U.S. v. Schell, s. 80-2255

• Decision Date: 13 October 1982
• Docket Number: 80-2256,Nos. 80-2255,s. 80-2255
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. James T. SCHELL, Defendant-Appellant.
• Court: U.S. Court of Appeals — Tenth Circuit

Page 672

692 F.2d 672

UNITED STATES of America, Plaintiff-Appellee, v. James T. SCHELL, Defendant-Appellant.

Nos. 80-2255, 80-2256.

United States Court of Appeals, Tenth Circuit.

Oct. 13, 1982.

Rehearing Denied Dec. 2, 1982.

Edward J. Nazar of Redmond, Redmond & O'Brien, Wichita, Kan., for defendant-appellant.

Jackie N. Williams, Asst. U.S. Atty., Wichita, Kan. (James P. Buchele, U.S. Atty., Wichita, Kan., with her on the brief), for plaintiff-appellee.

Before DOYLE, McKAY and LOGAN, Circuit Judges.

LOGAN, Circuit Judge.

James T. Schell appeals the trial court's judgment finding him a dangerous special offender within the meaning of 18 U.S.C. Sec. 3575, and sentencing him to two consecutive ten year terms. On appeal the issues are (1) whether the trial court's findings were statutorily and constitutionally sufficient; (2) whether sentencing Schell as a dangerous special offender violated his Eighth Amendment right against cruel and unusual punishment; (3) whether the statute's definition of "dangerous" is unconstitutionally vague; and (4) whether using a preponderance of the evidence standard to determine if Schell is a dangerous special offender, as the statute authorizes, violated Schell's due process rights.

In October 1979 Schell escaped from the Southeast Regional Correctional Facility in Fort Scott, Kansas. He was later recaptured and charged with escape from prison, a violation of 18 U.S.C. Sec. 751(a). Before trial, in July 1980, Schell again escaped, this time from the jail where he was confined awaiting trial. When Schell was recaptured he was charged with a second escape from prison. The judge consolidated the two escape cases for trial. Before trial the government filed a notice stating that it reasonably believed Schell was a dangerous special offender. See 18 U.S.C. Sec. 3575(a). After Schell pleaded guilty to both escape charges, the trial court held a hearing solely to determine whether Schell was a dangerous special offender.

Section 3575 requires a trial court to increase a defendant's sentence beyond the statutory limits of the felony he has committed if the court finds that the defendant is a "dangerous special offender." The trial court found that Schell's previous criminal record met the "special offender" requirements of section 3575(e)(1). ¹ Based upon its examination of the presentence report and testimony presented by both sides, the court found that Schell should be confined for a period longer than that provided for the felony of escape in order to protect the public from his future criminal conduct; thus, he was a "dangerous" special offender. ² The trial court then sentenced Schell to two consecutive ten year terms. Schell appeals his sentence, as authorized by 18 U.S.C. Sec. 3576.

I

Schell contends the trial court's findings were neither statutorily nor constitutionally sufficient. He first argues that because Congress enacted section 3575 in order to bring about stiffer sentences for participants in organized crime groups, section 3575 requires a finding that he is such a person. Because no evidence was presented linking him to organized crime, Schell argues the trial court's determination that he is a dangerous special offender violated his due process rights. However, although the primary objective of section 3575 was to combat organized crime, neither the legislative history, see H.R.Rep.No. 1549, 91st Cong., 2d Sess. (1970), reprinted in 1970 U.S.Code Cong. & Ad.News 4007-91, nor the language of the section limits its application to organized crime figures. See United States v. Bailey, 537 F.2d 845, 846-47 (5th Cir. 1976), cert. denied, 429 U.S. 1051, 97 S.Ct. 764, 50 L.Ed.2d 767 (1977).

Schell also contends that in determining whether he is dangerous to society, the trial court should have considered time remaining to be served on Schell's prior convictions. At the time the trial court found Schell to be a dangerous special offender, he had yet to serve a ten year term in federal prison for a bank robbery, a fifteen to thirty-five year term in Texas for armed robbery, a five to thirty-five year term in Texas for murder, and a fifteen year term in Arkansas for aggravated robbery. Schell argues that because these sentences might require him to serve ninety-five years in prison, ³ he cannot be considered to be "dangerous."

Section 3575(f) does not explicitly require a trial court to calculate whether a defendant's probable release is imminent enough to pose a danger to society. Any attempt to make such a calculation would ensnarl the court in the complexities and uncertainties of the sentencing and parole procedures of other jurisdictions. This consideration militates against reading such a requirement into the statute. We think a defendant's character and past criminal conduct are the essential factors the court must consider in determining whether a defendant is dangerous within the meaning of section 3575.

