United States Court of Appeals
For the First Circuit
No. 04-1099
UNITED STATES,
Appellee,
v.
STEPHEN SAVARESE,
Defendant-Appellant.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MAINE
[Hon. George C. Singal, U.S. District Judge]
Before
Torruella, Dyk* and Howard,
Circuit Judges.
Robert J. Ruffner with whom Vincent Kantz & Ruffner was
on brief for defendant-appellant.
F. Mark Terison with whom Paula D. Silsby was on brief
for appellee.
September 22, 2004
*
Of the Federal Circuit, sitting by designation.
DYK, Circuit Judge. The central question here concerns
the interpretation of section 2B3.1 of the U.S. Sentencing
Guidelines, which provides for a two-level enhancement of a
defendant’s offense level if the defendant engaged in carjacking.
U.S. Sentencing Guidelines Manual § 2B3.1(b)(5)(2003). We hold
that the district court’s enhancement of the defendant’s sentence
was not contrary to the Guidelines and that there was no plain
error in the district court’s failure to submit the fact issues
concerning enhancement to a jury.
I
The guidelines provide: “If the [robbery] offense
involved carjacking, increase by 2 levels.” Id. § 2B3.1(b)(5).
The Guidelines further define “carjacking” as “the taking or
attempted taking of a motor vehicle from the person or presence of
another by force and violence or by intimidation.” Id. § 2B3.1,
cmt. n.1. This provision is similar to the statute making
carjacking a criminal offense. See 18 U.S.C. § 2119 (2000). That
statute provides criminal punishments for “[w]hoever, 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.” Id. (emphasis added). Despite the minor differences in
language, we agree with the Sixth Circuit that the “person or
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presence” requirement of the Guidelines provision should be
interpreted to be the same as the “person or presence” requirement
of the criminal statute. United States v. Boucha, 236 F.3d 768,
775 (6th Cir. 2001); see also United States v. Bates, 213 F.3d
1336, 1340 (11th Cir. 2000) (reserving the question whether the
guidelines, like the carjacking statute, include a specific intent
requirement). The question thus becomes whether, on the facts of
this case, the “person or presence” requirement of the carjacking
statute has been satisfied.
II
A
At the sentencing hearing, the parties agreed that the
carjacking enhancement was to be based entirely on the facts in the
presentence report. Accordingly, the following facts are taken
from the presentence report. At approximately 8:30 pm on April 13,
2003, the appellant, Stephen Savarese, and an accomplice traveled
to the property of Frank and Beverly Shippee in Shapleigh, Maine,
on which the Shippees’ home and the Fort Ridge Trading Post, a shop
the Shippees operated, were located. Intending to steal firearms
from the Trading Post, Savarese and his accomplice pretended that
their car had had mechanical trouble. They forced their way into
the Shippees’ home when Mr. Shippee retrieved a cordless telephone
for them, attacking Mr. Shippee with a stick and threatening the
Shippees with a pistol and a shotgun. Once the Shippees had been
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subdued, the assailants demanded the combination to the lock on the
door of the Trading Post. While they pointed guns at Mr. Shippee,
they also demanded and took the keys to the Shippees’ SUV, which
was parked in the driveway. Unable to gain entry to the Trading
Post with the combination, Savarese broke a window in the door and
entered the shop. He returned to the Shippees’ home with duct tape
from the shop, with which the assailants bound the Shippees’ hands
and feet. Savarese then guarded the Shippees while his accomplice
stole twenty-nine guns from the Trading Post and loaded them into
the Shippees’ SUV, which they then drove to Savarese’s car, parked
nearby.
An eyewitness was able to identify Savarese’s car as
having been near the Trading Post on the night of April 13, and
Savarese was arrested on April 18. He subsequently pled guilty to
charges of (1) interference with commerce by robbery in violation
of 18 U.S.C. § 1951(a) and (b)(1); (2) using and brandishing a
firearm during and in relation to a crime of violence in violation
of 18 U.S.C. § 924(c)(1)(A)(ii); and (3) theft of firearms from a
federally licensed firearms dealer in violation of 18 U.S.C.
§ 922(u) and aiding and abetting such a theft in violation of 18
U.S.C. § 2.
