United States v. Somner ( 1997 )

UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
NO. 96-20989
Summary Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee
VERSUS
RICHARD E. SOMNER
Defendant-Appellant
Appeal from the United States District Court
for the Southern District of Texas
October 28, 1997
Before JOLLY, BENAVIDES and PARKER, Circuit Judges.
PER CURIAM:
I.
In the Fall of 1991, Appellant Somner seduced his minor
neighbor (“Jane Doe”), and by June, 1992, began having sexual
intercourse with her. She was only thirteen (13) years old.
Somner got her pregnant, and on August 8, 1992, when it appeared
that the police were closing in, Somner convinced her to leave the
state with him.1 They left together in Somner’s vehicle early on
the morning of August 9, 1992, and traveled to Oklahoma City. From
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The police were alerted to the fact that Somner might be molesting
Jane Doe via a tip from Somner’s ex-wife, Becky, who found several love
letters written to Somner by Jane Doe.
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there they drifted to Wisconsin, Oregon, Washington, Ohio, Georgia,
Tennessee, Florida, Texas, and finally Arizona. During that time
Jane Doe gave birth to two children fathered by Somner. After they
moved to Kingman, Arizona, in April, 1995, Jane Doe noticed Somner
hugging, kissing and fondling two young girls (10 and 12 years of
age), who lived next door. Shortly thereafter, Somner was
apprehended in December 14, 1995, after over three years in hiding,
thanks to an FBI trace of a phone call made to Becky Somner’s home.
II.
On June 3, 1996, Somner plead guilty on a two-count
information charging him with, Count One, interstate transportation
of a minor with the intent that the minor engage in illegal sexual
activities with the defendant, in violation of 18 U.S.C. § 2423(a),
and, Count Two, travel in interstate commerce with the intent that
he engage in illegal sexual contact with a minor, in violation of
18 U.S.C. § 2423(b). The district court sentenced Somner to the
statutory maximum of 120 months and three (3) years supervised
release. Somner was also convicted in Texas state court on seven
counts arising out of his conduct with Jane Doe in Texas.
The district court calculated Somner’s base level under the
Sentencing Guidelines as sixteen (16). The district court then
added the following enhancements:
1) Four (4) levels under U.S.S.G § 2G1.2(b)(1)(“coercion
enhancement”), which allows a four (4) level increase “[i]f the
offense involved the use of physical force, or coercion by threat
or drugs or in any manner ...;”
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2) Two (2) levels under U.S.S.G. § 2G1.2(b)(3)(“age
enhancement”), which allows a two (2) level increase if the victim
is a minor “at least twelve years of age but under the age of
sixteen ...;”
3) Two (2) levels under U.S.S.G. § 3A1.1(b)(“vulnerable victim
enhancement”), which allows a two (2) level increase “[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 ...” The district court was clear that this
increase was made for reasons other than Jane Doe’s age, thereby
avoiding any double-enhancement under U.S.S.G. §§ 2G1.2(b)(3) and
3A1.1(b). In particular, the evidence indicated that Jane Doe had
experienced some family problems, which Somner siezed upon as an
opportunity to become her confidant, later convincing her that she
had been molested by her father. Jane Doe’s natural response was
to see Somner as her protector. All of this made her unusually
vulnerable to Somner’s sexual opportunism. In other words, Somner
saw a weakness in Jane Doe’s relationship with her parents, which
made her more vulnerable than others her age, and he exploited it;
4) Two (2) levels under U.S.S.G. § 3C1.1 (“obstruction
enhancement”), which allows a two (2) level increase “[i]f the
defendant willfully obstructed or impeded, or attempted to obstruct
or impede, the administration of justice during the investigation,
prosecution, or sentencing of the instant offense ...;”
5) Two (2) levels under U.S.S.G. § 3C1.2, which allows a two (2)
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level increase “[i]f the defendant recklessly created a substantial
risk of death or serious bodily injury to another person in the
course of fleeing from a law enforcement officer ...”
The district court then subtracted three (3) levels under U.S.S.G.
§ 3E1.1, because Somner had accepted responsibility for his actions
and fully allocuted to all the facts surrounding the three-year
abduction.
Therefore, Somner’s point total stood at twenty-five (25),
which equates to a sentencing range from 84 to 105 months. 9 U.S.C.
§ 5A (Table). However, the district court granted the government’s
motion for an upward departure, and added two (2) levels, which
increased the range from 100 to 125 months, and the district court
imposed a sentence of 120 months.
In calculating Somner’s criminal history point total, the
district court aggregated Somner’s seven (7) Texas state
convictions but refused to combine them with the federal
conviction. The result of the district court’s refusal to combine
the Texas and federal convictions was the addition of three (3)
points to Somner’s criminal history total under U.S.S.G. §
4A1.1(a), which allows a three (3) point increase for each prior
sentence of imprisonment exceeding one year and one month, plus
another three (3) points under U.S.S.G. § 4A1.1(f) for crimes of
violence. See U.S. v. Kirk, 111 F.3d 390, 393-96 (5th Cir.
1997)(discussing whether certain Texas sex-offenses are crimes of
violence under the guidelines).
On this appeal, Somner challenges the district court’s
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application of: the coercion enhancement under U.S.S.G. §
2G1.2(b)(1); the vulnerable victim enhancement under U.S.S.G. §
3A1.1(b); and, the obstruction of justice enhancement under
U.S.S.G. § 3C1.1 (Numbers 1, 3 and 4, above). Somner also
challenges the upward departure and the district court’s
calculation of his criminal history point total.
III.
Before we reach the merits of Somner’s appeal, there is the
matter of the “appeal waiver” contained in Somner’s plea agreement.
