United States Court of Appeals
For the First Circuit
No. 05-1142
UNITED STATES OF AMERICA,
Appellee,
v.
TIMI WALLACE,
Defendant, Appellant.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF RHODE ISLAND
[Hon. William E. Smith, U.S. District Judge]
Before
Lipez and Howard, Circuit Judges,
and Cyr, Senior Circuit Judge.
Judith H. Mizner, Federal Defenders Office, District of
Massachusetts, for appellant.
Robret Clark Corrente, United States Attorney, with whom
Domald C. Lockhart and Lee H. Vilker, Assistant United States
Attorneys, were on brief for appellee.
August 14, 2006
LIPEZ, Circuit Judge. Timi Wallace was convicted by a
jury of charges related to the armed robbery of a firearms store in
Providence, Rhode Island. The district court imposed a 25-year
sentence, 9 years more than the high end of the guidelines range
calculated in the pre-sentence report. On appeal, Wallace
challenges his conviction on several grounds, including errors in
the prosecutor's cross-examination of the defendant and closing
argument, the admission of certain evidence, and errors in the
district court's jury instructions.
Wallace also challenges his sentence, imposed shortly
after United States v. Booker, 543 U.S. 220 (2005), was decided.
Wallace argues that the sentence is based on legal errors in the
district court's calculation of the advisory guidelines range and
its application of guidelines factors to justify an upward
departure from the advisory guidelines range. Wallace also
challenges the reasonableness of his sentence under the sentencing
factors set forth in 18 U.S.C. § 3553(a).
We affirm Wallace's conviction, but remand for re-
sentencing based on errors in the district court's application of
guidelines provisions to depart upward from the advisory guidelines
range.
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I.
A. The robbery
On September 25, 2000, a man posing as a customer entered
D&B Guns, a federally-licensed firearms dealership in Providence,
Rhode Island. The store's owner, Donn DiBiasio, and his assistant,
Donna Gallinelli, were working at the store that day.1 The
customer, later identified as Nickoyan Wallace ("Nickoyan") (a
brother of the defendant), asked to see certain ammunition clips
for a semi-automatic pistol. After Gallinelli walked behind the
counter to retrieve the keys to open the display case, a second man
entered the store, brandishing a "TEC-9" semi-automatic weapon.
DiBiasio later identified this second man as Timi Wallace, the
defendant-appellant. According to DiBiasio and Gallinelli, Timi
Wallace ran up to DiBiasio, pointed the TEC-9 at him, and shouted,
"Don't move." Gallinelli attempted to flee, at which point
Nickoyan also pulled out a handgun, pointed it at Gallinelli, and
told her to stop. Nickoyan then jumped over the counter and
ordered Gallinelli to open the display case. When Gallinelli
opened the case for the small caliber guns, Nickoyan told her to
open the high caliber gun case instead. He removed six high
caliber handguns, stuffing them into a bag. Timi Wallace told
Nickoyan to hurry up, and they fled the store with the stolen guns.
1
Another store clerk was in the basement cellar of the store,
where he hid as the events described herein unfolded. This
individual did not testify at trial.
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DiBiasio called 9-1-1. Police found a cellphone left
behind in the store and obtained phone records that showed incoming
calls from one of Nickoyan's and Timi Wallace's brothers, Kamal
Wallace. DiBiasio provided the police with a list of the stolen
firearms. DiBiasio and Gallinelli described the men to the police
and looked at a photo spread in order to identify the perpetrators.
Nickoyan and Timi Wallace were not among those pictured in the
first set of photographs the police showed them. Gallinelli made
no selections from those pictures. DiBiasio said that two of the
pictures were possibilities, but he was not certain. One of the
pictures he flagged was that of Kamal Wallace. Approximately nine
days later, the police asked Gallinelli and DiBiasio to view
additional photo spreads, which included Nickoyan and Timi
Wallace's pictures. Gallinelli identified Nickoyan as the man who
pointed a gun at her and told her to open the display case, but did
not select Timi Wallace as the other perpetrator. DiBiasio
identified Timi Wallace as the man who pointed a gun at him, but
did not select Nickoyan as the other perpetrator.
Based on the information received, the police conducted
surveillance of a third-floor apartment at 181 Pleasant Street on
October 5, 2000, ten days after the robbery. Nickoyan was in the
apartment at the time. While the police were approaching the house
to gain entry, Nickoyan placed a phone call to Timi Wallace, who
was not in the apartment. The police arrested Nickoyan. They
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searched the apartment and found five of the six stolen handguns,
a loaded TEC-9 semi-automatic, a Florida driver's license bearing
a photograph of Nickoyan but listing a false name, two other loaded
firearms, ammunition, and cash.
The apartment also contained a variety of documents
relating to Timi Wallace, including his birth certificate, his
marriage license, a divorce decree, medical and training
certificates, a shipping invoice for a Land Rover, and family
photographs. The police later discovered that the apartment was
rented to Timi Wallace through a "straw co-renter," Lelita McKetty,
who signed her name to the lease but did not pay rent or live in
the apartment. The police believed that Timi Wallace co-signed the
lease using a false name, "Devon Lewis," and later uncovered a
Florida driver's license bearing a photograph of Timi Wallace but
issued in the name "Devon Myron Lewis."
B. The indictment and trial
On October 26, 2000, a federal grand jury sitting in the
District of Rhode Island returned a four-count indictment against
Nickoyan and Timi Wallace. Count I charged that they obtained six
firearms by robbery, in violation of 18 U.S.C. § 1951. Count II
charged that they conspired to obtain the six firearms by robbery,
also in violation of 18 U.S.C. § 1951. Count III charged that they
stole the six guns from a federally-licensed firearms dealer, in
violation of 18 U.S.C. § 922(u). Count IV charged that they
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brandished firearms during and in relation to a crime of violence,
in violation of 18 U.S.C. § 924(c)(1)(A)(ii). A jury convicted
Nickoyan on all four counts and he was sentenced to 204 months
(approximately 17 years) in prison.
Timi Wallace evaded arrest until July 2004. On August
18, 2004, a grand jury returned a superseding indictment
essentially identical to the first indictment, except that, in
response to Blakely v. Washington, 542 U.S. 296 (2004), it added
sentencing guidelines allegations.2 At the trial, both DiBiasio
and Gallinelli testified, and identified Timi Wallace as the second
2
Post-Booker, it is clear that sentencing guidelines enhancements
do not have to be found by a jury. However, in the uncertainty
following Blakely, sentencing guidelines allegations were included
in the indictment. These allegations were: (1) "During the
commission of the offenses charged in Counts 1-4 . . . the
defendant . . . did use a firearm, as described in U.S.S.G.
§ 2B3.1(b)(2)(B)"; (2) "During the commission of the offenses
charged in Counts 1-4 . . ., the defendant . . . did brandish and
possess a firearm, as described in U.S.S.G. § 2B3.1(b)(2)(B)"; (3)
"The defendant . . . did physically restrain Donna Gallinelli and
Donn DiBiasio in order to facilitate the commission of the offenses
charged in Counts 1-3 . . . and to facilitate escape, as described
in U.S.S.G. § 2B3.1(b)(4)(B)"; (4) "The object of the offenses
charged in Counts 1-3 . . . was the taking of one or more firearms,
and in the course of committing the offense charged in Counts 1-3
. . .the defendant . . . did in fact take one or more firearms, as
described in U.S.S.G. § 2B3.1(b)(6)"; (5) "The defendant . . .
possessed a high-capacity, semi-automatic firearm, as defined in
U.S.S.G. § 5K2.17, to wit an Intertec model TEC-DC9, 9mm semi-
automatic pistol, in connection with a crime of violence, as
defined in U.S.S.G. § 4B1.2(a), to wit the offenses charged in
Counts 1 and 2 . . . as described in U.S.S.G. § 5K2.17"; and (6)
"In committing the offenses charged in Counts 1-4 . . . the
defendant . . . used and possessed a weapon and dangerous
instrumentality, in a manner that endangered others, as described
in U.S.S.G. § 5K2.6."
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man who robbed D&B Guns. DiBiasio, who had been a firearms dealer
for over 40 years, testified that the gun that Timi Wallace had
pointed at his face was a particular vintage of the TEC-9 semi-
automatic, and that this gun matched the TEC-9 found in the
apartment. McKetty, the "straw" co-renter of the apartment where
the guns were found, testified that Timi Wallace asked her to co-
sign the lease and that she herself never paid the rent nor lived
in the apartment.
Timi Wallace testified in his own defense. Wallace
conceded that he had asked McKetty to sign the lease to the
apartment, where Wallace lived with Nickoyan for about two weeks in
June; that Wallace had used the Florida driver's license with the
"Devon Myron Lewis" alias; that the personal documents found in the
apartment all belonged to him; that he had been to D&B Guns on
several occasions; and that, by late 2000, he was aware he had been
charged in the robbery and thereafter lived under aliases.
However, Wallace explained that he never paid rent for the
apartment nor signed the lease under his alias or any other name;
that he had no idea how his personal documents came to be present
in the apartment; and that he was neither living in the apartment
at the time of the robbery nor when the weapons were found shortly
thereafter. Wallace testified that, in early July 2000, he moved
to Arizona with no intention of returning to Rhode Island.
Finally, he stated that, on the day of the robbery, he was staying
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at the Crosslands Hotel in Tucson, Arizona using his alias "Devon
Lewis."
The government challenged Timi Wallace's alibi. It
produced records of the Crosslands Hotel indicating that he had
checked in on September 2, 2000, but then checked out on September
13, twelve days before the robbery. When Timi Wallace then
suggested that he might have been staying at a Motel 6 across the
street, the government produced records from Motel 6 showing that
no one by his name or alias had stayed at Motel 6 during that time.
The government also introduced records from a Rhode Island shipping
company showing that Timi Wallace, under the alias "Myron Lewis,"
appeared in person in Rhode Island on September 14, 2000, paying
cash to have his Land Rover shipped to Arizona, where he did not
pick up the car until October 9, 2000, two weeks after the robbery.
