U.S. v. Giacometti

• Decision Date: 01 July 1994
• Docket Number: No. 93-3167,93-3167
• Citation: 28 F.3d 698
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Michael GIACOMETTI, Defendant-Appellant.
• Court: U.S. Court of Appeals — Seventh Circuit

Page 698

28 F.3d 698

UNITED STATES of America, Plaintiff-Appellee, v. Michael GIACOMETTI, Defendant-Appellant.

No. 93-3167.

United States Court of Appeals, Seventh Circuit.

Argued June 8, 1994.

Decided July 1, 1994.

Patricia A. Tomaw, Office of U.S. Atty., Springfield, IL (argued), for plaintiff-appellee.

Joseph S. Miller, Michael J. Costello (argued), Costello Law Office, Springfield, IL, for defendant-appellant.

Before CUDAHY, ESCHBACH and FLAUM, Circuit Judges.

CUDAHY, Circuit Judge.

A confidential source tipped off DEA agents that defendant Michael Giacometti and his friend John Capranica were planning to go to Chicago on December 12-13, 1992 to buy cocaine. On December 13, Capranica and Giacometti left Springfield and drove to a residence near Chicago, where Giacometti spent 30 minutes inside. The two then headed back down Interstate 55 towards Springfield. Outside of Springfield, the car was pulled over for speeding. At the officer's request, Capranica got out and consented to a search of the car. Giacometti jumped into the driver's seat and sped off.

A high speed chase ensued, with marked squad cars following Giacometti for about 10 miles along local roads. Giacometti travelled up to 100 miles per hour on primarily two-lane highways, through the residential communities of Andrew and Cantrall, and along hilly roads with no shoulders, forcing about 30 cars off the road. He dodged a roadblock by swerving into a ditch, but made it back up to the roadway and proceeded neck and neck with a squad car. An officer testified that at some point, Giacometti threw cocaine out of the window. The chase ended when Giacometti crashed into a squad car.

Giacometti was arrested, and a search of his car yielded about 16.3 grams of cocaine in plastic bags, some of which had been ripped open. Giacometti and Capranica were indicted in a three count indictment alleging conspiracy to distribute cocaine in violation of 21 U.S.C. Secs. 846 and 841(a)(1); possession with intent to distribute cocaine in violation of 21 U.S.C. Sec. 841(a)(1); and assaulting or resisting a federal law enforcement officer in violation of 18 U.S.C. Sec. 111. On the weekend before trial, Giacometti pled guilty to Counts 1 and 3, and the government agreed to dismiss Count 2.

At sentencing, the district court applied U.S.S.G. Sec. 2A2.4 (Obstructing or Impeding Officers) to the assault count, resulting in a base offense level of 6. The offense level was enhanced 3 levels for use of a dangerous weapon (the automobile), U.S.S.G. Sec. 2A2.4(b)(1), and 2 levels for the victim's injuries (the police officer), U.S.S.G. Sec. 2A2.2(b)(3)(A), for a total offense level of 11.

The base offense level on the drug count was 22. The Pre-Sentence Report recommended a 2 level enhancement for obstruction of justice, U.S.S.G. Sec. 3C1.1, and a 2 level enhancement for reckless endangerment during flight, U.S.S.G. Sec. 3C1.2. At sentencing, the government argued that the reckless endangerment enhancement should not apply, since it concerned conduct partially covered by the resisting arrest count. The government also argued against an enhancement for obstruction of justice: although Giacometti threw some cocaine out of the window as he was driving, the government argued that this act had not impeded the investigation or prosecution of the case. ¹ The district court rejected both the Sec. 3C1.1 and Sec. 3C1.2 enhancements, and found that the adjusted offense level on the drug count was 22.

The offense level for both offenses combined was 22. U.S.S.G. Sec. 3D1.4. The district court gave a 2 level reduction for acceptance of responsibility since Giacometti had pled guilty, U.S.S.G. Sec. 3E1.1(b)(2), resulting in a final adjusted offense level of 20. The district court found that Giacometti had a criminal history category of III, resulting in a guideline range of 41-51 months.

The district court then departed upward 25% to 64 months, finding that the sentence did not reflect the seriousness of the offense. Upon a motion from the government, the district court then departed downward 10% to 58 months since Giacometti had rendered substantial assistance to the government. U.S.S.G. Sec. 5K1.1. He was also sentenced to 6 years of supervised release.

On appeal, Giacometti challenges the upward departure, arguing that the district court lacked the authority to depart. The district court may depart if it finds 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 that should result in a sentence different from that described." 18 U.S.C. Sec. 3553(b). We review de novo whether the stated grounds justify a departure. United States v. Willey, 985 F.2d 1342, 1349 (7th Cir.1993).

