United States Court of Appeals
For the First Circuit
No. 02-2504
UNITED STATES OF AMERICA,
Appellee,
v.
SAMUEL SANCHEZ,
Defendant, Appellant.
No. 02-2566
UNITED STATES OF AMERICA,
Appellee,
v.
RAYMOND ANDERSON,
Defendant, Appellant.
_____________________
APPEALS FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF RHODE ISLAND
[Hon. Ronald R. Lagueux, Senior U.S. District Judge]
Before
Selya, Circuit Judge,
Coffin and Stahl, Senior Circuit Judges.
George J. West for appellant Sanchez.
Robert B. Mann, with whom Mann & Mitchell was on brief, for
appellant Anderson.
Donald C. Lockhart, Assistant United States Attorney, with
whom Margaret E. Curran, United States Attorney, and Gerard B.
Sullivan, Assistant United States Attorney, were on brief, for the
United States.
January 7, 2004
SELYA, Circuit Judge. In these consolidated appeals, two
participants in a mindless carjacking and double homicide strive to
convince us that the district court sentenced them more onerously
than the law permits. After a painstaking review of the record, we
find that the sentencing court committed no reversible error.
Consequently, we leave the appellants' sentences intact.
I. TRAVEL OF THE CASE
Because the disputed sentences were imposed following
admissions of guilt, we glean the material facts from the change-
of-plea colloquies, the presentence investigation reports (PSI
Reports), and the transcripts of the disposition hearings. United
States v. Brewster, 127 F.3d 22, 24 (1st Cir. 1997); United States
v. Dietz, 950 F.2d 50, 51 (1st Cir. 1991). Those facts paint a
grisly picture.
On the evening of June 8, 2000, Samuel Sanchez, Raymond
Anderson, and three other men carjacked Jason Burgeson and Amy
Shute at gunpoint. After confronting the pair in downtown
Providence, the malefactors appropriated their vehicle, drove in
caravan style to a secluded area, murdered the abducted couple in
cold blood, and took what little cash they had. The brutal crime
attracted immediate attention and the authorities quickly rounded
up five suspects.
On December 18, 2000, a federal grand jury sitting in the
District of Rhode Island indicted Sanchez and Anderson (appellants
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here) and three others for conspiracy to commit a carjacking and
carjacking with death resulting. See 18 U.S.C. §§ 371, 2119, &
2119(3). The appellants eventually pleaded guilty to both counts
pursuant to written plea agreements in which the government
promised not to seek the death penalty. Two of the other persons
accused (Gregory Floyd and Harry Burdick) followed the same course
and were sentenced to life imprisonment. The final member of the
group (Kenneth Day) went to trial and, at the close of the
government's case, moved successfully for judgment of acquittal.
See Fed. R. Crim. P. 29.
The district court sentenced Sanchez on November 7,
2002.1 The court arrived at his offense level by applying the
first degree murder cross-reference, USSG §§2A1.1, 2B3.1(c);
granting a three-level reduction for acceptance of responsibility,
id. §3E1.1; and departing upward by three levels, id. §5K2.0.
These steps yielded a total offense level of 43. The court then
computed Sanchez's criminal history score, assigned him to criminal
history category (CHC) II, and sentenced him to life imprisonment.
The court sentenced Anderson six days later. It applied
the first degree murder cross-reference; granted a three-level
1
When the district court sentenced the appellants, the
November 2002 edition of the sentencing guidelines was in effect.
Consequently, we refer throughout to that version. 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.").
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reduction for acceptance of responsibility; and departed downward
by two levels, "one because of [Anderson's] substantial cooperation
and one because he [was] the least culpable." These steps yielded
a total offense level of 38. After calculating Anderson's criminal
history score, the court placed him in CHC III. This combination
(offense level 38; CHC III) produced a guideline sentencing range
(GSR) of 292-365 months. The court thereupon imposed a 30-year
incarcerative sentence. These timely appeals ensued.
Each appellant advances three assignments of error.
Sanchez challenges the district court's denial of a downward role-
in-the-offense adjustment, its rejection of his entreaty for a
downward departure, and its decision to depart upward. Anderson
also challenges the district court's denial of a favorable role-in-
the-offense adjustment and its refusal to grant a downward
departure based on his state of mind at the time of the homicides.
In addition, he questions the calculation of his criminal history
score (and, thus, his CHC). We treat the common role-in-the-
offense and downward departure issues first. We then address
Sanchez's objection to the district court's upward departure and
Anderson's complaint about the supposedly unwarranted inflation of
his criminal history score.
