U.S. v. Hicks

• Decision Date: 28 June 1993
• Docket Number: No. 92-50127,92-50127
• Citation: 997 F.2d 594
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Dean Harvey HICKS, Defendant-Appellant.
• Court: U.S. Court of Appeals — Ninth Circuit

Page 594

997 F.2d 594

UNITED STATES of America, Plaintiff-Appellee, v. Dean Harvey HICKS, Defendant-Appellant.

No. 92-50127.

United States Court of Appeals Ninth Circuit.

Argued and Submitted Feb. 3, 1993.

Decided June 28, 1993.

Harriet L. Hawkins, Deputy Federal Public Defender, Los Angeles, CA, for defendant-appellant.

George B. Newhouse, Jr., Asst. U.S. Atty., Los Angeles, CA, for plaintiff-appellee.

Appeal from the United States District Court for the Central District of California.

Before: HUG, SKOPIL, and O'SCANNLAIN, Circuit Judges.

O'SCANNLAIN, Circuit Judge:

We consider sentencing issues raised by the person responsible for launching mortar attacks and planting car bombs designed to damage four government buildings in three California cities between 1987 and 1991.

I

As part of an ongoing effort to disrupt the functioning of the Internal Revenue Service, Dean Harvey Hicks initiated a series of attacks against IRS buildings throughout California. The first occurred on March 2, 1987, when Hicks launched mortars at an IRS building in Laguna Beach, California. Fortunately, because of a design flaw, no shells exploded, and no one was hurt.

The second attack occurred in September 1988. This time, Hicks planted a car bomb in the subterranean parking garage of a high rise building containing an IRS office on Olympic Boulevard, a busy commercial street in a densely populated area of Los Angeles. The car contained several different types of explosives, including a water heater core filled with a volatile mixture of ammonium nitrate and fuel oil. The trunk of the car housed containers of ammonia and bleach that, if ignited, would have emitted a toxic cloud. According to government investigators, the car was booby-trapped with an "anti-personnel" device that was designed to detonate if anyone attempted to move the car. Luckily, only one of the pipe bombs in the car exploded, and damage was limited to the car itself.

Soon after the incident, Hicks sent a letter to City National Bank (which had a sign on the top of the Olympic Boulevard building and thus appeared to be the owner) containing details about the bombing that could only have been known to a participant. In the letter, which purported to be from a group called "Up the IRS, Inc.," Hicks warned the occupants of the building that future bomb attacks against the IRS office were planned.

The following year, Hicks stepped up the severity of his attack against the IRS. On February 19, 1990, Hicks parked a pickup truck alongside the Olympic Boulevard building. The truck was laden with approximately 2,000 pounds of ammonium nitrate and fuel oil in fifty-five gallon drums, along with mortars that, according to Hicks, were "intended to break some windows." An elaborate timing mechanism set off the device three days later at 1:30 a.m., launching several mortars which struck the IRS offices on the fifth floor of the building. The truck then caught fire, and the ammonium nitrate and fuel oil began to burn. The fire department arrived and extinguished the fire before the bomb had a chance to explode. Twenty square blocks of the surrounding residential area had to be evacuated.

Hicks again sent letters from Up the IRS, Inc. claiming responsibility for the incident, this time to a local newspaper along with City National Bank. The letters again threatened future attacks against the IRS.

The final attack occurred on April 1, 1991, when Hicks launched a mortar attack against the IRS Service Center in Fresno, California. He fired thirteen shells, five of which exploded, causing moderate damage to the facility and to several parked cars. A letter from Up the IRS, Inc. claiming responsibility was sent to the Fresno Bee.

On July 24, 1991, a federal grand jury in the Central District of California returned an eighteen-count indictment ("Los Angeles indictment") against Hicks, charging him with several offenses in connection with the Laguna Beach and Los Angeles incidents. On July 25, 1991, a grand jury in the Eastern District of California similarly returned a two-count indictment ("Fresno indictment") against him, with charges related to the Fresno incidents. The Fresno case was transferred to Los Angeles pursuant to Federal Rule of Criminal Procedure 20. Hicks pleaded guilty to four counts of the Los Angeles indictment: three counts of damaging or attempting to damage a building used by the United States by means of an explosive device in violation of 18 U.S.C. § 844(f), and one count of endeavoring to intimidate and impede employees of the IRS from carrying out their duties by means of a threatening communication in violation of 26 U.S.C. § 7212. He also pleaded guilty to one count of violating 18 U.S.C. § 844(f) on the Fresno indictment.

