U.S.A. v. Boucha

Decision Date25 October 2000
Docket NumberNo. 99-1812,99-1812
Citation236 F.3d 768
Parties(6th Cir. 2001) United States of America, Plaintiff-Appellee, v. Parnell Harold Boucha, Defendant-Appellant. Argued:
CourtU.S. Court of Appeals — Sixth Circuit

Appeal from the United States District Court for the Western District of Michigan at Grand Rapids. No. 98-00203, David W. McKeague, District Judge.

Paul L. Nelson, FEDERAL PUBLIC DEFENDERS OFFICE, Grand Rapids, Michigan, for Appellant.

Andrew B. Birge, Janice Kittel Mann, ASSISTANT UNITED STATES ATTORNEY, Grand Rapids, Michigan, for Appellee.

Before: DAUGHTREY and CLAY, Circuit Judges; RUSSELL, District Judge*.

OPINION

RUSSELL, District Judge.

Parnell Boucha pleaded guilty to eight counts of armed bank robbery and an additional count of using a firearm in a crime of violence. It is undisputed that during each robbery, Boucha would demand keys to a nearby automobile from one of the bank employees and then use the vehicle as his getaway car. Boucha never forced a teller to leave the bank building or to ride with him. At sentencing, the district court added two levels to Boucha's base offense level in each count of bank robbery, pursuant to the carjacking enhancement of USSG §2B3.1(b)(5). The district judge reached this result after objection by Boucha. Boucha now appeals the application of that provision in his case, claiming he did not take the vehicles "from the person or presence" of the victims, as the carjacking enhancement in the guidelines requires. Following the lead of our sister circuits, we hold the defendant's conduct constituted carjacking and affirm the district court's sentencing order.

BACKGROUND

Between May and October of 1998, Parnell Boucha committed eight armed bank robberies in western Michigan. In each case, Boucha would wait until most customers had left the bank. After the bank appeared empty, Boucha would enter with his face and head covered, wearing latex gloves and carrying a handgun. He would announce the robbery, brandish a weapon and leap over the counter to watch over the tellers as they placed money into bags he provided. After gathering the money, he would demand the keys to a bank employee's car parked in the bank parking lot. He would then order everyone in the bank to sit on the floor while he drove the employee's car to a nearby prearranged location where he would leave the stolen vehicle undamaged and escape in his own car.

A grand jury indicted Boucha on eight counts of armed bank robbery, eight counts of using and carrying a firearm in relation to a crime of violence, being a felon in possession of a firearm, possession of a firearm with an obliterated serial number and possession of a small amount of heroin. Pursuant to a plea agreement, Boucha pleaded guilty to the eight counts of bank robbery and a single count of using and carrying a firearm in relation to a crime of violence. The other charges were dismissed. The agreement provided Boucha should expect a total sentence of 240-258 months of imprisonment and allowed Boucha to set aside the agreement should the sentence exceed this range.

The presentence investigation report ("PSR") included a two-level enhancement to each of the eight bank robbery counts for carjacking, pursuant to USSG § 2B3.1(b)(5). Boucha objected to the inclusion of carjacking and the correlative enhancement in the PSR, and repeated his objection at the sentencing hearing. The prosecution did not dispute Boucha's objection.

Despite Boucha's unopposed argument, the district court denied Boucha's objection and adopted the recommendation of the PSR, applying the enhancement. The resulting sentencing range was 295-353 months of imprisoment, thus exceeding the plea agreement range. Accordingly, the court gave Boucha the option of setting aside the agreement and proceeding to trial. After consultation with his attorney, Boucha decided to proceed with the sentencing even though the sentencing range exceeded the original projection. The court subsequently sentenced Boucha to a total of 318 months of imprisonment1. Boucha timely filed a notice of appeal pursuant to Fed.R.App.P. 4(a).

On appeal Boucha questions only whether the district court properly applied the carjacking enhancement in Boucha's case. The government no longer opposes application of the enhancement and argues in support of the district court's opinion.

STANDARD

A district court's construction of the sentencing guidelines is a question of law which this Court reviews de novo. United States v. Bazel, 80 F.3d 1140, 1141 (6th Cir. 1996).

DISCUSSION

Boucha argues that the application of the carjacking enhancement found in U.S. Sentencing Guidelines Manual §2B3.1(b)(5)(1998), is not appropriate in this case because Boucha did not take vehicles in the immediate presence of the owner. This is a question of first impression in this Circuit.