Schell also contends that the court erred in relying on the same evidence--prior convictions--to find that he is both a special offender and dangerous. Schell argues that although his prior convictions are sufficient to justify finding him a special offender, additional evidence is necessary to find him dangerous. Although the fact of prior convictions alone may not support a finding of dangerousness, the court was entitled to rely on both the fact and the nature of Schell's prior convictions, together with other evidence of Schell's character and prior conduct. United States v. Warme, 572 F.2d 57, 62 (2d Cir.), cert. denied, 435 U.S. 1011, 98 S.Ct. 1885, 56 L.Ed.2d 393 (1978). In announcing its decision, the trial court referred to the nature of Schell's previous felony convictions and to the testimony of two women who helped him escape or accompanied him. The women testified to his use of a gun in one escape and to his commission of several robberies while in their company. The court found that these facts "show a pattern and history of violence and anti-social behavior on the part of the defendant and a patent lack of concern for the lives of others." R. III, 105.

II

Schell contends that by sentencing him to serve two consecutive ten year terms, the trial court violated his Eighth Amendment right against cruel and unusual punishment. Schell appears to argue that the Eighth Amendment requires that before sentencing a defendant a trial court must consider the time the defendant is already scheduled to serve. Because he was already scheduled to serve up to ninety-five years, Schell argues that the additional sentence of twenty years was cruel and unusual punishment.

This argument is meritless. Taken to its extreme, it would require us to find that virtually any sentence, however short, becomes cruel and unusual punishment when the defendant was already scheduled to serve lengthy sentences for prior convictions. The Eighth Amendment does not prohibit a state from punishing defendants for the crimes they commit; the amendment prohibits a sentence only if it is grossly disproportionate to the severity of the crime. Rummel v. Estelle, 445 U.S. 263, 271, 100 S.Ct. 1133, 1137, 63 L.Ed.2d 382 (1980). In suggesting that "the length of the sentence actually imposed" for an undeniably serious crime "is purely a matter of legislative prerogative," id. at 274, 100 S.Ct. at 1139, the Rummel decision puts into question whether any sentence short of death for felony convictions of the sort involved here is cruel and unusual punishment. Cf. Enmund v. Florida, --- U.S. ----, 102 S.Ct. 3368, 73 L.Ed.2d 1140 (1982) (death penalty unconstitutional applied to felony murder defendant who did not kill or intend to kill).

III

Schell claims that section 3575(f)'s definition of "dangerous" is unconstitutionally vague. That Congress might have chosen more precise language does not render a statute unconstitutionally vague, United States v. Powell, 423 U.S. 87, 94, 96 S.Ct. 316, 320, 46 L.Ed.2d 228 (1975), as long as people of ordinary intelligence need not "guess at its meaning and differ as to its application," Connally v. General Construction Co., 269 U.S. 385, 391, 46 S.Ct. 126, 127, 70 L.Ed. 322 (1926). In this case the issue is whether trial judges who must administer section 3575 can readily apply the concept of dangerousness. In bail and sentencing proceedings, trial judges routinely consider a defendant's propensity to engage in future criminal conduct and the potential danger a defendant poses to society. The concept of dangerousness as defined in section 3575 merely articulates considerations underlying any bail or sentencing decision. We therefore agree with the Fourth, Fifth, Sixth, and Seventh Circuits, which have held that "dangerous" is not unconstitutionally vague. See United States v. Williamson, 567 F.2d 610, 613 (4th Cir. 1977); United States v. Bowdach, 561 F.2d 1160, 1175 (5th Cir. 1977); United States v. Neary, 552 F.2d 1184, 1194 (7th Cir.), cert. denied, 434 U.S. 864, 98 S.Ct. 197, 54 L.Ed.2d 139 (1977); United States v. Stewart, 531 F.2d 326, 336 (6th Cir.), cert. denied, 426 U.S. 922, 96 S.Ct. 2629, 49 L.Ed.2d 376 (1976).

IV

Finally, Schell alleges that a higher standard of proof than the "preponderance of the evidence" standard called for by section 3575(b) is necessary to protect his liberty interest under the Due Process Clause.

A standard of proof allocates the risk of error between the litigants and indicates the relative importance of the ultimate decision. Addington v. Texas, 441 U.S. 418, 423, 99 S.Ct. 1804, 1808, 60 L.Ed.2d 323 (1979). For example, the "proof beyond a reasonable doubt" standard implies that the party on whom that burden is imposed should bear almost the entire risk of error. Id. at 423-24, 99 S.Ct. at 1808. In contrast, the "preponderance of the evidence" standard indicates that the litigants should share equally the risk of error, id. at 423, 99 S.Ct. at 1808, because the interests at stake have roughly equal societal...