UNITED STATES OF AMERICA, Plaintiff-Appellee, v. ROBERT A. SOY, Defendant-Appellant.
No. 03-3438
United States Court of Appeals For the Seventh Circuit
ARGUED SEPTEMBER 8, 2004—DECIDED JUNE 28, 2005
No. 04-1218 ROBERT A. SOY, Petitioner-Appellant, v. UNITED STATES OF AMERICA, Respondent-Appellee. Appeals from the United States District Court for the Northern District of Indiana, Hammond Division. Nos. 92 CR 42 & 00 C 624—Rudy Lozano, Judge.
RIPPLE, Circuit Judge. Robert A. Soy was convicted on arson and explosives charges and was sentenced to life im-
I
BACKGROUND
A. Facts
We have set forth the facts relevant to this litigation in two prior opinions, United States v. Prevatte (Prevatte I), 16 F.3d 767 (7th Cir. 1994), and United States v. Prevatte (Prevatte II), 66 F.3d 840 (7th Cir. 1995). We assume familiarity with those opinions and, consequently, recount only those facts essential to the disposition of Mr. Soy‘s present claims.
In 1991, Russell Prevatte, Douglas Bergner, Jerry Williams and Mr. Soy embarked on a series of burglaries, some successful and some not. Later in the same year, Mr. Soy discussed with Williams—who was attending the Indiana State Police Academy at the time—and also with Prevatte the possibility of using pipe bombs as diversions for burglaries. If events went as the men planned, a bomb detonated in one area would divert emergency personnel to the area of the resulting fire; this diversion would prevent police from responding—or, at the least, responding in a timely fashion—to a burglary in another area.
On December 23, 1991, the first pipe bomb was detonated in the alley behind a single-family dwelling in Hammond, Indiana. This bomb was designed as a test to determine the response time of emergency personnel. Fragments from the bomb killed the resident of the home, Emily Antkowicz, and also punctured the gas meter attached to her house approximately fifty feet away. After this first bombing, the group decided to target gas meters because the possibility of resulting leaks and collateral damage drew a larger-than-expected number of people to the area.
On December 30, 1991, the men set off a second pipe bomb. The bomb was attached to a bank of gas meters at the rear of Edo‘s Lounge in Highland, Indiana, which was open to patrons at the time. The explosion caused a gas fire that damaged the lounge. This bomb was designed as a diversion for an attempted, but unsuccessful, burglary at an Aldi grocery store.
The following day, a bomb exploded near the gas meter behind Salvino‘s Restaurant in Hammond, Indiana. The explosion caused a fire which damaged the meters as well as the rear wall of the restaurant. Fragments from the explosion caused additional damage. The bomb was designed to frighten away the occupants of the apartment above the restaurant who might witness the group‘s attempt to burglarize a neighboring liquor store.
A fourth bomb was designed as a diversion for another unsuccessful burglary, this time of a currency exchange. The pipe bomb exploded under the gas meters of a multi-family apartment building in Hammond. Fragments from the bomb damaged the apartment building.
The final bomb was a diversion for the burglary of an Aldi grocery store. On January 5, 1992, the bomb exploded under the gas meters at an apartment building in Hammond. The
B. Proceedings Before the District Court and on Direct Appeal
A grand jury returned a twenty-one count indictment against Prevatte and Mr. Soy. Relevant to the issues currently before this court, Count 1 charged Mr. Soy with engaging in a conspiracy to maliciously damage or destroy property by means of an explosive in violation of
The district court sentenced Mr. Soy to life imprisonment. Specifically, the district court determined, in accordance with the United States Sentencing Guidelines (“U.S.S.G.” or “Guidelines“), that Mr. Soy should be sentenced to life imprisonment on Count 2. According to the Guidelines, the sentences on the remainder of the counts were to run concurrently with the sentence on Count 2 because “the sentence imposed on the count carrying the highest statutory maximum [wa]s adequate to achieve the total punishment.”
[Section] 2A1.1. is the most analogous guideline when death results from a violation of
§ 844(i) from use of fire. Furthermore, on the basis of our reading of the legislative history, we do not believe the fact that death results from an explosion, and not a fire, alters the outcome. As we have nоted, Congress intended that fire and explosive be equivalents for purposes of§ 844(i) . . . . Congress understandably equated the killing of a human being by burning and the killing of a human being by explosion. Thus, we conclude that the court correctly applied the first degree murder guideline.
Id. at 782 (emphasis in original; footnote omitted). Although this court agreed with the district court‘s application of the first degree murder guideline, we could not uphold the district court‘s imposition of a life sentence. We explained that
On remand, the district court imposed a sentence of 636 months. Mr. Soy again appealed his sentence. One of the issues raised on appeal was whether the district court complied with this court‘s mandate in resentencing the defendants. We held that the district court had done so. We stated that
[i]n our earlier appeal, we . . . directed the district court to consider the applicability of application note 1 to
§ 2A1.1 of the Guidelines . . . . [T]hat note provides that, when the conviction of first degree murder is predicated on a theory other than premeditated killing,life imprisonment is not necessarily the appropriate sentence and that, in such circumstances, a downward departure “may be warranted.” Our direction to the district court, therefore, was to consider whether, on the facts of this case, a downward departure was warranted. . . . [T]he district court effectively carried out this court‘s order by departing to an extent based upon the defendants’ “state of mind (recklessness or negligence), the degree of risk inherent in the conduct, and the nature of the underlying offense conduct.” U.S.S.G. § 2A1.1, comment. (n.1) .