The government also produced evidence of a rent payment on the 181
Pleasant Street apartment made on September 26, the day after the
robbery, issued in the name of Lelita McKetty, who had testified
that she never made rent payments on the apartment. The government
introduced records from an airline demonstrating that a "Devon
Lewis" had booked a roundtrip ticket from Providence to Phoenix,
scheduled to leave on August 30 and return on September 20,
although no "Devon Lewis" ever boarded either flight. The
government argued that this evidence undercut Timi Wallace's story
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that he had permanently relocated from Rhode Island in July 2000
and was not in Rhode Island at the time of the robbery.
On October 15, 2004, following the four-day trial, the
jury convicted Timi Wallace on all four counts. Moreover, the jury
found beyond a reasonable doubt that each of the seven alleged
sentencing guidelines enhancements applied. Finally, the jury
found that Wallace "willfully obstructed or impeded or attempted to
obstruct or impede the administration of justice during the course
of the prosecution of this case by committing perjury."
C. Sentencing
1. The pre-sentence report
The pre-sentence report ("PSR") recommended a sentencing
range based on its application of the United States Sentencing
Guidelines ("U.S.S.G.").3 The PSR grouped Counts I and II (armed
3
The PSR applied the United States Sentencing Guidelines Manual
incorporating amendments effective November 1, 1998, explaining
that "it is most beneficial to the defendant." Typically, a
sentencing court must use the edition of the guidelines manual
effective at the time of sentencing. See United States v.
Harotunian, 920 F.2d 1040, 1041-42 (1st Cir. 1990) ("Barring any ex
post facto problem, a defendant is to be punished according to the
guidelines in effect at the time of sentencing."). However, we
presume that the probation office here was attempting to avoid the
ex post facto concerns that are implicated when amendments to the
sentencing guidelines, made after the underlying offense was
committed, would increase the sentence for that offense. See United
States v. Maldonado, 242 F.3d 1, 5 (1st Cir. 2001) ("[W]e
ordinarily employ the guidelines in effect at sentencing only where
they are as lenient as those in effect at the time of the offense;
when the guidelines have been made more severe in the interim, the
version in effect at the time of the crime is normally used, as a
matter of policy and to avoid any hint of ex post facto increase in
penalty."). In any event, neither party here objected to the use
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robbery and conspiracy to commit armed robbery) and found a base
offense level of 20 under the sentencing guidelines. It then
applied a two-level enhancement for the physical restraint of
victims under U.S.S.G. § 2B3.1(b)(4)(B); a one-level enhancement
for theft of a firearm under U.S.S.G. § 2B3.1(b)(6); and a two-
level enhancement for obstruction of justice through perjury at
trial under U.S.S.G. § 3C1.1. The adjusted offense level for
Counts I and II was 25.
For Count III (theft of a firearm from a licenced
firearms business), the PSR found a base offense level of 20. It
then applied a three-level enhancement, because the number of
firearms unlawfully received or possessed during the offense was
between 8 and 12, under U.S.S.G. § 2K2.1(b)(1)(C); a two-level
enhancement, because firearms were stolen, under U.S.S.G. §
2K2.1(b)(4); a two-level enhancement, for physical restraint of
victims, under U.S.S.G. § 3A1.3; and a two-level enhancement, for
obstruction of justice through perjury at trial, under U.S.S.G. §
3C1.1. The adjusted offense level for Count III was 29.
Since Counts I-III involved the same victims and a common
scheme or plan, the PSR calculated the adjusted offense level for
these counts at 29, taking the higher of the two adjusted offense
of the 1998 guidelines manual edition at sentencing or on appeal.
We therefore apply the 1998 edition of the guidelines manual and
will indicate, where necessary, if the provisions of the manual
cited at sentencing have changed in the current edition.
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levels pursuant to U.S.S.G. § 3D1.2(b). Count IV (brandishing a
firearm in violation of 18 U.S.C. § 924(c)(1)) mandates a seven-
year (84 months) consecutive term.
Addressing the defendant's criminal history, the PSR
noted that he had no criminal convictions, and accordingly
designated a criminal history category of I. The criminal history
category, in combination with the adjusted offense level of 29,
yielded a guidelines sentencing range of 87-108 months on Counts I-
III, running consecutively with the 84 months mandated under Count
IV. The PSR mandated a sentence at the high end of the guidelines
range, noting "several aggravating factors in the defendant's
history," including that the offense was "particularly serious and
brazen," and that the defendant has a pending murder charge and was
a fugitive from justice when this offense was committed. The PSR
also stated that the district court might consider applying a
sentencing enhancement under U.S.S.G. § 5K2.17 for using a firearm
in connection with a crime of violence, although it noted that
"those factors were used in calculation of the defendant's base
level offense."
The defendant objected to the PSR's inclusion of several
enhancement provisions, including the enhancements for obstruction
of justice, restraint of victims, possession of 8 firearms during
the commission of the offense, and possession of stolen firearms.
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He also objected to the lack of a downward departure based on his
minimal role in the offense.
2. Sentencing hearing
At sentencing, the defendant requested a sentence at the
low end of the PSR's recommended guidelines range. The government
recommended a sentence in the middle of the guidelines range, 100
months, with a seven-year consecutive sentence. The district court
rejected the parties' recommendations, concluding that the
guidelines range recommended in the PSR was insufficient in this
case:
[T]he Supreme Court has made clear that the
application of the guidelines are advisory.
However . . . the Court has instructed
district courts to consult the guidelines and
to take them into account in sentencing. I
have consulted the guidelines in this case.
I've consulted them in great detail. And it
appears to this Court that the guidelines,
that even when I look at the high end of the
guideline range as applied to Counts I to III
and the seven years added for Count IV do not
yield a sentence that is sufficient in my view
to meet the objectives of the Sentencing
Reform Act at § 3553(a).
The court then considered a number of factors, including the nature
of the guns stolen, Wallace's flight from justice, the terror
inflicted upon the victims, and Wallace's commission of the crime
while under indictment for another felony. After describing how
these factors fit into several grounds for upward departures in the
sentencing guidelines, the district court departed upward five
levels to an offense level of 34, and calculated a new criminal
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history category of III. The court imposed 216 months for Counts
I and II, 120 months for Count III to be served concurrently with
Counts I and II, and 84 months for Count IV to be served
consecutively with Counts I-III. In total, the district court
sentenced Timi Wallace to 300 months, or 25 years in prison. On
appeal, Wallace challenges his conviction and his sentence.
II.
A. Conviction
Wallace challenges his conviction on four grounds.
First, he argues that the government improperly cross-examined him
on the credibility of other witnesses' testimony. Second, he
argues that the prosecution's closing argument contained several
errors that unfairly prejudiced him. Third, he argues that the
district court erred in admitting evidence of an airline
reservation for a flight that was never taken. Fourth, he
challenges the district court's jury instructions on the elements
of the § 924(c) count, flight as evidence of consciousness of
guilt, and reasonable doubt.
1. Cross-examination about other witnesses' testimony
Wallace argues that the government improperly cross-
examined him about whether the testimony of other trial witnesses
was "wrong" or "mistaken" and whether he "disputed" or "disagreed"
with that testimony. Wallace contends that this line of
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questioning was an inappropriate incursion into the jury's role of
determining credibility.
Because the defendant did not object to this questioning
at the time of the trial, we review this argument for plain error.
See United States v. Gaines, 170 F.3d 72, 82 (1st Cir. 1999). "To
prevail on a claim of plain error, [the defendant] bears the burden
of showing that (1) an error occurred, (2) the error was clear or
obvious, (3) the error affected his substantial rights, and (4) the
error also seriously impaired the fairness, integrity, or public
reputation of judicial proceedings." United States v. Medina-
Martinez, 396 F.3d 1, 8 (1st Cir. 2005).
We find no plain error here. To be sure, "it is improper
for an attorney to ask a witness whether another witness lied on
the stand. Underlying this rule is the concept that credibility
judgments are for the jury, not witnesses, to make." United States
v. Thiongo, 344 F.3d 55, 61 (1st Cir. 2003) (internal citations
omitted). However, we "also [have] clarified that asking whether
a witness was 'wrong' or 'mistaken' is proper because the witness
is not required to choose between conceding the point or branding
another witness as a liar." Id. (emphasis added, internal
quotation marks and citation omitted); see also United States
v. Gaind, 31 F.3d 73, 77 (2d Cir. 1994) ("Asking a witness whether
a previous witness who gave conflicting testimony is 'mistaken'
highlights the objective conflict without requiring the witness to
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condemn the prior witness as a purveyor of deliberate falsehood.").
Here, the prosecution's questioning of Wallace did not cross the
line. He did not ask Wallace whether any of the other witnesses
"lied." Instead, he pushed Wallace on how his story comported with
other witnesses' conflicting statements. There was no error.
2. Closing argument
Wallace advances four arguments of error in the
prosecution's closing argument. First, he claims that the
prosecution's reference to Wallace's flight from Rhode Island and
his use of aliases as consciousness-of-guilt evidence was
misleading because, as the government knew, Wallace had been
charged with a felony offense (the murder of his brother Tasfa) six
months prior to the robbery. Second, he asserts that the
prosecutor misstated the defendant's testimony about how he got his
Florida license with the alias. Third, he says that the prosecutor
misstated his testimony about his phone conversation with Nickoyan.
Fourth, he argues that the prosecutor erred by referring to the
TEC-9 admitted into evidence as the TEC-9 used in the robbery.
Because the defendant failed to raise any of these objections to
the closing argument at trial, we review for plain error. See
United States v. Ortiz, 447 F.3d 28, 35 (1st Cir. 2006).
a. Reference to flight and aliases as evidence of
consciousness of guilt
During closing arguments, the prosecution argued that the
defendant had fled, under an alias, because he had been involved in
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the Rhode Island robbery. The defendant argues that the prosecutor
improperly invoked this argument because he knew that the inference
of consciousness-of-guilt in the robbery case was undermined by
evidence not available to the jury, namely, a pending murder
charge. Although the jury was not aware of this fact, Timi and
Nickoyan Wallace were charged with the murder of their brother in
Massachusetts in March 2000, several months before the robbery.
