*1 allevi- CONCLUSION will passenger service on scheduled safety and civil aviation concerns ate (1) Because we hold the Colorado Su- Authority City and the raise. needs the Arapahoe Court’s decision Coun- preme supports
Because the record v. Airport Authority Public Centennial ty Authority unrea findings final, that the FAA’s preclusive or Express Airlines is not powers sonably proprietary exercised its resolved dispositive the issues at Cen passenger service (2) to ban scheduled order; Authority’s final ban FAA’s Authority Airport, we hold the has tennial service is passenger on scheduled as legitimate scope power its exceeded by Supremacy statute and the preempted government under 49 U.S.C. or local state Clause; facts do not 41731(b) the Supremacy § Clause of prospective consideration how warrant States See U.S. the United Constitution. § amended 49 U.S.C. as Const, VI, Authority’s art. cl. 2. The ban apply, Authority’s we DENY the might law. preempted by is federal therefore and AFFIRM the Petition Review FAA’s final Order. Passenger on Ser- Limitations Scheduled vice City assert Authority
The and the passen if the ban on scheduled
that even unlawful, require is we should
ger service passenger operations FAA to rule that limited Airport must be
at Centennial nine-passenger light aircraft America, STATES of UNITED airports requiring amendments legislative Plaintiff-Appellee, 139 certificate for scheduled to have Part operations involving passenger aircraft FORTIER, Defendant- Michael J. See passenger than nine seats. more 44706(a)(2). Appellant. Airport § Centennial U.S.C. such a Further does not have certificate. No. 99-6381.
more, provides that the FAA the statute Appeals, Court Authority force the to obtain a cannot 44706(f). Tenth Circuit. See id. at certificate. it unnecessary The FAA concluded was 16, 2001. March
to resolve issue because effect; had taken amended statute not on passenger the ban scheduled service total, providing exception
at issue passenger with nine fewer
aircraft.
seats, as evidenced the fact the Author- injunction
ity sought and obtained srá-passen-
against Express’s Centennial to re- aircraft. We likewise decline
ger presented by not
solve this issue it is Authority facts in this does case. its ser- dispute passenger ban on FAA,
vice, indeed a as considered ban; claim Authority nor does the
total pending request provide service justify would further consideration
which amended statute. *2 opinion, see prior
Our 1219-23, culminating discusses facts original sen- guilty plea *3 facts for tencing; we reiterate relevant Nich- McVeigh Fortier knew and context. in together ols from their the service Army. McVeigh informed Fortier of the building plan to bomb the Murrah and many him provided with details the the Al- operation bombing. months before in though Fortier refused to take the Tulsa, OK, McGuire, Michael for the G. and conspiracy charged has not been Defendant-Appellant. co-conspirator, did sell firearms he some a gun Nichols had stolen from collector Attorney Connelly, Special Sean gave McVeigh proceeds. and of the $2000 General, Denver, Attorney States government stipulated that it can- CO, for Plaintiff-Appellee. the money specific trace to expenditures in made furtherance of the EBEL, PORFILIO, and Before bombing. LUCERO, Judges. Circuit bombing, pleaded After the Fortier LUCERO, F. Judge. CARLOS Circuit guilty conspiring transport to to stolen § in firearms violation of 18 U.S.C. Defendant-appellant Michael Fortier firearms in violation of transporting stolen to pleaded guilty several offenses stem- 922®, 924(a)(2), §§ making 18 U.S.C. ming Timothy from his involvement with the FBI in false statement violation Terry prior their and Nichols § a felo- misprision 18 and U.S.C. bombing Building of the Murrah Federal ny § in violation of 18 U.S.C. 4. Fortier City Fortier appeal- Oklahoma 1995. assisted the in prosecut- also sentence, ed his and this Court original ing McVeigh and Nichols and testified resentencing. vacated and remanded for against them at trials. their Fortier, See United States (10th Cir.1999). remand, original sentencing, On At his the district judge Fortier was resentenced to an identical sentenced Fortier 144 months in fine, $200,000 prison term and a fine. and a prison applying reduced Fortier the 2K2.1(c)(l) § reference in appeals claiming his second sentence cross the Sentencing vindictive erred 19942 United States Guidelines upward applying departure.1 Exercis- Manual calculate offense level. 2K2.1(e)(l) jurisdiction if ing pursuant Section states that a defen- U.S.C. possessed § § we in eon- 1291 and 18 U.S.C. affirm. dant used firearm this, challenged recognizing Perhaps the district level. 