U.S. v. Lombard

Decision Date15 December 1995
Docket NumberNo. 94-2000,94-2000
Citation72 F.3d 170
PartiesUNITED STATES of America, Appellee, v. Henry LOMBARD, Defendant, Appellant.
CourtU.S. Court of Appeals — First Circuit

F. Mark Terison, Assistant United States Attorney, with whom Jay P. McCloskey, United States Attorney, was on brief, Portland, ME, for United States.

Jane E. Lee, Portland, ME, by appointment of the court, for appellant.

Before TORRUELLA, Chief Judge, STAHL and LYNCH, Circuit Judges.

LYNCH, Circuit Judge.

Henry Lombard, Jr. and Hubert Hartley were tried separately in the Maine Superior Court in 1992 on charges of murdering two men. Each was acquitted. Afterward, Lombard and Hartley were indicted as co-defendants in the federal district court in Maine on federal firearms and other charges arising out of the murders. Hartley pleaded guilty at mid-trial, but appellant Lombard entrusted his fate to the jury. He was convicted.

At sentencing, under the Guidelines, the district court found by a preponderance of the evidence that Lombard had used his illegally possessed firearm to commit "another offense": the same murders of which he had been acquitted in the state court. The resulting Guidelines sentence was a mandatory term of life in prison, which Maine law would not have required even had defendant been convicted of the murders. Lombard thus received a life sentence based on the federal court's finding that it was more likely than not that Lombard had committed the murders of which he had been acquitted. The sentencing judge was greatly troubled but felt as a matter of law that he had no authority to do otherwise under the Guidelines.

Lombard appeals the mandatory life sentence and his convictions. We affirm the convictions for the reasons stated later. We address first the very troubling sentencing issue. Finding that this is a case in which the life sentence enhancement is the "tail which wags the dog" of defendant's trial and conviction, thus raising constitutional due process concerns, we hold that under section 5K2.0 of the Guidelines the district court had the authority, which it thought it had not, to consider a downward departure. We vacate the life sentence and remand for a determination of whether a downward departure might be warranted in the unique circumstances here.

I Background

On Thanksgiving morning of 1990, Morris Martin and Paul Lindsey, Jr. were murdered each shot in the head as he lay sleeping in the living room of a small cabin in the backwoods of Fairfield, Maine. The cabin was owned by Hubert Hartley, the half-brother of the defendant Henry Lombard. All four men had been living in the cabin for a week to hunt deer in the surrounding woods. Tammy Theriault, Hartley's girlfriend, had also been living in the cabin, along with her eighteen month old daughter. She was also pregnant with Hartley's child at the time. Theriault was a near-eyewitness to the murders, able to hear and observe much through a hole in the floor of her upstairs bedroom.

Lombard and Hartley were tried separately on state charges of murder before two juries in the Maine Superior Court. Each defendant testified in his own defense and claimed that the other had committed the murders. Hartley and Theriault testified against Lombard at Lombard's trial. Both state trials resulted in acquittals.

One year later, a federal grand jury returned an indictment in the U.S. District Court, charging Hartley and Lombard with unlawful possession of a firearm, aiding and abetting the same, and with conspiracy charges relating to the aftermath of the murders. 1 Lombard and Hartley were tried jointly in the federal district court. The prosecution's key witness was Tammy Theriault. Her testimony departed in some respects from the testimony and statements she gave earlier. She testified, as follows, that although she did not see the murders being committed, she did hear conversations between Hartley and Lombard just before and after the gunshots were fired. At about 10 a.m. on Thanksgiving morning, Lombard and Hartley returned to the cabin from a morning hunt. Martin and Lindsey were asleep on couches in the living room. Hartley, seeing Theriault, told her to go back upstairs because he and Lombard "had something to do." On returning to her room, she heard Lombard say to Hartley, "[I]f you don't shoot him, I'm going to shoot 'em both." Next, Theriault, still upstairs with her baby daughter, heard five or six gunshots, followed by Lombard's exclamation, "I didn't think you had the guts to do it." Hartley boasted, "I showed you, didn't I?" and added, "I don't think he's dead yet. Shoot him again."