Savarese was sentenced on December 15, 2003. With
respect to the second count, a minimum sentence of seven years,
consecutive to Savarese’s other sentences, was required. See 18
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U.S.C. § 924(c)(1)(A)(ii). The first and third counts were grouped
together pursuant to section 3D1.2(b) of the Guidelines. The base
offense level for the first count was 20, pursuant to section 2B3.1
of the Guidelines. The district court applied four enhancements,
each of two levels, under that section because (1) a threat of
death was made (§ 2B3.1(b)(2)(F)); (2) Mr. Shippee sustained bodily
injury (§ 2B3.1(b)(3)); (3) the Shippees were physically restrained
to facilitate the commission of the offense (§ 2B3.1(b)(4)); and
(4) the offense involved carjacking (§ 2B3.1(b)(5)). In addition,
the district court applied a one-level enhancement pursuant to
section 2B3.1(b)(6) of the Guidelines because firearms were taken,
for an adjusted offense level of 29.
Because the offense level for the first count was greater
than that for the third count, it became the offense level for the
grouped offenses. The district court reduced the offense level by
three levels to 26 because Savarese accepted responsibility for the
offense, pursuant to section 3E1.1 of the Guidelines. Savarese was
assigned to Criminal History Category I because he had no prior
criminal history, resulting in a Guideline range of 63-78 months.
The district court sentenced the defendant to 63 months on each of
the first and third counts, to be served concurrent with each
other, and 84 months on the second count, to be served
consecutively to each of the first and third counts. The district
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court also imposed a three-year supervised release term, a
mandatory assessment of $300, and restitution of $1,948.
At the sentencing hearing, Savarese objected to the
district court’s carjacking enhancement, asserting that the
enhancement provision did not apply to him because he took the keys
from the Shippees inside the house while the SUV remained outside
the house in the Shippees’ driveway.2 The district court relied on
the Sixth Circuit’s interpretation in Boucha of “presence” for
purposes of the carjacking enhancement, stating:
I’ve read the case law, scarce as it is
on this issue. The case that seems to come
the closest is [Boucha]. I think the court in
that case probably states the law correctly,
but I’m not sure the interpretation is a
reasonable one.
. . . I do believe that the law in this
circuit would be that the facts as set forth
in this case where a person’s car is right
outside their house, the keys are demanded and
received by way of force, and the car is
therefore taken from right outside the house
comes within what Congress intended in . . .
[the] carjacking statute and the enhancement
as applied in the sentencing guidelines.
So I think the enhancement applies, and
I’m severely troubled by the fact that it does
apply.
(Tr. of Sentencing Hr’g at 48-49.)
2
The defendant also requested a downward departure from
the Guidelines sentence, which the district court declined to
grant, and objected to the district court’s one-level enhancement
pursuant to section 2B3.1(b)(6) of the Guidelines because the
object of the theft was firearms. Neither of these matters is at
issue in this appeal.
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B
We review the “interpretation and application of the
United States Sentencing Guidelines” by the district court without
deference, and we review the district court’s findings of fact for
clear error. United States v. Caldwell, 358 F.3d 138, 142 (1st
Cir. 2004).
The issue under the carjacking statute (and hence under
the Guidelines) is whether the victims’ SUV was taken from the
“presence” of the victims when the defendant forced them to turn
over the keys. The government argues that, under the Guidelines,
merely “[f]orcibly taking the keys to [a] vehicle at gunpoint” is
sufficient for the carjacking enhancement to apply. (Br. of
Appellee at 19.) This interpretation ignores the fact that the
vehicle itself must be taken from the presence of the victim and
offers no limiting principle, encompassing the theft of keys to a
vehicle located miles away in distant parts of the city, or even in
a different city. We look to general purpose dictionaries from the
time of the statute’s enactment to determine the meaning of
statutory language. See, e.g., Carey v. Saffold, 536 U.S. 214,
219-20 (2002); see also Textron Inc. v. C.I.R., 336 F.3d 26, 32
(1st Cir. 2003).3 In contrast to the government’s interpretation,
“presence” is defined as “the part of space within one’s ken, call,
3
There is no meaningful legislative history with regard to
the meaning of “presence” in the statute. See generally H.R. Rep.
No. 102-851(I)-(III) (1992), reprinted in 1992 U.S.C.C.A.N. 2829.
