U.S. v. Giggey
| Citation | 501 F.Supp.2d 237 |
| Decision Date | 16 August 2007 |
| Docket Number | Criminal No. 07-35-P-H. |
| Parties | UNITED STATES of America v. Timothy GIGGEY, Defendant. |
| Court | U.S. District Court — District of Maine |
Darcie N. McElwee, Office of the U.S. Attorney, District of Maine, Portland, ME, for United States of America.
James S. Hewes, Portland, ME, for Defendant.
MEMORANDUM OF SENTENCING
Two issues justify writing an opinion in support of this arson sentencing. First, there is a difficult question concerning how to determine what amount of loss is reasonably foreseeable for arson of a building undergoing renovations, with higher insurance coverage than apparent market value. Second, the case highlights the deep and longstanding Circuit split over how to treat prior non-dwelling burglary convictions in deciding who is a career offender. Career offender status imposes a huge increase in sentence length (here, 151 to 188 months instead of 63 to 78 months). Given the central purpose of the Sentencing Guidelines to avoid sentencing disparity in federal courts around the country, the Court of Appeals for the First Circuit might want to revisit this important issue en banc, and the Supreme Court should resolve the discrepancy among the Circuits, since the Sentencing Commission seems unwilling or unable to do so.
Timothy Giggey, his brother, and a juvenile set a number of small fires in a commercial building in downtown Lewiston, Maine, on December 19, 2006, hoping to divert attention while they burglarized another building. They caused a conflagration that razed an entire city block. Remarkably, no one was injured. The buildings were undergoing renovation as a federally funded project. As a result, the three faced both federal and state charges. Giggey pleaded guilty to the federal crime of malicious destruction by fire of property owned by an organization receiving federal financial assistance, 18 U.S.C. § 844(f).
Giggey's base offense level is determined initially by Guideline 2K1.4, the arson Guideline. United States Sentence Commission Guideline Manuel 2K1.4 (2006 ed.) ("USSG"). Subsection (a)(3) cross-references Guideline 2B1.1 and its amount-of-loss table.1 Application Note 3 states that the general rule is that the amount of loss is the greater of the "intended loss" and the "actual loss." The "intended loss" is the "pecuniary harm that was intended to result from the offense." "Actual loss" means "the reasonably foreseeable pecuniary harm that resulted from the offense."
The buildings that Giggey and his companions destroyed in December 2006 were vacant buildings destined for restoration into commercial, residential and office space. According to undisputed sections of the Presentence Report, the buildings were purchased in 2004 for $300,000. Around that same time the City of Lewiston appraised their value at $182,333.34 (an extrapolation from a 75% assessed value of $136,750). The Presentence Report, ¶ 3, adds that the owners2 of the property invested $150,000 of their own money in demolition and restoration, as well as $50,000 that they borrowed from the City of Lewiston, as reported to investigators from the State Fire Marshal's Office after the fire, for a total investment of $500,000.
Giggey introduced evidence that on December 14, 2006, just days before the arson, the owners brought a real estate broker to the project. His report was not particularly positive about the renovations' progress. He stated that the project was at a standstill, that one of the owners said that the owners had invested $700,000 to $800,0003 and needed $800,000 more to move forward with the project, and that the owner was looking to sell the buildings and the plans outright and "was just looking to recover his investment." Def. Ex. 1 ¶ 6.4 That statement suggests a fair market value of $700,000-$800,000, arguably somewhat more if it represents a distress value.
However, the owners had insurance coverage for a substantially higher sum. Peerless Insurance Company (Peerless) issued a Builders Risk Policy of $4 million which, according to the Presentence Report (uncontested), "means that the policy covered the buildings in their state at the time the policy was purchased, as well as, any projected additions, alterations, improvements, or repairs." Following the fire, the owners claimed a total loss of over $5 million — a figure they based on the projected value of the property post-restoration. Ultimately, the owners settled with Peerless on a reimbursement amount of $3,200,000, which has been paid in full.
The fact that the property was insured does not negate the loss caused by the arson. The property owners may have been reimbursed for their loss, but the insurance company is out $3,200,000 as a result of this offense. See United States v. Alegria, 192 F.3d 179, 191 (1st Cir.1999) (). The question under Guideline 2B1.1 for the purposes of sentencing, however, remains the amount of pecuniary harm that was "intended" or was "reasonably foreseeable" by Giggey.
