United States Court of Appeals,
Eleventh Circuit.
No. 94-6285
Non-Argument Calendar.
UNITED STATES of America, Plaintiff-Appellee,
v.
Alphonzo Leon WILLIAMS, a/k/a Hoss, a/k/a Alphonso Leon Williams,
a/k/a Alfonzo Leon Williams, a/k/a Alfonso Leon Williams, a/k/a
Fred Bell, Defendant-Appellant.
May 9, 1995.
Appeal from the United States District Court for the Northern
District of Alabama. (No. CR-93-AR-248-S), William M. Acker, Jr.,
Judge.
Before KRAVITCH, HATCHETT and BARKETT, Circuit Judges.
HATCHETT, Circuit Judge:
Alphonzo Leon Williams appeals his conviction under the
federal carjacking statute and his twenty-five-year sentence. We
affirm.
FACTS
On April 28, 1993, Scott Whitehead was driving his pickup
truck in Birmingham, Alabama, with Tim Donaldson sitting in the
passenger seat. After noticing a car following them, Donaldson
loaded a pistol that he had previously placed underneath his seat.
Eventually, Whitehead stopped at an intersection. At this
point, the appellant, Williams, exited the tailing vehicle, and
approached. When Williams reached Whitehead's door, he pointed a
gun inside the truck. In response, Donaldson, from his position in
the passenger seat, began shooting across Whitehead and through the
driver's window, hitting Williams. One of Donaldson's shots also
struck Whitehead in the side of the head.
When Williams began to retreat, Donaldson noticed that
Whitehead was unconscious. He then pushed Whitehead against the
driver's door and began to operate the truck. As Donaldson started
to speed away, Williams fired several shots.
Approximately twenty-four hours later, Whitehead died as a
result of the gunshot wound.
PROCEDURAL HISTORY
On October 1, 1993, a federal grand jury in the Northern
District of Alabama returned an indictment charging Williams with
one count of attempted carjacking in violation of 18 U.S.C. §§ 2119
and 2.1 Before trial, Williams filed a motion to exclude any
evidence concerning Whitehead's death. A magistrate judge
recommended that Williams's motion be denied, explaining that the
carjacking statute "makes the death relevant because it provides
for heightened punishment if a death "results' from a carjacking or
attempted carjacking.... It is not merely a question of
sentencing, but an element of the charged offense itself."
Due to this comment in the magistrate judge's report and
recommendation, the government superseded the indictment so as to
charge Williams with a carjacking "resulting in the death of
Richard "Scott' Whitehead." Williams then filed a motion to strike
this added language in the indictment, or alternatively, to
bifurcate the trial into a guilt phase and a penalty phase.
In granting Williams's request for a bifurcated trial, the
1
A superseding indictment charged Williams with a second
count of possessing a firearm as a convicted felon in violation
of 18 U.S.C. §§ 922(g) and 924(a)(2).
district court disagreed with the magistrate judge, and found that
death is only a sentencing enhancement feature, not an element of
the carjacking statute. The district court, however, agreed with
the magistrate judge that evidence of Whitehead's death would be
admissible during the guilt phase of the trial. Thus, during the
guilt phase, the government elicited testimony from Donaldson, over
Williams's objection, that Whitehead was physically located "in the
cemetery."
After three days of trial, the guilt phase concluded on
January 5, 1994. Before sending the indictment to the jurors for
their deliberations, the district court redacted the words
"resulting in the death of Richard "Scott' Whitehead" from the
carjacking count. The next day, the jury found Williams guilty of
carjacking.2 The second phase of the trial then commenced. A
forensic pathologist, who testified for the government about the
cause of Whitehead's death, was the only witness during the penalty
phase. After the court charged the jury, it found that a death did
not result from Williams's violation of the carjacking statute.
