903 F.2d 457 (7th Cir. 1990), 89-1598, United States v. White

• Citation: 903 F.2d 457
• Party Name: UNITED STATES of America, Plaintiff-Appellee, v. Ronald Leon WHITE, Defendant-Appellant.
• Case Date: May 24, 1990
• Court: United States Courts of Appeals, U.S. Court of Appeals — Seventh Circuit

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903 F.2d 457 (7th Cir. 1990)

UNITED STATES of America, Plaintiff-Appellee,

v.

Ronald Leon WHITE, Defendant-Appellant.

No. 89-1598.

United States Court of Appeals, Seventh Circuit

May 24, 1990

Argued Sept. 22, 1989.

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Bruce E. Reppert, Asst. U.S. Atty., Office of the U.S. Atty., East St. Louis, Ill., for plaintiff-appellee.

Renee E. Schooley, Federal Public Defender, Office of the Federal Public Defender, United States Court & Custom House, St. Louis, Mo., for defendant-appellant.

Before CUMMINGS, COFFEY and KANNE, Circuit Judges.

COFFEY, Circuit Judge.

Ronald Leon White appeals his sentence following his convictions resulting from his pleas of guilty to two counts of kidnapping under 18 U.S.C. Sec. 1201(a)(1) and one count of interstate transportation of a stolen motor vehicle in violation of 18 U.S.C. Sec. 2312. We affirm.

I.

This case stems from a crime spree that took place in three states (Missouri, Illinois and Indiana) after the defendant White's escape on June 6, 1988, from a medium-security penal institution known as the St. Louis Work House located in St. Louis, Missouri. White was employed in the prison's kitchen and escaped during a milk delivery to the prison. During White's escape from the prison, White wielded an eleven-inch butcher knife and stabbed a dairy company employee while taking over the company's dairy delivery truck. After exiting the prison confines White parked the truck in an alley in the city of St. Louis.

White then went on a crime spree with his initial crimes being perpetrated in St. Louis, Missouri. White offered a residential occupant twenty dollars for a ride, and then requested his driver to pick up his (White's) girlfriend. Shortly thereafter, White flashed his knife, stated that he had escaped from the Work House and advised the driver he was a hostage. At that point, the driver drove his car into the side of a building and escaped from White. After the automobile was totaled in the accident, White unsuccessfully sought to steal a truck.

Early in the morning of June 7, 1988, White entered the residence of two minor girls (sisters) whose parents were out of town. White placed one of the girls in the closet while he allegedly repeatedly raped the other girl. In addition, he ransacked the house in search of money and valuables. On the afternoon of June 7, 1988, twelve hours after his entry into the home, White forced one of the girls to call a male friend who owned a car. This friend drove to the sisters' house and, upon arrival, White restrained him with rope. The girl who had called her friend was then forced to drive White to a bank to withdraw money from her mother's account. While they were in the auto at the drive-up window, the girl driving escaped. White then drove the stolen auto to Washington University of St. Louis. The government argued that White chose Washington University as his destination because of White's desire to change autos, likely making apprehension more difficult, and to steal the automobile of the mother of one of the girls White had victimized. One of the sisters had mentioned that her mother worked at Washington University of St. Louis. White, when apprehended, was found in possession of the mother's car keys.

The crimes alleged in the federal indictment began when White arrived at Washington University. At about 4 p.m. on June 7, 1988, a woman who worked in the admissions office at the University was leaving work and came upon White, attired in a jogging suit he had stolen from the sisters' home. As White approached the woman, he stated he was unable to get his car started and asked for help in jump starting his car and the woman agreed. White entered the woman's car and accompanied her to the parking lot where the car White had stolen was parked. White opened the trunk but said there were no jumper cables and requested that the woman

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take him to a gas station. The woman acquiesced, and upon their arrival at the gas station, White changed his mind and requested that she take him to a tavern. She complied, but at this time White again changed his mind and requested that he be taken to his home. The woman entered an interstate highway heading downtown, whereupon White pulled a knife and identified himself as an escaped prisoner. At this time, he ordered her to drive him to Chicago, and she complied. During the course of the trip White held the butcher knife in his hand. After crossing into Illinois, the woman escaped by rolling out of the auto onto the interstate highway while the car was travelling at an estimated speed of 55 m.p.h. White gained control of the woman's car and drove it to a gas station at the Highland, Illinois exit.

