U.S. v. Terry

• Citation: 142 F.3d 702
• Decision Date: 22 April 1998
• Docket Number: No. 96-4919,96-4919
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Narkey Keval TERRY, Defendant-Appellant.
• Court: United States Courts of Appeals. United States Court of Appeals (4th Circuit)

Page 702

142 F.3d 702

UNITED STATES of America, Plaintiff-Appellee, v. Narkey Keval TERRY, Defendant-Appellant.

No. 96-4919.

United States Court of Appeals Fourth Circuit.

Argued Oct. 29, 1997.

Decided April 22, 1998.

ARGUED: David Benjamin Smith, English & Smith, Alexandria, VA, for Appellant. Randy I. Bellows, Asst. U.S. Atty., Alexandria, VA, for Appellee. ON BRIEF: Helen F. Fahey, U.S. Atty., Alexandria, VA, for Appellee.

Before LUTTIG and WILLIAMS, Circuit Judges, and BULLOCK, Chief United States District Judge for the Middle District of North Carolina, sitting by designation.

Vacated and remanded by published opinion. Judge WILLIAMS wrote the opinion, in which Judge LUTTIG and Chief Judge BULLOCK joined.

OPINION

WILLIAMS, Circuit Judge:

Narkey Terry was convicted in the United States District Court for the Eastern District of Virginia of two counts of involuntary manslaughter and one count of reckless driving. Although the Sentencing Guidelines called for a sentencing range of 21 to 27 months for Terry's crimes, the district court sentenced Terry to 120 months imprisonment. The district court, relying upon three separate encouraged factors, departed upward a total of fifteen levels. Terry now appeals the district court's upward departure. Finding that the district court erred in several respects, we vacate the sentence imposed and remand for resentencing.

I.

In the early morning of April 17, 1996, Terry was driving his Jeep Cherokee northward along the George Washington Memorial Parkway (G.W.Parkway). ¹ Near the Ronald Reagan National Airport exit, Terry pulled in behind a Chevrolet Beretta driven by Billy Canipe. According to the testimony of several eyewitnesses, Canipe was driving about 20 miles per hour in the left (passing) lane. Seemingly upset with Canipe's slow pace, Terry began tailgating him. After two or three minutes, the low-speed tailgating escalated to a high-speed chase. Over the course of approximately eight miles, witnesses saw the two drivers race each other at speeds of up to 80 miles per hour. ²

Eventually, Terry's Jeep hit Canipe's Beretta, causing the Beretta to spin across the median and into the southbound lanes, where it struck a Ford Taurus driven by George Smyth. The impact killed Mr. Smyth instantly. A section of Canipe's car, weighing close to 500 pounds, flew into the air and landed on the windshield of a Dodge Caravan driven by Nancy McBrien. Mrs. McBrien died within moments of the crash. Canipe was thrown from his car and sustained fatal injuries. Terry sustained a broken ankle and cuts and bruises to his face and chest.

The United States charged Terry with two counts of involuntary manslaughter (Nancy McBrien and George Smyth) in violation of 18 U.S.C.A. § 1112 (West 1984 & Supp.1997); with one count of reckless driving in violation of 18 U.S.C.A. § 13 (West Supp.1997) and Va.Code Ann. § 46.2-852 (Michie 1996); and with one count of carrying a concealed weapon in violation of 18 U.S.C.A. § 13 and Va.Code Ann. § 18.2-308 (Michie Supp.1997). Terry pleaded guilty to carrying a concealed weapon. Following a two-day jury trial, Terry was convicted on the remaining three counts.

Terry was sentenced pursuant to the involuntary manslaughter guideline. See U.S. Sentencing Guidelines Manual § 2A1.4 (1995). Due to his reckless driving, Terry's base offense level was set at fourteen. See U.S.S.G. § 2A1.4(a)(2). Because Terry was convicted on two counts of involuntary manslaughter, his base offense level was increased an additional two levels pursuant to the Guidelines' grouping rules. See U.S.S.G. § 3D1.4. With an adjusted offense level of 16 and a criminal history category of I, Terry's guideline range was 21-27 months. See U.S.S.G. Ch.5, Pt.A.