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or influence : the vicinity of or the area immediately near one :
the place in front of or around a person.” Webster’s Third New
International Dictionary 1793 (1969); see also Webster’s Third New
International Dictionary 1793 (1993) (same). In interpreting the
carjacking statute, this court has looked to the common law meaning
of “presence.” United States v. Perez-Garcia, 56 F.3d 1, 3 (1st
Cir. 1995) (“Courts generally agree that taking from a victim’s
person is understood to include the common law conception of taking
from a victim’s presence.”). Thus, at a minimum, proximity to the
vehicle and the ability to influence the space encompassing the
vehicle is required.
While this court has not previously addressed this issue,
the authority from other circuits is basically consistent with this
definition. In interpreting a robbery statute that also contained
a “person or presence” requirement, the Ninth Circuit held that
“property is in the presence of a person if it is so within his
reach, inspection, observation or control, that he could if not
overcome by violence or prevented by fear, retain his possession of
it.” United States v. Burns, 701 F.2d 840, 843 (9th Cir. 1983)
(internal quotation marks omitted).
Relying on Burns, the Sixth Circuit in Boucha held that,
for purposes of the carjacking statute:
[P]roperty is in the presence of a person if
it is so within his reach, observation and
control that he could, if not overcome by
violence or prevented by fear, retain
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possession of it. Presence, thus defined,
requires a significant degree of nearness
without mandating that the property be within
easy touch; it must be accessible.
Boucha, 236 F.3d at 775. Other circuits have agreed. See United
States v. Edwards, 231 F.3d 933, 937 (5th Cir. 2000); United States
v. Moore, 198 F.3d 793, 797 (10th Cir. 1999); United States v.
Kimble, 178 F.3d 1163, 1168 (11th Cir. 1999); United States v.
Lake, 150 F.3d 269, 272 (3d Cir. 1998). In Boucha, the district
court had enhanced Boucha’s sentence for carjacking when, during
each of a series of bank robberies, Boucha had demanded keys to a
bank employee’s car parked in the bank parking lot, stolen the car,
and driven it to a nearby location where his car was parked.
Boucha, 236 F.3d at 770. The Sixth Circuit held that this
enhancement was proper:
In this case, the Court finds that the
district court did not err in giving a
two-level enhancement for carjacking. Boucha
brandished weapons, took keys and eventually
stole cars from frightened victims. The cars
were not miles away. Rather, . . . Boucha
stole from victims who parked their cars just
outside their place of employment. The cars
were accessible. Were it not for Boucha’s
actions and his use of fear and intimidation,
the victims could have maintained control of
their vehicles.
Id. at 776 (footnote omitted).
In addition, several other circuits have held that the
presence requirement of the carjacking statute was satisfied when
the victim or victims were inside a building and the stolen vehicle
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was parked outside the building. See, e.g., United States v.
Lopez, 271 F.3d 472, 486 (3d Cir. 2001) (holding that the presence
requirement of the carjacking statute was satisfied when the
victims were attacked and beaten inside their house and keys to a
van parked outside the house were taken); Moore, 198 F.3d at 797
(holding that the presence requirement of the carjacking statute
was satisfied when keys were taken from a bank employee whose car
was parked in a parking lot outside the bank); Kimble, 178 F.3d at
1168 (holding that the presence requirement of the carjacking
statute was satisfied when keys were taken from a restaurant
employee whose car was parked outside the restaurant); see also
Burns, 701 F.2d at 843 (holding that the presence requirement of 18
U.S.C. § 2111 was satisfied when the assailant threatened the
victim at gunpoint inside a smoke shop, asked for the victim’s car
keys, and, when told the keys were in victim’s car outside the
shop, took the car).
Nevertheless, these cases make clear that the presence
requirement is not boundless. In the carjacking context, courts
have required the victim to have both a degree of physical
proximity to the vehicle and an ability to control or immediately
obtain access to the vehicle. See Boucha, 236 F.3d at 776 (“The
cars were not miles away. . . . The cars were accessible.”);
Moore, 198 F.3d at 797 (“The keys to the vehicle were in [the
victim’s] immediate control and had she not been under the control
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of the defendant and fearful for her life, she could have easily
walked out the door to the parking lot and driven away in her car,
thus preventing the defendant from taking it.”); Kimble, 178 F.3d
at 1168 (“[The victim’s] car was not several miles away, but parked
right outside the restaurant. Had [the victim] not been in fear
for his safety, he could have reached the car and prevented its
taking.”). In these cases, the victims’ vehicles were taken under
circumstances such that, although the victims could not see or
touch their vehicles, they were close to the vehicles and possessed
a degree of control over the space in which the vehicles were
located. The statute thus applies only in a situation where the
vehicle remained in an area proximate to the victim and the victim
retained some degree of control over the space in which the vehicle
was parked.
