U.S. v. Mikalajunas

• Decision Date: 11 June 1991
• Docket Number: No. 90-5684,90-5684
• Citation: 936 F.2d 153
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Joseph Russell MIKALAJUNAS, Jr., Defendant-Appellant.
• Court: U.S. Court of Appeals — Fourth Circuit

Page 153

936 F.2d 153

UNITED STATES of America, Plaintiff-Appellee, v. Joseph Russell MIKALAJUNAS, Jr., Defendant-Appellant.

No. 90-5684.

United States Court of Appeals Fourth Circuit.

Argued March 7, 1991.

Decided June 4, 1991.

As Amended June 11, 1991.

Ellen Luff, argued, Gambrills, Md. (Gill Cochran, on the brief, Annapolis, Md.), for defendant-appellant.

Joseph Lee Evans, Asst. U.S. Atty., argued, Baltimore, Md. (Breckinridge L. Willcox, U.S. Atty., Jamie E. Bennett, Asst. U.S. Atty., on the brief, Baltimore, Md.), for plaintiff-appellee.

Before MURNAGHAN and NIEMEYER, Circuit Judges, and RESTANI, Judge, United States Court of International Trade, sitting by designation.

RESTANI, Judge:

Defendant Joseph R. Mikalajunas, Jr. appeals a sentence imposed under the Federal Sentencing Guidelines in the United States District Court for the District of Maryland. Mr. Mikalajunas pleaded guilty to a charge of accessory after the fact to second degree murder. He alleges that the sentence he received was improper because the court erred in finding a two level enhancement to the offense calculation based on restraint of the victim. We conclude that the appeal is well taken and reverse and remand for resentencing.

BACKGROUND

On August 22, 1989, Michael Mikalajunas, the brother of appellant Joseph R. Mikalajunas, Jr., was indicted by a grand jury in the District of Maryland for the murder of Christopher Weathers.

On January 16, 1990, a superseding indictment was filed charging Michael Mikalajunas, Craig E. Largent and William R. Woolridge with murder. That superseding indictment also charged that Joseph R. Mikalajunas, Jr. was an accessory after the fact to first degree murder and second degree murder.

On April 4, 1990, Joseph Mikalajunas appeared before the district court and pleaded guilty to the charge of accessory after the fact to second degree murder. That plea was made pursuant to an agreement in which the government and the defense reached a nonbinding stipulation that an offense level of twenty-six was the appropriate guideline level. On July 2, 1990, Joseph Mikalajunas was sentenced to fifty-seven months incarceration. That is the minimum sentence in offense level twenty-five, which the district court concluded was the appropriate level.

According to the statement of facts offered in support of the guilty plea, Joseph Mikalajunas ("Joseph" or "Defendant") was home on leave from the army and was asleep in his parents' home in Anne Arundel County, Maryland, when his brother Michael woke him and told him that Christopher Weathers had been killed earlier that morning. Immediately thereafter, Michael took Joseph to see the body. Joseph observed that the victim had been stabbed, noting one large wound in the neck. Michael explained that he, Craig Largent and William Woolridge, Jr. had lured Weathers to a secluded spot on Fort George G. Meade. Michael indicated that Woolridge had struck Weathers in the head with a baseball bat, after which Weathers had attempted to flee. Michael and Largent had Several days later, Joseph telephoned Steven Bonney ¹ and convinced him to assist Michael in burying the body. Several weeks after the murder, Bonney, Michael and another individual buried the body. Subsequently, the third individual who had assisted in the burial led police to the body.

then chased and caught Weathers and stabbed him to death.

According to the sworn affidavit of Detective Dirk A. Rinehart, Joseph told detectives that Michael had told him that he had "held Mr. Weathers while stabbing him, and that [Michael] had inflicted the wounds...." Appendix at 43. In apparent contravention of the plea agreement, in which the government promised not to use against Joseph information that he supplied after he agreed to cooperate, the government used this affidavit to support its sentencing recommendation.

On May 25, 1990, the Probation Department filed a presentence report. The report stated that the underlying offense of second degree murder has a base level of thirty-three and an accessory after the fact charge warrants an offense level six levels lower than the underlying offense, resulting in a base offense level of twenty-seven. The report allowed an adjustment for acceptance of responsibility and deducted two points, yielding a total offense level of twenty-five.

