U.S. v. Semsak, 02-30153.

• Decision Date: 28 July 2003
• Docket Number: No. 02-30153.,02-30153.
• Citation: 336 F.3d 1123
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. William Thomas SEMSAK, Defendant-Appellant.
• Court: U.S. Court of Appeals — Ninth Circuit

336 F.3d 1123

UNITED STATES of America, Plaintiff-Appellee, v. William Thomas SEMSAK, Defendant-Appellant.

No. 02-30153.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted June 6, 2003.

Filed July 28, 2003.

Robin B. Hammond, Federal Defenders of Montana, Billings, MT, for the appellant.

C. Ed Laws, United States Attorney's Office, Billings, MT, for the appellee.

Appeal from the United States District Court for the District of Montana; Richard F. Cebull, District Judge, Presiding. D.C. No. CR-01-00073-RFC.

Before: B. FLETCHER, BRUNETTI, and McKEOWN, Circuit Judges.

OPINION

McKEOWN, Circuit Judge.

This case involves the fatal combination of alcohol and an eighteen-wheel tractor-trailer. William Thomas Semsak, drunk behind the wheel of his big-rig truck, collided with a car, killing its driver. Semsak pled guilty to involuntary manslaughter and now appeals his sentence. The district court departed upward four levels in sentencing Semsak, reasoning that the size of the truck and the recklessness of Semsak's driving took the case outside the heartland of the offense guideline. See Koon v. United States, 518 U.S. 81, 96, 116 S.Ct. 2035, 135 L.Ed.2d 392 (1996). Because the district court interpreted the guidelines correctly, we affirm.

BACKGROUND

Late one night in July 2001, Semsak drove an eighteen-wheel tractor-trailer on a stretch of highway on the Northern Cheyenne Indian Reservation in Montana. Semsak's truck carried lumber and weighed 78,220 pounds. He had a bottle of Everclear liquor with him in the cab, and his blood-alcohol content was later measured at 0.17 percent — nearly twice the legal limit in Montana.

Other drivers saw Semsak's truck weaving across the highway, kicking up dust as it wandered to the opposite shoulder, its trailer fishtailing. One family followed the truck for eight miles, flashing their headlights and hazard lights, trying to warn other drivers and get Semsak to pull over. The driver watched Semsak's rig run about twenty cars off the highway and narrowly miss colliding head-on with two other trucks. Another driver also tried to get Semsak's attention, but could not catch up with him. These efforts were to no avail. Ultimately, Semsak's truck hit a passenger car, running over the car, dragging it underneath, and crushing it almost beyond recognition. That car was driven by Marcus Sooktis, who died instantly.

Semsak was indicted for involuntary manslaughter and pled guilty after striking a plea bargain.¹ In calculating the Criminal History Category, the district court assigned a three-point increase for each of two prior state convictions for which Semsak had been incarcerated less than fifteen years before the date of the accident, in accord with U.S.S.G. § 4A1.2(e)(1). The court calculated Semsak's base offense level at 14 for reckless conduct resulting in involuntary manslaughter. See U.S.S.G. § 2A1.4(a)(2). The court observed that he had "never seen, in a case since I've been on the bench, the additional factors besides the reckless disregard," and that he had "never seen a case where somebody has taken the additional responsibility of operating an 80,000 pound vehicle ... and engaged in reckless disregard for life. That's what takes it out of the heartland, or at least one of the things that takes it out of the heartland." Based on this reasoning, the court departed upward four levels. The court then sentenced Semsak to 33 months, the top of the guideline range. Semsak appeals the sentence.

DISCUSSION

I. UPWARD DEPARTURE

Semsak challenges the district court's decision to depart upward. The first question is our standard of review. Before Congress enacted the Prosecutorial Remedies and Other Tools to end the Exploitation of Children Today Act of 2003 ("PROTECT Act"), Pub.L. No. 108-21, 117 Stat. 650 (2003), we reviewed such departures for an abuse of discretion. See United States v. Sablan, 114 F.3d 913, 916 (9th Cir.1997) (en banc) (citing Koon, 518 U.S. at 100, 116 S.Ct. 2035). Section 401(d) of the PROTECT Act now requires that we review de novo whether the district court's departure was based on proper factors. See 18 U.S.C. § 3742(e). Because we would affirm under either a de novo standard or an abuse of discretion standard, like several other circuits we decline to decide whether the PROTECT Act applies to appeals — such as Semsak's — that were pending on the date of its enactment, April 30, 2003.² See United States v. Camejo, 333 F.3d 669, 2003 WL 21467217, at *4-*5 (6th Cir. 2003); United States v. Chesborough, 333 F.3d 872, 2003 WL 21467512, at *1 (8th Cir. 2003); United States v. Tarantola, 332 F.3d 498, 2003 WL 21347112, at *2 (8th Cir. 2003); but see United States v. Jones, 332 F.3d 1294, 2003 WL 21399025, at *2 (10th Cir. 2003) (applying de novo standard of review to a sentencing appeal pending as of the passage of the PROTECT Act).

