U.S. v. Waskom, s. 98-10128

• Decision Date: 22 June 1999
• Docket Number: 98-10166,Nos. 98-10128,98-10167 and 98-10168,s. 98-10128
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Carl Jay WASKOM, Jr., Defendant-Appellant. United States of America, Plaintiff-Appellee, v. Edward Taylor, Jr., Defendant-Appellant. United States of America, Plaintiff-Appellee, v. Shawn Dee Adams, Defendant-Appellant. United States of America, Plaintiff-Appellee, v. Catherine Dee Adams, Defendant-Appellant. United States of America, Plaintiff-Appellee, v. Edward Taylor, Jr., Defendant-Appellant. United States of America, Plaintiff-Appellee, v. Shawn Dee Adams, Defendant-Appellant. United States of America, Plaintiff-Appellee, v. Catherine Dee Adams, Defendant-Appellant.
• Court: U.S. Court of Appeals — Fifth Circuit

Page 303

179 F.3d 303

UNITED STATES of America, Plaintiff-Appellee, v. Carl Jay WASKOM, Jr., Defendant-Appellant.

United States of America, Plaintiff-Appellee, v. Edward Taylor, Jr., Defendant-Appellant.

United States of America, Plaintiff-Appellee, v. Shawn Dee Adams, Defendant-Appellant.

United States of America, Plaintiff-Appellee, v. Catherine Dee Adams, Defendant-Appellant.

United States of America, Plaintiff-Appellee, v. Edward Taylor, Jr., Defendant-Appellant.

United States of America, Plaintiff-Appellee, v. Shawn Dee Adams, Defendant-Appellant.

United States of America, Plaintiff-Appellee, v. Catherine Dee Adams, Defendant-Appellant.

Nos. 98-10128, 98-10166, 98-10167 and 98-10168.

United States Court of Appeals Fifth Circuit.

June 22, 1999.

Richard Bratton Roper, III, Asst. U.S. Atty., Fort Worth, TX, for Plaintiff-Appellee.

Gerhard Ernst Kleinschmidt, Fort Worth, TX, for Waskom.

Timothy William Crooks, Paul D. Stickney, Asst. Fed. Pub. Defender, Fort Worth, TX, for Taylor.

Davis Gray McCown, Fort Worth, TX, for Shawn Dee Adams.

James Warren St. John, Fort Worth, TX, for Catherine Dee Adams.

Appeals from the United States District Court for the Northern District of Texas.

Before KING, Chief Judge, and POLITZ and BENAVIDES, Circuit Judges.

BENAVIDES, Circuit Judge:

Carl J. Waskom, Jr., Edward Taylor, Jr., Shawn Dee Adams, and Catherine Dee Adams appeal the sentences imposed on them by the district court. With respect to the sentences imposed on Waskom and the Adamses, we vacate and remand for resentencing. Because the sentencing judge should have granted Taylor's motion for recusal, we vacate his sentence and remand for new sentencing proceedings before a different judge.

I

Pursuant to a written plea agreement, Waskom, Taylor, Shawn Adams, and Catherine Adams (collectively "the defendants") pleaded guilty to conspiracy to obstruct and delay interstate commerce by robbery and physical violence, in violation of 18 U.S.C. § 1951. Taylor and the Adamses also pleaded guilty to possession of an unregistered firearm and aiding and abetting, in violation of 26 U.S.C. §§ 5845, 5861(d) and 18 U.S.C. § 2. After the entry of the guilty pleas, the district court applied the federal Sentencing Guidelines to sentence each defendant. Taylor received a 262-month term of imprisonment, to be followed by a three-year term of supervised release, and a $200 special assessment. Shawn Adams received a 168-month term of imprisonment, to be followed by a three-year term of supervised release, and a $200 special assessment. Catherine Adams received a 180-month term of imprisonment, to be followed by a three-year term of supervised release, and a $200 special assessment. Waskom received a 110-month term of imprisonment, to be followed by a three-year term of supervised release, and a $100 special assessment.

Because the defendants did not proceed to trial, the factual resumes accompanying their pleas, the Presentence Reports (PSRs) and their addenda, ¹ preliminary and sentencing proceedings before the district court, and tapes admitted into evidence provide the background for the appellants' sentences. These sources reveal that in or about March 1997, the defendants entered into a conspiracy to commit a number of criminal acts that would culminate in the robbery of an armored car. The car they planned to rob routinely traveled to federally insured banks located in Bridgeport, Texas and Chico, Texas to pick up and deliver United States currency. In order to prevent law enforcement officers from responding adequately to the heist, the defendants intended to create a diversion by detonating several explosive devices at the nearby Mitchell Energy Corporation gas refinery. The defendants planned to finance their criminal activities by robbing two different individuals, whom they suspected to be narcotics traffickers.

Before the police interrupted the plan, the defendants took several steps toward accomplishing their goal. For example, the four conducted surveillance of one of the drug traffickers they had targeted, and Taylor traveled to Bridgeport and Chico to conduct surveillance of the armored car.