On March 21, 1994, the district court held a sentencing
hearing. Applying the United States Sentencing Guidelines to
Williams's convictions, the presentence investigation report (PSR)
calculated a range of 140 to 175 months imprisonment based on a
total offense level of twenty-eight and a criminal history category
of VI. In arriving at the total offense level, the PSR added seven
levels pursuant to U.S.S.G. § 2B3.1(b)(2)(A) because Williams
discharged a firearm during the carjacking. Williams objected to
2
The jury also convicted Williams on the firearm count.
this increase, arguing that he only fired shots straight into the
air after Donaldson made his escape. Although the district court
recognized that Williams may have fired the shots into the air, it
rejected his contention, and accepted the increase. Also over
Williams's objection, the district court granted the government's
motion for an upward departure pursuant to U.S.S.G. § 5K2.1,
explaining that "by a preponderance of the evidence, and using that
standard rather than the much higher standard that the jury was
operating under, that under the terms of 5K2.1 death did result."
Accordingly, the district court increased Williams's total offense
level to thirty-four, which placed him in a guideline range of 262
to 327 months. The district court then sentenced Williams to 300
months (twenty-five years) in prison.3
CONTENTIONS
Williams contends that Congress did not have the authority to
enact the federal carjacking statute under the Commerce Clause, and
even if it did, the statute is unconstitutionally vague. He also
argues that the district court abused its discretion in allowing
evidence of Whitehead's death during the guilt phase of his trial
because it was irrelevant and highly prejudicial. Finally,
Williams contests his sentence, arguing that he did not fire his
gun during the commission of the carjacking; therefore, the
district court erred in increasing his offense level under section
2B3.1(b)(2)(A); he also claims that the upward departure, pursuant
3
Because the firearm count was grouped with the carjacking
count pursuant to U.S.S.G. § 3D1.2(c), the district court totaled
the statutory maximum penalties for the carjacking (fifteen
years) and firearm (ten years) convictions to comprise the
twenty-five-year sentence.
to section 5K2.1, was erroneous because the jury found that
Whitehead's death did not result from his carjacking violation.
With respect to Williams's constitutional challenges, the
government responds that courts throughout the country have
consistently rejected his Commerce Clause claim; further, the
government asserts that the carjacking statute is not
unconstitutionally vague because it clearly proscribes patently
criminal conduct. In response to Williams's evidentiary claim, the
government argues that Whitehead's death was relevant, and that
such evidence did not substantially prejudice the jury. Finally,
with respect to the sentence, the government contends that Williams
fired several shots as Donaldson was driving away, therefore, the
seven-level increase pursuant to section 2B3.1(b)(2)(A) was
justified; the government also contends that the district court's
upward departure pursuant to section 5K2.1 was proper because
Whitehead died as a result of the carjacking.
ISSUES
This appeal requires us to decide whether: (1) Congress
possessed the authority, under the Commerce Clause, to enact the
federal carjacking statute; (2) the carjacking statute is
unconstitutionally vague; (3) the district court abused its
discretion in allowing evidence of Whitehead's death; (4) the
district court properly applied a seven-level increase pursuant to
U.S.S.G. § 2B3.1(b)(2)(A); and (5) the district court erred in
granting an upward departure pursuant to U.S.S.G. § 5K2.1.
DISCUSSION
In 1992, Congress enacted the federal carjacking statute. The
original version provided:
Whoever, possessing a firearm as defined in section 921
of this title, takes a motor vehicle that has been
transported, shipped, or received in interstate or foreign
commerce from the person or presence of another by force and
violence or by intimidation, or attempts to do so, shall—
(1) be fined under this title or imprisoned not more than
15 years, or both,
(2) if serious bodily injury (as defined in section 1365
of this title) results, be fined under this title or
imprisoned not more than 25 years, or both, and
(3) if death results, be fined under this title or
imprisoned for any number of years up to life, or both.
18 U.S.C. § 2119 (1992). This version of the statute was in effect
when the grand jury indicted Williams and when the trial jury
convicted him. On September 13, 1994, Congress amended the
statute. As a result of the amendments, the statute now reads:
Whoever, with the intent to cause death or serious bodily
harm takes a motor vehicle that has been transported, shipped,
or received in interstate or foreign commerce from the person
or presence of another by force and violence or by
intimidation, or attempts to do so, shall—
(1) be fined under this title or imprisoned not more than
15 years, or both,
(2) if serious bodily injury (as defined in section 1365
of this title) results, be fined under this title or
imprisoned not more than 25 years, or both, and
(3) if death results, be fined under this title or
imprisoned for any number of years up to life, or both,
or sentenced to death.
