United States v. Gore ( 2002 )

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
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m 01-51131
Summary Calendar
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UNITED STATES OF AMERICA,
Plaintiff-Appellee,
VERSUS
MICHAEL LEON GORE,
Defendant-Appellant.
_________________________
Appeal from the United States District Court
for the Western District of Texas
_________________________
July 10, 2002
Before JONES, SMITH, and I.
EMILIO M. GARZA, Circuit Judges. Darrian Taylor was the three-year-old son
of Sarah Dirck, who was on active military
JERRY E. SMITH, Circuit Judge: duty stationed at Fort Hood, Texas. Gore and
Dirck were engaged to be married and were
Michael Gore appeals his sentence o f life living together at the base in Fort Hood, but
imprisonment for second degree murder in vio- Gore was not Taylor’s biological father. In
lation of 18 U.S.C. § 1111 (murder on a late April 2001, Dirck left Fort Hood for mil-
government reservat ion). Finding no itary training and left Taylor in Gore’s care,
reversible error, we affirm. giving Gore a power of attorney, medical in-
surance information, access to her bank
account, and the keys to her house and car.
Ten days later, on returning to Fort Hood errors he raises on appeal, our review is only
for a one-day respite from training, Dirck for plain error, FED. R. CRIM. P. 52(b); United
noticed bruising around Taylor’s eyes and a States v. Olano, 507 U.S. 725 (1993). The
change in his mood. Gore explained that Tay- plain error test has four prongs: (1) error
lor had slipped in the shower but did not need (2) that is plain, and (3) affects substantial
hospitalization. That night, Dirck returned to rights, (4) where a failure to recognize the er-
her training site. Ten days later, Gore turned ror would “seriously affect the fairness,
himself in to police regarding the events of the integrity or public reputation of judicial
previous twenty days. proceedings.” Id. at 732 (quoting United
States v. Young, 470 U.S. 1 (1985)).
Gore admitted to disciplining Taylor with a
belt or by “popping” him in the chest. Finally, III.
Gore reprimanded Taylor for “acting up” by Gore’s primary legal contention is that the
hitting him in the chest so hard he defecated on district court failed to abide by the articulation
himself. Taylor also experienced problems requirement of 18 U.S.C. § 3553(c), obliging
breathing after this blow to the chest and was a district court to “state in open court” the rea-
unable to get up off the floor. Gore then put son for the departure from the sentencing
Taylor to bed; when he checked on him a few guideline. 18 U.S.C. § 3553(c). Although the
hours later, he was unresponsive. His eyes court failed to explain its departure in open
were open but unblinking, and he had coughed court, it later offered a written explanation
up some red mucus. Gore tried to get a following the recommendation in the PSR.
response out of Taylor but was unsuccessful.
Gore also noticed Taylor was not breathing, This court has yet to address the
but did not take him to the hospital for fear of articulation requirement of § 3553(c)(2) in the
getting himself or Dirck in trouble. Finally, plain error context.1 The text of the statute
Gore fled and twice tried to commit suicide. (“in open court”) leaves no doubt that
although it did issue written reasons, the
Gore pleaded guilty of second-degree mur- district court committed error that is plain by
der and was informed that the maximum failing orally to explain the reasons for
penalty was life in prison. He waived his right departure. Whether this error affected Gore’s
to appeal with the exception of an upward substantial rights is a harder question, one we
departure from the guideline range. The pre- ultimately resolve against him.
sentence report (“PSR”) mentioned the
possibility of an upward departure for extreme We draw support for this conclusion from
conduct. The district court did depart upward, four sources. First, our own jurisprudence re-
imposing a life sentence (a seven-level upward garding a cousin of § 3553(c)(2)’s articulation
departure from the guideline range). requirement suggests there is no plain error in
Gore’s case. Section 3553(c)’s articulation re-
II. quirement also applies to a district court’s de-
Ordinarily, our review of a sentence is for cision whether to impose a consecutive or con-
abuse of discretion, Koon v. United States,
518 U.S. 81, 100 (1996), but because Gore
did not object in the district court to any of the 1
Section 3553(c)(2) applies the articulation
requirement to departures from the guidelines.
2
current sentence. See, e.g., United States v. the plain error standard. Id.
Londono, 285 F.3d 348, 356 (5th Cir. 2002).
