United States v. Gullett ( 1996 )


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  • PUBLISHED
    UNITED STATES COURT OF APPEALS
    FOR THE FOURTH CIRCUIT
    UNITED STATES OF AMERICA,
    Plaintiff-Appellee,
    v.                                                                    No. 94-5822
    DENNY R. GULLETT,
    Defendant-Appellant.
    Appeal from the United States District Court
    for the Southern District of West Virginia, at Charleston.
    John T. Copenhaver, Jr., District Judge.
    (CR-94-17)
    Argued: November 3, 1995
    Decided: February 12, 1996
    Before MURNAGHAN, NIEMEYER, and HAMILTON,
    Circuit Judges.
    _________________________________________________________________
    Affirmed by published opinion. Judge Hamilton wrote the opinion, in
    which Judge Murnaghan and Judge Niemeyer joined.
    _________________________________________________________________
    COUNSEL
    ARGUED: Rebecca Ann Baitty, LUTZ, WEBB, PARTRIDGE,
    BOBO & BAITTY, Sarasota, Florida, for Appellant. Kelly D.
    Ambrose, Assistant United States Attorney, Charleston, West Vir-
    ginia, for Appellee. ON BRIEF: Rebecca A. Betts, United States
    Attorney, Charleston, West Virginia, for Appellee.
    _________________________________________________________________
    OPINION
    HAMILTON, Circuit Judge:
    On January 31, 1994, a federal grand jury sitting in the Southern
    District of West Virginia returned a one-count indictment charging
    the appellant, Denny Ray Gullett, with "maliciously damag[ing] and
    destroy[ing] and attempt[ing] to damage and destroy, by means of
    explosive, a building used in interstate commerce and an activity
    affecting interstate commerce, that is, rental property, . . . which
    resulted in the death of Masil Lee Hensley . . . in violation of Title
    18, United States Code, Section 844(i)." (J.A. 10). Following a jury
    trial, Gullett was convicted. The jury found, by way of special inter-
    rogatory, that Gullett's conduct was the proximate cause of Masil Lee
    Hensley's death. On October 6, 1994, Gullett was sentenced to thirty-
    eight years' imprisonment. Gullett appeals his conviction and sen-
    tence. We affirm.
    I
    In December 1989, Gullett and Masil Hensley purchased, through
    a series of loans, a machine shop, known as Lee's Machine Shop. The
    machine shop, which was primarily engaged in the repair of mining
    equipment, was located near Chapmanville in Logan County, West
    Virginia. The responsibilities of the machine shop were divided
    between Gullett and Masil Hensley. Masil Hensley was responsible
    for the supervision of the actual repair of equipment while Gullett
    handled the financial aspects of the business, including the collection
    of accounts receivable and payments to creditors.
    In the years following its establishment, the machine shop experi-
    enced financial difficulties and fell behind on its obligations to credi-
    tors. Eventually, Gullett became dissatisfied with the financial
    stability of the machine shop and made several unsuccessful attempts
    to sell the business.
    In July 1992, Masil Hensley obtained, through the machine shop,
    a $150,000 "key man" life insurance policy, payable to the machine
    shop upon his death.1 The policy was acquired at Gullett's urging, and
    _________________________________________________________________
    1 A key man insurance policy is an insurance policy that is secured on
    a valuable business employee. The proceeds of the insurance policy ben-
    efit the business.
    2
    although Masil Hensley originally arranged for his wife to be the ben-
    eficiary of the policy, Gullett convinced him to change the policy to
    make the machine shop the beneficiary.
    On November 29, 1993, an explosion occurred in the parking lot
    adjacent to the machine shop. The explosion severely injured Masil
    Hensley and his nephew, Lonnie Hensley, an employee of the
    machine shop. In addition, Masil Lee Hensley, the son of Masil Hens-
    ley, suffered fatal injuries. The explosion also damaged the machine
    shop and rental property (a one-story white house) owned by the
    machine shop and located approximately twelve feet from the point
    of detonation.
    Through its investigation, the government learned that in the early
    morning hours of November 29, 1993, Gullett telephoned Masil Hen-
    sley at his house, located next to the machine shop, and told Masil
    Hensley that he had asked Lonnie Hensley to come to his house
    before reporting to work to give him advice on the repair of his truck.