Prevatte II, 66 F.3d at 844. However, Mr. Soy argued that, once the district court made the decision to depart, it was obliged “to impose a sentence that would have been imposed for second degree murder.” Id. According to Mr. Soy, because the district court found that “the placement and detonation of the bomb amounted to ‘recklessness and reckless state of mind and behavior,‘” his conduct could be equated only with second degree murder. Id. We, again, rejected this argument:
We do not read application note 1 as cabining the discretion of the district court to that degree. The application note quite explicitly suggests that a departure below that prescribed for second degree murder or for the underlying offense is not likely to be appropriate. This notation is hardly a directive to the district court that any departure must, as a matter of law, reduce the sentence to the level of second degree murder. To hold that a departure must correspond to the base offense level stipulated in
§ 2A1.2, Second Degree Murder , every time the court finds that a defendant‘s mental state was less than “intentionally or knowingly,” cf.U.S.S.G. § 2A1.1, comment. (n. 1) , would negate the congressional determination that death resulting from certain felonies, such as arson, should be punished, not as second degree murder, but as first degree murder. . . .Indeed, the district court‘s redetermination of the sentence in this case demonstrates the need for the flexibility that the application note gives to a sentencing court. The district court commented quite extensively on the mental state of the defendants at the time of the crime. . . . This analysis can be read as a determination by the district court that the defendants engaged in conduct that, although not premeditated, involved a high degree of recklessness and warranted punishment between the level that would be employed for premeditated murder and the level that would be employed for a murder committed recklessly but not in the aggravated manner exhibited here. Such a determination is clearly permissible under the congressional determination concerning the punishment of murder committed in the coursе of arson. The sentence corresponds to an offense level of 42, which provides that an individual be sentenced to “360 [months]-life.”
Id. at 844-45. Although the district court fully complied with this court‘s mandate, we remanded so that the district court could “adjust the sentence to ensure that the life expectancy of each of the defendants” had been appropriately considered as required by intervening case law—specifically United States v. Martin, 63 F.3d 1422 (7th Cir. 1995). Prevatte II, 66 F.3d at 846.
On remand, the district court imposed a sentence of 528 months’ imprisonment. Specifically, the court ordered Mr. Soy “committed to the custody of the Bureau of Prisons to be imprisoned for a term of 528 months on Count 2; and a term of 60 months on Count 1; and terms of 120 months on each of Counts 6, 7, 8, 10, 11, 12, 14, 15, 16, 18, 19 and 20, all to be served concurrently.” Tr.XII at 19-20. Again, the court‘s sentencing order followed the Guidelines’ directive that lesser sentences be served concurrently “[i]f the sen-
C. Section 2255 Proceedings
In 2002, Mr. Soy instituted the present
At trial, the Government presented evidence that Petitioner destroyed or attempted to destroy a building, Emily Antkowicz‘s residence, as well as personal property, the NIPSCO meter, located at 1425 Stanton. Contrary to the Government‘s position, it does not follow that in finding Petitioner guilty of Count 2 the jury had to consider the damage to the NIPSCO meter as affecting interstate commerce because at that time United States v. Stillwell, 900 F.2d 1104, 1110 n.2 (7th Cir. 1990), was controlling law. Stillwell held that the bombing of a private home supplied by natural gas from outside the state has a sufficient nexus to interstate commerce under section 844(i). Thus, the jury did not even have to consider the damage to the NIPSCO meter in order to find Petitioner guilty on Count 2.
Therefore, the jury could have based its decision to convict Petitioner based on the damage to either the residence, the NIPSCO meter, or both. The problem is that there is nothing in the indictment, jury instructions or verdict forms to allow this Court to ascertain what the jury determined was damaged to warrant convicting Petitioner on Count 2. Any such determination by this Court would be speculation at best. . . . Because Petitioner may have been convicted of Count 2 for bombing the residence at 1425 Stanton, Petitioner may be convicted for conduct that Congress did not intend to be covered by section 844(i). Consequently, the verdict finding Petitioner guilty of Count 2 is VACATED.
R.61 (No. 04-1218) at 15-16.
Hоwever, the court determined that the same was not true with respect to Count 1. With respect to that conspiracy count, the court noted that the jury was required only to find one overt act in furtherance of the conspiracy in order to convict Mr. Soy. The fourth overt act alleged that
[o]n or about December 23, 1991 . . . Robert A. Soy, did maliciously damage and destroy, by means of an explosive, to wit: a pipe bomb, a building and other real and personal property located at 1425 Stanton, Hammond, Indiana which property was used in or affected interstate commerce, which resulted in the death of Emily Antkowicz.
