U.S. v. Cole

• Decision Date: 19 February 2004
• Docket Number: No. 02-5840.,No. 02-5839.,02-5839.,02-5840.
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Richard COLE, III; Jonathan Johnson, Defendants-Appellants.
• Court: U.S. Court of Appeals — Sixth Circuit

359 F.3d 420

UNITED STATES of America, Plaintiff-Appellee, v. Richard COLE, III; Jonathan Johnson, Defendants-Appellants.

No. 02-5839.

No. 02-5840.

United States Court of Appeals, Sixth Circuit.

Argued October 30, 2003.

Decided and Filed February 19, 2004. Pursuant to Sixth Circuit Rule 206.

COPYRIGHT MATERIAL OMITTED

James W. Powell (briefed), ASSISTANT UNITED STATES ATTORNEY, Richard Leigh Grinalds, U.S. Atty's Office, Jackson, Tennessee, for Appellee.

ARGUED: Jeff Mueller (briefed), LAW OFFICE OF JEFF MUELLER, Jackson, Tennessee, ON BRIEF: Bruce I. Griffey, OFFICE OF BRUCE IRWIN GRIFFEY, Memphis, Tennessee, for Appellants.

Before MOORE and ROGERS, Circuit Judges; FORESTER, Chief District Judge.^*

OPINION

FORESTER, District Judge.

The Defendants, Richard Cole, III ("Cole") and Jonathan Johnson ("Johnson") appeal the sentences imposed on them by the U.S. District Court for the Western District of Tennessee pursuant to the 2001 United States Sentencing Guidelines ("U.S.S.G."), resulting from their convictions for kidnapping, assault, and the use of a firearm during a crime of violence.¹

On appeal, Cole presents the following arguments: (1) the district court erred when it utilized U.S.S.G. § 2A3.1, instead of U.S.S.G. § 2A4.1 for the kidnapping offense; (2) the district court should not have granted a four-level sentence enhancement for abduction on a conviction for a kidnapping offense pursuant to U.S.S.G. § 2A3.1(b)(5); and (3) the district court wrongly refused to grant a downward departure for diminished capacity and aberrant behavior pursuant to U.S.S.G. §§ 5K2.13 and 5K2.20. Johnson contends that the district court erred when it increased his offense level by two points for obstruction of justice under U.S.S.G. § 3C1.1. In addition, both Cole and Johnson allege that the district court erred when it granted a three-level upward departure for extreme conduct in accordance with U.S.S.G. § 5K2.8. For the following reasons, we AFFIRM.

I. JURISDICTION

The district court had jurisdiction pursuant to 18 U.S.C. § 3231. This Court has jurisdiction pursuant to 28 U.S.C. § 1291.

II. FACTUAL BACKGROUND AND PROCEDURAL HISTORY

At or around noon on May 1, 2001, the defendants entered the Bells, Tennessee U.S. Post Office. Cole and Johnson, who was armed with an unloaded .38 caliber pistol tucked into the front waist-band of his pants, forced the victim (a United States Postmaster) out of the building and into her vehicle, in which Cole and Johnson, along with their victim, fled the scene. For four hours, the defendants held the victim captive, driving the back roads surrounding Jackson, Tennessee, and taking turns sexually assaulting her. She was released around 4 p.m., whereupon she reported the crime. The defendants were arrested a short time later.

After her release, the victim gave two statements to Postal Inspector Katrina Chalmers. The statements provided the details of the defendants' activities as later set forth in the presentence investigation report. The victim stated that, prior to her release, Johnson found an insurance card in the glove box of her vehicle and told her that he had her address and would "send someone to kill her" if she told anyone about the incident. Johnson also repeatedly stated that he ought to kill her because she had seen his and Cole's faces.

The defendants pled guilty to kidnapping, assault, and the use of a firearm during a crime of violence, and a sentencing hearing was held for each defendant. With respect to Cole, the district court began with the kidnapping charge and proceeded to U.S.S.G. § 2A4.1.² However, that guideline, under (b)(7)(A), directed the court to refer to U.S.S.G. § 2A3.1³ and impose sentence under that section if it resulted in a greater offense level. As a result, Cole received a higher base offense level. Additionally, pursuant to specific offense characteristic (b)(5) of U.S.S.G. § 2A3.1, the district court granted a four level sentence enhancement because the victim had been abducted. The district court also denied Cole's request for a downward departure for diminished capacity and aberrant behavior pursuant to U.S.S.G. §§ 5K2.13⁴ and 5K2.20⁵ because Cole's acts fell outside the language permitting such departure. Finally, the court departed upward three levels for extreme conduct based on U.S.S.G. § 5K2.8.⁶ This resulted in a total sentence of 319 months.⁷

With regard to Johnson, the district court increased his offense level two points for obstruction of justice pursuant to U.S.S.G. § 3C1.1⁸ because of the threats he made to the victim prior to releasing her. Additionally, as it had done with regard to Cole, the court departed upward three levels for extreme conduct based on U.S.S.G. § 5K2.8. Johnson was ultimately sentenced to a term of 489 months.⁹

