient to permit review we must affirm.”); SEC v. Thomas , 965 F.2d 825,

827 (10th Cir. 1992) (holding that in the absence of essential references to the

record in a party’s brief, this Court will not “sift through” the record to find

support for the party’s arguments (citations omitted) ).

Perhaps, considering Canon 3A(6), Judge Van Bebber should not have

granted an interview to The Daily Oklahoman. However, given the neutral nature

of his comments, we do not discern any vindictiveness or indication of partiality,

let alone any that rises to the level of plain error.

C. Participation of Victims’ Counsel

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 The district judge’s decisions to allow counsel for two victims of the

Oklahoma City bombing to file their amicus brief and argue for an upward

departure during the sentencing hearing form the basis of Fortier’s third

allegation of vindictiveness. Fortier notes the government construed his plea

agreement as precluding the government from arguing for an upward departure, a

fact of which the district judge was aware during Fortier’s original sentencing.

Thus, the only way the district judge could receive any briefing or oral argument

on the issue of upward departures was from a third party.

We have not found, and neither party has cited, any explicit authority either

authorizing or prohibiting the kind of victim participation allowed by the district

court. The government’s arguments in support of the propriety of the

participation by victims’ counsel are unpersuasive. Morris v. Slappy , 461 U.S. 1,

14 (1983), holds that “in the administration of criminal justice, courts may not

ignore the concerns of victims.” Morris considered the interest of a

victim/witness in avoiding “the ordeal” of testifying in a third trial. That concern

is different to a material degree and much greater than that present in this case.

Victims’ counsel based their request to participate, in part, on Fed. R. Crim. P.

32(c)(3)(E). While that rule permits victims to “present any information in

relation to the sentence,” by its terms it only applies to sentencing for “a crime of

violence or sexual abuse,” and the crimes to which Fortier pleaded guilty are

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neither violent nor sexual in nature. Fed. R. Crim. P. 32(c)(3)(E); see also id.

32(f)(2) (defining “crime of violence or sexual abuse” as “a crime that involved

the use or attempted use or threatened use of physical force against the person or

property of another”). United States v. Nichols, 169 F.3d 1255, 1260, 1279 (10th

Cir.), cert. denied, 528 U.S. 934 (1999), is thus unpersuasive because Nichols,

unlike Fortier, was charged with a crime of violence as defined by Rule

32(c)(3)(E).

In the absence of any authority permitting the participation of victims’

counsel, we harbor concerns about the propriety of the district court’s rulings.

Allowing third parties to argue for harsher sentences when the government is not

permitted to do so by the terms of a plea agreement presents an opportunity for

the government to achieve indirectly what it is prohibited from doing directly.

Cf. United States v. Brye, 146 F.3d 1207, 1209 (10th Cir. 1998) (“Where the

government obtains a guilty plea predicated in any significant degree on a

promise or agreement of the prosecuting attorney, such promise must be fulfilled

to maintain the integrity of the plea.” (citing Santobello v. New York, 404 U.S.

257, 262 (1971)) (other citations omitted)). The government is entrusted with

representing the interests of society in prosecuting criminals appropriately; given

the nature of Fortier’s involvement with Nichols and McVeigh and his assistance

with the Oklahoma City bombing case, the government concluded that the

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appropriate resolution was to enter into a plea agreement with the defendant.

Because Fortier could reasonably read that agreement to foreclose arguments for

an upward departure, allowing victims’ counsel to participate upset his

expectations and undermined the benefit of his bargain.

Despite our misgivings, we nevertheless conclude that any error does not

warrant reversal of Fortier’s sentence. Most importantly, Fortier raises this claim

to show vindictiveness on the part of the district judge, an allegation which, as

stated above, we review for plain error. The dearth of law concerning the

participation at sentencing of victims and their counsel outside of the scope of

Rule 32(c)(3)(E) precludes the conclusion that the error was “plain”—it was

neither “clear and obvious” nor “contrary to well-settled law.” United States v.