Through 18 U.S.C. § 2119, Congress created a specific federal offense for carjacking. Following § 2119, the United States Sentencing Commission added a carjacking enhancement to USSG § 2B3.1. § 2B3.1 of the 1998 Sentencing Guidelines provides the base offense level and specific offense enhancements for robbery. Under subsection (b)(5), the Sentencing Guidelines instruct courts to apply a two-level increase when an offense involves carjacking. The only reference to this subsection comes in the Application Notes of the Commentary to § 2B3.1. Note 1 states that "'[c]arjacking' means the taking or attempted taking of a motor vehicle from the person or presence of another by force and violence or by intimidation." USSG § 2B3.1, comment. (n.1).

No federal court has addressed the meaning of "person or presence" as used within this section of the Sentencing Guidelines. The Eleventh Circuit, however, recently stated in dicta that the Sentencing Commission did not necessarily intend the language of 2B3.1(b)(5) to mirror the federal carjacking statute as it neither referenced it directly nor amended it when Congress amended it to add a specific intent requirement. See United States v. Bates, 213 F.3d 1336, 1339 (11th Cir. 2000). That case emphasized that one not charged with violating the statute but who has his or her sentence enhanced under § 2B3.1(b)(5) may only appeal to the language of the guidelines. Id. at 1340. Despite this ruling by the Eleventh Circuit, it seems unreasonable not to look to other circuits' interpretation of "person or presence" in the context of § 2119, the federal carjacking statute, as the Sentencing Guidelines mirror this portion of the federal statutory language.

Six circuits have considered the issue of "person or presence" in the federal carjacking statute. See United States v. Edwards, 231 F.3d 933 (5th Cir. 2000); United States v. Brown, 200 F.3d 700 (10th Cir. 1999), cert. denied, 120 S.Ct. 1213, 145 L.Ed.2d 1114, and, 120 S.Ct. 1706, 146 L.Ed.2d 509 (2000); United States v. Moore, 198 F.3d 793 (10th Cir. 1999), cert. denied, 120 S.Ct. 1693, 146 L.Ed.2d 499 (2000); United States v. Kimble, 178 F.3d 1163 (11th Cir. 1999), cert. denied, 120 S.Ct. 806, 145 L.Ed.2d 678 (2000); United States v. Lake, 150 F.3d 269 (3d Cir. 1998); United States v. Perez-Garcia, 56 F.3d 1 (1st Cir. 1995); United States v. Murray, 56 F.3d 74 (9th Cir. 1995); United States v. Burns, 701 F.2d 840 (9th Cir. 1983). In each case, the court found a carjacking violation had occurred even though the charged defendant took the keys from the victim while the victim was away from his or her car.

The Ninth Circuit first decided this issue in United States v. Burns, 701 F.2d 840 (9th Cir. 1983). In Burns, the defendant approached the victim in a smoke shop and demanded the keys to the victim's car at gunpoint. Burns, 701 F.2d at 840. After the victim told Burns that the keys were in the car, Burns left the smoke shop and stole the keys and the car. Id. Burns later contended that he did not take the car from the victim's "person or presence," since the car and the keys were outside the building. Id. The court disagreed. The district court had instructed the jury that property is in the presence of a person if it is "so within his reach, inspection, observation or control, that he could if not overcome by violence or prevented by fear, retain possession of it." Id. at 843. The Ninth Circuit concluded that the cars and keys were effectively within the victim's presence. Id. The Ninth Circuit re-affirmed and expounded on Burns in its unpublished decision in United States v. Murray, 56 F.3d 74 (9th Cir. May 11, 1995), analogizing "person or presence" in the carjacking statutes to principles traditionally applied in robbery cases. Id.

The First Circuit next considered the "person or presence" language of the carjacking statute in United States v. Perez-Garcia, 56 F.3d 1 (1st Cir. 1995), cited for comparison in United States v. Moore, 73 F.3d 666, 668 (6th Cir. 1996).Perez-Garcia differs from the case at bar as the gunman not only took the victim's keys at gunpoint, but also forced her to ride in the car with him. Nevertheless, the reasoning of the First Circuit remains applicable. The Perez-Garcia Court noted that neither the carjacking statute nor the robbery statute upon which Congress based § 2119 defined "from the person or presence." Perez, 56 F.3d at 3. The court noted that "[c]ourts generally agree that taking from a victim's person is understood to include the common law conception of taking from a victim's presence." Id.; see e.g., Collins v. McDonald, 258 U.S. 416, 420, 42 S.Ct. 326, 66 L.Ed. 692 (1922) (finding that "taking property from the presence of another feloniously and by putting him in fear is equivalent to taking it from his personal protection and is, in law, a taking from the person"). The court then concluded that taking property from the personal protection of another by fear amounts to a personal taking sufficient to satisfy the robbery and carjacking statutes. Perez, 56 F.3d at 3....

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