The waiver contains the following language:
The defendant is aware that Title 18, U.S.C. § 3742
affords a defendant the right to appeal the sentence
imposed. Understanding that, the defendant agrees to
voluntarily waive the right to appeal ... the sentence or
the manner in which it was determined ... However, the
defendant may appeal a sentence: ... (b) that includes an
upward departure from the Sentencing Guidelines, which
upward departure had not been requested by the United
States Attorneys Office or (c) that includes or is based
on a material and unlawful misapplication of the
Sentencing Guidelines by the Court.
Somner did knowingly and voluntarily sign the plea agreement to the
extent that is possible. See U.S. v. Melancon, 972 F.2d 566, 571
(5th Cir. 1992)(Parker, District Judge, concurring
specially)(expressing reservations about whether a presentence
waiver can knowingly and voluntarily waive the right to appeal the
sentence). Therefore, the appeal waiver is binding. U.S. v. Price,
95 F.3d 364, 369 (5th Cir. 1996), citing U.S. v. Melancon, 972 F.2d
566 (5th Cir. 1992).
The waiver effectively bars Somner’s challenge to the district
court’s upward departure, because the departure was requested by
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the government. Since exception (b) in the waiver allows appeals
of upward departures not requested by the government, the negative
implication is that upward departures which are requested by the
government are still subject to the waiver. However, the scope of
exception (c) to the appeal waiver is so broad that a significant
question exists whether the other issues raised by this appeal have
actually been foreclosed.
The waiver must be construed against the government.2 U.S. v.
Rosa, 1997 WL 469962 (2nd Cir. (N.Y.)), citing U.S. v. Ready, 82
F.3d 551, 556 (2d Cir. 1996); U.S. v. Tayman, 885 F. Supp.832, 835
(E.D. Va. 1995), citing U.S. v. Harvey, 791 F.2d 294, 300 (4th
Cir.1986). Consequently, there is no basis for a restrictive
reading of the waiver, and therefore, exception (c) has largely
swallowed the waiver. Read literally, the waiver would not
foreclose review of the issues of enhancement or criminal history
calculation under the guidelines, since those errors involve a
possibly “material and unlawful misapplication of the Sentencing
Guidelines”. There can be little doubt that those errors pertain
to the application of the Sentencing Guidelines by the district
court to the peculiar facts of this case. It may be argued that
the misapplications of the Sentencing Guidelines in this case are
not material, because the district court intended to depart from
the guidelines and impose the maximum sentence, regardless of how
the math came out. However, if the guidelines had been applied as
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Interestingly enough, the government agrees that, with the exception
of the departure issue, the sentencing issues encompass claims of unlawful
misapplication of the guidelines and are appealable.
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Somner insists, then the district court might not have been able to
justify the even greater departure necessary to reach the maximum.
Therefore, we conclude that the appeal waiver forecloses review of
the upward departure issue only.
IV.
The district court’s enhancements under U.S.S.G. §§
2G1.2(b)(1)(“coercion”), 3A1.1(b)(“vulnerable victim”) and 3C1.1
(“obstruction”) are reviewed for clear error. U.S. v. Campbell, 49
F.3d 1079, 1085 (5th Cir. 1995), cert. denied, ___ U.S. ___, 116 S.
Ct. 201, 133 L. Ed. 2d 135 (1995)(district court factual finding
that offense was committed by use of coercion is reviewed for clear
error); U.S. v. Robinson, 119 F.3d 1205, 1218 (5th Cir.
1997)(district court finding of unusual vulnerability reviewed for
clear error)(citing cases); U.S. v. Rickett, 89 F.3d 224, 226 (5th
Cir. 1996), cert denied, ___ U.S. ___, 117 S. Ct. 499, 136 L. Ed.
2d 391 (1996)(district court finding that defendant obstructed
justice reviewed for clear error). The district court’s
determination that Somner’s Texas and federal convictions did not
arise out of a common scheme or plan, such that they should
combined for calculation of Somner’s criminal history total, is
reviewed for clear error. U.S. v. Vital, 68 F.3d 114, 118 (5th Cir.
1995). The district court’s determination that the Texas and
federal cases were not related within the meaning of U.S.S.G. §
4A1.2(a)(2) is viewed as an application of the guidelines subject
to de novo review. U.S. v. Garcia, 962 F.2d 479, 481 (5th Cir.
1992), cert denied, 506 U.S. 902, 113 S. Ct. 293, 121 L. Ed. 2d 217
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(1992).
Our review of the record reveals no clear error by the
district court in its application of U.S.S.G. §§ 2G1.2(b)(1),
3A1.1(b) and 3C1.1. Likewise, the record reveals no error by the
district court in its determination that the Texas and federal
offenses were not committed as part of a common scheme or plan or
otherwise related within the meaning of U.S.S.G. § 4A1.2(a)(2),
such that they should be considered a single offense. Therefore,
we affirm.
AFFIRM.
ENDRECORD
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JOLLY, Circuit Judge, concurring specially:
I write separately only to emphasize that the government
conceded that all but one of the issues raised in this appeal fell
within an express exception to the waiver provision in Somner’s
plea agreement. It is not clear what the government hoped to
accomplish with this somewhat ambiguous waiver. When considered as
a whole, the waiver is capable of more than one interpretation. It
would be a mistake, however, to read the court’s opinion to suggest
that a defendant may not expressly waive his right to appeal any
and all issues. The established law of this circuit provides that
a defendant may, by knowingly and voluntarily entering into a valid
plea agreement, waive the statutory right to appeal his sentence--
period. See United States v. Melancon, 972 F.2d 566, 568 (5th Cir.
1992).
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