We repeatedly have held that the failure to Finally, Gore cannot show plain error be-
articulate the reasoning behind this decision in cause the ultimate goal of § 3553 is to permit
open court is not plain error.2 By extension, effective appellate review of sentencing.4 The
the failure to follow § 3553(c) in justifying a First Circuit has explicitly relied on a district
departure does not ipso facto equal plain error. court’s reference to a PSR as an indicator of
sufficient specificity to allow appellate review.
United States v. Cruz, 981 F.2d 613, 617-18
Second, the Ninth Circuit, in dictum, has (1st Cir. 1992). Here, the actions of the
explained that there is no plain error where a district court are such that we can effectively
district court fails to articulate, in open court, review the basis of the decision to depart.
the reasons for departure. In United States v.
Vences, 169 F.3d 611, 613 (9th Cir. 1999), the These authorities teach that the key aim of
district court made no effort to explain the de- the articulation requirement is satisfied if an
parture in open court but did engage counsel appeals court can review the reason for the de-
in a colloquy that implicitly indicated the parture. Gore, accordingly, cannot show plain
court’s reasoning. The court of appeals error, because the written statement of reasons
concluded that a remand to comply with the points to the PSR, which in turn directs our
technical dictates of § 3553 would be a “mean- attention to a U.S.S.G. § 5K2.8 departure
ingless formality.” Id. Although there was no based on the extreme cruelty of Gore’s acts.
such colloquy in Gore’s case, the written This reference is sufficient to allow meaningful
statement of reasons would render remand a appellate review.
meaningless formality.
IV.
Third, the Eighth Circuit has decided that a Gore challenges his sentence as an
district court’s adoption of the PSR is unreasonable departure from the guideline
sufficient to avoid plain error where that court maximum. Citing his youth (twenty when the
has failed to follow the “open court” provision crime was committed), Gore notes that the life
of § 3553.3 If the defendant does not object sentence more than doubles (assuming normal
and there is evidence to sustain the en-
hancement, the error is not reversible under
4
See, e.g., United States v. DeMartino, 112
F.3d 75, 81 (2d Cir. 1997) (emphasizing the need
2 for an explanation of the departure sufficient to
United States v. Gonzalez, 250 F.3d 923, 931
(5th Cir. 2001); United States v. Izaguirre-Loso- permit “meaningful appellate review”); United
ya, 219 F.3d 437, 441-42 (5th Cir. 2000), cert. States v. Loy, 191 F.3d 360, 371 (3d Cir. 1999)
denied, 531 U.S. 1097 (2001). (stating that the reasons must be such that
“appellate review does not ‘flounder in the zone of
3
United States v. Evans, 272 F.3d 1069, 1089 speculation’”) (quoting United States v. Edgin, 92
(8th Cir. 2001), cert. denied, 122 S. Ct. 1638 F.3d 1044, 1049 (10th Cir. 1997)); United States
(2002), and cert. denied, ___ S. Ct. ___, 2002 v. Slater, 971 F.2d 626, 633 (10th Cir. 1992)
U.S. LEXIS 3503 (May 13, 2002), and cert. de- (same); United States v. McClellan, 164 F.3d 308,
nied, ___ S. Ct. ___ , 2002 U.S. LEXIS 3737 310 (6th Cir. 1999) (explaining that reasoning
(May 20, 2002). must “permit an informed appellate review”).
3
life expectancy) the maximum guideline fired the fatal shots. Recognizing that the
sentence he was eligible for without sentence was “tough,” we declined to find
departure.5 Our review of the reasonableness plain error where the district court based the
of a sentence departure must take account of departure on the brutality of the act. Id.
the “amount and extent of the departure in at 134.6
light of the grounds for departing.” Williams
v. United States, 503 U.S. 193, 203 (1992). The coroner’s report detailed a recurring
This reasonableness review must be filtered and brutal form of abuse that ultimately result-
through two important precedents of this ed in Taylor’s death. The district court
circuit. plausibly could conclude from this information
that this second-degree homicide was
First, we ordinarily do not require a district especially heinous and cruel when compared to
court to explain the amount, but only the fact, other second-degree murders. We find no
of the departure. United States v. Huddleston, plain error.
