United States v. Fowler

• Decision Date: 21 April 2014
• Docket Number: No. 12–15818.,12–15818.
• Parties: UNITED STATES of America, Plaintiff–Appellee, v. Charles Andrew FOWLER, a.k.a. Man, Defendant–Appellant.
• Court: U.S. Court of Appeals — Eleventh Circuit

749 F.3d 1010

UNITED STATES of America, Plaintiff–Appellee,

v.Charles Andrew FOWLER, a.k.a. Man, Defendant–Appellant.

No. 12–15818.

United States Court of Appeals, Eleventh Circuit.

April 21, 2014.

Michelle Thresher Taylor, Robert E. O'Neill, Joseph W. Swanson, U.S. Attorney's Office, Tampa, FL, for Plaintiff–Appellee.

Kenneth S. Siegel, Kenneth S. Siegel, PA, Tampa, FL, for Defendant–Appellant.

Appeal from the United States District Court for the Middle District of Florida. D.C. Docket No. 8:07–cr–00380–JSM–TGW–1.

Before CARNES, Chief Judge, HULL and COX, Circuit Judges.

CARNES, Chief Judge:

From time immemorial, human societies “have invariably recognized it among their earliest practical necessities to allot a portion of the virgin soil as a cemetery, and another portion as the site of a prison.” ¹ Because of a murder Charles Fowler committed in a cemetery, he has been sentenced to life in prison. He will stay in prison until his mortal remains are taken to a cemetery, unless his life sentence is reduced to ten years, as he contends that it should be. That is what this appeal is about.

For murdering a police officer in a Florida cemetery, Fowler was convicted under the federal witness-tampering statute, 18 U.S.C. § 1512(a)(1)(C), and under 18 U.S.C. § 924(c)(1) for using a firearm during the commission of a federal crime of violence. He was originally sentenced to life imprisonment on the witness-tampering count with a consecutive ten-year sentence—the mandatory minimum—on the firearm count. After Fowler successfully challenged his witness-tampering conviction on direct appeal, the district court resentenced him to life imprisonment on the surviving firearm count, explaining that its original sentence “was obviously a package” and that it never would have imposed a ten-year sentence “on a murder-with-a-firearm charge standing alone.” Fowler appeals that life sentence, contending that the district court had no authority to resentence him on the remaining firearm count and, even if it did, the imposition of an enhanced sentence on that count violated his due process rights.

I.

A.

In the early morning hours of March 3, 1998, before the rosy fingers of dawn had crept across the Florida sky, Fowler and four other men gathered at a cemetery in a high-crime area of Haines City. They weren't there to pay homage to the dead, but more prosaically to prepare for a planned bank robbery. Before the morning was done, Fowler would add to the death permeating those grounds.

Only a few hours earlier, three of the men—Christopher Gamble, Jeffrey Bouyie, and Andre Paige—had robbed a Holiday Inn at gunpoint. Fowler had stolen an Oldsmobile and committed a separate robbery. After casing a bank in the stolen car, those four and another conspirator obtained guns, masks, and gloves, and went to the cemetery to prepare for the heist. When they arrived at the cemetery, the group donned black clothing and the gloves, and they started drinking, using drugs, and discussing their plan. Just before first light, while the morning fog was starting to lift, Fowler walked toward a nearby orange grove so that he could use cocaine without having to share it with the others.

During Fowler's absence, Haines City Police Officer Christopher Todd Horner, who was on routine patrol, spotted the Oldsmobile and called in a report of a suspicious car with no visible license plate. He pulled up in his patrol car behind the stolen car and aimed a spotlight at the four men who were sitting inside the car. He approached them with his gun drawn and asked for their names so that he could check for outstanding warrants. Returning from the orange grove, Fowler ambushed Officer Horner from behind and, with the help of the others, managed to wrestle the officer's firearm away from him. Fowler then ordered Officer Horner to get on his knees and pointed the gun at the back of his head.

Officer Horner, who knew Gamble from a number of earlier encounters, called out to him by name, pleading: “Chris, why are you doing this? Please don't do this.” From that, the others realized that the officer knew Gamble. Fowler said that they could no longer “walk away from this thing.” Amid the commotion, Bouyie yelled out, “[K]ill that cracker.” Fowler obliged, firing a single fatal shot into the back of Officer Horner's head. Gamble then grabbed the gun from Fowler and shoved it underneath Officer Horner's lifeless body, trying to make the murder look like a suicide.