II. ROLE IN THE OFFENSE
We begin with the appellants' claims that they deserved
two-level reductions because they were minor participants in the
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offenses of conviction. A defendant who seeks a downward role
adjustment must bear the burden of proof on that issue. United
States v. Ocasio, 914 F.2d 330, 332-33 (1st Cir. 1990). The
ensuing question — whether to reduce the defendant's offense level
due to his minor or minimal role in the offense — is an inquiry
heavily driven by the facts. See United States v. Cruz, 120 F.3d
1, 3 (1st Cir. 1997) (en banc); USSG §3B1.2, cmt. (n.3(C)).
Because the sentencing court has a superior coign of vantage, we
must defer to its findings of fact unless those findings are
clearly erroneous. Ocasio, 914 F.2d at 333. If a set of facts can
lead plausibly to competing inferences, the sentencing court's
choice among them cannot be termed a clear error. Cruz, 120 F.3d
at 4; United States v. Ruiz, 905 F.2d 499, 508 (1st Cir. 1990).
Collectively, these standards are not appellant-friendly.
Recognizing that reality, we have warned that "absent a mistake of
law, battles over a defendant's status . . . will almost always be
won or lost in the district court." United States v. Graciani, 61
F.3d 70, 75 (1st Cir. 1995).
A. Sanchez's Role in the Offense.
Sanchez asserts that he neither introduced nor used the
murder weapon, eschewed any participation in the robbery of the
victims, and never threatened to rape Shute. On this basis, he
argues that he was less culpable than his coconspirators and
therefore deserving of a two-level downward adjustment as a minor
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participant. USSG §3B1.2(b). The district court rejected this
assertion, and so do we.
The Sentencing Commission has explained that section
3B1.2 "provides a range of adjustments for a defendant who plays a
part in committing the offense that makes him substantially less
culpable than the average participant." Id. §3B1.2, cmt. (n.3(A)).
The roster of available adjustments includes a modest adjustment
for minor participation and a somewhat more generous adjustment for
minimal participation. Id. §3B1.2.2 We have ruled that a
defendant who aspires to be classified as a minor participant bears
the burden of proving that he is both (i) less culpable than most
other participants in the offenses of conviction, and (ii) less
culpable than the average miscreant involved in offenses of the
same genre. See United States v. Ortiz-Santiago, 211 F.3d 146, 149
(1st Cir. 2000); Ocasio, 914 F.2d at 333. Sanchez cannot
conceivably run that gauntlet.
We need not tarry. Sanchez effectively admitted during
the change-of-plea colloquy that he furnished the car used in
committing the crimes, drove his comrades around downtown
Providence in search of victims, held himself available as a
"getaway driver" should the attempted carjacking go awry, suggested
2
The difference between minor and minimal participation is one
of degree. See United States v. Almanza, 225 F.3d 845, 847 (7th
Cir. 2000). This case does not require us to draw so fine a
distinction.
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where to take the victims following their abduction, searched the
carjacked vehicle for valuables, and used some of the appropriated
cash. He also admitted that other participants would testify that
he urged one of his companions (Floyd) to shoot the victims and
that he offered to kill them himself should Floyd balk. Given this
scenario, it beggars credulity to think that Sanchez could qualify
as a minor participant in the criminal activity. Consequently, we
discern no error, clear or otherwise, in the sentencing court's
denial of his request for a role reduction.
B. Anderson's Role in the Offense.
Anderson's claim that he deserved a two-level reduction
as a minor participant is somewhat more credible. He begins with
the sentencing court's comment, voiced during the disposition
hearing, that "[h]e was the least culpable [of the gang] because he
didn't participate in the actual shooting, and he didn't urge or
demand that these innocent young people be killed." This might be
thought faint praise, but we assume, for argument's sake, that it
constitutes a finding sufficient to satisfy the first prong of the
test for minor participation.
Although Anderson pleaded guilty both to conspiracy to
commit carjacking and to carjacking resulting in death, the
relevant charge for the comparative analysis required by the second
prong of the "minor participant" test is carjacking resulting in
death. Cf. Jones v. United States, 526 U.S. 227, 229 (1999)
-8-
(holding that 18 U.S.C. § 2119 defines three distinct crimes —
simple carjacking, carjacking resulting in serious bodily injury,
and carjacking resulting in death). In an effort to satisfy this
prong, Anderson points to the sentencing court's explicit finding
that he lacked an intent to kill and concludes that he must
perforce be less culpable than the average felon convicted of
carjacking resulting in death. This conclusion does not follow
from the indicated premise: whether a carjacker did — or did not
— harbor a subjective intent to kill is not a fact of talismanic
significance to a role-in-the-offense decision in a case of
carjacking resulting in death. Regardless of the lack of an intent
to kill, the instant record contains ample evidence from which the
sentencing court reasonably could have concluded that Anderson was
no less culpable than the average defendant convicted of that
offense.