R.1 at 2 (emphasis added). Although this alleged act was similar to that alleged in Count 2, the court continued,
there is one crucial difference; Count 2 is phrased in the disjunctive while the fourth overt act of Count 1 is phrased in the conjunctive. . . .
Unlike the problem faced in Count 2, there is no ambiguity presented in the fourth overt act of Count 1.
It is evident that, if the jury convicted Petitioner on Count 1 by relying on the fourth overt act, such a finding would necessarily be based on Petitioner damaging both the residence and NIPSCO meter at 1425 Stanton. Because the fourth overt act requires the jury to find Petitioner damaged the NIPSCO meter, any mention of the residence is not of consequencе. . . . Therefore, Petitioner‘s conviction of Count 1 remains.
R.61 (No. 04-1218) at 17-18.
The court then turned to the matter of resentencing. The court determined that Emily Antkowicz‘s death was relevant conduct to the conspiracy for which Mr. Soy was convicted in Count 1. However, the district court was confined by the holding of Apprendi v. New Jersey, 530 U.S. 466 (2000), not to exceed the statutory maximum for any one of the still-viable counts. Therefore, the district court ordered that the sentences on the remaining counts run consecutively, as opposed to concurrently, as directed by
Mr. Soy timely appealed his resentencing. He also sought, and was granted, a certificate of appealability with respect to the district court‘s denial of
DISCUSSION
A. Failure to Vacate Substantive Counts
1. Interstate Commerce Requirement after Jones
Mr. Soy first maintains that the district court erred in failing to vacate his conviction on Count 1 on the same grounds that it vacated Count 2. According to Mr. Soy, this conviction suffers from the same interstate commerce infirmity as did his conviction on Count 2.6 He therefore submits that, in accordance with the Supreme Court‘s decision in Jones, 529 U.S. 848, his conviction on Count 1 also must be vacated. We begin our analysis with an overview of Jones.
In Jones the Supreme Court faced the question of whether an owner-occupied rеsidence was a building “used in interstate or foreign commerce or in any activity affecting interstate or foreign commerce,” as that language is used in
Although Jones excluded single-family dwellings from the scope of
decision in Russell does not warrant a less “use“-centered reading of
§ 844(i) . In that case, which involved the arson of property rented out by its owner, the Court referred to the recognized distinction between legislation limited to activities “in commerce” and legislation invoking Congress’ full power over activity substantially “affecting . . . commerce.” The Russell opinion went on to observe, however, that “[b]y its terms,”§ 844(i) applies only to “property that is ‘used’ in an ‘activity’ that affects commerce.” “The rental of real estate,” the Court then stated, “is unquestionably such an activity.”
Id. (quoting Russell, 471 U.S. at 859-60, 862); see also Martin v. United States, 333 F.3d 819, 821 (7th Cir. 2003) (observing that Jones did not disturb Russell‘s holding that rental property satisfies the interstate commerce requirement of
[T]he Court [in Russell] adopted a per se rule that rental property affects interstate commerce under Section 844(i).
Russell mandates the adoption of a similar per se rule regarding bars or restaurants. The rationale is identical—if “the local rental of an apartment unit is merely an element of a much broader commercial market in rental properties,” [Russell, 471 U.S.] at 862, then the local operation of a restaurant is merely an element of a much broader commercial market of food and drink delivery. Here, the building torched included a restaurant. Thus, although the government concedes thаt it failed to introduce any direct evidence at trial to show that Dell‘s obtained food or beverage from out-of-state sources or catered to interstate patrons, the jury properly concluded that Dell‘s was part of a broader restaurant market connected to interstate commerce.
Id. at 79 (parallel citation omitted). Our own court has cited Joyner with approval and also has recognized, in dicta, the application of Russell‘s per se rule to other commercial enterprises:
It remains true after Jones that buildings actively used for a commercial purpose, including restaurants, United States v. Joyner, . . . home offices, United States v. Jimenez, 256 F.3d 330 (5th Cir. 2001), church daycare centers, United States v. Terry, 257 F.3d 366, . . . (4th Cir. 2001), and temporarily vacant rental properties, United States v. Williams, 299 F.3d 250 (3d Cir. 2002), all possess the requisite nexus with interstate commerce under
§ 844(i) .
And so it is here, notwithstanding Martin‘s protestations that no paying tenants resided in his apartment building at the time of the fire.