According to the defendant, the murder charge was arguably the real
cause of his flight and use of aliases. The defendant argues that
the prosecutor's remarks were therefore misleading. See United
States v. Udechukwu, 11 F.3d 1101, 1106 (1st Cir. 1993) (noting
that it is improper for a prosecutor "to imply reliance on a fact
that the prosecutor knows to be untrue"); see also United States v.
Blueford, 312 F.3d 962, 968 (9th Cir. 2002) ("[I]t is decidedly
improper for the government to propound inferences that it knows to
be false, or has very strong reason to doubt.").
We have previously noted that "[f]light evidence is
controversial and must be handled with care." United States v.
Benedetti, 433 F.3d 111, 116 (1st Cir. 2005); see also United
States v. Hernandez-Bermudez, 857 F.2d 50, 54 (1st Cir. 1988) ("We
urge . . . that courts exercise caution in admitting this type of
evidence. . . . [A]t least in many cases, [flight] evidence is only
marginally probative as to the ultimate issue of guilt or
innocence." (internal quotation marks and citations omitted)). The
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specific facts of this case, where a pending prior felony charge
could explain the defendant's actions, illustrate the need for
caution in the use of consciousness-of-guilt evidence.
However, we have rejected, in United States v. Boyle, 675
F.2d 430 (1st Cir. 1982), the argument that evidence of the use of
an alias may never support an inference of consciousness-of-guilt
when another charge is pending. See id. at 432-33. In that case,
the defendant argued that the court erred in admitting evidence of
his use of an alias in light of outstanding warrants for other
crimes that he was seeking to evade prior to the robbery for which
he was currently at trial. Id. at 432. In considering his
argument, we rejected a broad rule that would bar alias evidence
whenever a defendant commits more than one crime, noting that
"[s]uch a rule would ignore the substantial possibility that the
defendant is using the alias to evade detection for all his crimes,
including the one charged." Id. at 433. Focusing on the specific
facts in Boyle, we concluded that the district court did not err in
admitting the alias evidence in the robbery trial, noting that the
defendant had used his alias within days of the alleged robbery and
that it was reasonable to infer "that the defendant was seeking to
conceal his true identity from police investigating this fresh
crime." Id. at 432.
Examining the specific facts here, we also find no error.
The record supports the prosecution's theory that Wallace's flight
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and use of aliases were relevant consciousness-of-guilt evidence as
to both the robbery and the murder charges. While Wallace may have
fled Massachusetts and used an alias prior to the robbery to evade
the murder charge, the record evidence also indicates that Wallace
fled Rhode Island under an alias after the robbery and that he
remained in flight and continued to live under an alias after he
received a call from his brother when the police were arresting him
for the robbery.
At the very least, the prosecutor's reference to the
flight and use of an alias do not constitute plain error. Any
overstatements by the prosecution in its closing were mitigated by
the district court's careful instructions that flight did not
necessarily reflect a guilty conscience and that the jury "should
consider that there may be reasons for Timi Wallace's actions that
are fully consistent with innocence." Furthermore, given the
crushing weight of the other evidence against the defendant in this
case (including eyewitness identification and the recovery of five
of the stolen guns and the weapon allegedly used in the robbery in
his apartment), we cannot conclude that any error here affected the
defendant's substantial rights. See United States v. Morales-
Cartagena, 987 F.2d 849, 854 (1st Cir. 1993) (concluding that
prosecutor's misstatements in closing argument did not constitute
plain error because they were, "in relation to the body of evidence
received during trial, relatively insignificant").
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b. Misstatement of defendant's testimony about the
Florida license
The defendant argues that the prosecutor misstated his
testimony when the prosecutor argued that the defendant "doesn't
really remember who got him the [Florida] license or who gave it to
him," calling into question the defendant's credibility. The
defendant asserts that he testified in clear terms that he obtained
his license from Nickoyan. However, the record supports the
prosecutor's characterization of the defendant's testimony. When
asked "Do you know who got this license for you?" Wallace replied,
"No." While he testified that he gave his brother the photographs
that were used to make the license, he stated that he "guess[ed]"
that his brother "had a friend down there" but he had "no idea how
that person went about getting this license." In light of this
testimony, the prosecutor's statement was not improper.
c. Misstatement of defendant's testimony about his
brother's phone call
In his closing argument, the prosecutor implied that the
jury should be skeptical of the defendant's testimony about his
phone conversation with his brother Nickoyan the night Nickoyan was
arrested. The prosecutor noted that, "in the middle of the night
on October 5th, the most urgent call you could possibly imagine,
three o' clock in the morning he calls him, 'The police are
surrounding my building. What should I do?' He testifies that –
you know, they didn't really talk about that. They went on to
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other, I guess, more pressing things." The defendant argues that
the prosecutor misstated his testimony about his brother's phone
call. Wallace argues that he testified that he had no idea where
his brother called from and that he refused to adopt the
prosecutor's characterization of the conversation as one in which
his brother said there were cops surrounding his building.
We find no error here. The record demonstrates that when
asked what he spoke to his brother about, if not Nickoyan's
impending arrest, Wallace stated "I can't recall. I mean, what I
remember it was very brief." Wallace stated that he remembered
Nickoyan telling him that he (Nickoyan) was in trouble, but Wallace
asserted that Nickoyan did not tell him the nature of this trouble,
or, as far as Wallace could remember, anything about the police
surrounding the building. Thus, the prosecution's characterization
of Wallace's testimony was not plainly erroneous.
d. Reference to the TEC-9 recovered from the apartment
as the TEC-9 possessed by the second man in the robbery
The defendant argues that the prosecutor erred by
repeatedly referring to the TEC-9 admitted into evidence (taken
from the 181 Pleasant Street apartment) as the TEC-9 used in the
robbery. He argues that the gun in evidence had no particular
characteristics to distinguish it from any other TEC-9 and could
not be connected by the prosecution to the TEC-9 used in the
robbery.
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We find no error here, plain or otherwise. There was
ample evidence to support the government's argument that the TEC-9
recovered from the apartment was the same TEC-9 used in the
robbery. DiBiasio, a firearms dealer with 40 years of experience,
testified that the gun pointed at his face was a particular vintage
of the TEC-9 semi-automatic and that it matched the gun recovered
from the apartment. In addition, the TEC-9 recovered from the
apartment was found there with five of the six stolen handguns from
the robbery. This evidence is enough to support the government's
argument.4
3. Airline reservation evidence
At trial, Wallace objected to the evidence of an airline
flight reservation as irrelevant under Fed. R. Evid. 401 and 402.5
On appeal, he also contends that the evidence was unfairly
4
Wallace also argues that the totality of the errors that he
alleged in the cross-examination and the closing argument
constitutes clear and obvious error. See United States v.
Sepulveda, 15 F.3d 1161, 1195-96 (1st. Cir. 1993) ("[I]ndividual
errors insufficient of themselves to necessitate a new trial, may
in the aggregate have a more debilitating effect."). Because we
have concluded that there has been no error, his totality-of-errors
argument also fails.
5
Fed. R. Evid. 401 defines "relevant evidence" as "evidence having
any tendency to make the existence of any fact that is of
consequence to the determination of the action more probable or
less probable than it would be without the evidence." Fed. R.
Evid. 402 states in part that "[e]vidence which is not relevant is
not admissible."
-21-
prejudicial under Fed. R. Evid. 403.6 We review the preserved Fed.
R. Evid. 401 and 402 objection for abuse of discretion. See United
States v. Richardson, 421 F.3d 17, 37 (1st Cir. 2005). We review
the unpreserved Fed. R. Evid. 403 objection for plain error. See
United States v. Cotto-Aponte, 30 F.3d 4, 6 n.1 (1st Cir. 1994).
The district court admitted evidence of a Southwest
Airlines reservation made on August 28, 2000 for a roundtrip flight
on August 30, 2000 from Providence, Rhode Island, to Phoenix,
Arizona, scheduled for return on September 20, 2000, in the names
of Devon Lewis and James Coleman.7 The flights were never taken
and there was no evidence as to who made the reservation.
Wallace argues that the evidence should have been
excluded as irrelevant because "there was no foundation linking him
to that reservation." On the contrary, there was ample foundation
linking Wallace to the reservations. The flight reservation was
made in his alias and in the name of a man whom Wallace asserts is
his cousin. Furthermore, Wallace admitted in his testimony that it
was "possible" that he made a flight reservation to Arizona in this
time period. Thus, the flight reservation was adequately linked to
Wallace. As the government argues, the flight reservation,
6
Fed. R. Evid. 403 states: "Although relevant, evidence may be
excluded if its probative value is substantially outweighed by the
danger of unfair prejudice, confusion of the issues, or misleading
the jury, or by considerations of undue delay, waste of time, or
needless presentation of cumulative evidence."
7
According to the defendant, James Coleman is one of his cousins.
-22-
although never used, had some relevance towards undermining
Wallace's claim that he had permanently relocated to Arizona at
some point prior to the date of the reservation. The district
court did not abuse its discretion in admitting this evidence over
the defendant's Fed. R. Evid. 401 and 402 objection.
On appeal, the defendant also argues that the evidence
should have been excluded under Fed. R. Evid. 403 because its
probative value, if any, was outweighed by its unfairly
prejudicial impact. He argues that "[i]ts only possible use could
have been to improperly undermine defendant's contention that he
was in Arizona from July 2000 through October 2000." The
government argues that there was nothing unfair about asking the
jury to draw this inference against the defendant's alibi. We
agree. In any event, there was no plain error under Fed. R. Evid.
403 in admitting this evidence.
4. Jury Instructions
The defendant challenges the district court's jury
instructions on the elements of the § 924(c) count, when flight can
constitute evidence of consciousness of guilt, and reasonable
doubt. Wallace did not object to any aspect of the jury
instructions at trial. We therefore review his claims for plain
error. See United States v. Sabetta, 373 F.3d 75, 80 (1st Cir.
2004).
-23-
a. Elements of the § 924(c) count
Under 18 U.S.C. § 924(c)(1)(a)(ii),
any person who, during and in relation to any
crime of violence or drug trafficking crime .
. . uses or carries a firearm, or who, in
furtherance of such crime, possesses a
firearm, shall, in addition to the punishment
provided for such crime of violence or drug
trafficking crime -- . . . if the firearm is
brandished, be sentenced to a term of
imprisonment of not less than 7 years.
The district court quoted the full text of the statute, and then
described each element of the offense separately. One of the
elements is that the defendant used or brandished a real firearm,
not a toy or replica. See United States v. Kirvan, 997 F.2d 963,
966 (1st Cir. 1993). The court cautioned the jury that the
government was required to prove that the gun allegedly brandished
was a real gun. The court then stated that "the actual firearm or
firearms allegedly brandished by the defendant need not be
introduced, but they have been, in order for the defendant to be
guilty of the charge as long as you find beyond a reasonable doubt
[that] the defendant had a real gun on September 25, 2000."
Wallace argues that the district court essentially told
the jury that the government introduced the actual firearm
allegedly brandished by the defendant -- despite the defendant's
vigorous challenge to whether the gun produced by the government
was the same gun allegedly used in the robbery. The government
argues that the court used the term "allegedly brandished" and,
-24-
thus, "[i]t was still up to the jury to decide (a) whether Timi had
in fact brandished a gun in the store and (b) whether the gun that
he brandished was the one that had been introduced in evidence."
We agree with the defendant that the language used in
this instruction is somewhat ambiguous. The judge's choice of
words may have inadvertently lent credence to the prosecutor's
argument that the gun found in the defendant's apartment was the
same gun (not just the same model of gun) used in the robbery.
However, even assuming there was some error here, we cannot
conclude that any such error was "clear" or "obvious." The
likelihood of jury confusion was mitigated by the judge's clear
instructions on the text of the actual statute and the fact that
the written instructions provided to the jury omitted the contested
language. Furthermore, as we have already noted, there was ample
evidence that the gun introduced at trial and the gun used in the
store were the same. It is therefore unlikely that any ambiguity
in this part of the court's instructions affected the defendant's
substantial rights or the integrity of the trial.
b. Flight as evidence of consciousness of guilt
The defendant argues that the court should not have given
an instruction on when flight can constitute evidence of a
defendant's consciousness of guilt. He does not challenge the
actual language of the instruction, but contends that there was
insufficient evidence to warrant any instruction concerning
-25-
consciousness of guilt in this case. He reiterates the same
arguments he raised in his challenge to the prosecutor's reference
to his flight in the closing argument. As we concluded, supra
Part II.A.2.a, there was sufficient evidence in the record to
support an inference of consciousness of guilt from his flight in
this case. Moreover, as we also previously discussed, the court
carefully instructed the jury that flight did not necessarily
reflect a guilty conscience and that the jury "should consider that
there may be reasons for Timi Wallace's actions that are fully
consistent with innocence." In light of the evidence and the
court's careful instructions, we find no error here.
c. Reasonable doubt
The court instructed the jury:
The Government must prove facts sufficient to
prove all the elements of the offenses with
which the defendant is charged as I have
explained. Now, the Government's obligation
to prove the defendant's guilt beyond a
reasonable doubt does not mean that it must do
so beyond all doubt or beyond any conceivable
shadow of a doubt. What it means is that the
Government must prove the defendant's guilt by
a reasonable doubt.
I cannot provide you with the definition of
reasonable doubt. You know what 'reasonable'
means and you know what 'a doubt' means.
Therefore it is up to you to decide whether
the Government has proved the defendant guilty
beyond a reasonable doubt.
The defendant argues that the latter portion of this instruction,
i.e., the court's statement that it could not provide the jury with
-26-
the definition of reasonable doubt, in combination with its earlier
statement focusing on what the government does not have to prove,
demonstrated "a lack of balance [] that shifted the focus from the
government's affirmative burden to what the government need not
prove and effectively diminished the standard of proof beyond a
reasonable doubt."
We have previously explained that "reasonable doubt does
not require definition." United States v. Rodriguez-Cardona, 924
F.2d 1148, 1160 (1st Cir. 1991). We have also upheld instructions
on reasonable doubt that have explained what it does not mean:
By itself, the concept of proof "beyond a
reasonable doubt" gives the defendant a
substantial advantage, which is why defense
counsel so often repeat those words in
summation. Although the advantage is a
legitimate one, it does not seem to us one
that is likely to be undermined by an
instruction that with a few general phrases
indicates that not every doubt is a reasonable
one.
United States v. Whiting, 28 F.3d 1296, 1303-04 (1st Cir. 1994).
Considering the district court's instructions as a whole,
we are confident that it did not, as the defendant argues, diminish
the government's standard of proof. Early in the instructions, the
court stated clearly:
In order for the Government to prove the
defendant guilty of an offense, it must
convince you beyond a reasonable doubt that it
has proven each and every element of the
offense. Possibilities or even probabilities
are not sufficient. If the Government fails
to prove any one or more elements of an
-27-
offense beyond a reasonable doubt, you must
find the defendant not guilty of that
particular offense.
All told, the court mentioned the government's duty to prove the
elements of the offenses "beyond a reasonable doubt" nearly two-
dozen times. Thus, we find no error here.
B. Sentencing
Wallace raises two sets of arguments challenging the
sentence imposed by the district court. First, he argues that the
sentence was based on error in the district court's application of
the advisory guidelines, both in terms of the court's calculation
of the advisory guidelines range and its application of guidelines
provisions to depart upwardly from that range. Second, he argues
that the sentence is unreasonable because it is substantially
greater than necessary to comply with the purposes of sentencing
set forth in 18 U.S.C. § 3553(a).8
8
In summary, these factors are:
(1) the nature and circumstances of the offense and the
history and characteristics of the defendant;
(2) the need for the sentence to reflect the seriousness of
the offense, to promote respect for the law, and to provide
just punishment; to afford adequate deterrence; to protect the
public; and to provide the defendant with needed educational
or vocational training, medical care, or other correctional
treatment in the most effective manner;
(3) the kinds of sentences available;
(4) the kinds of sentence and the sentencing range established
by the Guidelines;
(5) any pertinent policy statement;
(6) the need to avoid unwarranted sentence disparities among
defendants with similar records who have been found guilty of
similar conduct; and
-28-
The district court sentenced Wallace shortly after
Booker was decided, without the benefit of subsequent developments
in our case law on the application of Booker. See United States v.
Jimenez-Beltre, 440 F.3d 514 (1st Cir. 2006) (en banc); United
States v. Scherrer, 444 F.3d 91 (1st Cir. 2006) (en banc). The
district court explained that it would begin by "consult[ing] the
guidelines and [taking] them into account in sentencing," and then
examining whether the advisory guidelines range "yield[s] a
sentence that is sufficient . . . to meet the objectives of the
Sentencing Reform Act at § 3553(a)." In carrying out this
approach, the district court first noted that the PSR had reached
a guidelines range based on an adjusted offense level of 29 and a
Criminal History Category I. Then, without completing the
guidelines analysis by determining whether an upward departure
under the guidelines was appropriate, the court explained why it
believed that the top of the PSR's recommended guidelines range did
not yield a sentence that was sufficient to meet the objectives of
18 U.S.C. § 3553(a).
After its thoughtful and careful discussion of the
factors in 18 U.S.C. § 3553(a), the district court returned to the
guidelines and described several grounds for departure, not
(7) the need to provide restitution to any victims of the
offense.
See 18 U.S.C. § 3553(a).
-29-
discussed in the PSR, that the court thought were applicable in
this case. Using these grounds for departure, the court calculated
a higher adjusted offense level and criminal history category than
was calculated in the PSR. Only then, after it had gone through
its upward departure analysis, did the court announce its sentence
–- 216 months for Counts I and II (double the high end of the
guidelines range recommended in the PSR for these counts), 120
months for Count III to be served concurrently with Counts I and
II, and 84 months for Count IV to be served consecutively with
Counts I-III. The court then reiterated that it reached the higher
sentence for Counts I and II by applying the departure provisions
in the guidelines:
So that the record is clear, the way in which
I am arriving at the departure, if you call it
that, variance, of 216 months is by an
adjustment of the offense level in this case
for the reasons that I set forth, departure
grounds that I set forth[,] from a 29 to an
offense level 34. That is a five-level
adjustment on offense level. And an
adjustment of the criminal history category to
a criminal history category of three given the
inadequacy of category one for purposes of
assessing the defendant's actual criminal
history and the reasons for that I have set
forth.
The district court explained that it "use[d] the departure
framework as a gauge or a measure of the reasonableness of the
sentence to be imposed."9
9
Although Booker used the term "reasonableness" in discussing
sentencing in the advisory guidelines scheme, we emphasize that
-30-
The district court's approach to the sentence here is not
the approach that we have adopted in this circuit post-Booker:
Although the guidelines have become advisory
rather than mandatory, determining the correct
GSR [guidelines sentencing range] remains an
appropriate starting point for constructing a
defendant's sentence. Once the sentencing
court has established the GSR (including a
consideration of any applicable departures),
it must then evaluate the sentencing factors
set out in 18 U.S.C. § 3553(a), along with any
other relevant considerations. Finally, it
must determine, in light of that assessment,
whether a sentence above, within, or below the
GSR is warranted. The goal is to fashion "a
sentence sufficient, but not greater than
necessary," for the achievement of the
legitimate objectives of sentencing.
United States v. Dixon, 449 F.3d 194, 203-04 (1st Cir. 2006)
(emphasis added and citations omitted); see also Jimenez-Beltre,
440 F.3d at 518-19. Only after the district court has conducted
the advisory guidelines analysis, including a determination of the
appropriateness of downward or upward departures under the
guidelines, should the court then decide whether the guidelines
sentence comports with the sentencing factors set forth in 18
U.S.C. § 3553(a). Here, the district court did not complete the
guidelines analysis before evaluating the § 3553(a) factors.