On this record, a rational trier easily could have found
that Anderson recruited an accomplice (Sanchez) who made available
the car used in committing the crimes; that he accompanied his
coconspirators on their prowl through downtown Providence as they
hunted for potential victims; that he served as a lookout while the
group abducted not one but two innocent young people; that he
ordered the victims to exit the carjacked vehicle once the caravan
had reached the murder site; that he removed jewelry from Shute's
person just prior to her execution; and that he expressed no
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disapproval when his compatriots discussed the desirability of
murdering the victims. Given Anderson's continuous presence and
his willing participation in the aforedescribed events, the lower
court plausibly could have inferred, from the totality of the
circumstances, that he had failed to prove his entitlement to a
minor participation credit. See, e.g., United States v. Nuñez-
Rodriguez, 92 F.3d 14, 24 (1st Cir. 1996) (finding no clear error
in denial of minor role adjustment when defendant participated in
planning the carjacking, drove around with two coconspirators for
several hours searching for a likely victim, approached the chosen
victim with an armed associate, and drove the carjacked vehicle
from the scene despite having heard the fatal gunshot). We
conclude, therefore, that the sentencing court's denial of a
downward role-in-the-offense adjustment was not clearly erroneous.
III. DOWNWARD DEPARTURES
Each appellant sought the benefit of a guideline
provision (Application Note 1) that authorizes a downward departure
from the base offense level mandated by the first degree murder
cross-reference (43) "[i]f the defendant did not cause the death
intentionally or knowingly." USSG §2A1.1, cmt. (n.1). The
district court rejected these requests (although it granted
Anderson a downward departure on other grounds, see supra). The
appellants attempt to challenge these rejections. That is easier
said than done.
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As a general rule, a sentencing court's discretionary
refusal to depart is unreviewable. See, e.g., United States v.
Teeter, 257 F.3d 14, 30 (1st Cir. 2001); United States v. Pierro,
32 F.3d 611, 619 (1st Cir. 1994). At first blush, that rule would
seem to apply here because the decision whether to grant a
departure pursuant to Application Note 1 (appended to section
2A1.1) lies completely within the discretion of the sentencing
court. See Teeter, 257 F.3d at 29-30; see also USSG §2A1.1, cmt.
(n.1) (explaining that "downward departure may be warranted"
(emphasis supplied)). But this general rule — like most general
rules — admits of certain exceptions. One such exception covers
cases in which the sentencing court misapprehends its authority to
depart. See Teeter, 257 F.3d at 30; United States v. Gifford, 17
F.3d 462, 473 (1st Cir. 1994).
Each appellant endeavors to fit his case within the
narrow confines of this exception. As we explain below, neither
succeeds.
A. Sanchez's Departure Request.
Sanchez starts by adverting to case law that requires
trial courts to analyze a defendant's mental state after
determining that section 2A1.1 applies. See, e.g., United States
v. Carr, 303 F.3d 539, 544-48 (4th Cir. 2002), cert. denied, 537
U.S. 1138 (2003); United States v. Prevatte, 16 F.3d 767, 784 (7th
Cir. 1994). Using these cases as a springboard, he seeks to drape
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the denial of his departure request in the raiment of reviewability
by insisting that the sentencing court's failure to make a detailed
determination of his state of mind at the time of the slayings
demonstrated a misapprehension of its power to depart. This
argument does little to persuade us that the sentencing court was
unaware of its departure-granting authority.
If the district court had granted a downward departure on
the basis of Application Note 1, it would have had to factor in the
defendant's state of mind to assess the extent of the departure.
See USSG §2A1.1, cmt. (n.1) (explaining that if a departure is
granted, the sentencing court should base its extent, inter alia,
"upon the defendant's state of mind"). But no such direction is
provided as to the underlying decision to depart — and here, the
district court denied the departure request. Thus, the issue is
not what analysis the district court made, but, rather, whether it
was required to make particularized findings at all. We think not.