Martin, 333 F.3d at 821. Following Joyner and the dicta in Martin, we hold that the per se rule set forth in Russell applies equally to restaurants and bars, and, consequently, buildings housing these establishments are “used in” interstate commerce for purposes of
2. Application of Interstate Commerce Requirement
Mr. Soy maintains that the Government failed to establish an interstate commerce nexus with respect to all of the bombings charged as overt acts, and, therefore, the conviction on the conspiracy count (Count 1) must be vacated. According to Mr. Soy, the only interstate commerce nexus that the Government proved with respect to any of the charged overt acts was the receipt of natural gas, which, as set forth in Jones, is insufficient to satisfy the jurisdictional requirement.10
a. bombing at Edo‘s Lounge
One of the overt acts charged in furtherance of the conspiracy was the bombing of Edo‘s Lounge on December 30, 1991. Mr. Soy maintains that
[t]here was no evidence that the building was damaged in the first instance and even if there were this is not enough. The government has to show that the building was used in commerce. Describing the persons as “patrons” does not indicate the manner of their patronage. One doesn‘t know if they were members of a private club, if alcohol was served at the club, if so, if it was obtained through . . . interstate commerce channels, if an alcohol license was obtained by the owner or any of a number of other things that the Government may have proven to show an interstate nexus.
Petitioner‘s Br. (No. 04-1218) at 24.
We believe that Mr. Soy‘s evidentiary and legal arguments are meritless. First, with respect to Mr. Soy‘s contention that the explosion did not damage Edo‘s Lounge, the record reflects that there was damage to the building, specifically the roof. See Tr.V at 1090. Furthermore, in light of our determination that the per se rule of Russell extends to restaurants and bars, we also must reject Mr. Soy‘s alternative claim that the Government failed to meet its burden of proof that the building housing Edo‘s Lounge was used in interstate commerce.
b. bombing of Salvino‘s Restaurant
The same analysis applies with respect to the bombing of Salvino‘s Restaurant—another one of the overt acts alleged in the conspiracy. Again, the record establishes that there was damage to the building housing Salvino‘s. See Tr.V at 1150. Furthermore, the interstate commerce connection is met by virtue of the fact that Salvino‘s is a restaurant.
c. bombings of the apartment units
The interstate commerce nexus also is met with respect to the last two bombings—the bombings of two different apartment complexes. The record establishes that both of these buildings suffered damage as a result of the explosions. See Tr.V at 1182 (discussing damage to building at 6151 Harrison); id. at 1198-99 (discussing damage to building at 1608 169th Street). Again, the record clearly reflects that the buildings at issue were used as multi-family apartment houses that fall squarely within Russell‘s per se rule.
Because the record establishes that each of the target buildings was damaged and each of the target buildings, as a matter of law, was used in interstate commerce for pur-
B. Resentencing
In addition to challenging the district court‘s decision not to disturb Count 1, Mr. Soy also challenges the district court‘s reimposition of the 528-month sentence. Mr. Soy argues first that the district court‘s act of resentencing him on the remaining counts—after vacating Count 2—resulted in double jeopardy. According to Mr. Soy, because the dis-
1. Double Jeopardy
Mr. Soy acknowledges “[t]he authority of a trial court to re-sentence a Defendant after vacating an entire sentence even though only a portion thereof has been challenged.” Petitioner’s Br. (No. 03-3438) at 16. However, Mr. Soy continues, the general rule applies only when the original sentence constituted a sentencing package. Mr. Soy maintains that, in the present situation, there was no interrelationship between the sentence on Count 2 and the sentences on the remaining counts, and, therefore, the district court was not at liberty to resentence him on the remaining counts. The Government counters that Mr. Soy’s sentence on Count 2 was part of his entire sentencing package, and, therefore, the district court was entitled to reconsider the entire sentence. We evaluate these arguments below.
“The theory of double jeopardy is that a person need run the gantlet only once. The gantlet is the risk of the range of punishment which the State or Federal Government imposes for that particular conduct. . . . He risks the maximum permissible punishment when first tried. That risk having been faced оnce need not be faced again.” North Carolina v. Pearce, 395 U.S. 711, 727 (1969) (Black, J., concurring).
Traditionally, courts have held that the prohibition of double jeopardy found in the Fifth Amendment, see
[t]he original sentences imposed on all four counts . . . were clearly interdependent; they comprised a sentencing package. When that sentencing package was “unbundled” because of a successful appeal of some, but
not all, of the counts of the multicount conviction, the double jeopardy clause does not bar resentencing on the affirmed count so long as the new sentence conforms to statutory limits and effectuates the district court’s original sentencing intent.
Id. at 1115 (citations and footnote omitted). The fact that a prisoner successfully attacks one or more counts of a multicount conviction by way of a
The adoption of the Guidelines, however, caused us to rethink the concept of sentencing packages. We observed that “[i]n the old days of almost unlimited discretion in sentencing, a district judge could follow several paths to a desired result.” Id. Thus, when a conviction was vacated, all of the considerations that went into the initial sentence had to be reweighed to determine the appropriate result upon resentencing. However, “[u]nder the Guidelines, . . . discretion is far more limited, and the paths are more like catwalks than boardwalks.” Id. The change in the level of discretion enjoyed by the district court led us to conclude that “[u]nder the guidelines, it is possible in some cases for us to reverse and remand on certain issues and yet not unbundle the package. In other cases, our actions may likely undermine the entire sentencing intent of the district judge. In the latter cases full resentencing is appropriate.” Id.
