United States v. Fosher ( 1997 )

UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT
No. 96-1473
UNITED STATES,
Appellee,
v.
MICHAEL P. FOSHER,
Defendant - Appellant.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS
[Hon. Nathaniel M. Gorton, U.S. District Judge]
Before
Torruella, Chief Judge,
Cyr, Senior Circuit Judge,
and Stahl, Circuit Judge.
George F. Gormley, by appointment of the court, with whom
John D. Colucci and Gormley & Colucci, P.C. were on brief for
appellant.
Alexandra Leake, Assistant United States Attorney, with whom
Donald K. Stern, United States Attorney, was on brief for
appellee.
August 27, 1997
TORRUELLA, Chief Judge. On July 6, 1995, Defendant-
TORRUELLA, Chief Judge.
Appellant Michael P. Fosher ("Fosher") pled guilty to four counts
of an indictment, which charged him with racketeering conspiracy,
in violation of 18 U.S.C. 1962(d), racketeering, in violation
of 18 U.S.C. 1962(c), interstate transportation of stolen
property, in violation of 18 U.S.C. 2314, and conspiracy, in
violation of 18 U.S.C. 371. On March 5, 1996, the sentencing
court imposed upward adjustments for an unusually vulnerable
victim and for Fosher's role in the offense. The court further
determined that Fosher's armed bank robbery conviction under the
Federal Youth Corrections Act, 18 U.S.C. 5005 et seq. ("FYCA"),
previously set aside pursuant to that Act, was properly included
in the Criminal History Category calculation. The district court
calculated Fosher's Total Offense Level at 33 and his Criminal
History Category at III, resulting in a guideline sentencing
range of 168 to 210 months. The government requested that, in
light of Fosher's substantial assistance, the court grant a
downward departure under 5K1.1 and impose a 60 month sentence.
The court granted the government's downward departure motion, and
sentenced Fosher to 78 months' imprisonment. Fosher appeals his
sentence, arguing that the district court erred in its rulings
regarding the unusually vulnerable victim and the role in the
offense adjustments, as well as its inclusion in Fosher's
Criminal History Category of his set-aside conviction under the
FYCA. For the reasons set forth herein, we reverse and remand in
part and affirm in part.
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BACKGROUND
BACKGROUND
In presenting the facts, we consult the uncontested
portions of the Presentence Report ("PSR"), as well as the
sentencing hearing transcript. United States v. Lagasse, 87 F.3d
18, 20 (1st Cir. 1996).
In December 1991, Fosher called Michael Chinn ("Chinn")
from Florida and told Chinn that he would pay Chinn's airfare to
Florida so that they could do "something big." Chinn flew to
Fort Lauderdale with Anthony Corso ("Corso"). The airline
tickets for both were purchased by Fosher. Chinn stayed with
Fosher, while Corso stayed with his father, Philip Corso. Upon
arrival in Fort Lauderdale, Chinn and Corso were taken by a
friend of Philip Corso to a restaurant to meet Fosher and Joe
Bomengo ("Bomengo"). During lunch, Fosher told them about a
house he had targeted for a home invasion. Donald Marks Schoff
("Schoff") had told Fosher that the house contained $500,000 in
gold coins and a five carat diamond ring and was occupied by a 62
year old woman, her daughter and granddaughter. Fosher stated
that he wanted Chinn and Corso to enter the house, while he
waited outside in a van and Schoff waited at the end of the
street listening to a police scanner. They also discussed using
weapons and Fosher unsuccessfully sought weapons from an
acquaintance he ran into in the restaurant.
Thereafter, Fosher, Chinn, Corso, Bomengo, and Schoff
met Philip Corso at Corso's house. Schoff described where the
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money was kept. The participants looked at some guns at Philip
Corso's house and wanted to borrow the guns. Philip Corso
declined to let the group use the guns because the guns "were
hardly needed since the victim was an older woman." At the
meeting, Bomengo suggested that the participants pose as florist
delivery men. Fosher determined that he would rent a white
minivan to resemble a florist delivery truck. During the
discussion, Fosher made decisions and assigned roles to the
participants.
On the morning of January 8, 1992, Fosher, Chinn,
Corso, and Schoff executed the home invasion. Fosher, Chinn, and
Corso drove to the victim's house in the van, while Schoff
followed in a second car. On the way to the victim's house, they
purchased a floral arrangement and gloves and "ties" to bind the
victims. Corso and Chinn went to the front door with the
flowers. When the victim came to the door, they entered. Corso
asked her for the keys to the floor safe in the garage and
attempted to open it. Fosher and Schoff entered the garage to
help him. Upon opening the safe, they discovered only $500,000
worth of gold coins. They approached the victim and asked her
where the other safe and the five carat diamond ring were. The
men took the victim to her jewelry lockbox and took jewelry
valued at $23,000. When they were unable to find a five carat
diamond, Fosher told Chinn, within the hearing of the victim, "if
she doesn't tell you where the other safe is, shoot her." Chinn
told the victim that he would not let them hurt her.