1. Fortier also court’s fense 2K2.1(c)(1) § application brief, U.S.S.G. reply abandoned claim in stat- court’s cross reference. The district reason- ing that was “irrele- discussion issue ing regarding application cross refer- at'13.) (Appellant's Reply vant.” Br. Although stating ence is unclear. applied, cross reference the court's calcula- 2. All references to the United Sentenc- tion of Fortier’s offense level started with the Guidelines are to 1994 Guidelines offenses, offense level firearms rather Manual unless otherwise indicated. The 1994 involuntary manslaughter than either of effect Guidelines Manual was version in at Thus, suggestion despite offense its levels. the time Fortier committed his crimes appears contrary, that the district court Fortier, sentencing. 2K2.1(c)(1) used in his See § one did not utilize cross refer- actually calculating n. ence when Fortier’s of- 1. nection with another crime that resulted in an brief. amicus Victims’ counsel also death, apply the court must the most anal- filed a seeking motion to participate oral ogous guideline homicide from U.S.S.G. argument.
Chapter applied 2A1. The district court At the resentencing hearing, the district 2A1.1, first-degree guideline. murder judge permitted partici- victims’ counsel to held appeal,
On Court that the dis- pate argue proper interpretation trict court erred in applying the first-de- Sentencing Guidelines. Victims’ gree guideline murder and concluded that counsel urged upward substantial depar- involuntary manslaughter guideline, ture, but asked the court to impose the fit,” “although perfect not a was most anal- same sentence as it had before to avoid ogous to Fortier’s situation. litigation additional concerning appear- *4 F.3d at 1280. Because base Fortier’s of- ance of that if might vindictiveness arise involuntary fense level without the man- the court a longer ordered sentence. slaughter cross reference was higher, the statement, its Reversing prior the court apply. cross reference did not See id. present allowed defense counsel to wit- (“The provides cross reference nesses, whereupon counsel stated that be- analogous guideline most offense under cause the court had previously indicated Chapter applied 2A1 must if only be ‘the that no evidence would be taken at the resulting greater offense level is than that resentencing, one of his witnesses was out determined’ under the base offense level of town. The judge district for a asked specific and offense characteristics found proffer, but defense counsel never made in section 2K2.1.” (quoting U.S.S.G. one. Defense counsel did not call his other 2K2.1(c)(l)(B))). § In for remanding re- witness, wife, potential although Fortier’s sentencing we stated: “Our today decision she was in the courtroom. ... requires the to begin [district] court Fortier was resentenced to 144 months with a significantly [offense lower level] $75,000 and a fine. In so court expect doing, number. holding We our dra- again stated it matically applying affect Mr. Fortier’s total offense U.S.S.G. 2K2.1(c)(l) reference, § level.” at 1232. Id. cross although calculating when Fortier’s offense level the Prior to Fortier’s resentencing, dis- began court with the offense level of twen- judge trict held telephone three confer- ty-four applicable to the firearms offenses ences with counsel to schedule and set the and then departed upward by thirteen lev- parameters of the resentencing hearing. els. The upward departures were based During conferences, first two the hear- on several Sentencing Guidelines sections: ing was rescheduled at the of request For- deaths); § § 5K2.1 (multiple (signif- 5K2.2 conference, tier’s At counsel. the third (extreme § icant physical injury); 5K2.3 September held on Fortier’s psychological injury); § (property 5K2.5 counsel inquired whether he would have damage); § option (disruption 5K2.7 of calling govern- witnesses at the re- functions); (endan- sentencing. § mental response, the district 5K2.14 judge stated he not anticipate “would germent public safety). health or An- (IV evidence,” we would have ROA at taking other factor the case out the 1994 43), or further allocution either Fortier Guidelines’ heartland was the absence or the victims of City the Oklahoma bomb- 3A1.4, § guideline, the current terrorism ing at the resentencing hearing. from the 1994 version the Guidelines (See applicable to case. Fortier’s V ROA Two of the victims of the City Oklahoma (“In 1994, at 142 Sentencing Commis- counsel, bombing, appearing through filed had a sion not envisioned terrorist act in prior resentencing brief to Fortier’s ask- the United encompassing mag- the court to impose upward depar- death, objection, ture. Over nitude of destruction judge and devista- permitted the victims’ brief to be filed as tion experienced [sic] that was the Okla- case, present “evi- the defendant must offense City bombing.”)-)
homa
by three levels
demon-
level was then reduced
dence of actual vindictiveness” to
timely
responsibility,
see
acceptance
process.