No one was fooled by the attempt to stage a suicide. Still, Officer Horner's murder remained unsolved until March 2002, four years later, when Gamble—who was then serving a 20–year sentence for robbing a liquor store in 1999—told law enforcement officials that he had robbed the Holiday Inn the night the officer was killed at the cemetery and that Fowler had murdered him.

B.

In September 2007, Fowler was indicted by a federal grand jury on two counts stemming from the murder of Officer Horner. Count 1 charged Fowler under the federal witness-tampering statute, 18 U.S.C. § 1512(a)(1)(C), for murdering Officer Horner with the intent to prevent him from communicating information about a federal offense to a federal law enforcement officer or federal judge. ² Count 2 charged Fowler with using a firearm during a federal crime of violence—specifically, conspiracy to commit robbery and conspiracy to commit bank robbery—and, in doing so, murdering Officer Horner, in violation of 18 U.S.C. §§ 924(c)(1)(A), 924(j)(1), and 1111(a). A jury found Fowler guilty as charged on both counts.

In preparation for sentencing, the United States probation office compiled a presentence investigation report (PSR). Although the federal sentencing guidelines typically provide for the grouping of closely related counts, seeU.S.S.G. § 3D1.2, Fowler's conviction on Count 2 was not covered by the grouping rules because it carried a mandatory consecutive sentence of at least ten years imprisonment. See id. § 3D1.1(b)(1) (excluding from the grouping rules any count subject to a mandatory consecutive sentence); 18 U.S.C. § 924(c)(1)(A)(iii) (imposing a mandatory minimum sentence of ten years “in addition to the punishment provided for such crime of violence” where a defendant discharges a firearm during that crime of violence). The PSR calculated a total offense level of 46 on Count 1, the witness-tampering count, which yielded a recommended guidelines sentence of life imprisonment when combined with Fowler's criminal history category of VI.³ As for Count 2, the PSR calculated a guidelines sentence of ten years imprisonment, to run consecutively to the recommended life sentence on Count 1. Without objections from either side, the district court adopted the PSR's guidelines calculations and, after considering the sentencing factors in 18 U.S.C. § 3553(a), sentenced Fowler to life imprisonment on Count 1 plus a consecutive term of ten years on Count 2.

Fowler appealed his conviction for witness tampering, contending that the evidence was insufficient to show that Officer Horner likely would have communicated with a federal official. See United States v. Fowler, 603 F.3d 883, 884, 886 (11th Cir.2010). We affirmed on the ground that the “ possible or potential communication to federal authorities of a possible federal crime is sufficient for purposes of [the witness-tampering statute],” and we concluded that the evidence presented at Fowler's trial satisfied this standard. Id. at 888. The Supreme Court granted Fowler's petition for a writ of certiorari and reversed, holding that the government must show more than a mere possibility of communication with a federal official to obtain a conviction under the statute. Fowler v. United States, ––– U.S. ––––, 131 S.Ct. 2045, 2052–53, 179 L.Ed.2d 1099 (2011). The Court held that the government must instead establish “a reasonable likelihood” that the victim would have made “at least one relevant communication ... to a federal law enforcement officer.” Id. at 2052 (emphasis omitted). The Court remanded the case to us for a determination of whether the evidence presented at trial was sufficient to satisfy the “reasonable likelihood” standard, id. at 2053, a task that we handed off to the district court in a remand of our own, United States v. Fowler, 654 F.3d 1178, 1179 (11th Cir.2011).

The district court on remand concluded that the evidence was insufficient to satisfy the standard announced by the Supreme Court, and it offered the government the opportunity to retry Fowler on Count 1. The district court judge also explained that, regardless of any retrial, he was going to vacate the sentence on Count 2 and resentence Fowler on that count “because obviously a ten-year sentence on Count 2 is interrelated with the life sentence I gave on Count 1. I would not have given someone ten years on a murder-with-a-firearm charge standing alone.” After the government advised the district court that it would not pursue a retrial on Count 1, the court vacated Fowler's conviction and life sentence on that count, vacated his consecutive ten-year sentence on Count 2, and scheduled resentencing on Count 2.

At the district court's direction, the probation office prepared an updated PSR calculating the applicable guidelines range on the sole surviving count of conviction. Even without his conviction on Count 1, Fowler's total offense level on Count 2 remained at 46, his criminal history category remained at VI, and the sentence recommended by the guidelines remained at life imprisonment, the statutory maximum for that offense under 18 U.S.C. § 924(j)(1). Fowler did not object to the PSR's revised guidelines calculations; instead, he objected to the resentencing process in general.

Fowler insisted that the district court lacked the authority to resentence him under the so-called “sentencing package doctrine” because his two original counts of conviction were not “interdependent” for sentencing purposes. He argued...