U.S. v. McCall

• Decision Date: 28 September 1990
• Docket Number: No. 1511,D,1511
• Parties: UNITED STATES of America, Appellee, v. Stanley McCALL, Defendant-Appellant. ocket 90-1074.
• Court: U.S. Court of Appeals — Second Circuit

Page 811

915 F.2d 811

UNITED STATES of America, Appellee, v. Stanley McCALL, Defendant-Appellant.

No. 1511, Docket 90-1074.

United States Court of Appeals, Second Circuit.

Argued July 19, 1990.

Decided Sept. 28, 1990.

Henriette D. Hoffman, New York City (The Legal Aid Soc., New York City, of counsel), for defendant-appellant.

Jonny Frank, Asst. U.S. Atty., Brooklyn, N.Y. (Andrew J. Maloney, U.S. Atty., E.D.N.Y., John Gleeson, Asst. U.S. Atty., Brooklyn, N.Y., of counsel), for appellee.

Before WINTER, MAHONEY and WALKER, Circuit Judges.

WINTER, Circuit Judge:

Stanley McCall appeals from a sentence imposed after a guilty plea. He argues that the district court applied a Sentencing Guidelines section based on his "real conduct" rather than on the offense for which he was convicted. This objection was never presented to the district court. He also argues, again for the first time, that his sentencing under the Guidelines violates the ex post facto clause of the Constitution. We reach the first issue and agree that the district court should have determined the relevant Guidelines section on the basis of McCall's offense of conviction. We also reach and reject his ex post facto claim.

BACKGROUND

Prior to his arrest, McCall was a member of a very violent narcotics ring organized and run by Delroy Edwards. McCall answered telephones and monitored security cameras on behalf of the ring. In addition to these duties, McCall became Edwards's "boy," which appears on this record to be street slang for a trusted assistant who shoots on command.

During 1987, McCall participated in four violent incidents at Edwards's direction and on behalf of the ring. On June 27, a worker from one of Edwards's drug "spots" reported being robbed. Edwards instructed McCall to go to the location and "shoot whoever was in the hallway." McCall thereafter fired sixteen rounds at people standing on the stairway inside the building. On July 3, McCall gave Edwards a gun with which Edwards shot David Moncrieffe as punishment for mismanaging a drug location in Philadelphia. Also in the summer of 1987, McCall went with Edwards to question one of Edwards's drug sellers about being "short of some money or something." Edwards shot the man in the leg, and McCall shot a woman in the doorway of the house to which the man tried to flee. Finally, on December 7, 1987, after Edwards had been shot by members of a rival drug organization, Edwards directed McCall to a particular location in Brooklyn and told him to "shoot anybody ... that look[s] Jamaican." While Edwards watched from a distance, McCall shot two people, leaving Rudolph Simms paralyzed from the waist down.

On December 11, 1987, McCall was arrested for possessing a firearm and thereafter entered into a plea agreement with the government. McCall agreed to plead guilty to a one-count information charging him with committing violent crimes in aid of racketeering activity, 18 U.S.C. Sec. 1959 (1988). The underlying crime charged as being in aid of the racketeering activity was "assault with a dangerous weapon." 18 U.S.C. Sec. 1959(a)(3). ¹ He also agreed to admit to the court his participation in drug distribution and in the four shootings charged in the information. McCall promised to cooperate fully in the investigation and prosecution of crimes committed by members of the Edwards drug organization. In return, the government agreed to inform the court of his cooperation if it McCall testified for the government at Edwards's trial, at which Edwards was found guilty on forty-two counts involving a wide variety of serious crimes. In a letter to the district court, the government described McCall's assistance to the Edwards prosecution as "invaluable" and "crucial." Moreover, the letter indicated that "[McCall's] cooperation was the catalyst for the investigation [and] led to the arrest and eventual cooperation of many of the other accomplice witnesses."

determined that McCall had made a good faith effort to provide substantial assistance to law enforcement officials. The plea agreement explicitly contemplated that McCall would be sentenced under the Sentencing Guidelines. On May 2, 1988, McCall pleaded guilty to the information. At his plea allocution, McCall described his role in the four violent incidents. ²

On November 21, 1989, when his case was first called for sentencing, McCall moved to have his Guidelines range based on his possession of a firearm, the charge on which he had been arrested. The district court requested memoranda on the issue and adjourned the hearing. In the course of preparing its response to McCall's motion, the government discovered that, because of an amendment to the Guidelines, the Guidelines section selected by the Probation Department was no longer applicable to McCall's offense. The Probation Department thereafter obtained additional information concerning McCall's conduct and applied Section 2A2.1, assault with intent to commit murder, to three of the assaults charged in the information. It applied Section 2A2.2, aggravated assault, to the shooting of David Moncrieffe. After considering the specific offense characteristics and adjusting for multiple offenses and acceptance of responsibility, the Probation Department calculated a total offense level of 33 and a criminal history category of II. The resulting Guidelines range was 151-188 months.