Lombard and Hartley stuffed the victims' bodies in garbage bags, as Theriault watched through the hole in her bedroom floor. Theriault was with Lombard and Hartley as they cleaned the cabin of blood and other evidence and hid the bodies temporarily in the cellar. The next day, as the two men were attempting to move the bodies to the trunk of Hartley's car, Theriault's family arrived to bring Thanksgiving leftovers. They sat visiting in the living room, with one victim's body hidden in the trunk of Hartley's car outside, the other still in the cellar. Theriault accompanied Lombard and Hartley when they later went to dump both bodies in a roadside bog. She was also present when Lombard sold his Marlin .22 caliber rifle as well as the victims' two hunting guns to a broker. Lombard and Hartley were planning to flee from Maine to Massachusetts just before they were arrested.

Excerpts of testimony that Hartley and Lombard had given in their state court murder trials were also admitted into evidence. These excerpts (including Lombard's own prior testimony) corroborated much of Theriault's account and established that Lombard owned a Marlin .22 caliber rifle which he had brought to Hartley's cabin, that he loaded it on the morning of Thanksgiving Day, 1990, that he took the gun with him to go hunting that morning, and that Lombard and Hartley together attempted to clean the bloody cabin following the murders, removed evidence of the murders, disposed of the bodies, and planned to flee from Maine. Other witnesses' testimony established that Lombard had reason to be aware that he could not lawfully possess a firearm, that he nonetheless purchased the .22 caliber rifle from Tammy Theriault's brother, and that the bullets that were recovered from the victims' bodies were consistent with having been fired from a .22 caliber rifle.

Hartley pleaded guilty at the close of the government's case. Lombard, however, put his case to the jury (without presenting an affirmative case) and was convicted on both Counts 1 and 2 of the indictment.

At Lombard's sentencing, the court applied a cross-reference in the relevant provision of the Guidelines governing the firearms conviction (Count 2), which essentially provided that if Lombard's unlawfully possessed firearm had been used in the commission of a murder, his base offense level (BOL) on that conviction was to be determined by the same guideline applicable to a conviction for murder. The court determined that the firearm had so been used. The resulting BOL required a term of life imprisonment, and Lombard was sentenced accordingly.

II The Sentence

Lombard raises two challenges to the sentence imposed by the district court. He contends that the life sentence was imposed in violation of his rights under the Due Process Clause. 2 He also argues, to no avail, that he was erroneously denied credit under the Guidelines for his acceptance of responsibility for the firearms and flight crimes.

A. Calculation of the Guidelines Sentence

Lombard received a life sentence as a thrice-prior convicted felon ostensibly for his unlawful possession of a firearm in violation of 18 U.S.C. Secs. 922(g) and 924(e). 3 He was sentenced to the statutory maximum of 60 months for the conviction on the conspiracy count, concurrent with the life sentence. 4 Lombard does not contend here that the district court incorrectly applied the Guidelines in determining his life sentence, but rather argues that the manner in which the Guidelines, as applied by the court, required it to conduct its factfinding and mandated the life sentence violated his constitutional rights.

The specific guideline applicable to the defendant's firearms conviction is U.S.S.G Sec. 2K2.1. 5 Subsection (a)(2) of the 1990 version of section 2K2.1 sets a BOL of 12 "if the defendant is convicted under 18 U.S.C. Sec. 922(g)...." 6 The "cross-reference" provision of subsection (c)(2) of section 2K2.1 directs that "[i]f the defendant used or possessed the firearm in connection with commission or attempted commission of another offense, apply Sec. 2X1.1 ... in respect to that other offense, if the resulting offense level is greater than that determined above." U.S.S.G. Sec. 2K2.1(c)(2) (Nov. 1990). Treating the murders as "another offense," and finding by a preponderance of the evidence that the defendant had committed that other offense, the court applied section 2X1.1, which directed the defendant's BOL to be set at "[t]he base offense level from the guideline for the object offense...." U.S.S.G. Sec. 2X1.1(a) (Nov. 1990). The "object offense" was first degree murder, to which a BOL of 43 attaches. 7 See U.S.S.G. Sec. 2A1.1. Finding no basis for awarding acceptance-of-responsibility credit, the district court assigned a total offense level of 43. Because Lombard was sentenced as a career criminal under 18 U.S.C. Sec. 924(e), there was a statutory minimum of 15 years, but no stated statutory maximum applicable; thus no reduction was indicated under U.S.S.G. Sec. 5G1.1(a) (which requires adjustment of a Guidelines sentence to comply with the statutory maximum for the offense of conviction). The defendant's final Guidelines sentence was a mandatory term of life imprisonment. See U.S.S.G. Ch. 5, Pt. A (assigning life sentence to BOL of 43 for all criminal history...

