U.S. v. Weems

• Citation: 517 F.3d 1027
• Decision Date: 28 February 2008
• Docket Number: No. 07-1496.,No. 07-1531.,07-1496.,07-1531.
• Parties: UNITED STATES of America, Appellant, v. James Bradley WEEMS, Appellee. United States of America, Appellant, v. Christopher Mitchell, Appellee.
• Court: U.S. Court of Appeals — Eighth Circuit

517 F.3d 1027

UNITED STATES of America, Appellant, v. James Bradley WEEMS, Appellee.

United States of America, Appellant, v. Christopher Mitchell, Appellee.

No. 07-1496.

No. 07-1531.

United States Court of Appeals, Eighth Circuit.

Submitted: January 15, 2008.

Filed: February 28, 2008.

Tovah Calderon, argued, Jessica Dunsay Silver, on the brief, Dept. of Justice, Washington, DC, for Appellant.

John F. Stroud III, Texarkana, TX, argued, for Appellee Weems.

Thomas H. Johnson, Texarkana, TX, argued, for Appellee Mitchell.

Before WOLLMAN and SMITH,

Circuit Judges, and GRITZNER,¹ District Judge.

WOLLMAN, Circuit Judge.

James Weems and Christopher Mitchell were involved in a cross burning incident and were subsequently convicted by a jury of conspiring to threaten and intimidate an African-American man in the exercise of his housing rights because of his race, in violation of 18 U.S.C. § 241. The government appeals, contending that the district court erred in calculating the defendants' offense levels by not applying the three-level enhancement for hate crime motivation and by granting a two-level reduction for the defendants' roles in the offense. Because we conclude that the district court did not correctly calculate the applicable guidelines range, we vacate the sentences and remand the cases to the district court for resentencing.

I. Background

On August 5, 2005, Weems, Mitchell, Clint Wurtele, and others attended a party at Christopher Baird's home in Fouke, Arkansas. A discussion arose in which Baird's African-American neighbor was discussed in a racially derogatory way. Before the evening was over, a wooden cross was constructed and set on fire outside the neighbor's home.

On May 3, 2006, a federal grand jury indicted Weems, Mitchell, and Wurtele on two counts. Count I charged the defendants with conspiring to injure, oppress, threaten and intimidate an African-American man in the free exercise and enjoyment of his housing rights because of his race. Count II charged the defendants with burning a cross to willfully intimidate and interfere with an African-American man because of his race and color and because he was occupying a dwelling in Fouke, Arkansas. The defendants pleaded not guilty. After the trial, the jury found Weems and Mitchell guilty on Count I and acquitted them on Count II. The jury acquitted Wurtele on both counts.

Baird entered a guilty plea to one count of conspiracy to threaten and intimidate an African-American man in the free exercise and enjoyment of his housing rights. The applicable base offense level was 12. The district court applied the three-level enhancement for hate crime motivation. The district court also granted a two-level reduction for acceptance of responsibility, and a three-level reduction for substantial cooperation. The final offense level was 10, and the corresponding guidelines range was six to twelve months' imprisonment. The district court sentenced Baird to six months' home detention, three years' probation, a $2,000 fine, and a $100 special assessment.

When sentencing Weems and Mitchell, the district court declined to apply the three-level enhancement for hate crime motivation. The district court granted the defendants' request for a two-level reduction for being minor participants in the conspiracy, resulting in an offense level of 10. The district court sentenced both defendants to one month of imprisonment, five months' home detention, two years' supervised release, a $2,000 fine, and a $100 special assessment.

II. Hate Crime Motivation

When imposing a sentence, the district court must begin by correctly calculating the applicable guidelines range. United States v. Foster, 514 F.3d 821, 823-24 (8th Cir.2008) (quoting Gall v. United States, ___ U.S. ____, 128 S.Ct. 586, 596, 169 L.Ed.2d 445 (2007)). Under the guidelines, the defendant's offense level must be increased by three levels "[i]f the finder of fact at trial ... determines beyond a reasonable doubt that the defendant intentionally selected any victim or any property as the object of the offense of conviction because of the actual or perceived race, color, religion, national origin, ethnicity, gender, disability, or sexual orientation of any person...." United States Sentencing Guidelines (U.S.S.G.) § 3A1.1(a). We review the district court's application of the sentencing guidelines de novo and its factual findings for clear error. Foster, 514 F.3d at 823-24.

Because the jury found beyond a reasonable doubt that Weems and Mitchell selected the victim because of his race, the district court should have applied the three-level enhancement when calculating the correct guidelines range. See United States v. Pospisil, 186 F.3d 1023, 1031 (8th Cir. 1999) (the jury's finding provided sufficient basis to impose enhancement). Applying the hate crime motivation enhancement for a violation of 18 U.S.C. § 241 is not duplicative because the race of the victim is not an element of § 241, and it is not incorporated in the applicable base offense level. See U.S.S.G. § 2H1.1(a); United States v. McDermott, 29 F.3d 404, 411 (8th Cir.1994). Moreover, the district court applied the hate crime motivation enhancement to Baird, who pleaded guilty to violating § 241. Thus, the district court erred by not applying the enhancement when it calculated the applicable guidelines ranges for Weems and Mitchell.

A nonharmless error in the calculation of the applicable guidelines range requires a reviewing court to vacate the sentence and remand the case for resentencing. See United States v. Icaza, 492 F.3d 967, 970 (8th Cir.2007). In this case, the district court's error was not harmless. The guidelines range that results after applying the three-level enhancement is higher than the guidelines range used by the district court. See United States v. Mashek, 406 F.3d 1012, 1017 (8th Cir.2005) (noting that an error in calculating the applicable guidelines range would be harmless if the sentence imposed by the district court fell within both the correct and incorrect guidelines ranges). Additionally, the district court noted at sentencing that it intended to sentence the defendants within the applicable guidelines range because it did not see any reason to grant downward departures. Tr. 600-03.

Weems and Mitchell assert that it is unreasonable to increase their offense levels for hate crime motivation because their coconspirator, Baird, was given a lesser sentence than what they face, even though Baird was allegedly responsible for many of the significant steps in building and burning the cross. This argument, however, ignores the fact that coconspirators can receive different sentences if, inter alia, they are eligible for offense level reductions for substantial assistance and acceptance of responsibility. See United States v. Ball, 499 F.3d 890, 900 (8th Cir. 2007). Baird entered a guilty plea and received reductions in his offense level for acceptance of responsibility and cooperation with the government. Thus, the fact that the defendants face higher guidelines ranges than the sentencing range Baird faced does not make application of the enhancement for hate crime motivation unreasonable.

III. Role in the Conspiracy

The district court found that Weems and Mitchell were minor participants in the...