USA v. Weischedel

• Decision Date: 01 February 2000
• Docket Number: No. 98-30324,98-30324
• Citation: 201 F.3d 1250
• Parties: (9th Cir. 2000) UNITED STATES OF AMERICA, Plaintiff-Appellee, v. STACY WEISCHEDEL, OPINION Defendant-Appellant
• Court: U.S. Court of Appeals — Ninth Circuit

Page 1250

201 F.3d 1250 (9th Cir. 2000)

UNITED STATES OF AMERICA, Plaintiff-Appellee, v. STACY WEISCHEDEL, OPINION Defendant-Appellant.

No. 98-30324

UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT

Argued and Submitted September 16, 1999

Filed February 1, 2000

[Copyrighted Material Omitted] COUNSEL: Wendy Holton, Helena, Montana, for the defendant-appellant.

Bernard F. Hubley, Assistant United States Attorney, Helena, Montana, for the plaintiff-appellee

Appeal from the United States District Court for the District of Montana; Donald W. Molloy, District Judge, Presiding. D.C. No. CR-98-00021-2-DWM

Before: Mary M. Schroeder and Robert R. Beezer, Circuit Judges, and William W Schwarzer, ¹ District Judge.

SCHROEDER, Circuit Judge:

Stacy Weischedel appeals from her sentence of life imprisonment after agreeing to plead guilty to six counts related to the murder of car salesman Peter Stucky. Appellant's husband, Eric Weischedel, shot Stucky in the back of the head after the Weischedels lured Stucky to a remote area. Appellant confessed to the couple's crimes in return for not having to face the death penalty.

The most important issue in this appeal is whether the district court properly adjusted appellant's sentencing guideline range upward two levels pursuant to U.S.S.G. S 3A1.1(b) for committing a crime involving a "vulnerable victim." We review a finding of vulnerability for clear error. See United States v. Peters, 962 F.2d 1410, 1416 (9th Cir. 1992). We affirm because the district court imposed the adjustment after looking to the surrounding circumstances of the crime in addition to the particular characteristics of the victim, as permitted under the law of this circuit.

The facts are not materially disputed. Appellant and her husband formed a plan in April of 1998 to take a test drive with a car salesperson, kill the salesperson during the drive, and then steal the vehicle. Pursuant to the plan, the Weischedels on April 18 met with Stucky, who was a car salesman in Lewiston, Idaho. Pretending to be interested in purchasing a truck, the couple asked Stucky for a test drive. During the drive appellant was behind the wheel and Stucky was in the front passenger seat, while Eric sat in the back seat directly behind Stucky. Appellant drove to a remote area, where Eric shot Stucky in the back of the head with a semi-automatic pistol. The couple drove first into Washington, where they stopped to remove Stucky's wallet and conceal his body, and then into Montana, where they eventually dumped Stucky's body. The Weischedels used Stucky's cash and credit cards to make purchases along the way. A Montana Highway Patrol officer spotted them the next day, and after a high-speed chase the couple fled on foot and hid in a haystack. The Weischedels were apprehended in the haystack on April 20.

On April 22, 1998, before being charged by the United States, appellant signed a Memorandum of Understanding with the U.S. Attorney in which she agreed to confess voluntarily her role in Stucky's death and to provide information to help locate Stucky's body. She also agreed that her sentence upon pleading guilty to federal charges would be life imprisonment without parole. In return, the United States and the states of Washington, Idaho, and Montana agreed to a single federal prosecution in Montana in which the United States would not seek the death penalty. The parties all signed the agreement with the understanding that appellant would receive a life sentence without the possibility of parole. Nevertheless, it is undisputed that the Memorandum did not constitute a formal plea agreement, and the government does not rely on the Memorandum to oppose this appeal.