To continue reading

Request your trial
82 cases
  • U.S. v. Kaluna, s. 96-10527
    • United States
    • United States Courts of Appeals. United States Court of Appeals (9th Circuit)
    • August 3, 1998
    ...and convincing evidence" standard. United States v. Restrepo, 946 F.2d 654, 659 (9th Cir.1991) (en banc); see also United States v. Lombard, 72 F.3d 170, 186-87 (1st Cir.1995) (holding that where sentence enhancement is "enormous" downward departure was allowed because enhancing a sentence ......
  • U.S. v. Beckford, Criminal No. 3:96CR66-01.
    • United States
    • United States District Courts. 4th Circuit. United States District Court (Eastern District of Virginia)
    • May 6, 1997
    ...the tail wags the dog of the substantive offense), cert. denied, 503 U.S. 961, 112 S.Ct. 1564, 118 L.Ed.2d 211 (1992); United States v. Lombard, 72 F.3d 170 (1st Cir.1995) (holding that, where mandatory life sentence enhancement was the "tail which wags the dog" of defendant's firearm convi......
  • U.S. v. Woodward, 97-1429
    • United States
    • United States Courts of Appeals. United States Court of Appeals (1st Circuit)
    • March 6, 1998
    ...59, 61 (1st Cir.1996) (affirming admission of evidence that victim died of gunshot wounds at trial for carjacking); United States v. Lombard, 72 F.3d 170, 190 (1st Cir.1995) (evidence relating to murder, of which defendant had previously been acquitted, admitted at trial on firearms In Sawy......
  • U.S. v. Holland, CRIM. AMD 96-0399.
    • United States
    • United States District Courts. 4th Circuit. United States District Court (Maryland)
    • August 31, 1998
    ...whether a due process violation can be incurred by imposition of a cross reference, the Court discussed, inter alia, United States v. Lombard, 72 F.3d 170 (1st Cir.1995), cert. denied, ___ U.S. ___, 117 S.Ct. 2437, 138 L.Ed.2d 197 (1997). Id. at 367-68. In that case, the First Circuit held ......
  • Request a trial to view additional results
5 books & journal articles
  • Federal criminal conspiracy.
    • United States
    • American Criminal Law Review Vol. 45 No. 2, March 2008
    • March 22, 2008
    ...for fear that the jury would view the trial of the non-confessing co-conspirator as a mere "formality"); United States v. Lombard, 72 F.3d 170, 189 (1st Cir. 1995) (holding arrest terminates conspiracy, but allowing declaration based on other grounds); United States v. Alonzo, 991 F.2d 1422......
  • Federal criminal conspiracy.
    • United States
    • American Criminal Law Review Vol. 42 No. 2, March 2005
    • March 22, 2005
    ...329 U.S. 211,217 (1946) (finding post-arrest admission or confession is not in furtherance of conspiracy); United States v. Lombard, 72 F.3d 170, 189 (1st Cir. 1995) (holding arrest terminates conspiracy, but allowing declaration based on other grounds); United States v. Alonzo, 991 F.2d 14......
  • Federal criminal conspiracy.
    • United States
    • American Criminal Law Review Vol. 43 No. 2, March 2006
    • March 22, 2006
    ...329 U.S. 211, 217 (1946) (finding post-arrest admission or confession is not in furtherance of conspiracy); United States v. Lombard, 72 F.3d 170, 189 (1st Cir. 1995) (holding arrest terminates conspiracy, but allowing declaration based on other grounds); United States v. Alonzo, 991 F.2d 1......
  • Federal criminal conspiracy.
    • United States
    • American Criminal Law Review Vol. 44 No. 2, March 2007
    • March 22, 2007
    ...329 U.S. 211, 217 (1946) (finding post-arrest admission or confession is not in furtherance of conspiracy); United States v. Lombard, 72 F.3d 170, 189 (1st Cir. 1995) (holding arrest terminates conspiracy, but allowing declaration based on other grounds); United States v. Alonzo, 991 F.2d 1......
  • Request a trial to view additional results

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT