United States v. William F. Dolt, III

tween Affholder and wherein the PC/CFW (1) parties justi- Affholder’s claim was running appropriate of the statute of limita- fied and acknowledged liability PC/CFW’s party responsible A tions. to know the subject to Affholder recoupment. date on which a of action cause is or reason- ably have been It is should discovered. I concur with the Majori- remainder of the knowledge, imputed, whether actual or ty Opinion. triggers any applicable start of the statute of ORDER Warren, Ky.App., limitations. Gill (1988). Knowledge S.W.2d that one has Aug. wronged running been starts the of the stat- petition rehearing The for with the sugges- Conway Huff, Ky., ute limitations. tion for rehearing en by banc has been S.W.2d 333 filed attorneys the Nutting Company, H.C. damage wrong The which has occurred Rudy Hubbard E. Consulting Engineers, current matter before this court is the the Associates, Inc., James Winstead & Presnell potential liability claimed Affholder Associates, Inc., Pavlo, E. Lionel Consulting against companies. the construction Even Engineer, D.M.J.M., Inc., successor parties those name though previously had Associates, overruns, Inc., to Vollmer cussed the cost it until was not Vollmer- d/b/a compa- action was filed that the construction Presnell-Pavlo Joint Venture. nies potential liability. had sufficient notice of No active member of having the court relief, such sought Until time as Affholder requested a suggestion vote on the for re- any indemnity claim the construction com- banc, hearing en the matter was referred panies purely speculative was their because original panel. Upon consideration it is potential liability purely speculative was petition ordered that for rehearing is very possibly non-existent. denied. filing The date of the of the was the claim denying In petition, express- the court first moment in time that the construction ly states that it does not decide whether companies possibly could have known that subsequent events recited in peti- they facing potential were It liability. is that rehearing tion for

knowledge underlying affect triggers beginning claim running indemnity. of the statute of limitations. appropriate year five of limita- statute pursuant tions to KRS 413.120 for an indem-

nity claim companies construction

against engineering began firms to run filing

with the against Affholder’s action companies those construction on March America, UNITED STATES 1982. Plaintiff-Appellee, Kentucky law of is so certified. STEPHENS, C.J., LAMBERT, DOLT, III, William F. Defendant- REYNOLDS, SPAIN, STUMBO Appellant. WINTERSHEIMER, JJ., concur. No. 93-5768. LEIBSON, J., dissenting part. Respectfully, I dissent as to Part III of the Appeals, United States Court of Majority Opinion. Sixth Circuit. In Part III we state that statute of April Submitted 1994. indemnity limitations on the claim for triggered by filing “the claim” court. Decided June my opinion triggering the event the run- ning of the statute of limitations occurred

January 1982. This was the date

“pass through” agreement negotiated be- (briefed), Atty. Cushing, Asst. U.S.

Terry Atty., Pence, Office Asst. U.S. Stephen B. KY, Louisville, plaintiff- Atty., the U.S. appellee. Mulhall, (briefed), Tur- Murray Turner

G. Louisville, KY, Hoffman, for defen- ner & dant-appellant. MERRITT, Judge; Chief

Before: NELSON, Judges. Circuit KENNEDY MERRITT, Judge, delivered the Chief NELSON, court, in which opinion of the Judge, joined. Circuit 10-12), de- KENNEDY, Judge (pp. concurring opinion. a livered MERRITT, Judge. Chief appeals III his William Dolt Defendant guilty to plea of imposed upon his sentence distribute intent to possession with cocaine, of U.S.C. violation tribution of ap- 841(a)(1). single issue on He raises a when court erred peal: the district whether pursu- a offender him as career it sentenced Sentencing Guide- ant to argues Specifically, he lines. prior Florida “so-

