U.S. v. Lewis

• Decision Date: 26 June 1997
• Docket Number: No. 96-2056,96-2056
• Citation: 115 F.3d 1531
• Parties: 11 Fla. L. Weekly Fed. C 117 UNITED STATES of America, Plaintiff-Appellee, v. Jerry Lee LEWIS, Defendant-Appellant. Non-Argument Calendar.
• Court: U.S. Court of Appeals — Eleventh Circuit

Page 1531

115 F.3d 1531

11 Fla. L. Weekly Fed. C 117

UNITED STATES of America, Plaintiff-Appellee, v. Jerry Lee LEWIS, Defendant-Appellant.

No. 96-2056

Non-Argument Calendar.

United States Court of Appeals Eleventh Circuit.

June 26, 1997.

Josephine H. Deyo, Tallahassee, FL, for defendant-appellant.

Don Allegro, Asst. U.S. Atty., Pensacola, FL, for plaintiff-appellee.

Appeal from the United States District Court for the Northern District of Florida.

Before BIRCH and CARNES, Circuit Judges, and FAY, Senior Circuit Judge.

PER CURIAM:

By a one count indictment, Jerry Lee Lewis (the "defendant") was charged with unlawfully and knowingly kidnapping a twenty-six year old woman and willfully transporting her in interstate commerce between the states of Florida and Alabama in violation of 18 U.S.C. § 1201(a)(1). The defendant pled guilty; the court sentenced him to life imprisonment. The defendant appeals that sentence. We affirm.

I.

On July 25, 1995, the defendant pled "not guilty" to the charge of kidnapping Monica Showalter ("Showalter"). Shortly before his scheduled trial, the defendant appeared with counsel at a rearraignment for the purpose of changing his plea to "guilty." The district court made numerous inquiries to establish the defendant's ability to understand the proceedings, ¹ and thereafter asked the prosecutor to state a factual basis for the plea.

In summary, the prosecutor indicated that, at about 2 a.m. on July 1st, Showalter stopped at a closed gas station in Gulf Breeze, Florida, to use a pay phone. A few minutes later, the defendant, who was unknown to Showalter, pulled into the same gas station. The defendant exited his car, struck Showalter, beat her into unconsciousness, placed her in his own vehicle, and drove westbound toward Alabama. En route, the defendant forced Showalter to perform oral sex upon him. After crossing into Alabama, the defendant stopped and raped Showalter both vaginally and anally. The journey then continued, until the defendant was pulled over for a traffic violation. The police officer saw Showalter sitting in the passenger seat, noted that she was weeping and wounded, and called an ambulance. Once Showalter was inside the ambulance, she informed the paramedics that she had been raped, whereupon the defendant was placed under arrest.

After the prosecution's summary, the defendant averred that not all of the recited facts were true. When asked by the court to specify which were true and which were not, the defendant emphatically stated that he did not rape Showalter and that he did not know he was in Alabama. ² The defendant then conferred with his attorney, who subsequently asked the defendant for the record whether he was "admit[ting] to the kidnapping portion." R2-11. The defendant's response: "Yes." The court informed the defendant that it made no difference whether he thought he was in Florida or Alabama and that the "other matters" would be taken up at the sentencing phase; the defendant said he understood. The court then asked the defendant whether he was "admitting to the actual kidnapping itself?" The defendant responded: "Yes, sir."

Following the defendant's admission, the prosecution indicated that by denying the rape, the defendant had failed to acknowledge some purpose for the kidnapping, which the prosecution believed to be an essential element of the crime. Defense counsel objected to the requirement that his client admit some specific purpose. After more discussion and a brief recess, however, the defendant stated that he kidnapped Showalter for "companionship."

The district court then advised the defendant that he was facing a maximum penalty of up to life imprisonment, or a fine of up to $250,000, or both, a term of supervised release of up to 5 years, a $50.00 special monetary assessment, and possible restitution. The defendant said he understood. The court asked the defendant if he had discussed the U.S. Sentencing Guidelines with his attorney. He had, and he understood that his attorney could not tell him what his sentence would actually be, that the sentence would only be determined after the probation office completed a presentence report, which the defendant would be able to challenge, and that even after all that was said and done, the court could in some circumstances still impose a sentence greater or less than that recommended by the Guidelines. The defendant also professed that he had no questions about his plea agreement, that he understood the nonbinding nature of the agreement upon the court, that he knew if his imposed sentence was greater or more severe than expected, he could still not withdraw the plea, that no threats, pressure, or intimidation had influenced him to plead guilty, that he was fully satisfied with his attorney's representation, and finally that he had no answers that he wanted to change, add to, or modify. The court then accepted the defendant's guilty plea.

