UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 98-10098
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
VERSUS
JASHAWN R. SMITH,
Defendant - Appellant.
Appeal from the United States District Court
for the Northern District of Texas
August 5, 1999
Before GARWOOD, DUHÉ, AND BENAVIDES, Circuit Judges.
DUHÉ, Circuit Judge:
BACKGROUND
In May 1997, Jashawn R. Smith (“Smith) and co-defendant Latoja
E. Hall (“Hall”), abducted Virginia Hope Wyatt (“Wyatt”), a 72-
year-old woman, at gunpoint from a Dallas mall parking garage. The
Defendants traveled north into Oklahoma in Wyatt’s car, using
Wyatt’s credit card to purchase gas. That night, Smith told Ms.
Wyatt that they were going to leave her on the side of the road so
that she could be found. Smith bound Wyatt’s hands and feet with
duct tape. At that time, Wyatt asked if Smith had a mother, hoping
that Smith would treat her more gently. Instead, Smith became
upset, stated that she hated her mother, and threatened to kill
Wyatt’s family. The Defendants put a plastic bag around Wyatt’s
head, wrapping duct tape over the plastic that covered Wyatt’s
mouth and nose. They threw Wyatt over a guard rail and down an
embankment. They then drove away.
Wyatt managed to force a hole through the plastic covering her
mouth and slither up the embankment. The Oklahoma Highway patrol
found her early the next morning. The Defendants reached their
destination, Kansas City, that morning. Officers arrested the
Defendants five days later.
Smith was charged with (1) conspiracy to commit kidnapping in
violation of 18 U.S.C. § 371; (2) kidnapping in violation of 18
U.S.C. § 1201; and (3) carjacking in violation of 18 U.S.C. § 2119.
Smith pled guilty to all three charges without the benefit of a
plea agreement. The district court sentenced Smith to a 600 month
term of imprisonment, and five years supervised release to run
concurrently on each count. The court also ordered Smith to pay
restitution in the amount of $1045. Smith appeals.
DISCUSSION
Appellant argues that the district court (1) failed to comply
with Fed. R. Crim. P. 11 and (2) improperly applied the Sentencing
Guidelines. We affirm in part and vacate in part.
I. Rule 11
We review the voluntariness of a guilty plea de novo, see
United States v. Amaya, 111 F.3d 386, 388 (5th Cir. 1997), and Rule
11 violations under the harmless error standard. See United States
v. Johnson, 1 F.3d 296, 302 (5th Cir. 1993). When an appellant
claims that a district court has failed to comply with Rule 11, we
conduct a two-question harmless error analysis: “(1) Did the
sentencing court in fact vary from the procedures required by Rule
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11, and (2) if so, did such variance affect substantial rights of
the defendant.” Id. at 298.
Challenging her guilty plea, Smith argues that the district
court did not question her regarding her understanding of the
charges and did not conduct a personal colloquy to determine
whether her plea was voluntary.
The district court did vary from the requirements of Rule 11.
First, although Smith was read the indictment and the factual
resume, neither document contained the elements of the crimes to
which she pled. See United States v. Green, 882 F.2d 999, 1005
(5th Cir. 1989) (stating that not informing the defendant of an
essential element of the offense to which he pleads violates Rule
11). Second, although Smith’s counsel stated that he had reviewed
the indictment with Smith and that she understood those charges,
Smith did not personally inform the court of her understanding of
those charges. See Fed. R. Crim. P. 11(c)(1) (stating that, before
accepting a guilty plea, the district court “must address the
defendant personally in open court and inform the defendant of, and
determine that the defendant understands . . . the nature of the
charge to which the plea is offered.”). Third, the district court
failed to ask Smith whether her plea was voluntary or whether it
was the result of force, threats, or promises. See Fed. R. Crim.
P. 11 (d) (stating that the court shall not accept a guilty plea
without, “by addressing the defendant personally in open court,
determining that the plea is voluntary and not the result of force
or threats or promises apart from the plea agreement.”).
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Deviations such as these do not automatically require
reversal, however. See Fed R. Crim. P. 11(h). Under Johnson, we
must determine whether the deviations affected Smith’s substantial
rights. In this case, there is no indication that the district
court’s non-compliance with Rule 11 affected Smith’s decision to
plead guilty. See Johnson, 1 F.3d at 302. At rearraignment,
Smith’s attorney stated that he had reviewed the indictment with
her and that she understood the charges and that he was satisfied
that her plea was voluntary. Smith does not challenge her
attorney’s assertion. Smith does not maintain that she did not
understand the charges at the time she pled guilty. Instead, she
contends that the district court failed to personally ensure that
she understood the charges. Similarly, Smith has not shown that
the district court’s failure to question her about the
voluntariness of her plea affected her substantial rights. She
does not contend that she actually pled guilty as a result of
force, threats, or promises.
II. Application of the Sentencing Guidelines
“We review the district court’s application of the Sentencing
Guidelines de novo.” United States v. Brown, 7 F.3d 1155, 1159
(5th Cir. 1993). The commentary to the Sentencing Guidelines “must
be given controlling weight unless it is plainly erroneous or
inconsistent” with the guidelines. Stinson v. United States, 113
S.Ct. 1913, 1919 (1993).