"reasonableness" is the standard used to review a sentence on
appeal, not the governing factor for the district court when
determining a sentence in a particular case. See Jimenez-Beltre,
440 F.3d at 519 (explaining that we review a district court's
sentence for "reasonableness," i.e., "a plausible explanation and
a defensible overall result").
-31-
Instead, it turned to those statutory factors before doing the
upward departure guidelines analysis.
The government argues that we should review the district
court's sentence solely for reasonableness under the § 3553
factors, arguing that "the fact that the court later made the
additional observation that, in effect, it had increased the
offense level from 29 to 34 and the [Criminal History Category]
from I to III, does not mean that [the defendant] received a
conventional, pre-Booker, upward departure [analysis]." We might
agree with the government's focus on the reasonableness of the
sentence, irrespective of the district court's error in the
sequence of its analysis, if the government was correct that the
defendant had not received a "conventional, pre-Booker upward
departure [analysis]." Yet the district court unmistakably
explained that it reached the 25-year sentence by applying a
departure analysis, stating that "the way at which I am arriving at
the departure, if you call it that, variance, of 216 months is by
an adjustment of the offense level in this case for the . . .
departure grounds that I set forth[.]" As we have noted, the court
began the sentencing hearing with the initial guidelines range
recommended in the PSR, which incorporated certain sentencing
enhancements. The court then considered whether a sentence at the
top of that range was consistent with the sentencing factors set
forth in 18 U.S.C.§ 3553. It did not, at that point, decide what
-32-
sentence would be consistent with those factors. To arrive at the
specific sentence, the court returned to the guidelines, stating,
"And as I indicated early on, I would use the departure framework
as a gauge or measure of the reasonableness of the sentence to be
imposed." Only after conducting an upward departure analysis did
the court arrive at the specific sentence it imposed.
Because the district court relied on an upward departure
guidelines analysis in reaching the sentence it imposed on Wallace,
we are required to review this analysis for error under the
guidelines (to the extent that Wallace raised such claims). See
United States v. Robinson, 433 F.3d 31, 35 (1st Cir. 2005)
(explaining that, post-Booker, "so far as the Guidelines bear upon
the sentence imposed, the court's calculation must be correct,
subject of course to the limitations of plain error or harmless
error review"). Thus, we must address all of the defendant's
claims of legal errors in sentencing before we consider whether the
sentence as a whole is reasonable. We review claims of legal
errors in sentencing, including errors in the interpretation of
guidelines provisions, de novo. See United States v. Rivera, 448
F.3d 82, 84 (1st Cir. 2006); Robinson, 433 F.3d at 35. We review
the district court's factual findings for clear error. See
Robinson, 433 F.3d at 38. However, because the defendant properly
preserved only one of his claims of error (the application of the
physical restraint enhancement), we review his other, unpreserved
-33-
claims of error in the guidelines analysis for plain error only.
See Rivera, 448 F.3d at 86.
a. Claims of error in the PSR's recommended advisory
guidelines range
The defendant raises two claims of error in the PSR's
recommended advisory guidelines range, which the district court
accepted and used as its starting point during sentencing. First,
the defendant argues that the district court erred in applying a
two-level enhancement for physical restraint of a victim in its
calculation under U.S.S.G. § 2B3.1(b)(4)(B) (robbery) and § 3A1.3
(unlawful possession of a firearm). Second, he argues that the
district court erred in applying a three-level enhancement for the
number of firearms involved in the offense under U.S.S.G.
§ 2K.2(b)(1). We address each claim in turn.
i. Enhancement for physical restraint of victim
The sentencing allegations in the indictment charged that
the defendant and his brother Nickoyan "physically restrained"
DiBiasio and Gallinelli, meriting a two-level enhancement under
U.S.S.G. § 2B3.1(b)(4)(B). This enhancement applies "if any person
was physically restrained to facilitate commission of the offense
or to facilitate escape" during the course of a robbery. U.S.S.G.
§ 2B3.1(b)(4)(B). Section 3A1.3 also permits a two-level
enhancement "if a victim was physically restrained" during the
course of any offense. The jury found beyond a reasonable doubt
that the victims were physically restrained during the robbery.
-34-
The PSR recommended the two-level enhancement. Wallace objected.
Applying the advisory guidelines, the district court applied the
enhancement.
Wallace argues that his conduct, and the conduct of
Nickoyan, did not constitute physical restraint of the victims
because they did not physically touch the victims or force them
into a separate and confined space. The government argues that the
enhancement was appropriate because Wallace and Nickoyan rendered
the victims physically immobile by keeping their guns pointed
directly at each victim in close range, repeatedly telling them not
to move, and because Nickoyan placed his body in the path of
Gallinelli as she tried to flee the store, blocking her escape.
These actions, the government contends, are sufficient to justify
the enhancement.
"Physically restrained" is defined in the Sentencing
Guidelines Manual as "the forcible restraint of the victim such as
by being tied, bound, or locked up." U.S.S.G. § 1B1.1, cmt.
n.1(i) (1998); see also U.S.S.G. § 2B3.1, cmt.(background) ( "The
guidelines provides an enhancement for robberies where a victim .
. . was physically restrained by being tied, bound, or locked
up."). We have observed that "[t]he examples listed in the
guideline definition of 'physically restrained' are merely
illustrative, . . . not exhaustive." United States v. DeLuca, 137
F.3d 24, 39 (1st Cir. 1998). In DeLuca, we affirmed the
-35-
application of the "physical restraint" enhancement against the
defendant because one of the defendant's co-conspirators "pushed
[the victim] as he attempted to leave the hallway in which he was
being assaulted and [another co-conspirator], throughout the
encounter, stood at the hallway door barring egress by [the
victim]. Thus, these physical restrictions on [the victim]'s
freedom of movement constituted 'physical restraint.'" Id.
Other circuits have cautioned against an overly broad
reading of the term "physical restraint". See United States v.
Parker, 241 F.3d 1114, 1118-1119 (9th Cir. 2001) ("[C]ases holding
that a defendant physically restrained his victims usually involve
a sustained focus on the restrained person that lasts long enough
for the robber to direct the victim into a room or order the victim
to walk somewhere. It is therefore likely that Congress meant for
something more than briefly pointing a gun at a victim and
commanding her once to get down to constitute physical restraint,
given that nearly all armed bank robberies will presumably involve
such acts."(internal citations omitted)); United States v. Drew,
200 F.3d 871, 880 (D.C. Cir. 2000) ("The required restraint must,
as the language plainly recites, be physical. While [the victim of
the attempted murder in this case] no doubt felt restrained by [the
defendant], she was not subject to physical restraint, as we
interpret the Guideline's use of that phrase. Any other
interpretation would effectively add the two-level adjustment to
-36-
almost any attempted murder because presumably any victim would
feel restrained if directed to move at gunpoint." (internal
quotation marks and citation omitted)); United States v. Anglin,
169 F.3d 154, 164 (2d Cir. 1999) (concluding that "displaying a gun
and telling people to get down and not move, without more, is
insufficient to trigger the 'physical restraint' enhancement" in
sentencing for armed robbery).
Some courts have found that holding someone at gunpoint
during the commission of an offense, without physical contact or
moving the victim into a separate, confined space, can constitute
"physical restraint." See United States v. Wilson, 198 F.3d 467,
472 (4th Cir. 1999) ("A gun was held to [the carjacking victim's]
head, and she was prevented from leaving her car, albeit briefly,
until [the defendants] were able to get her money and gain control
of her car. Under these circumstances, unquestionably, [the
victim] was physically restrained to facilitate the commission of
the carjacking."); United States v. Fisher, 132 F.3d 1327, 1329-30
(10th Cir. 1997) ("Physical restraint is not limited to physical
touching of the victim. Rather, physical restraint occurs whenever
a victim is specifically prevented at gunpoint from moving, thereby
facilitating the crime. Keeping someone from doing something is
inherent within the concept of restraint, and in this case one
coconspirator deliberately kept the security guard at bay by
-37-
pointing a gun directly at his head while two others looted the
teller counter." (internal citations omitted)).
In this case, while there was no physical contact between
the defendant and the victims, the facts demonstrate that the
defendant and his co-conspirator "physically restrained" the
victims. Notably, the defendant's co-conspirator jumped in front
of Gallinelli when she tried to escape, blocking her path and
ordering her at gunpoint to stop. At the same time, the defendant
kept his gun pointed directly at DiBiasio's face and chest, at
close range, commanding him to look straight ahead into the gun and
not to move. Given the intense, one-on-one nature of the armed
robbery, the close proximity of the armed robbers to the victims,
and the posturing of the defendant and co-conspirator when one of
the victims tried to escape, there is no doubt that the victims
were "physically restrained" for purposes of the guidelines
enhancement.
ii. Multiple weapons enhancement
The PSR recommended a three-level enhancement under
U.S.S.G. § 2K2.1(b)(1)(C) because the offense involved a total of
eight guns: the six guns stolen and the two guns that the defendant
and his co-conspirator brandished during the robbery.10 The
10
The 1998 Sentencing Guidelines Manual, used in the PSR, provided
for a three-level enhancement "[i]f the offense involved [8-12]
firearms." U.S.S.G. § 2K2.1(b)(1)(C) (1998). Under the current
guidelines, the unlawful receipt, possession, or transportation of
a firearm yields a four-level enhancement if the offense involved
-38-
defendant objected to the proposed enhancement on the basis that
"there was no evidence that the 2 items the robbers possessed
during the robbery were in fact firearms under application note 1
of 2K2.1." The district court rejected this reasoning, recounting
the victims' testimony at trial regarding the weapons used in the
robbery. On appeal, the defendant abandons his previous argument
and raises a different claim, arguing that there was insufficient
proof that the firearm used in the robbery was "unlawfully
possessed" for the purposes of U.S.S.G. § 2K2.1(b)(1)(C).11
An application note to U.S.S.G. § 2K2.1(b)(1)(C) explains
that "[f]or purposes of calculating the number of firearms under
subsection (b)(1), count only those firearms that were unlawfully
sought to be obtained, unlawfully possessed, or unlawfully
distributed . . . ." The defendant argues that since he had no
prior felony convictions, he did not unlawfully possess the gun
under 18 U.S.C. § 922(g)(1) (prohibiting individuals with felony
convictions from possessing a firearm). However, as the government
points out, the defendant was prohibited from possessing a firearm
under 18 U.S.C. § 922(g)(1) (prohibiting a "fugitive from justice"
from possessing a firearm) and § 922(g)(3) (prohibiting an
8-24 firearms. U.S.S.G. § 2K2.1(b)(1)(B)(2006).