    Gullett asked Masil Hensley to punch Lonnie Hensley's time card so
    he would be paid as if he had reported to work at the usual time. Gul-
    lett then telephoned Lonnie Hensley and asked him to come to his
    house.
    At approximately 7:45 a.m., Lonnie Hensley arrived at Gullett's
    house. After Lonnie Hensley examined Gullett's truck, he gave Gul-
    lett his opinion on the truck's mechanical problem. As Lonnie Hens-
    ley prepared to leave, Gullett told Lonnie Hensley that he had
    prepared a "gag gift" for Masil Hensley. Gullett then showed Lonnie
    Hensley a cardboard box with the top and one side removed. Inside
    the cardboard box, Lonnie Hensley saw a smaller box covered with
    packing tape. The smaller box had two plastic coated wires that pro-
    truded near the bottom of the box.
    Although the cardboard box covered with packing tape contained
    four to six sticks of dynamite,2 Gullett explained to Lonnie Hensley
    that the smaller box contained an inflatable doll having the body of
    Dolly Parton and the head of Ronald Reagan, and that the tape had
    _________________________________________________________________
    2 Expert testimony at trial established this fact.
    3
    been partially cut so that as the doll inflated, it could pop out of the
    box. Gullett further explained to Lonnie Hensley that the two wires,
    when connected to an automotive battery, would cause the doll to
    inflate and pop from the box.
    Following this explanation, Gullett told Lonnie Hensley how to
    present the gag gift to Masil Hensley. Gullett told Lonnie Hensley to
    get Masil Hensley alone inside his house before connecting the wires
    to an automotive battery. Gullett also told Lonnie Hensley not to tell
    the other employees at the machine shop about the gag gift or to allow
    them to see it.
    Lonnie Hensley placed the cardboard box in his truck and trans-
    ported it to the parking lot adjacent to the machine shop. He parked
    his truck in the parking lot approximately twelve feet from the rental
    property owned by the machine shop. The machine shop was located
    approximately sixty feet from the location of Lonnie Hensley's truck,
    and as noted above, Masil Hensley's house was located adjacent to
    the machine shop.
    Contrary to Gullett's instructions, Lonnie Hensley entered the
    machine shop and told Masil Lee Hensley about the gag gift that Gul-
    lett had concocted for Masil Hensley. Lonnie Hensley and Masil Lee
    Hensley then approached Masil Hensley and told him what Gullett
    had sent him. Masil Hensley told them that he did not have time to
    see the gag gift because he was preparing to leave the machine shop
    to make an equipment delivery. They, however, followed Masil Hens-
    ley out of the machine shop and convinced him to look at the gag gift
    in the parking lot of the machine shop.
    The three men walked to Lonnie Hensley's truck, and the card-
    board box was removed and placed on the parking lot. Lonnie Hens-
    ley removed the battery from his truck and placed it in the cardboard
    box next to the smaller box covered with packing tape. He knelt
    beside the cardboard box to connect the wires to the battery, while
    Masil Hensley stood approximately five feet away observing the pro-
    cess. Masil Lee Hensley was waving a towel over the package and
    joking about what was contained in the cardboard box.
    At the instant the wires protruding from the smaller box covered
    with packing tape connected to the battery, the package exploded vio-
    4
    lently, resulting in injuries to Masil Hensley and Lonnie Hensley,
    Masil Lee Hensley's death, and damage to the machine shop and the
    rental property owned by the machine shop and located approxi-
    mately twelve feet from the point of detonation.
    Gullett was charged in a one-count indictment with"maliciously
    damag[ing] and destroy[ing] and attempt[ing] to damage and destroy,
    by means of explosive, a building used in interstate commerce and an
    activity affecting interstate commerce, that is, rental property, . . .
    which resulted in the death of Masil Lee Hensley . .. in violation of
    Title 18, United States Code, Section 844(i)." (J.A. 10). The govern-
    ment's theory at trial was that Gullett intended to kill Masil Hensley
    through a contained explosion in Masil Hensley's residence so that
    the machine shop could collect on the $150,000 key man life insur-
    ance policy. Testimony at trial established that, had the bomb
    exploded in Masil Hensley's residence as planned, the explosion
    would have killed Masil Hensley and Lonnie Hensley and destroyed
    all evidence of wrongdoing. The jury convicted Gullett and found, by
    way of special interrogatory, that Gullett's conduct was the proximate
    cause of Masil Lee Hensley's death. Gullett was sentenced to thirty-
    eight years' imprisonment and filed a timely notice of appeal.