On January 16, 1990, the district court reconvened the sentencing hearing. Consistent with the Probation Department report, the court determined the applicable Guidelines range to be 151-188 months. The court first ruled that the Guidelines section for assault with intent to commit murder, U.S.S.G. Sec. 2A2.1, should apply to three of the four assaults, based on his finding that McCall had acted with a "depraved indifference to human life." Second, the court determined that a two-level upward adjustment for payment was appropriate. See id. Sec. 2A2.1(b)(4). Third, the court declined to make a two-level upward adjustment for more than minimal planning. See id. Sec. 2A2.1(b)(1). Fourth, the court determined that a prior disorderly conduct conviction was properly excluded in calculating McCall's criminal history category. Finally, the court rejected McCall's contention that he should be sentenced solely on the offense of firearms possession.

The court sentenced McCall to a term of 108 months imprisonment to be followed by three years of supervised release. This nine-year sentence represented a forty-three month downward departure from the minimum of what had been determined to be the applicable Guidelines range based on McCall's substantial assistance to the authorities. McCall appeals from this sentence.

DISCUSSION

McCall's principal argument on appeal is that the district court should have applied the Guidelines section for the offense to which he pleaded guilty--aggravated assault (in aid of racketeering)--rather than the section for his "real conduct"--determined by the court to be assault with intent to commit murder. This argument was never presented to the district court. He also argues, again for the first time, that his sentencing under the Guidelines was an ex post facto application of the statute. We consider each of these arguments in turn.

We believe we must reach the issue of which Guidelines section is applicable. It is true that this argument made on appeal was not made in the district court. It is also true that if the wrong section was applied then the error is not "plain" in the sense of being obvious or apparent. The lack of obviousness, however, is the result of the prolixity of the Guidelines and the unfamiliarity of counsel and the judiciary with their application. If we insist on taking "plain" literally, numerous fundamental errors would go unredressed. We believe that basing a sentence on the wrong Guidelines section is a fundamental error "affect[ing] substantial rights." Fed.R.Crim.P. 52(b). Here it involves the difference between a range of 87 to 108 months and the selected range of 151 to 188 months. We conclude that where claims of major errors in the application of the Guidelines are presented for the first time on appeal, we should, during the infancy of the Guidelines, reach the merits at least so long as the failure to raise an issue was not a calculated decision. This policy also expedites appellate review of disputed issues involving application of the Guidelines. ³

We turn to the merits. McCall contends that the district court erred when it determined the applicable Guidelines section based on its own finding that he had committed three of the charged assaults with "depraved indifference to human life" and therefore with an intent to commit murder. McCall argues that the Guidelines required the district judge to select the Guidelines section based on his offense of conviction, aggravated assault, rather than the section based on his "real conduct." We agree.

Under the Application Instructions, the sentencing court ordinarily determines "the applicable offense guideline section from Chapter Two," U.S.S.G. Sec. 1B1.1(a), by locating the offense of conviction in the Statutory Index. See generally Wilkins & Steer, Relevant Conduct: The Cornerstone of the Federal Sentencing Guidelines, 41 S.C.L.Rev. 495, 497-503 (1990) (explaining the role of the offense of conviction in determining applicable Guidelines section). In this case, McCall pleaded guilty to a one-count information charging him with committing violent crimes in aid of racketeering activity, 18 U.S.C. Sec. 1959. The Statutory Index lists Guidelines Section 2E1.3 for 18 U.S.C. Sec. 1959. See U.S.S.G. App. A at A.15. Section 2E1.3 instructs the court to assign the greater of offense level 12 or "the offense level applicable to the underlying crime or racketeering activity." The underlying crime charged in the information was "assault with a dangerous weapon," 18 U.S.C. Sec. 1959(a)(3). The Guidelines section applicable to...