U.S. v. Savarese, 04-1099.

• Decision Date: 22 September 2004
• Docket Number: No. 04-1099.,04-1099.
• Citation: 385 F.3d 15
• Parties: UNITED STATES, Appellee, v. Stephen SAVARESE, Defendant-Appellant.
• Court: U.S. Court of Appeals — First Circuit

385 F.3d 15

UNITED STATES, Appellee, v. Stephen SAVARESE, Defendant-Appellant.

No. 04-1099.

United States Court of Appeals, First Circuit.

Heard August 2, 2004.

Decided September 22, 2004.

Appeal from the United States District Court for the District of Maine, George Z. Singal, Chief Judge.

Robert J. Ruffner with whom Vincent Kantz & Ruffner was on brief for defendant-appellant.

F. Mark Terison with whom Paula D. Silsby was on brief for appellee.

Before TORRUELLA, DYK^* and HOWARD, Circuit Judges.

DYK, Circuit Judge.

The central question here concerns the interpretation of section 2B3.1 of the U.S. Sentencing Guidelines, which provides for a two-level enhancement of a defendant's offense level if the defendant engaged in carjacking. U.S. Sentencing Guidelines Manual § 2B3.1(b)(5)(2003). We hold that the district court's enhancement of the defendant's sentence was not contrary to the Guidelines and that there was no plain error in the district court's failure to submit the fact issues concerning enhancement to a jury.

I

The guidelines provide: "If the [robbery] offense involved carjacking, increase by 2 levels." Id. § 2B3.1(b)(5). The Guidelines further define "carjacking" as "the taking or attempted taking of a motor vehicle from the person or presence of another by force and violence or by intimidation." Id. § 2B3.1, cmt. n. 1. This provision is similar to the statute making carjacking a criminal offense. See 18 U.S.C. § 2119 (2000). That statute provides criminal punishments for "[w]hoever, with the intent to cause death or serious bodily harm[,] takes a motor vehicle that has been transported, shipped, or received in interstate or foreign commerce from the person or presence of another by force and violence or by intimidation, or attempts to do so." Id. (emphasis added). Despite the minor differences in language, we agree with the Sixth Circuit that the "person or presence" requirement of the Guidelines provision should be interpreted to be the same as the "person or presence" requirement of the criminal statute. United States v. Boucha, 236 F.3d 768, 775 (6th Cir.2001); see also United States v. Bates, 213 F.3d 1336, 1340 (11th Cir.2000) (reserving the question whether the guidelines, like the carjacking statute, include a specific intent requirement). The question thus becomes whether, on the facts of this case, the "person or presence" requirement of the carjacking statute has been satisfied.

II

A

At the sentencing hearing, the parties agreed that the carjacking enhancement was to be based entirely on the facts in the presentence report. Accordingly, the following facts are taken from the presentence report. At approximately 8:30 pm on April 13, 2003, the appellant, Stephen Savarese, and an accomplice traveled to the property of Frank and Beverly Shippee in Shapleigh, Maine, on which the Shippees' home and the Fort Ridge Trading Post, a shop the Shippees operated, were located. Intending to steal firearms from the Trading Post, Savarese and his accomplice pretended that their car had had mechanical trouble. They forced their way into the Shippees' home when Mr. Shippee retrieved a cordless telephone for them, attacking Mr. Shippee with a stick and threatening the Shippees with a pistol and a shotgun. Once the Shippees had been subdued, the assailants demanded the combination to the lock on the door of the Trading Post. While they pointed guns at Mr. Shippee, they also demanded and took the keys to the Shippees' SUV, which was parked in the driveway. Unable to gain entry to the Trading Post with the combination, Savarese broke a window in the door and entered the shop. He returned to the Shippees' home with duct tape from the shop, with which the assailants bound the Shippees' hands and feet. Savarese then guarded the Shippees while his accomplice stole twenty-nine guns from the Trading Post and loaded them into the Shippees' SUV, which they then drove to Savarese's car, parked nearby.

An eyewitness was able to identify Savarese's car as having been near the Trading Post on the night of April 13, and Savarese was arrested on April 18. He subsequently pled guilty to charges of (1) interference with commerce by robbery in violation of 18 U.S.C. § 1951(a) and (b)(1); (2) using and brandishing a firearm during and in relation to a crime of violence in violation of 18 U.S.C. § 924(c)(1)(A)(ii); and (3) theft of firearms from a federally licensed firearms dealer in violation of 18 U.S.C. § 922(u) and aiding and abetting such a theft in violation of 18 U.S.C. § 2.

