U.S. v. Barber

• Decision Date: 23 August 1996
• Docket Number: Nos. 95-5238,95-5250,s. 95-5238
• Citation: 93 F.3d 1200
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Anthony D. BARBER, Defendant-Appellant. UNITED STATES of America, Plaintiff-Appellee, v. David L. HODGE, Jr., Defendant-Appellant.
• Court: U.S. Court of Appeals — Fourth Circuit

Page 1200

93 F.3d 1200

UNITED STATES of America, Plaintiff-Appellee, v. Anthony D. BARBER, Defendant-Appellant.

UNITED STATES of America, Plaintiff-Appellee, v. David L. HODGE, Jr., Defendant-Appellant.

Nos. 95-5238, 95-5250.

United States Court of Appeals Fourth Circuit.

Argued May 10, 1996.

Decided Aug. 23, 1996.

Opinion Vacated On Oct. 10, 1996.

ARGUED: George Alan DuBois, Assistant Federal Public Defender, Raleigh, North Carolina, for Appellants. John Samuel Bowler, Assistant United States Attorney, Raleigh, North Carolina, for Appellee. ON BRIEF: William Lee Davis, III, Lumberton, North Carolina, for Appellant Hodge. Janice McKenzie Cole, United States Attorney, Paul S. Wilson, Special Assistant United States Attorney, Office of the Staff Judge Advocate, Fort Bragg, North Carolina, for Appellee.

Before WIDENER and MURNAGHAN, Circuit Judges, and PHILLIPS, Senior Circuit Judge.

Vacated and remanded by published opinion. Senior Judge PHILLIPS wrote the opinion, in which Judge WIDENER and Judge MURNAGHAN joined.

OPINION

PHILLIPS, Senior Circuit Judge:

Appellants Anthony Barber and David Hodge stand convicted of second-degree murder on the basis of pleas of guilty in the district court. As part of their plea agreements, the government agreed to dismiss additional charges of robbery and felony murder on which both men had been indicted. The district court accepted each defendant's plea agreement but, at sentencing, departed upward from the otherwise applicable Guidelines range. Barber and Hodge appeal their respective sentences on the grounds that the district court's justifications for departure were invalid in several different ways. Finding merit in some but not all of Barber's and Hodge's contentions, we vacate both sentences and remand for resentencing.

I.

Barber was a college student in Fayetteville, North Carolina with no prior criminal record when he began working as a driver for a drug dealer named Terrell Fields in early 1994. Apparently, Fields failed to pay Barber for his services and on several occasions threatened Barber and his family. But, whatever Barber's grievances with Fields may have been, Barber eventually admitted in a post-plea statement that he and Hodge had planned to murder Fields on the evening of April 14. To that end, Barber had bought a shotgun and picked up Hodge on the appointed date just before he was to take Fields to buy drugs. Hodge had then loaded the gun and hidden it under the front seat of Barber's car. Barber paged Fields, who met them at a gas station. The three of them left the gas station with Barber driving, Fields in the passenger seat, and Hodge in the back seat. Not long into the trip, Hodge took out the gun and shot Fields in the back of the head. At some point, either Hodge or Barber shot Fields again in the back of the head. They disposed of the body on Fort Bragg, where Barber also went through Fields's pockets and found about $50 that he and Hodge split.

Within a few days Barber and Hodge were arrested for the murder of Fields. Hodge promptly provided the government with a written statement in which he admitted to shooting Fields but claimed that the shooting was an accident. He also claimed that, after he had accidentally fired the first shot, Barber pulled over, saw that Fields was shaking, took the gun, and fired a second shot into the back of Fields's head. Finally, Hodge said that Barber searched Fields and found the money that he and Barber split.

Since the crime was committed at least in part on federal territory (Fort Bragg), Barber and Hodge were taken into federal custody. The government charged both men with conspiracy to commit murder, 18 U.S.C. § 1117, felony murder, 18 U.S.C. §§ 1111 & 2, use of a firearm in connection with each of those crimes, 18 U.S.C. § 924(c)(1), and robbery, 18 U.S.C. § 2111. However, apparently accepting that its evidence of the robbery at that point was weak, the government agreed to dismiss the robbery, felony murder, and other charges in return for each defendant's agreement to plead guilty to second-degree murder. The plea agreement contained no promises regarding either defendant's ultimate sentence.

Having agreed to plead guilty, Barber then provided the government with the statement in which he admitted to planning the murder with Hodge and to robbing Fields. All agree that that self-incriminating statement was not available for the district court to use in sentencing Barber, see U.S.S.G. § 1B1.8, but was available to be used against Hodge.