Whitney, 229 F.3d 1296, 1309 (10th Cir. 2000) (citation omitted). Moreover, we

cannot determine whether victims’ counsel actually had any impact on the judge’s

resentencing decision. The Re-Sentencing Supplement to the Presentence Report

contains a lengthy discussion of sentencing options, including the grounds for

upward departure utilized by the district judge. Victims’ counsel were not

permitted to view any portion of the Presentence Report or to participate in

discussions with the probation officer in his drafting of the Report. Finally, we

note the express language of Fortier’s plea agreement: “Mr. Fortier further

understands that his sentence will be determined in accordance with the

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guidelines . . . , but that the judge may depart from those guidelines under some

circumstances” and “Mr. Fortier understands, however, that the sentencing judge

will have the sole discretion to determine the actual sentence, and the government

cannot and does not make any promises, representations or predictions regarding

what sentence the judge will impose.” (I ROA Doc. 4, Plea Agreement Letter at

4, 5.)

D. Ruling Permitting Fortier to Present Witnesses

Prior to the resentencing hearing, Fortier filed a Sentencing Memorandum

in which he objected to the district court’s pre-hearing telephone conference

denial of his request to present witnesses. At the beginning of the resentencing

hearing, the district judge noted Fortier’s objection and granted his request to

present witnesses: “You filed a sentencing memorandum . . . . [Y]ou wanted to

know if you could offer witnesses and I will permit that. And if I made an earlier

ruling when we had our telephone conference call, I’m reversing myself on that.”

(V ROA at 58.) Fortier construes the tardiness of this decision as effectively

depriving him of the chance to present two witnesses because one was out of town

and both were unprepared. Fortier had a pending objection to the judge’s prior

ruling, and he failed to make a proffer regarding the witnesses’ testimony when

given an opportunity to do so. Under these circumstances, the district judge’s

ruling in favor of Fortier was not vindictive.

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 III

In reviewing an upward departure, we examine:

(1) whether the factual circumstances supporting a departure are
permissible departure factors; (2) whether the departure factors relied
upon by the district court remove the defendant from the applicable
Guideline heartland thus warranting a departure; (3) whether the
record sufficiently supports the factual basis underlying the
departure; and (4) whether the degree of departure is reasonable.

United States v. Collins, 122 F.3d 1297, 1303 (10th Cir. 1997). “We review all

four steps of the departure analysis under a unitary abuse of discretion standard.”

United States v. Bartsma, 198 F.3d 1191, 1195 (10th Cir. 1999) (citing Collins,

122 F.3d at 1303). “[W]here the court’s decision whether to depart rests on

factual findings, the district court’s decision is entitled to substantial deference.”

United States v. Whiteskunk, 162 F.3d 1244, 1249 (10th Cir. 1998) (citations

omitted).

The fact that the district court departed upward on resentencing for the first

time does not, by itself, warrant reversal. On remand from this Court, a district

court may resentence a defendant on different grounds, considering different

enhancements or departures, as long as they are not foreclosed by the scope of the

appellate decision. See United States v. Talk, 158 F.3d 1064, 1069 (10th Cir.

1998) (holding that in resentencing after remand, “[t]he district court was only

bound by the law of the case . . . , not by its own previous refusal to depart”);

United States v. Smith, 116 F.3d 857, 859 (10th Cir. 1997) (holding that on

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remand “the district court is free to reconsider the sentencing package de novo

unless the appellate court specifically limited the district court’s discretion on

remand”).

Both parties agree that the horror of death and destruction that resulted

from the Oklahoma City bombing falls outside the Sentencing Guidelines’

heartland and can support an upward departure. However, Fortier interposes,

there is an insufficient nexus between his admitted wrongdoing and the Oklahoma

City bombing to permit an upward departure—because he was not charged as a

co-conspirator, he bears no legal responsibility for the bombing.

We have previously rejected that position. In Fortier, 180 F.3d at 1224-30,

we considered whether Fortier could be sentenced according to any of the

homicide cross references in Chapter 2A1 of the United States Sentencing

Guidelines Manual and held that Fortier did not possess the requisite mens rea,

malice aforethought, to be sentenced according to the first- or second-degree

murder or conspiracy to commit murder guidelines, see id. at 1228. We

concluded, however, that Fortier could be sentenced according to the involuntary

manslaughter guideline because

Mr. Fortier admits his conduct was tantamount to criminally
negligent involuntary manslaughter. He should have known his sale
of firearms had the capacity to further the bombing of the Murrah
Federal Building (an offense he knew for certain would result in
many deaths). A colorable argument may be made, however, given
the facts proven in this case, that his conduct bordered on

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 recklessness. There is evidence in the record from which one could
infer Mr. Fortier was actually aware of the risk but chose instead to
disregard it.