Upon arriving at the gas station, White encountered the station's lone attendant, a man in his sixties who suffered from respiratory (breathing) problems. White asked the attendant where the attendant's car was and the attendant stated his wife had dropped him off at work. Upon learning this fact, White directed the attendant at knife point to drive the Washington University employee's car toward Indianapolis. White and the attendant arrived in Indianapolis at about 2 a.m. on June 8, 1988, and checked into a motel. White tied the gasoline attendant up in the motel room and he departed from the motel at 9 a.m. that same morning.

Shortly thereafter the F.B.I. learned that White might be headed toward Ft. Wayne, Indiana. The F.B.I. and Indiana State Police arrived at an address in Ft. Wayne and discovered the reported stolen car of the Washington University employee, but White was not at the scene. Later, when an individual matching White's description entered the car, one of the agents approached the car and identified himself as an F.B.I. agent. At this time White jumped into the stolen car and started out on a high-speed chase (20 minutes) through Ft. Wayne residential areas at speeds approaching 80 to 90 m.p.h. During the chase White ran red lights and stop signs, drove on sidewalks, in and out of yards and side-swiped other vehicles while endangering the lives of three pedestrians. He also endangered the life of a motorcycle officer when he forced the officer to swerve to avoid colliding with him. Fearing possibly fatal injuries to innocent pedestrians, as well as law enforcement personnel, the Ft. Wayne police officer in command gave one of the officers permission to ram White in the stolen car. The officer did so, forced the car to flip over and left it standing on end. Thereupon, roughly twenty officers jumped from their vehicles and drew their weapons as White was exiting the car. White surrendered at this time. In a statement given to officers following his arrest, White admitted to kidnapping the woman at Washington University but made no mention of the kidnapping of the Illinois gas station attendant.

II.

This case involves the review of a district court's application of the United States Sentencing Commission Guidelines (the "Guidelines") in a sentencing determination under the Sentencing Reform Act of 1984. "We review a district court's factual findings in determining an appropriate criminal sentence for clear error. 18 U.S.C. Sec. 3742(e); United States v. Herrera, 878 F.2d 997, 999-1000 (7th Cir.1989)." United States v. Jordan, 890 F.2d 968, 972 (7th Cir.1989). Each of the Guidelines application questions presented involve "essentially questions of fact for the district court to resolve from a variety of sources." Id. "[W]e will affirm the district court if it correctly applied the Guidelines to findings of fact that do not leave us ' "with the definite and firm conviction that a mistake has been committed." ' Herrera, 878 F.2d at 1000 (citations omitted)." Jordan, 890 F.2d at 972.

III.

White's initial challenge to the district court's application of the guidelines centers upon the court's addition of a two level adjustment for obstruction of justice under Guidelines Section 3C1.1 to the calculations

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of the offense level on each of the three counts upon which White was sentenced. In applying this adjustment the court relied upon White's continuing flight from authorities, especially his high-speed chase when threatened with apprehension in Ft. Wayne, Indiana. White argues that the flight alone cannot provide a basis for application of the obstruction of justice adjustment. Instead, White urges that the obstruction of justice adjustment requires some type of interference with an ongoing state criminal investigation or judicial proceeding (i.e., destruction of evidence relevant to an investigation).

Although flight from or resistance to a lawful arrest is not one of the specifically enumerated examples of obstruction of justice noted in the Sentencing Commission's Application Note 1 accompanying Sec. 3C1.1 of the Guidelines, the Commission's failure to include this type of conduct is neither decisive nor conclusive. The Application Note in clear and unambiguous language states that "[t]he following conduct, while not exclusive, may provide a basis for applying [the obstruction of justice] adjustment." Sentencing Guideline Sec. 3C1.1, comment. (n. 1) (emphasis added). Cf. United States v. Stokley, 881 F.2d 114, 116 (4th Cir.1989) (In construing the Application Note to Guideline Section 1B1.1 defining "physically restrained" the court noted that "[b]y use of the words 'such as,' it is apparent that 'being tied, bound or locked up' are listed by way of example rather than limitation"). The drafters of the commentary to the Sentencing Guidelines recognized the obvious inability of any group drafting guidelines to encompass and list each and every example of obstruction of justice, and we do not believe that their failure to include "flight from arresting officers" as an example of conduct constituting obstruction of justice is either persuasive or particularly...