In this case, the Shippees were not inside or immediately
next to their SUV when Savarese and his accomplice took the keys
from them. However, the vehicle remained proximate to them in the
driveway just outside their home, and the Shippees retained an
ability to control the area in which the vehicle was located. They
were induced to relinquish their keys only as a result of the
assailants’ threats and acts of violence. Thus, the SUV was
sufficiently proximate to them and within their control that, as in
Boucha, “[w]ere it not for [the assailants’] actions and [their]
use of fear and intimidation, the victims could have maintained
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control of their vehicles.” 236 F.3d at 776. Under such
circumstances, we agree with the Sixth Circuit in Boucha that “the
district court did not err in giving a two-level enhancement for
carjacking.” Id.
III
A final issue relates to the application of the Supreme
Court’s decision in Blakely v. Washington, 542 U.S. ___, 124 S. Ct.
2531 (2004), to the U.S. Sentencing Guidelines. In Blakely, the
Court held that a sentence that was enhanced pursuant to the
Washington state sentencing guidelines violated the rule of
Apprendi v. New Jersey, 530 U.S. 466 (2000), that, “[o]ther than
the fact of a prior conviction, any fact that increases the penalty
for a crime beyond the prescribed statutory maximum must be
submitted to a jury, and proved beyond a reasonable doubt.”
Blakely, 124 S. Ct. at 2536 (quoting Apprendi, 530 U.S. at 490).
The state argued that the enhancement of Blakely’s sentence did not
violate Apprendi “because the relevant ‘statutory maximum’ is not
53 months [as provided by the state sentencing guidelines], but the
10-year maximum for class B felonies [as provided by the state
statute].” Id. at 2537. However, the Court held:
Our precedents make clear . . . that the
“statutory maximum” for Apprendi purposes is
the maximum sentence a judge may impose solely
on the basis of the facts reflected in the
jury verdict or admitted by the defendant. In
other words, the relevant “statutory maximum”
is not the maximum sentence a judge may impose
after finding additional facts, but the
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maximum he may impose without any additional
findings.
Id. (citations omitted) (emphasis in original).
Although the Court expressly stated that “[t]he Federal
Guidelines are not before us, and we express no opinion on them,”
id. at 2538 n.9, the appellant urges that the rationale of Blakely
applies to the Federal Guidelines. The Supreme Court has recently
granted certiorari in two cases to resolve this issue. United
States v. Booker, 542 U.S. ___, 73 U.S.L.W. 3073, 3074 (Aug. 2,
2004); United States v. Fanfan, 542 U.S. ___, 73 U.S.L.W. 3073,
3074 (Aug. 2, 2004). However, we conclude here that, even if
Blakely is held to apply to the Federal Guidelines, there is no
basis for reversal in this case.
The appellant did not raise the jury trial issue in the
district court, nor did he request a jury trial with respect to
factual issues relating to the sentencing. Thus, we review the
district court’s enhancement of Savarese’s sentence for plain
error. See Fed. R. Crim. P. 52(b) (“A plain error that affects
substantial rights may be considered even though it was not brought
to the court’s attention.”); see also United States v. Cotton, 535
U.S. 625, 631 (2002) (holding that an Apprendi violation can be
considered under plain error analysis); United States v. Duncan,
___ F.3d ___, ___, 2004 WL 1838020, at *2 (11th Cir. Aug. 18, 2004)
(“[B]ecause Duncan failed to raise a Sixth Amendment argument
below, our review is limited to determining whether setting the
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base offense level based upon the sentencing judge’s finding of
cocaine base constitutes plain error in light of the Supreme
Court’s holding in Blakely.”); United States v. Ameline, 376 F.3d
967, 978 (9th Cir. 2004) (“Because Ameline did not object to his
sentence on the grounds that the Sentencing Guidelines or the
procedures used to determine the material sentencing facts were
unconstitutional under Apprendi, or on the ground that the material
sentencing facts were not alleged in the indictment, submitted to
the jury, or proved beyond a reasonable doubt, we review for plain
error.”); United States v. Donnelly, 370 F.3d 87, 92 (1st Cir.
2004) (reviewing a sentencing enhancement for plain error where the
defendant failed to address the second element of the enhancement
in his objection).