erroneously upon a relied a conviction as licitation” to traffic cocaine pur- predicate offense career the defendant poses. We a is not solicitation law provision under vacate defen- and therefore of the Guidelines resentencing. sentence and remand dant’s I. controlled substance offense” for career of marijuana fender and that his one Following plea guilty, the defendant’s classify is not sufficient to him as a presentence prepared the Probation Office career offender. We review de novo a dis (PSI). investigation report The PSI calculat- trict court’s determination that a defendant the defendant’s initial offense level at ed is a career offender under the Guidelines. it then reduced to 25 for the which three- Garza, United States v. acceptance responsibili- level reduction for (6th Cir.1993)(citing United States v. Beck ty government part recommended the as ner, Cir.1993)). plea. It also determined that defen- III, history category dant’s criminal Under the provision career offender placing guideline range his at 70-87 months. Guidelines, recommended, however, The PSI (1) A defendant is a career offender if defendant be sentenced as a career offender eighteen years defendant was at least old § prior under U.S.S.G. 4B1.1 based on con- (2) offense, the time the instant assault, possession victions for felonious instant offense of conviction felony is a sell, marijuana with intent to and solicitation is either a crime of violence or a traffic in cocaine. controlled substance and sentencing, At the defendant conceded that defendant has at prior felony least two marijuana predicate conviction was a convictions of either a crime of violence or objected crime but to the PSI’s inclusion of a controlled substance offense. the assault and solicitation § U.S.S.G. question 4B1.1. There is no career offender determination. The district this requirements ease but that the first two that the felonious assault con- have been met: years the defendant was 54 viction could not be used but found that the old at the time of the and the instant Florida proper solicitation conviction was a offense of possession conviction was for with predicate controlled substance offense. Us- intent to distribute and distribution of co- marijuana convictions, ing the and solicitation caine. the court determined that the defendant was then, question, is whether § a career offender under U.S.S.G. 4B1.1. the defendant has at prior felony least two This increased defendant’s offense level to 31 convictions for controlled substance offenses. VI, history category and his criminal The Guidelines define “controlled substance thereby setting guideline range at 188- offense” as: 235 months. [A]n offense under a federal or state law The United States filed a motion under manufacture, prohibiting import, ex- guidelines § 5K1.1 of the for a downward port, distribution, dispensing or of a con- departure based on defendant’s substantial (or trolled substance a counterfeit sub- assistance, requesting reduction of defen- stance) possession or the of a controlled dant’s offense level to which would reduce (or substance) substance a counterfeit guideline range defendant’s to 120-150 manufacture, import, export, the intent to granted months. The district court the mo- distribute, dispense. tion, and sentenced the defendant to 120 4B1.2(2). Application § U.S.S.G. An Note subsequent months. Pursuant to a motion also states that this definition includes by the United district court or- abetting, conspiring, attempting and judgment dered that and commitment comment, 4B1.2, commit such offenses. order be amended to reflect a sentence of 90 (n.l). months.