Id.
strate
violation
due
3E1.1,
two
for sub-
§
levels
U.S.S.G.
Claiming
resentencing
assistance,
As
id.
.1.
stantial
see
5K1
dis
plagued “with subtle but
process was
adjust-
departures
these
result of
vindictiveness,” Fortier
forms of
cernable
ments,
level was
Fortier’s final offense
argues
is consti
that his current sentence
com-
thirty-two, a one-level decrease as
Br.
(Appellant’s
at
tutionally defective.
sentencing.
initial
pared to his
21.)
failed
raise
claim bel
Having
II
ow,4
plain
our review for
error. See
process guar
due
(“Because
Constitutional
Flinn,
Defendant
F.3d
vindictively
prohibit
judges
antees
sentencing judge
did
alert
following
imposing harsher
sentences
claim,
only
we
vindictiveness
review
appeal. See North Carolina v.
successful
(citation omitted)); Sullivan,
plain error.”
711, 725-26,
Pearce,
U.S.
89 S.Ct.
a defen
(stating
at 374
that when
(1969);
L.Ed.2d 656
see also
a vin
not alert the trial
dant does
Sullivan,
United States
claim,
lim
“appellate
dictiveness
review
*5
(10th Cir.1992). As
374
this Court has
correcting
errors that affect
plain
ited
explained,
threaten a miscar
rights
substantial
limits,
does
Constitution
but
not
[t]he
(citation omitted)). Un
riage
justice.”
absolutely prohibit,
judge’s power
a
review,
plain error standard of
der the
impose
upon
a harsher sentence
remand
(1) “error,” (2)
be
that
],
there must
is
appellate
[Pearce
from an
court.
emphasized
“plain,”
Court
that due
that
substan-
Supreme
“affectfs]
“requires
that
process
vindictiveness
If
rights.”
tial
all three conditions are
against
having
a defendant for
success-
met,
may
exer-
appellate
court
then
fully attacked
first
must
conviction
cise its discretion to notice a forfeited
play
part
the sentence he receives
error,
only
“seriously
but
if
the error
a
after
new trial ...
defen-
[and]
a
fairness, integrity,
public
affect[s]
of such
apprehension
dant be freed of
reputation
judicial proceedings.”
retaliatory
motivation on the
States,
461,
Johnson v. United
520 U.S.
reason,
For
sentencing judge.”
467,
1544,
117 S.Ct.
Alternatively, presumption absent a suppose I opinion. could do a lot vindictiveness, Fortier several advances *6 things. I don’t guess know.... That’s of what instances he considers actual vin- a I haven’t by yet,” the matter researched he dictiveness district court: the resentencing hearing was sched- from the in originally City, said courthouse Kansas day a on uled for which Fortier’s counsel Kan. conflict; (2) scheduling had a district the Clay, Nolan Fortier’s Sentence Tossed
judge gave quoted interviews to and was Out, Oklahoman, 1,1999, Daily July The in Daily The Oklahoman newspaper; Judge 1. Fortier cites Van com- Bebber’s judge the district allowed victims’ counsel a demonstrating ments as vindictive state in participate resentencing process to the of mind. through briefing advocacy; and oral and Judge Van We read Bebber’s state- judge the district told counsel Fortier’s benign: they express opinion, ments as no present that he would not be permitted to P’ortier, indicate animus towards and witnesses, and then himself the reversed only that the un- judge demonstrate was day hearing, leaving Fortier’s wit- certain of decision. Although his not cited unprepared nesses and unavailable. Nei- government the notes that aggregate ther the of the four reasons judge’s may implicate statements Canon advanced, any nor subpart, warrants a 3A(6) of of the Code Conduct for United conclusion that the trial court was vindic- Judges, States which states that “[a] tive.