We have had several occasions to discuss the concept of “unbundling” and “sentencing packages” with respect to resentencings that occurred in the wake of the Supreme Court’s decision in Bailey v. United States, 516 U.S. 137 (1995). Bailey narrowed the circumstances under which weapons are considered to be “used in” drug trafficking crimes for purposes of
[I]n most cases involving the mandatory consecutive 5-year
§ 924(c) sentence, vacating that portion of the sentence radically changes the sentencing package. If a mandatory sentence for using or carrying a gun is imposed, the otherwise available enhancement for possession of a firearm is not invoked. But if the mandatory sentence is set aside, nothing should prevent the imposition of the enhancement. In that sense, the idea of the “sentencing package” remains a perfectly viable concept.
Smith, 103 F.3d at 534-35. In other cases, we have characterized the district court’s sentencing for a
b. application
We believe that the samе rationale applies to the present situation and allows the district court to unbundle the sentencing package. At Mr. Soy’s last resentencing prior to
This case is on remand for resentencing with an order that the court should state reasons for the sentence in more detail and indicate why the sentence is not a life sentence, and also allow the court to adjust the sentence to make sure that life expectancy of each defendant is properly considered.
The court feels that it was affirmed on all other aspects of the trial and sentencing, and therefore will not comment or retrace those steps. . . .
. . . .
The court has selected a sentence today taking into account the defendant’s life expectancy. The court has also considered the nature, extent and gravity of the crime that although not premeditated, involved a very high degree of recklessness and warranted punishment between the level that would be employed for a premeditated murder and that would be employed for a murder committed recklеssly, but not in the aggravated manner exhibited here.
This court finds this defendant’s criminal acts and behavior which resulted in the death of an innocent bystander to be reckless and to merit a severe sentence. In fashioning a sentence for this defendant, the court is imposing a sentence significantly, though not necessarily greatly less, than a sentence of life imprisonment.
. . . .
Tr.XII at 23-26. The statements of the district court make it clear that the district court believed that a sentence of 528 months was appropriate for the crimes that Mr. Soy committed and was necessary in light of the disregard for human life that Mr. Soy displayed during the course of his criminal activity. The district court’s focus on the conviction for Count 2 was consonant with the method for calculating the sentence set forth by the then-mandatory Guidelines.13 The Guidelines instructed the district court to sentence a defendant to concurrent sentences on a multiple-count conviction “[i]f the sentence imposed on the count carrying the highest statutory maximum is adequate to achieve the total punishment.”
This is similar to the type of scenario described in Smith. Just as the imposition of consecutive sentences pursuant to
Having determined that the district court did not subject Mr. Soy to double jeopardy upon resentencing, we turn next to Mr. Soy’s claim that the district court miscalculated his sentence. Before we consider Mr. Soy’s argument, we first review in detail the method by which thе district court arrived at Mr. Soy’s sentence of 528 months’ imprisonment.
a. sentencing calculation
The starting point for the district court’s calculation of Mr. Soy’s sentence was the guideline for conspiracy,
The guideline for a
At this point in the analysis, the district court faced the question of whether the death of Emily Antkowicz was a result of the conspiracy. To make this determination, the court looked to the relevant conduct guideline,
[u]nless otherwise specified, . . . cross-references in Chapter Two . . . shall be determined on the basis of the following:
(1) (A) all acts and omissions committed, aided, abetted, counseled, commanded, induced, procured, or willfully caused by the defendant; and
(B) in the case of a jointly undertaken criminal aсtivity (a criminal plan, scheme, endeavor, or enterprise undertaken by the defendant in concert with others, whether or not charged as a conspiracy), all reasonably foreseeable acts and omissions of others in furtherance of the jointly undertaken criminal activity, that occurred during the commission of the offense of conviction, in preparation for that offense, or in the course of attempting to avoid detection or responsibility for that offense; . . . .
[the] bombing[,] . . . which resulted in Emily Antkowicz’s death, was performed as a test in preparation for subsequent bombings in furtherance of the conspiracy. The bombing at issue was tantamount to arson. Consequently, this Court finds the bombing which resulted in Emily Antkowicz’s death was performed in furtherance of the conspiracy charged in Count I of the indictment.
Tr.XIV at 69.
The district court then returned to the instructions provided in the cross-reference of
the placing of an active bomb at or near the proximity of where people live was extremely reckless behavior. This Court finds Emily Antkowicz’s death was a foreseeable consequence of the conspiracy. Consequently, the 2K1.4C1 [sic] cross-referencе should be applied as relevant conduct.
As this Court’s application of 2K1.4C1 [sic] has been affirmed by the Seventh Circuit on a prior appeal of this case, the Court finds the cross-reference to be appropriate in this instance.
Id. at 69-70. Applying the first degree murder cross-reference resulted in an offense level of 43, which corresponded to a life sentence.
