257 F.3d 336 (4th Cir. 2001), 00-4269, United States v. Bowe

Docket Nº:00-4269
Citation:257 F.3d 336
Party Name:UNITED STATES OF AMERICA, Plaintiff-Appellant, v. RIDDICK LAMONT BOWE, SR., Defendant-Appellee.
Case Date:July 13, 2001
Court:United States Courts of Appeals, Court of Appeals for the Fourth Circuit
 
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257 F.3d 336 (4th Cir. 2001)

UNITED STATES OF AMERICA, Plaintiff-Appellant,

v.

RIDDICK LAMONT BOWE, SR., Defendant-Appellee.

No. 00-4269

United States Court of Appeals, Fourth Circuit

July 13, 2001

Argued: May 10, 2001

Appeal from the United States District Court for the Western District of North Carolina, at Charlotte. Graham C. Mullen, Chief District Judge.

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COUNSEL ARGUED: Kenneth Davis Bell, Assistant United States Attorney, OFFICE OF THE UNITED STATES ATTORNEY, Charlotte, North Carolina, for Appellant. Thomas S. Hicks, THOMAS S. HICKS, P.L.L.C., Wilmington, North Carolina, for Appellee. ON BRIEF: Mark T. Calloway, United States Attorney, C. Nicks Williams, Assistant United States Attorney, OFFICE OF THE UNITED STATES ATTORNEY, Charlotte, North Carolina, for Appellant.

Before NIEMEYER and GREGORY, Circuit Judges, and Arthur L. ALARCON, Senior Circuit Judge of the United States Court of Appeals for the Ninth Circuit, sitting by designation.

Vacated and remanded by published opinion. Senior Judge Alarcon wrote the opinion, in which Judge Niemeyer and Judge Gregory joined.

OPINION

ALARCON, Senior Circuit Judge:

The Government seeks reversal of the district court's sentencing decision on discrete grounds. It maintains that the district court erred in denying the Government's motion to set aside the plea agreement. The Government also contends that the district court clearly erred in finding that Riddick Lamont Bowe Sr.'s ("Bowe") conduct during the commission of the crime did not involve violence or a serious threat of violence. We vacate the sentence because we conclude that the district court clearly erred in finding that Bowe did not violate the express terms of the plea agreement. We also determine that the district court clearly erred in finding that Bowe's conduct was not violent and did not involve a serious threat of violence.

I

Bowe is a professional boxer and a former world heavyweight boxing champion. He is 6'5" tall and weighs 260 pounds. He married Judy Gordon ("Mrs. Bowe") on April 27, 1988. Bowe and his wife separated in June of 1997. After their separation, Bowe continued to reside in Fort Washington, Maryland. Mrs. Bowe and their five children moved to Cornelius, North Carolina.

Bowe unsuccessfully attempted on several occasions to effect a reconciliation. On February 24, 1998, he telephoned Mrs. Bowe at 10:30 p.m. The telephone call continued for approximately 90 minutes. Bowe tried to persuade his wife to agree to reconcile their differences and return to his home in Maryland. During this conversation, Bowe asked Mrs. Bowe what time their children left the house to go to school. He also told her he had a surprise for her.

After the telephone conversation terminated, Bowe borrowed a Lincoln Navigator from a former employee. He placed a bag in the vehicle that contained a flashlight, duct tape, pepper spray, and handcuffs. He was also armed with a buck knife. He then drove to Cornelius, North Carolina with his brother, Aaron Wright.

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Bowe arrived at Mrs. Bowe's residence at approximately 6 a.m. on February 25, 1998. He drove past the home several times before parking across the street. At approximately 6:50 a.m., the Bowes' three oldest children left the home and proceeded to the bus stop at the end of the street. Bowe drove the Lincoln Navigator to the bus stop. There, he ordered the children to get into the Lincoln Navigator. After the children complied, he drove the vehicle onto Mrs. Bowe's driveway. He left the driver's side door open and the engine running. His brother remained in the vehicle with the children.

Bowe ran to the front door and forced it open. He pushed Lynette Shaw, Mrs. Bowe's cousin, back inside the house and motioned her to be quiet. He asked Ms. Shaw to tell him where Mrs. Bowe was located. With hand gestures, he indicated that he would hit Ms. Shaw if she did not disclose Mrs. Bowe's whereabouts. Ms. Shaw led Bowe to Mrs. Bowe's bedroom. He shoved the door open, removed the bed covers, and ordered Mrs. Bowe to get up. He gestured that he would hit her if she did not comply. He demanded that she prepare herself and the two youngest children to leave immediately for Maryland. Mrs. Bowe only had time to put on a skirt before he forced her and the children out of the house and into the vehicle. Her upper body was covered by her pajama top.

