U.S. v. Karlic

• Decision Date: 23 June 1993
• Docket Number: No. 91-50091,91-50091
• Parties: UNITED STATES, Plaintiff-Appellee, v. Lorenz Vilim KARLIC, Defendant-Appellant.
• Court: U.S. Court of Appeals — Ninth Circuit

Page 564

997 F.2d 564

UNITED STATES, Plaintiff-Appellee, v. Lorenz Vilim KARLIC, Defendant-Appellant.

No. 91-50091.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted Jan. 4, 1993.

Decided June 23, 1993.

Gail Ivens, Pasadena, CA, for defendant-appellant.

Marc S. Harris, Asst. U.S. Atty., Los Angeles, CA, for plaintiff-appellee.

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

Before: CANBY, BOOCHEVER, and WILLIAM A. NORRIS, Circuit Judges.

BOOCHEVER, Circuit Judge:

This case involves whether a defendant may be held to have knowingly, as opposed to recklessly, created a substantial risk of death or serious bodily injury for purposes of a sentencing enhancement under section 2K1.4 of the Sentencing Guidelines.

I

In the predawn hours of three separate Mondays in May and June 1990, appellant Lorenz Vilim Karlic and his partner, Rodney Burl Smith, used homemade explosives to blast open the safes below night depository boxes in three banks in the area of Palm Springs, California. On each occasion Karlic stood guard at the front of the bank while Smith broke open the night depository box and dropped a lit explosive down a chute into the safe. After the explosion Karlic and Smith collected the money that was scattered on the ground. All three banks suffered extensive damage, and one was completely demolished.

Karlic pled guilty to a nine-count indictment charging him with maliciously damaging and destroying a building and personal property used in an activity affecting interstate commerce in violation of 18 U.S.C. § 844(i), entering a bank whose deposits were insured by the Federal Deposit Insurance Corporation with intent to commit larceny in violation of 18 U.S.C. § 2113(a), and using an explosive to commit a felony in violation of 18 U.S.C. § 844(h). In exchange for Karlic's cooperation with the government in its investigation and prosecution, the government agreed to recommend that Karlic be sentenced to a term of 4 years.

At sentencing, the district court accepted the recommendation of the presentence report that Karlic's base offense level be increased by 18 for "knowingly creat[ing] a substantial risk of death or serious bodily injury." U.S.S.G. § 2K1.4(b)(1) (Nov. 1989). Karlic's resulting offense level of 25 for violations of § 844(i) and § 2113(a) carried a sentencing range of 100-125 months. In addition, Karlic was subject to mandatory minimum sentences of 5 years each on the three § 844(h) counts, to run consecutively to each other and to the sentence imposed on the other counts. Thus, in the absence of a downward departure, the minimum sentence required would have been 280 months, or 23 1/3 years. The court rejected the government's recommendation of a 4-year term, but departed downward on the basis of Karlic's substantial assistance with the case and imposed a total sentence of 132 months, or 11 years.

Karlic appeals his sentence on two grounds. First, he argues that the district court erred in increasing his base offense level by 18 because the facts support at most a finding that he recklessly created a risk of death or bodily injury, which would result in an increase of only 14. Second, he argues that the imposition of consecutive sentences under 18 U.S.C. §§ 844(h) and 844(i) violated the Double Jeopardy Clause of the Fifth Amendment.

II

A

Before we reach the merits of Karlic's first argument, we must address a potential bar to its consideration. Karlic contends that his total offense level should have been no more than 21 because his creation of a risk of death or serious bodily injury was at most reckless rather than knowing. A total offense level of 21 yields a sentencing range of 70-87 months. Adding the three mandatory 5-year sentences, Karlic's minimum sentence in the absence of a departure would have been 250 months, or nearly 21 years, had the court applied the Guidelines as Karlic argues it should have, rather than the 280 months used by the district court as a starting point for the downward departure. Karlic contends that the court would have given him a lesser sentence had it used the lower starting point of 250 months.