On March 29 and April 1, the defendants met to discuss plans for the robbery. They agreed that they should conduct a "test" detonation. On April 5, Shawn Adams, Catherine Adams, and Waskom met at the Adamses' residence, where they constructed two small explosive devices. They then traveled to the LBJ Grasslands and detonated the two devices. On April 6, Catherine Adams and Waskom went to the Mitchell Energy Corporation gas refinery to survey the facility. They drew a small sketch of the plant and the surrounding area. One week later, Shawn Adams, Catherine Adams, and Waskom met at the Adamses' residence to discuss the construction of explosive devices. The three met again, two days later, to continue their discussions. Ultimately, the defendants settled on a plan to detonate explosive devices at the gas refinery and rob the armored car on May 1. Waskom informed his employer that he would be away from work on that day.

Unbeknownst to the four conspirators, a confidential informant had been recording their interactions and relaying their plans to law enforcement authorities since March. As a consequence, the defendants were arrested on April 22, before they could execute their plans. According to Detective Charles Storey, the lead investigating agent, the defendants' plan to rob one of the targeted drug traffickers on the evening of April 22 prompted the authorities to make the arrests that day.

II

On appeal, all four defendants argue that the district court erred in denying them a three-point reduction of their base offense level. This claim relates to § 2X1.1(b)(2) of the United States Sentencing Guidelines. In addition, Waskom raises several other issues pertaining to the district court's calculation of his sentence.

We review de novo the sentencing court's application of the federal Sentencing Guidelines and review for clear error its associated findings of fact. See, e.g., United States v. Goynes, 175 F.3d 350, 1999 WL 288261, at * 2 (5th Cir. May 10, 1999). We uphold a defendant's sentence "unless it was imposed in violation of law; imposed as a result of an incorrect application of the sentencing guidelines; or outside the range of the applicable sentencing guideline and is unreasonable." United States v. Garcia, 962 F.2d 479, 480-81 (5th Cir.1992).

In addition to his specific challenges to his sentence, Taylor argues that the sentencing judge, the Honorable John McBryde, should have granted Taylor's motion for recusal pursuant to 28 U.S.C. § 455(a). Because the decision whether to recuse is within the discretion of the district court judge, we review for abuse of discretion the denial of a motion for recusal. See United States v. Anderson, 160 F.3d 231, 233 (5th Cir.1998).

We begin with the issue that is common to all of the defendants: whether the district court properly denied them a three-level reduction under § 2X1.1(b)(2) of the United States Sentencing Guidelines. We then discuss the issues raised individually by Waskom and Taylor.

III

A

In cases of attempt, solicitation, or conspiracy, the federal Sentencing Guidelines direct the sentencing court to calculate the applicable offense level by using the base offense level from the guideline for the substantive offense, unless there is a specific offense guideline for the conspiracy charge that forms the basis of the sentencing. See U.S. Sentencing Guidelines Manual § 2X1.1 (1997) (hereinafter U.S.S.G.). ² After ascertaining the base offense level, the sentencing court makes adjustments from the substantive offense guideline for any intended offense conduct that is established with reasonable certainty. See id. In the case of conspiracy, the guidelines further direct:

[D]ecrease by 3 levels, unless the defendant or a co-conspirator completed all the acts the conspirators believed necessary on their part for the successful completion of the substantive offense or the circumstances demonstrate that the conspirators were about to complete all such acts but for apprehension or interruption by some similar event beyond their control.

U.S.S.G. § 2X1.1(b)(2). The commentary accompanying § 2X1.1 explains this adjustment:

In most prosecutions for conspiracies ..., the substantive offense was substantially completed or was interrupted or prevented on the verge of completion by the intercession of law enforcement authorities or the victim. In such cases, no reduction of the offense level is warranted. Sometimes, however, the arrest occurs well before the defendant or any co-conspirator has completed the acts necessary for the substantive offense. Under such circumstances, a reduction of 3 levels is provided under [§ 2X1.1(b)(2) ].

U.S.S.G. § 2X1.1, comment. (backg'd). The focus of § 2X1.1(b)(2) is "on the conduct of the defendant, not on the probability that a conspiracy would have achieved success." United States v. Medina, 74 F.3d 413, 418 (2d Cir.1996). In effect, the guideline "gives the defendant a three-level discount if he is some distance from completing the crime." United States v. Egemonye, 62 F.3d 425, 429 (1st Cir.1995).

Determining whether a reduction under § 2X1.1(b)(2) is warranted necessarily requires a fact-specific inquiry. With its focus on the conspirators' conduct in relation to the object offense, the application of § 2X1.1(b)(2) thus resists a precise standard. This is particularly so in a case such as this, where there is no dispute that the defendants had not completed all the acts they believed necessary to commit the substantive offense and the question is only whether they were "about to" do so.

Certain principles nonetheless exist to guide a sentencing court's application of the guideline in this type of case. First, the § 2X1.1(b)(2) inquiry focuses on the substantive offense and the defendant's conduct in relation to that...