18 U.S.C. § 2119 (1994) (emphasis added). Thus, as the emphasized
portions indicate, the 1994 amendments changed the intent
requirement, and added the possibility of the death penalty. The
overall structure of the carjacking statute, however, remains
intact.
A. Commerce Clause
Williams argues that Congress exceeded its power under the
Commerce Clause in enacting the federal carjacking statute. While
this is an issue of first impression for this court, several of our
sister circuits have been presented with identical challenges to
section 2119, and all have held that its creation was a valid
exercise of congressional authority under the Commerce Clause. See
United States v. Martinez, 49 F.3d 1398, 1400-01 (9th Cir.1995);
United States v. Bell, 46 F.3d 442, 444-45 (5th Cir.1995); United
States v. Overstreet, 40 F.3d 1090, 1093 (10th Cir.1994); United
States v. Harris, 25 F.3d 1275, 1280 (5th Cir.), cert. denied, ---
U.S. ----, 115 S.Ct. 458, 130 L.Ed.2d 366 (1994); United States v.
Johnson, 22 F.3d 106, 108-09 (6th Cir.1994). For the reasons
stated in those opinions, we agree that, under current Commerce
Clause doctrine, the carjacking statute is constitutional.
B. Vagueness
Williams presents another constitutional question of first
impression for this court. He argues that the federal carjacking
statute is unconstitutionally vague. The void-for-vagueness
doctrine places two requirements on criminal statutes. First, it
requires a statute to "define the criminal offense with sufficient
definiteness that ordinary people can understand what conduct is
prohibited." Kolender v. Lawson, 461 U.S. 352, 357, 103 S.Ct.
1855, 1858, 75 L.Ed.2d 903 (1983). Interestingly, Williams does
not invoke this requirement to challenge the main paragraph of
section 2119, in which carjacking is defined. Even if he did, such
an argument would fail because "[t]he terms used are clear and easy
to understand, and reasonably define the prohibited behavior."
Martinez, 49 F.3d at 1403 (rejecting a vagueness challenge to the
carjacking statute).
Instead, Williams invokes the second prong of the
void-for-vagueness doctrine, which requires criminal statutes to be
defined "in a manner that does not encourage arbitrary and
discriminatory enforcement." Kolender, 461 U.S. at 357, 103 S.Ct.
at 1858. Williams contends that section 2119 is unclear as to
whether subparagraphs (2) and (3), which provide for enhanced
punishments if serious bodily injury or death result, are elements
of the carjacking offense. He asserts that if some courts treat
the subparagraphs as elements, while other courts merely utilize
them as sentencing enhancers, "arbitrary and discriminatory
enforcement" of the statute may result. In support of his
argument, Williams points to the conflicting views of the
magistrate judge and the district court.
Despite Williams's contentions and the confusion in the
district court, we find that section 2119 clearly indicates
Congress's intent that subparagraphs (2) and (3) be treated as
sentencing enhancement features, and not elements of the offense.
In arriving at this conclusion, we refer, as we must, to the
language and structure of the statute. See Garrett v. United
States, 471 U.S. 773, 787, 105 S.Ct. 2407, 2415-16, 85 L.Ed.2d 764
(1985). The first paragraph of section 2119 defines carjacking and
ends in the word "shall," followed with a dash. Then, in three,
separate, numbered subparagraphs, the statute describes different
degrees of punishment. This format clearly signifies that the
first main paragraph of the statute contains the elements of the
carjacking offense, and the three numbered subparagraphs are
sentencing provisions.
