U.S. v. Holmes

• Citation: 975 F.2d 275
• Decision Date: 16 September 1992
• Docket Number: Nos. 91-5365,91-5443,s. 91-5365
• Parties: UNITED STATES of America, Plaintiff-Appellee, Cross-Appellant, v. Lee D. HOLMES, Defendant-Appellant, Cross-Appellee.
• Court: United States Courts of Appeals. United States Court of Appeals (6th Circuit)

Page 275

975 F.2d 275

UNITED STATES of America, Plaintiff-Appellee, Cross-Appellant, v. Lee D. HOLMES, Defendant-Appellant, Cross-Appellee.

Nos. 91-5365, 91-5443.

United States Court of Appeals, Sixth Circuit.

Argued Jan. 22, 1992.

Decided Sept. 16, 1992.

Louis DeFalaise, U.S. Atty., Lexington, Ky., Frederick A. Stine, V, Asst. U.S. Atty. (argued and briefed), Covington, Ky., for plaintiff-appellee, cross-appellant.

Larry Hicks (argued and briefed), Fort Mitchell, Ky., for defendant-appellant, cross-appellee.

Before: GUY, NORRIS and BATCHELDER, Circuit Judges.

ALAN E. NORRIS, Circuit Judge.

Defendant, Lee David Holmes, was charged with three counts of transporting a firearm in interstate commerce with intent to commit a felony, in violation of 18 U.S.C. § 924(b). At the conclusion of his trial, on January 24, 1990, the jury found him guilty on two of the counts and not guilty on the third count. Pursuant to a downward departure from the term calculated under the Sentencing Guidelines, he was sentenced to thirty-six months' imprisonment on each count, to run concurrently. On appeal, defendant contends that the district court misapplied the Sentencing Guidelines by using a guideline in effect at the time of sentencing rather than the one in effect at the time of the offense; that his inculpatory statements should not have been admitted at trial because they were improperly kept from the defense during discovery; and that the indictment should have been dismissed for vagueness because it did not specify the felony he intended to commit. The government cross-appeals, contending that the district judge misapplied the Sentencing Guidelines by looking only to kidnapping and not murder as the crime defendant intended to commit, and that the district judge failed to provide an adequate basis for imposing the downward departure.

I.

In April of 1989, defendant drove from his home in Georgia to Cincinnati, Ohio, and then to Lexington, Kentucky. After experiencing problems with his 1972 Ford Mustang, he rented a 1989 Mercury Grand Marquis from a Hertz Corporation facility in Lexington, and returned to Cincinnati. At 2:10 a.m. on April 18, a Mariemont, Ohio police officer came upon the Marquis, which was illegally parked at an intersection, and noticed that the license plate was altered with blue tape. The officer contacted Hertz, which towed the car to its Greater Cincinnati Airport facility in northern Kentucky at about 8:00 a.m. the same morning. Hertz personnel contacted the Cincinnati Airport and Mariemont Police after discovering a number of suspicious looking items in the car, including a trench coat with strips of duct tape on the inside and a stocking mask in the pocket, and pieces of rope with loops tied in them. Maps of Cincinnati and Lexington were also found in the car.

At 11:50 a.m. the same day, defendant reported to Hertz that the Marquis was stolen, and requested a replacement. He was told that he must first inform the Mariemont Police, which he did that afternoon. The police met defendant at the Mariemont Inn, informed him that Hertz had the car, and asked him to accompany them back to the police station, where they questioned him about the altered plates and the items found in the Marquis. Defendant denied altering the plates, but admitted ownership of all the items in the car except the stocking mask. He indicated that his personal car was at the airport in Lexington, and this information was passed to the Lexington Police. He subsequently obtained another car from Hertz's downtown Cincinnati location.

The next day, April 19, the manager of a Pizza Hut in Lexington found a briefcase in a dumpster behind his restaurant, and subsequently discovered that it contained .38 caliber bullets, a brochure from The Pastry Shop, a business card with defendant's name on it, newspaper clippings, a piece of paper from the Ramada Inn with the name Paul Diekmeyer on it, and extensive notes containing a detailed plan involving a kidnapping, robbery, and murder. These items were passed to police officers in Lexington, who obtained a search warrant for defendant's Mustang, parked at the Lexington Bluegrass Airport. In that car they discovered credit cards and hotel receipts, paperback books about homicide, a large knife, and clothing with an April 10 receipt from a K-Mart in Lexington. The receipt listed eighteen items, including panty hose, a screwdriver, duct tape, nylon rope, and a file.

On April 21, defendant called Hertz's Cincinnati Airport location to complain about a broken air conditioner in his second rental car, and was told to bring the car to the airport. Upon his arrival, he was met by Cincinnati Airport Police and accompanied them to the facility's police office for questioning by federal agents. Defendant initially denied having been in Cincinnati before, but, when confronted with Cincinnati hotel receipts, admitted that he had. He also admitted that most of the items found in the first rental car, the Marquis, were his, and he claimed that they were part of a sexual fantasy, or his fantasy about committing the perfect crime. He admitted that he had a gun in the second rental car, and a consensual search of that car revealed a .38 caliber revolver and speed loader, as well as pieces of nylon hosiery.

Defendant initially denied knowledge of the notes found in Lexington, but, after being asked for handwriting exemplars, he admitted that he had written them. He claimed that the two names on the notes, Paul Diekmeyer and Herb Krombholz were just names picked out of a Cincinnati phone book, and he denied having been to a jewelry store owned by either man. It was subsequently established, however, that the two men owned jewelry stores in the same area as The Pastry Shop, the brochure for which had been found in defendant's briefcase. The notes contained the correct address for Diekmeyer's jewelry store, and the correct addresses for Krombholz's store and his home. At trial, defendant testified that the plan in the notes was merely a story, and that he never intended to kidnap, rob, or murder anyone.

II.

A. Sentencing Guideline Calculations

Before imposing a downward departure, the district court found that the imprisonment range of 121 to 151 months, as determined in both the presentence report and the report of the magistrate who held a hearing on the issue, was properly calculated under the Sentencing Guidelines. Defendant contends that the district court violated the ex post facto clause of the Constitution because this range was calculated by applying the Sentencing Guidelines in effect at the time of sentencing rather than those in effect at the time of the offense. In its cross-appeal, the government argues that the calculation is erroneous because it is based on the determination that defendant intended to commit a kidnapping but fails to take into account his intent to commit murder.

1. Ex Post Facto Clause

Holmes asserts that the imprisonment range of 121 to 151 months was calculated pursuant to the Sentencing Guidelines in place following amendments that became effective on November 1, 1989, even though the activity for which he was convicted took place several months before that date. He argues that by applying the guidelines in effect at the time of the March 11, 1991 sentencing, as opposed to those in effect at the time of the offense, April 1989, the court violated the ex post facto clause. ¹

The presentence report's recommendation of a 121-to-151 month sentence was based on its application of a pre-November 1989 guideline, that is, a guideline in effect at the time of the offense. The magistrate's report, issued following an April 26, 1990 hearing, recommended adoption of the presentence report's sentencing "calculations," finding the 121-to-151 month range appropriate, but did so on the basis of its application of a guidelines' provision that only became effective in November 1989. The judgment and sentencing order indicates that the district court adopted the factual findings and guidelines' application in the presentence report, but does not indicate whether the district judge considered the magistrate's assertion that defendant must be sentenced pursuant to the guidelines in effect at the time of sentencing rather than pursuant to the pre-November 1989 guidelines used in the presentence report.

In general, the sentencing court must use the guidelines in effect at the time of sentencing. 18 U.S.C. § 3553(a)(4). However, "when the Guidelines in effect at the time of sentencing provide for a higher range than those in effect at the time the crime was committed, an ex post facto problem exists and the court must not impose a sentence in excess of that allowed by the older Guidelines." United States v. Nagi, 947 F.2d 211, 213 n. 1 (6th Cir.1991), cert. denied, --- U.S. ----, 112 S.Ct. 2309, 119 L.Ed.2d 230 (1992). Because of this ex post facto danger, we must determine what the sentence would be under the guidelines in effect at both times, to make sure that the guidelines in effect at the time of sentencing produce no harsher result than those in effect at the time of the offense.

Defendant was convicted of transporting a .38 caliber revolver in interstate commerce with the "intent to commit therewith" a felony, in violation of 18 U.S.C. § 924(b). At the time of the activities for which defendant was indicted, no guideline specifically addressed violations of section 924(b). The Sentencing Guidelines provide: "If the offense is a felony ... for which no guideline expressly has been promulgated, apply the most analogous offense guideline." U.S.S.G. § 2X5.1.

The presentence report deemed as most analogous the pre-November 1989 version of section 2K2.2, entitled "Receipt, Possession, or Transportation of Firearms and Other Weapons in Violation of National Firearms Act." That guideline applied to certain violations of 26 U.S.C. § 5861, which bans unlicensed manufacture and...