III. DEFENDANT COLE

A. Appropriateness of Sentencing Guideline Used

Defendant Cole was indicted and pled guilty to a violation of 18 U.S.C. § 1201(a)(5), which proscribes the offense of kidnapping. The U.S.S.G. Appendix A, Statutory Index, specifies the offense guideline section in Chapter Two applicable to the statute of conviction. The proper guideline specified by the index for a violation of 18 U.S.C. § 1201 is set out at § 2A4.1, and specifies a base offense level of 24. This guideline provides in part that:

if the victim was kidnapped, abducted, or unlawfully restrained during the commission of, or in connection with, another offense ... or if another offense was committed during the kidnapping, abduction, or unlawful restraint, increase to-(A) the offense level from the Chapter Two offense guideline applicable to that other offense if such offense guideline includes an adjustment for kidnapping, abduction, or unlawful restraint ... if the resulting offense level is greater than that determined above.

U.S.S.G. § 2A4.1(b)(7). The guideline also provides, at U.S.S.G. § 2A4.1(b)(5)(A), for an increase of three points if the victim was sexually exploited.

This Court utilizes a de novo review with respect to a sentencing court's interpretation of the United States Sentencing Guidelines, and a clearly erroneous standard with respect to factual findings. See United States v. Kimble, 305 F.3d 480, 485 (6th Cir.2002); United States v. Denton, 246 F.3d 784, 789 (6th Cir.2001); United States v. Scott, 74 F.3d 107, 111 (6th Cir.1996).

The defendants' victim, after being kidnapped, was forcibly raped at gunpoint. The offense guideline for criminal sexual assault is U.S.S.G. § 2A3.1, which specifies a base offense level of 27 and includes an adjustment for kidnapping, abduction, or unlawful restraint as a specific offense characteristic. The district court, applying the specific offense characteristics of U.S.S.G. § 2A3.1(b)(1) and 2A3.1(b)(5), determined the resulting offense level to be 35. The court concluded that because the offense level under U.S.S.G. § 2A3.1 was greater than the base offense level under § 2A4.1, § 2A4.1(b)(7) required the use of § 2A3.1 and prohibited the application of § 2A4.1. Cole argues that this conclusion was erroneous.

While this Court has not yet addressed this issue, each and every one of the courts of appeals that has done so has determined the use of U.S.S.G. § 2A3.1 to enhance a sentence for kidnapping to be appropriate. We are inclined to agree with the circuits that have heretofore so held, and thus the district court was correct in proceeding from U.S.S.G. § 2A4.1(b)(7)(A) to U.S.S.G. § 2A3.1.¹⁰ As the Court in U.S. v. Galloway, 963 F.2d 1388 (10th Cir.1992), reasoned:

We find that § 2A4.1(b)(5) is not ambiguous. When a victim is kidnapped in order to facilitate the commission of another offense, § 2A4.1(b)(5) directs the sentencing court to apply the guideline with the higher offense as between the kidnapping guideline and the guideline for the other offense. The background notes to § 2A4.1 explain:

An enhancement is provided when the offense is committed for ransom or to facilitate the commission of another offense. Should the application of this guideline result in a penalty less than the result achieved by applying the guideline for the underlying offense, apply the guideline for the underlying offense (e.g. § 2A3.1, Criminal Sexual Abuse).

The Sentencing Commission's intent to apply the higher of the two guidelines is unmistakable.

Id. at 1391.

It could be argued that U.S.S.G. §§ 2A4.1 and 2A3.1 overlap to such an extent that a feasible alternative means of sentencing would be to use § 2A4.1 and then add three levels for sexual exploitation under specific offense characteristic (b)(5) of that guideline. However, the general application principles of the U.S.S.G. in the section titled, "Application Instructions," require that, "[w]here two or more guideline provisions appear equally applicable, but the guidelines authorize the application of only one such provision, use the provision that results in the greater offense level." U.S.S.G. § 1B1.1, Application Note 5. This statement dispels with any need to determine which allegedly conflicting section controls. Clearly, the provision resulting in the greater offense level is U.S.S.G. § 2A3.1. As a result, the correct guideline was used.

B. The Four-Level Sentence Enhancement for Abduction under U.S.S.G. § 2A3.1(b)(5)

The district court sentenced Cole for the crime of kidnapping. However, in so doing, it correctly employed U.S.S.G. § 2A3.1 as the offense guideline, thereby ultimately sentencing him for criminal sexual assault and abduction. Cole asserts that the district court's use of the specific offense characteristic (b)(5) of U.S.S.G. § 2A3.1, which calls for an increase of four from the base offense level when the victim was abducted, is an impermissible double counting because an essential element of kidnapping is abduction. Cole argues that the four level enhancement "would enhance for the very action which defines the crime itself." Appellant's Br. at 10.

As noted above, this Court re...