U.S. v. Reis, Docket No. 03-1593.
| Decision Date | 24 May 2004 |
| Docket Number | Docket No. 03-1593. |
| Citation | 369 F.3d 143 |
| Parties | UNITED STATES of America, Appellee, v. Saul Dos REIS, Defendant-Appellant. |
| Court | U.S. Court of Appeals — Second Circuit |
James Michael Lenihan, Lenihan & Tilem, White Plains, NY, for Defendant-Appellant.
Kevin J. O'Connor, United States Attorney for the District of Connecticut, Bridgeport, CT (Brian E. Spears, on the brief), for Appellee.
Before: McLAUGHLIN and JACOBS, Circuit Judges, and COVELLO, District Judge.*
Saul Dos Reis appeals from a sentence entered in the United States District Court for the District of Connecticut (Underhill, J.).
Dos Reis pled guilty to two counts of interstate travel to engage in unlawful sexual activity, in violation of 18 U.S.C. § 2423(b). Pursuant to the United States Sentencing Guidelines ("U.S.S.G.") § 5K2.1, the court upwardly departed and sentenced Dos Reis to consecutive terms of 120 and 180 months' imprisonment, representing the statutory maximum on both counts, for a total term of 300 months' imprisonment.
On appeal, Dos Reis argues that: (1) the district court erred in departing upwardly and sentencing him to the statutory maximum on Count I based on conduct alleged in Count II; and (2) the extent of the departure impermissibly double-counted the victim's age, and, alternatively, was unreasonable.
We conclude that the district court did not commit plain error by upwardly departing and imposing the statutory maximum on Count I. Because we review this challenge only for plain error, we address, but do not resolve, the unsettled issue of whether "total punishment" under U.S.S.G. § 5G1.2(d) () includes an upward departure based on conduct relating to only one count of conviction. Although Dos Reis's sentence is more than triple the upper limit of the Guidelines' range of 87 months, we hold that the district court did not double count and that the extent of the departure was not unreasonable.
Thus, we affirm the sentence in all respects.
In 1998, Dos Reis "met" 15-year-old "Jane Doe" in an Internet chat room. Dos Reis wrote that he was 19, when in fact he was 20. After several weeks of communication, Dos Reis traveled from his workplace in Portchester, New York, to Jane Doe's home in Prospect, Connecticut, where they engaged in consensual sexual intercourse. After this encounter, they met twice more to engage in sexual intercourse.
In 2002, Dos Reis met "Christina" over the Internet in a similar fashion. Christina was 13 years and 2 months old, but she said she was 14. Dos Reis was now 24 years old and married, yet he told Christina that he was 19. Within one week of meeting over the Internet, they met in person at a shopping mall in Danbury, Connecticut, and rented a motel room, where they engaged in sexual intercourse.
When they met again at the mall the following week, Dos Reis drove Christina to a nearby parking lot where they engaged in sexual intercourse in his car. Christina died during intercourse. Forensic analysis showed ligature marks on her neck.
At sentencing, Dos Reis claimed that Christina asked to be strangled, ostensibly to create an asphyxia "high." In his sentencing memorandum, Dos Reis claimed that Christina herself tied a seatbelt around her neck and asked him to tighten it to produce the desired effect. Finding that the seatbelt hurt and worried that it might leave a mark, she then "showed him how to grip her neck and how to squeeze and loosen his grip." Dos Reis proceeded to use his hands on her neck to create the supposedly desired asphyxia. When Christina appeared to be in trouble, Dos Reis asserts that he thought she was kidding around. Christina, however, soon became unresponsive. Dos Reis unsuccessfully attempted mouth-to-mouth resuscitation, tasting blood in her mouth.
The events following her death are undisputed. Dos Reis left Christina's body in a stream and discarded her personal belongings in a gas station dumpster. The next day, in an effort to concoct an alibi, Dos Reis sent a self-serving e-mail to Christina, asking her about a date that she supposedly had with another man the previous night.
Dos Reis was charged in both state and federal court for the crimes associated with Christina's death as well as his sexual encounters with Jane Doe. In state court, Dos Reis pled guilty to statutory rape and entered an Alford plea to a charge of manslaughter in connection with the crimes he committed against Christina. A year later, Dos Reis was sentenced in the Connecticut Superior Court to 30 years' imprisonment.