Id. at 1229-30.

While not deciding whether Fortier’s “conduct was more akin to criminal

negligence or recklessness,” id. at 1230, our prior opinion holds that Fortier bears

sufficient legal responsibility for the bombing to support an upward departure.

Several of the Guidelines relied upon by the district court for the upward

departure permit an increased sentence where the specified harm “resulted” from

the defendant’s conduct. See U.S.S.G. §§ 5K2.1 (“If death resulted . . . .”), 5K2.2

(“If significant physical injury resulted . . . .”), 5K2.7 (“If the defendant’s

conduct resulted in a significant disruption of governmental function . . . .”). We

have interpreted the words “resulted from” in the Guidelines as permitting “an

increased sentence for harms that were a ‘reasonably foreseeable’ consequence of

a defendant’s conduct” even where a defendant did not directly cause the

specified harm. United States v. Metzger, 233 F.3d 1226, 1227 (10th Cir. 2000)

(citing U.S.S.G. § 1B1.3(a)(3) and approving a four-level enhancement where an

off-duty police officer shot a bystander as the defendant attempted to flee a

robbery). Fortier well knew—in great detail—McVeigh’s and Nichols’s plans to

bomb the Murrah Building. See Fortier, 180 F.3d at 1220. Fortier also knew the

guns he sold for McVeigh and Nichols were stolen as a “fund-raiser” to offset

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expenses related to the bombing. Id. Although the government cannot directly

trace any of the proceeds from Fortier’s criminal activity, a reasonably

foreseeable consequence of giving McVeigh and Nichols $2000 of the proceeds

was to further the Oklahoma City bombing conspiracy. See id. at 1229-30

(“[Fortier] should have known his sale of firearms had the capacity to further the

bombing of the Murrah Federal Building.”). Considering these facts, the district

court did not abuse its discretion in increasing Fortier’s sentence based on the toll

of the Oklahoma City bombing. 5

5
The dissent argues that the “necessary chain of events” linking Fortier’s
crime to the Oklahoma City bombing “is not present in this case.” While we
accept the premise that there need be such a chain of events, we disagree with the
dissent’s conclusion that the chain is lacking in this case. The record reveals that
Fortier’s firearms offenses were a part of the chain of events:

(1) Fortier learned of the bombing conspiracy in September 1994. Fortier ,
180 F.3d at 1220.
(2) In November 1994, Nichols stole firearms, a crime described by
McVeigh as a “fund-raiser” for the bombing. Id.
(3) McVeigh and Fortier drove to Kansas (where the guns were stored)
from Arizona (Fortier’s home) via Oklahoma City. McVeigh showed Fortier the
intended target of the bombing and explained many details of the operation,
including the spot where the Ryder truck carrying the explosives would be
parked. Id.
(4) When Fortier received the stolen firearms, in December 1994, “[i]t was
understood between McVeigh and Fortier that Fortier could sell the firearms at
gun shows to make money.” (I ROA, Doc. 133 ¶ 5.)
(5) In January 1995, McVeigh asked whether Fortier had sold any of the
firearms. Learning that Fortier had not done so, “McVeigh became upset” and
“arranged for [Fortier] to sell the firearms.” Fortier , 180 F.3d at 1221. Fortier
sold the firearms at gun shows in February and March 1995. Id.
(continued...)

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 IV

In the absence of plain error sufficient to demonstrate vindictiveness on the

part of the district judge and because the thirteen-level upward departure was

supported by Fortier’s knowledge of the possible consequences of his actions, we

AFFIRM his sentence.

5
(...continued)
(6) “Nichols was angry” that McVeigh had given Fortier the stolen guns
and “wanted $2,000 in return.” Id. “Fortier immediately gave McVeigh $1,000”
and later gave McVeigh an additional $1000. Id. (emphasis added).
(7) Both before and after Fortier paid McVeigh, Nichols and McVeigh
were expending considerable amounts of money preparing for the bombing. The
parties’ stipulation lists some expenses: $457.48 for explosive grade ammonium
nitrate fertilizer (I ROA, Doc. 133 ¶ 1); $2780 for nitromethane racing fuel and a
handpump ( id. ¶ 2); $250 for the getaway car ( id. ¶ 8); $280.32 to rent the Ryder
truck used to house the bomb (id. ¶ 9); “hundreds of dollars” for storage sheds
(id. ¶ 11); “hundreds of dollars” for telephone calls made in furtherance of the
bombing conspiracy ( id. ); and “hundreds more” for motel rooms ( id. ).

