U.S. v. Young

• Decision Date: 12 October 1990
• Docket Number: No. 89-5016,89-5016
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. John YOUNG, Defendant-Appellant.
• Court: U.S. Court of Appeals — Fourth Circuit

Page 147

916 F.2d 147

UNITED STATES of America, Plaintiff-Appellee, v. John YOUNG, Defendant-Appellant.

No. 89-5016.

United States Court of Appeals, Fourth Circuit.

Argued June 7, 1990.

Decided Oct. 12, 1990.

John Kenneth Zwerling, Zwerling, Mark & Sutherlund, P.C., Alexandria, Va., argued (Thomas J. Curcio, Cohen, Dunn & Sinclair, P.C., Alexandria, Va., on brief), for defendant-appellant.

Dennis Michael Kennedy, Asst. U.S. Atty., Alexandria, Va., argued (Henry E. Hudson, U.S. Atty., Jennifer A. Costas, Law Student, Alexandria, Va., on brief), for plaintiff-appellee.

Before ERVIN, Chief Judge, and MURNAGHAN and CHAPMAN, Circuit Judges.

CHAPMAN, Circuit Judge:

Appellant John Young was confined at Lorton Reformatory, serving a sentence of 54 years to life imprisonment for armed robbery and first degree murder, when, as a result of an incident which occurred during a major disturbance on December 24, 1987, he was charged (1) with willfully assaulting corrections officer Rhyne with a dangerous weapon with intent to cause bodily harm in violation of 18 U.S.C. Sec. 113(c), (2) with assaulting Rhyne while the corrections officer was in the performance of his official duties, in violation of District of Columbia Code Sec. 22-505(a), and (3) with possession of a knife in violation of Lorton Reformatory Regulations, a violation of 18 U.S.C. Sec. 13, assimilating Virginia Code Sec. 53.1-203(4) (1950), as amended. At trial Young was convicted on each count and was sentenced to 65 months on Count I, 65 months on Count II to run concurrently with the sentence on Count I, and 40 months on Count III to run consecutively to the sentences under Counts I and II. All sentences were consecutive to the sentences he was then serving.

On appeal Young argues (1) that the U.S. Sentencing Guidelines are not applicable to violations of the District of Columbia Code, (2) that the U.S. Sentencing Guidelines are not applicable to cases under the Assimilative Crimes Act, (3) that the sentences given on Counts I and II are outside the statutory maximum, (4) that the sentencing court erred in not grouping all counts for the purposes of the Sentencing Guidelines, (5) that the trial judge erred in holding that knowledge of the assault victim's status as a corrections officer was sufficient to show that the attack was motivated by such status, and (6) that if the Sentencing Guidelines are applicable to assimilative crimes, the sentence must comport with the "like punishment" aspect of the Assimilative Crimes Act.

We hold that the Guidelines are applicable to crimes committed at Lorton Reformatory and to crimes under the Assimilative Crimes Act. We affirm the convictions of Young. However, we remand for resentencing because the maximum sentence for each of Counts I and II is 60 months, and the sentences of 65 months on each count are legally excessive, and all counts should have been grouped for sentencing under U.S. Sentencing Guidelines Sec. 3D1.2.

I

On the evening of December 24, 1987, Lorton inmate Ricky Green was being chased across the yard by a group of inmates which included appellant John Young. Green had a shank (homemade knife) in his hand as he approached corrections officer Rhyne. As Green passed, Rhyne tripped him and grabbed the shank, but Green caught Rhyne from behind and used him as a shield against his pursuers. Rhyne was in uniform at the time, and Young made a thrust at Rhyne with his shank, catching Rhyne's jacket with the weapon, but inflicting no personal injuries to Rhyne. Young was apprehended and his shank was confiscated.

At his sentencing, after he had been convicted on the three counts set forth above, appellant challenged the addition of two levels to his base offense level for bodily injury as to Count I, because the corrections officer was not injured. He challenged the addition of three levels to Count II for victim-related status because even though the victim was a corrections officer, there was no showing that the crime was motivated by such status. Appellant also contended that Counts I and II were related and should have been grouped for sentencing. The trial judge found that a two-level increase was not justified on Count I because corrections officer Rhyne was not injured, and that the corrections officer was in uniform at the time of the assault and a three-level increase should be made as to Count II because the crime was motivated by the victim's status as a corrections officer.

The claim that Counts I and II should be grouped for sentencing was withdrawn by appellant's trial counsel, so these offenses were not grouped.

