U.S. v. Soy, 03-3438.
| Decision Date | 28 June 2005 |
| Docket Number | No. 03-3438.,No. 04-1218.,03-3438.,04-1218. |
| Citation | 413 F.3d 594 |
| Parties | UNITED STATES of America, Plaintiff-Appellee, v. Robert A. SOY, Defendant-Appellant. Robert A. Soy, Petitioner-Appellant, v. United States of America, Respondent-Appellee. |
| Court | U.S. Court of Appeals — Seventh Circuit |
Andrew B. Baker, Jr., Office of the United States Attorney (argued), Hammond, IN, for United States.
R. Brian Woodward (argued), Casale, Woodward & Buls, Merrillville, IN, for Robert A. Soy.
Before POSNER, RIPPLE and WOOD, Circuit Judges.
Robert A. Soy was convicted on arson and explosives charges and was sentenced to life imprisonment; after two appeals, Mr. Soy's sentence was reduced to 528 months. A subsequent motion pursuant to 28 U.S.C. § 2255—the basis for the present appeal—resulted in a Pyrrhic victory for Mr. Soy: The district court granted Mr. Soy relief with respect to one of his convictions, but resentenced him to the same term of imprisonment. In this consolidated appeal, Mr. Soy challenges the district court's judgment with respect to substantive relief and to sentencing. For the reasons set forth in the following opinion, we affirm the judgment of the district court, but order a limited remand pursuant to United States v. Paladino, 401 F.3d 471 (7th Cir.2005).
We have set forth the facts relevant to this litigation in two prior opinions, United States v. Prevatte ("Prevatte I"), 16 F.3d 767 (7th Cir.1994), and United States v. Prevatte ("Prevatte II"), 66 F.3d 840 (7th Cir.1995). We assume familiarity with those opinions and, consequently, recount only those facts essential to the disposition of Mr. Soy's present claims.
In 1991, Russell Prevatte, Douglas Bergner, Jerry Williams and Mr. Soy embarked on a series of burglaries, some successful and some not. Later in the same year, Mr. Soy discussed with Williams—who was attending the Indiana State Police Academy at the time—and also with Prevatte the possibility of using pipe bombs as diversions for burglaries. If events went as the men planned, a bomb detonated in one area would divert emergency personnel to the area of the resulting fire; this diversion would prevent police from responding—or, at the least, responding in a timely fashion—to a burglary in another area.
On December 23, 1991, the first pipe bomb was detonated in the alley behind a single-family dwelling in Hammond Indiana. This bomb was designed as a test to determine the response time of emergency personnel. Fragments from the bomb killed the resident of the home, Emily Antkowicz, and also punctured the gas meter attached to her house approximately fifty feet away. After this first bombing, the group decided to target gas meters because the possibility of resulting leaks and collateral damage drew a larger-than-expected number of people to the area.
On December 30, 1991, the men set off a second pipe bomb. The bomb was attached to a bank of gas meters at the rear of Edo's Lounge in Highland, Indiana, which was open to patrons at the time. The explosion caused a gas fire that damaged the lounge. This bomb was designed as a diversion for an attempted, but unsuccessful, burglary at an Aldi grocery store.
The following day, a bomb exploded near the gas meter behind Salvino's Restaurant in Hammond, Indiana. The explosion caused a fire which damaged the meters as well as the rear wall of the restaurant. Fragments from the explosion caused additional damage. The bomb was designed to frighten away the occupants of the apartment above the restaurant who might witness the group's attempt to burglarize a neighboring liquor store.
A fourth bomb was designed as a diversion for another unsuccessful burglary, this time of a currency exchange. The pipe bomb exploded under the gas meters of a multi-family apartment building in Hammond. Fragments from the bomb damaged the apartment building.
The final bomb was a diversion for the burglary of an Aldi grocery store. On January 5, 1992, the bomb exploded under the gas meters at an apartment building in Hammond. The explosion damaged the meter attached to the apartment building as well as a nearby single-family home.