    II
    A
    Prior to trial, Gullett moved to suppress evidence of certain nonver-
    bal responses (consisting of affirmative and negative nods of the
    head) he made to federal agents prior to his arrest. Following a sup-
    pression hearing, the government informed the district court that this
    evidence would not be used in its case-in-chief. In light of the govern-
    ment's stated intent, the district court declined to address whether the
    federal agents obtained Gullett's nonverbal responses in violation of
    Miranda v. Arizona, 
    384 U.S. 436
     (1966); instead, the district court
    ruled that, even if the nonverbal responses were obtained in violation
    of Miranda, the nonverbal responses were made knowingly and vol-
    untarily, and were trustworthy, and therefore, could be used for
    impeachment purposes if Gullett took the stand at trial, see Harris v.
    New York, 
    401 U.S. 222
    , 225-26 (1971) (evidence obtained in viola-
    5
    tion of Miranda may be used for impeachment purposes at trial); see
    also Oregon v. Hass, 
    420 U.S. 714
    , 722 (1975).
    At trial, Gullett testified on direct examination that, on the day of
    the explosion, he never gave Lonnie Hensley a package or box con-
    taining an explosive and that he had no knowledge of any gag gift or
    inflatable doll. He further denied trying to kill Lonnie Hensley or
    Masil Hensley and denied knowledge of how to prepare a bomb.
    In response to Gullett's trial testimony, the government introduced
    the testimony of Agent Kemp. Agent Kemp testified that prior to Gul-
    lett's arrest Gullett nodded his head in a negative manner after being
    asked whether he intended to kill anybody and nodded his head in an
    affirmative manner after being asked whether the bomb was a prank.
    Gullett contends that the district court erroneously allowed the gov-
    ernment to impeach him at trial with the nonverbal responses he gave
    to Agent Kemp while being questioned prior to his arrest. We dis-
    agree.
    Because Gullett did not object to the admission of Agent Kemp's
    testimony, we review for plain error. See Fed. R. Crim. P. 52(b).
    Under the plain error standard, we must determine whether there was:
    (1) error; (2) that was plain; (3) that affected the defendant's substan-
    tial rights; and (4) that "seriously affect[ed] the fairness, integrity or
    public reputation of judicial proceedings." United States v. Olano,
    
    113 S. Ct. 1770
    , 1776-79 (1993) (citation and internal quotes omit-
    ted).
    We believe the district court did not commit error, let alone plain
    error. The Supreme Court has explained that statements obtained in
    violation of Miranda3 may be used on cross-examination to impeach
    the defendant who made them. See Harris, 
    401 U.S. at 225-26
    . The
    Court in Harris stated that "[t]he shield provided by Miranda cannot
    be perverted into a license to use perjury" and avoid "the traditional
    truth-testing devices of the adversary process." 
    Id.
    _________________________________________________________________
    3 Arguendo, we will assume Gullett's nonverbal responses were
    obtained in violation of Miranda.
    6
    In this case, Gullett opened the door on direct examination to the
    content of the statements he made. The testimony of Agent Kemp was
    elicited to attack Gullett's credibility and, as such, was proper
    impeachment. Gullett's testimony on direct examination that he: (1)
    never gave Lonnie Hensley a package or box containing an explosive;
    (2) had no knowledge of any gag gift or inflatable doll; and (3) had
    no knowledge of how to prepare a bomb was in direct contrast to
    Agent Kemp's testimony that Gullett nodded his head in an affirma-
    tive manner after being asked whether the bomb was a prank. In addi-
    tion, because the substance of Gullett's direct examination was to
    deny all knowledge of the events surrounding the explosion, the gov-
    ernment was free to introduce Agent Kemp's testimony that Gullett
    nodded his head in a negative manner after being asked whether he
    intended to kill anybody. Once Gullett testified on direct examination,
    Miranda's shield no longer protected him against the government's
    use of his prior inconsistent statements for impeachment purposes;
    thus, the government was free to use Agent Kemp's testimony for the
    limited purpose of impeaching Gullett's credibility. The district court
    did not err in admitting Agent Kemp's testimony.