At the defendant's sentencing hearing, the prosecution put on several witnesses to establish that Showalter's account of events was the true one. The defendant testified on his own behalf and told the court a substantially different version. The defendant admitted to beating Showalter, but claimed that after the altercation, Showalter consented to take a ride with him "to work things out." The defendant denied forcing Showalter to perform oral sex upon him and denied raping her anally. He conceded to having vaginal intercourse with Showalter, but claimed it was consensual. He further claimed that when the police officer pulled him over in Alabama, he had been searching for a hospital because Showalter was complaining of abdominal pains.

The district court rejected the defendant's version of events and proceeded to determine his sentence. Section 2A4.1 of the U.S. Sentencing Guidelines provided a base offense level of 24 for kidnapping. U.S. Sentencing Guidelines Manual § 2A4.1 (1994) [hereinafter U.S.S.G.]. Subsection (b)(7) of § 2A4.1 instructs that, if the defendant committed another offense during the kidnapping, the offense level should be determined from the "offense guideline applicable to that other offense if such offense guideline includes an adjustment for kidnapping [or] abduction[,]" and if such guideline provides a higher base offense level. U.S.S.G. § 2A4.1(b)(7). The district court found by a preponderance of the evidence that the defendant committed another offense, sexual abuse. The "criminal sexual abuse" guideline provided a base offense level of 27. U.S.S.G. § 2A3.1(a) (1994). The court thus used that base level and increased it by 8 for specific offense characteristics, including the abduction of Showalter and the defendant's use of force or threats of death, serious bodily injury, or kidnapping. See U.S.S.G. § 2A3.1(b)(1) (providing for 4 level increase where offense is committed by the means set forth in 18 U.S.C. § 2241, which refers to the use of force, threats, or fear); Id. at § 2A3.1(b)(5) (providing for 4 level increase when victim is abducted). The court then made an upward adjustment of 2 for obstruction of justice, which led to an adjusted offense level of 37. Finally, the court found that this case warranted a 3 level upward departure from the Guidelines because the defendant's conduct was unusually heinous, cruel, brutal, and degrading to the victim. See U.S.S.G. § 5K2.8 (approving of upward departure for extreme conduct). The end result of these calculations was a guideline level of 40, a criminal history category of III, and a sentencing range of 360 months to life. The court sentenced the defendant to life imprisonment.

The defendant now challenges (i) the constitutionality of his guilty plea, (ii) the prosecution's failure to prove sexual assault beyond a reasonable doubt, (iii) the court's adjusted offense level calculation, (iv) the court's upward departure from the Sentencing Guidelines, and (v) the constitutionality of the kidnapping statute, 18 U.S.C. § 1201. We find each of the defendant's arguments to be without merit.

II.

A defendant who pleads guilty must do so voluntarily and knowingly. United States v. Lopez, 907 F.2d 1096, 1098 (11th Cir.1990). To ensure that a defendant's guilty plea is knowing, Rule 11 of the Federal Rules of Criminal Procedure requires the court to " 'address the defendant personally in open court and inform the defendant of, and determine that the defendant understands ... the nature of the charge to which the plea is offered' and the potential consequences of that plea." Lopez, 907 F.2d at 1099 (quoting Fed.R.Crim.Pro. 11(c)). The defendant's first contention in this case is that his plea was not entered knowingly because he neither understood the nature of the kidnapping charge nor the possible consequences of his plea. He claims that the "conduct he admitted did not constitute the offense charged" and that his "denial of rape was equivalent to the denial of the kidnapping." Appellant's Br. at 14.

The elements of the crime of kidnapping under 18 U.S.C. § 1201 are (1) the transportation in interstate commerce (2) of an unconsenting person who is (3) held for ransom, reward, or otherwise, (4) with such acts being done knowingly and willfully. United States v. Duncan, 855 F.2d 1528, 1537 (11th Cir.1988). As to the first element, the defendant denied "knowing" he had driven into Alabama. R2-11. The prosecution, however, need not have shown that the defendant knew he was crossing state lines, but only that, in fact, the defendant did cross state lines: "Knowledge of crossing state lines is not an essential element of the kidnapping offense. The requirement that an offender cross state lines merely furnishes a basis for the exercise of federal jurisdiction." Duncan, 855 F.2d at 1537 (quoting United States v. Leichtman, 742 F.2d 598, 603 n. 5 (11th Cir.1984)); see id. ("If we interpreted § 1201 to require proof that the defendant knew he was going to cross state lines, we...