11
The defendant argues that this new argument was preserved by his
original objection. Because that objection was on different
grounds, however, we deem the defendant's present argument of
error, raised for the first time on appeal, as unpreserved. See
United States v. Figuereo, 404 F.3d 537, 540 & n.3 (1st Cir. 2005).
-39-
"unlawful user of or addicted to any controlled substance" from
possessing a firearm). The defendant offers no argument as to why
his possession of a firearm would not be unlawful under these
provisions. The defendant was a fugitive from justice and,
according to the PSR, he admitted to regularly using marijuana. We
therefore find no plain error in the application of this sentencing
enhancement.
b. Grounds for upward departure
In this case, the district court's upward departure under
the advisory guidelines involved a five-level increase in the
adjusted offense level and an increase in the criminal history
category from I to III. See United States v. Figaro, 935 F.2d 4,
8-9 (1st Cir. 1991) (noting that, "in an appropriate case," an
overall departure under the guidelines may be based on an increase
in the offense level and in the criminal history category). The
defendant argues that the district court erred in applying this
upward departure because none of the six grounds for departure were
applicable in his case. We conclude that two of the grounds relied
upon by the district court were applied appropriately and four were
not.
-40-
i. Valid grounds for departure
(1) Weapons and dangerous instrumentalities
Under U.S.S.G. § 5K2.6,
[i]f a weapon or dangerous instrumentality was
used or possessed in the commission of the
offense the court may increase the sentence
above the authorized guideline range. The
extent of the increase ordinarily should
depend on the dangerousness of the weapon, the
manner in which it was used, and the extent to
which its use endangered others. The discharge
of a firearm might warrant a substantial
sentence increase.
The district court applied this upward departure, noting that "[i]n
this case, high-powered weaponry was used, a pre-banned semi-
automatic or machine-gun-like weapon [was] pointed directly into
the face of the victims."
The defendant argues that the application of this upward
departure amounts to impermissible double-counting because the
dangerous nature of the TEC-9 firearm used in the robbery was
already accounted for in the calculation of the base offense level
under U.S.S.G. § 2K2.1(a)(4)(B) (unlawful possession of
semiautomatic weapon). We reject this argument. "Sentencing
factors do not come in hermetically sealed packages, neatly wrapped
and segregated one from another. Rather, several factors may draw
upon the same nucleus of operative facts while nonetheless
responding to discrete concerns. Consequently, a degree of
relatedness, without more, does not comprise double counting."
-41-
United States v. Lilly 13 F.3d 15, 19 (1st Cir. 1994). While §
2K2.1 accounts for Wallace's unlawful possession of the TEC-9, §
5K2.6 accounts for the fact that Wallace used the weapon in a way
that endangered his victims. See United States v. Hardy 99 F.3d
1242, 1249-50 (1st Cir. 1996) ("[T]o the extent a sentencing court
supportably finds that a defendant's choice of weapons, and the
actual manner of its use, increased the danger to 'unusual' levels,
an upward departure under U.S.S.G. § 5K2.6 would be permissible.").
As the district court noted during sentencing, the
defendant pointed a semi-automatic weapon directly into the face of
DiBiasio at a close range while his co-conspirator pointed his
weapon at Gallinelli. This action presents a danger not accounted
for by the defendant's possession of the TEC-9 alone. Thus, on the
facts here, the harm underlying the calculation of the base offense
level under § 2K2.1 and the harm underlying the application of the
upward departure under § 5K2.6 are different. We therefore
conclude that the defendant's use of weapons and dangerous
instrumentalities, as the district court found, was a valid ground
for departure in this case.
(2) Disruption of a government function
Under U.S.S.G. § 5K2.7, "[i]f the defendant's conduct
resulted in a significant disruption of a governmental function,
the court may increase the sentence above the authorized guideline
range to reflect the nature and extent of the disruption and the
-42-
importance of the governmental function affected." In applying
this ground for departure, the district court made three findings
related to the consequences of Wallace's evasion of arrest and
prosecution in this case. First, it noted that Wallace's flight
from justice "caused the marshal service to engage in substantial
investigative and law enforcement activity in a four-year long
search for him." Second, the court stated that the defendant's
actions "cause[d] there to be two trials of this matter instead of
one. He would have likely been tried with his co-defendant, his
brother . . ." Third, and relatedly, Wallace's actions "forced
victims in this case to testify a second time and to relive the
terror that they were subjected to a second time."
The defendant argues that there "was no indication that
the government expended significant resources in searching for the
defendant. Nor was there a demonstration that a joint trial would
have taken place or evidence that the costs of a separate trial for
defendant were such as to warrant" the upward departure. We reject
the defendant's argument that the district court's findings were
insufficient to support the application of the departure in this
case. As the district court noted, the defendant had evaded arrest
for four years, leading to a trial that took place years after the
trial of his co-conspirator. We have previously noted that, in a
multi-defendant case, a defendant's flight from justice can disrupt
government functions:
-43-
In addition to the possible disappearance of
witnesses and the loss of evidence, the
defendant may obtain a distinct advantage over
the government by absconding in a multi-
defendant case. If the government proceeds
against the co-defendants before the defendant
is found, the defendant can assess the
strengths and weaknesses of the government's
case before returning for his own trial.
Moreover, the defendant could create
additional impediments to the government's
ability to prosecute the co-defendants. The
co-defendants could attempt to shift the blame
from themselves to the absent defendant.
Further, the defendant may place additional
burdens on the court because, in many cases,
the court will either have to conduct multiple
trials unnecessarily, or wait an indeterminate
length for the capture of the defendant to
conduct a single trial.
United States v. Moreno, 367 F.3d 1, 4 (1st Cir. 2004) (internal
citations omitted). In addition, we have noted that a long absence
can provide further support for a § 5K2.7 departure:
[T]he length of the absence can be relevant to
determining the extent to which the
defendant's conduct disrupted the judicial
process. The longer the absence, the more
likely it is that the government will have
difficulty prosecuting the defendant on his
return. In addition by absenting himself, the
defendant (if convicted) delays the day on
which he will ultimately face punishment.
Id. At the very least, the government in this case had no choice
but to conduct another trial, preparing witnesses it had already
prepared years earlier at Nickoyan's trial, in order to obtain a
conviction of the defendant. Thus, a factual basis for this
departure exists in the record. Moreover, there is no concern that
applying a departure here leads to any impermissible double-
-44-
counting. The adjusted offense level does not otherwise account
for Wallace's flight from justice. Cf. Moreno 367 F.3d at 3-5
(noting that grounds for departure under § 5K2.7 were already
accounted for in offense level for defendant's bail jumping). The
defendant does not convince us that this ground for departure is
invalid.
ii. Invalid grounds for departure
(1) Obstruction of justice
The PSR recommended a two-level enhancement for
obstruction of justice based on the defendant's perjury at trial.
During sentencing, the district court explained that an upward
departure beyond the two-level enhancement was appropriate:
That enhancement takes into account only the
perjurious testimony of the defendant at
trial. It does not account for the fact that
he was a fugitive from justice for over four
years. It does not account for the fact that
the defendant provided false information to
the Court . . . . In this case, the defendant
has not only perjured himself at trial but
provided false information to the Court and
provided false information to the Office of
Probation. And as I said, in addition to
that, he was a fugitive from justice. So in
my view, the obstruction enhancement contained
in the presentence report does not adequately
reflect the degree and number of occurrences
of obstructed behavior engaged in by this
defendant so an enhancement beyond the two
points contained in the presentence report
would be appropriate.
The defendant argues that an upward departure from the two-level
obstruction of justice enhancement was not appropriate because (a)
-45-
flight from arrest without engaging in reckless endangerment is
classified in the guidelines as the type of conduct not ordinarily
warranting an obstruction of justice adjustment and (b) the court
offered no factual predicate for its conclusions that the defendant
provided false information to the court and the probation office
beyond the testimony viewed as perjurious.12
The guidelines provide for a two-level enhancement for
obstruction of justice if
the defendant willfully obstructed or impeded,
or attempted to obstruct or impede, the
administration of justice during the course of
the investigation, prosecution, or sentencing
of the instant offense of conviction, and (B)
the obstructive conduct related to (i) the
defendant's offense of conviction and any
relevant conduct; or (ii) a closely related
offense.
U.S.S.G. § 3C1.1. The advisory guidelines further permit a
district court to depart upwardly for a factor already taken into
consideration in a specific enhancement under certain
circumstances:
A departure may be warranted in an exceptional
case, even though the circumstance that forms
the basis for the departure is taken into
consideration in determining the guideline
range, if the court determines that such
circumstance is present in the offense to a
degree substantially in excess of . . . that
12
In his appeal, the defendant does not challenge the district
court's application of the two-level enhancement for obstruction of
justice as recommended by the PSR. His challenge is limited to the
court's upward departure from that two-level enhancement.
-46-
which ordinarily is involved in that kind of
offense.
U.S.S.G. § 5K2.0(a)(3). In this case, the court identified two
main reasons for upwardly departing on grounds of obstruction of
justice: (1) the defendant's flight from justice and (2) his
extensive perjury, beyond perjury at trial.
We agree with the defendant that it was not appropriate
for the court to justify its departure from the two-level
obstruction of justice enhancement based on the defendant's flight
from justice. The commentary to the obstruction of justice
enhancements lists "avoiding or fleeing from arrest" (where
reckless endangerment was not involved) as a type of conduct which
"ordinarily do[es] not warrant application of this adjustment but
may warrant a greater sentence within the otherwise applicable
guideline range or affect the determination of whether other
guideline adjustments [e.g., Acceptance of Responsibility] apply."