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When they left the victim's house, the four went to
Fosher's condominium, where they divided the coins. Fosher made
Corso throw away the jewelry for fear that it might allow someone
to identify them. Corso left Florida soon thereafter, taking
$80,000 in coins with him to Massachusetts. Chinn also returned
to Massachusetts, carrying cash received from Fosher after the
coins had been melted down.
On May 11, 1995, a federal grand jury returned a five
count indictment against Fosher and Corso. On June 27, 1995,
Fosher executed a plea and cooperation agreement with the United
States Attorney's Office, agreeing to plead guilty to four counts
of the indictment.1 The agreement provided that, at sentencing,
the government would take the position under the United States
Sentencing Guidelines ("U.S.S.G.") that Fosher's offense level
was 33, for which the guideline sentencing range was 135 to 168
months. The agreement noted that Fosher objected to this
calculation and reserved the right to argue for a lower offense
level. Fosher agreed to cooperate with the government and,
assuming he provided substantial assistance, the U.S. Attorney
agreed to file a motion for a two level downward adjustment under
U.S.S.G. 5K1.1.
On July 6, 1995, Fosher pled guilty to Counts One
through Four. At his March 5, 1996, sentencing hearing, the
probation department presented its PSR, in which the department
1 The United States Attorney's Office agreed to dismissed the
fifth count.
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concluded that the four counts constituted seven groups of
offenses. The probation department calculated the Adjusted
Offense Level for each group and determined that the group
relating to an invasion and robbery, executed by Fosher and
others, of the home of a 62 year old Fort Lauderdale woman had
the highest Adjusted Offense Level at 33. This included a two-
level upward adjustment for an unusually vulnerable victim under
U.S.S.G. 3A1.12 and a four-level upward adjustment for being a
leader or organizer of five or more participants under U.S.S.G.
3B1.1.3 After applying the grouping rules under U.S.S.G. 3D1.4
and providing for a downward adjustment for acceptance of
responsibility, the probation department concluded that Fosher's
Total Offense Level was 33.
The probation department concluded that Fosher's
Criminal History Category was III, including in the calculation a
conviction for armed bank robbery under the FYCA.
2 Section 3A1.1(b) provides in relevant part:
If the defendant knew or should have known
that a victim of the offense was unusually
vulnerable due to age, physical or mental
condition, . . . increase by 2 levels.
3 Section 3B1.1(a) provides in relevant part:
Based on the defendant's role in the offense,
increase the offense level as follows:
(a) If the defendant was an organizer
or leader of a criminal activity
that involved five or more
participants or was otherwise
extensive, increase by 4 levels.
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On February 26, 1996, Fosher filed objections to the
upward adjustments in calculation of the offense level for the
Fort Lauderdale home invasion and to the inclusion of his FYCA
conviction in the Criminal History Category calculation. He
argued that the FYCA conviction should not be considered because
it had been "set aside" pursuant to the FYCA on September 24,
1982.
At the sentencing hearing, the district court agreed
with the findings in the PSR and imposed upward adjustments for
an unusually vulnerable victim and for Fosher's role in the
offense. The court further determined that Fosher's FYCA
conviction was properly included in the Criminal History Category
calculation. The district court, therefore, set Fosher's Total
Offense Level at 33 and his Criminal History Category at III,
resulting in a guideline sentencing range of 168 to 210 months.
The government submitted a motion requesting that, in light of
Fosher's substantial assistance, the court grant a downward
departure and impose a 60-month sentence. The court allowed the
government's 5K1.1 downward departure motion, but sentenced
Fosher to 78 months' imprisonment.
DISCUSSION
DISCUSSION
I. Unusually vulnerable victim
I. Unusually vulnerable victim
The government insists that the issue of whether the
victim of the Fort Lauderdale home invasion was "unusually
vulnerable" is a factual issue and therefore that the clear error
standard applies. Fosher argues vigorously that the facts being
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undisputed, the only question presented is a legal one of the
sentencing court's application of the guidelines to the facts,
requiring de novo review. "[Q]uestions . . . of the proper
application of a legal standard to undisputed facts . . . are
usually called 'mixed questions' of fact and law." United States
v. Wright, 973 F.2d 437, 442 (1st Cir. 1989). As our cases in
this context amply demonstrate, such issues of sentencing
application are often difficult to pigeonhole as either
predominantly factual or legal. See, e.g., United States v.