Following the government's objection to the computation in the presentence report the Probation Department filed an addendum to the presentence report in which it took issue with the government's attempt to obtain an upward departure under Guideline Sec. 5K2.8 (Extreme Conduct), as well as the government's attempt to obtain an increase in the base offense level for "restraint of victim," pursuant to Guideline Sec. 3A1.3. The court rejected the section 5K2.8 upward adjustment, but it raised the offense level by two, pursuant to Guideline Sec. 3A1.3. Because of a downward departure of two levels for substantial assistance to law enforcement the court arrived at a final offense level of twenty-five.

DISCUSSION

I. Affidavit Used in Contravention of Plea Agreement

In apparent contravention of the plea agreement, the government used the affidavit of Detective Rinehart to support its contention that an upward adjustment for physical restraint was warranted. According to the affidavit, Joseph told police that Michael had related that he had held Weathers while stabbing him. The government had agreed not to use information, such as the affidavit, which was obtained from Joseph while he cooperated. The statement submitted in support of the plea simply said that Michael had told Joseph that he and one other person had caught Weathers and stabbed him. Joseph's attorney failed to object at sentencing to use of the Rinehart affidavit, but argues now that the government breached the agreement, and the sentence, which was based on the affidavit, should be reversed.

Whether objection was waived need not be resolved, because there is no relevant distinction between the facts agreed to for sentencing purposes and the affidavit. ² Without further elucidation, there is no meaningful way to distinguish between one, catching someone and stabbing him, and two, holding someone and stabbing him. If the government had other information indicating that some substantial restraint was employed, there is nothing of record to show that such information was imparted to Joseph or that such information was properly before the court for purposes of the sentencing.

II. Enhancement for Physical Restraint of the Victim

At issue before us is whether Guideline Sec. 3A1.3, providing for enhancement of offense level for physical restraint, requires something beyond acts which are part and parcel of a stabbing. According to the Commentary to Guideline Sec. 1B1.1, physical restraint is "the forcible restraint of the victim such as by being tied, bound, or locked up." The concept of restraint is not limited to these examples. The question presented is whether the conduct involved here falls with the concept illustrated by these examples, and is intended to be covered by Guideline Sec. 3A1.3.

The leading Fourth Circuit case on enhancement for physical restraint is United States v. Stokley, 881 F.2d 114 (4th Cir.1989). In that case, the defendant placed explosives in a room and prevented the victim from leaving. The bomb went off, injuring both. The court enhanced the offense level by two points for physical restraint of the victim. Stokley is distinguishable from the facts at bar. First, the victim was confined to a room for some time. Second, detonation of explosives does not in and of itself involve physical restraint. Most bombing victims do not know of their imminent fate. It adds something to the offense that the victim had an apprehension of the expected blast and could do nothing about it because of the physical restraint. Stabbing, however, is of a different nature. The very act of stabbing normally will involve some physical restraint.

The government also relies on United States v. Roberts, 898 F.2d 1465 (10th Cir.1990). In that case, defendant placed an arm around the victim's neck, held a knife to her throat, forced her to withdraw cash from a cash machine and robbed her. We need not decide whether Roberts represents the law of this Circuit, because the Roberts fact pattern differs significantly from the facts before us. First, the victim in Roberts was held and threatened for a long enough period to accomplish the cash withdrawal; this would appear to be some minutes. Second, robbery encompasses many fact patterns. Robbery need not involve a physical holding, and one can envision various types of robberies involving no restraint at all. If the properly considered facts had indicated that Joseph had been told that Weathers had been held for some time prior to being stabbed or that one person restrained the victim while another stabbed him, this case would more closely resemble Roberts.

Every murder involves the ultimate restraint. Such terminal restraint is simply an element of the crime of homicide. According to Commentary 2 to section 3A1.3, an act which is merely an element of the underlying offense does not warrant an enhancement for physical restraint. An upward adjustment for restraint is to be made in the context of an act which adds to the basic crime. Furthermore, the examples of physical restraint in the guidelines, while not all inclusive, imply that the guidelines intend an enhancement for something other than a brief holding as part of a stabbing. As these were the only facts properly before the court for purposes of defendant's sentence, the sentence may not stand.

III. Guideline Range Overlap

Without the upward adjustment for physical restraint, the offense level would be twenty-three. The sentencing range would be forty-six to fifty-seven months.

We have made it clear that unless the court unequivocally finds that a sentence is appropriate under...