U.S. v. Wilson, 90-5359
| Decision Date | 10 December 1990 |
| Docket Number | No. 90-5359,90-5359 |
| Parties | UNITED STATES of America, Plaintiff-Appellee, v. Kevin Lee WILSON, Defendant-Appellant. |
| Court | U.S. Court of Appeals — Sixth Circuit |
W. Hickman Ewing, Jr., U.S. Atty., Dan Newsom, Asst. U.S. Atty. (argued), Office of U.S. Atty., Memphis, Tenn., for plaintiff-appellee.
Kemper B. Durand (argued), Thomason, Hendrix, Harvey, Johnson, Mitchell, Blanchard, Memphis, Tenn., for defendant-appellant.
Before KRUPANSKY and MILBURN, Circuit Judges, and BROWN, Senior Circuit Judge.
The defendant, Kevin Lee Wilson, plead guilty to six counts of using an interstate commerce facility in an attempt to have his wife killed in violation of 18 U.S.C. Sec. 1958. 1 On February 5, 1990, Wilson was sentenced to 72 months in prison. Wilson appeals his sentence on several grounds under the United States Sentencing Guidelines (U.S.S.G.).
In April of 1985 Wilson contacted his former fiancee, Melba Rogers, who lived in Florida. She came to Memphis and went out to dinner with Wilson. Wilson's wife was working at the time of the dinner and did not know her husband was meeting with Rogers. At the dinner, Wilson stated to Rogers that he wanted his wife killed, and he asked Rogers to find a "hit man" to commit the murder. When Rogers returned to Florida, Wilson continued to contact her concerning the scheme. Rogers went to law enforcement authorities in Tallahassee and agreed to cooperate. The FBI thereafter recorded five telephone conversations between Rogers in Florida and Wilson in Memphis discussing the scheme. Additionally, Wilson mailed a letter to Rogers containing a $500 down payment to pay the hit man. These six acts were the bases for the six count indictment. The taped telephone conversations indicated certain facts about Wilson's plan. He wanted Rogers to find a third party to enter his house and kill his wife. Wilson was planning on attending church with their daughter while the murder was committed. The hit man was to make it look like a burglary by taking several items. Two days before the murder was to occur, the FBI arrested Wilson.
From the taped conversations between Wilson and Rogers, it appears that Wilson had several objectives he intended to accomplish by causing his wife's death. First, Wilson wanted sole custody of their two year old daughter. Second, Wilson wanted to collect on a $220,000 life insurance policy that covered his wife. Lastly, Wilson wanted to re-establish a relationship with Rogers.
Prior to the entry of a guilty plea, the probation officer prepared a presentence report. After the defense and prosecution had responded to the report, the probation officer prepared an addendum that contained recommendations and responded to objections from both parties. At the sentencing hearing, the district court adopted the presentence report as its grounds for decision, and sentenced Wilson to 72 months in prison.
On appeal, Wilson has raised three issues. First, Wilson contends that the district court used the wrong offense guideline for sentencing purposes. Second, according to Wilson, grouping of the six counts for the purpose of sentence calculation is required by U.S.S.G. Secs. 3D1.2(a) or 3D1.2(b). Wilson's final argument is that the district court failed to make the requisite findings concerning disputed facts during the sentencing process.
Wilson maintains that the district court applied the wrong offense guideline for sentencing. The court applied U.S.S.G. Sec. 2E1.4 with a base level of 23. Wilson contends U.S.S.G. Sec. 2A2.1, with a base level of 20, should have been the section used. While both section 2E1.4 and section 2A2.1 reach the conduct in question, for the reasons that follow, we hold that the district court was correct in applying section 2E1.4. Section 2E1.4 states:
Use of Interstate Commerce Facilities in the Commission of Murder-For-Hire.
(a) Base Offense Level (Apply the Greater)
(1) 23, or
(2) the offense level applicable to the underlying unlawful conduct.
Section 2E1.4 is in part E of the guidelines. Part E is entitled "Offenses Involving Criminal Enterprises and Racketeering." Wilson maintains that part E was meant to apply only to organized crime. The Introductory Commentary to part E states, however, that "[b]ecause of the jurisdictional nature of the offenses included, this subpart covers a wide variety of criminal conduct." Wilson's conduct involved using a facility of interstate commerce in an attempt to have his wife killed. Accordingly, section 2E1.4 covers Wilson's conduct.
Section 2A2.1 states:
Assault with Intent to Commit Murder: Conspiracy or Solicitation to Commit Murder: Attempted Murder.