U.S.S.G. § 3C1.1, cmt. n. 5(d) (emphasis added); see also United
States v. Gibson, 409 F.3d 325, 341 (6th Cir. 2005) (noting
limitations on applicability of obstruction of justice
enhancement). The court should have taken this commentary into
account when considering whether to apply this departure provision.
Cf. United States v. Zapete-Garcia, 447 F.3d 57, 60-61 (1st Cir.
2006) (noting that, although the guidelines are not binding, "[a]
policy statement [in the guidelines] . . . must be duly considered
by the district judge").
-47-
We also agree with the defendant that there was not an
adequate factual predicate, as far as we can discern from the
record, for the court's finding at sentencing that the defendant
provided false information to the court and the probation office
beyond the perjurious testimony he provided at trial. Such a
finding, if factually supported, would have been relevant to the
obstruction of justice analysis, and thus whether an upward
departure was justified. See U.S.S.G. § 3C1.1, cmt. n.4 (b), (f),
& (h) (citing, as examples of conduct typically considered to be
obstruction of justice, "providing materially false information to
a judge or magistrate" and "providing materially false information
to a probation officer in respect to a presentence or other
investigation for the court"). However, the district court never
explained what materially false information Wallace provided to the
probation office or to the court beyond his trial testimony, and we
find nothing apparent from the PSR or other parts of the record in
this case. Without any explanation from the district court, we
conclude that an upward departure from the two-level enhancement
already applicable due to Wallace's perjury at trial was not
justified.
(2) Extreme psychological injury
Under U.S.S.G. § 5K2.3,
[i]f a victim or victims suffered
psychological injury much more serious than
that normally resulting from commission of the
offense, the court may increase the sentence
-48-
above the authorized guideline range. The
extent of the increase ordinarily should
depend on the severity of the psychological
injury and the extent to which the injury was
intended or knowingly risked.
Normally, psychological injury would be
sufficiently severe to warrant application of
this adjustment only when there is a
substantial impairment of the intellectual,
psychological, emotional, or behavioral
functioning of a victim, when the impairment
is likely to be of an extended or continuous
duration, and when the impairment manifests
itself by physical or psychological symptoms
or by changes in behavior patterns. The court
should consider the extent to which such harm
was likely, given the nature of the
defendant's conduct.
The district court described how "the defendants, particularly this
defendant, terrorized their victims." Reciting at length testimony
from DiBiasio and Gallinelli, the district noted that the victims
thought they were going to die and never see their families again.
As DiBiasio testified, he had to stare into the gun pointed at his
head, thinking that he would be killed because he could identify
the defendant, face unhidden, pointing the gun at him.
The defendant argues that, while the victims were no
doubt terrified at the time of the robbery, there was no evidence
that they suffered the kind of "substantial impairment" that
ordinarily justifies the application of this departure provision.
We agree with the defendant that the district court's finding here
was clearly erroneous. The district court pointed to no evidence
of the victims' "physical or psychological symptoms or [] changes
-49-
in behavior patterns" or the "extended or continuous duration" of
any such psychological injuries. U.S.S.G. § 5K2.3. There was some
testimony at trial regarding the understandable trauma experienced
by the victims, but the vast majority of that testimony relates to
how the victims felt at the time of the robbery. The only
statement regarding the long-term after-effects of robbery was made
by DiBiasio, when he stated that he still "dream[s] about [the
defendant's] face." Other references in the testimony were made to
the fear and emotional state of Gallinelli and the store clerk who
hid in the basement, but those statements apparently refer to the
trauma they experienced at the time of, or in the days immediately
after, the robbery.
We do not in any way minimize the terror that the victims
felt or the real possibility that this traumatic event might have
longstanding psychological consequences for them. However, to
support the departure ground invoked by the court, there must be
evidence of such consequences in the record. The witnesses did not
testify about their sustained psychological injury at trial. No
medical or psychiatric records were presented. According to the
PSR, no victim impact statement appears to have been submitted by
any of the victims.
Robbery has a relatively high base offense level,
reflecting the serious nature of the offense. See U.S.S.G.
§ 2B3.1, cmt. (background). While there is evidence that this
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armed robbery was more terrifying and more personal than typical
armed robberies, there is insufficient evidence of sustained
psychological injuries suffered by the victims. Without that
evidence, there is no basis for concluding these victims' injuries,
whatever they may be, are significantly worse than the injuries
suffered by victims in the majority of armed robbery cases. Cf.
United States v. Pelkey 29 F.3d 11, 16 (1st Cir. 1994) (holding
that fraud victims' testimony about their "feelings of lack of
trust, frustration, shock, and depression" was "altogether
insufficient to permit departure for psychological injury" because
"the injuries these people suffered were no worse than that of many
fraud victims"). Given the lack of evidence, this was an invalid
ground for departure in this case.
(3) Facilitation of criminal purpose
Under U.S.S.G. § 5K2.9, "[i]f the defendant committed the
offense in order to facilitate or conceal the commission of another
offense, the court may increase the sentence above the guideline
range to reflect the actual seriousness of the defendant's
conduct." In applying this departure provision, the court noted
two factors: (1) that "there is at least some passing reference to
the involvement of the defendant and his brother with another
brother and the involvement in other criminal activity" and (2)
that "there can be no other purpose for stealing an arsenal of
weapons than the facilitation of additional criminal activity. . .
-51-
. [s]o the stealing of an arsenal of weapons is by its nature
designed to facilitate the commission of other crimes."
The defendant argues that there is no factual basis
supporting the application of this departure provision here and
that the district court erred by relying on speculation that this
crime was designed to facilitate some other crimes. We agree. The
focus of a criminal facilitation departure from a guidelines range
is on the specific criminal activity being facilitated or concealed
and the nexus between that criminal activity and the offense
charged. See United States v. Hawkins, 901 F.2d 863, 866 (10th
Cir. 1990). While "the sentencing guidelines permit the court to
consider uncharged conduct related to the offense of conviction" in
applying this departure provision, Figaro, 935 F.2d at 7, the
specific criminal conduct relied upon here is unclear. A "passing
reference" at trial to the fact that one of the stolen guns was
found in the apartment of the defendant's brother Kamal does not
establish that some other type of criminal activity was being
facilitated or concealed by the robbery. And we cannot conclude
that, in every conceivable factual scenario, the theft of multiple
weapons is always designed to facilitate some other crime. Indeed,
such a finding would be problematic here because the adjusted
offense level for the underlying crime already accounts for the
fact that a large number of guns were stolen. See U.S.S.G.
§ 2K2.1(b)(1)(C) (multiple weapons enhancement).
-52-
The district court needed to make a specific factual
finding of the criminal conduct being facilitated in this case, and
it did not do so. Without that finding, we cannot conclude that a
proper nexus between the offense here and some other criminal
conduct exists. See United States v. Ogbeide, 911 F.2d 793, 796
(D.C. Cir. 1990) (concluding that, in absence of an explanation of
what "other offense" the sentencing court had in mind in upwardly
departing under § 5K2.9, the sentencing court may have improperly
relied on conduct already accounted for in the guidelines); see
also Hawkins, 901 F.2d at 866 ("Without a demonstration of [] a
nexus [between the charged offense and the other criminal conduct],
there is no factual support for an upward departure under
§ 5K2.9."). Thus, this was an invalid ground for departure in
this case.
(4) Criminal History Category
Under U.S.S.G. § 4A1.3(a), "[i]f reliable information
indicates that the defendant's criminal history category
substantially under-represents the seriousness of the defendant's
criminal history or the likelihood that the defendant will commit
other crimes, an upward departure may be warranted." The type of
information that may support such an upward departure is "whether
a defendant was pending trial or sentencing on another charge at
the time of the instant offense." U.S.S.G. § 4A1.3(2)(D); see also
id., cmt., n.2(A)(iv) ("An upward departure from the defendant's
-53-
criminal history category may be warranted based on . . .
[c]ommission of the instant offense while on bail or pretrial
release for another serious offense."). When a departure is
appropriate, the sentencing court "shall determine the extent of a
departure . . . by using, as a reference, the criminal history
category applicable to defendants whose criminal history or
likelihood to recidivate most closely resembles that of the
defendant's." U.S.S.G. § 4A1.3(4)(A).
In this case, the PSR assigned zero criminal history
points to Wallace because he had no prior criminal convictions,
resulting in a criminal history category of I (applicable to
defendants with 0-1 criminal history points). In upwardly
departing from a criminal history category of I to a category of
III (applicable to defendants with 4-6 criminal history points),
the district court relied on the fact that the defendant committed
the robbery while under indictment for murder. The defendant
argues that the district court made no findings as to whether he
was aware of the indictment at the time of the robbery, and thus
there was no basis to depart upwardly. The defendant further
argues that, assuming that the commission of a crime while under
indictment for another crime was a proper basis for an upward
departure in his case, remand is warranted because the district
court offered no explanation for its conclusion that the facts in
his case justified an upward departure to a criminal history
-54-
category of III, effectively adding 4-6 points to his criminal
history points.
We have not previously addressed whether the commission
of a crime while under indictment for another serious crime is an
appropriate ground for upwardly departing from a defendant's
criminal history category. If the defendant knew that he was
indicted for a certain crime, his commission of another offense
while under that indictment is arguably indicative of his
"likelihood to commit other crimes." U.S.S.G. § 4A1.3(a).13 This
situation is akin to the example listed in the guidelines of
committing an "offense while on bail or pretrial release for
another serious offense." U.S.S.G. § 4A1.3(2)(D), cmt., n.2(A)(iv).
In both scenarios, no adjudication of guilt has occurred, but the
defendant's commission of a crime during a period in which one
would expect a careful abidance to the law arguably demonstrates
his or her propensity for criminal behavior, at least for the
purposes of sentencing. In this case, the defendant is hard
13
The government's argument that the indictment in and of itself
is evidence of the defendant's criminal behavior is less
persuasive. Under the guidelines, a prior arrest record in and of
itself may not be considered for the purposes of an upward
departure on the criminal history category. See U.S.S.G.
