United States v. Sparks

• Decision Date: 24 October 2019
• Docket Number: No. 18-50225,18-50225
• Citation: 941 F.3d 748
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Tony SPARKS, Defendant-Appellant.
• Court: U.S. Court of Appeals — Fifth Circuit

941 F.3d 748

UNITED STATES of America, Plaintiff-Appellee,

v.Tony SPARKS, Defendant-Appellant.

No. 18-50225

United States Court of Appeals, Fifth Circuit.

FILED October 24, 2019

Joseph H. Gay, Jr., Assistant U.S. Attorney, Michael Robert Hardy, Esq., Assistant U.S. Attorney, U.S. Attorney's Office, Western District of Texas, San Antonio, TX, for Plaintiff-Appellee.

David Kenneth Sergi, Sergi & Associates, P.C., San Marcos, TX, for Defendant-Appellant.

Before ELROD, GRAVES, and OLDHAM, Circuit Judges.^*

ANDREW S. OLDHAM, Circuit Judge:

Tony Sparks and his fellow gang members carjacked Todd and Stacie Bagley at gunpoint. The gang locked the Bagleys in the trunk for hours, emptied the Bagleys’ bank account, and tried to pawn Stacie’s wedding ring. During the gang’s crime spree, the Bagleys sang gospel songs from the trunk and told their captors about Jesus. Eventually one of the gang members popped the trunk, cursed at the couple, and executed Todd in front of his wife. That same gang member shot Stacie in the face but failed to kill her. Others incinerated the car to destroy the evidence and burned Stacie alive.

For his role in this crime, Sparks received a below-Guidelines 35-year sentence. Sparks says that violates the Eighth Amendment. We disagree.

I.

A.

On June 20, 1999, Tony Sparks went to a convenience store in Killeen, Texas, with Christopher Vialva and Christopher Lewis.¹ The three of them were members of a local gang known as the 212 PIRU Bloods. They planned to dupe a Good Samaritan into giving them a ride before carjacking him or her at gunpoint. Sparks brought the gun, a .22 caliber pistol.

Police initially thwarted the plan by detaining the trio for violating the city’s juvenile curfew law. (Sparks was 16 at the time.) Before being detained, Lewis threw the pistol into the bushes. Sparks’s mother picked up Sparks and Lewis, and Vialva was released because he was an adult.

The following day, Sparks, Vialva, and Lewis regrouped. They recruited two other members of their gang, Brandon Bernard and Terry Brown, to help with the carjacking. Vialva and Bernard retrieved the .22 caliber pistol that Lewis had discarded the night before. Because it was wet with dew, they worried that it would not function. So Bernard obtained a Glock .40 caliber pistol to use for the carjacking.

That afternoon, the five gang members went to an IGA supermarket to find a carjacking victim. Bernard and Brown acted as lookouts while Sparks, Vialva, and Lewis approached potential victims to ask for a ride. No one offered them a ride, so they drove to a "Mickey’s" convenience store. Bernard and Brown went to a nearby laundromat to play video games. Sparks, Vialva, and Lewis went to the front of the convenience store.

Shortly after arriving at the convenience store, Sparks found Todd Bagley using a payphone outside. Todd and his wife Stacie were youth ministers from Iowa. They’d previously lived in Killeen because Todd was a veteran of the U.S. Army and had been stationed at Fort Hood. The young couple had gone to church at Grace Christian, where they worked with the youth group. They were back in Killeen on a vacation to see old friends and attend a revival meeting at the church.

Sparks approached Todd and asked if he would give Sparks, Vialva, and Lewis a ride to another location. Todd conferred with Stacie, and the young couple unsuspectingly agreed to give the gang members a ride. Bernard and Brown returned to their homes to wait for further instructions from Vialva.

Sparks, Vialva, and Lewis got into the back seat of the Bagleys’ car. Todd drove while his wife sat in the front passenger seat. In accordance with their plan, Sparks and Vialva pulled out two handguns, and Vialva pointed his gun at Todd. Vialva told the Bagleys that the "plan had changed," and he forced Todd to drive to a semi-rural location near the edge of Killeen. While Vialva pointed a gun at the Bagleys, Sparks and Vialva robbed them of their money, wallets, purse, debit card, identification, and jewelry. Vialva demanded their bank account’s pin number and then forced the Bagleys into the trunk of their car.

With the Bagleys locked in the trunk, Sparks, Vialva, and Lewis went on an hours-long crime spree. They went to an ATM to steal all of the Bagleys’ money. That effort was frustrated, however, because the youth ministers had less than $100 in their bank account. They tried to pawn Stacie’s wedding ring. They used what little money they could steal from the Bagleys to buy cigars, cigarettes, and fast food from Wendy’s.

Meanwhile, the Bagleys evangelized from the trunk. According to Lewis (who later testified), the Bagleys asked him and Sparks about God, Jesus, and church. The Bagleys acknowledged not having earthly wealth, but they told their captors that faith in Jesus is more valuable than money. The Bagleys talked about the revival meeting at Grace Christian. And the Bagleys urged their captors to have faith in Jesus Christ. The Bagleys begged for their lives.