    B
    In a related argument, Gullett contends that the district court's
    instruction to the jury regarding its consideration of his nonverbal
    responses deprived him of a fair trial. Because Gullett did not object
    to the court's instructions, we again review for plain error. See Fed.
    R. Crim. P. 52(b). The district court instructed the jury:
    Where a defendant, by his earlier statement or other con-
    duct, admits some fact against his interest, then such state-
    ment or other conduct, if any there be and if knowingly
    made or done, may be considered as evidence of the truth
    of the facts so admitted.
    Any such statement or conduct, if any there be, may also be
    considered for purposes of judging the credibility of a
    defendant as a witness.
    (J.A. 417).
    7
    Gullett contends that this instruction allowed the jury to consider
    Gullett's statements as substantive evidence of guilt rather than for
    impeachment purposes only. We need not resolve whether the district
    court committed error in this regard. Assuming that this instruction
    was error that was plain, Gullett cannot satisfy Olano's third require-
    ment that the error affected his substantial rights. In Olano, the Court
    explained that "in most cases [the plain error standard's third require-
    ment] means that the error must have been prejudicial: It must have
    affected the outcome of the District Court proceedings." 
    113 S. Ct. at 1778
    . This standard is the functional equivalent of the harmless error
    standard, with the exception that the defendant, rather than the gov-
    ernment, carries the burden of persuasion. 
    Id.
     . In light of the over-
    whelming evidence of guilt and the fact that Gullett points to no
    prejudice flowing from the district court's instruction, we cannot con-
    clude that the alleged error affected the outcome below. Accordingly,
    Gullett is entitled to no relief under Rule 52(b).
    III
    A
    Gullett also challenges the sufficiency of the evidence to support
    his conviction. The standard of review is "whether, after viewing the
    evidence in the light most favorable to the prosecution, any rational
    trier of fact could have found the essential elements of the crime
    beyond a reasonable doubt." Jackson v. Virginia, 
    443 U.S. 307
    , 319
    (1979).
    To maintain a prosecution under 
    18 U.S.C. § 844
    (i),4 the govern-
    ment must prove that the defendant: (1) maliciously; (2) damaged or
    destroyed a building, vehicle, or other real or personal property; (3)
    by means of fire or explosive; and (4) the building, vehicle, or per-
    _________________________________________________________________
    4 Section 844(i) provides in pertinent part:
    Whoever maliciously damages or destroys, or attempts to dam-
    age 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 for-
    eign commerce shall be imprisoned for not more than ten years.
    ...
    8
    sonal or real property was used in interstate or foreign commerce or
    in any activity affecting interstate or foreign commerce. United States
    v. Nguyen, 
    28 F.3d 477
    , 480 (5th Cir. 1994); United States v. Triplett,
    
    922 F.2d 1174
    , 1177 (5th Cir.), cert. denied, 
    500 U.S. 945
     (1991).
    At trial, Gullett stipulated that the rental property was used in an
    activity affecting interstate commerce, see Russell v. United States,
    
    471 U.S. 858
    , 859-62 (1985) (rental properties constitute a sufficient
    nexus to interstate commerce for federal jurisdiction to attach under
    section 844(i)); United States v. Parsons, 
    993 F.2d 38
    , 40 (4th Cir.)
    (rented single-family dwelling falls within section 844(i)), cert.
    denied, 
    114 S. Ct. 266
     (1993); United States v. Medeiros, 
    897 F.2d 13
    , 16 (1st Cir. 1990) ("Russell thus holds that rental property is per
    se used in an activity affecting interstate commerce."); accordingly,
    the fourth element was satisfied. The government also presented evi-
    dence that the rental property was damaged by an explosive device,
    namely, the cardboard box wrapped in packing tape that contained
    dynamite; accordingly, elements two and three were satisfied.
