872 F.2d 597 (5th Cir. 1989), 88-1624, United States v. Roberson

Docket Nº:88-1624.
Citation:872 F.2d 597
Party Name:UNITED STATES of America, Plaintiff-Appellee, v. Eddie Wayne ROBERSON, Defendant-Appellant.
Case Date:April 28, 1989
Court:United States Courts of Appeals, Court of Appeals for the Fifth Circuit

Page 597

872 F.2d 597 (5th Cir. 1989)

UNITED STATES of America, Plaintiff-Appellee,


Eddie Wayne ROBERSON, Defendant-Appellant.

No. 88-1624.

United States Court of Appeals, Fifth Circuit

April 28, 1989

Rehearing Denied May 24, 1989.

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Ralph H. Brock, Lubbock, Tex., (court-appointed), for defendant-appellant.

Delonia A. Watson, Asst. U.S. Atty., Dallas, Tex., Rogers McRoberts, Asst. U.S. Atty., Marvin Collins, U.S. Atty., Lubbock, Tex., for plaintiff-appellee.

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Appeal from the United States District Court for the Northern District of Texas.

Before GEE, SMITH and DUHE, Circuit Judges.

JERRY E. SMITH, Circuit Judge:

I. Factual Background.

In November 1987, Eddie Wayne Roberson, who was on parole after recently being released from prison, was searching for work. Roberson met Jack Doherty, an eighty-four-year-old man who was in poor health, had poor vision, and required someone to assist him with his daily needs. Apparently, Doherty also drank heavily at times. Roberson moved in with Doherty, assisting him with household duties, taking him to the doctor and grocery store, and performing other daily tasks in exchange for room and board.

One evening, a few days after Roberson moved in, Doherty had a coughing fit while intoxicated. 1 During the spell, Doherty fell and struck his head on a table. When Roberson heard the fall, he rushed to Doherty's assistance, but could not find a pulse or detect any breathing. Fearing that the police would think he killed Doherty, Roberson panicked and fled the scene. After driving around town for a few hours, Roberson returned to Doherty's home. Doherty was, indeed, dead by this time. Roberson wrapped the body in a quilt, cleaned the blood from the floor, flipped the mattress on the bed to hide more blood, and changed his own blood-stained clothes. The unusual events in this case then turned bizarre.

In a state of panic, Roberson put Doherty's body in the trunk of Doherty's car and drove around Texas for several days. Throughout this expedition, Roberson used Doherty's credit card to pay for food, gasoline, clothes, and hotel rooms. Roberson was apparently drinking heavily during this period. He testified that he wanted to bury the body, but could not because the ground was frozen. Finally, Roberson found a garbage dumpster near a vacant lot, placed the body in the dumpster, doused it with diesel fuel, and ignited it. The body was burned beyond recognition.

Still fearing murder charges, Roberson purchased an airplane ticket with Doherty's credit card and flew to Kansas to visit a female friend. Although Roberson intended to stay in Kansas, his friend convinced him to return to Texas. Roberson did so, but did not turn himself in. Instead, he spent several days drinking heavily and using Doherty's credit card and car. In total, Roberson charged about $6,700 on Doherty's credit card before the police apprehended him.

Finally, the state police arrested Roberson in Texas for public intoxication. While he was handcuffed and sitting in a patrol car, Roberson overheard a comment about Doherty's credit card on the patrol car's radio. He then managed to reach into his pocket, extract the credit card, and hide it in the seat of the car.

The police questioned Roberson about Doherty and the credit card. Roberson maintained that he knew nothing about a credit card and that Doherty was alive, well, and at home. When the police found the credit card in the patrol car and confronted Roberson with it, he began to explain the situation and to cooperate with the state prosecutor. The state district attorney's office agreed not to seek the death penalty in any murder case against Roberson and not to prosecute Roberson on the property charges if Roberson would cooperate.

Roberson agreed. He then showed the police where the body was, gave two confessions, took a polygraph, and explained the charges on Doherty's credit card bills. No federal agencies participated in the agreements with Roberson.

The State of Texas twice sought a murder indictment against Roberson, but the grand jury returned a no-bill both times. Roberson eventually was indicted under Texas law for abuse of a corpse, but has

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not been tried on this charge. Finally, Roberson was indicted for the federal offense of abuse of an access card, a crime more commonly known as credit card fraud.