In general, sentencing courts are under no obligation to
make specific findings when denying departure requests. See United
States v. DeCosta, 37 F.3d 5, 8 (1st Cir. 1994) (explaining that
"the district court is not required to give reasons for refusing to
depart"). We agree with the Tenth Circuit that this precept
extends with undiminished force to the denial of an Application
Note 1 departure. See United States v. Nichols, 169 F.3d 1255,
1276-77 (10th Cir. 1999) (concluding that "[n]othing in [USSG
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§2A1.1] requires a district court to make any findings when
deciding whether to depart"). Indeed, we held as much, albeit in
an unpublished opinion, in United States v. Diaz-Pabon, 187 F.3d
623 (1st Cir. 1998) (table), in which we ruled that "the sentencing
court was under no duty to analyze the factors set forth in
Application Note 1 to justify its discretionary decision not to
depart from the guidelines . . . ."
That holding undermines Sanchez's argument. Because the
district court had no obligation to make specific findings, we
cannot interpret the absence of a detailed discussion of Sanchez's
state of mind as an indication that the court misunderstood its
discretionary powers. See United States v. Grandmaison, 77 F.3d
555, 564-65 (1st Cir. 1996) (explaining that mere ambiguity in the
sentencing record is insufficient to render the court's refusal to
depart reviewable on appeal).
In all events, we must consider the whole of the record
when determining whether a sentencing court misapprehended its
authority to depart. See United States v. DeLeon, 187 F.3d 60, 69
(1st Cir. 1999); United States v. Morrison, 46 F.3d 127, 130-31
(1st Cir. 1995); Gifford, 17 F.3d at 474-75. Here, the district
court supportably found that Sanchez had urged Floyd to shoot the
victims and had offered to kill them himself if Floyd faltered. At
least implicit in those findings was the court's conclusion that
Sanchez had an intent to kill (and, consequently, that he was
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ineligible for the desired departure). Viewed in this light, it
cannot be said that the sentencing court misunderstood its
departure-granting authority. Therefore, we do not have
jurisdiction to review Sanchez's assignment of error. See Teeter,
257 F.3d at 30 ("[W]e lack jurisdiction to review the court's
refusal to invoke Application Note 1 unless there is some reason to
believe that the court misunderstood its options.").
B. Anderson's Departure Request.
Anderson — like Sanchez — seeks to characterize his case
as one in which the district court misperceived the extent of its
authority to depart under Application Note 1. Specifically,
Anderson spotlights the sentencing court's statement that "[h]e
didn't have an intent to kill" and complains that the court failed
to realize that this finding paved the way for a possible downward
departure. To prove his point, Anderson singles out a passage from
the transcript of the disposition hearing, in which the judge
explained:
The defendant argues that he shouldn't have a
total offense level of 43 because he had no
intent to kill. But as I've just indicated,
he is charged with that intent because he is
an aider and abettor, and whether it's
considered a second degree murder or a first
degree murder, if it was tried in the state
courts the fact of the matter is that he was
an accessory before the fact of murder in this
case. So the total offense level of 43 is
correct.
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In Anderson's view, this rationale reveals the court's total
unfamiliarity with the authority granted to it by Application Note
1.
Anderson's argument elevates hope over reason. The
sentencing court's attempt to explain why it chose not to depart,
despite Anderson's perceived lack of an intent to kill, was not
especially articulate — but what is conspicuously absent from the
quoted passage is any indication that the court felt constrained in
its ability to depart. Application Note 1 gives the sentencing
court discretion to depart or not, as the court sees fit, if it
finds that a given defendant did not cause the death intentionally
or knowingly. On a fair reading of the court's comments in this
case, it seems highly likely that the court was looking to
analogous state criminal law for guidance on how to exercise that
discretion. The fact that the court had recognized its authority
to depart under the self-same rubric at Sanchez's sentencing — held
just six days earlier — reinforces this conclusion. We therefore
dismiss Anderson's assignment of error as unreviewable. See
Teeter, 257 F.3d at 30.
IV. THE UPWARD DEPARTURE
At sentencing, the district court ruled that Sanchez's
case fell outside the heartland of comparable carjacking cases and
determined that a three-level upward departure was appropriate.
The court based this determination on five factors: death
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resulting, abduction, use of a weapon, extreme conduct, and
criminal purpose. Each of these is a recognized — indeed, an
encouraged — ground for a departure. See USSG §§ 5K2.1 (death
resulting), 5K2.4 (abduction), 5K2.6 (use of a weapon), 5K2.8
(extreme conduct), 5K2.9 (criminal purpose); see generally Koon v.