    We are left with the question of whether the government produced
    sufficient evidence to satisfy the malice element. Gullett contends this
    element could only be satisfied with proof that he intended to damage
    the rental property. We disagree.
    Our construction of the term "maliciously" as employed in section
    844(i) is guided by two principles of statutory interpretation. First, if
    Congress uses a common-law term in a federal criminal statute with-
    out defining it, we must presume that Congress adopted the common-
    law definition of that term. Morissette v. United States, 
    342 U.S. 246
    ,
    263 (1952) ("And where Congress borrows terms of art in which are
    accumulated the legal tradition and meaning of centuries of practice,
    it presumably knows and adopts the . . . meaning its use will convey
    to the judicial mind unless otherwise instructed."); United States v.
    Everett, 
    700 F.2d 900
    , 904 (3d Cir. 1983); see also United States v.
    Harold, 
    588 F.2d 1136
    , 1142 (5th Cir. 1979); United States v.
    Guillette, 
    547 F.2d 743
    , 749 (2d Cir. 1976), cert. denied, 
    434 U.S. 839
     (1977). Second, we will not adopt the common-law meaning of
    the term if there are "grounds for inferring any affirmative instruction
    from Congress" to define it otherwise. Morissette, 
    342 U.S. at 273
    .
    9
    At common law, one acted "maliciously" if he or she acted inten-
    tionally or with willful disregard of the likelihood that damage or
    injury would result. See United States v. Sweet , 
    985 F.2d 443
    , 445
    (8th Cir. 1993); McFadden v. United States, 
    814 F.2d 144
    , 146 (3d
    Cir. 1987). Because Congress did not define "maliciously" in section
    844(i), we must presume Congress intended to employ the common-
    law definition unless there are "grounds for inferring any affirmative
    instruction from Congress" to define it otherwise. Morissette, 
    342 U.S. at 273
    . And, here, there are no grounds--e.g., from the language
    of the statute or legislative history--from which to conclude that Con-
    gress intended to adopt a different definition of"maliciously" than the
    term's common-law definition. Indeed, the legislative history of sec-
    tion 844 indicates that prosecutions under section 844(i) should be
    permitted except in the case of accidental damage. H.R. Rep. No.
    1549, 91st Cong., 2d Sess, reprinted in 1970 U.S.C.C.A.N. 4007,
    4046 (discussing a similar provision to section 844(i), section 844(f)).
    And "[p]rosecution for non-accidental damage is fully consistent with
    adoption of the common law meaning of the term `maliciously.'"
    McFadden, 
    814 F.2d at 146
    . Accordingly, the first element of section
    844(i) is satisfied if the defendant acted intentionally or with willful
    disregard of the likelihood that damage or injury would result from
    his or her acts.
    In this case, unquestionably, Gullett acted with willful disregard of
    the likelihood that damage to the rental property would result. There
    is no question that Gullett knew that the rental property was located
    close to Masil Hensley's house, the proposed site of the explosion.
    Thus, Gullett acted with a willful disregard of the likelihood that four
    to six sticks of dynamite would damage property close to the property
    he intended to destroy. In short, the government produced sufficient
    evidence to support the conviction.
    B
    In a related argument, Gullett contends the following instruction
    given to the jury constitutes reversible error because it allowed the
    jury to find him guilty without finding that he intended to damage the
    rental property:
    A defendant may not be excused from responsibility for the
    harmful consequences of his actions simply because that
    10
    harm was not precisely the harm in which he intended. That
    is, if the only difference between what a defendant intended
    to flow from his action and what actually occurred as a
    result of his action is that some property was damaged other
    than that which the defendant intended, the defendant, under
    the law, may still be held responsible to the same extent that
    he would have been responsible had the intended harm
    resulted, so long as the actual result is similar to and not
    remote from the intended result. Of course, the defendant
    must have acted maliciously and with specific intent, and
    the government must prove all of the essential elements of
    the offense beyond a reasonable doubt in order for you to
    find the defendant guilty.
    (J.A. 421).
    The challenged instruction is a correct statement of the law
    because, as noted earlier, the government was not required to prove
    that Gullett intended to damage the rental property. Rather, the gov-
    ernment was required, at a minimum, to prove that the damage was
    done with willful disregard of the likelihood that damage would
    result. Thus, the district court correctly instructed the jury that Gullett
    "may" be legally responsible for his actions even though "some prop-
    erty was damaged other than that which the defendant intended." 