En route, Bowe displayed the flashlight, duct tape, pepper spray, and handcuffs to Mrs. Bowe and told her "I came prepared." He also informed her that if he had found her with another man, he would have killed both of them. At one point, he stabbed Mrs. Bowe on her left breast through a heavy jacket that she was wearing. She bled from the resultant wound. He also slapped her.

In addition, Bowe ordered his wife to call her attorney and instruct him to suspend the pending divorce proceedings and that she did not wish to continue to press criminal charges in Maryland that she had initiated against him because of an earlier assault. Bowe also ordered her to call her brother and direct him to move all her furniture to Bowe's residence in Maryland. Mrs. Bowe dialed her attorney and her brother on a cellular phone. Her attorney's secretary informed her that her attorney was not available. Her call to her brother was unanswered. When Mr. Wright stopped the vehicle at a restaurant in Virginia, Mrs. Bowe went to the ladies restroom. Bowe stood guard outside the door. He poked his head inside the door periodically and asked her to hurry up. While in the restroom, Mrs. Bowe called Ms. Shaw in North Carolina to notify her of the location of the restaurant. Mrs. Bowe also asked two elderly women who were in the restroom to contact the police to inform them that she was being kidnapped.

Shortly after they left the restaurant, South Hill, Virginia police officers stopped the Lincoln Navigator. The police acted in response to a 911 telephone call from a restaurant employee. Mrs. Bowe drove back to her home in North Carolina in the Lincoln Navigator.

II

On June 2, 1998, Bowe was named in a one-count indictment charging him with a violation of 18 U.S.C. S 2261(a)(2). The indictment contains the following allegation:

Riddick Lamont Bowe, Sr., knowingly, willfully, and unlawfully did cause a spouse and intimate partner Judy Bowe, to travel across a State line, that is from North Carolina to Virginia, by force, coercion, duress, and fraud; and in the

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course of and as a result of that conduct, did intentionally commit a crime of violence, that is, kidnaping and assault, and thereby caused bodily injury to said spouse and intimate partner, in violation of Title 18, United States Code, Section 2261(a)(2).1

On June 4, 1998, the parties entered into a plea agreement. The plea agreement states that Bowe "admits to being in fact guilty as charged [in the indictment]." The parties stipulated that Bowe's adjusted offense level under the Sentencing Guidelines should be 15. The plea agreement also provides that "no departures will be sought by either party and all arguments are limited to recommendations regarding a sentence within the applicable range of the U. S. Sentencing Guidelines." The parties agreed that "[t]he Probation Office will compute the defendant's Criminal History under the Sentencing Guidelines."

The plea agreement further states that:

The defendant is aware that if the Probation Office determines that a different offense level or a Guideline not addressed in this agreement applies, and the Court finds that the Probation Office is correct, then the Court will use that offense level or Guideline in determining the sentence. Nothing in this Plea Agreement will prevent either the United States or the defendant from arguing, before the sentence is imposed, for the offense level as agreed upon herein and a sentence within the corresponding U.S.S.G. range.

Bowe also agreed to waive "the right to contest either the conviction or the sentence in any direct appeal or other post-conviction action, including any proceeding under 28 U.S.C.S 2255."

III

On June 4, 1998, Bowe entered a plea of guilty. Before accepting the plea, the magistrate judge summarized the allegations in the indictment as follows:

It is alleged in this count of the indictment returned June 2nd, 1998, that on or about February 25, 1998, in Mecklenburg County, North Carolina, which is within the Western District of North Carolina for federal judicial purposes, that you, Riddick Lamont Bowe, Sr., knowingly, willfully, and unlawfully did cause a spouse and intimate partner, a Judy Bowe, to travel across a state line, that is, from North Carolina to Virginia, by force, coercion, duress, and fraud; and that in the course of and as a result of that conduct, you did intentionally commit a crime of violence, that is, kidnapping and assault, and that you caused bodily injury to your spouse and intimate partner, all of which would be in violation of Title 18, U.S. Code, Section 2261(a)(2).

Bowe testified under oath that he committed the crime charged in the indictment.

During the plea proceedings, the Government informed the court...

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