Furthermore, while Williams fears arbitrary enforcement, we
note that similar provisions in other statutes have consistently
been interpreted as enhancers, not elements. For example, similar
provisions in 18 U.S.C. §§ 241 and 242, federal civil rights
crimes, have been interpreted as sentencing enhancers. See Catala
Fonfreias v. United States, 951 F.2d 423, 426 (1st Cir.1991), cert.
denied, --- U.S. ----, 113 S.Ct. 105, 121 L.Ed.2d 64 (1992). The
First Circuit explained:
The natural reading of the text, given the placement of the
"death resulting" language within the sentencing provisions of
both statutes, is that Congress intended to add "death
resulting" as a factor that would justify an enhanced
sentence. In other words, the victim's death is not an
element of either offense, but simply an aggravating
circumstance which gives the district court the authority to
impose harsher punishment.
Catala Fonfreias, 951 F.2d at 426. Likewise, the Eighth Circuit
has construed the "if death results" provision in 18 U.S.C. §
844(i), the federal arson statute, as a sentencing enhancer. See
United States v. Ryan, 9 F.3d 660, 667-69 (8th Cir.1993), modified
on other grounds, 41 F.3d 361 (8th Cir.1994) (en banc).4 Finally,
the Fourth Circuit has interpreted the "if death or serious bodily
injury results" language of 21 U.S.C. § 841(b)(1)(C), the commonly
used narcotics statute, as a sentencing enhancement provision. See
4
We recognize that when listing the elements of a section
844(i) offense, the Fifth Circuit has included the "death
results" provision. See United States v. Triplett, 922 F.2d
1174, 1177 (5th Cir.), cert. denied, 500 U.S. 945, 111 S.Ct.
2245, 114 L.Ed.2d 486 (1991). The issue, however, of whether the
provision is a sentencing enhancer, as opposed to an element of
the offense, was not addressed, and therefore, we do not find
Triplett to be contrary authority.
United States v. Patterson, 38 F.3d 139, 143-44 (4th Cir.1994).
In sum, section 2119 is not unconstitutionally vague because
its plain language and structure clearly indicate that the "if
serious bodily injury results" language of subparagraph (2) and the
"if death results" language of subparagraph (3) are sentencing
enhancement provisions. The fact that the statute "expose[s]
defendants to enhanced penalties based on legally significant
factors does not make the statute void for vagueness." United
States v. Easter, 981 F.2d 1549, 1557 (10th Cir.1992), cert.
denied, --- U.S. ----, 113 S.Ct. 2448, 124 L.Ed.2d 665 (1993).5
C. The "Cemetery" Testimony
During the guilt phase of the trial, the government presented
evidence showing that Donaldson shot Whitehead rendering him
unconscious. Williams does not dispute the admissibility of this
evidence. The district court, however, also allowed the government
to elicit that Whitehead was physically located "in the cemetery"
at the time of the trial. Williams contends that this particular
evidence was irrelevant and improperly prejudiced the jury.
Evidence is relevant if it has "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
5
To avoid any future confusion, we reiterate that
subparagraphs (2) and (3) create sentencing questions for the
district court. Thus, a bifurcated trial, such as the one
conducted in this case, is not necessary. We note, however, that
due to the 1994 amendments, the district court is required to
send to the jury the question of whether death resulted in one
instance—when the government seeks capital punishment. See 18
U.S.C. § 3593. In such a case, the jury must determine whether
death resulted beyond a reasonable doubt. See 18 U.S.C. §
3591(a)(2).
without the evidence." Fed.R.Evid. 401. In a criminal trial,
issues of consequence generally consist of "the elements of the
offenses charged and the relevant defenses (if any) raised to
defeat criminal liability." United States v. Hall, 653 F.2d 1002,
1005 (5th Cir.1981).6 "[R]elevant evidence is admissible," but
"may be excluded if its probative value is substantially outweighed
by the danger of unfair prejudice." Fed.R.Evid. 402 and 403.
When considering these evidentiary principles, we must be
mindful that "[t]he trial court is vested with broad discretion in
ruling upon the relevancy and admissibility of evidence." United
States v. Anderson, 872 F.2d 1508, 1515 (11th Cir.), cert. denied,
493 U.S. 1004, 110 S.Ct. 566, 107 L.Ed.2d 560 (1989). Thus, under
the abuse of discretion standard, "there will be occasions in which
we affirm the district court even though we would have gone the
other way had it been our call." In re Rasbury, 24 F.3d 159, 168
(11th Cir.1994).