This evidence shows that Fortier’s decisions to sell the firearms and to give
some of the proceeds to McVeigh were links in the chain of events leading up to
the bombing. Even though Fortier may not have promised to turn over the
proceeds, and even though the government cannot trace any bombing expenditure
to the money Fortier provided, there is a clear inference from this record that
Fortier sold the firearms and turned over the money—both at McVeigh’s and
Nichols’s urging—to help McVeigh and Nichols meet their considerable need for
funds to finance a criminal conspiracy about which Fortier had intimate
knowledge.

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99-6381, United States v. Fortier

PORFILIO, Senior Circuit Judge, partial dissent.

While joining the remainder of the court’s opinion, I respectfully dissent

from Part III. After reflection, I think the stipulation of facts upon which the

sentencing was based has greater importance in the propriety of upward departure

than given by either this or the district court. Courts considering whether to

approve enhancements of the nature employed by the district court have uniformly

required that the harm done to a victim be reasonably foreseeable in the

commission of the crime of conviction. In the context of the enhancements,

reasonable foreseeability exists when the crime of conviction puts in motion a

“chain of events” that ends with harm of a particular nature. Because none of the

crimes to which Mr. Fortier pled guilty did so, the horror which befell the victims

of Timothy McVeigh and Terry Nichols cannot be credited to him. For those

reasons, I believe this court should conclude the sentences were legally improper.

Prior to the original sentencing, the Government and Mr. Fortier entered

into a stipulation of facts which was submitted to the district court. In part, that

stipulation stated:

The United States has no evidence that when Fortier received the
firearms from McVeigh there was any agreement, promise or
condition that Fortier would sell the firearms and return part of the
proceeds to McVeigh and/or Nichols.

....
 The United States has no evidence tracing to any bombing
expenditure . . . the $2,000 given to McVeigh by Fortier for Nichols.
The United States also has no direct evidence that Michael or Lori
Fortier had actual knowledge that this $2,000 would be or was used
to further or facilitate the bombing conspiracy.

(emphasis added).

What makes this stipulation critical to the sentencing considerations? In

my judgment, it is because the language of the guidelines employed by the district

court to justify upward departure requires a causal link between the crimes of

conviction and the grounds for departure. I begin first by recalling the crimes to

which Mr. Fortier pled.

There were four: (1) Transportation of Stolen Firearms; (2) Conspiracy to

Transport Stolen Firearms; (3) False Statement to the FBI; and (4) Misprision of a

Felony. None of these offenses bear any patent relationship to the crimes of

which McVeigh and Nichols were convicted, nor could they have factually

resulted in the harms relied upon by the district court for upward departure.

The court relied upon five separate guideline sections to conclude Mr.

Fortier’s crimes justified upward sentencing departure. All of them specifically

require that the harms described in the particular guideline result from the crime

of conviction. For example, sections 5K2.1 and 5K2.2 respectively allow an

increase in sentence “[i]f death resulted” or “[i]f significant physical injury

resulted.” Similarly, section 5K2.3 allows an increase “[i]f a victim or victims

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suffered psychological injury much more serious than that normally resulting

from commission of the offense.” Section 5K2.5 allows an increase “[i]f the

offense caused property damage or loss not taken into account within the

guidelines.” Finally, section 5K2.7 allows enhancement “[i]f the defendant’s

conduct resulted in a significant disruption of a governmental function.” (all

emphases added). Moreover, all of the departures, except for that found in

section 5K2.7, state the extent of the increase depends in part upon the “extent to

which death or serious injury was intended or knowingly risked.” (emphasis

added).