The court found a base offense level of 25, criminal history category V, and a Guidelines range of 100-125 months. The court then imposed a sentence of 65 months concurrent as to Counts I and II, and 40 months consecutive as to Count III for a total of 105 months to be consecutive to the sentences Young was then serving.

An appeal was filed by Young's trial attorney, but he then submitted a brief under Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967), asserting that an appeal would be frivolous, and requested leave to withdraw. Young then filed a pro se brief claiming ineffective assistance of counsel and asking that his attorney be granted leave to withdraw. We allowed the trial attorney to withdraw and appointed new counsel to handle the appeal.

II

We find no merit to appellant's claim that the United States Sentencing Guidelines do not apply to crimes committed at Lorton Reformatory, which is located in the Eastern District of Virginia. Appellant argues that under the holding in United States v. Thompson, 347 A.2d 581 (D.C.1975), both the United States District Court for the Eastern District of Virginia and the Superior Court of the District of Columbia had jurisdiction to try Young for the offenses committed at Lorton Reformatory. He then claims that the prosecutors have preferred to bring cases in the United States district courts because defendants receive longer sentences under the U.S. Sentencing Guidelines which are applicable in the federal courts and not in the Superior Courts of the District of Columbia.

Although the second count of the indictment is brought under District of Columbia Code Sec. 22-505(a), which makes it a crime to assault "any officer or employee of any penal or correctional institution of the District of Columbia, or any officer or employee of the government of the District of Columbia charged with the supervision of juveniles being confined pursuant to law in any facility of the District of Columbia, whether such institution or facility is located within the District of Columbia or elsewhere," this does not grant exclusive jurisdiction to the Superior Court, and we so held in United States v. Perez, 488 F.2d 1057 (4th Cir.1974). The Eastern District of Virginia has jurisdiction under the clear language of Sec. 22-505 of the D.C.Code and under Article III of the Constitution which requires "[t]he Trial of all Crimes ... shall be held in the State where the said Crimes shall have been committed." U.S. Const. art. III, Sec. 2, cl. 3. The United States District Court for the Eastern District of Virginia has original jurisdiction for crimes committed at Lorton Reformatory, which is located within that district, and this includes criminal charges for violation of the D.C.Code and also for violation of Virginia criminal laws assimilated by 18 U.S.C. Sec. 13.

District of Columbia Code Sec. 22-505(a) is the basis for the charges contained in Count II of the indictment, and Code of Virginia Sec. 53.1-203(4) as assimilated by 18 U.S.C. Sec. 13 is the basis for the charge in Count III. The application of these laws to crimes committed at Lorton Reformatory is proper and provides a set of laws more complete than would be the case if only federal statutes were applicable.

III

Appellant argues that the Sentencing Guidelines do not apply to the Assimilative Crimes Act because of the requirement that persons convicted under 18 U.S.C. Sec. 13 be "subject to a like punishment" as prescribed by state law. He contends that in sentencing the appellant, the trial judge made no effort to conform the sentence under Count III to state sentencing practices, and it was error not to seek intrastate uniformity in sentencing.

The Sentencing Reform Act and the Sentencing Guidelines adopted thereunder apply to assimilated crimes. See United States v. Garcia, 893 F.2d 250 (10th Cir.1989); United States v. Leake, 908 F.2d 550 (9th Cir.1990); and the Commentary to Sec. 2X5.1, United States Sentencing Commission Guidelines Manual, effective November 1, 1989, which refers specifically to assimilated crimes. Both Leake and Garcia hold that the "like punishment" requirement of the Assimilative Crimes Act mandates that federal court sentences for assimilated crimes must fall within the minimum and maximum terms established by state law, and that within this range of discretion federal judges should apply the Sentencing Guidelines to the extent possible. We agree with and adopt this holding.

We are aware of United States v. White, 741 F.Supp. 1200 (E.D.N.C.1990), which holds that the Sentencing Guidelines do not apply to charges under the Assimilative Crimes Act. White relies upon language contained in United States v. Robinson, 495 F.2d 30 (4th Cir.1974), and United States v. Price, 812 F.2d 174 (4th Cir.1987), which predate the enactment of the Sentencing Reform Act and its Guidelines. The reasoning in White is not persuasive and it is not the law of this Circuit.

IV

The sentences of 65 months on both Counts I and II exceed the statutory maximum provided and are set aside. Both 18 U.S.C. Sec. 113(c) and Sec. 22-505(a) of the D.C.Code, the statutes violated in Counts I and II, respectively, have maximum penalties of only five years (60 months) imprisonment. Sentences of 65 months on each of these counts are illegal: "It is well established that a...