United States, 518 U.S. 81, 94 (1996) ("Encouraged factors are
those 'the [Sentencing] Commission has not been able to take into
account fully in formulating the guidelines.'" (quoting USSG
§5K2.0)). If the sentencing court finds an encouraged factor in a
particular case, "the court is authorized to depart if the
applicable Guideline does not already take it into account." Koon,
518 U.S. at 96.
Sanchez assigns error to the departure decision,
insisting (i) that the court's consideration of these five factors
constituted double counting, and (ii) that, in all events, their
application was unwarranted in his case. We disagree with these
allegations.
Before addressing Sanchez's claims, we comment briefly
upon the standard of review. The law is currently unsettled as to
whether the PROTECT Act, Pub. L. No. 108-21, 117 Stat. 650, 670, to
be codified at 18 U.S.C. § 3742(e) (2003), applies to departure
decisions made prior to April 30, 2003 (the Act's effective date).3
3
Although a panel of this court decided that issue in United
States v. Thurston, No. 02-1966, slip op. at 45-47 (1st Cir. Aug.
4, 2003) (applying the PROTECT Act's standard of review to appeals
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Thus, our standard of review is in doubt. Compare id. (directing
de novo review of departure decisions), with United States v.
Dethlefs, 123 F.3d 39, 43-44 (1st Cir. 1997) (describing more
deferential pre-PROTECT Act standard of review). Here, however, we
would affirm the district court's departure decision under either
standard, and so we leave the question unresolved.
A. Double Counting.
Sanchez's first claim — double counting — posits that the
departure factors relied upon by the district court were already
adequately taken into account, either as specific offense
characteristics or as other adjustments, in determining his GSR.
We are fully satisfied that the sentencing court did not engage in
any double counting when it considered four of the five factors —
abduction (§5K2.4), use of a weapon (§5K2.6), extreme conduct
(§5K2.8), and criminal purpose (§5K2.9) — as grounds for an upward
departure. We explain briefly.
Sanchez makes no coherent argument as to why the
sentencing court's use of extreme conduct or criminal purpose in
the departure calculus would constitute double counting. In
contrast, his argument as to abduction and use of a weapon is
coherent but unavailing. It hinges on the fact that the carjacking
guideline is derived from, and generally congruent with, the
pending as of April 30, 2003), that opinion has been withdrawn for
reconsideration by the panel.
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guideline for robbery. See USSG §2B3.1. Seizing on this
congruence, Sanchez notes that the guideline for robbery allows for
the consideration of abduction and use of a weapon when calculating
a defendant's base offense level. See id. §2B3.1(b).
It does not follow, however, that abduction and use of a
weapon are already taken into account in carjacking cases in which
the murder enhancement applies. Once a court decides upon the
applicability of the first degree murder cross-reference, id.
§2B3.1(c), proper procedure requires it to ignore the specific
offense characteristics listed under the robbery guideline and move
directly to USSG §2A1.1. The sentencing court followed this
protocol in Sanchez's case. Consequently, there was no double
counting.
This leaves the sentencing court's application of the
"death resulting" factor (§5K2.1). It is at least arguable that
this can be construed as double counting: the court might already
have provided an enhancement for the fact that the carjacking
resulted in death when it followed the instructions found in USSG
§2B3.1(c) and applied the first degree murder cross-reference. See
United States v. Barber, 119 F.3d 276, 280-81 & n.3 (4th Cir. 1997)
(suggesting that the first degree murder guideline already takes
into account the fact that death resulted).
This logic is not defeated by the fact that sentencing
courts are authorized, in certain circumstances, to depart from the
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guidelines even though the reason for departure has been taken into
consideration as a specific offense characteristic or other
adjustment. That authorization is limited to situations in which
"the court determines that, in light of unusual circumstances, the
weight attached to [the relevant] factor under the guidelines is
inadequate." USSG §5K2.0. It would be surpassingly difficult to
contend that the first degree murder cross-reference (which raised
Sanchez's offense level to 43 — the maximum contemplated by the
sentencing guidelines) attributed inadequate weight to the victims'
deaths.
Of course, this case is different in the sense that two
persons — not just one — were slain. That distinguishing
characteristic might very well suffice to counter the charge of
double counting. Courts may consider whether the crime resulted in
multiple deaths when determining the extent of a departure, see id.
§5K2.1, and, by analogy, it would seem sensible to allow
consideration of that fact in determining whether to depart at all.