However, the district court not only was constrained by this court’s prior two decisions (in which we vacated the life sentence and remanded for consideration of life expectancy, respectively), it also was constrained by the Supreme Court’s decision in Apprendi v. New Jersey, 530 U.S. 466 (2000).16 Thus, the court could not, consistent with Apprendi, sentence Mr. Soy to anything beyond the five-year statutory maximum provided for conspiracy violations.17 Thus, in order to effectuate the total punishment for Mr. Soy, the district court stacked the counts according to
Pursuant to the sentencing reform act of 1984, it is the judgment of the Court that the defendant, Robert Soy,
is hereby committed to the custody of the Bureau of Prisons to be imprisoned for a term of 60 months on Count 1 and a term of 120 months on each of Counts 6, 7, 8, 10, 11, 12, 14, 16, 18, 19 and 20, to be served consecutively to the extent necessary to produce a total term of 528 months.
Tr.XIV at 76.
b. evaluation of the sentencing calculation
Mr. Soy makes three arguments with respect to the district court’s calculation of his sentence. First, he argues that the district court erred when it applied the cross-reference to Chapter 2, Part A found in
(i) cross-reference to Chapter 2, Part A
Mr. Soy argues first that the district court should not have applied
We believe that Mr. Soy reads the “intended” language too broadly. The commentary to
“[s]ubstantive offense,” as used in this guideline, means the offense that the defendant was convicted of soliciting, attempting or conspiring to commit. Under
§ 2X1.1(a) , the base offense level will be the same as that for the substantive offense. But the only specific offense characteristics from the guideline for the substantive offense that apply are those that are determined to have been specifically intended or actually occurred. Speculative specific offense characteristics will not be applied.
(ii) death of Emily Antkowicz as relevant conduct
As noted above, Mr. Soy contends that the death of Antkowicz was not “relevant conduct” with respect to the conspiracy charged in Count 1. Mr. Soy relies on United States v. Ritsema, 31 F.3d 559 (7th Cir. 1994), and United States v. Ojomo, 332 F.3d 485 (7th Cir. 2003), in support of his argument.20
Ritsema involved a defendant who had sexually abused a neighbor girl on several occasions. On one of those occasions, Ritsema showed the victim a rifle with a silencer attached and threatened that, if the victim told anyone
Section 1B1.3(a)(2) cannot be read to make Ritsema’s obstruction of justice conduct relevant to his silencer offense because by its terms, it applies only to offenses which would be grouped as multiple counts under section 3D1.2(d). Section 3D1.2(d) neither lists offenses under 2K2.1 (Firearms) nor those under 2J1.2 (Obstruction of Justice) as the kind of offenses that are required to be grouped together.
. . . .
Likewise, subsection (a)(3) of 1B1.3 does not operate to make Ritsema’s obstruction behavior relevant conduct either. The threats to K.J.L. were not a “harm that resulted” from the possession of the unregistered silencer, nor were they a “harm that was the object” of the possession. As we noted earlier, Ritsema did not and could not plausibly have carried out his threats against K.J.L. with the silencers alone. He was able to intimidate K.J.L. because of the rifle, to which the silencer was attached. Possession of the silencer itself resulted in no harm to K.J.L.
If Ritsema’s obstruction conduct is to be deemed conduct relevant to the silencer possession under section 1B1.3, then, it must fall under subsection (a)(1). That subsection presents four discrete conditions under
which Ritsema’s obstruction conduct may be deemed relevant. Subsection (a)(1) includes all acts or omissions by the defendant that (1) occurred during the commission of the charge-offense, (2) was in preparation for committing it, (3) was done in an attempt to hide the offense, or (4) was otherwise done in furtherance of it. The threats to K.J.L. were not in any way done in preparation for the silencer possession, or to avoid detection of it, nor were they done “in furtherance” of the silencer possession. Therefore, Ritsema’s obstruction conduct does not fall under conditions (2), (3), or (4) above.
Id. at 565-66 (emphasis in original).
Mr. Soy concludes from Ritsema that, because his crimes could not be grouped together under
Here, the death of Emily Antkowicz qualifies as related conduct pursuant to
Mr. Soy also relies upon Ojomo. In Ojomo, we considered whether the defendant could be held accountable for “uncharged, unproven ‘related conduct’ at sentencing.” Id. at 489. In that case, we determined that the district court did not err in holding the defendant responsible because it was clear that the “ ‘unconvicted activities bore the necessary relation to the convicted offense.’ ” Id. (quoting United States v. Smith, 218 F.3d 777, 783 (7th Cir. 2000)).
We fail to see how Ojomo assists Mr. Soy. Mr. Soy was not held responsible for uncharged, unproven conduct that was related in some tangential way to the conspiracy for which he was convicted. Rather he was charged with, and convicted of, the
For these reasons, we do not believe that the district court erred in determining that the death of Emily Antkowicz constituted conduct relevant to the charged conspiracy.
Mr. Soy maintains that, even if the death of Emily Antkowicz constitutes relevant conduct, the district court erred nonetheless in cross-referencing the first degree murder guideline as opposed to one of the other guidelines in Chapter 2, Part A of the Guidelines. We disagree.