In federal court, Dos Reis pled guilty to two counts of interstate travel to engage in unlawful sexual activity, in violation of 18 U.S.C. § 2423(b). Count I alleged his sexual abuse of Jane Doe in 1998; Count II concerned his sexual abuse of Christina in 2002.
The presentence report ("PSR") separated the two counts into two groups under U.S.S.G. § 3D1.2 because they involved separate victims. The offense level for each group was determined to be 28 predicated on: (1) a base offense level of 24 under U.S.S.G. § 2A3.2(a)(1); plus (2) an additional 2 levels for misrepresentation of identity; and (3) an additional 2 levels for using the Internet. Next, the combined adjusted offense level was set at 30 based on: (1) calculating 2 units from separating the 2 groups; and (2) adding 2 levels to the group with the highest offense level under U.S.S.G. § 3D1.4. From a combined adjusted offense level of 30, the PSR recommended a three-level downward adjustment for acceptance of responsibility. Accordingly, the single, combined offense level totaled 27, resulting in a sentencing range of 70-87 months' imprisonment.
Prior to his federal sentencing, the Government sought: (1) a denial of the reduction for acceptance of responsibility; (2) an upward criminal history departure; and (3) an upward offense level departure based on Christina's death. Dos Reis, in turn, requested an offense level reduction for his acceptance of responsibility, and he opposed both of the Government's motions for upward departures.
At sentencing, the court granted a three-level reduction for Dos Reis's acceptance of responsibility and adopted the PSR's suggested combined offense level of 27 and sentencing range of 70-87 months.
Citing U.S.S.G. § 5K2.1, the court also granted the Government's motion for an upward departure based on Christina's death. The court found that Dos Reis "knowingly risked Christina's death" because "[s]trangling ... is [an] inherently dangerous activity." Noting that it would have been "impossible" for Dos Reis not to know that he was "risking either death or serious physical harm to Christina at the time that he applied that pressure" to her neck, the court stated that "[w]hether or not, therefore, it was ... `an accident' doesn't matter." The court then analogized the crime to felony murder under 18 U.S.C. § 1111, concluding that "[t]here's no dispute whatsoever that the death occurred during the commission of the offense at issue, that is sexual abuse."
In considering the extent of the departure, the court reasoned that Christina's young age "not only makes the conduct more reprehensible but also ... increases the risk of death or serious harm from the conduct of choking or applying pressure to the neck." The court also noted that Dos Reis's disposal of the body and fabrication of an alibi were "factors that suggest a serious offense and suggest a more severe increase under the violations of 5K2.1."
The court upwardly departed to offense level 43 — corresponding to the offense level of felony murder under U.S.S.G. § 2A1.1 — which would have warranted a term of life imprisonment. However, the court noted that it was not permissible "to depart that far because the statutory maximum" for the offenses limited the extent of departure to 25 years. Citing U.S.S.G. § 5G1.2, which governs sentences imposed in cases involving multiple counts, the court imposed consecutive sentences of 120 and 180 months' imprisonment on Counts I and II, respectively, the statutory maximum on each count.1
In its written judgment, the court did not list any factors in support of its upward departure. Upon motion by the Government, however, the court amended its judgment and listed the following reasons: (1) the offense level substantially understated the seriousness of the crime; (2) Christina's death was knowingly risked and merited a "substantial increase" under § 5K2.1; and (3) Dos Reis's conduct was analogous to felony murder.
This appeal followed.
Dos Reis does not contest the district court's decision to depart upwardly under U.S.S.G. § 5K2.1. He does, however, challenge the procedure used to calculate the total sentence and the magnitude of the upward departure. Dos Reis argues that: (1) the district court erred in departing upwardly and in sentencing him to the statutory maximum on Count I based on conduct occurring in connection with Count II; and (2) the extent of the departure impermissibly double-counted the victim's age, and, alternatively, was unreasonable. We address each contention in turn.
The district court upwardly departed on Count I (involving Jane Doe) from the combined Guidelines sentencing range of 70-87 months' imprisonment based on Christina's death, as alleged in Count II. To come as close as possible to a sentence of life imprisonment — the punishment prescribed by the upward departure to offense level 43 — the district court imposed consecutive, statutory maximum sentences on both counts. Dos Reis now, for the first time, claims that the imposition of the statutory maximum on Count I was erroneous.
Because Dos Reis did not object to his sentence on this ground below, we review his claim for plain error pursuant to Rule 52(b) of...
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