    Id.
    IV
    Gullett also argues that the district court erred in arriving at his sen-
    tence. First, he contends that the district court erred in its application
    of the Sentencing Guidelines. Second, Gullett contends that the dis-
    trict court exceeded statutory limits when it sentenced him to thirty-
    eight years' imprisonment. We find no merit to these contentions.
    Addressing Gullett's contention that the district court erred in its
    application of the Sentencing Guidelines, we begin by noting that
    United States Sentencing Commission, Guidelines Manual (USSG),
    § 1B1.2 (Nov. 1993) directs the sentencing court to "[d]etermine the
    offense guideline section in Chapter Two (Offense Conduct) most
    applicable to the offense of conviction (i.e. , the offense conduct
    charged in the count of the indictment or information of which the
    11
    defendant was convicted)." "As a general rule, the court is to use the
    guideline section from Chapter Two most applicable to the offense of
    conviction." USSG § 1B1.2, comment. (n.1)."The Statutory Index
    (Appendix A) provides a listing to assist in this determination." Id.
    The Statutory Index refers a sentencing court to USSG § 2K1.4
    ("Arson; Property Damage by Use of Explosives") for violations of
    section 844(i). USSG § 2K1.4 does not contain an enhancement when
    death results from the commission of the arson or the use of the
    explosives. Instead, when death results, USSG § 2K1.4(c)(1) directs
    the sentencing court to apply the "most analogous" guideline offense
    from Chapter Two, Part A:
    If death resulted, or the offense was intended to cause death
    or serious bodily injury, apply the most analogous guideline
    from Chapter Two, Part A (Offenses Against the Person) if
    the resulting offense level is greater than that determined
    above.
    Following these directives, the district court correctly applied the
    guideline for first degree murder, USSG § 2A1.1, because death
    resulted from the use of an explosive. See United States v. Prevatte,
    
    16 F.3d 767
    , 781-82 (7th Cir. 1994) (USSG § 2A1.1 is the most anal-
    ogous guideline if death results from the use of fire or explosives);
    United States v. El-Zoubi, 
    993 F.2d 442
    , 449 (5th Cir. 1993) (if death
    results from the use of fire, USSG § 2A1.1 is the most analogous
    guideline).5 Under USSG § 2A1.1(a), Gullett's base offense level was
    _________________________________________________________________
    5 We find no merit to Gullett's contention that the district court's cross-
    reference to USSG § 2A1.1 deprived him of trial by jury for the charge
    of murder. The court in Prevatte rejected a similar contention, conclud-
    ing:
    Section 844(i) is not the functional equivalent of first degree
    murder; it is an arson statute, with severe repercussions for the
    arsonist whose actions result in death of a human being. The
    court and the jury made the determination required by statute,
    nothing more. Nothing in the statutory language or history of
    § 844(i) suggests that the elements of the offense change when
    death results, and we shall not impose these additional burdens
    on the government absent statutory language to the contrary.
    
    16 F.3d at
    782 n.15.
    12
    forty-three, and the district court increased Gullett's offense level by
    two levels for obstruction of justice, USSG § 3C1.1.6 Combined with
    a criminal history category of one, Gullett's guideline range was life.
    At this point, the district court was free to depart downward as
    USSG § 2A1.1 authorizes a downward departure--but not below the
    offense level specified in USSG § 2A1.2 ("Second Degree Murder")
    --"[i]f the defendant did not cause the death intentionally or know-
    ingly." USSG § 2A1.1, comment. (n.1). Gullett did not move for a
    downward departure and one was not warranted because the district
    court found that Masil Lee Hensley's death was a"premeditated kill-
    ing . . . in which the defendant acted with malice." (J.A. 443).