Judge public should abstain from comment Scheduling A. pending about a or impending proceeding any in While that language court.” scheduling Fortier’s claim borders broad, it a construing courts have held that on frivolous. being Acknowledging the a judge’s public comment does not create conflict, judge pre the district scheduled per of re appearance se bias. See In telephone sentence conferences to resched (D.C.Cir.1991) 913, Barry, 914 hearing, ule 946 F.2d hearing moved the counsel; (“[W]hile requested day all judge’s extrajudicial Fortier’s the district plea agreement preclud- his as voicing may views ... be violation construed of his an arguing of from for ing Code Conduct United States 3(A)(6) (1990), any ... Judges, see Canon dis- upward departure, a fact which the necessarily does not create such violation judge during trict aware was or appearance personal partiali bias Thus, only way original sentencing. ” v. ty (citing .... Halde United any could receive brief- (D.C.Cir.1976) man, 31, 559 F.2d 132-36 up- argument or oral on issue of (en curiam))). banc) (per But departures party. from third cf. ward was 985, Cooley, 1 States v. found, not party have and neither We Cir.1993) (finding judge’s impar that the cited, any au explicit authority either tiality questionable “ap when was he thorizing prohibiting or kind of victim pear[ed] on national television state his by the district court. participation allowed ongoing protests, views regarding arguments support government’s The protesters, and determination that his propriety participation by vic injunction going obeyed”). was to be unpersuasive. v. tims’ counsel are Morris As for Fortier’s claim that “Nolan 1610, 461 U.S. Slappy, S.Ct. writer, had Clay, [additional] numerous (1983), that “in the ad L.Ed.2d 610 holds with Bebber while Judge interviews Van may justice, ministration of criminal courts re-sentencing pending, Clay Mor ignore concerns victims.” others,” counsel and (Appel advised this ris considered the interest of a victim/wit 23), provides lant’s Br. at no affi testifying avoiding “the ordeal” of ness Clay davit any support other trial. a third That concern is different his contention other took interviews greater to material degree much evidentiary place. lack of support than that in this case. Victims’ claim. precludes review that See Scott request participate, counsel based their (10th Cir.2000) Hern, v. 32(c)(3)(E). on part, Fed.R.Crim.P. (“Where record per is insufficient to “present that rule permits While victims affirm.”); mit review we must SEC information in relation to the sen (10th Cir.1992) Thomas, tence,” by its only applies terms in the (holding that absence essential sentencing for “a crime of or sexu violence brief, party’s to the record in a references abuse,” al the crimes which Fortier *7 through” this Court will not the rec “sift pleaded guilty are neither violent nor sexu support party’s argu the ord find 32(c)(3)(E); al in nature. Fed.R.Crim.P. (citations omitted)). ments 32(f)(2) id. “crime of (defining see also 3A(6), Perhaps, considering Canon violence or sexual abuse” as “a crime that Judge grant- Bebber should not have Van the or attempted involved use or use Daily ed an to The interview Oklahoman. use physical against threatened of force However, the given neutral nature of his another”). or person property comments, any we do not discern vindic- Nichols, 1255, United let partiality, tiveness or indication (10th Cir.), denied, 1260, 1279 cert. rises level any plain alone 934, 336, U.S. S.Ct. L.Ed.2d error. (1999), thus Nich unpersuasive because ols, charged unlike was with Participation C. of Victims’ Counsel by Rule crime of violence as defined judge’s The district to al decisions 32(c)(3)(E). victims for two low counsel the Okla authority any absence of City bombing homa to file their amicus permitting participation of