At trial, Roberson contended that he had permission to use the card and that he planned to repay Doherty with a $5,000 inheritance he was expecting. The jury convicted him.

Roberson objected to the pre-sentence report which the magistrate used as the basis for computing his sentence under the Sentencing Guidelines ("Guidelines"). The sentencing judge overruled these objections. Pursuant to the Guidelines, the judge found aggravating circumstances which the Sentencing Commission ("Commission") had not taken into account that rendered inadequate a sentence within the range shown by the Guidelines. As the Guidelines require, he provided a "statement of reasons" for his departure from their provisions.

Although the Guidelines recommended a 30-to-37-month sentence, Roberson was sentenced to 120 months in prison and two years' supervised release. He was also ordered to pay a $50 special assessment, and restitution to Manufacturers Hanover Trust, the issuer of Doherty's credit card. Roberson now appeals, arguing that the sentence imposed under the departure provisions of the Guidelines was inappropriate on several grounds and that he should have been immune from federal prosecution per his agreement with the state prosecutor. We affirm.

II. The Sentencing Guidelines.

Under the Guidelines, now held to be constitutional in Mistretta v. United States, --- U.S. ----, 109 S.Ct. 647, 102 L.Ed.2d 714 (1989), Congress has instructed sentencing courts to "impose a sentence sufficient, but not greater than necessary," to address the following goals:

... (A) to reflect the seriousness of the offense, to promote respect for the law, and to provide just punishment for the offense;

(B) to afford adequate deterrence to criminal conduct;

(C) to protect the public from further crimes of the defendant; and

(D) to provide the defendant with needed educational or vocational training, medical care, or other correctional treatment in the most effective manner.

18 U.S.C. Sec. 3553(a)(2). To facilitate this task, the Commission has established a Sentencing Table listing recommended ranges of sentences and devised a method for determining which range is appropriate for a particular defendant.

The vertical axis of the Sentencing Table designates the offense level. The Commission has created a point system for determining a defendant's offense level. The Guidelines ascribe a "Base Offense Level" for each covered offense. For example, the abuse-of-access charges against Roberson fall into the fraud and deceit offense category and carry a base offense level of 6. Guidelines Sec. 2F1.1.

After finding the base offense level, the district court then adjusts the offense level by accounting for a variety of factors listed in the "Offense Conduct" and "Adjustments" sections of the Guidelines. See generally id. chaps. 2, 3. In this case, the Guidelines directed the court to add points to the base offense level in relation to the amount of money involved in the transactions. Id. Sec. 2F1.1(b). As Roberson's transactions amounted to $6,700, his "offense conduct" justified a two-point increase from the base offense level. The Guidelines also instructed the court to make two upward "adjustments": The court added two points under section 3A1.1 because Roberson's actions involved a "vulnerable victim," and two points under section 3C1.1 because Roberson obstructed justice. When the court added the adjustments to the base offense level, it arrived at an offense level of 12. 2

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The horizontal axis of the Sentencing Table accounts for the defendant's criminal history, grouping criminal backgrounds into six categories; category VI represents the most active criminal past. The criminal history categories, like the offense levels, work on a point system, assigning points to certain events in the defendant's criminal record. Roberson's active criminal past earned him a spot in category VI.

After the court has determined the appropriate offense level and criminal history category, it uses the table to find the recommended sentencing range. The range for an offense level 12 and criminal history category VI is 30 to 37 months. Although the Commission contemplates that, in most cases, courts will impose a sentence within the recommended range, the sentencing process does not always end when the court identifies that range.

The Guidelines circumscribe the court's sentencing discretion, but do not eliminate all judicial discretion from the sentencing process. In general, "[t]he court shall impose a sentence of the kind, and within the range [set forth in the Guidelines]." 18 U.S.C. Sec. 3553(b). The court may depart from the Guidelines, however, if it "finds that an aggravating or mitigating circumstance exists that was not adequately taken into consideration by the Commission in formulating the guidelines...." Id. 3 Whenever it sentences a criminal defendant, a court must "offer reasons explaining why the departure is justified in terms of the policies underlying the [Guidelines]." Mejia-Orosco, 867 F.2d at 221; 18 U.S.C. Sec. 3553(c).

If the court imposes a sentence exceeding the recommended range, it must state "the specific reason for the imposition of a sentence different from that described" in the Guidelines. 18 U.S.C. Sec. 3553(c)(2). However, the sentencing judge need not "... incant the...

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