Believing that 33 months ³ would be "a wholly inadequate sentence given the severity of the defendant's conduct," (J.A. at 125), the district court determined that an upward departure was warranted. First, the district court departed upward eight levels to reflect the danger to the public created by Terry's reckless driving. See U.S.S.G. § 5K2.14, p.s. Next, the district court departed upward four levels to account for the additional death of Canipe. See U.S.S.G. § 5K2.1, p.s. Finally, the district court departed upward three levels to take into consideration the extreme psychological impact to the family members of the victims. See U.S.S.G. § 5K2.3, p.s. In total, the district court departed upward fifteen levels. With a total offense level of 31 and a criminal history category of I, Terry's guideline range was 108-135 months. See U.S.S.G. Ch.5, Pt.A. Terry was sentenced to 120 months imprisonment on the two involuntary manslaughter counts, a concurrent term of 12 months on the reckless driving charge, and a consecutive 6 month term of imprisonment on the concealed weapon charge. On appeal, Terry argues only that the district court abused its discretion in departing upward by fifteen levels.

II.

It is well established that a sentencing court may depart from the applicable guideline range 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." 18 U.S.C.A. § 3553(b) (West Supp.1997). In determining "whether a potential basis for departure was adequately considered by the [Sentencing] Commission ..., a sentencing court must focus on whether the factor is taken into account by the guidelines, policy statements, or commentary." United States v. Barber, 119 F.3d 276, 280 (4th Cir.) (en banc), cert. denied, --- U.S. ----, 118 S.Ct. 457, 139 L.Ed.2d 391 (1997); see also United States v. Brock, 108 F.3d 31, 33 (4th Cir.1997). For example, if a factor has been forbidden by the Sentencing Commission, "the sentencing court cannot use it as a basis for departure." Koon v. United States, 518 U.S. 81, 95, 116 S.Ct. 2035, 2045, 135 L.Ed.2d 392 (1996); see also Barber, 119 F.3d at 280 (noting that "a departure premised upon [a forbidden] factor is never permissible"). In contrast, if a factor is one upon which the Sentencing Commission encourages departure, and that factor is not taken into account by the applicable guideline, a court may exercise its discretion and depart on that basis. See Koon, 518 U.S. at 96, 116 S.Ct. at 2045. However, if an encouraged factor is already taken into account in the applicable guideline, or if a factor is discouraged, the sentencing court may depart "only if the factor is present to an exceptional degree or in some other way makes the case different from the ordinary case where the factor is present." Id. Finally "[i]f a factor is unmentioned in the Guidelines, the court must, after considering the structure and theory of both relevant individual guidelines and the Guidelines taken as a whole, decide whether [the factor] is sufficient to take the case out of the Guideline's heartland." Id. (internal citation and quotation marks omitted).

Here, the district court relied upon three separate encouraged factors in departing upward a total of fifteen levels. We review each departure in turn, keeping in mind that a district court's decision to depart is reviewed for abuse of discretion. See Koon, 518 U.S. at 91, 116 S.Ct. at 2043 ("[A]ppellate court[s] should not review the departure decision de novo, but instead should ask whether the sentencing court abused its discretion."); see also Barber, 119 F.3d at 283 (noting that the Supreme Court "made clear that it intended to adopt a traditional abuse of discretion standard").

A.

The district court departed upward eight levels "finding that the public's welfare and safety were significantly endangered during the protracted reckless driving of defendant." (J.A. at 126.) Danger to the public's safety is a factor upon which the Sentencing Commission has encouraged departure. In particular, § 5K2.14, p.s. provides:

If national security, public health, or safety was significantly endangered, the court may increase the sentence above the guideline range to reflect the nature and circumstances of the offense.

U.S.S.G. § 5K2.14, p.s. Because endangering the public safety is an encouraged basis for departure, we must determine whether the conduct that created the danger is taken into account by the involuntary manslaughter guideline. See Barber, 119 F.3d at 285 (noting that encouraged factors normally may not be relied upon if already taken into account by the applicable guideline).

According to the district court, the public welfare was endangered by Terry's protracted reckless driving. Our review of § 2A1.4 indicates, however, that Terry's reckless driving was already taken into account by the involuntary manslaughter guideline. Specifically, the base offense level for Terry's involuntary manslaughter convictions was increased from ten to fourteen due to his reckless driving. See U.S.S.G. § 2A1.4(a)(2). It is clear, therefore, that the danger to the public created by Terry's reckless driving was taken into account in the guideline that he was sentenced under. As a result, departure based upon reckless driving pursuant to § 5K2.14, p.s. generally would not be appropriate. ⁴ See U.S.S.G. § 5K2.0, p.s. (noting that where the applicable offense guideline takes into consideration an encouraged factor, departure from the applicable guideline range is generally not warranted).

Nevertheless, an upward departure would be permitted if Terry's reckless driving was "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. at 2045. This may be just such a case. Terry engaged in a road duel on a scenic parkway not designed for high-speed driving. The high-speed duel was variously described by eyewitnesses as a game of "cat-and-mouse," "tag," and "chicken." We doubt that such conduct is typical of reckless driving cases. The district court,...