USA v. Davis

• Decision Date: 03 May 1999
• Docket Number: CR-97-725-DWS,No. 98-4555,98-4555
• Citation: 184 F.3d 366
• Parties: (4th Cir. 1999) UNITED STATES OF AMERICA, Plaintiff-Appellee, v. JOHN ALVIN DAVIS, Defendant-Appellant. () Argued:
• Court: U.S. Court of Appeals — Fourth Circuit

Page 366

184 F.3d 366 (4th Cir. 1999)

UNITED STATES OF AMERICA, Plaintiff-Appellee, v. JOHN ALVIN DAVIS, Defendant-Appellant.

No. 98-4555 (CR-97-725-DWS)

UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT

Argued: May 3, 1999

Decided: July 13, 1999

Appeal from the United States District Court for the District of South Carolina, at Columbia. Dennis W. Shedd, District Judge.

COUNSEL ARGUED: John Herman Hare, Assistant Federal Public Defender, Columbia, South Carolina, for Appellant. Eric William Ruschky, Assistant United States Attorney, Columbia, South Carolina, for Appellee. ON BRIEF: J. Rene Josey, United States Attorney, Columbia, South Carolina, for Appellee.

Before MURNAGHAN, LUTTIG, and KING, Circuit Judges.

Vacated and remanded by published opinion. Judge Luttig wrote the opinion, in which Judge Murnaghan and Judge King joined.

OPINION

LUTTIG, Circuit Judge:

John Alvin Davis was charged in federal court, under the Assimilative Crimes Act, with failure to stop his car when signaled by a lawenforcement vehicle, in violation of South Carolina law, while on a military base within the special territorial jurisdiction of the United States. He pled guilty and was sentenced to nine years in prison under a provision of the South Carolina law which applies in cases in which "great bodily injury resulted." Because whether great bodily injury resulted was an offense element that was not charged in the indictment, we vacate Davis's sentence and remand for re-sentencing.

I.

On September 19, 1997, John Alvin Davis was driving his gray 5series BMW down a road on the premises of Fort Jackson, an Army base in Columbia, South Carolina, when a military police officer clocked him speeding. The military police officer pursued Davis in his patrol car and turned on his lights and siren. Davis initially pulled over, but then made a U-turn and sped past the officer. A high-speed chase ensued, at speeds reaching 95 miles per hour. In the course of the chase, Davis exited the premises of Fort Jackson and entered a residential area of Columbia. There, as Davis was driving down the center turn lane of a two-way street, his car collided with a car driven by Beryl Harris. Davis then abandoned his car and fled on foot; when he was eventually caught, he attempted to resist arrest. As a result of the accident, Harris, the driver of the other car, was left with a number of serious and permanent injuries.

Davis was subsequently prosecuted in both federal and state court. Davis was prosecuted in state court for leaving the scene of an accident. See S.C. Code § 56-5-1210(A)(2). He pled guilty and was sentenced to ten years in prison and a $1,000 fine, suspended upon service of three years, and five years of probation. Of more relevance here, Davis was also prosecuted in federal court under the Assimilative Crimes Act, which provides that any individual who commits a crime "within or upon" an area of exclusive federal jurisdiction which would be punishable if committed within the jurisdiction of the state in which the exclusive federal territory is located"shall be guilty of a like offense and subject to a like punishment." 18 U.S.C. § 13. Davis was charged with failure to stop his car when signaled by a law-enforcement vehicle. See S.C. Code § 56-5-750. He again pled guilty and was sentenced to nine years in prison, three years of supervised release, a special assessment in the amount of $100, and restitution to Harris in the amount of $88,034.98. From that sentence, Davis now appeals.

II.

Appellant contends that the district court erroneously sentenced him under S.C. Code § 56-5-750(C)(1), the provision of the South Carolina failure-to-stop statute which applies in cases in which "great bodily injury resulted."¹ Appellant argues that whether great bodily injury resulted from his failure to stop was an element of the offense, rather than a mere sentencing factor, and that, because his indictment did not allege that great bodily injury resulted, he did not plead guilty, and therefore should not have been sentenced, under§ 56-5750(C)(1). We agree, and therefore remand for resentencing.

"Much turns on the determination that a fact is an element of an offense rather than a sentencing consideration." Jones v. United States, 119 S. Ct. 1215, 1219 (1999). If a fact is an offense element, it must be charged in the indictment and, if the defendant chooses to proceed to trial, it must be proven beyond a reasonable doubt. If, on the other hand, a fact is a mere sentencing consideration, it need not be raised until sentencing and need be proven only by a preponderance of the evidence.