victims’ argue upward departure brief for an counsel, pro we harbor concerns about the during hearing sentencing form Al court’s priety rulings. district allegation basis of Fortier’s of vindic third parties argue harsher government lowing Fortier notes the third tiveness. per Report participate Presentence or to government sentences when plea of a probation mitted to do so the terms discussions with the officer an presents opportunity agreement Report. we drafting Finally, his indirectly what it is government to achieve express language plea note the of Fortier’s doing directly. prohibited from “Mr. agreement: Fortier further under- Cf. Brye, 146 F.3d States v. will stands his sentence be deter- Cir.1998) (“Where government obtains guidelines mined in accordance with the any significant guilty plea predicated ..., judge may but that the depart degree promise agreement on a guidelines those under some circum- must prosecuting attorney, promise such understands, stances” and “Mr. Fortier integrity to maintain the of the be fulfilled however, that sentencing judge will York, plea.” (citing Santobello v. New 404 have the sole discretion to determine the 257, 262, L.Ed.2d 427 U.S. 92 S.Ct. sentence, actual and the can- government omitted)). (1971)) (other citations any promises, rep- not and does not make representing with government is entrusted predictions regarding resentations or what society prosecuting the interests of (I judge impose.” sentence the will ROA appropriately; given criminals the nature 5.) Agreement Plea Letter at Doc. of Fortier’s involvement with Nichols and McVeigh and his assistance with the Okla Ruling Permitting D. Fortier case, City bombing homa Present Witnesses that the resolution appropriate concluded resentencing hearing, Prior to the with plea agreement was to enter into Sentencing Fortier filed a Memorandum in Fortier could rea the defendant. Because objected which he to the district court’s sonably agreement read to foreclose pre-hearing telephone conference denial of arguments upward departure, for an allow request his witnesses. At the participate upset victims’ counsel to his beginning resentencing hearing, expectations undermined the benefit objection noted Fortier’s bargain. of his granted request present witnesses: Despite misgivings, our we nevertheless a sentencing “You filed memorandum.... conclude that error does not warrant you wanted to know if could offer [Y]ou im- reversal of Fortier’s sentence. Most if I permit witnesses and will that. And raises this claim to show portantly, Fortier ruling made an earlier when we had our vindictiveness on the of the district call, I’m telephone reversing conference which, above, allegation judge, as stated (V 58.) myself on that.” ROA at plain review for error. The dearth of we the tardiness of this decision as construes concerning participation law at sen- him of effectively depriving the chance tencing of victims and their counsel outside present two because one out witnesses 32(c)(3)(E) scope precludes of Rule unprepared. of town and both were Forti “plain”— the conclusion that the error was *8 objection pending judge’s er had a “clear and was neither obvious” nor prior ruling, prof and he failed to make a “contrary to well-settled United law.” regarding testimony fer the witnesses’ 1296, Whitney, v. 229 F.3d 1309 States given when an to do so. Un opportunity (10th Cir.2000) (citation omitted). More- circumstances, these the district der over, we cannot determine whether vic- judge’s ruling in favor of Fortier was not actually any impact tims’ counsel had on vindictive. judge’s resentencing decision. The Re-Sentencing Supplement to the Presen- Ill Report lengthy tence contains a discussion reviewing upward departure, In an we sentencing options, including examine: upward departure by utilized grounds (1) whether the factual circumstances judge.
