U.S. v. Kings

• Decision Date: 14 January 1993
• Docket Number: No. 91-2968,91-2968
• Citation: 981 F.2d 790
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Melvin Peter KINGS, a/k/a, Comffort, Peter Onyema Penn, Neteson Golden, Defendant-Appellant.
• Court: U.S. Court of Appeals — Fifth Circuit

Page 790

981 F.2d 790

UNITED STATES of America, Plaintiff-Appellee, v. Melvin Peter KINGS, a/k/a, Comffort, Peter Onyema Penn Neteson Golden, Defendant-Appellant.

No. 91-2968.

United States Court of Appeals Fifth Circuit.

Jan. 14, 1993.

Alvin E. Nunnery, Houston, TX (court-appointed), for defendant-appellant.

Peggy Morris Ronca, Paula C. Offenhauser, Asst. U.S. Attys., Ronald G. Woods, U.S. Atty., Houston, TX, for plaintiff-appellee.

Appeal from the United States District Court for the Southern District of Texas.

Before KING, JOHNSON, and DUHE, Circuit Judges.

PER CURIAM:

From 1987 through 1990, Melvin Peter Kings was engaged in fraudulent schemes to obtain credit. After violently resisting an attempted arrest in Houston, Texas by State Department security agents in July 1990, Kings was arrested in Cobb County, Georgia in November 1990. Charged in a ten-count indictment with assaulting a federal officer and various crimes involving use of false social security numbers and fraudulently obtained credit cards, Kings pled guilty to one count of false use of a social security number, one count of fraudulent use of a credit card, and one count of assault on a government officer. The district court sentenced Kings to: 120 months of imprisonment on the credit card count; a consecutive term of 30 months on the assault count; a consecutive 60-month term on the pre-Guidelines social security offense; a 36-month term of supervised release on the credit card count; and a concurrent 12-month term of supervised release on the assault count. Additionally, the court imposed a fine of $12,500 and ordered total restitution in the amount of $21,439.65. Kings appeals from his sentence, and, finding no error, we affirm.

I. DISCUSSION

Kings raises the following issues on appeal:

A. Whether the district court erred in making an "official victim" enhancement to Kings' sentence;

B. Whether the district court erred by (i) considering Kings' pre-Guidelines offense as relevant conduct under the Guidelines, and (ii) then imposing a consecutive sentence for that same pre-Guidelines offense:

C. Whether the district court erred in using Kings' social security (pre-Guidelines) offense to increase his criminal history category under the Guidelines;

D. Whether the district court erred in assessing consecutive sentences on the credit card and assault (Guidelines) counts; and

E. Whether the district court's application of the Guidelines violates due process, the Eighth Amendment, the Separation of Powers Clause, and the non-delegation doctrine.

In considering these challenges to Kings' sentence, "[b]eyond even the clearly erroneous standard, this court must give due deference to the sentencing court's application of the [G]uidelines to the facts." United States v. Harris, 932 F.2d 1529, 1536 (5th Cir.1991) (internal quotation omitted), cert. denied, --- U.S. ----, 112 S.Ct. 270, 116 L.Ed.2d 223 (1991); United States v. Parks, 924 F.2d 68, 71 (5th Cir.1991) (citations omitted); see also 18 U.S.C.A. § 3742(e) (West Supp.1993). ¹ Moreover, we recognize that Kings' sentence "must be upheld unless [he] demonstrates that it was imposed in violation of the law, was imposed because of an incorrect application of the Guidelines, or is outside the range of applicable Guidelines and is unreasonable." Parks, 924 F.2d at 71, citing United States v. Goodman, 914 F.2d 696, 697 (5th Cir.1990) (other citations omitted), recognizing supersession, United States v. Fitzhugh, 954 F.2d 253, 254-55 (5th Cir.1992); see also 18 U.S.C. § 3742(f) (establishing standard of review for sentencing); Harris, 932 F.2d at 1536 (sentences not imposed in violation of the law, not resulting from an incorrect application of the Guidelines, and not outside the applicable Guidelines range must be upheld).

A. "Official Victim" Enhancement

Pursuant to Guidelines section 3A1.2 (enhancement where the victim is an officer), ² the district court increased Kings' base offense level by three for assaulting a federal officer carrying out her official duties. Kings contends that this increase constitutes an impermissible double counting in violation of the Due Process clause of the Fifth Amendment to the United States Constitution because Kings was convicted of assaulting a federal officer in violation of 18 U.S.C. § 111 (the relevant Guidelines sections for this offense are 2A2.2 and 2A2.4), and an element of that offense is the federal officer status of the victim. ³