This court twice has considered Mr. Soy’s contention that the first degree murder guideline is inapplicable to the death of Emily Antkowicz. In Prevatte I, we held that
The district court resentenced Mr. Soy to 636 months’ imprisonment on Count 2, to run concurrently with the sentences on the remainder of the counts. The sentence represented a slight departure based on Mr. Soy’s state of mind—extreme recklessness. Mr. Soy again sought review in this court and argued, inter alia, that, in light of the district court’s determination that the death of Emily Antkowicz was the result of Mr. Soy’s recklessness, the district court was obligated to cross-reference the guideline for second degree murder as opposed to that for first degree murder. Again we rejected this argument. We observed that our mandate was to “consider whether, on the facts of this case, a downward departure was warranted. The district court complied with our mandate when it considered the possibility of a lower sentence.” Prevatte II, 66 F.3d at 844. We also did not believe that the application note “cabin[ed]
[t]he application note quite explicitly suggests that a departure below that prescribed for second degree murder or for the underlying offense is not likely to be appropriate. This notation is hardly a directive to the district court that any departure must, as a matter of law, reduce the sentence to the level of second degree murder. To hold that a departure must correspond to the base offense level stipulated in
§ 2A1.2 , Second Degree Murder, every time the court finds that a defendant’s mental state was less than “intentionally or knowingly,” cf.U.S.S.G. § 2A1.1 , comment. (n.1), would negate the congressional determination that death resulting from certain felonies, such as arson, should be punished not as second degree murder, but as first degree murder. . . . This analysis can be read as a determination by the district court that thе defendants engaged in conduct that, although not premeditated, involved a high degree of recklessness and warranted punishment between the level that would be employed for premeditated murder and the level that would be employed for a murder committed recklessly but not in the aggravated manner exhibited here. Such a determination is clearly permissible under the congressional determination concerning the punishment of murder committed in the course of arson. The sentence corresponds to an offense level of 42, which provides that an individual be sentenced to “360 [months]-life.”
Id. at 844-45 (footnote omitted).22
3. Booker Considerations
After the briefs had been submitted in this case, Mr. Soy submitted Blakely v. Washington, 124 S. Ct. 2531 (2004), and
We believe that Booker’s application to Mr. Soy’s sentence is tangential at best. Although it is true that the death of Emily Antkowicz affected the district court’s sentence—in that, to effect the total punishment, the district court ran the remaining counts consecutively—the death of Emily Antkowicz was not a fact found solely by the district court. A jury convicted Mr. Soy of using an explosive that caused the death of Emily Antkowicz; the vacation of that conviction on interstate commerce grounds did not undermine the jury’s determination that Mr. Soy’s actions in setting off the bomb at 1425 Stanton caused Emily Antkowicz’s death. Thus, because there was a jury finding that Mr. Soy’s actions resulted in the death of Emily Antkowicz, the district court’s reliance on this fact in sentencing Mr. Soy did not offend the Sixth Amendment.
However, we have determined that, even in the absence of a Sixth Amendment violation, the “mere mandatory application of the Guidelines—the district court’s belief that it was required to impose a Guidelines sentence—constitutes error.” United States v. White, No. 03-2874, slip op. at 14 (7th Cir. May 3, 2005). Again, however, we believe that, under these circumstances, the Guidelines had little or no limiting effect on the district court when it resentenced Mr. Soy.
The district court initially sentenced Mr. Soy to life imprisonment, a sentence that later was vacated. However, it was our holding in Prevatte I as to the applicability of
After vacation of Count 2, the district court again sentenced Mr. Soy to 528 months’ imprisonment. In doing so, the court employed consecutive sentences—as required by the Guidelines—in order to effectuate the total punishment. Thus, the only direct effect that the Guidelines have had on Mr. Soy’s most recent sentence is to allow the district court to impose a longer punishment through consecutive sentences pursuant to
Given this history, we have little confidence that, freed from the mandates of the Guidelines, the district court would impose a lesser sentence on Mr. Soy. Nevertheless, consistent with our holding in United States v. Paladino, 401 F.3d 471 (7th Cir. 2005), and in White, we shall allow the district court to make this determination.
Conclusion
For the foregoing reasons, the judgment of the district court is affirmed. However, while retaining jurisdiction, we remand the matter to the district court for proceedings consistent with Paladino.
IT IS SO ORDERED
Teste:
Clerk of the United States Court of Appeals for the Seventh Circuit
USCA-02-C-0072—6-28-05
Notes
R.1 at 7.On or about December 23, 1991, . . . Russell “Rusty” Prevatte, Robert A. Soy and Jerry Williams defendants herein, did maliciously damage and destroy, or attempt to damage and destroy, by means of an explosive, to wit: a pipe bomb, a building or other real and personal property located at 1425 Stanton, Hammond, Indiana which was used in or affected interstate commerce, which resulted in the death of Emily Antkowicz . . . .