Newman, 982 F.2d 665, 671 (1st Cir. 1992); United States v.
Pilgrim Market Corp., 944 F.2d 14, 16 (1st Cir. 1991); United
States v. Cousens, 942 F.2d 800, 805-07 (1st Cir. 1991); United
States v. Rule Indus., 878 F.2d 535, 542 n.7 (1st Cir. 1989).
Because we remand the unusually vulnerable victim issue to the
district court we need not decide the difficult standard of
review question.
Section 3A1.1(b) of the Sentencing Guidelines calls for
a two level upward enhancement
[i]f the defendant knew or should have known
that a victim of the offense was unusually
vulnerable due to age, physical or mental
condition, or that a victim was otherwise
particularly susceptible to the criminal
conduct.
We have recognized that this guideline "is primarily concerned
with the impaired capacity of the victim to detect or prevent the
crime, rather than the quantity of harm suffered by the victim."
United States v. Gill, 99 F.3d 484, 486 (1st Cir. 1996). The
question is whether "'a particular victim was less likely to
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thwart the crime, rather than more likely to suffer harm if the
crime is successful.'" Id. (quoting United States v. Kaye, 23
F.3d 50, 54 (2d Cir. 1994)).
We have discouraged sentencing courts from making an
"unusually vulnerable victim" finding based solely on the
victim's membership in a particular class. Id. at 487; United
States v. Feldman, 83 F.3d 9, 15 (1st Cir. 1996) ("[I]n order to
warrant a finding of unusual vulnerability, there must be some
evidence, above and beyond mere membership in a large class, that
the victim possessed a special weakness that the defendant
exploited."). At the same time, we have recognized that in some
cases inferences to be drawn regarding particular class
characteristics may be so strong that "there can be little doubt
about unusual vulnerability of class members within the meaning
of section 3A1.1." Gill, 99 F.3d at 487. The Sentencing
Commission recognized this when it used as an example under this
section the robbery of someone confined to a wheelchair. See
U.S.S.G. 3A1.1 comment. n.2; see also Gill, 99 F.3d at 487.
We are concerned with the application of section 3A1.1
in the context of this case. The PSR revealed that Fosher
surveyed the victim's home and determined that it was occupied by
an elderly woman, her daughter, and her daughter's infant.
Following this surveillance, the perpetrators declined the use of
weapons to commit the robbery. Based on the victim's age and the
perpetrators' decision that the use of weapons would not be
necessary, the district court concluded that Fosher knew or
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should have known that the victim in this case would have
"impaired capacity" to prevent the entry into and robbery of her
home. From our review of the record, it appears the district
court failed to address the "individual characteristics" required
to support a finding that a particular victim was unusually
vulnerable. Because of this conclusion, we must remand this
issue to the district court for its consideration.
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II. Role in the offense
II. Role in the offense
We review a district court's role in the offense
determinations for clear error. See United States v. D'Andrea,
107 F.3d 949, 956 (1st Cir. 1997). A court making a four-level
role-in-the-offense adjustment under U.S.S.G. section 3B1.1(a)
must first determine "whether the defendant acted as an
organizer/leader of a specific criminal activity. If so, the
court asks the separate question of whether that criminal
activity involved five or more participants, defined in the
Commentary as persons who are 'criminally responsible for the
commission of the offense . . . .'" United States v. Preakos,
907 F.2d 7, 10 (1st Cir. 1990) (quoting U.S.S.G. 3B1.1,
Commentary). In determining a defendant's role in the offense,
the sentencing court need not look only to the elements
underlying the conviction, but may consider "the whole of the
defendant's relevant conduct." United States v. Savoie, 985 F.2d
612, 615 (1st Cir. 1993); see also U.S.S.G. Ch. 3, Pt. B, intro.
comment. Fosher does not challenge the sentencing court's status
determination. His argument focuses on whether the district
court properly found five participants in the home invasion and
robbery.
The commentary defines a "participant" as "a person who
is criminally responsible for the commission of the offense, but
need not have been convicted." U.S.S.G. 3B1.1 comment. app.
n.1. Fosher concedes that there were four criminally responsible
participants: him, Chinn, Corso, and Schoff. At the sentencing
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hearing, the government argued that both Philip Corso and Bomengo
were criminally responsible participants even though they did not
actually participate in the robbery. We need only confirm that
one of them was a criminally responsible participant to affirm
the district court's upward adjustment. Philip Corso's
assistance in devising the perpetrator's scheme is sufficient to
find that he is a participant within the meaning of the
guidelines. Philip Corso assisted Schoff in targeting the
victim's home for the commission of this robbery, he provided the
home in which the planning meeting took place, he participated in
the planning meeting with the four robbery perpetrators, and, in
response to the perpetrators' discussion regarding the use of
weapons, he advised against the necessity of weapons to gain
entry into the victim's home. Such acts were sufficient to find
Philip Corso to be a participant in the commission of this
robbery. We therefore find no error in the district court's role
in the offense determination.