Savarese was sentenced on December 15, 2003. With respect to the second count, a minimum sentence of seven years, consecutive to Savarese's other sentences, was required. See 18 U.S.C. § 924(c)(1)(A)(ii). The first and third counts were grouped together pursuant to section 3D1.2(b) of the Guidelines. The base offense level for the first count was 20, pursuant to section 2B3.1 of the Guidelines. The district court applied four enhancements each of two levels, under that section because (1) a threat of death was made (§ 2B3.1(b)(2)(F)); (2) Mr. Shippee sustained bodily injury (§ 2B3.1(b)(3)); (3) the Shippees were physically restrained to facilitate the commission of the offense (§ 2B3.1(b)(4)); and (4) the offense involved carjacking (§ 2B3.1(b)(5)). In addition, the district court applied a one-level enhancement pursuant to section 2B3.1(b)(6) of the Guidelines because firearms were taken, for an adjusted offense level of 29.

Because the offense level for the first count was greater than that for the third count, it became the offense level for the grouped offenses. The district court reduced the offense level by three levels to 26 because Savarese accepted responsibility for the offense, pursuant to section 3E1.1 of the Guidelines. Savarese was assigned to Criminal History Category I because he had no prior criminal history, resulting in a Guideline range of 63-78 months. The district court sentenced the defendant to 63 months on each of the first and third counts, to be served concurrent with each other, and 84 months on the second count, to be served consecutively to each of the first and third counts. The district court also imposed a three-year supervised release term, a mandatory assessment of $300, and restitution of $1,948.

At the sentencing hearing, Savarese objected to the district court's carjacking enhancement, asserting that the enhancement provision did not apply to him because he took the keys from the Shippees inside the house while the SUV remained outside the house in the Shippees' driveway.² The district court relied on the Sixth Circuit's interpretation in Boucha of "presence" for purposes of the carjacking enhancement, stating:

I've read the case law, scarce as it is on this issue. The case that seems to come the closest is [Boucha]. I think the court in that case probably states the law correctly, but I'm not sure the interpretation is a reasonable one.

... I do believe that the law in this circuit would be that the facts as set forth in this case where a person's car is right outside their house, the keys are demanded and received by way of force, and the car is therefore taken from right outside the house comes within what Congress intended in ... [the] carjacking statute and the enhancement as applied in the sentencing guidelines.

So I think the enhancement applies, and I'm severely troubled by the fact that it does apply.

(Tr. of Sentencing Hr'g at 48-49.)

B

We review the "interpretation and application of the United States Sentencing Guidelines" by the district court without deference, and we review the district court's findings of fact for clear error. United States v. Caldwell, 358 F.3d 138, 142 (1st Cir.2004).

The issue under the carjacking statute (and hence under the Guidelines) is whether the victims' SUV was taken from the "presence" of the victims when the defendant forced them to turn over the keys. The government argues that, under the Guidelines, merely "[f]orcibly taking the keys to [a] vehicle at gunpoint" is sufficient for the carjacking enhancement to apply. (Br. of Appellee at 19.) This interpretation ignores the fact that the vehicle itself must be taken from the presence of the victim and offers no limiting principle, encompassing the theft of keys to a vehicle located miles away in distant parts of the city, or even in a different city. We look to general purpose dictionaries from the time of the statute's enactment to determine the meaning of statutory language. See, e.g., Carey v. Saffold, 536 U.S. 214, 219-20, 122 S.Ct. 2134, 153 L.Ed.2d 260 (2002); see also Textron Inc. v. C.I.R., 336 F.3d 26, 32 (1st Cir.2003).³ In contrast to the government's interpretation, "presence" is defined as "the part of space within one's ken, call, or influence: the vicinity of or the area immediately near one: the place in front of or around a person." Webster's Third New International Dictionary 1793 (1969); see also Webster's Third New International Dictionary 1793 (1993) (same). In interpreting the carjacking statute, this court has looked to the common law meaning of "presence." United States v. Perez-Garcia, 56 F.3d 1, 3 (1st Cir.1995) ("Courts generally agree that taking from a victim's person is understood to include the common law conception of taking from a victim's presence."). Thus, at a minimum, proximity to the vehicle and the ability to influence the space encompassing the vehicle is required.

While this court has not previously addressed this issue, the authority from other circuits is basically consistent with this definition. In interpreting a robbery statute that also contained a "person or presence" requirement, the Ninth Circuit held that "property is in the presence of a person if it is so within his reach, inspection, observation or control, that he could if not overcome by violence or prevented by fear, retain his possession of it." United States v. Burns, 701 F.2d 840, 843 ...