The Florida solicitation statute under II. provides: which the defendant was convicted Whoever solicits another to commit an of- only challenge ap on prohibited by fense law and the course peal sentencing is the court’s classification of commands, encourages, specifically, him as a career of such solicitation offender. More hires, prior requests person he claims that his to en- solicitation conviction gage Florida state court is not a con- would Kaplansky, 5 F.3d com- States attempt to or an such offense stitute Cir.1993)(now re pending en banc vacated the offense commits such mit consideration)). shall, when no ex- criminal law for is made press provision in the definition is not listed Solicitation pun- of such punishment and is not offenses controlled substance provided in subsection ished relat- list of Application Note’s cluded in the added). abetting, conspiracy 777.04(2) ed crimes: (1989)(emphasis Fla.Stat. resolve, defendant, question we attempt. The completed when the Solicitation law then, Florida’s solicitation is whether person commit that another intent “with of- a “controlled substance advised, incited, enticed, is nevertheless crime, ordered have purposes. We career offender fense” for to com encouraged or otherwise not. State, that it is find Luzarraga 575 v. crime.” [the] mit 731, (Fla.Dist.Ct.App.1991)(quoting 731 So.2d aiding abet to and establish order 736, Gaines, 737 431 So.2d v. State prove that ting, government quotations omit (Fla.Dist.Ct.App.1983)(other 18 has committed. been substantive ted)). 2; Frorup, v. 963 § States United U.S.C. so- Florida’s contends that The defendant Cir.1992). (3d dem Evidence must F.2d 41 distinct, separate crime is a licitation law overt the defendant committed onstrate that than, from, aiding and abet- and less serious to further conduct acts or affirmative conspiracy therefore attempt or and ting, offense, com intended to facilitate the and a “controlled substance Head, constitute does not v. crime. United mission (6th for the career Cir.), offense” 1361, cert. de 1369 F.2d 927 — that the Florida statute argues 144, He —, nied, status. 116 U.S. drug trafficking and is not mention (1991)(citing United States L.Ed.2d 110 (6th the crimes delin- 832, distinct from Winston, and 834-35 Cir. 687 F.2d 1.2(2) Application § 1982)). 4B and the aiding abetting, Flor eated and Unlike responds that the government require The com Note. does not statute ida solicitation included the solicitation properly but trict commission of the pletion or calculus be- defendant make only rather per law is substantial- might lead another cause statement abetting. The defen ly equivalent to of the crime. commission son’s engage affirmative dant also need not has not addressed Sixth Aid designed to in the venture. aid conduct only look courts should question of whether clearly a more ing abetting is serious and statute, should look of the to the elements crime, directly partici the defendant since statutory language to the under behind the crime, de completed whereas the pates when review lying prior facts request only encourage or fendant need under the ing determinations career offender guilty of crime to be commit the Garza, at 1052-53. guidelines. 999 F.2d See Thus, gov disagree with solicitation. only However, courts have held other is the that solicitation ernment’s contention examined,1 statutory language should be abetting. and equivalent substantial “categorical ap employed this we have contexts, only referring proach” in other agreement Conspiracy an involves the conviction was under which per the statute or more willfully between two formed in rather than the actual obtained an an attended sons to commit 1109, Mack, 8 F.3d conspirators States v. volved. United act of one or more (6th Cir.1993)(citing Taylor v. United object conspiracy. 18 U.S.C. effect 600-02, 2143, Sturman, 575, 371; F.2d 110 S.Ct. United States — denied, 2159-60, (1990)(adopting cert. 109 L.Ed.2d 607 —, 119 L.Ed.2d 586 inquiries under the categorical approach for U.S. Act) that the Florida solicita- It is clear and United Criminal Armed Career De Jesus, Wagner, See, F.2d 1474-75 States v. e.g., United States Vea-Gonzales, (1st Cir.1993); Cir.1993). States v. United Cir.1993); respect tion statute does not these or similar With to the crime of agreement elements. No need be reached great weight authority American person between the solicitor and the he en- general proposition holds as a that mere courages, and no acts need be taken ei- criminal solicitation of another to commit a ther in furtherance of the solicited crime. crime does not itself constitute an at- only The solicitation defendant must encour- tempt. ... [T]he.definition of age request that another commit a different, solicitation are not but the such, crime. As be said to analytically offenses are distinct. gist conspiracy than be less serious because “the of criminal enticement, solicitation is resisting independent agent will of an attempt requires an whereas an intent to terposed between the solicitor and commis- crime, commit a crime_” overt act and LaFave, al., sion of the et Crim- failure to consummate that crime. This (2d ed.1986). Law, § inal 6.1 at 488 true, to call solicitation an being attempt requires Criminal to delete the element of overt act. engage intend to in criminal con duct and that he commit an overt act which (citing Id. at 548 Gervin v. 212 Tenn. step ais substantial toward the commission 653, (1963)).2 371 S.W.2d 449 go of the offense. The defendant must be activities,” yond “preliminary 4B1.2(2), undertake Under Florida’s solicitation law unequivocally conduct in furtherance of the cannot analogous be considered to an at- Rovetuso, crime. United States v. 768 F.2d tempt of a “controlled substance offense.” 809, Cir.1985), denied, 821 cert. 474 U.S. As a Florida state law Florida law 1076, 838, (1986); 106 88 L.Ed.2d 809 controls the definition and contours of the 1064, Cartlidge, United States v. 808 F.2d defendant’s solicitation conviction and Flori- (5th Cir.1987). 