U.S. v. Checora

• Decision Date: 21 April 1999
• Docket Number: Nos. 97-4184,97-4192,97-4191,97-4190,s. 97-4184
• Citation: 175 F.3d 782
• Parties: 1999 CJ C.A.R. 2477 UNITED STATES of America, Plaintiff-Appellee, v. Gregory CHECORA, Warrenell Cuch, Bobby Redcap, and Reuben Cuch, Jr., Defendants-Appellants.
• Court: U.S. Court of Appeals — Tenth Circuit

Page 782

175 F.3d 782

1999 CJ C.A.R. 2477

UNITED STATES of America, Plaintiff-Appellee, v. Gregory CHECORA, Warrenell Cuch, Bobby Redcap, and Reuben

Cuch, Jr., Defendants-Appellants.

Nos. 97-4184, 97-4190, 97-4191, 97-4192.

United States Court of Appeals, Tenth Circuit.

April 21, 1999.

Julie George McPherson, Salt Lake City, Utah, for Defendant-Appellant Gregory Checora.

John Bruce Savage, Jr., Park City, Utah, for Defendant-Appellant Warrenell Cuch.

James C. Bradshaw, Salt Lake City, Utah, for Defendant-Appellant Bobby Redcap.

Jerome H. Mooney, III, Mooney Law Firm, P.C., Salt Lake City, Utah, for Defendant-Appellant Reuben Cuch, Jr.

Felice J. Viti and Richard MacDougal (David J. Schwendiman, United States Attorney, with them on the briefs), Salt Lake City, Utah, for Plaintiff-Appellee United States of America.

Before SEYMOUR, Chief Judge; PORFILIO, Circuit Judge; and TACHA, Circuit Judge.

PORFILIO, Circuit Judge.

Gregory Checora, Reuben Cuch, Warrenell Cuch, and Bobby Redcap all pled guilty to committing voluntary manslaughter while within Indian Country. Defendants beat their victim during a fight, dragged him to an abandoned house, slit his throat twice, and then placed a 360-pound stove on him to conceal the body. At sentencing, the district court enhanced each defendant's offense level because the victim was unusually vulnerable and physically restrained. The court also departed upward six levels for each defendant because of extreme conduct.

All defendants appeal from these Sentencing Guidelines increases. In addition, Warrenell Cuch challenges the restitution order in his case. Because the district court gave no principled reason for the extent of its upward departures, we remand for specific findings. We also vacate a portion of the restitution orders entered in this case. In all other respects, the sentences are affirmed.

I

On July 3, 1996, defendants Gregory Checora, age 19, Reuben Cuch, 16, Warrenell Cuch, 23, and Bobby Redcap, 18, were drinking beer and vodka with friends at the residence of Bonnie McKinley, the grandmother of Checora and Redcap. All four defendants had been drinking throughout the day and continued to do so into the evening. Sometime around midnight, the victim in this case, Benjie Murray, arrived at the McKinley residence and was invited to drink with the others. Murray had also been drinking throughout the day and was already intoxicated when he joined the group.

At some point during the early morning hours, Murray made some derogatory comments to Warrenell Cuch, and in retaliation Warrenell struck him in the face, triggering a minor fistfight. Checora and Reuben Cuch broke up the fight and tried to discourage further fighting. Nevertheless, Murray remained with the group, continued to drink, and continued to excoriate Warrenell Cuch. After a time, the fighting began anew and the beating of Murray escalated. Redcap joined Warrenell Cuch in the fighting. Both defendants punched Murray in the face several times. Eventually, the fighting ceased and more attempts were made to defuse the situation.

Nonetheless, for the third time, a fight broke out. During this fight, Murray accidentally struck Checora while attempting to defend himself. This enraged all four defendants to the point that they all joined in the fighting and all four began to beat Murray in earnest. Each of the defendants hit and kicked Benjie Murray about the head and body. Reuben Cuch and Bobby Redcap stomped on the victim's head several times with their shoes. At one point, Murray tried to run away, but Reuben and Bobby chased after him and tackled him to the ground. The beating then continued until Murray lay motionless. The district court found the three fighting incidents occurred during the course of one hour. ¹

Checora attempted to revive Murray with a wet washcloth but was unsuccessful. The defendants then dragged Murray, who was still alive but semi-conscious, to an abandoned house fifty feet east of the McKinley residence. They placed him face down on the ground. A discussion ensued about what should be done next. Redcap suggested they should cut Murray's throat. He obtained a steak knife and gave it to Warrenell Cuch. ² Murray attempted to get up but was unable to do so. Warrenell then lifted Murray's head by the hair and slit his throat twice with the knife.

