U.S. v. Bos

• Citation: 917 F.2d 1178
• Decision Date: 26 October 1990
• Docket Number: No. 90-30014,90-30014
• Court: United States Courts of Appeals. United States Court of Appeals (9th Circuit)
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Bernard D. BOS, Defendant-Appellant.

Page 1178

917 F.2d 1178

UNITED STATES of America, Plaintiff-Appellee, v. Bernard D. BOS, Defendant-Appellant.

No. 90-30014.

United States Court of Appeals Ninth Circuit.

Argued and Submitted Sept. 12, 1990.

Oct. 26, 1990.

Gregory A. Jackson, Jackson & Rice, Helena, Mont., for defendant-appellant.

James Seykora and Bernard F. Hubley, Asst. U.S. Attys., Helena, Mont., for plaintiff-appellee.

Appeal from the United States District Court for the District of Montana.

Before WRIGHT, SCHROEDER and NORRIS, Circuit Judges.

WILLIAM A. NORRIS, Circuit Judge:

Appellant Bos, a dentist, admitted conspiring to blow up his failing record and tape store in order to recover on an insurance policy. Conspiring with Mr. Mahlman, appellant increased his policy limits and then made two attempts to ignite the building by leaving a candle burning and the gas on. These attempts failed. An attempt to use a pipe bomb backfired and seriously injured Mr. Mahlman, who eventually informed the authorities.

Appellant pled guilty to one count of mail fraud, and stipulated to the above facts in his plea agreement. The district court sentenced him using the arson guidelines, instead of the mail fraud guidelines, resulting in a sentence of five years--the statutory maximum for mail fraud. Appellant appeals the determination of his sentence, as well as the district court's refusal to give him a continuance for a psychological evaluation.

I

The district court's application of the sentencing guidelines is reviewed de novo. United States v. Lockard, 910 F.2d 542, 543 (9th Cir.1990). The district court's factual findings are reviewed for clear error. United States v. McConney, 728 F.2d 1195, 1202-04 (9th Cir.) (en banc) cert. denied, 469 U.S. 824, 105 S.Ct. 101, 83 L.Ed.2d 46 (1984). The district court's refusal to depart downward from the guidelines is not subject to review. United States v. Morales, 898 F.2d 99 (9th Cir.1990). A district court's decision regarding a motion for a continuance is reviewed for an abuse of discretion. United States v. Pederson, 784 F.2d 1462, 1464 (9th Cir.1986).

II

In sentencing appellant on the basis of the arson guideline, instead of the mail fraud guideline, the district judge relied on Sec. 1B1.2(a) of the guideline manual, which provides that "in a case of conviction by a plea of guilty or nolo contendere containing a stipulation that specifically establishes a more serious offense than the offense of conviction, determine the offense guideline section in Chapter Two most applicable to the stipulated offense." The district court determined that the stipulated facts ¹ amounted to arson, and used the corresponding section of the guidelines (Sec. 2K1.4) to calculate the offense level.

The district court's decision is in accord with that of the Fifth Circuit in United States v. Garza, 884 F.2d 181 (5th Cir.1989) (although defendant pled guilty to two "telephone counts," the district court properly applied the guidelines for conspiracy to possess marijuana, because defendant had stipulated to facts that established the more serious offense, and the district court's sentence still fell within the statutory maximum for the offenses of conviction). It also accords with the commentary to the mail fraud section, which states:

In certain ... cases, the mail or wire fraud statutes, or other relatively broad statutes, are used primarily as jurisdictional bases for the prosecution of other offenses. For example, a state arson offense where a fraudulent insurance claim was mailed might be prosecuted as mail fraud. Where the indictment or information setting forth the count of conviction (or a stipulation as described in Sec. 1B1.2(a)) establishes an offense more aptly covered by another guideline, apply that guideline rather than Sec. 2F1.1.

U.S.S.G. Sec. 2F1.1, Application Note # 13. ²

Appellant makes several other arguments, however. First, he invokes United States v. Martin, 893 F.2d 73 (5th Cir.1990), which held that the district court must expressly find on the record that the stipulation accompanying the guilty plea " 'specifically establishes a more serious offense' than the offense of conviction." Id. at 75. In making this finding, the Fifth Circuit requires the district court to follow Fed.R.Crim.P. 11(f) ³ and "satisfy itself that a 'factual basis for each essential element of the crime [has been] shown.' " Id. (quoting United States v. Montoya-Camacho, 644 F.2d 480, 485 (5th Cir.1981)).