In determining whether an error is plain, the court
considers four factors:
[B]efore an appellate court can correct an
error not raised at trial, there must be (1)
error, (2) that is plain, and (3) that affects
substantial rights. If all three conditions
are met, an appellate court may then exercise
its discretion to notice a forfeited error,
but only if (4) the error seriously affects
the fairness, integrity, or public reputation
of judicial proceedings.
Cotton, 535 U.S. at 631-32 (quoting Johnson v. United States, 520
U.S. 461, 466-67 (1997)) (internal quotation marks, alterations,
and citation omitted). We conclude that at least the last of these
four requirements has not been satisfied.
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The appellant contends that the district court’s
enhancement of his sentence based on the following four findings by
the district court violates Blakely: (1) “that a threat of death
was made,” pursuant to section 2B3.1(b)(2)(F) of the Guidelines;
(2) “that a victim sustained bodily injury,” pursuant to section
2B3.1(b)(3); (3) “that the Shippees were physically restrained to
facilitate the commission of the offense,” pursuant to section
2B3.1(b)(4); and (4) “that the offense involved ‘carjacking,’”
pursuant to section 2B3.1(b)(5).4 (Supp. Br. of Def.-Appellant at
11.)
At the sentencing hearing, the defendant objected only to
the carjacking enhancement, not the other three enhancements now
challenged on appeal. The defendant made no claim that there was
a factual dispute as to any of these issues. In a sidebar
conference, the parties agreed that the carjacking enhancement was
to be based entirely on the facts in the presentence report and
that Mr. Shippee’s statement at the sentencing hearing was solely
for the purpose of a victim impact statement.5 Thus, the defendant
4
The district court increased the defendant’s base offense
level by two levels for each of these findings, pursuant to section
2B3.1(b).
5
Savarese’s counsel stated:
What I want to put on the record, I believe
the government agrees with [sic] is that [Mr.
Shippee’s] statement today was for the purpose
of a victim impact statement. . . . [T]he
government isn’t or wouldn’t be arguing that
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did not dispute the factual basis underlying any of the
enhancements. Under the Supreme Court’s decision in Johnson, we
conclude that this forecloses a finding of plain error.
In Johnson, the issue was whether the determination of
whether a false statement was material should have been submitted
to the jury, rather than the judge. 520 U.S. at 465. As here, the
defendant did not object to the judge’s finding of that fact,
although a subsequent Supreme Court decision required that the fact
be found by a jury. Id. In Johnson, the Supreme Court held that
the trial court’s error “was not ‘plain error’ of the sort which an
appellate court may notice under Federal Rule of Criminal Procedure
52(b)” because it did not satisfy the fourth requirement of the
plain error test. Id. at 465, 469-70. The Court noted that “the
evidence supporting materiality was overwhelming” and that
“[m]ateriality was essentially uncontroverted at trial and has
remained so on appeal.” Id. at 470 (internal quotation marks and
footnote omitted). Because “petitioner has presented no plausible
argument that the false statement under oath for which she was
convicted . . . was somehow not material to the grand jury
would be a basis for a factual determination
on some of the issues that we argued about
today.
(Tr. of Sent. Hearing at 45.) The government agreed, stating that
“the factual predicate for the court’s guideline determination is
what’s in the presentence report.” (Id.)
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investigation,” the Court held that “there is no basis for
concluding that the error ‘seriously affect[ed] the fairness,
integrity or public reputation of judicial proceedings.’” Id.
(quoting United States v. Olano, 507 U.S. 725, 736 (1993))
(alteration in original).
As in Johnson, the appellant here did not, in the
district court, challenge the facts that he argues should have been
submitted to a jury. That is enough to bring this case within
Johnson and to defeat the claim of plain error, whether or not the
defendant here, unlike the defendant in Johnson, has argued the
existence of a factual dispute now that the case is on appeal. In
this case, as in Johnson, “there is no basis for concluding that
the [failure to submit facts to a jury] ‘seriously affect[ed] the
fairness, integrity or public reputation of judicial proceedings.’”
520 U.S. at 470 (quoting Olano, 507 U.S. at 736) (second alteration
in original). Thus, there was no plain error.
IV
We hold that the district court’s enhancement of the
defendant’s sentence for carjacking was proper under section 2B3.1
of the Guidelines. In addition, the district court’s error under
Blakely, if any, in finding the facts underlying the enhancements
of the defendant’s sentence was not plain error. Accordingly, we
affirm.
It is so ordered.
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