As night began to fall, Sparks told the gang that he needed to go home to avoid violating his 8 p.m. probation curfew for a previous robbery conviction. The group dropped Sparks off at his home. Sparks took the Bagleys’ jewelry with him. But Vialva asked Sparks not to take his .22 caliber handgun. After initially refusing, Sparks agreed.

Bernard and Brown purchased fuel to burn the Bagleys’ car. Vialva and Lewis picked them up, and the four gang members drove (again, with the Bagleys still locked in the trunk) to the Belton Lake Recreation Area on the Fort Hood military installation. Vialva parked the Bagleys’ car on top of a little hill. Brown and Bernard poured lighter fluid on the interior of the car. All the while, the Bagleys sang and prayed in the trunk.

Stacie’s last words were "Jesus loves you," and "Jesus, take care of us." Vialva crudely cursed at her, told Lewis to pop the trunk, and then executed Todd in front of his wife. Vialva shot Todd in the head with the .40 caliber Glock, killing him instantly. Then Vialva shot Stacie in the face but failed to kill her. Bernard set the car on fire and burned Stacie alive. Todd was 26. Stacie was 28.

B.

Sparks pleaded guilty to aiding and abetting a carjacking, and he hoped to receive an offense-level reduction for acceptance of responsibility. U.S.S.G. § 3E1.1. But as he was awaiting sentencing, Sparks was implicated in a plot to escape from his detention center. As Sparks himself acknowledges, another inmate, Christopher Kirvin, choked a prison guard unconscious and stole her keys. The Pre-Sentence Report ("PSR") implicated Sparks based on a witness who heard Sparks planning the escape attempt with Kirvin. Sparks flushed a toilet repeatedly during the assault to mask the sound of the prison guard’s screams. Based on the escape attempt, the PSR added two points to Sparks’s offense level for obstructing justice. Id. § 3C1.1. It also denied Sparks an offense-level reduction for accepting responsibility. Id. § 3E1.1. Given the nature of the crime and the Bagleys’ murders, the PSR recommended an offense level of 45—two levels above the highest value on the sentencing table.

When the district court sentenced Sparks in 2001, it agreed with the PSR’s factual findings and sentencing calculation. Applying the Guidelines, which were mandatory before United States v. Booker , 543 U.S. 220, 125 S.Ct. 738, 160 L.Ed.2d 621 (2005), the court sentenced Sparks to life in prison without the possibility of parole ("LWOP").

We affirmed Sparks’s sentence on direct appeal. See United States v. Sparks , 31 F. App'x 156 (5th Cir. 2001). In 2003, Sparks filed a pro se motion under 28 U.S.C. § 2255 to vacate his sentence, and the district court denied it. Sparks filed an appeal, but we dismissed it for want of prosecution. United States v. Sparks , No. 03-50781 (5th Cir. Nov. 19, 2003).

Since then, several Supreme Court decisions involving the Eighth Amendment raised constitutional concerns about Sparks’s LWOP sentence. In Graham v. Florida , 560 U.S. 48, 130 S.Ct. 2011, 176 L.Ed.2d 825 (2010), the Court held that juveniles may not be sentenced to life without parole for non-homicide offenses. In Miller v. Alabama , 567 U.S. 460, 132 S.Ct. 2455, 183 L.Ed.2d 407 (2012), the Court held that juveniles may not receive mandatory sentences of life without parole. And in Montgomery v. Louisiana , ––– U.S. ––––, 136 S. Ct. 718, 193 L.Ed.2d 599 (2016), the Court made Miller retroactive to cases on collateral review.

We authorized Sparks to file a successive § 2255 motion based on Graham . In re Sparks , 657 F.3d 258, 262 (5th Cir. 2011). The district court denied the motion. But we granted a certificate of appealability, United States v. Sparks , No. 13-50807 (5th Cir. July 10, 2014), and remanded the case for reconsideration at the Government’s request, United States v. Sparks , No. 13-50807 (5th Cir. Feb. 10, 2015). We also authorized Sparks to file a successive § 2255 motion based on Miller , which the Government did not oppose. In re Sparks , No. 16-50973 (5th Cir. Nov. 18, 2016).

Upon joint motion of the parties, the district court consolidated the motions and ordered a resentencing. It provided Sparks with court-appointed experts and conducted a five-day sentencing hearing. At the hearing, the Government introduced evidence that Sparks committed repeated acts of brutal violence during his first decade in prison. In 2004, Sparks participated in a riot involving approximately 600 inmates, carrying a baseball bat during the fighting. In July 2006, Sparks stabbed his cellmate 12 times in the back, neck, head, and right arm. In September 2007, he stabbed another inmate in the neck, resulting in a spinal cord injury

that left the inmate unable to walk or urinate by himself. In March 2008, Sparks attempted to murder an inmate by stabbing him repeatedly in the head, resulting in brain damage and the loss of the victim’s right eye. Sparks’s violence led to his transfer to ADX Florence in Colorado, a...