As noted above, each of these acts, as well as the bombing resulting in the death charged in Count 2, were charged as overt acts “in furtherance of the conspiracy” charged in Count 1; Count 2 corresponded to the fourth overt act; Count 6 corresponded to the eighth overt act; Count 10 corresponded to the tenth overt act; Count 14 corresponded to the eleventh overt act; and Count 18 corresponded to the fifteenth overt act. R.1 at 2-4.
(a) The sentence to be imposed on a count for which the statute mandates a consecutive sentence shall be determined and imposed independently.
(b) Except as otherwise required by law (see § 5G1.1(a), (b)), the sentence imposed on each other count shall be the total punishment as determined in accordance with Part D of Chapter Three, and Part C of this Chapter.
(c) If the sentence imposed on the count carrying the highest statutory maximum is adequate to achieve the total punishment, then the sentences on all counts shall run concurrently, except to the extent otherwise required by law.
(d) If the sentence imposed on the count carrying the highest statutory maximum is less than the total punishment, the sentence imposed on one or more of the other counts shall run consecutively, but only to the extent necessary to produce a combined sentence equal to the total punishment. In all other respects sentences on all counts shall run concurrently, except to the extent otherwise required by law.
Neither the Guidelines nor the commentary provides an explicit definition for “total punishment“; however, the commentary to the current version of the Guidelines explains what is meant by this term: “The combined length of the sentences (‘total punishment‘) is determined by the court after determining the adjusted combined offense level and the Criminal History Category.”
If the sentence imposed on the count carrying the highest statutory maximum is less than the total punishment, then the sentence imposed on one or more of the other counts shall run consecutively, but only to the extent necessary to produce a combined sentence equal to the total punishment. In all other respects, sentences on all counts shall run concurrently, except to the extent otherwise required by law.
Whoever maliciously damages or destroys, or attempts to damage or destroy, by means of fire or an explosive, any building, vehicle, or other real or personal property used in interstate or foreign commerce or in any activity affecting interstate or foreign commerce shall be imprisoned for not less than 5 years and not more than 20 years, fined under this title, or both . . . .
By its terms . . . the statute only applies to property that is “used” in an “activity” that affects commerce. The rental of real estate is unquestionably such an activity. We need not rely on the connection between the market for residential units and “the interstate movement of people,” to recognize that the local rental of apartment units is merely an element of a much broader commercial market in rental properties. The congressional power to regulate the class of activities that constitutes the rental market for real estate includes the power to regulate individual activity within that class.
There is no question that, after Jones, the dwelling did not qualify as being “used in” interstate commerce for purposes of
Because we hold that the interstate commerce nexus for the conspiracy count is satisfied by the other overt acts, it is not necessary for us to cull the record or the law to determine if the Government‘s assertions are correct.
The Fifth Amendment to the United States Constitution provides:
No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury, except in cases arising in the land or naval forces, or in the Militia, when in actual service in time of War or public danger; nor shall any person be subject for the same offence to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation.
Mr. Soy also makes a cursory argument that resentencing him to the same term of imprisonment violated his right to due process of law. He cites North Carolina v. Pearce, 395 U.S. 711 (1969), in support of his contention. In Pearce, the Court held that the imposition of a higher sentence after a successful collateral attack raises a presumption of vindictiveness and of a due process violation. This holding of Pearce has been narrowed by Alabama v. Smith, 490 U.S. 794, 795 (1989). However, even if Pearce retained its full force, no presumption arises under the circumstances presented here. Our court follows the “ ‘aggregate package’ approach when analyzing Pearce claims.” See United States v. Rivera, 327 F.3d 612, 615 (7th Cir. 2003). “Under this approach, . . . we compare the total original punishment to the total punishment after resentencing in determining whether the new sentence is more severe.” Id. (emphasis in original). In this case, Mr. Soy’s original punishment and the punishment after resentencing are identical.
In the absence of a presumption, the defendant bears the burden of coming forward with evidence of actual vindictiveness on the part of the sentencing court. See id. Mr. Soy has made no effort to come forward with such evidence, and, consequently, we conclude that Mr. Soy has failed to show a due process violation with respect to his last resentencing.
Although Mr. Soy discusses both United States v. Ritsema, 31 F.3d 559 (7th Cir. 1994), and United States v. Ojomo, 332 F.3d 485 (7th Cir. 2003), at length, there is little argument presented with respect to how Ritsema and Ojomo apply to Mr. Soy’s situation. Mr. Soy merely states:
Pursuant to Ritsema, the conduct did not occur during the charge offense. Under the express wording of Subsection (a)(2) the 844(i) charges do not require grouping. Therefore, all acts set forth in Subsections 1(a) and 1(b) are inapplicable. Finally, because both Subsections 1(a)(1) and 1(a)(2) are inapplicable, 1(a)(3) is likewise inapplicable. For these reasons, the trial court’s order imposing a 528 month prison term must be reversed.
Petitioner’s Br. (No. 03-3438) at 16.