the district 'Victims’ counsel were any portion supporting departure permissible not to view of the are permitted 1232 co-conspira- charged not as factors; cause he was whether de-
departure tor, legal responsibility he bears by the dis- upon relied factors parture bombing. from the defendant trict court remove heartland thus applicable Guideline rejected posi- previously have We warranting departure; whether 1224-30, at we 180 F.3d tion. the factual sufficiently supports record Fortier could be sen- whether considered departure; and underlying the basis according of the homicide tenced is rea- degree departure whether the 2A1 Chapter of the cross references sonable. Man- Sentencing Guidelines United States possess did not and held that Fortier ual Collins, 122 F.3d v. United States rea, malice afore- requisite mens Cir.1997). (10th all “We review four according to the thought, to be sentenced analysis under steps departure conspir- or second-degree or murder first- of discretion standard.” unitary abuse guidelines, see id. at acy to commit murder Bartsma, F.3d v. United States concluded, however, that Forti- 1228. We Cir.1999) Collins, (10th (citing according to the could sentenced er be 1303). the court’s deci- “[W]here manslaughter be- involuntary guideline rests on factual depart sion whether to cause is en- findings, the district court’s decision tan- admits his conduct was Mr. Fortier deference.” United titled to substantial involun- criminally negligent tamount to Whiteskunk, 1244, 1249 162 F.3d have tary manslaughter. He should omitted). (10th Cir.1998) (citations of firearms had the ca- known his sale fact that the district court bombing further pacity to resentencing for the departed upward on (an Building offense he Murrah Federal not, itself, re by time does warrant first many knew for certain would result Court, a remand from this versal. On deaths). may argument A colorable be may court resentence a defendant district made, however, proven the facts given grounds, considering different on different case, conduct bordered on that his as departures, long or enhancements in the recklessness. There is evidence by scope foreclosed they are not from which one could infer Mr. record States v. appellate decision. See United aware of risk actually Fortier was (10th Cir.1998) Talk, disregard it. but chose instead remand, resentencing after (holding that Id. at 1229-30. only court was bound “[t]he deciding While not whether ..., previ own law of the case its negli- more akin to criminal “conduct was States v. depart”); ous refusal to recklessness,” 1230, our id. at gence' Cir.1997) Smith, that Fortier bears suf- prior opinion holds court (holding that on remand “the district bombing legal responsibility ficient sentencing pack is free reconsider departure. support upward an Several appellate court age de novo unless the by the dis- upon of the Guidelines relied specifically limited the district court’s dis per- upward departure trict court for the remand”). on cretion speci- sentence where the mit increased that the horror parties agree Both harm “resulted” from the defendant’s fied resulted of death and destruction (“If §§ 5K2.1 death conduct. See U.S.S.G. out City bombing falls (“If Oklahoma ”), significant phys- 5K2.2 resulted.... *9 heartland Sentencing (“If the Guidelines’ ”), side the injury ical resulted.... 5K2.7 departure. support upward can an signifi- and in a defendant’s conduct resulted However, interposes, there is an governmental Fortier func- disruption cant ”). his admitted the interpreted insufficient nexus between .... We have tion i'n City bomb from” the Guidelines as wrongdoing and the Oklahoma words “resulted for “an increased sentence permitting an ing permit upward departure —be- (“[Fortier] at ‘reasonably that were a foreseeable’ See id. 1229-30 should have harms capaci- of a defendant’s conduct” known his sale of firearms had the consequence directly ty bombing did not the of the Murrah even where a defendant further specified Building.”). Considering the harm. United States Federal these cause facts, Cir. Metzger, 233 F.3d district court did not abuse its lB1.3(a)(3) 2000) (citing ap increasing and discretion Fortier’s sentence U.S.S.G. an City a four-level enhancement where based on the toll of the Oklahoma proving off-duty bystander bombing.5 officer shot a as police attempted the defendant to flee a rob IV de
bery).
great
Fortier well knew —in
In
plain
the absence of
error sufficient
Nichols’s
McVeigh’s
plans
and
tail —
Fortier,
to demonstrate vindictiveness on the
Building.