In assessing the district court's authority to depart upward, we must determine whether the bases for departure were already taken into account by the offense guideline. See 18 U.S.C. § 3553(b)(1) (authorizing a departure only where the "court finds that there exists an aggravating or mitigating circumstance of a kind, or to a degree, not adequately taken into consideration by the Sentencing Commission in formulating the guidelines that should result in a sentence different from that described"); United States v. Bell, 303 F.3d 1187, 1192 (9th Cir.2002) (holding that a district court should avoid "repeating the use of a factor previously accounted for in the offense level"). The guideline for involuntary manslaughter sets a base offense level of 10 for criminally negligent conduct and 14 for reckless conduct. U.S.S.G. § 2A1.4(a). The district court determined that Semsak's conduct was reckless and set the base offense level at 14. Application Note 1 of this guideline states that "[a] homicide resulting from driving ... while under the influence of alcohol ... ordinarily should be treated as reckless." U.S.S.G. § 2A1.4, Application Note 1. Nonetheless, concluding that this offense guideline did not contemplate "reckless conduct with an 80,000 pound vehicle," the district court added four levels on the basis of U.S.S.G. § 5K2.14, which provides for an increase "[i]f national security, public health, or safety was significantly endangered."

Semsak argues that because drunk, reckless driving always creates a threat to public safety, the involuntary manslaughter offense guideline already encompassed his conduct. This proposition may be true in most vehicular involuntary manslaughter cases. However, a factor accounted for by the guideline may still justify an upward departure if it is "present to an exceptional degree or in some other way makes the case different from the ordinary case where the factor is present." Koon, 518 U.S. at 96, 116 S.Ct. 2035.

Especially where alcohol is involved, driving may become so "reckless" that the term does not begin to describe the magnitude of the conduct. See Jones, 332 F.3d 1294, 2003 WL 21399025, at *4; United States v. Terry, 142 F.3d 702, 706-07 (4th Cir.1998); United States v. Whiteskunk, 162 F.3d 1244, 1252-53 (10th Cir.1998). In Whiteskunk, the Tenth Circuit held that "excessive recklessness" posing a threat to public safety could justify an upward departure from a drunk driver's base offense level for involuntary manslaughter. 162 F.3d at 1252. Reasoning that "recklessness" covers a broad spectrum of behavior, the Tenth Circuit concluded that district courts should be free to depart if the facts indicate "a degree of recklessness that falls on the periphery of reckless conduct." Id. at 1251. Among the factors justifying the upward departure were the defendant's high blood-alcohol level, a prior conviction for drunk driving that had put her on notice of the dangerousness of her conduct, and several opportunities to avoid the accident on that day, including being refused service at a bar, having her keys taken from her, and narrowly avoiding a collision with another vehicle. Id. at 1252-53; see also Jones, 332 F.3d 1294, 2003 WL 21399025, at *4 (holding that a high blood-alcohol content and prior drunk driving convictions justified an upward departure on extreme recklessness and public safety grounds).

In both Whiteskunk and Jones, the Tenth Circuit upheld upward departures. In contrast, the Fourth Circuit reversed and remanded an eight-level departure in a case involving a "cat and mouse" high-speed duel. See Terry, 142 F.3d at 706. The court reversed not because drunk driving cannot be a basis for departure, but rather because the district court failed to make a finding that the defendant's conduct was "outside the `heartland' of situations encompassed by the applicable guideline." Id. at 707. Acknowledging that "reckless driving was already taken into account by the involuntary manslaughter guideline," the court remanded "so that the district court may determine in the first instance whether the danger created by Terry's reckless conduct was outside the `heartland' of the typical involuntary manslaughter case involving reckless driving." Id. at 706-07. In Semsak's case, the district court made precisely such a finding.

Although we hesitate to label any involuntary manslaughter case as ordinary, we agree with the district court that, in the parlance of the Sentencing Guidelines, this is no ordinary drunk-driving case. Semsak's behavior pushed the upper limits of recklessness. Like the defendant in Whiteskunk, he had a high blood-alcohol level, drove on the wrong side of the road, and ignored repeated warnings and efforts to prevent the accident. Exacerbating these factors is the use of an 80,000-pound, eighteen-wheel truck requiring training and a special license to drive. The unique responsibility Semsak bore when driving such a massive vehicle magnified his recklessness in getting behind the wheel while drunk. Taken together, the circumstances here make this an...