U.S. v. Bougie, 01-1764MN.

• Decision Date: 30 January 2002
• Docket Number: No. 01-1764MN.,01-1764MN.
• Citation: 279 F.3d 648
• Parties: UNITED STATES of America, Appellee, v. Roy Patrick BOUGIE, Appellant.
• Court: U.S. Court of Appeals — Eighth Circuit

279 F.3d 648

UNITED STATES of America, Appellee, v. Roy Patrick BOUGIE, Appellant.

No. 01-1764MN.

United States Court of Appeals, Eighth Circuit.

Submitted: November 13, 2001.

Filed: January 30, 2002.

Virginia Guadalupe Villa, Federal Public Defender, Minneapolis, MN, argued, for appellant.

Mark R. Pitsenbarger, Asst. U.S. Atty., Minneapolis, MN, argued, for appellee.

Before BYE, RICHARD S. ARNOLD, and BEAM, Circuit Judges.

RICHARD S. ARNOLD, Circuit Judge.

Roy Patrick Bougie pleaded guilty to a one-count indictment of car-jacking in violation of 18 U.S.C. § 2119(1). At the sentencing hearing, the District Court departed upward from the plea agreement's suggested offense level of 26 to an offense level of 29. The day after the sentencing hearing, the District Court issued a written "Statement of Reasons" for the upward departure. The Court stated that it had departed upward because multiple victims were involved in the crime. However, the "Statement of Reasons" also contained factual statements that were not based on any evidence in the sentencing record.

Mr. Bougie appeals the sentence imposed by the District Court. He contends that although the District Court had the authority to increase the sentence on the basis of the presence of multiple victims, the Court lacked the authority to depart upward by relying on facts that were not contained in the record. We agree. Therefore, the sentence is vacated, and the case is remanded to the District Court for re-sentencing.

I.

On April 26, 2000, a criminal complaint was filed against Roy Patrick Bougie. Defendant was charged in the complaint with car-jacking and use of a firearm during the offense. These charges were based on a series of events that began when defendant attempted to steal a car from the Northtown Mall parking lot and rob the owner of the vehicle by threatening her at gunpoint. When defendant determined that he could not drive the vehicle, he entered a residential area by foot and threatened two other individuals at gunpoint. Pre-sentence Report at 1(PSR). Defendant fired the gun at each of the victims. A fourth individual followed defendant from Northtown Mall and witnessed these events. Though he saw that defendant was armed, he was not fired upon or threatened at gunpoint.

A federal grand jury returned a one-count indictment of car-jacking in violation of 18 U.S.C. § 2119. Defendant was arraigned and entered a plea of guilty in November 2000. The plea agreement recommended an offense level of 26.¹ The suggested time of imprisonment in the plea agreement was 63-78 months (5 years and 3 months — 6 years and 6 months).

In March 2001, defendant filed a motion for a downward departure from the sentence contained in the plea agreement. He argued that a downward departure was warranted because of his diminished capacity and the post-offense rehabilitation that he had received. See U.S.S.G. §§ 5K2.13 and 5K2.0 (1999). After the government filed a motion opposing the downward departure, the District Court notified the parties that it was considering an upward departure based on the presence of multiple victims and conduct underlying a charge that had been dismissed as part of the plea agreement.² See U.S.S.G. §§ 5K2.0 and 5K2.21 (2000). The day the parties received notification of the possibility of an upward departure, the Court departed upward from the sentence contained in the plea agreement. The departure increased the offense level to 29 and the criminal history category to II. This action increased the sentencing range to 97-121 months of imprisonment (8 years and 1 month — 10 years and 1 month). Defendant was sentenced to 10 years of imprisonment (120 months). The Court stated that it "ha[d] not accepted the plea agreement because it [was] not satisfied that the agreement accurately reflects the seriousness of the defendant's offense behavior...." Sentencing Tr. at 16.

II.

The day after defendant was sentenced, the Court issued a written "Statement of Reasons" for the upward departure. The Court stated that the robbery guidelines applicable to defendant's crime did not take into account multiple victims, and that a departure was necessary because the crime involved more than one victim. Because the guidelines at the time defendant committed the offense did not include counts dismissed as part of a plea agreement as a basis for departure, the Court did not depart upward on that basis.³

In the Statements of Reasons, the Court adopted as its findings of fact the factual statements contained in the pre-sentence report. (The defendant did not contest the PSR.) On the basis of these facts, four victims were identified. Defendant's actions towards each particular victim were recounted briefly in the Statement of Reasons. For example, with regard to the fourth victim, Kurt Robinson, the Court stated that "[t]he defendant then took the gun out of his waistband and brandished it." Statement of Reasons for Imposing Sentence at 4. This fact can not be found in the plea agreement, in any admission of fact made during the plea hearing or charge, or in any evidence offered by or even alluded to by the government at the time of sentencing. Though the pre-sentence report does state that "Robinson observed the firearm," it does not state that defendant "brandished" the gun at him. PSR at 2.

A judge has discretion to depart from a sentence contained in a plea agreement. However, any "departure must be based on factual findings supported by the record." United States v. Fawbush, 946 F.2d 584, 586 (8th Cir.1991) (internal quotes and citations omitted). In instances when a defendant has not objected to "specific factual allegations contained in the PSR, a district court may accept the facts as true for purposes of sentencing." United States v. Young, 272 F.3d 1052, 1055 (8th Cir.2001) (citing United States v. Moser, 168 F.3d 1130 (8th Cir.1999)). These facts then may provide a justification for a...