The government argues that, given the circumstances, Giggey reasonably should have known that the property was insured for more than the owners had invested in it ($500,000) and for more than they were willing to sell it for ($700,000-$800,000). According to the government, the "actual loss" for offense level purposes should be the full amount that Peerless paid, namely $3,200,000. But there is no evidence that Giggey intended that amount of loss (there is no evidence at all about his intent concerning the amount of loss) or that he reasonably should have known that a sum of that magnitude would be the potential pecuniary loss.5 That amount appears to be far beyond the market value and I have no evidence how the insurance company derived it. I do not agree that it was reasonably foreseeable to Giggey under the circumstances that this vacant building would generate an insurance settlement many times that of its fair market value. Here, what was reasonably foreseeable as pecuniary harm was that this building would be insured for its market value or its replacement cost. (There is no evidence of the latter.) Although specialists in the field of renovations may be familiar with Builder Risk Policies, I am not persuaded that Giggey's statements that he has a "carpentry background" and that he finds that renovations are "neat to look at" make this $3,200,000 insurance settlement reasonably foreseeable to him as the amount of potential pecuniary loss.
Taking into consideration the relevant factors listed in Application Note 3(C) — the estimated fair market value of the property, the estimated cost of replacement or repairs, as well as more general factors such as the scope of the offense — I estimate the reasonably foreseeable pecuniary harm to be greater than $400,000 but less than $1,000,000.
Under Guideline 2B1. 1, when the loss is between $400,000 and $1 million, the base level of 7 (2B1.1(a)(1)) is increased by 14 (2B1.1(b)(1)(H)) to a total of 21. Guideline 2K1.4(a)(3), the arson Guideline, says to add 2 levels to the 2B1.1 total of 21, and 2 more when the arson was committed to conceal another offense (here to commit a burglary). USSG 2K1.4(b)(1). Therefore, the adjusted offense level is 25. Giggey receives a 3-level decrease for accepting responsibility. USSG 3E1.1. As a result, the total offense level is 22. Giggey's criminal history points give him a criminal history of IV.6
Therefore, the guideline range is 63 to 78 months, unless Giggey qualifies as a career offender.
In an effort to implement 28 U.S.C. § 994(h), the Commission has adopted Guideline" 4B1;1, the so-called career offender Guideline. As relevant to Giggey's situation, it provides that if the sentencing offense is a crime of violence (Giggey's arson is) and if the defendant has two previous convictions for crimes of violence, he is considered a career offender, with a significantly higher offense level and criminal history and thus a significantly higher prison range. For Giggey, the sentencing range rises dramatically from the range of 63 to 78 months to anew range of 151 to 188 months in prison.7
In Giggey's case, the two previous convictions that make him a career offender, more than doubling his prison range, are burglaries. In one, he burglarized a garage. (A charge of burglarizing the dwelling was dismissed.) The state justice gave him 90 days in county jail. In the other, Giggey burglarized a redemption center. For that, he received 4 months in jail.8
The government contends that both burglary convictions are crimes of violence and thus that Giggey is a career offender. I reluctantly agree, because First Circuit precedents compel that conclusion, and I am bound to apply those precedents. I think those precedents misread the relevant Guideline text, however. Moreover, even if the First Circuit is correct in its reading, there is a deep split among the Circuits on this precise issue that now is fourteen years old. The split guarantees that the career offender Guideline is being applied with severe disparity nationwide, contrary to the basic premise of Guideline sentencing. Supreme Court review is needed.
For career offender purposes, "crime of violence" is a term defined in Guideline 4B1.2 and Application Note 1.9 The term "crime of violence" includes, explicitly, "burglary of a dwelling." USSG 4B 1.2(a)(2). Neither of Giggey's previous convictions involved burglary of a dwelling. The definition also includes other convictions where an element of the offense involved physical force against a person — actual, threatened, or attempted. USSG 4B1.2(a)(1). Neither of Giggey's burglary offenses had that element. Finally, the definition includes convictions where the conduct that was "expressly charged" either involved use of explosives (not Giggey), "or,...
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U.S. v. Giggey
...made clear that if he were not bound by our prior law interpreting § 4B1.2, he would have given a lower sentence. United States v. Giggey, 501 F.Supp.2d 237, 245 (D.Me.2007). Further, our earlier per se approach has been criticized as sweeping within its reach defendants who are not violent......
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U.S. v. Giggey
...Guidelines to non-dwelling burglary. The history of this case, elsewhere recounted, Giggey, 551 F.3d at 30-32; United States v. Giggey, 501 F.Supp.2d 237 (D.Me.2007), can be abbreviated. On December 19, 2006, Giggey, along with his brother and a juvenile male, set out to burglarize a buildi......