Curious about whether the victim was still alive, Bobby Redcap then placed his hand over Murray's chest. He felt that Murray's heart seemed to stop beating and he announced to the others that Murray was dead. Checora and Reuben Cuch then illuminated the victim with a cigarette lighter and observed a pool of blood around his head. Approximately ten minutes later, following further deliberation, the defendants ³ placed a 360-pound iron stove on Murray's body in an effort to conceal him. The body remained under the stove until it was discovered four days later.

The subsequent autopsy indicated that Murray had suffered multiple fractures to the face and jaw consistent with blunt force trauma. He also incurred sharp force injuries on his neck and compressional injuries throughout his body. Murray's wounds were distorted to such an extent, however, due to the body's state of decomposition and extensive animal and insect activity, that the exact cause and time of death could not be determined. Accordingly, the report concluded that Murray suffered three types of injury--blunt, sharp, and compressional--and that these injuries, either separately or in combination, could have resulted in Murray's death.

All four defendants were indicted for second-degree murder and aiding and abetting while within Indian Country. The defendants chose to plead guilty to an information charging them with voluntary manslaughter and aiding and abetting while within Indian Country. At the sentencing hearing, each defendant's offense level calculation was identical. The district court began with a base offense level of 25. See 1995 U.S.S.G. § 2A1.3. The court then added two offense levels because Benjie Murray was a vulnerable victim, see id. § 3A1.1(b), and two offense levels because he had been physically restrained in the course of the offense, see id. § 3A1.3. The court next decreased the offense level by three for acceptance of responsibility. See id. § 3E1.1(b). Finally, the district court departed upward six levels because it found the defendants' conduct to be "unusually heinous, cruel, brutal, or degrading to the victim." Id. § 5K2.8. The final calculation resulted in a total offense level of 32. Ultimately, the court sentenced each defendant to 120 months (the statutory maximum), 36 months of supervised release, and restitution in the amount of $10,165. This appeal ensued.

II

Defendants first argue the district court erred in applying the vulnerable-victim enhancement found in 1995 U.S.S.G. § 3A1.1(b). Section 3A1.1(b) provides that if the "defendant knew or should have known that a victim of the offense was unusually vulnerable due to age, physical or mental condition, or that a victim was otherwise particularly susceptible to the criminal conduct, increase by 2 levels." Id. The district court found that Murray was vulnerable because he "was small, he was vulnerable because he was outnumbered, he was vulnerable because he was drunk and it's clear to me that he was not in a situation where he could run away." It also found "[Murray] had minimal ability to fight back or defend himself. He was small, 5 feet 3 inches, weighed less than 150 pounds, there were four assailants." The defendants were 5' 5" 180 pounds, 5' 10" 190 pounds, 5' 7" 196 pounds, and 5' 10" 160 pounds. The court further concluded that the defendants "knew [Murray] was intoxicated" or "certainly should have known that he was a vulnerable victim."

Defendants advance several challenges to the district court's application of this enhancement. We review challenges to the district court's underlying factual findings for clear error. See United States v. Hardesty, 105 F.3d 558, 559 (10th Cir.1997). But to the extent the defendants ask us to interpret the Guidelines or hold the facts found by the district court are insufficient as a matter of law to warrant an enhancement, we must conduct a de novo review. See United States v. Shumway, 112 F.3d 1413, 1422 (10th Cir.1997); United States v. Roberts, 898 F.2d 1465, 1468-69 (10th Cir.1990). Performing the necessary review, we find no error in the district court's decision to apply the vulnerable-victim enhancement.

Defendants first contend they were too drunk to know that Murray was vulnerable by virtue of his intoxication. This argument misses the mark. Whether the defendants actually knew Murray was intoxicated is not necessarily dispositive. The vulnerable-victim enhancement is also appropriate if the defendant "should have known that a victim of the offense was unusually vulnerable ... [or] otherwise particularly susceptible to the criminal conduct." 1995 U.S.S.G. § 3A1.1(b) (emphasis added). The district court found this aspect satisfied, and we conclude that finding is supported by the record.

Murray arrived at Ms. McKinley's residence already intoxicated and continued to drink throughout the early morning hours. Defendants were not so completely inebriated that they had no ability to comprehend Murray's condition. Cf. United States v. Salemi, 26 F.3d 1084, 1087-88 (11th Cir.1994) (upholding vulnerable-victim enhancement even where defendant's mental illness and emotional condition may have clouded his ability to perceive the victim's particular vulnerability). Furthermore, the defendants' alleged cognitive incapacitation was of their own doing. Cf. United States v. Luscier, 983 F.2d 1507, 1514 (9th Cir.1993) (upholding vulnerable-victim enhancement where the defendant was responsible for his own intoxication). Based on these facts, we conclude the district court did not clearly err when it found the defendants should have been...