§ 4A1.3(3); see also Zapete-Garcia, 447 F.3d at 61 (noting that the
guidelines "recognize[] th[e] limitation on the value of an arrest
as information about a defendant's criminal propensity,
highlighting the important distinction between direct evidence of
past criminal behavior and mere arrests that may or may not have
been the result of wrongdoing"). An indictment, like an arrest,
would also not be direct and reliable evidence of past criminal
behavior.
-55-
pressed to argue that he did not know that he was under indictment
for murder at the time of the robbery, given his numerous arguments
on appeal that his flight and use of aliases during that period of
time might have been due to evading the murder charge.
It is a more difficult question whether the defendant's
commission of this robbery while under indictment is a valid basis
for finding that his criminal history category, or even the next
higher criminal history category, "substantially under-represents
the seriousness of the defendant's criminal history or the
likelihood that the defendant will commit other crimes." U.S.S.G.
§ 4A1.3. Assuming that the facts do support an upward departure in
criminal history category in general, we note that the district
court here departed to a criminal history category of III –- a
departure that, with a 34 adjusted offense level, shifted the
guidelines range for Counts I and II from 155-188 months to 188-235
months. The court did not explain why such an increase was
appropriate in this case. The upward departure essentially added
4-6 points to Wallace's criminal history points. Yet, under the
guidelines, if a defendant had committed a robbery while under "any
criminal justice sentence, including probation, parole, supervised
release, imprisonment, work release, or escape status," only 2
points would have been added to his or her criminal history points.
See U.S.S.G. § 4A1.1(d); see also U.S.S.G. § 4A1.3(4)(A)
(explaining that the sentencing court "shall determine the extent
-56-
of a departure . . . by using, as a reference, the criminal history
category applicable to defendants whose criminal history or
likelihood to recidivate most closely resembles that of the
defendant's"). Without any explanation of why the court chose a
departure of this extent, we cannot conclude that it was justified
on the record here. As we have explained,
[a]lthough we accord substantial leeway to a
sentencing court's determination of the
appropriate degree of departure, this freedom
does not relieve [it] from explaining its
ultimate decision of how far to depart.
Merely explaining why a departure was made
does not fulfill the separate requirement of
stating the reasons for imposing the
particular sentence.
United States v. Pratt, 73 F.3d 450, 453-54 (1st Cir. 1996)
(internal quotation marks and citations omitted) (remanding for
further explanation why upward departure from Criminal History
Category I to III was justified). Thus, even assuming that some
departure in criminal history category is justified here, "we are
unable to evaluate responsibly the reasonableness of the extent of
the court's departure absent explication, which we observe might
include at least an indication of why a one category increase is
inadequate" in this case. Id. at 454.
iii. Whether remand for resentencing is merited based on
errors in departure grounds
After carefully reviewing the district court's
application of the departure provisions in the advisory guidelines
-57-
in this case, we have concluded that it has articulated both valid
and invalid grounds for its departure from an offense level 29,
Criminal History Category I (resulting in an advisory guidelines
range of 87-108 months), to an offense level 34, Criminal History
Category III (resulting in an advisory guidelines range of 188-235
months). Specifically, we conclude that the district court validly
relied on the use of weapons and dangerous instrumentalities and
the disruption of a government function to upwardly depart from the
initial guidelines range. However, we also conclude that the court
improperly relied on grounds of obstruction of justice, extreme
psychological injury, and facilitation of a criminal purpose to
increase the offense level, and did not adequately explain its
reasons for upwardly departing on the criminal history category
from I to III.
In this case, we may only remand if the district court's
decision to depart upwardly based on these valid and invalid
grounds was plain error.14 We have already identified the errors
14
The defendant did not object to the district court's upward
departure at sentencing. However, we note that the district court
did not notify the parties of its intention to depart and the
grounds for the departure. Under Fed. R. Crim. P. 32(h),
[b]efore the court may depart from the
applicable sentencing range on a ground not
identified for departure either in the
presentence report or in a party's prehearing
submission, the court must give the parties
reasonable notice that it is contemplating
such a departure. The notice must specify any
ground on which the court is contemplating a
-58-
in the district court's departure analysis. The question is
whether the errors are plain, affected Wallace's substantial
rights, and "seriously impaired the fairness, integrity, or public
reputation of judicial proceedings." Medina-Martinez, 396 F.3d at
departure.
Thus, there is cause to question whether it is appropriate to apply
plain error review of the district court's upward departure given
the lack of notice. See id.; see also United States v. Cortes-
Claudio, 312 F.3d 17, 24 (1st Cir. 2002) ("Generally, when a party
fails to contemporaneously object to an error in sentencing we
review only for plain error. We have recognized, however, in the
context of sentencing, that a post-sentence objection is not
necessarily required to preserve the issue for appeal if the
defendant could not reasonably have anticipated the issue would
arise until after the court ruled." (internal citations omitted)).
The defendant here had no reason to expect that the district court
would rely on departure provisions not listed in the PSR, and the
government made no arguments that additional guidelines provisions
applied. On the contrary, the government attorney explicitly
stated during sentencing that "the guidelines [as the PSR
calculated the range] themselves account for much of the
reprehensible nature of this defendant's conduct."
However, the defendant did not raise the issue of notice
on appeal, and we have not previously decided whether and to what
extent Fed. R. Crim. P. 32(h) applies in post-Booker cases. See
U.S. v. Mateo, No. 05-1805, 2006 U.S. App. LEXIS 11396, *2-5 (1st.
Cir. May 5, 2006) (unpublished) (discussing without deciding the
application of Fed. R. Crim. P. 32(h) in post-Booker cases). We do
not have to decide that issue here because, even under plain error
review, we conclude that a remand is necessary. However, as this
case illustrates, it is clearly the better practice -- whether or
not the legal requirement survives Booker -- for the court to
provide notice to defendants when relying on departure provisions
in the advisory guidelines not previously identified in the PSR or
in a party's pre-hearing submission. We have found that several of
the grounds for an upward departure were inappropriately applied
here because of the lack of evidence in the record supporting them.
With notice from the court that such grounds for departure were to
be considered, that problem might have been avoided.
-59-
8. The defendant, of course, has the burden of establishing plain
error. Id.
First, we conclude that the errors are plain. It is
clear and obvious that a sentencing court must have sufficient
evidence to support the application of a departure provision in the
guidelines and must adequately explain its departure. See United
States v. Cadavid 192 F.3d 230, 238 (1st Cir. 1999) (noting the
rule that grounds for departure must have adequate factual support
in the record); Pratt, 73 F.3d at 453-54 (noting the rule that a
sentencing court must adequately explain its decision to depart and
its reasons for the extent of the departure). Yet here the
application of three of the six grounds of departure lacked factual
support in the record, and the departure in a fourth ground, based
on the defendant's criminal history, was not adequately explained.
Second, we find that the errors affected Wallace's
substantial rights. We have previously explicated the test for
determining whether a departure based on both valid and invalid
grounds has prejudiced the defendant:
[A] departure which rests on a combination of
valid and invalid grounds may be affirmed so
long as (1) the direction and degree of the
departure are reasonable in relation to the
remaining (valid) ground, (2) excision of the
improper ground does not obscure or defeat the
expressed reasoning of the district court, and
(3) the reviewing court is left, on the record
as a whole, with the definite and firm
conviction that removal of the inappropriate
ground would not be likely to alter the
-60-
district court's view of the sentence
rightfully to be imposed.
United States v. Sanchez, 354 F.3d 70, 79 (1st Cir. 2004) (internal
quotation marks and citations omitted). Following this analysis,
we cannot conclude that the direction and degree of the departure
-- an additional nine years, double the sentence recommended for
Counts I and II in the PSR -- is reasonable in relation to the two
remaining valid grounds for departure in this case. With four of
the six grounds for departure excised, it seems self-evident that
the expressed reasoning of the district court has been obscured.
While we recognize the district court's careful explanation of why
a high sentence was generally justified in this case, we believe
that the court –- now knowing that four of the grounds upon which
it expressly relied in determining the specific upward departure
were invalid –- might (although by no means must) calculate a
sentence upon remand different than the precise sentence it chose
through its initial, erroneous departure analysis. We therefore
lack the "definite and firm conviction" that removal of the
inappropriate grounds would not be likely to alter the district
court's view of the sentence rightfully to be imposed. See United
States v. Diaz, 285 F.3d 92, 102 (1st Cir. 2002)(remanding where
"two of three provisions on which the court based an upward
departure were utilized improperly"); United States v. Diaz-
Bastardo, 929 F.2d 798, 800 (1st Cir. 1991) (remanding where one of
-61-
the two grounds for departure was invalid, noting that, "[o]n this
scumbled record, we do not believe that we should attempt to review
the propriety and extent of a one-legged departure"). Wallace thus
has established that the errors in the departure analysis affected
his substantial rights.
Finally, we conclude that the last prong of the plain
error test has been met as well. Having identified several legal
errors, which were the pillars for a substantial increase in the
sentence imposed, it would certainly "impair[] the fairness,
integrity, or public reputation of the judicial proceedings" if we
ignored them despite the absence of a firm conviction that the
removal of the inappropriate grounds might not alter the sentence.
Medina-Martinez, 396 F.3d at 8. The overall length of the sentence
at stake, the difference between the sentence imposed and the one
proposed in the PSR and by the government, and the fact that the
defendant was not notified that the court was considering an upward
departure on the grounds invoked by the court, see supra text at 58
n.14, provide further support for our conclusion.
Thus, we remand for resentencing. Because we remand
based on errors in the application of the advisory guidelines, we
do not reach the defendant's other argument that the sentence as a
whole was substantially longer than necessary to meet the factors
underlying 18 U.S.C. § 3553(a), hence unreasonable. We express no
views as to the appropriate sentence on remand.
-62-
III.
The defendant's conviction is affirmed, the sentence is
vacated, and the case is remanded for resentencing.
So ordered.
-63-
United States v. Wallace
Court: Court of Appeals for the First Circuit
Date filed: 2006-08-14
Citations: 461 F.3d 15
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