Appellant argues that the record here does not support a finding that he committed arson under the federal statute, because there are no facts to show that the record and tapes store was "used in interstate or foreign commerce or in any activity affecting interstate or foreign commerce." 18 U.S.C. Sec. 844(i). The United States argues that Congress intended to include any business property, however minimal the effect on commerce.

The question of whether or not the record store affected interstate commerce is, however, beside the point. The interstate commerce requirement relates to jurisdiction, not the seriousness of the crime, and therefore should not matter in determining the range of a defendant's punishment under the guidelines, as long as the United States has jurisdiction over the crime of conviction, and as long as the sentence given does not exceed the statutory maximum for the crime of conviction. As the application notes to the mail fraud guidelines above make clear, conduct establishing a state law offense of arson would be sufficient to allow the application of the arson guideline. This case need not be remanded for a finding that the facts establish the other elements of arson, as that is clear on the record.

III

Appellant also argues that if the district court found that the crime to which he pled did not accurately reflect the seriousness of his conduct, the court should have refused to accept the plea and should have given the appellant an opportunity to withdraw it, instead of sentencing appellant under the arson guideline after he had pled only to mail fraud. The guidelines themselves send contradictory messages on this score, requiring courts to accept only pleas that reflect the seriousness of the conduct, U.S.S.G. Sec. 6B1.2, and on the other hand providing, as above, for the case in which the crime of conviction does not reflect the seriousness of the conduct.

The Sixth Circuit, in United States v. Silverman, 889 F.2d 1531 (6th Cir.1989) required that the district court determine whether its acceptance of a plea bargain was overridden by its use in sentencing of a defendant's past conduct that the government had agreed not to prosecute. The Silverman court suggested that the district court should not have accepted the plea bargain, if the agreement foreclosed the use in sentencing of relevant past history. Appellant here suggests that Silverman requires remand, so that the court below can either resentence under the mail fraud guideline, or refuse the plea bargain.

Silverman, however, involved the judge's use of facts outside the plea agreement. That is not the case here. Not only did appellant stipulate to the facts used in determining his sentence, but the plea agreement explicitly provides that "sentencing in this matter shall be left to the sound discretion of the Court pursuant to sentencing guidelines." Plea Agreement at 6. The agreement did not provide that appellant would be sentenced under the mail fraud guidelines. Appellant, therefore, had full knowledge of the possible consequences of his plea, including the maximum penalty, as required by Fed.R.Crim.P. 11(c)(1). Even if both the appellant and the government had assumed that the mail fraud guidelines applied, such a mutual mistake of law is not grounds for invalidating the plea bargain. United States v. Zweber, 913 F.2d 705 (9th Cir.1990). Moreover, appellant has not moved to withdraw his plea under Fed.R.Crim.P. 32(d). Under these facts, there was no need for the court to refuse to accept the agreement.

A decision that the sentencing court may only accept plea bargains in which the defendant pleads guilty to the most serious offense established by the stipulated facts would discourage plea bargains like this one, in which the defendant seeks to limit his liability to the statutory maximum of a lesser included offense, and the government requires a stipulation of facts in order to insure that the defendant is sentenced at the high end of the possible guideline sentence. The limit under the guidelines is that the plea agreement must not frustrate the purposes of sentencing. U.S.S.G. Sec. 6B1.2. This case does not trangress that limit.

IV

Under the arson guideline, the district court enhanced the base level offense by 18 levels because defendant "knowingly created a substantial risk of death or serious bodily injury." U.S.S.G. Sec. 2K1.4(b)(1). Appellant argues that this enhancement was improper because 1) it conflicts with the arson statute, and 2) there was no factual basis for the court's finding of risk.

The probation report recommended the enhancement because of the injury to Mr. Mahlman. Under 18 U.S.C. Sec. 844(i), which provides for an enhancement of the maximum penalty for arson from ten to twenty years "if personal injury results to any person," the Tenth Circuit has held that injuries to coconspirators do not count. United States v. Schwanke, 598 F.2d 575 (10th Cir.1979).

The court made clear at sentencing, however, that it was not relying on the injury to Mr. Mahlman. Noting that the guideline enhancement required only a "substantial risk of death or serious bodily injury," and not actual injury, the court stated: "as far as I'm concerned, the act of placing an explosive device in a commercial building located near the public streets and other businesses where there is pedestrian access poses a substantial risk of death or serious bodily injury." R.T. 5. Appellant claims there was no factual basis for this...