1066-67 As the Ninth Circuit da clearly courts have established that solici- explained, fragment a of the crime must es equivalent tation is not or similar enough to sentially progress. in be United States v. attempt equate to the two offenses. Flori- 848, Cir.1990). Hadley, 918 F.2d 853 interpretation da’s of its solicitation law Although solicitation is more similar to at makes “prelim- the crime more similar to the tempt conspiracy than it is to or inary activities” that the defendant get abetting, solicitation is not the essential beyond attempt in an case. The equivalent mere en- attempt of because solicitation couragement request does not part an overt act on the or is, complete the defendant to the crime. The commit crime a an “overt act” suffi- engage need not himself intend to equate attempt.3 solicitation with cient criminal conduct encourage but Finally, the fact that Sentencing Com- advise someone else do so. mission did not include solicitation in its list Florida courts have addressed the relation- predicate in Application crimes 1Note is ship attempt between and the Florida solici- evidence that it did not intend to include tation In law. Hutchinson v. predicate solicitation as a (Fla. offense for career Ct.App.1975), So.2d 546 Dist. the Flori- appeals da court of status. Solicitation is also a ruled that solicitation federal attempt are and distinct crimes: criminal person: committed when a Hutchinson, quoted 2. The Hutchinson court also from the (quoting 315 So.2d at 548-49 Ger vin, opinion, 453). question Gervin which addressed this 371 S.W.2d at under Tennessee law: 3. Commentators on the criminal law have also Our answer to the contention that solicitation analytical written on the distinctions and differ- developed is a form of from the general ences between analytical distinctions and the reasons for Sayre, Attempts, laws. In Criminal 41 Harv. may supply these distinctions. (1928), Solicitation L.Rev. 821 the author discussed the ori- attempt concept, element in the but in and of gin, development and elements of the law of itself, satisfy solicitation does not all these ele- criminal The author notes that while merge attempts ments. To and solicitation attempt, solicitation is somewhat similar concepts bastardizes the "[ajnalytically of each and breeds the two crimes are distinct.... already wrought further confusion in spite an area of their similarities ... the two crimes with confusion. should not be confused.” Id. at 857-58. example, defendant been attempt. For had person engage intent that another he was felony as an solicitation where constituting a that has convicted of use, use, attempted hiring or threat- someone to distribute charged with element ..., would, and under physical force cocaine, use of conviction ened the solicitation strongly corroborative circumstances as an at classified my opinion, properly be induces, solicits, commands, intent, Sentencing tempt. This is because persuade such oth- endeavors otherwise in its “attempt” is meant Guidelines engage in such conduct.... person to er sense, “definitional de regardless of “classic” statute, 373(a). This solicitation Lir 18 U.S.C. law.” States viations state United presumably (2d Cir.1991). the Commission of which I anzo, 78-79 than the aware, crime a more serious approach categorical apply it involves the use since Florida statute Armed Career Crimi inquiries under the the Commission’s physical force. Given rule apply the same Act and we should nal 4B1.2, §in to include solicitation choice not However, this does under the Guidelines. intended say that the Commission we cannot definition of apply Florida’s not mean we “con- to constitute apply a state’s any more than we “attempt” offense.” trolled substance Taylor “burglary.” v. United definition requirement of prior convictions 110 S.Ct. provision is to the Guidelines’ (“burglary” under' L.Ed.2d 607 strictly. interpreted See United 924(e) “generic” is used its U.S.C. Delvecchio, sense). — U.S. —, denied, cert. Indeed, majority law to applies federal (1992); States v. Liran L.Ed.2d determine whether Cir.1991). (2d zo, Solicitation F.2d abetting can be characterized in predicate offense as a is not enumerated fully I conspiracy; analyses in which Guidelines, stat Florida’s solicitation law also relies on federal agree. The Court sufficiently not similar ute is attempt. It then attempt to serve as a in initial discussion of abetting, conspiracy or its analysis offense” as of how Florida treats predicate “controlled substance turns to an State, Sentencing Guide relying § 4B1.2 of the defined on Hutchinson (Fl. the district court erred Consequently, Ct.App.1975), and lines. Dist. 315 So.2d 546 solicitation con counting the defendant’s holding is that solicitation relies on Florida’s offense” “controlled substance viction as a did attempt. Because it held solicitation not sentencing him as a career and on basis specific commit a require not an intent to offender. does, attempt crime or an overt act while “to call solicita Hutchinson court concluded Accordingly, vacate sen- defendant’s to delete the element of attempt tion an resentencing. tence and remand (citing at 548 Gervin overt act.” Id. KENNEDY, concurring. (1963)).4 Judge, Tenn. S.W.2d act or a hiring to do a criminal of someone en- law I position in a from a command cannot be classified compasses conduct which would, my- opinion, authority to do so plea of nolo attempt. Defendant’s as an Thus, I con because supply the overt act. in cocaine to traffic contendere to solicitation attempt can over that solicitation and clude (Second Felony) not-permit a Degree lap and that some Florida guilty attempt of an finding that defendant to commit a controlled substance or to possess intent to distribute with categorized, for appropriately be separately, I how- cocaine. write distribute attempts, I sentencing purposes, as federal ever, applications, the in other crime because separately. may overlap with concur in Florida of solicitation specific crime if part Gentry intent to commit a was overruled in Hutchinson (Fla.1983). There, require specific Florida, underlying did not crime 437 So.2d law, attempt, intent. under Florida did court held that According committing Soott, &A. satisfy to W. LeFave the crime to conviction for Crimi- (1972), the modern Law nal attempt crystallized was in the doctrine Rovetuso, The court in United States v. Higgins, 2 1801 case of Rex v. East 5 (7th Cir.1985), 768 F.2d 809 cert. denied 474 case, charged was U.S. 88 L.Ed.2d 809 soliciting a servant to steal his master’s (1986), majority, cited upon relied goods. acknowledged that The Justices Mandujano. goods there was no evidence that the were in agreed fact stolen or that the servant to steal I simply would day leave to another wheth- pure It a case of solicitation. All them. was er a solicitation under Florida attempt four Justices was an law, where the indictment was limited to indictable offense. The act of solicitation conduct, could constitute an expressly noted Justice Lawrence as purposes. for Guidelines carrying an act towards out tent to commit the crime.

