U.S. v. Carroll

• Decision Date: 09 January 1990
• Docket Number: No. 88-2260,88-2260
• Citation: 893 F.2d 1502
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. William M. CARROLL, Defendant-Appellant.
• Court: U.S. Court of Appeals — Sixth Circuit

Page 1502

893 F.2d 1502

58 USLW 2446

UNITED STATES of America, Plaintiff-Appellee, v. William M. CARROLL, Defendant-Appellant.

No. 88-2260.

United States Court of Appeals Sixth Circuit.

Argued July 31, 1989.

Decided Jan. 9, 1990.

David Debold, argued, Office of the U.S. Atty., Detroit, Mich., for plaintiff-appellee.

Jill L. Price, argued, Federal Public Defenders Office, Detroit, Mich., for defendant-appellant.

Before KRUPANSKY and RYAN, Circuit Judges, and WILHOIT, District Judge. ^*

RYAN, Circuit Judge.

This sentence guidelines appeal presents a meritorious assignment of error.

Because we conclude that the sentencing court erred as a matter of law in selecting the numerical value corresponding to the defendant's "role" in the offense in this case, and as a result necessarily came to a mistaken mathematical conclusion about the appropriate sentence guidelines range, we vacate the sentence and remand the case for resentencing.

I.

Before turning to the four meritless and one meritorious issues in this appeal, we should like to say a word, in dicta to be sure, about the ever increasing volume of sentence guidelines appeals being filed in this circuit, and presumably in others.

This is one in an ever increasing number of such appeals in which the principal thrust of the appeal is to attempt to persuade this court to second guess the sentencing judge's findings about the nature of the defendant's role in the offense, or his attitude about his guilt, or his criminal justice history; and sometimes, as in this case, all three.

This appeal is unusual in that it presents a meritorious assignment of error. In most of these appeals the sentenced offender is the appellant and his sole appellate purpose is obvious: to obtain a more lenient sentence than was imposed by the district court. When the government is the appellant, as it is with increasing frequency, its purpose, ordinarily, is to obtain a more severe sentence.

The usual request in these appeals is that we substitute our own findings of fact for those of the sentencing court and then recompute the "correct" sentence guideline range by introducing into the convoluted arithmetical sentencing guidelines formula different numerical values for the defendant's role in the offense, his attitude, and his criminal history than the sentencing court, and usually the probation department, thought to be appropriate. To characterize this use of the resources of the United States Court of Appeals as imprudent is a very considerable understatement.

As the burgeoning volume of these sentence guidelines appeals begins to bloat the dockets of all the courts of appeals, we are necessarily spending more and more time doing nothing more than responding to appellants' pleas that we disagree with the factual determinations of sentencing judges and correct their mathematical computations. In the vast majority of these cases, although not this particular one, after careful and exhaustive examination of the sentencing court's findings of facts and its arithmetical computations, our appellate scrutiny results in a conclusion, even where some minor mathematical mistake is identified, that the correct sentence range is exactly as determined by the sentencing court. Part of the price that is paid for this kind of appellate drill is the unwarranted consumption of considerable time and energy that should be devoted to study, research, decision making, and opinion writing in an accumulating backlog of cases involving hundreds of jurisprudentially significant questions of state, federal, and constitutional law--functions for which the United States court of appeals was created.

It is not too late for Congress to reconsider whether the time and resources the courts of appeals are devoting to reviewing these sentence guideline cases, particularly in view of the essentially clerical nature of the current review function, can be better spent without sacrificing a sentenced defendant's entitlement to appropriate appellate review of the sentence imposed.

Meanwhile, we shall continue to undertake, as we have in this case, a detailed analysis of the correct application of the guidelines to the facts of individual cases in the hope that doing so will contribute to an early accumulation of a body of appellate precedent on the subject, looking to the day when most district court findings of fact and arithmetical computations in sentence guideline cases can be double checked without the full blown court of appeals briefing, oral argument, and opinion writing that should be reserved for jurisprudentially weightier matters.

II.