Although United States v. Molina observed the “[c]ase law interpreting the

‘resulting from’ language of subsection 1B1.3(a)(3) is surprisingly sparse,” 106

F.3d 1118, 1123 (2d Cir. 1997), it construed this phrase to permit applying the

bodily injury enhancements in U.S.S.G. §§ 2B3.1(b)(2)(A) and (b)(2)(C) to all of

the harm that was a “reasonably foreseeable” consequence of defendant’s

conduct. Id. at 1124-25 (seven-level § 2B3.1(b)(2)(A) and four-level

§ 2B3.1(b)(3)(B) enhancements justified because co-defendants’ conduct “‘put

into motion a chain of events’ that contained the ‘inevitable tragic result’ of the

bullet being lodged in the bystander’s foot”). We adopted this reasoning in

United States v. Metzger, 233 F.3d 1226, 1228 (10th Cir. 2000), in affirming

defendant’s enhanced sentence under U.S.S.G. § 2B3.1(b)(3)(B), recognizing

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defendant’s flight and pursuit were links in the “chain of events” set in motion by

his bank robbery. See also United States v. Walls, 80 F.3d 238, 241-42 (7th Cir.

1996) (upward departure under U.S.S.G. § 2K2.1(c)(B) “if death results” based on

criminal history of illegal possession of a firearm that “resulted in” death of an

innocent bystander); United States v. Fox, 999 F.2d 483, 486 (10th Cir. 1993)

(all harm that resulted from unlawful use of unauthorized credit card included

charges her husband made “which flowed naturally from” the unauthorized use);

United States v. Fitzwater, 896 F.2d 1009, 1012 (6th Cir. 1990) (two-level

enhancement under § 2B3.1(b)(3)(A) because it is “reasonably foreseeable” that

participation in bank robbery might result in “the infliction of such an injury to a

bank teller”); United States v. Salazar-Villarreal, 872 F.2d 121, 123 (5th Cir.

1989) (defendant’s reckless flight and the resulting death of an alien and injury to

others illegally transported provided factual basis for upward departure of

sentence under §§ 5K2.1 and 5K2.2 policy statements).

Each of those cases bears a common thread making enhancement

appropriate, even though the resultant harm was not an element of the crime of

conviction. Each crime committed by a defendant started an unbroken chain of

events - a continuum - that ended in unusual harm. Even though the defendant

did not actually inflict the harm, his criminal act started an uninterrupted string of

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circumstances from which the harm resulted. A careful examination of the record

discloses that the necessary chain of events is not present in this case.

It is easy to see that the offenses of making a false statement to the FBI and

misprision of a felony are temporally disconnected and thus impossible to link to

the harm to the victims of the McVeigh-Nichols conspiracy. Indeed, they were

committed after the explosion resulted in death and injury and in no way could

have initiated the “chain of events” leading to the bombing. Because of that

temporal disconnection, neither of those crimes could have caused the injury for

the purpose of enhancement.

Although the remaining crimes of transporting stolen weapons and

conspiring to do so took place before the bombing, they had no more of a linkage

to the harm than the other two. The facts we know, augmented by the

government’s stipulation, make it difficult for me to understand how Mr. Fortier

“intended” or “knowingly risked” that his transportation of stolen firearms would

result in the bombing of the Murrah Building. Yet, the court finds this connection

in Mr. Fortier’s knowledge of the McVeigh plans.

Indeed, the court here states, “Fortier also knew the guns he sold for

McVeigh and Nichols were stolen as a ‘fund raiser’ to offset expenses related to

the bombing.” See ante, at 19 (emphasis added). Yet, even if it were proven Mr.

Fortier knew McVeigh and Nichols stole the guns to offset the expenses of their

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conspiracy, that knowledge does not supply the proper nexus. In this case, the

chain of events did not start with Mr. Fortier’s knowledge of the McVeigh-

Nichols conspiracy. In no way was it part of the continuum between the crimes of

conviction and the harm to the victims. Indeed, it was collateral to the critical

events, and the government has conceded as much.

First, the government’s stipulation admits there is no evidence of any

agreement between Fortier, McVeigh, and Nichols that Mr. Fortier was to sell the

firearms when he received them. Second, Mr. Fortier was not a party to the theft

of the guns nor to the supposed agreement to sell them and use the proceeds to

further the conspiracy. Moreover, he only acquired a portion of the stolen guns as

consideration for his agreement to accompany McVeigh to Kansas long after the

guns had been stolen. United States v. Fortier, 180 F.3d 1217, 1220 (10th Cir.