Moreover, Sanchez would have received the same base offense level
had the carjacking resulted in only one death, so it might well be
said that the first degree murder cross-reference failed to take
the second death into account. These considerations would tend to
justify departing upward. Cf. United States v. Menzer, 29 F.3d
1223, 1234-35 (7th Cir. 1994) (using similar reasoning to support
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an upward departure in light of the arson guideline's second degree
murder cross-reference).
In the last analysis, however, we need not resolve this
question. Even if the sentencing court engaged in double counting
with regard to the "death resulting" factor — a matter that we do
not decide — the departure as a whole would be sustainable. We
have said in the past that
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
district court's view of the sentence
rightfully to be imposed.
United States v. Diaz-Bastardo, 929 F.2d 798, 800 (1st Cir. 1991);
see also Williams v. United States, 503 U.S. 193, 203 (1992);
Nuñez-Rodriguez, 92 F.3d at 19. These requirements are fully
satisfied here.
In this instance, the four remaining factors cited by the
sentencing court provide ample justification for the relatively
moderate three-level upward departure. Notwithstanding Sanchez's
hyperbolic efforts to classify the extent of the departure as
unreasonable, we previously have affirmed similar (and even
significantly larger) departures, including departures based upon
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analogous circumstances. See, e.g., United States v. Carrion-Cruz,
92 F.3d 5, 6-7 (1st Cir. 1996) (per curiam) (affirming a three-
level departure from level 40 to level 43 due to the "sordid facts"
in a multiple-death carjacking case); see also United States v.
Chapman, 241 F.3d 57, 65 (1st Cir. 2001) (collecting First Circuit
cases affirming departures ranging up to 300%).4 As to the final
element of the Diaz-Bastardo test, the district court made
abundantly clear its belief that the only appropriate sentencing
outcome for Sanchez was life imprisonment. The double-counting
claim is, therefore, impuissant.
B. Sufficiency of the Evidence.
Next, Sanchez argues that whether or not these five
factors were legally available, they were factually unsupported
(and, thus, should not have figured in the departure calculus).
This is whistling past the graveyard: the record contains more
than enough evidence to justify the use of each of the five
factors.
A detailed exegesis would serve no useful purpose. The
short of it is that the victims were abducted at gunpoint and
transported to a secluded location, where they were psychologically
4
In a rhetorical flourish, Sanchez labels his "outsized" life
sentence a cruel and unusual punishment. Appellant's Br. at 20.
The entire Eighth Amendment argument spans only two sentences and
Sanchez cites no authority for it. Because this claim is
perfunctory and unaccompanied by developed argumentation, we deem
it waived. United States v. Zannino, 895 F.2d 1, 17 (1st Cir.
1990).
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tormented for a period of time before being murdered execution-
style in order to protect the identities of the perpetrators.
Against this grim backdrop, only two of Sanchez's subsidiary
arguments merit further discussion.
First, Sanchez asseverates that the "use of a weapon"
factor does not apply because he never actually used the gun. This
asseveration rings hollow. The relevant guideline provision refers
to the use or possession of a weapon "in the commission of the
offense." USSG §5K2.6. To warrant the application of this
provision, it ordinarily suffices that the defendant and the
shooter are convicted as coconspirators. See United States v.
Connor, 950 F.2d 1267, 1277 (7th Cir. 1991) (indicating that
section 5K2.6 will be available where "the possessor of the gun and
the defendant are coconspirators, the possessor[] of the gun
possessed it in furtherance of the conspiracy, and the defendant
was a member of the conspiracy at the time of the possession of the
gun").
Second, Sanchez makes a determined assault on the
sentencing court's use of the "death resulting" datum. Sanchez's
attack rests essentially on two facts: that Sanchez himself
neither seized control of the victims' car nor pulled the trigger.
These facts are true as far as they go, but they do not take
Sanchez very far. His argument unrealistically discounts his
actual participation in the criminal activity. As supportably
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found by the sentencing court, Sanchez, among other things, served
a critical function as an available getaway driver and actively
urged Floyd to kill the victims. We have said before — and today
reaffirm — that section 5K2.1 (encouraging "death resulting"
departures) may bear the weight of an upward departure even when
the defendant is not the direct cause of the victim's death.
United States v. Diaz, 285 F.3d 92, 101 (1st Cir. 2002) ("We see no
basis for foreclosing departure under §5K2.1 when a defendant puts
into motion a chain of events that risks serious injury or death,
even when an intent to harm is entirely absent and the defendant
was not directly responsible for the death."); accord United States
v. Scheetz, 293 F.3d 175, 191 (4th Cir.), cert. denied, 537 U.S.