Had we been presented with this question de novo, we would
have excluded the "cemetery" testimony because, as we have already
stated, Whitehead's subsequent death was irrelevant to the elements
of the carjacking offense. Nonetheless, we believe that the
decision to admit the testimony as relevant evidence, which was not
overly prejudicial pursuant to Rule 403, was within the district
court's "range of choice, although perhaps not by a wide margin."
In re Rasbury, 24 F.3d at 168-69; cf. United States v. Accetturo,
6
In Bonner v. City of Prichard, 661 F.2d 1206 (11th
Cir.1981) (en banc), this court adopted as binding precedent all
decisions of the Fifth Circuit rendered prior to October 1, 1981.
966 F.2d 631, 637 (11th Cir.1992) ("The fact that [the witness] had
died was relevant to explain the fact that [the witness] did not
testify. Had the jury not been told, they might well have
incorrectly concluded that [the witness] was incarcerated or was
afraid to testify, fearing the impeaching cross-examination that
the defense obviously would have mounted."), cert. denied, --- U.S.
----, 113 S.Ct. 1053, 122 L.Ed.2d 360 (1993).
Finally, and perhaps most importantly, even if the district
court had abused its discretion, the admission of the single
"cemetery" comment did not have a "substantial influence on the
outcome, and sufficient evidence supports the jury's verdict."
United States v. Christopher, 923 F.2d 1545, 1552 (11th Cir.1991);
see also United States v. Eyster, 948 F.2d 1196, 1212 (11th
Cir.1991) (admission of irrelevant photograph of a dead body not
reversible error).
D. U.S.S.G. § 2B3.1(b)(2)(A)
The robbery guideline provides the base offense level for
carjacking, and is found at section 2B3.1(a). Section 2B3.1(b)
lists several specific offense characteristics for robbery
offenses, including a seven-level increase "[i]f a firearm was
discharged." U.S.S.G. § 2B3.1(b)(2)(A). Williams objected to the
application of this offense characteristic, arguing that he did not
fire his gun until after Donaldson began driving away; therefore,
he only fired after the commission of the carjacking. Initially,
the district court found that the offense level increase was proper
based on these shots, thereby rejecting Williams's attempt to
separate them from the offense. Later, in response to Williams's
request for a specific finding, the district court reasoned that
Williams drew his firearm, which then caused Donaldson to discharge
his firearm during the commission of the carjacking.
In Sentencing Guidelines cases, we review the district court's
findings of fact for clear error and its application of law to
those facts de novo. See United States v. Salemi, 26 F.3d 1084,
1086 (11th Cir.), cert. denied, --- U.S. ----, 115 S.Ct. 612, 130
L.Ed.2d 521 (1994). The district court found that Donaldson fired
his firearm as Williams was committing the carjacking, and that
seconds later, Williams fired shots as Donaldson was driving away.
These findings of fact are not clearly erroneous; indeed, both
parties agree that this is what transpired. We, therefore, must
apply the guidelines to these facts de novo.
Neither section 2B3.1(b)(2)(A), nor its commentary, precisely
specify who must discharge the firearm or when it must be fired.
Specific offense characteristics, however, shall be determined on
the basis of "all acts and omissions committed [or] induced ...
that occurred during the commission of the offense ... or in the
course of attempting to avoid detection or responsibility for that
offense." U.S.S.G. § 1B1.3(a)(1). We read this language as
supporting both of the district court's reasons for applying the
offense level increase.
First, we find that Williams discharged his firearm "during
the commission of the offense." U.S.S.G. § 1B1.3(a)(1). Crimes
involving "robbery cannot be completed without some form of flight
or attempted flight, the crime is more naturally understood to
include the act of fleeing and the immediate consequences of such
flight." United States v. Muhammad, 948 F.2d 1449, 1456 (6th
Cir.1991) (affirming increase pursuant to section 2B3.1(b)), cert.
denied, 502 U.S. 1119, 112 S.Ct. 1239, 117 L.Ed.2d 472 (1992).