Some writers have indicated that in deter-

mining gone beyond whether a defendant has attempt,

preparation to one can use the same

analysis if that one would use to determine conspiracy.

there is an act furtherance of a

Hiring transport someone to a controlled believe, ordinarily,

substance would I be an In the Matter of TERRY LIMITED overt act. PARTNERSHIP, Debtor. That mere solicitation can length by under federal law is discussed at Appeal HOLDINGS, of INVEX N.V. the Fifth Circuit United States v. Mandu jano, 499 F.2d 370 cert. de No. 93-3371. nied, L.Ed.2d (1975). Mandujano was convicted of at Appeals, United States Court of tempted An distribution of heroin. under Seventh Circuit. purchase cover officer tried to heroin from Argued Feb. 1994. attempted defendant who to locate some calls, through phone but was unable to do so. Decided June 1994. trying He said he would continue but needed money up-front, gave which officer money him. Defendant later returned Manduja-

and never did deliver heroin. claimed,

no attempting acquire

that most at he was substance, it;

a controlled not to distribute impossible it is for a to at-

tempt to distribute heroin he control; possess that his acts were

only preparation, distinguished from an

attempt; and that the evidence was insuffi- support jury’s

cient to verdict.

Id.

The court found an The case

contains extensive discussion of

requirements. holding seems to me to

be based on the conclusion that solicitation progress be sufficient definite toward

Case Details

Case Name: United States v. William F. Dolt, III

Court Name: Court of Appeals for the Sixth Circuit

Date Published: Jun 23, 1994

Citation: 27 F.3d 235

Docket Number: 18-3329

Court Abbreviation: 6th Cir.