963 (2002); United States v. White, 979 F.2d 539, 545 (7th Cir.
1992).
For the foregoing reasons, we uphold the district court's
decision to depart upward by three levels in sentencing Sanchez.
V. THE CHC ASSIGNMENT
In 1999, Anderson was twice convicted of misdemeanors
(once for obstructing a police officer and once for possession of
marijuana). On each occasion, the state court sentenced him to
probation. At the disposition hearing in the instant case, the
district court assigned Anderson to CHC III based on the two
misdemeanor convictions (worth one point apiece toward his criminal
history score) and the fact that, at the time of the carjacking, he
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was still on probation (worth two points toward his criminal
history score). Anderson deems these four points unwarranted and
maintains that he should have been assigned to CHC I. Refined to
bare essence, his argument rests on the notion that the prior
convictions were improperly considered because Anderson neither had
an attorney at the misdemeanor plea hearings nor knowingly and
intelligently waived his right to counsel.
This argument runs headlong into a documentary obstacle:
the state court records contain signed waivers of the right to
counsel. Anderson attempts to confess and avoid. He concedes that
he signed the waiver forms but maintains that he never understood
the forms to waive his right to counsel (he regarded them merely as
boilerplate needed to effectuate his pleas of nolo contendere).
Anderson advanced this construct in his objections to the
PSI Report. The district court overruled the objections, stating:
[Anderson] waived counsel. There's a written
waiver in the record that he signed. There's
been no evidence to convince me that he didn't
understand what he was doing.
On that basis, the court concluded that the sentencing guidelines
obliged it to take account of both the prior misdemeanor
convictions and the consequent probationary term. USSG §§4A1.1,
4A1.2. It then assigned Anderson to CHC III, observing that, if
anything, CHC III underrepresented the extent of Anderson's prior
criminal activity. We discern no error.
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We begin with the basics. In a federal criminal case, a
defendant's CHC depends upon his criminal history score. See id.
§4A1.1, cmt. Where, as here, the government establishes the
existence of a prior conviction, the burden shifts to the defendant
to establish that the conviction is constitutionally infirm or
otherwise inappropriate for consideration. United States v. Gray,
177 F.3d 86, 89 (1st Cir. 1999); United States v. Unger, 915 F.2d
759, 761 (1st Cir. 1990). If the defendant fails to carry this
burden, the sentencing court may then consider the prior conviction
in compiling the defendant's criminal history score (and,
ultimately, his CHC).
In this instance, the government established that
Anderson had two prior misdemeanor convictions. For his part,
Anderson tried to remove them from the equation by showing that he
was deprived of counsel in violation of the Sixth Amendment.
Anderson's argument is a non-starter: there is no constitutional
right to counsel in a misdemeanor case in which the defendant is
not sentenced to a term of immurement. See Scott v. Illinois, 440
U.S. 367, 373-74 (1979) (holding that the Sixth Amendment
guarantees a right to counsel only if a misdemeanant ultimately is
sentenced to a term of imprisonment). That point alone seems
sufficient to derail Anderson's claim. After all, "an uncounseled
misdemeanor conviction, valid under Scott because no prison term
was imposed, is also valid when used to enhance punishment at a
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subsequent conviction." Nichols v. United States, 511 U.S. 738,
749 (1994).5
We add, for the sake of completeness, that Anderson's
claim has yet another shortcoming. Even assuming that he had a
right to counsel during the misdemeanor proceedings, the district
court found that he had knowingly and intelligently waived that
right. The standard of review applicable to the district court's
underlying factual finding — that Anderson understood the import of
the waivers when he signed them — would be clear error. Unger, 915
F.2d at 762. In the circumstances of this case, it simply cannot
be said that the district court clearly erred in making that
determination.
The proof of the pudding is in the eating. Anderson
acknowledges that he signed a waiver form with respect to each of
the prior convictions. These forms plainly notified him of his
5
Anderson might have had a right to counsel under Rhode Island
law. See Nichols, 511 U.S. at 748 n.12 (noting that states are
allowed to extend the right to counsel beyond the federal right,
to, for example, all cases in which imprisonment is merely
authorized by statute). We need not pursue that possibility for
two reasons. First, Anderson makes no developed argumentation to
that effect. Second, the Supreme Court has limited the
circumstances in which a defendant can collaterally attack a state
conviction, for federal sentencing purposes, to cases involving
Sixth Amendment violations. See Custis v. United States, 511 U.S.