Appellant William M. Carroll attempted to escape from a federal correctional institute, pleaded guilty to doing so, was convicted and sentenced, and now appeals the district court's interpretation of the sentencing guidelines and the measure of proof by which the court required the government to prove the facts relied upon to compute the correct sentencing guidelines range.

Appellant argues that the district court erred in the following matters:

--Not requiring the government to prove by clear and convincing evidence the facts upon which it urged the district court to rely in determining the correct sentencing guidelines' values.

--Increasing appellant's base offense level by two levels for being an "organizer or leader."

--Increasing appellant's criminal history score by two points for committing an offense while under a criminal justice sentence.

--Increasing appellant's criminal history by two points for committing an offense within two years after release from custody.

--Denying appellant a two level reduction for acceptance of responsibility.

We agree with appellant that, as a matter of law, his base offense level could not be increased by two points on the theory that he was an organizer or leader under the "role in the offense" guideline. The remaining assignments of error are without merit, but because of the "role in the offense" miscalculation, the sentence is vacated and the matter is remanded to the district court for resentencing.

III.

Carroll was serving a fifteen-year sentence for manufacturing counterfeit currency when, in February 1988, he asked another inmate whether the inmate knew anyone on the outside who could help Carroll escape from the Federal Correctional Institute in Milan, Michigan. The inmate promptly alerted prison authorities who instructed the inmate to put Carroll in touch with an undercover FBI agent outside the prison who would pose as a helicopter pilot for hire.

Carroll telephoned the agent six times. He also wrote several letters in which he detailed his escape plans in "invisible ink" (lemon juice). Carroll planned to pay the agent and his helpers with $1,000,000 in counterfeit currency that he would then launder by purchasing cocaine from "a couple of Venezuelan brothers." Carroll offered the agent an extra $250,000 if he could recruit one more assistant and indicated a willingness to pay an additional one million counterfeit dollars for the life of the "bastard who got me this 15 years." In a later letter to the agent, Carroll identified that person, but told the agent to wait about six months so that the two could review details and defuse suspicion.

Carroll admitted that at the time scheduled for the escape, he was waiting for the helicopter in the designated place, was wearing predetermined clothing, and was signaling the pilot where to land.

Carroll was charged in a complaint with attempted escape, 18 U.S.C. Sec. 751, and solicitation to commit murder, 18 U.S.C. Sec. 13, relying, pursuant to the Assimilative Crimes Act, on Mich.Comp.Laws Sec. 750.157b (1989). He pleaded guilty and was scheduled for sentencing on December 14, 1988. As required by local court rule, appellant filed written objections to the calculation of his sentencing guidelines and renewed those objections orally at the time of his sentence. He makes the same arguments on appeal that he made below.

At sentencing, Carroll did not dispute the initial determination that Guideline Sec. 2P1.1(a) assigns a base level of thirteen to his offense; nor did he seriously dispute the court's finding that he initiated and planned the escape attempt. Rather, Carroll objected to the government's argument that he deserved a two point base level increase, pursuant to Sec. 3B1.1(c), due to his "aggravating role" in the escape attempt. Carroll maintained that because he was the only criminally responsible person alleged to have been involved in the offense, he could not rationally be treated as an "organizer or manager" within the language and intent of the applicable guideline--regardless of whether he planned the escape--because the escape involved no other "participants" as defined in the guidelines. Carroll asserted that in this case he only organized himself and the guideline does not permit enhancement in such a situation.

Carroll also objected to the government's request to add two points to his criminal history score for having committed an offense while under a criminal justice sentence, and one point for commission of an offense within two years after release from custody. He argued that because a defendant cannot commit the offense of escape unless he is under a criminal justice sentence, the two point addition to the criminal history score mandated by Sec. 4A1.1(d) is inappropriate in escape cases. Carroll further argued that the commission of his offense prior to his release from custody renders Sec. 4A1.1(e) inapplicable.

Finally, Carroll argued that he was entitled to the two level "acceptance of responsibility" reduction.

The sentencing court accepted the government's position on every guideline issue. The court began the sentencing computation by applying a base offense level of thirteen. U.S.S.G. Sec. 2P1.1(a)(1). In apparent reliance on the agent's affidavit that Carroll initiated the attempted escape, the district court increased the base...