bomb the Murrah
See
of the district
and
because the
ed). Moreover, ex- departures, all of the 5K2.7, trac- state The United States has no evidence for that found section cept ... any bombing expenditure depends the extent of the increase $2,000 by Fortier for given McVeigh serious the “extent to which death or upon The United States also has no Nichols. injury knowingly was intended or risked.” added). or Lori direct evidence that Michael (emphasis knowledge that Fortier had actual this Although United States Molina ob- $2,000 be or was used to further would “[cjase interpreting the ‘re- served the law bombing conspiracy, facilitate the language of subsection sulting from’ added). (emphasis lB1.3(a)(3) surprisingly sparse,” (2d Cir.1997), 1118, it construed stipulation critical to F.3d What makes this bodily my phrase permit applying sentencing considerations? ' language injury enhancements U.S.S.G. judgment, it is because 2B3.1(b)(2)(A) (b)(2)(C) §§ to all of the district court guidelines employed “reasonably that was a foreseeable” departure requires a harm justify upward Id. consequence of defendant’s conduct. the crimes of convic- causal link between (seven-level 2B3.1(b)(2)(A) at 1124-25 grounds departure. and the tion
1235 2B3.1(b)(3)(B) impossible § and thus to link to enhance- connected and four-level con- justified because co-defendants’ harm McVeigh ments the to the victims of the “ ‘put into motion chain of events’ Indeed, duct conspiracy. they Nichols were tragic result’ contained the ‘inevitable that explosion committed the resulted in after bystand- in being lodged the bullet the of in injury way death and and could have foot”). in adopted reasoning er’s We “chain of leading events” to initiated 1226, Metzger, v. 233 F.3d United States Because of bombing. temporal that (10th Cir.2000), affirming in defen- disconnection, neither of those crimes dant’s enhanced sentence under U.S.S.G. injury pur- could have caused the 2B3.1(b)(3)(B), § defendant’s recognizing pose of enhancement. and links in the “chain flight pursuit were Although remaining crimes of trans- in by of set motion his bank rob- events” porting weapons conspiring stolen to Walls, bery. See also United States v. place bombing, they do so took before the (7th Cir.1996) (upward 241-42 linkage had no more of a to the harm than 2K2.1(c)(B) § “if departure under U.S.S.G. know, aug- the other two. The facts we history criminal death results” based on by government’s stipulation, mented possession of a firearm that “result- illegal it difficult for to make me understand how bystander); ed in” of an innocent death “knowingly Mr. Fortier “intended” or Fox, v. United States transportation risked” that his of stolen Cir.1993) (all harm that resulted bombing firearms would result from unlawful use of unauthorized credit Yet, Building. the Murrah the court finds charges card included her husband made knowledge this connection in Mr. Fortier’s naturally “which flowed from” the unau- Fitzwater, use); McVeigh thorized plans. (6th Cir.1990) (two- 896 F.2d Indeed, states, the court here “Fortier 2B3.1(b)(3)(A)
level enhancement under
guns
McVeigh
knew
he sold
also
for
“reasonably
because
is
foreseeable” that
stolen
a ‘fund
Nichols were
raiser’
robbery might
in bank
participation
result
expenses
bombing.”
to
related to the
offset
injury
“the infliction of such an
to a
added).
ante,
Yet,
(emphasis
See
at 1232
teller”);
bank
United States v. Salazar-
even if it
knew
proven
were
Mr. Fortier
(5th Cir.1989)
Villarreal,
McVeigh
guns
and Nichols stole the
to
(defendant’s
flight
reckless
and the result-
expenses
conspiracy,
offset the
of their
injury
death
an alien and
to
others
proper
knowledge
supply
does not
illegally transported provided factual basis
case,
nexus.
In this
the chain of events
upward departure
of sentence under
knowledge
did
Mr.
not start with
statements).
§§
policy
5K2.1 and 5K2.2
In no
MeVeigh-Nichols conspiracy.
Each of those cases bears a common
way
was it
of the continuum between
making
appropriate,
thread
enhancement
and the harm to
the crimes of conviction
though
even
the resultant harm
not an
Indeed, it
the victims.
was collateral
of conviction. Each
element of the crime
events,
critical
and the
crime committed
a defendant started an
conceded as much.
unbroken chain of events—a continuum—
First,
government’s stipulation
ad-
though
that ended
unusual harm. Even
any agreement
mits there is no evidence of
actually
the defendant did not
inflict the
harm,
McVeigh,
criminal act started an uninter-
between
Nichols
his
rupted string
circumstances
which
the firearms
that Mr. Fortier was
sell
A
Second,
the harm resulted.
careful examination when he received them.