485, 487 (1994) (holding that a defendant in a federal sentencing
procedure can collaterally attack prior state convictions only if
those convictions were obtained in violation of the Sixth Amendment
right to counsel); see also United States v. Munoz, 36 F.3d 1229,
1237 (1st Cir. 1994) (extending the Custis doctrine to cases
arising under the federal sentencing guidelines).
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right to consult an attorney of his own choosing or to have one
appointed if he could not afford private representation. The
language that appears directly above Anderson's signature on each
form, in bold upper-case letters and partially underscored, is
telling:
I HAVE READ AND REVIEWED THE ENTIRE CONTENTS
OF THIS PAPER AND I HAVE NO QUESTIONS AS TO
WHAT IT STATES AND MEANS AND I UNDERSTAND IT
COMPLETELY. I WISH TO PROCEED WITHOUT A
LAWYER REPRESENTING ME KNOWING THE ABOVE
RIGHTS. I SWEAR TO THE TRUTH OF THE ABOVE.
In an effort to counteract this powerful evidence,
Anderson offers primarily his assertion that he misunderstood the
purport of the proffered documents not once, but twice. The short
answer to this plaint is that the district court found it
incredible. That is not the stuff of clear error. A trial court
is not bound to credit a defendant's self-serving statements. See
Cuppett v. Duckworth, 8 F.3d 1132, 1139 (7th Cir. 1993) (explaining
that "self-serving statements by a defendant that his conviction
was constitutionally infirm are insufficient to overcome the
presumption of regularity accorded state convictions"); see
generally United States v. Jimenez-Perez, 869 F.2d 9, 12 (1st Cir.
1989) ("It is . . . apodictic that a trier of fact is not bound to
accept the self-serving stories of persons accused."); United
States v. Cintolo, 818 F.2d 980, 989 (1st Cir. 1987) (similar).
Here, as elsewhere, the court may draw reasonable inferences from
the totality of the circumstances.
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In a last-ditch effort to salvage this claim, Anderson
notes that the transcript of his August 11, 1999 plea colloquy
cannot be located. In a related vein, he points out that, when the
state court judge asked him at the November 19, 1999 hearing
whether he had any questions as to what was meant by signing the
waiver form, his response was recorded as "inaudible." These facts
are part of the totality of the circumstances — but in the end,
Anderson adverts to nothing that affirmatively demonstrates the
constitutional infirmity of the prior convictions. In the absence
of such evidence, the district court was not obliged to draw
inferences favorable to Anderson from either the wayward transcript
or the inaudible response. See Parke v. Raley, 506 U.S. 20, 29-30
(1992) (deciding that reliance on the mere unavailability of a
transcript does not surmount the "presumption of regularity" that
attaches to a final judgment).
That ends this aspect of the matter. Credibility
determinations at sentencing are within the exclusive province of
the trial court. United States v. Sepulveda, 15 F.3d 1161, 1200
(1st Cir. 1993). Thus, we respect the sentencing court's decision
not to credit Anderson's testimony that he misunderstood the clear
and pointed language of the waiver forms. See United States v.
Cruz-Alcala, 338 F.3d 1194, 1198 (10th Cir.) (deferring to a
district court's credibility determination in a similar uncounseled
misdemeanor case), cert. denied, 72 U.S.L.W. 3407 (Dec. 15, 2003).
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On this record, the sentencing court did not err in finding that
Anderson knowingly and intelligently waived his right to counsel.
This brings us full circle. The Sentencing Commission
has gone to some lengths to explain that "[p]rior sentences, not
otherwise excluded, are to be counted in the [defendant's] criminal
history score, including uncounseled misdemeanor sentences where
imprisonment was not imposed." USSG §4A1.2, cmt. (backg'd.).
Anderson's prior convictions fit neatly within this integument, and
we have determined that those prior convictions suffered from no
cognizable constitutional defects. Consequently, the sentencing
court's calculation of Anderson's criminal history score was
proper. See Nichols, 511 U.S. at 749 ("[A]n uncounseled
misdemeanor conviction, valid under Scott because no prison term
was imposed, is also valid when used to enhance punishment at a
subsequent conviction."). So too was its assignment of this
defendant to CHC III.
VI. CONCLUSION
We need go no further. This was a horrific crime,
demanding stern punishment. The district court took its task
seriously and approached the matter of sentencing with care.
Because nothing in the record so much as hints that the court
committed reversible error in sentencing either of the appellants,
we affirm the judgments below.
Affirmed.
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