    However, the district court was not in a position to sentence Gullett
    to life imprisonment because, at the time Gullett's offense was com-
    mitted, a person convicted under section 844(i) was subject to impris-
    onment:
    for not more than ten years . . . and if death results to any
    person, . . . as a direct or proximate result of conduct prohib-
    ited by this subsection, shall also be subject to imprisonment
    for any term of years, or to the death penalty or to life
    imprisonment as provided in section 34 of this title.7
    The version of section 34 in effect at the time Gullett was sentenced
    stated:
    Whoever is convicted of any crime prohibited by this chap-
    ter, which has resulted in the death of any person, shall be
    subject also to the death penalty or to life imprisonment, if
    _________________________________________________________________
    6 The district court correctly applied the obstruction of justice enhance-
    ment because Gullett committed perjury during his testimony at trial. See
    United States v. Dunnigan, 
    113 S. Ct. 1111
    , 1116 (1993).
    7 In 1994, Congress amended section 844(i) to, among other things,
    eliminate the reference to section 34. Section 844(i) now provides, in
    pertinent part, that "if death results to any person, . . . as a direct and
    proximate result of conduct prohibited by this subsection, [the defendant]
    shall also be subject to imprisonment for any term of years, or to the
    death penalty or to life imprisonment."
    13
    the jury shall in its discretion so direct, or, in the case of a
    plea of guilty, or a plea of not guilty where the defendant
    has waived a trial by jury, if the court in its discretion shall
    so order.8
    Courts interpreting the pre-1994 version of section 34 have held that,
    under the plain language of section 34, a life sentence may not be
    imposed absent jury direction. See United States v. Williams, 
    775 F.2d 1295
    , 1299 (5th Cir. 1985) ("[U]nder the clear meaning of the combi-
    nation of sections 844(i) and 34, Williams may be sentenced by the
    district court only to `any term of years' and not to life imprisonment
    in the absence of a jury recommendation or jury waiver."), cert.
    denied, 
    475 U.S. 1089
     (1986); United States v. Hansen, 
    755 F.2d 629
    ,
    631 (8th Cir.), cert. denied, 
    474 U.S. 834
     (1985). Consequently, the
    district court did not have the authority to impose a life sentence
    under section 34, see, e.g., Williams , 
    775 F.2d at 1299
    , or the Sen-
    tencing Guidelines, see United States v. Holloway, 
    991 F.2d 370
    , 373
    (7th Cir. 1993) ("[T]he Sentencing Guidelines cannot trump the edicts
    of the federal criminal statutes.").
    The district court was left with its statutory obligation to impose a
    sentence for "any term of years." The district court interpreted section
    34 as placing a limitation on its authority to impose a sentence that
    exceeded Gullett's life expectancy, reasoning that a life sentence
    could be imposed only when the jury so recommends. The district
    court also took the view that good-time credits, see 
    18 U.S.C. § 3624
    (b) (allowing fifty-four days a year of good-time credit), could
    be considered when imposing sentence. The district court calculated
    Gullett's life expectancy and found it to be 33.8 years.9 The district
    court then sentenced Gullett to thirty-eight years' imprisonment,
    which when good-time credits are considered, see 
    id.,
     would result in
    a period of incarceration of 33.1 years.
    _________________________________________________________________
    8 In 1994, section 34 was amended. That section now reads "Whoever
    is convicted of any crime prohibited by this chapter, which has resulted
    in the death of any person, shall be subject also to the death penalty or
    to imprisonment for life."
    9 Gullett does not attack this finding.
    14
    Gullett contends that, because his sentence exceeded his life expec-
    tancy, the district court sentenced him to life imprisonment, a sen-
    tence unauthorized by section 34 in the absence of a jury
    recommendation. Gullett's argument raises two interesting questions.
    First, under the pre-1994 version of section 34, could the district court
    impose a sentence exceeding the defendant's life expectancy? If not,
    could good-time credits be considered in determining whether a
    defendant's sentence exceeded his life expectancy?
    In answering the first question, the far more difficult one, we begin
    by noting that courts have rejected similar, but not identical, chal-
    lenges to the one raised by Gullett. See, e.g. , United States v.