Mr. For-
necessary
of the record discloses
theft
party
tier was not a
chain
events
this case. guns
supposed agreement
nor to the
to sell
further the
proceeds
them and use the
easy
It
see
offenses of
Moreover,
only acquired
he
conspiracy.
making a
to the FBI and
false statement
felony
temporally
portion
guns
of a
are
dis-
of the stolen
as consideration
misprision
committed
the crimes
guns;
of those
accompany
agreement
*12
guns
had been
their results
long
McVeigh
after
and Nichols and
to Kansas
(5)
horrific;
even
stolen. United
uncomparably
were
Cir.1999).
The evidence
Fortier
crimes of which Mr.
though the
guns
in the
Fortier’s interest
suggests Mr.
connection
had no factual
was convicted
bombing conspiracy,
not to further the
horror,
and the
that
his associations
with
Indeed, with
wallet.
fatten his own
but to
require
victims
he be
suffered
harm
transported his
cooperation, he
McVeigh’s
than called for
severely
far more
punished
he
to Arizona where
guns
of the
share
I can neither
by the crimes of conviction.
two months.
It was
for at least
kept them
approve this view.
accept nor
so,
he
he
demanded
do
only
McVeigh
when
Indeed,
the chain of events described
Id.
gun shows.
them at local
sold some of
relies on this
the court’s footnote which
much
it is unclear how
Although
at 1221.
but it over-
logic,
has a facial
paradigm,
for, we
accounted
money all these sales
necessity
commencing
for
looks the
ultimately gave McVeigh
Fortier
know Mr.
of conviction. The
chain with the crimes
$2,000
to Nichols.
assumably to transfer
discrepancy is that two of the
most notable
$2,100
made
from the
also know he
Id. We
crimes,
felony
making
misprision of
least
three
sale and conducted
first
FBI oc-
untruthful statement
to the
sales,
be as-
may logically
which it
from
$2,000
bombing
place.
than the
he
took
he made more
curred
sumed
after
Finally, we do not know
gave McVeigh.
crime
is no nexus between
simply
There
money
sup-
with the
he
what Nichols did
Although
and harm
these instances.
McVeigh, leading to
posedly received from
remaining
finds the nexus to the
the court
I
point upon which base
the third critical
knowledge of
prior
crimes in Mr. Fortier’s
my disagreement.
McVeigh
conspiracy,
that
Nichols
tracing to
there is “no evidence
stipulated
if Mr.
knowledge only
significant
becomes
$2,000
...
any bombing expenditure
them
guns
took the stolen
to sell
Fortier
by Fortier for Nichols.”
given McVeigh
The court as-
McVeigh
and Nichols.
conjec-
anything
there
other than
Nor is
situation, but the evi-
sumes this was the
$2,000
bombing.
ture that links the
assumption.
obviates that
dence
only
one
I think these facts lead
It
Mr. Fortier
received
undisputed
is
evidentiary
simply
There is
conclusion.
weapons
pur-
for the limited
some of the
the record of this case for this
basis within
him
for his
pose
paying
consideration
court’s conclusion the harm suffered
accompanying McVeigh to Kansas. Forti-
bombing victims was
Building
the Murrah
er,
Moreover, gap I do not believe the chain of events between the crimes
logical harm to the victims
of conviction ignored explained.
can As be either record, only
view the surmise the court’s conclusion that
supports
harm was in the commission of foreseeable
his crimes. ignore repugnance
I do not Nichols, I
crimes of nor do pain, suffering, damage
minimize the Nonetheless, upon their victims.
visited guidelines, our I believe
under circumstances, jus- themselves do not
those meted out the district
tify sentences I con-
court. believe those sentences are law,
trary to and would reverse and again resentencing.
remand once WATSON,
Daniel as a minor friends,
next Jim and Sandra WAT
SON, Plaintiff-Appellant, BECKEL, Superintendent, D.
Robert Military Institute,
New Mexico Seth Orell, Cadets,
R. Commandant of New Military Institute,
Mexico Antonio
Pino, Christopher Cortez, Employees Military Institute,
of the New Mexico capacities,
all their individual De
fendants-Appellees.
No. 99-2290. Appeals,
United States Court of
Tenth Circuit.
March 2001.