1999). The evidence suggests Mr. Fortier’s interest in the guns was not to further

the bombing conspiracy, but to fatten his own wallet. Indeed, with McVeigh’s

cooperation, he transported his share of the guns to Arizona where he kept them

for at least two months. It was only when McVeigh demanded he do so, he sold

some of them at local gun shows. Id. at 1221. Although it is unclear how much

money all these sales accounted for, we know Mr. Fortier ultimately gave

McVeigh $2,000 assumably to transfer to Nichols. Id. We also know he made

$2,100 from the first sale and conducted at least three sales, from which it may

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logically be assumed he made more than the $2,000 he gave to McVeigh. Finally,

we do not know what Nichols did with the money he supposedly received from

McVeigh, leading to the third critical point upon which I base my disagreement.

The government has stipulated there is “no evidence tracing to any bombing

expenditure . . . the $2,000 given to McVeigh by Fortier for Nichols.” Nor is

there anything other than conjecture that links the $2,000 to the bombing.

I think these facts lead to only one conclusion. There is simply no

evidentiary basis within the record of this case for this court’s conclusion the

harm suffered by the Murrah Building bombing victims was “foreseeable” in the

commission of the crimes of which Mr. Fortier stands convicted. Without a

factual nexus between crime and harm, that is, without evidence the harm was but

a part of the continuum of events flowing from the crimes of conviction, there is

no factual ground upon which foreseeability can be based.

As I view the paradigm upon which the district court relied, it is this: (1)

Mr. Fortier knew McVeigh and Nichols were guilty of conspiring to bomb the

Murrah Building, and indeed knew of the intimate details of how that crime was

to be carried out; (2) he knew McVeigh and Nichols stole guns to help finance

their crime; (3) Mr. Fortier came into possession of some of those guns; (4) the

crimes committed by McVeigh and Nichols and their results were uncomparably

horrific; (5) even though the crimes of which Mr. Fortier was convicted had no

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factual connection with that horror, his associations and the harm suffered by the

victims require he be punished far more severely than called for by the crimes of

conviction. I can neither accept nor approve this view.

Indeed, the chain of events described in the court’s footnote 5, which relies

on this paradigm, has a facial logic, but it overlooks the necessity for

commencing the chain with the crimes of conviction. The most notable

discrepancy is that two of the crimes, misprision of a felony and making an

untruthful statement to the FBI occurred after the bombing took place. There

simply is no nexus between crime and harm in these instances. Although the

court finds the nexus to the remaining crimes in Mr. Fortier’s prior knowledge of

the McVeigh-Nichols conspiracy, that knowledge only becomes significant if Mr.

Fortier took the stolen guns to sell them for McVeigh and Nichols. The court

assumes this was the situation, but the evidence obviates that assumption.

It is undisputed Mr. Fortier received some of the weapons for the limited

purpose of paying him consideration for his accompanying McVeigh to Kansas.

Fortier, 180 F.2d at 1220. There is no evidence that McVeigh gave that portion

of the stolen guns to Mr. Fortier to sell to raise funds for the bombing conspiracy.

Indeed, it was only after Nichols complained to McVeigh about his need for

money that McVeigh asked Mr. Fortier to start selling guns in his possession. Id.

at 1221. When coupled with the government’s inability to establish that the

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money Mr. Fortier gave McVeigh was used to offset expenses of the bombing

conspiracy, the receipt of the weapons by Mr. Fortier and their subsequent sale

cannot be part of a logical chain between his prior knowledge of the bombing

conspiracy and the ultimate death and destruction. I do not believe there is a

factual basis for the court’s assumption. Moreover, I do not believe the gap in the

logical chain of events between the crimes of conviction and the harm to the

victims can be either ignored or explained. As I view the record, it is only

surmise that supports the court’s conclusion that the harm was foreseeable in the

commission of his crimes.

I do not ignore the repugnance of the crimes of McVeigh and Nichols, nor

do I minimize the pain, suffering, and damage visited upon their victims.

Nonetheless, under our present guidelines, I believe those circumstances

themselves do not justify the sentences meted out by the district court. I believe

those sentences are contrary to law, and I would reverse and remand once again

for resentencing.

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