Thus, although Williams argues otherwise, the commission of the
carjacking did not magically cease the moment he backed away from
Whitehead's truck; therefore, the shots he fired were discharged
during the commission of the carjacking. Furthermore, we also find
that Williams discharged his weapon in an effort "to avoid
detection or responsibility." U.S.S.G. § 1B1.3(a)(1). In firing
his weapon, in any direction, Williams made certain that Donaldson
continued to drive away, so that he could then make a clean
departure from the scene of the crime.
Finally, we also agree with the district court's second
explanation for the increase. When Williams attempted the
carjacking with his weapon drawn, he "induced" Donaldson to fire
his weapon; thus, Donaldson's act of shooting is attributable to
Williams for purposes of the offense level increase. U.S.S.G. §
1B1.3(a)(1)(A).
E. U.S.S.G. § 5K2.1 Upward Departure
In his final assignment of error, Williams contends that the
district court erred in upwardly departing from the guidelines
pursuant to section 5K2.1. That section provides: "If death
resulted, the court may increase the sentence above the authorized
guideline range." U.S.S.G. § 5K2.1. We review the district
court's decision to depart from the guidelines in three parts. See
United States v. Huang, 977 F.2d 540, 544 (11th Cir.1992).
"First, we review de novo the district court's ruling that the
guidelines did not adequately consider a particular factor in
establishing the base offense level." Huang, 977 F.2d at 544.
Williams does not contest the upward departure under this prong of
the analysis. Indeed, while the guideline establishing the base
offense level for carjacking does consider life-threatening bodily
injury, it fails to take into account death. 7 Thus, the district
court properly looked to section 5K2.1.
"Second, we must review for clear error the factual findings
supporting the departure." Huang, 977 F.2d at 544. Williams
contends that he could not foresee that Donaldson would
accidentally shoot Whitehead; therefore, the district court erred
in finding that Whitehead's death resulted from the carjacking.
We, however, agree with the Second and the Seventh Circuits that,
when determining whether a death "resulted" from the offense for
purposes of section 5K2.1, a factual finding "that death was
intentionally or knowingly risked" is sufficient. United States v.
White, 979 F.2d 539, 545 (7th Cir.1992); see also United States v.
Rivalta, 892 F.2d 223, 232 (2d Cir.1989). In approaching the truck
with a weapon, Williams knowingly risked the lives of its
occupants; he " "put into motion' a chain of events that contained
an "inevitable tragic result.' " White, 979 F.2d at 545. Thus, we
conclude that the district court's finding that a death resulted
7
Section 2B3.1(b)(3)(C) adds six levels if a victim
sustained a permanent or life-threatening bodily injury. Had
Whitehead survived his injury, however, the six-level increase
would not have been allowed because a seven-level increase for
the firearm discharge had already been added, and the cumulative
adjustment for these two factors cannot exceed eleven levels.
See U.S.S.G. § 2B3.1(b)(3). In capping the offense level
adjustment at eleven, we believe section 2B3.1 failed to consider
resulting death.
from the carjacking was not clearly erroneous.
"Finally, we review the reasonableness of the district
court's departure given the legal and factual posture of the case."
Huang, 977 F.2d at 544. Williams argues that an upward departure
was unreasonable given the legal posture of his case.
Specifically, he contends that his acquittal at the penalty phase
of the trial should have prevented the district court from
departing on the basis that a death resulted. Williams, however,
fails to recognize that "[a]cquitted conduct may be considered by
a sentencing court because a verdict of acquittal demonstrates a
lack of proof sufficient to meet a beyond-a-reasonable-doubt
standard—a standard of proof higher than that required for
consideration of relevant conduct at sentencing." United States v.
Averi, 922 F.2d 765, 766 (11th Cir.1991). Thus, his contention
fails, and we conclude that the district court's departure was
reasonable in all respects.
CONCLUSION
For the foregoing reasons, we affirm Williams's carjacking
conviction and his twenty-five-year sentence.8
AFFIRMED.
8
Defense counsel's motion to withdraw is denied.