We have recently addressed this issue. See United States v. Kleinebreil, 966 F.2d 945, 955 (5th Cir.1992). In Kleinebreil, we recognized that, although Guidelines section 2A2.4 ("Obstructing or Impeding Officers ") incorporates the official status of the victim, section 2A2.4 also contains a cross-reference to section 2A2.2 (simply "Aggravated Assault") for situations in which the defendant is convicted under 18 U.S.C. § 111. Specifically, section 2A2.4 provides that, "[i]f the defendant is convicted under 18 U.S.C. § 111 and the conduct constituted aggravated assault, apply § 2A2.2 (Aggravated Assault)." U.S.S.G. § 2A2.4(c)(1). Moreover, the Application Notes accompanying section 2A2.4 state that the official victim assessment under Guidelines section 3A1.2 should only be applied when this cross-reference in section 2A2.4 ("Obstructing or Impeding Officers") requires that the offense level be determined under section 2A2.2 ("Aggravated Assault"). See U.S.S.G. § 2A2.4, comment. (n.1). Therefore, we held that:

Kleinebreil was convicted under 18 U.S.C. § 111, and his conduct constituted aggravated assault. Accordingly, pursuant to the cross-reference in § 2A2.4, § 2A2.2 ("Aggravated Assault") applies. Unlike the base offense level for § 2A2.4, the base offense level for 2A2.2 does not reflect the fact that the victim was a government official. See U.S.S.G. 3A1.2, comment. (n. 3) (the only offense guideline in Chapter Two, Part A, that specifically incorporates the official status of the victim is § 2A2.4 ("Obstructing or Impeding Officers")). Therefore, the district court properly increased the assault group offense level for an official victim.

Kleinebreil, 966 F.2d at 955 (emphasis in original); see also United States v. Padilla, 961 F.2d 322, 327 (2d Cir.) (also noting that Guidelines section 3A1.2(b), unlike 18 U.S.C. § 111, requires that the defendant know that he is assaulting an official victim), cert. denied, --- U.S. ----, 113 S.Ct. 138, 121 L.Ed.2d 91 (1992); United States v. Sanchez, 914 F.2d 1355, 1362 (9th Cir.), cert. denied, --- U.S. ----, 111 S.Ct. 1626, 113 L.Ed.2d 723 (1990). Similarly, we now conclude that the district court properly increased Kings' group offense level for assaulting a government official.

B. Double-Counting Contention

Kings also raises a double-counting contention regarding the district court's consideration of his pre-Guidelines social security offense ⁴ as relevant conduct under Guidelines section 1B1.3. Specifically, Kings asserts that the district court (i) considered this offense as "relevant conduct" for purposes of sentencing him for his credit card offense, and (ii) then ordered him to serve a consecutive sentence for the same pre-Guidelines offense, and that this constitutes an impermissible double counting for a single offense. According to Kings, the district court only had two legitimate options for utilizing his pre-Guidelines offense--(i) the district court could have used his social security offense to increase his criminal history category under the Guidelines for his credit card Guidelines offense, and then ordered that Kings serve a concurrent sentence for this pre-Guidelines offense; or (ii) the court could have considered the pre-Guidelines and Guidelines offenses to be unrelated and ordered consecutive sentences for them. We disagree.

We addressed this very issue in United States v. Parks, 924 F.2d 68, 71-74 (5th Cir.1991). In that case, the district court considered pre-Guidelines conduct in calculating a sentence for Guidelines convictions, and then ordered consecutive sentences for the pre-Guidelines and Guidelines convictions. In considering challenges which closely echo those now articulated by Kings, we held that:

Although district courts often do order concurrent sentences for defendants in Parks' situation, we conclude that the Guidelines do not require that result and that the district court here did not err in applying the Guidelines to Parks. We recognize that due deference is afforded to the district court's application of the Sentencing Guidelines. We hold that it is within the district court's discretion to order consecutive sentences for pre-Guideline and Guideline convictions even if it uses pre-Guideline conduct in arriving at the Guideline offense level.

Parks, 924 F.2d at 71; see also United States v. Gaudet, 966 F.2d 959, 963 (5th Cir.1992) (relying upon Parks, and holding that district court's have discretion to impose consecutive sentences for Pre-Guidelines and Guidelines offenses even if pre-Guidelines conduct is used to arrive at a Guidelines offense level); United States v. Ewings, 936 F.2d 903, 910 (7th Cir.1991); ⁵ United States v. Watford, 894 F.2d 665, 667-68 (4th Cir.1990) (written by the Chairman of the United States Sentencing Commission, Judge Wilkins). The principles guiding our Parks decision--principles that also guide us in the case at issue--are that (i) pre-Guidelines conduct may be considered in arriving at a Guidelines offense level, ⁶ (ii) district court's generally have broad discretion--especially for pre-Guidelines offenses--in deciding whether sentences should run concurrently or consecutively, so long as the overall sentence remains within statutory limits, ⁷ and (iii) sentences for pre-Guidelines offenses may run consecutively to sentences for offenses which fall under the Guidelines. ⁸ See Parks, 924 F.2d at 72 (discussing the jurisprudence establishing each of these principles). Although we...