A grand jury returned a twenty-one count indictment against Prevatte and Mr. Soy. Relevant to the issues currently before this court, Count 1 charged Mr. Soy with engaging in a conspiracy to maliciously damage or destroy property by means of an explosive in violation of 18 U.S.C. § 844(i); the overt acts in furtherance of the conspiracy were each of the bombings set forth above. Count 2 charged Mr. Soy with a violation of 18 U.S.C. § 844(i) with respect to the bombing of Emily Antkowicz's home.1 Counts 6, 10, 14 and 18 each charged a violation of § 844(i) based on the other bombings.2 A jury convicted Mr Soy on all of these counts. The district court sentenced Mr. Soy to life imprisonment. Specifically, the district court determined, in accordance with the United States Sentencing Guidelines ("U.S.S.G." or "Guidelines"), that Mr. Soy should be sentenced to life imprisonment on Count 2. According to the Guidelines, the sentences on the remainder of the counts were to run concurrently with the sentence on Count 2 because "the sentence imposed on the count carrying the highest statutory maximum [wa]s adequate to achieve the total punishment." U.S.S.G. § 5G1.2.3
Mr. Soy and the other defendants appealed their convictions and sentences. With respect to his sentence, Mr. Soy argued that the district court erred when it cross-referenced the first degree murder guideline with respect to Count 2—the bombing that resulted in the death of Emily Antkowicz. We rejected this argument and held that "the bombing at issue [wa]s sufficiently similar to arson to apply the first degree murder guideline on this basis." Prevatte I, 16 F.3d at 780. We explained:
[Section] 2A1.1. is the most analogous guideline when death results from a violation of § 844(i) from use of fire. Furthermore, on the basis of our reading of the legislative history, we do not believe the fact that death results from an explosion, and not a fire, alters the outcome. As we have noted, Congress intended that fire and explosive be equivalents for purposes of § 844(i).... Congress understandably equated the killing of a human being by burning and the killing of a human being by explosion. Thus, we conclude that the court correctly applied the first degree murder guideline.
Id. at 782 (emphasis in original; footnote omitted). Although this court agreed with the district court's application of the first degree murder guideline, we could not uphold the district court's imposition of a life sentence. We explained that 18 U.S.C. § 34 prevents a district court from imposing a life sentence without a jury recommendation. Consequently, we remanded for resentencing.
On remand, the district court imposed a sentence of 636 months. Mr. Soy again appealed his sentence. One of the issues raised on appeal was whether the district court complied with this court's mandate in resentencing the defendants. We held that the district court had done so. We stated that
[i]n our earlier appeal, we ... directed the district court to consider the applicability of application note 1 to § 2A1.1 of the Guidelines.... [T]hat note provides that, when the conviction of first degree murder is predicated on a theory other than premeditated killing, life imprisonment is not necessarily the appropriate sentence and that, in such circumstances, a downward departure "may be warranted." Our direction to the district court, therefore, was to consider whether, on the facts of this case, a downward departure was warranted.... [T]he district court effectively carried out this court's order by departing to an extent based upon the defendants' "state of mind (recklessness or negligence), the degree of risk inherent in the conduct, and the nature of the underlying offense conduct." U.S.S.G. § 2A1.1, comment. (n.1).
Prevatte II, 66 F.3d at 844. However, Mr. Soy argued that, once the district court made the decision to depart, it was obliged "to impose a sentence that would have been imposed for second degree murder." Id. According to Mr. Soy, because the district court found that "the placement and detonation of the bomb amounted to `recklessness and reckless state of mind and behavior,'" his conduct could be equated only with second degree murder. Id. We, again, rejected this argument:
We do not read application note 1 as cabining the discretion of the district court to that degree. The application note quite explicitly suggests that a departure below that prescribed for second degree murder or for the underlying offense is not likely to be appropriate. This notation is hardly a directive to the district court that any departure must, as a matter of law, reduce the sentence to the level of second degree murder. To hold that a departure must correspond to the base offense level stipulated in § 2A1.2, Second Degree Murder, every time the court finds that a defendant's mental state was less than "intentionally or knowingly," cf. U.S.S.G. § 2A1.1, comment. (n. 1), would negate the congressional determination that death resulting from certain felonies, such as arson, should be punished, not as second degree murder, but as first degree murder.... Indeed, the district court's redetermination of the sentence in this case demonstrates the need for the flexibility that the application note gives to a sentencing court. The district court commented quite extensively on the mental state of the defendants at the time of the crime.... This analysis can be read as a determination by the district court that the defendants engaged in conduct that, although not premeditated, involved a high degree of recklessness and warranted punishment between the level that would be employed...
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