At sentencing, the district court accepted the initial calculations that placed each defendant's offense level at 30 and guideline range at 97-121 months but then departed upward by seven offense levels to 37 and a range of 210-262 months. The grounds for the departure in Hodge's case were premeditation, the use of a dangerous instrumentality in the crime (the gun), and the robbery. In Barber's case, the grounds were the same except for premeditation, which the court could not find with regard to Barber, since the only evidence of premeditation was in the protected statement that Barber had made after the conclusion of his plea agreement. In each case, the court ultimately imposed a sentence of 210 months.

These appeals followed.

II.

The appellants challenge the district court's departures in their respective cases on several grounds. Each claims that the dangerous-instrumentality grounds were unavailable to the district court because the use of a gun to commit second-degree murder is a circumstance that was considered by the Sentencing Commission in establishing the offense levels for murder. Hodge claims that the premeditation ground was unavailable as to him for similar reasons. Each also claims that the robbery was not available to the district court as grounds for departure because the Guidelines do not permit departures on the basis of conduct underlying counts that have been dismissed as part of a plea agreement. Finally, Barber claims that the only reliable evidence against him regarding the robbery is contained in his protected, § 1B1.8 statement and so could not be used against him. We preface our discussion of these several claims with a summary of the general principles of departure that govern most of the issues they raise.

A.

A sentencing court may not depart from an otherwise applicable guideline range simply because its own sense of justice would call for it. See Koon v. United States, --- U.S. ----, ----, 116 S.Ct. 2035, 2046, 135 L.Ed.2d 392 (1996) ("Before a departure is permitted, certain aspects of the case must be found unusual enough for it to fall outside the heartland of cases in the Guideline."). It may depart only when it has specifically found "that there exists an aggravating or mitigating circumstance of a kind, or to a degree, not adequately taken into consideration by the Sentencing Commission in formulating the guidelines ...," 18 U.S.C. § 3553(b), or when the Guidelines otherwise specifically provide for it, see, e.g., 18 U.S.C. § 3553(e) and U.S.S.G. § 5K1.1 (authorizing downward departures for substantial assistance to the government). As many cases have recognized and as the Guidelines specifically state, each guideline "carv[es] out a 'heartland,' a set of typical cases embodying the conduct that each guideline describes. When a court finds an atypical case, ... where conduct significantly differs from the norm, the court may consider whether a departure is warranted." United States Sentencing Commission, Guidelines Manual, 5-6 (1995); see also, e.g., Koon, --- U.S. at ---- 116 S.Ct. at 2044; United States v. Rivera, 994 F.2d 942, 947-49 (1st Cir.1993). The Commission intends departures to be rare, as rare as the Commission's own example of a fraud that involves physical injury. Guidelines Manual at 6. Where a circumstance has been adequately taken into account by the Commission in setting a guideline range, as most relevant circumstances have been, that circumstance cannot be used to justify a departure. Koon, --- U.S. at ---- - ----, 116 S.Ct. at 2043-46.

In determining whether particular conduct found at sentencing has been adequately considered by the Commission, a district court must carefully consider the nature of the offense(s) of which the defendant has actually been convicted. And it must do so only by considering how those offenses are treated in the guidelines, policy statements, and official commentary of the Commission. 18 U.S.C. § 3553(b). If the conduct at issue is typical of the offense of conviction or of the specific offense characteristics in the applicable guideline, in kind and degree, then, of course, there is no basis for concluding that the Commission failed adequately to consider that conduct. See, e.g., Koon, --- U.S. at ----, 116 S.Ct. at 2043 (where "the case is an ordinary one" the Commission has by definition adequately considered the circumstances and the district judge "must impose ... a sentence falling within the range of the applicable Guideline ..."); United States v. Harrison, 37 F.3d 133, 138 (4th Cir.1994) (holding "that the Commission did adequately consider the fact that a defendant may transfer a weapon with knowledge that it will be used to commit a drug-trafficking offense" and invalidating the district judge's departure on those grounds). Similarly, if the conduct is culpable on its own account but nevertheless legally irrelevant to the particular offense of which the defendant has actually been convicted, then, again, there is no basis for concluding that the Commission failed adequately to consider that conduct in setting offense levels. See United States v. Kelly, 1 F.3d 1137, 1139-41 (10th Cir.1993) (finding premeditation implicitly considered by the Commission when left absent from the guideline for second-degree murder); United States v. Kim, 896 F.2d 678, 686 (2d Cir.1990) (finding that "counterfeit money misconduct" would normally be insufficiently related to...