The district court departed upward because it found that Giacometti's reckless flight endangered innocent lives to a degree not reflected in the guidelines. The district court explained:

I believe that the defendant's conduct in his reckless flight to avoid arrest endangered the lives of at least 30 innocent people. I can't--I don't even want to imagine what could have happened if he had lost control of his automobile for one second or if some driver had not been able to remove their car from his path during this flight. And I don't think the guidelines in context of my findings here today, I don't think they adequately consider this factor. I believe that the situation the defendant created here is an aggravating and mitigating [sic] circumstances to a degree not adequately considered by the sentencing commission that should lead to a different result.

Giacometti argues that the Guidelines have already considered these factors in either Sec. 3C1.1 or Sec. 3C1.2, and thus the district court did not have authority to depart.

The conduct on which the district court relied to depart--Giacometti's high speed chase and the ensuing danger to bystanders--is clearly the sort of reckless behavior covered by Sec. 3C1.2. ² Courts facing similar circumstances have found Sec. 3C1.2 applicable. See, e.g., United States v. Chandler, 12 F.3d 1427, 1433 (7th Cir.1994) (applying Sec. 3C1.2 when defendant led police on a chase along a two-lane highway through residential areas, at speeds ranging from 35 to 55 mph, swerving to prevent police from passing him); United States v. Luna, 21 F.3d 874 (9th Cir.1994); United States v. Sykes, 4 F.3d 697, 700 (8th Cir.1993); United States v. Frazier, 981 F.2d 92, 96 (3d Cir.1992). Moreover, Sec. 3C1.2 allows a district court to depart upward beyond the 2 level enhancement if there are exceptional circumstances posing a substantial risk of death or bodily injury to more than one person. Sec. 3C1.2 comment. (n.6). Since the Sentencing Commission has considered the dangers high speed chases pose to innocents, the district court lacked authority to depart upward without first applying Sec. 3C1.2. Accord United States v. Hernandez-Rodriguez, 975 F.2d 622, 625 (9th Cir.1992).

At the sentencing hearing, the government argued that Sec. 3C1.2 could not apply because it addresses conduct already accounted for in part by the resisting arrest count. But in this case, the enhancement is clearly appropriate since Giacometti not only resisted arrest and assaulted law enforcement officers--the conduct prohibited by 18 U.S.C. Sec. 111--but also placed 30 lives in danger and recklessly courted even greater disaster. Cf. United States v. Wollenzien, 972 F.2d 890, 891 (8th Cir.1992); Illinois v. Vitale, 447 U.S. 410, 416, 100 S.Ct. 2260, 2265, 65 L.Ed.2d 228 (1980). Such conduct seems to be a textbook example of a proper application of Sec. 3C1.2.

Giacometti also argued that the district court's grounds for upward departure are addressed in Sec. 3C1.1, obstruction of justice. This is somewhat beside the point, since Sec. 3C1.2, which clearly applies, prohibits application of both Sec. 3C1.1 and Sec. 3C1.2. ³ In any case, Giacometti's argument had more validity before the 1990 amendments to the Guidelines. Before 1990, Sec. 3C1.1 and its commentary made no mention of flights from arrest, but most courts agreed that merely fleeing from arrest did not warrant an enhancement under Sec. 3C1.1. See, e.g., United States v. Hagan, 913 F.2d 1278, 1285 (7th Cir.1990); United States v. Stroud, 893 F.2d 504, 507 (2d Cir.1990); United States v. Garcia, 909 F.2d 389, 393 (9th Cir.1990); United States v. John, 935 F.2d 644, 648 (4th Cir.1991). However, a few courts applied Sec. 3C1.1 to flights resulting in high speed chases with "almost mortal circumstances" or other obstructive conduct. United States v. White, 903 F.2d 457, 462-63 (7th Cir.1990); United States v. Paige, 923 F.2d 112, 114 (8th Cir.1991); United States v. Tellez, 882 F.2d 141 (5th Cir.1989).

In 1990, the Guidelines were amended to address the distinction between "ordinary" and reckless flights. The commentary to Sec. 3C1.1 now provides that the enhancement does not apply to a defendant's conduct fleeing or avoiding an arrest. Sec. 3C1.1 comment. (n.4). Instead, Sec. 3C1.2 should be used to enhance the sort of reckless endangerment during flight that had previously been addressed by Sec. 3C1.1. United States v. Chandler, 12 F.3d at 1433 n. 1; United States v. Bell, 953 F.2d 6, 8 (1st Cir.1992).

But the commentary to Sec. 3C1.1 contains an apparent exception to the general rule against its application to fleeing or avoiding arrest. Application Note 4 provides:

The following is a non-exhaustive list of examples of the type of conduct that, absent a separate count of conviction for such conduct, do not warrant application of this enhancement, but ordinarily can appropriately be sanctioned by the determination of the particular sentence within the otherwise applicable guideline range:

(a) providing a false name or identification document at arrest, except where such conduct actually resulted in a significant...