Whether a fact is an offense element or a sentencing consideration is a matter of statutory interpretation. See Almendarez-Torres v. United States, 118 S. Ct. 1219, 1223 (1998) (noting that, in determining whether a fact is an offense element, "we look to the statute's language, structure, subject matter, context, and history -factors that typically help courts determine a statute's objectives and thereby illuminate its text"). Some statutes explicitly identify a particular fact as a sentencing consideration, see, e.g. , McMillan v. Pennsylvania 477 U.S. 79, 82 (1986) (interpreting Pennsylvania statute expressly stating that "[p]rovisions of this section shall not be an element of the crime"); others, such as the one before us, do not.

No South Carolina court has yet ruled on whether the fact that great bodily injury resulted is an offense element or a sentencing factor in § 56-5-750(C)(1). The United States Supreme Court, however, recently addressed the issue of whether the fact that serious bodily injury resulted was an offense element or a sentencing factor in a similar statute, albeit a federal one. See Jones , 119 S. Ct. at 1215. In Jones, the Court was interpreting the federal carjacking statute, which read at the time of conviction as follows:

Whoever, possessing a firearm as defined in section 921 of this title, takes a motor vehicle that has been transported, shipped, or received in interstate or foreign commerce from the person or presence of another by force and violence or by intimidation, or attempts to do so, shall --

(1) be fined under this title or imprisoned not more than 15 years, or both,

(2) if serious bodily injury (as defined in section 1365 of this title) results, be fined under this title or imprisoned not more than 25 years, or both, and

(3) if death results, be fined under this title or imprisoned for any number of years up to life, or both.

18 U.S.C. § 2119 (1988 Supp. V). By a 5-4 majority, the Court held that the fact that serious bodily injury resulted was an offense element, rather than a mere sentencing factor. See Jones, 119 S. Ct. at 1217, 1218. In so concluding, the Court engaged in a three-step inquiry.

First, the Court parsed the text of the statute. See id. at 1219-20. It began by recognizing that the serious bodily injury provision was contained in a separate subsection from the first section of the statute, in which the primary elements of the crime were listed, and therefore "ha[d] a look to it" that suggested that serious bodily injury was merely a sentencing factor. Id. at 1219. However, the Court concluded that this appearance was deceptive for two reasons. The Court began by observing that subsection (2) -the provision containing the serious bodily injury requirement -established "steeply higher penalties" than subsection (1) -the provision for cases not involving injury or death. Id. at 1218. The Court added that this "steeply higher" penalty range was conditioned on a "further fact" -namely, whether serious bodily injury occurred -which was "quite as important" as the primary elements of the crime. Id. The Court then noted that the subsection containing the serious bodily injury requirement was not really a separate section, because the first clause of the statute would constitute an incomplete sentence without it. See id. at 1219-20.

Second, because the "text alone does not justify any confident inference," the Court looked to extrinsic sources to determine Congress' intent. Id. at 1220-22. The Court began by considering other statutes, concluding that Congress has frequently, though by no means always, treated "serious bodily injury" as an offense element in other contexts. See id. at 1220-21. Although the statute it was interpreting was a federal one, the Court noted that bodily injury was often an offense element in analogous state statutes as well. See id. at 122122. The Court also considered the legislative history of the statute, but ultimately concluded that it was indeterminate on the issue. See id. at 1222-23.

Third, the Court asserted that, because its analysis under the first two steps left open "the possibility" that serious bodily injury was a sentencing factor, the statute should nevertheless be construed as requiring that serious bodily injury be charged as an offense element under the canon of constitutional avoidance. See id. at 1222-28. The Court reasoned that treating "any fact (other than a prior conviction) that increases the maximum penalty for a crime" as a sentencing factor, rather than as an element of the offense, would raise concerns involving both Fifth Amendment due process and the Sixth Amendment right to a jury. Id. at 1224 n.6. Focusing on the Sixth Amendment, the Court discussed a variety of historical evidence suggesting that "the relative diminution of the jury's significance would merit Sixth Amendment concern." See id. at 1224-26. Noting that the precedent on whether such a diminution would rise to the level of a constitutional violation was "not dispositive," the Court applied the avoidance canon, and therefore concluded that serious bodily injury should be read as an offense element. Id. at 1228.²

Applying the analysis of Jones to this case, we conclude that whether great bodily injury resulted should be construed as an offense element, rather than a...