929 F.2d 1030 (5th Cir. 1991). Second, we
must pay due respect to a trial court’s greater V.
intimacy with the case. Because our Gore contends that the district court im-
familiarity is limited by having contact only permissibly double-counted conduct in
with the documents, we are “reluctant to tread calculating the initial guideline range and the
with too heavy a step upon the district court’s upward departure. Without citation to
discretion.” United States v. Lara, 975 F.2d authority, Gore notes that the PSR alluded to
1120, 1126 (5th Cir. 1992). conduct that was also counted toward the
initial guideline range in recommending an
The mere multiplication of Gore’s sentence upward departure. Nevertheless, the court
does not suggest any error in the departure. referenced only that part of the PSR that
United States v. Roberson, 872 F.2d 597, 606 recommended departure based on the extreme
n.7 (5th Cir. 1989) (approving a multiple of nature of the conduct. This was not plain
3.5 and noting multiples of 4, 5, and 3); Lara, error.
975 F.2d at 1126 (upholding a multiple of 7).
Nor does the justification offered by the
district court fail to support the reasonableness
of the departure under plain error review.
In United States v. Singleton, 49 F.3d 129
(5th Cir. 1995) (opinion on petition for rehear-
ing), we upheld a departure premised on the 6
Singleton involved a departure more severe
cruelty and brutality of a carjacking resulting
than in this caseSSto life from a guideline range of
in murder where the defendant may not have 108-120 months. Id. at 131. See also United
States v. Loud Hawk, 245 F.3d 667 (8th Cir. 2001)
(ten-level upward departure based on extreme con-
5
The maximum Gore was eligible for under the duct in connection with second-degree murder);
guidelines was 210 months. Using a life United States v. Roston, 168 F.3d 377 (9th Cir.
expectancy of 70, he is now facing a sentence of 1999) (seven-level departure for extreme conduct
nearly 600 months. in connection with second-degree murder).
4
VI. calculate the new sentence.7 Gore’s argument
Gore challenges the method used to boils down to a challenge to the propriety of
allowing the relatives of the vic-
timSSTaylorSSto testify at the sentencing
hearing. Gore relies on 18 U.S.C. § 3553(b),
which reads, in relevant part,
The court shall impose a sentence of the
kind, and within the range, referred to in
subsection (a)(4) unless the court finds
that there exists an aggravating or
mitigating circumstance of a kind, or to
a degree, not adequately taken into
consideration by the Sentencing
Commission in formulating the
guidelines that should result in a
sentence different from that described.
In determining whether a circumstance
was adequately taken into consideration,
the court shall consider only the
sentencing guidelines, policy statements,
and official commentary of the
Sentencing Commission.
18 U.S.C. § 3553(b). Gore reads this passage
to bar consideration of factors not included in
the Guidelines Manual. By extension, Gore
argues that the victim testimony used at his
sentencing hearing contravenes this statutory
command.
7
Our decisions in United States v. Lambert,
984 F.2d 658 (5th Cir. 1993) (en banc), and
United States v. Ashburn, 38 F.3d 803 (5th Cir.
1994) (en banc), do not suggest reversal. These
cases dealt only with the proper method of
upwardly departing on the criminal history axis,
not the offense level axis of the guideline table. Al-
though we express no opinion on this matter, we
note that our cases on upward departure on this
axis do not involve the more detailed methodology
of the criminal history cases. See, e.g., Singleton;
United States v. Hawkins, 87 F.3d 722 (5th Cir.
1996).
5
Gore is wrong. The purpose of the above-
quoted passage is to allow a district court to
consider those factors the Sentencing
Commission could not include in its generic
punishment scheme precisely because that
scheme is intended to be generic. This passage
specifically allows the sentencing court to
consider factors that, by their very nature, are
not reducible to the generalities with which the
bulk of the guidelines manual concerns itself.
See United States Sentencing Commission,
Guidelines Manual, § 5K2.0 (Nov. 2000).
Gore’s specific argument also lacks merit.
The type of testimony heard at his sentencing
hearing is explicitly authorized by the rules of
criminal procedure. FED. R. CRIM. P.32-
(c)(3)(E), (f)(1)(B). There was no error, let
alone plain error, in the decision to allow
victim testimony.
VII.
Gore challenges his sentence on the ground
that the upward departure implies that the plea
to second-degree murder did not adequately
reflect the severity of the act and should not
have been approved. Gore’s argument is be-
lied by the statutory maximum for second-
degree murder. 18 U.S.C. § 1111(b). If a life
sentence for a conviction for second-degree
murder implied the plea should not be
approved, the statutory maximum would be
meaningless. The existing maximum reflects a
legislative judgment that some second-degree
murders warrant life imprisonment.
AFFIRMED.
6