U.S. v. Sanchez

• Decision Date: 07 January 2004
• Docket Number: No. 02-2566.,No. 02-2504.,02-2504.,02-2566.
• Citation: 354 F.3d 70
• Parties: UNITED STATES of America, Appellee, v. Samuel SANCHEZ, Defendant, Appellant. United States of America, Appellee, v. Raymond Anderson, Defendant, Appellant.
• Court: U.S. Court of Appeals — First Circuit

354 F.3d 70

UNITED STATES of America, Appellee, v. Samuel SANCHEZ, Defendant, Appellant.

United States of America, Appellee, v. Raymond Anderson, Defendant, Appellant.

No. 02-2504.

No. 02-2566.

United States Court of Appeals, First Circuit.

Heard November 4, 2003.

Decided January 7, 2004.

COPYRIGHT MATERIAL OMITTED

George J. West, for appellant Sanchez.

Robert B. Mann, with whom Mann & Mitchell was on brief, for appellant Anderson.

Donald C. Lockhart, Assistant United States Attorney, with whom Margaret E. Curran, United States Attorney, and Gerard B. Sullivan, Assistant United States Attorney, were on brief, for the United States.

Before SELYA, Circuit Judge, COFFIN and STAHL, Senior Circuit Judges.

SELYA, Circuit Judge.

In these consolidated appeals, two participants in a mindless carjacking and double homicide strive to convince us that the district court sentenced them more onerously than the law permits. After a painstaking review of the record, we find that the sentencing court committed no reversible error. Consequently, we leave the appellants' sentences intact.

I. TRAVEL OF THE CASE

Because the disputed sentences were imposed following admissions of guilt, we glean the material facts from the change-of-plea colloquies, the presentence investigation reports (PSI Reports), and the transcripts of the disposition hearings. United States v. Brewster, 127 F.3d 22, 24 (1st Cir.1997); United States v. Dietz, 950 F.2d 50, 51 (1st Cir.1991). Those facts paint a grisly picture.

On the evening of June 8, 2000, Samuel Sanchez, Raymond Anderson, and three other men carjacked Jason Burgeson and Amy Shute at gunpoint. After confronting the pair in downtown Providence, the malefactors appropriated their vehicle, drove in caravan style to a secluded area, murdered the abducted couple in cold blood, and took what little cash they had. The brutal crime attracted immediate attention and the authorities quickly rounded up five suspects.

On December 18, 2000, a federal grand jury sitting in the District of Rhode Island indicted Sanchez and Anderson (appellants here) and three others for conspiracy to commit a carjacking and carjacking with death resulting. See 18 U.S.C. §§ 371, 2119, & 2119(3). The appellants eventually pleaded guilty to both counts pursuant to written plea agreements in which the government promised not to seek the death penalty. Two of the other persons accused (Gregory Floyd and Harry Burdick) followed the same course and were sentenced to life imprisonment. The final member of the group (Kenneth Day) went to trial and, at the close of the government's case, moved successfully for judgment of acquittal. See Fed.R.Crim.P. 29.

The district court sentenced Sanchez on November 7, 2002.¹ The court arrived at his offense level by applying the first degree murder cross-reference, USSG §§ 2A1.1, 2B3.1(c); granting a three-level reduction for acceptance of responsibility, id. § 3E1.1; and departing upward by three levels, id. § 5K2.0. These steps yielded a total offense level of 43. The court then computed Sanchez's criminal history score, assigned him to criminal history category (CHC) II, and sentenced him to life imprisonment.

The court sentenced Anderson six days later. It applied the first degree murder cross-reference; granted a three-level reduction for acceptance of responsibility; and departed downward by two levels, "one because of [Anderson's] substantial cooperation and one because he [was] the least culpable." These steps yielded a total offense level of 38. After calculating Anderson's criminal history score, the court placed him in CHC III. This combination (offense level 38; CHC III) produced a guideline sentencing range (GSR) of 292-365 months. The court thereupon imposed a 30-year incarcerative sentence. These timely appeals ensued.

Each appellant advances three assignments of error. Sanchez challenges the district court's denial of a downward role-in-the-offense adjustment, its rejection of his entreaty for a downward departure, and its decision to depart upward. Anderson also challenges the district court's denial of a favorable role-in-the-offense adjustment and its refusal to grant a downward departure based on his state of mind at the time of the homicides. In addition, he questions the calculation of his criminal history score (and, thus, his CHC). We treat the common role-in-the-offense and downward departure issues first. We then address Sanchez's objection to the district court's upward departure and Anderson's complaint about the supposedly unwarranted inflation of his criminal history score.