At sentencing, the district court accepted the presentence report's recommendation that appellant's guideline sentencing range be increased by two levels because Stucky was a "vulnerable victim." See U.S.S.G.S 3A1.1(b). In granting the adjustment, the district court referred to Stucky's age and his occupation as a car salesman and then described in some detail the circumstances of the crime that made Stucky particularly vulnerable. These circumstances included Stucky's position in the front passenger seat and the fact that he was driven to a remote area under the ruse of a potential sale. The relevant guideline provides: "If the defendant knew or should have known that a victim of the offense was a vulnerable victim, increase by two levels." U.S.S.G.S 3A1.1(b). The commentary defines "vulnerable victim" as "a person . . . who is unusually vulnerable due to age, physical or mental condition, or who is otherwise particularly susceptible to the criminal conduct." U.S.S.G. S 3A1.1, commentary, application note 2.

Appellant correctly notes that Stucky's age and physical condition at the time of his murder do not alone warrant an upward adjustment. See United States v. Luca, 183 F.3d 1018, 1026 (9th Cir. 1999) ("Age, standing alone . . . does not establish someone as a specific victim."). Stucky was 60, and most of the cases where age is a factor in such an adjustment involve victims over 70. See, e.g., United States v. Luscier, 983 F.2d 1507, 1509 (9th Cir. 1993) (83 year old victim); United States v. Gonzalez, 183 F.3d 1315, 1327 (11th Cir. 1999) (72 year old victim); United States v. Hardesty, 105 F.3d 558, 560 (10th Cir. 1997) (90 year old victims). There is nothing in the record suggesting that Stucky's physical condition was impaired. He was gainfully employed in an occupation requiring at least some physical mobility and much personal interaction. Age, however, was not the only basis for the district court's decision to adjust appellant's sentence.

Appellant contends that the district court improperly relied upon Stucky's occupation as a car salesman in making the adjustment. The commentary to the "vulnerable victim" guideline indicates that a court should not base the adjustment solely on a victim's occupation, stating that "a bank teller is not an unusually vulnerable victim solely by virtue of the teller's position in a bank." U.S.S.G. S 3A1.1, commentary, application note 2.

All of the courts that have considered the issue appear to have held that it is not appropriate to base a vulnerability adjustment on an abstract description of the victim's occupation. See United States v. Robinson, 119 F.3d 1205, 1219 (5th Cir. 1997); United States v. Morrill, 984 F.2d 1136, 1138 (11th Cir. 1993) (en banc). For a victim in a particular occupation to qualify as "vulnerable," there must have existed other, case-specific circumstances that made that individual "particularly susceptible" to the crime committed. See United States v. James, 139 F.3d 709, 714 (9th Cir. 1998). For example, in James this court upheld a finding that the bank teller in question was particularly susceptible to the robbery committed in that case because her pregnancy made her more likely to succumb to the defendant's threats of bodily harm. James, 139 F.3d at 714.

The district court in this case did not find Stucky to be vulnerable solely because he was a car salesman. Rather, the court properly considered certain aspects of Stucky's job as part of the individual circumstances that made him particularly vulnerable to the crimes the Weischedels chose to commit. The court stressed the Weischedels' ease in luring Stucky to his death by taking advantage of what he was required to do in his line of work. No court has held that a district judge must ignore a victim's occupation in deciding whether to impose the "vulnerable victim" adjustment.

The closest case to this one that we have found is United States v. Malone, 78 F.3d 518 (11th Cir. 1996). In Malone, the Eleventh Circuit held that the fact that the victim's occupation as a cab driver required him to drive to unknown and perhaps dangerous locations could be considered as one of the surrounding circumstances in the sentencing of defendants who called the victim's cab for the purpose of robbing him. The court declined to consider whether all cab drivers, solely by virtue of their vocation, are to be considered vulnerable victims whenever they are carjacked. Id. at 522. We agree with the Eleventh Circuit's decision in Malone. The district court in this case did not err in referring to the victim's occupation as one of many circumstances supporting the adjustment.

The appellant also contends that the "vulnerable victim" guideline excludes consideration of any circumstances other than the personal traits of the victim. This position is not supported...