III. Criminal History Category
III. Criminal History Category
In 1977, Fosher was convicted of armed bank robbery
under the Federal Youth Corrections Act, 18 U.S.C. 5005 et seq.
(repealed 1984). In 1982, pursuant to the Act's set-aside
provisions, see 18 U.S.C. 5021, Fosher was unconditionally
discharged and his conviction was set aside. Fosher challenges
the sentencing court's inclusion of his FYCA set-aside conviction
in the calculation of his Criminal History Category. He claims
that his set-aside conviction is to be treated as an "expunged"
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conviction under U.S.S.G. 4A1.2. We have yet to address the
issue of whether a conviction set aside under the FYCA should be
counted under the Sentencing Guidelines.4 When faced with this
issue, a majority of our sister circuits have ruled that an FYCA
conviction may properly be included in calculating a defendant's
criminal history, see United States v. Moreno, 94 F.3d 1453 (10th
Cir. 1996); United States v. Nicolace, 90 F.3d 255 (8th Cir.
1996); United States v. Wacker, 72 F.3d 1453 (10th Cir. 1996);
United States v. Levi, 45 F.3d 453 (D.C. Cir. 1995); United
States v. Ashburn, 20 F.3d 1336 (5th Cir. 1994); United States v.
Gardner, 860 F.2d 1391 (7th Cir. 1988), while only one has
determined that FYCA convictions are similar to expunged
convictions and should not be considered under the guidelines,
see United States v. Kammerdiener, 945 F.2d 300 (9th Cir. 1991).5
4 Fosher claims that two opinions of this circuit relating to
the FYCA support his contention that his set-aside convictions
may not be included in calculating his criminal history. Both
opinions are inapposite, as neither was decided under the
Sentencing Guidelines. See United States v. Doe, 732 F.2d 229,
232 (1st Cir. 1984) (ruling that FYCA does not allow record of
conviction to be destroyed and noting that the FYCA set aside
provision "prevents the fact of conviction from being used to the
youth offender's legal detriment"); Mestre Morera v. INS, 462
F.2d 1030, 1032 (1st Cir. 1972) (in ruling that FYCA conviction
may not be used to deport petitioner, finding that purpose of
FYCA is to give an offender "a second chance, free of all taint
of a conviction").
5 Fosher also cites opinions from two other circuits for
support, but none of those opinions ruled that FYCA set-aside
convictions are not to be counted under the guidelines criminal
history provisions. See United States v. Corrado, 53 F.3d 620,
621 n.1 (3d Cir. 1995) (noting that government conceded that FYCA
conviction should not be counted); United States v. Doe, 980 F.2d
876 (3d Cir. 1992) (ruling that FYCA's set aside provisions
called for the actual removal of any records related to
conviction); United States v. Beaulieau, 959 F.2d 375, 380-81 (2d
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Section 4A1.2(j) provides that expunged convictions are
not to be counted in determining Criminal History Category. The
Commentary provides the following:
A number of jurisdictions have various
procedures pursuant to which previous
convictions may be set aside or the defendant
may be pardoned for reasons unrelated to
innocence or errors of law, e.g., in order to
restore civil rights or to remove the stigma
associated with a criminal conviction.
Sentences resulting from such convictions are
to be counted. However, expunged convictions
are not to be counted.
U.S.S.G. 4A1.2, comment app. note 10. A set-aside under the
FYCA is made for "reasons unrelated to innocence or errors of
law" of the type that the guidelines contemplate are to be
considered in calculating Criminal History. The FYCA, section
5021, provided:
(a) Upon the unconditional discharge by the
Commission of a committed youth offender
before the expiration of the maximum sentence
imposed upon him, the conviction shall be
automatically set aside and the Commission
shall issue to the youth offender a
certificate to that effect.
(b) Where a youth offender has been placed
on probation by the court, the court may
thereafter, in its discretion,
unconditionally discharge such youth offender
from probation prior to the expiration of the
maximum period of probation theretofore fixed
by the court, which discharge shall
automatically set aside the conviction, and
the court shall issue to the youth offender a
certificate to that effect.