II. ROLE IN THE OFFENSE

We begin with the appellants' claims that they deserved two-level reductions because they were minor participants in the offenses of conviction. A defendant who seeks a downward role adjustment must bear the burden of proof on that issue. United States v. Ocasio, 914 F.2d 330, 332-33 (1st Cir.1990). The ensuing question — whether to reduce the defendant's offense level due to his minor or minimal role in the offense — is an inquiry heavily driven by the facts. See United States v. Cruz, 120 F.3d 1, 3 (1st Cir.1997) (en banc); USSG § 3B1.2, cmt. (n.3(C)). Because the sentencing court has a superior coign of vantage, we must defer to its findings of fact unless those findings are clearly erroneous. Ocasio, 914 F.2d at 333. If a set of facts can lead plausibly to competing inferences, the sentencing court's choice among them cannot be termed a clear error. Cruz, 120 F.3d at 4; United States v. Ruiz, 905 F.2d 499, 508 (1st Cir.1990).

Collectively, these standards are not appellant-friendly. Recognizing that reality, we have warned that "absent a mistake of law, battles over a defendant's status ... will almost always be won or lost in the district court." United States v. Graciani, 61 F.3d 70, 75 (1st Cir.1995).

A. Sanchez's Role in the Offense.

Sanchez asserts that he neither introduced nor used the murder weapon, eschewed any participation in the robbery of the victims, and never threatened to rape Shute. On this basis, he argues that he was less culpable than his coconspirators and therefore deserving of a two-level downward adjustment as a minor participant. USSG § 3B1.2(b). The district court rejected this assertion, and so do we.

The Sentencing Commission has explained that section 3B1.2 "provides a range of adjustments for a defendant who plays a part in committing the offense that makes him substantially less culpable than the average participant." Id. § 3B1.2, cmt. (n.3(A)). The roster of available adjustments includes a modest adjustment for minor participation and a somewhat more generous adjustment for minimal participation. Id. § 3B1.2.² We have ruled that a defendant who aspires to be classified as a minor participant bears the burden of proving that he is both (i) less culpable than most other participants in the offenses of conviction, and (ii) less culpable than the average miscreant involved in offenses of the same genre. See United States v. Ortiz-Santiago, 211 F.3d 146, 149 (1st Cir.2000); Ocasio, 914 F.2d at 333. Sanchez cannot conceivably run that gauntlet.

We need not tarry. Sanchez effectively admitted during the change-of-plea colloquy that he furnished the car used in committing the crimes, drove his comrades around downtown Providence in search of victims, held himself available as a "getaway driver" should the attempted carjacking go awry, suggested where to take the victims following their abduction, searched the carjacked vehicle for valuables, and used some of the appropriated cash. He also admitted that other participants would testify that he urged one of his companions (Floyd) to shoot the victims and that he offered to kill them himself should Floyd balk. Given this scenario, it beggars credulity to think that Sanchez could qualify as a minor participant in the criminal activity. Consequently, we discern no error clear or otherwise, in the sentencing court's denial of his request for a role reduction.

B. Anderson's Role in the Offense.

Anderson's claim that he deserved a two-level reduction as a minor participant is somewhat more credible. He begins with the sentencing court's comment, voiced during the disposition hearing, that "[h]e was the least culpable [of the gang] because he didn't participate in the actual shooting, and he didn't urge or demand that these innocent young people be killed." This might be thought faint praise, but we assume, for argument's sake, that it constitutes a finding sufficient to satisfy the first prong of the test for minor participation.

Although Anderson pleaded guilty both to conspiracy to commit carjacking and to carjacking resulting in death, the relevant charge for the comparative analysis required by the second prong of the "minor participant" test is carjacking resulting in death. Cf. Jones v. United States, 526 U.S. 227, 229, 119 S.Ct. 1215, 143 L.Ed.2d 311 (1999) (holding that 18 U.S.C. § 2119 defines three distinct crimes — simple carjacking, carjacking resulting in serious bodily injury, and carjacking resulting in death). In an effort to satisfy this prong, Anderson points to the sentencing court's explicit finding that he lacked an intent to kill and concludes that he must perforce be less culpable than the average felon convicted of carjacking resulting in death. This conclusion does not follow from the indicated premise: whether a carjacker did — or did not — harbor a subjective intent to kill is not a fact of talismanic significance to a role-in-the-offense decision in a case of carjacking resulting in death. Regardless of the lack of an intent to kill, the instant record contains ample evidence from which the sentencing court reasonably could have concluded that Anderson was no less culpable than the average defendant convicted of that offense.

On this record, a rational trier easily could have found that Anderson recruited an accomplice (Sanchez) who made...