    Berryhill, 
    880 F.2d 275
    , 277-78 (10th Cir. 1989) (upholding 300-year
    sentence for kidnapping), cert. denied, 
    493 U.S. 1049
     (1990);
    Rothgeb v. United States, 
    789 F.2d 647
    , 651 (8th Cir. 1986) (uphold-
    ing 210-year sentence for second-degree murder). These cases did not
    involve section 34, but more importantly, in each of these cases, the
    statute authorized life imprisonment, or in the alternative, imprison-
    ment for a term of years. Berryhill, 
    880 F.2d at 277
     (penalty for kid-
    napping, 
    18 U.S.C. § 1201
    , "any term of years or for life"); Rothgeb,
    
    789 F.2d at 651
     (penalty for second-degree murder, 
    18 U.S.C. § 1111
    (b), "any term of years or for life"). Thus, when the sentencing
    courts in Berryhill and Rothgeb chose one alternative over the other,
    there was no reversible error.
    In contrast, in this case, section 34 functions"to deny [the] sen-
    tencer the power to impose a life sentence in a particular instance."
    United States v. Martin, 
    63 F.3d 1422
    , 1434 (7th Cir. 1995). Thus,
    "the absence . . . of a jury recommendation for a sentence of a life in
    prison disempowered the sentencing judge to choose between a life
    term and a term of years, so if he used a term of years to impose a
    life sentence he was evading a limitation on his authority." United
    States v. Prevatte, 
    66 F.3d 840
    , 847 (7th Cir. 1995) (Posner, C.J., con-
    curring). To be sure, the Seventh Circuit explained, in reaching the
    conclusion that the pre-1994 version of section 34 prohibited the sen-
    tencing court from sentencing a defendant, in the absence of a jury
    recommendation, to a sentence exceeding his life expectancy:
    In our view, the pre-1994 version of § 34 indicated a Con-
    gressional intent to impose real limits on a district court's
    15
    otherwise broad sentencing discretion. The language of that
    statute did not permit the defendant to be "subject" to a life
    sentence unless the jury so decided. If we are to give the
    legislative decision real meaning, a sentencer cannot be per-
    mitted to evade the restrictions on one kind of sentence by
    imposing a substantially identical one with a slightly differ-
    ent name. We therefore hold that Martin's fifty year sen-
    tence, given in the knowledge that Martin would have to
    serve 42.5 years in prison and that that time span would
    extend beyond his life expectancy, was beyond the discre-
    tion of the district court.
    Martin, 
    63 F.3d at 1434
    . Accordingly, the district court correctly con-
    cluded that it could not impose a sentence that exceeded Gullett's life
    expectancy.10
    Gullett also contends that the district court was not at liberty to take
    into account good-time credits when imposing sentence. This argu-
    ment is easily disposed of. Gullett essentially asks us to interpret the
    statute in a manner that would reward the defendant who says "I'm
    going to be a trouble-maker in prison." We decline to interpret the
    statute in that manner. See Prevatte, 
    66 F.3d at 848
     (Posner, C.J., con-
    curring) (maximum good time credits should be subtracted from a
    defendant's total sentence in determining whether sentence exceeded
    the statutory limits of section 34). Accordingly, the district court
    properly considered Gullett's good-time credits when imposing sen-
    tence.
    In summary, the district court correctly applied the Sentencing
    Guidelines and did not exceed statutory limits when it sentenced Gul-
    lett to thirty-eight years' imprisonment.
    _________________________________________________________________
    10 We do not mean to imply that a sentence exceeding a defendant's life
    expectancy by a day, a week, or a month will constitute an abuse of dis-
    cretion. "What is required is the judge's reasoned choice of a sentence
    that will fulfill the purposes of section 34." Prevatte, 
    66 F.3d at 849
    (Posner, C.J., concurring).
    16
    V
    Gullett also raises one other argument that he contends should be
    resolved in his favor. He contends that the district court erred in refus-
    ing to admit evidence that the injuries suffered by the victims were
    caused by a battery explosion. We have reviewed this assignment of
    error and find it to be without merit. Accordingly, for the reasons
    stated, the judgment of the district court is affirmed.11
    AFFIRMED
    _________________________________________________________________
    11 From the factual circumstances in this case, and those in our recently
    decided opinion in United States v. Lowe, 
    65 F.3d 1137
     (4th Cir. 1995),
    in the absence of prosecution by local and state authorities, one has to
    ponder whether the felonious killing of another is a criminal offense in
    Logan County, West Virginia.
    17