Relying on United States v. Fuentes, 925 F.2d 1191, 1192-93 (9th Cir.1991) (per curiam), the government contends that we need not reach the merits of Karlic's argument because Karlic received a lesser sentence after the court's discretionary departure than would have been authorized under his proposed application of the Guidelines. We reject the government's argument because we find Fuentes distinguishable. In that case, the district court departed downward from the applicable sentencing range and sentenced Fuentes to the statutory minimum of 120 months. We did not address Fuentes' argument that the district court erred in denying him a two-level reduction for acceptance of responsibility and in calculating his criminal history category because the resulting pre-departure sentencing range, assuming the argument, would have been greater than the 120-month mandatory minimum sentence Fuentes actually received. Although a district court may depart below a statutory minimum on the government's motion based on a defendant's substantial assistance, 18 U.S.C. § 3553(e) (1988), there is no indication that the government in Fuentes had made such a motion. See United States v. Arnold, 981 F.2d 1121, 1122 (9th Cir.1992) (district court may not depart downward from mandatory minimum sentence absent motion by government), cert. denied, --- U.S. ----, 113 S.Ct. 1957, 123 L.Ed.2d 661 (1993). Thus in Fuentes the district court could not have departed any further even had it started with the lower guideline range. Here, the government's request for a 4-year sentence was a request for departure below the statutory minimum. We cannot say with assurance that Karlic's final sentence would have been the same had the district court begun with a total offense level of 21 rather than 25.

Moreover, the Supreme Court has recently given us clear instructions on the procedure to be followed when a sentence results from an incorrect application of the Guidelines. In Williams v. United States --- U.S. ----, 112 S.Ct. 1112, 117 L.Ed.2d 341 (1992), the Court held that when a court of appeals determines that a district court misapplied the Guidelines, it should remand under 18 U.S.C. § 3742(f)(1) "unless the reviewing court concludes, on the record as a whole, that the error was harmless, i.e., that the error did not affect the district court's selection of the sentence imposed." Id., at ----, 112 S.Ct. at 1120-21. Williams does not affect the holding of Fuentes because in that case the error was harmless; it does, however, preclude the broad reading of Fuentes that the government proposes. Here, only the district court can resolve whether the sentence resulting from its downward departure would have differed had the court accepted Karlic's contention that his conduct was reckless. We therefore cannot state that the alleged error was harmless. Fuentes thus creates no bar to our consideration of Karlic's argument, and we are required to remand if we determine that the district court misapplied the Guidelines in finding that Karlic knowingly created a risk of death or serious injury.

B

The version of § 2K1.4 (Arson: Property Damage By Use of Explosives) in effect at the time of Karlic's offense ¹ provided for an increase of 18 in the base offense level "[i]f the defendant knowingly created a substantial risk of death or serious bodily injury," § 2K1.4(b)(1), and an increase of 14 "[i]f the defendant recklessly endangered the safety of another," § 2K1.4(b)(2). The district court increased Karlic's base offense level by 18, stating:

The probation department states that there seems to be no doubt whatsoever that the defendant was fully cognizant of the destructive potential of the bomb as testing had earlier been done to determine its explosive capacity. That the defendant and his alleged co-participant knowingly created a substantial risk of death or serious injury becomes clear when considering the fact that the bomb was placed in a night depository. A facility which expressly exists for after hour banking transactions.

Because of the purpose of the twenty-four hour depository, there was a much higher probability that unsuspecting persons would be frequenting a location during other than normal working hours, which is exactly when the bombs were set to explode. Alternatively stated, just because the bombs were set to detonate at an earlier hour, did not guarantee by any means that a bank customer would not arrive to make a deposit. And it seems logical to assume that the defendant knew this.

Furthermore, the reported burning time of the fuses, which was not more than thirty seconds, would have most likely totally precluded the defendant and his alleged co-participant from warning a potential night depository customer unexpectedly arriving to make a deposit, that an explosion was eminent [sic]. With the factors that the probation department has laid out, an eighteen level increase is appropriate and this Court agrees.

Karlic argues that the district court erred in applying an 18-level increase because the facts support at most a finding that his creation of a risk was reckless. We disagree.

Whether a defendant knowingly creates a substantial risk of death or serious bodily injury is a factual question. We therefore review a district court's findings in support of a sentencing enhancement pursuant to § 2K1.4 for clear error. United States v. Bos, 917 F.2d 1178, 1180 (9th Cir.1990); accord United States v. Golden, 954 F.2d 1413, 1416 (7th Cir.1992); United States v. Wilson, 927 F.2d 1188, 1190 (11th Cir.1991); United States v. Medeiros, 897 F.2d 13, 17 (1st Cir.1990). The interpretation of a Guidelines term, however, is a question of law which we review de novo. United States v. Blaize, 959 F.2d 850, 851 (9th Cir.), cert. denied, ...