179 F.3d 1091 (8th Cir. 1999), 98-3851, United States v. Sickinger

Docket Nº:98-3851
Citation:179 F.3d 1091
Opinion Judge:SACHS, District Judge.
Party Name:United States of America, Plaintiff-Appellee, v. Michael J. Sickinger, Defendant-Appellant
Attorney:Counsel who presented argument on behalf of the appellant was Karl W. Dickhaus of St. Louis, Missouri. Counsel who presented argument on behalf of the appellee was Thomas J. Meahan, Assistant United States Attorney, St. Louis, Missouri. Also appearing on the brief was Edward L. Dowd, Sr.
Judge Panel:Before McMILLIAN and MORRIS SHEPPARD ARNOLD, Circuit Judges and SACHS, [1] District Judge.
Case Date:June 14, 1999
Court:United States Courts of Appeals, Court of Appeals for the Eighth Circuit
 
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Page 1091

179 F.3d 1091 (8th Cir. 1999)

United States of America, Plaintiff-Appellee,

v.

Michael J. Sickinger, Defendant-Appellant

No. 98-3851

United States Court of Appeals, Eighth Circuit

June 14, 1999

Submitted: March 9, 1999.

Appeal from the United States District Court for the Eastern District of Missouri. 4:98-CR-78 ERW. Honorable Richard E. Webber, District Judge.

Counsel who presented argument on behalf of the appellant was Karl W. Dickhaus of St. Louis, Missouri.

Counsel who presented argument on behalf of the appellee was Thomas J. Meahan, Assistant United States Attorney, St. Louis, Missouri. Also appearing on the brief was Edward L. Dowd, Sr.

Before McMILLIAN and MORRIS SHEPPARD ARNOLD, Circuit Judges and SACHS, 1 District Judge.

OPINION

Page 1092

SACHS, District Judge.

Michael J. Sickinger was charged with and found guilty of kidnapping in violation of 18 U.S.C. § 1201(a) and of interstate domestic violence in violation of 18 U.S.C. § 2261(a). The district court 2 sentenced Sickinger to 78 months in prison on each count, to run concurrently. Sickinger appeals, claiming a violation of the Fifth Amendment double jeopardy clause and two errors in applying the United States Sentencing Guidelines (" U.S.S.G." ). We reject several of these contentions, but because we find one sentencing error we vacate the judgment and remand for resentencing.

I.

On January 24, 1998, Judith Walker, Sickinger's girlfriend at the time, and her friend, Tammy Wilson, were cleaning a business in Clayton, Missouri. Sickinger arrived at the business shortly before noon and confronted Wilson and Walker through a window at the business. Shortly thereafter Sickinger gained access to the building, seized Walker by the hair, punched her in the stomach and pushed her into a bathroom. Wilson screamed at Sickinger to stop and threatened to call 911. Sickinger turned and called out " Bitch, I'll kill you if you call 911." Sickinger then seized Wilson's hair, threw her to the ground and kicked her in the face twice, shattering bones in her eye socket and breaking her nose and sinuses.

Sickinger then started choking Walker and dragged her by the hair to his Corvette. Once in the Corvette, Sickinger hit Walker in the nose and told her to keep her head down. When she raised her head, Sickinger struck her in the face and back of her head. When she tried to get out of the car, he used his hand and the power locks to keep the door shut.

After crossing into Illinois Sickinger stopped for shopping at a convenience store and a fast food drive-through. Walker later stated that she did not attempt to run because she had nowhere to go and was afraid of being beaten by Sickinger. Sickinger warned Walker not to attempt to run. They rented a hotel room and Sickinger placed two chairs in front of the door. Sickinger did not at that time threaten or physically restrain Walker. Walker did not attempt to escape because she " lost so much blood . . . [and] I'm not going to get hit no more."

The next morning, Sickinger drove Walker to a gasoline station where she entered alone and purchased a drink and sunglasses to hide her black eyes. She made no attempt to escape or to alert authorities. That afternoon, Sickinger and Walker were stopped by an Illinois police officer and Sickinger was arrested.

II.

A. Double Jeopardy.

Sickinger argues that conviction and sentencing on both interstate domestic violence and kidnapping constitutes double jeopardy in violation of the Fifth Amendment. Sickinger failed to raise this argument in the district court and thus it has not been preserved. United States v. Santana, 150 F.3d 860, 863-64 (8th Cir. 1998); United States v. Garrett, 961 F.2d 743, 748

Page 1093

(8th Cir. 1992). We will, however, review the contention for plain error. United States v. Uder, 98 F.3d 1039, 1045 (8th Cir. 1996); United States v. Merritt, 982 F.2d 305, 306-07 (8th Cir.1992). Under the Court's plain error review we must affirm unless (1) the district court erred; (2) the error was plain under current law, i.e., clear and obvious; and (3) the error was prejudicial. United States v. Jackson, 155 F.3d 942, 947-48 (8th Cir.), cert. denied, 142 L.Ed.2d 565, 119 S.Ct. 627 (1998).

Under this standard, we cannot find that plain error has been committed by the district court. The only cases examining the contention raised by Sickinger, that interstate domestic violence is simply a more specific type of kidnapping, have rejected the argument. See United States v. Bailey, 112 F.3d 758, 766-67 (4th Cir.) cert. denied, 522 U.S. 896, 118 S.Ct. 240, 139 L.Ed.2d 170 (1997); United States v. Frank, 8 F.Supp.2d 253, 282 n. 26 (S.D.N.Y. 1998). Applying Blockburger v. United States, 284 U.S. 299, 76 L.Ed. 306, 52 S.Ct. 180 (1932), the courts in Bailey and Frank held that each statute -- kidnapping and domestic violence -- requires proof of a fact that the other statute does not require. For example, kidnapping requires proof of " holding," while the domestic violence statute does not, and the domestic violence statute requires proof of an " intimate partner," a fact not required for a kidnapping conviction. See Bailey, 112 F.3d at 766-67; Frank, 8 F.Supp.2d at 282 n, 26. In light of these cases, we cannot say that any district court error was " clear and obvious." Jackson, 155 F.3d at 947. 3 We are thus unable to conclude that the district court plainly erred and we reject Sickinger's double jeopardy challenge. 4

B. Sentencing Guidelines.

1.

Sickinger argues that the district court erred in failing to grant a one-level reduction for release within 24 hours under U.S.S.G. § 2A4.1(b)(4)(C) and the Commentary thereto. 5 Sickinger claims that Walker was constructively released prior to 24 hours because Walker was left alone at a convenience store on two occasions and...

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