(a) Base Level 20
Since Wilson's conduct involved a solicitation to commit murder, section 2A2.1 also covers the acts in question. Moreover, an examination of the Statutory Index (Appendix A) provides further support for the proposition that both section 2A2.1 and section 2E1.4 reach Wilson's conduct. The Statutory Index matches each statutory offense to the applicable offense guideline or guidelines. The Statutory Index indicates two different offense guidelines for convictions under the Federal Murder-For-Hire statute: section 2A2.1 and section 2E1.4. Accordingly, the district court was faced with a choice between two offense guidelines, both of which appear appropriate.
U.S.S.G. Sec. 1B1.2 contains general directions for applying the guidelines. The first Application Note to section 1B1.2 states that "[w]hen a particular statute proscribes a variety of conduct that might constitute the subject of different offense guidelines, the court will determine which guideline section applies based upon the nature of the offense conduct charged in the count of which the defendant was convicted." Since Wilson's conduct involved both a "solicitation to commit murder" and "use of interstate commerce facilities in commission of a murder-for-hire," this instruction is not helpful.
Subsection 2E1.4(a), however, provides guidance applicable to this situation. The subsection states:
(a) Base Offense Level (Apply the Greater):
(1) 23; or
(2) the offense level applicable to the underlying unlawful conduct.
In this particular case, section 2A1.2 is "the offense level applicable to the underlying unlawful conduct." Under the facts of this case, section 2A1.2 results in a base offense level of 20. Since 23 is greater than 20, section 2E1.4 mandates that the base offense level be 23. 2 In this particular case, section 2E1.4 has a higher base offense level. On the other hand, section 2A2.1 may lead to a higher offense level in certain circumstances. Section 2A2.1(b) provides for increases in the offense level when certain "specific offense characteristics" exist. For example, if a gun was fired, the offense level is increased by five levels. If the victim suffers a permanent bodily injury, the offense level is increased by six. 3 Section 2E1.4 sets a minimum base offense level for violations of the Federal Murder-For-Hire statute. That minimum base offense level applies to this case.
Wilson plead guilty to six counts of use of interstate facilities with the intent that his wife be killed. Five of the counts involved recorded discussions over the telephone between Wilson and Melba Rogers arranging the killing. The sixth count involved a letter mailed by Wilson to Rogers containing money for the hit man. The district court refused to group these offenses. 4 Wilson claims that the six counts should have been grouped under U.S.S.G. Sec. 3D1.2. Section 3D1.2 states that:
Groups of Closely-Related Counts
All counts involving substantially the same harm shall be grouped together in a single group.... Counts involve substantially the same harm within the meaning of this rule:
(a) When counts involve the same victim and the same act or transaction.
(b) When counts involve the same victim and two or more acts or transactions connected by a common criminal objective or constituting part of a common scheme or plan,....
(d) Counts are grouped together if the offense level is determined largely on the basis of the total amount of harm or loss, the quantity of a substance involved or some other measure of aggregate harm,....
Specifically excluded from operation of this subsection are:
... 2E1.4 ...
Exclusion from grouping under [subsection (d) ] does not necessarily preclude grouping under another subsection.
The government maintains that subsection (d) suggests that no grouping should occur under subsection (a) or (b) because section 2E1.4 is specifically excluded by subsection (d) from grouping under subsection (d). The government is clearly wrong. The exclusion under subsection (d) has no effect on subsection (a) or (b). Subsection (d) is meant to apply to "fungible item offenses" like money, drugs or property. Moreover, exclusion under subsection (d) does "not necessarily preclude grouping under another subsection." The guidelines attempt to prevent "the possibility that an arbitrary casting of a single transaction into several counts will produce a longer sentence." The Guidelines Resolution of Major Issues (Guideline Manual p. 1.9). Subsections (a), (b), and (d) are different means of achieving this goal.
The application of section 3D1.2 to a particular set of undisputed facts is a question of law that is reviewed de novo. United States v. Toler, 901 F.2d 399, 402 (4th Cir.1990). See also United States v. Manuel, 912 F.2d 204 (8th Cir.1990). Section 3D1.2(a) does not apply to Wilson's case because the five telephone calls and the mailing of a letter are not a single "act or transaction." Because the actions occurred over a two week period, they can not be characterized as a single act. See United States v. Moore, 877 F.2d 651 (8th Cir.1989). Grouping is required, however, under subsection 3D1.2(b). The telephone calls and letter involve "two or more acts or transactions...
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