Cir. 1992) (holding that sealed record under Vermont juvenile
statute was improperly considered in criminal history
calculation).
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18 U.S.C. 5021 (repealed). The language of the statute does
not call for expunging a youth offender's records, but instead
mandates that the youth offender shall receive a certificate to
the effect that the conviction has been set aside. A conviction
under the FYCA is set aside not because of legal error or
innocence, but because the offender's "post-offense conduct has
persuaded the court to terminate his sentence of probation before
the assigned completion date." United States v. McDonald, 991
F.2d 866, 871 (D.C. Cir. 1993) (analyzing a set-aside conviction
under the District of Columbia's Youth Rehabilitation Act,
analogous to the FYCA). The FYCA's use of the term "set aside"
is not the same as the Guideline's treatment of "expunged"
convictions, but is more analogous to the Guideline's definition
of a "set aside" conviction, one that is to be counted in the
criminal history calculation. Moreover, had Congress intended
that all records of a youthful conviction under the FYCA be made
completely unavailable or destroyed such that they could no
longer be considered for any future purposes, Congress could have
specified the remedy of expungement rather than a certificate of
set-aside. See United States v. Doe, 732 F.2d 229, 232 (1st Cir.
1984) (in affirming district court's refusal to destroy FYCA
records, noting that ordering expungement under the statute would
require a rewriting of the statute); Ashburn, 20 F.3d at 1342(collecting cases).
In determining the import of this provision, the
Supreme Court noted in dicta that the FYCA was intended to
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address the "numerous civil and social disabilities" that
accompany a conviction, recognizing that "a conviction may result
in the loss of the rights to vote, to hold a public office, to
serve on a jury, and to practice various occupations and
professions." Tuten v. United States, 460 U.S. 660, 664 (1983).
Although the FYCA was intended to benefit a youthful offender by
providing a second chance to start life without the stigma of a
criminal conviction, id. ("Congress' purpose in adopting 5021
was to promote the rehabilitation of youth offenders by providing
a substantial incentive for positive behavior while serving a
sentence under the YCA."); Webster, 606 F.2d at 1234-35 (noting
that Congress "intended to give youthful ex-offenders a fresh
start, free from the stain of a criminal conviction, and an
opportunity to clean their slates to afford them a second chance,
in terms of both jobs and standing in the community"), it was not
meant to allow a recidivist to avoid increased penalties based on
earlier criminal convictions. See Ashburn, 20 F.3d at 1343("[T]his beneficent offer of a 'second chance' to the immature
offender should not be available as a shield for those whose
original encounter with the criminal world is used as a
springboard to a life of felonious conduct."); McDonald, 991 F.2d
at 872 ("[I]f a juvenile offender turns into a recidivist, the
case for conferring the benefit dissipates. Society's stronger
interest is in punishing appropriately an unrepentant criminal."
(citations omitted)). Thus, counting an FYCA set-aside
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conviction in calculating a defendant's criminal history is not
contrary to the purposes of the FYCA.
Fosher further argues that consideration of the FYCA
conviction violates the ex post facto clause, U.S. Const. art. I,
9, cl. 3, because the law increases the punishment for his 1977
armed robbery conviction. An ex post facto law is one "'that
changes the punishment, and inflicts a greater punishment, than
the law annexed to the crime, when committed.'" Dominique v.
Weld, 73 F.3d 1156, 1162 (1st Cir. 1996) (quoting Miller v.
Florida, 482 U.S. 423, 429 (1987)). "The concern of the ex post
facto prohibition is to assure that legislative acts 'give fair
warning of their effect and permit individuals to rely on their
meaning until explicitly changed.'" United States v. Forbes, 16
F.3d 1294, 1301 (1st Cir. 1994) (quoting Miller, 482 U.S. at 430(1987)). As the Supreme Court has recognized, a state habitual
offender statute, which increased present penalties based on
prior criminal conduct, is not an ex post facto law, because the
consideration of prior convictions imposes increased penalties to
the "latest crime, which is considered to be an aggravated
offense because a repetitive one." Gryger v. Burke, 334 U.S.
728, 732 (1948), quoted in Forbes, 16 F.3d at 1302. "Gryger thus
recognized the legislature's authority to enact an enhanced
penalty for future conduct preceded by a criminal conviction
obtained prior to enactment of the enhanced penalty provision."
Forbes, 16 F.3d at 1302. The district court's consideration of
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Fosher's FYCA conviction in determining his criminal history
category did not violate the ex post facto clause.
CONCLUSION
CONCLUSION
For the foregoing reasons, we reverse and remand in
reverse remand
part, and affirm in part.
affirm
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