Applying grouping principles, the district court sentenced
Smith under U.S.S.G. § 2A4.1, the kidnapping guideline, based on a
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cross reference from § 2X1.1, the conspiracy guideline. The
district court then considered § 2A.4.1(b)(7)(B), which requires
that, in instances where another offense is committed during a
kidnapping, the sentencing court must apply the “offense guideline
applicable to that offense.” Smith’s “other offense” was attempted
murder. The district court, however, did not apply § 2A2.1, the
attempted murder guideline. Instead, relying on application note
5 to § 2A4.1, the district court applied § 2A1.1, the first degree
murder guideline. Application note 5 provides:
In the case of a conspiracy, attempt, or solicitation to
kidnap, § 2X1.1 (Attempt, Solicitation, or Conspiracy)
requires that the court apply any adjustment that can be
determined with reasonable certainty. . . . [I]f an
offense involved a kidnapping during which a participant
attempted to murder the victim under circumstances that
would have constituted first degree murder had death
occurred, the offense referenced under subsection (b)(7)
would be the offense of first degree murder.
Smith argues that the district court erred by applying the
first degree murder guideline. The Government disagrees,
contending that application note 5 is not inconsistent with
subsection (b)(7)(B). Rather, it argues that note 5 provides
specific guidance on how to apply the subsection in a particular
circumstance. See id. at 1918 (stating that “commentary explains
the guidelines and provides concrete guidance as to how even
unambiguous guidelines are to be applied in practice.”). It notes
that subsection (b)(7)(B) speaks in general terms of how to compute
an offense level when some other offense is committed during a
kidnapping. Note 5, on the other hand, provides specific guidance
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on how to compute an offense level when the offense is attempted
first degree murder.
In this case, we conclude that following application note 5
would violate the dictates of § 2A4.1(b)(7)(B).1 See Stinson, 113
S.Ct. at 1918 (stating that “[i]f . . . commentary and the
guideline it interprets are inconsistent in that following one will
result in violating the dictates of the other, the Sentencing
Reform Act itself commands compliance with the guideline.”).
Section 2A4.1(b)(7)(B) directs courts to cross reference the
guideline applicable to the crime the defendant actually committed.
By directing courts to cross reference the first degree murder
guideline in cases of attempted first degree murder, application
note 5 violates the clear mandate of the guideline it interprets.2
The Government relies in part on United States v. Depew, 932
F.2d 324, 328-30 (4th Cir. 1991). In that case, Depew and his co-
conspirator conspired to kidnap a young boy for the purpose of
sexually abusing, torturing, and murdering the boy on film. Depew
was convicted of conspiracy to kidnap under 18 U.S.C. § 1201(c).
The district court applied the conspiracy guideline, § 2X1.1(a),
then cross referenced the kidnapping guideline, § 2A4.1, applying
subsection (b)(5). At that time, subsection (b)(5) stated:
1
But see United States v. Stone, No. 94-50432,1995 WL 86431,
at *1-2 (4th Cir. Mar. 3, 1995). In Stone, the district court
cross referenced the murder guideline in a similar circumstance.
Stone did not appeal his sentence on that basis and, consequently,
the Fourth Circuit did not address the issue.
2
Because we hold that note 5 is inconsistent with §
2A4.1(b)(7), we need not address whether note 5 is limited to
conspiracies, solicitations, and attempts.
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If the victim was kidnapped, abducted, or unlawfully
restrained to facilitate the commission of another
offense: (A) increase by 4 levels; or (B) if the result
of applying this guideline is less than that resulting
from application of the guideline for such other offense,
apply the guideline for such other offense.
U.S.S.G. § 2A4.1(b)(5) (1990). The district court found that the
“other offense” was first degree murder and cross referenced the
first degree murder guideline. Depew argued, inter alia, the
district court’s application of the guidelines treated him as if he
had completed the kidnapping and murder.
At the time of Depew’s sentencing, subsection (b)(5)(B)
applied to defendants who kidnapped victims “to facilitate the
commission of some other offense,” directing courts to “apply the
guideline for such other offense” if it would result in a higher
offense level U.S.S.G. § 2A4.1(b)(5) (1990). Depew conspired to
kidnap the boy to facilitate murder; therefore, the Depew court
cross referenced the murder guideline. The Fourth Circuit upheld
Depew’s sentence, reasoning that, his intended offenses carried the
same weight as actual conduct. See Depew, 932 F.2d at 330. In
1991, the Sentencing Commission amended § 2A4.1, replacing the old
subsection (b)(5) with subsection (b)(7). See U.S.S.G. § 2A4.1
(1991). Subsection (b)(7)(B) applies to defendants who commit
another offense during or in connection with a kidnapping,
directing courts to cross reference the guideline level “applicable
to that other offense.” In this case, Smith committed attempted
murder. The plain language of subsection (b)(7)(B) indicates that
“other offense” refers to the offense that Smith actually
committed.
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CONCLUSION
We affirm Smith’s convictions. We vacate her sentence and
remand for re-sentencing.
AFFIRMED in part; VACATED in part and REMANDED.
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