II

Because the written judgment in this case is inconsistent with the district court's oral pronouncement of the sentence, we must first determine which controls. In its oral decision, the court sentenced Hicks to ten years on Count 1 of the Central District of California indictment ("Count 1 of the Los Angeles indictment"), a pre-Guidelines count, and ten years each to Counts 6 and 11. The court specified that the terms imposed on Counts 6 and 11 were to run consecutively with Count 1 but concurrently with each other. The court also sentenced Hicks to ten years on Count 1 of the Eastern District of California indictment, which was transferred pursuant to Rule 20 ("Count 1 of the Fresno indictment"). The court specified that the term imposed on Count 1 of the Fresno indictment was to run concurrently with Count 1 from the Los Angeles indictment. Upon request from Hicks' counsel, the court clarified that the term imposed on Count 1 of the Fresno indictment was to run concurrently with those imposed on Counts 6 and 11. Thus, the court sentenced Hicks to a total of twenty years in prison.

In its written Judgment and Probation/Commitment Order, however, the court stated that the ten-year term imposed on Count 1 of the Fresno indictment was to run consecutive to the entire sentence imposed on the Los Angeles indictment. This would amount to a thirty-year sentence.

"In cases where there is a direct conflict between an unambiguous oral pronouncement of sentence and the written judgment and commitment, this [c]ourt has uniformly held that the oral pronouncement, as correctly reported, must control. The only sentence that is legally cognizable is the actual oral pronouncement in the presence of the defendant." United States v. Munoz-Dela Rosa, 495 F.2d 253, 256 (9th Cir.1974). We remand so that the district court can make the written judgment consistent with the oral pronouncement. For purposes of this appeal, we consider the sentence imposed to be the twenty-year term announced in open court.

III

We next consider whether the district court properly departed from the Guidelines range. Application of the Sentencing Guidelines to Counts 6, 11, and 18 of the Los Angeles indictment and Count 1 of the Fresno indictment yielded a Guidelines range of 63 to 78 months. The district court sentenced Hicks to a total sentence of ten years on these counts--an upward departure of 42 months. ¹ Hicks argues that the departure was improper.

In reviewing whether the departure was proper, we must apply the three-part test of United States v. Lira-Barraza, 941 F.2d 745, 746-47 (9th Cir.1991) (en banc). First, we must determine whether the district court had the legal authority to depart. A district court may depart upward from the applicable Guidelines range only if it identifies an aggravating circumstance "that was not adequately taken into consideration by the Sentencing Commission in formulating the guidelines." Id. at 746. Second, we must review for clear error the factual findings in support of the aggravating circumstance identified by the district court as a basis for departure. Finally, we must review the reasonableness of the extent of the district court's departure "in light of the structure, standards and policies of the Act and the Guidelines." Id. at 746-47. The district court must explain the reasoning for the degree of departure in sufficiently specific language to allow meaningful review. Id. at 751.

Here, the district court did not expressly identify the aggravating factors that formed the basis of its decision to depart. ² However, the court placed great emphasis at sentencing on the terroristic nature of Hicks' behavior. According to the court:

I think that this is a political case in the sense of the protest that Mr. Hicks was making against the IRS.... [H]e does not have the right to conduct a reign of terror as he did in this fashion.

Comparing Hicks' conduct to the behavior of the IRA and other terrorist groups, the court continued:

There are differences of degree. There are differences of scope. But in the final analysis, the conduct of all of these parties is political in nature. They are registering a protest and they decided to register their protest by means of terrorist activity. And that's precisely what Hicks has done here.

For five years he has stalked the IRS, placed his bombs at power poles placed his mortars so they're calculated to damage or destroy the facilities in which employees of the IRS worked. And doing that with perhaps not the intent to specifically injure individuals, but with the intent certainly that if individuals were injured or killed that those would be the fortunes of war, the unfortunate results of their having been in the wrong place at the wrong time. And therefore, they're sacrificed to Mr. Hicks' political aims.

It is clear from the prominence of this discussion in the court's oral decision that terrorism was at least one of the court's grounds for departure. To a lesser extent, the court seemed also to rely on the potential destructiveness of Hicks' activities as grounds for departure.

Both the terroristic nature of a defendant's conduct and the potential for great destruction...