United States v. Alonzo Harris ( 1995 )

Opinions of the United
1995 Decisions States Court of Appeals
for the Third Circuit
1-10-1995
USA v Alonzo Harris
Precedential or Non-Precedential:
Docket 93-3632
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UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
N0. 93-3632
UNITED STATES OF AMERICA
v.
ALONZO L. HARRIS
a/k/a "Letter"
Alonzo L. Harris,
Appellant
On Appeal From the United States District Court
For the Western District of Pennsylvania
(D.C. Crim. Action No. 93-cr-00123)
Argued June 23, 1994
BEFORE: STAPLETON and GREENBERG, Circuit Judges, and
FARNAN,* District Judge
(Opinion Filed January 10, 1995)
Thomas S. White
Federal Public Defender
W. Penn Hackney, First Asst.
Federal Public Defender
Karen Sirianni Gerlach (Argued)
Asst. Federal Public Defender
415 Convention Tower
960 Penn Avenue
Pittsburgh, PA 15222
Attorneys for Appellant
Alonzo L. Harris
* Honorable Joseph J. Farnan, Jr., United States District Judge
for the District of Delaware, sitting by designation.
Frederick W. Thieman
United States Attorney
Paul J. Brysh (Argued)
Assistant U.S. Attorney
Bonnie R. Schlueter
Office of U.S. Attorney
633 U.S. Post Office & Courthouse
Pittsburgh, PA 15219
Attorneys for Appellee
OPINION OF THE COURT
STAPLETON, Circuit Judge:
Alonzo Harris entered a conditional guilty plea to each
of five counts charging him with armed bank robbery. His appeal
from his conviction presents five issues: whether the court
erred (1) in refusing to suppress a series of inculpatory
statements given by Harris to various law enforcement personnel;
(2) in declining to allow Harris to withdraw his plea on the eve
of sentencing; (3) in failing to provide a sufficient explanation
for its decision to raise Harris' criminal history level from
category I to category VI pursuant to U.S.S.G. § 4A1.3; (4) in
adding four points to Harris' offense level because the mace the
district court found he had used on two tellers during one of the
robberies was a "dangerous weapon" within the meaning of U.S.S.G.
§ 2B3.1(b)(2)(D); and (5) by enhancing Harris' offense level an
additional two points because, as a result of being "maced," the
tellers sustained "bodily injuries" within the meaning of
U.S.S.G. § 2B3.1(b)(3)(A). We will remand for resentencing.
I.
On May 7, 1993, the Pittsburgh police obtained an
arrest warrant for Harris in connection with a shooting at the
Hampton Inn in the Oakland section of the city. Harris
voluntarily surrendered the next day and was taken into custody.
During the remainder of that day and the next, Harris provided
the authorities with extensive tape recorded and written
statements detailing his role in five bank robberies which
occurred in 1992. Prior to the making of these statements, the
police had not suspected him of committing any of these
robberies.
Harris first described the robbery of the Morningside
Branch of the Laurel Savings Association. According to Harris'
statement, he drove to the bank in a van with a friend, Charlie
Brown. As Harris entered the bank, he carried a pellet gun and a
can of mace. According to Harris, he took money from two tellers
and, as he fled, attempted to spray mace at one of them to
prevent her from seeing the direction in which he fled.
Harris next described an October 23, 1992, robbery of
the Fidelity Savings Association on East Ohio Street in
Pittsburgh. Brown carried a pellet gun into the bank and took
money from a teller, while Harris picked money out of a cash
drawer.
On the day after being taken into custody, Harris
talked about the other three robberies at issue here. First, he
described the July 30, 1992, robbery of the Allegheny Valley Bank
in Blawnox, during which he carried a toy gun. Next, Harris
spoke of the June 29, 1992, robbery of the Laurel Savings
Association in Etna. On this occasion, Harris carried a can of
mace and Brown carried a gun. After a teller gave them the money
in her cash drawer, Harris sprayed mace in the air. Finally,
Harris described the June 15, 1992, robbery of the Integra Bank
in New Kensington. Harris and a man named "Vernor" were wearing
ski masks and had one gun between them.
After Harris made these initial statements, the FBI was
contacted. On May 11, 1993, FBI agents obtained further
statements from Harris regarding his role in several other
crimes.
After being indicted for the robberies that occurred in
1992, Harris filed a motion to suppress the statements he had
given. Following an evidentiary hearing, the district court
denied Harris' motion. Harris thereafter entered conditional
pleas of guilty to the five counts of the indictment charging
armed bank robbery and thereby preserved the suppression issue
for appellate review.
On November 30, 1993, after the presentence report had
been prepared and Harris' sentencing had been set for December 3,
1993, Harris filed a motion to withdraw his guilty pleas. At the
hearing originally scheduled as a sentencing hearing, the
district court denied this motion, heard argument on several
sentencing issues, and made tentative findings with respect to
those issues. Counsel was given permission to file objections to
the tentative findings by December 6, 1993, and sentencing was
continued until that date.
Harris was ultimately assigned a total offense level of
32, a criminal history category of VI, and a guideline sentencing
range of 210-262 months. He was sentenced to concurrent 21-year
terms of imprisonment (252 months); five years of supervised
release; payment of restitution to the victim banks in the sum of
$25,783; and a special assessment of $225.
II.
Harris insists that the statements he sought to
suppress were coerced. The district court found that they were
not. We review the district court's finding of historic fact for
clear error; our review of its ultimate conclusion regarding the
absence of coercion is plenary. Miller v. Fenton, 474 U.S. 104,
115-17 (1985); United States v. Walton, 10 F.3d 1024, 1027 (3d
Cir. 1993).
In support of his contention that his "will was
overborne" and that the waiver of his constitutional rights was
not "the product of a rational intellect and a free will," App.
97, Harris testified that he was intimidated by the fact that his
legs were shackled, the fact that he was not free to leave the
room in which he was questioned, and the fact that the officers
with him in the room were wearing guns. He also testified that
he had consumed forty ounces of "Old English" before he
surrendered himself and that the effects of this consumption had
not dissipated when he decided to confess.
The district court found that Harris had been advised
of his constitutional rights on at least three occasions and that
he had "voluntarily and understandingly" waived those rights.
App. 149. It noted that the audio tapes established that Harris
was "calm and rational" and "had no fear in his voice." Id. The
court further noted that Harris had voluntarily surrendered and,
as evidenced by Harris' own statements on the tape, he had been
treated well by both the Pittsburgh police and the FBI. Finally,
the court found that there was "no evidence" of threats, promises
or pressures of any kind and "no credible evidence" that Harris
was under the influence of alcohol. App. 149, 150.
There is ample evidence to support the district court's
findings regarding the circumstances under which Harris'
statements were given and, based on these findings, we conclude
that Harris waived his constitutional rights voluntarily and with
an understanding of the consequences of doing so.
III.
At the hearing on his motion to withdraw his guilty
pleas, Harris testified that "it was fear that drove" him to
plead guilty and that he wanted to withdraw those pleas because
he was "truly innocent." App. 193. However, he did not further
explain the "fear" that had allegedly coerced the pleas, and he
offered no evidence tending to show that the detailed accounts of
the bank robberies in his statements were untrue. The district
court declined to permit withdrawal. We will review its ruling
under an abuse of discretion standard. United States v. Huff,
873 F.2d 709, 712 (3d Cir. 1989).
Quoting from United States v. Jones, 979 F.2d 317, 318
(3d Cir. 1992), the district court explained that a "defendant
must . . . not only reassert [his] innocence, but give sufficient
reasons to explain why contradictory positions were taken before
the district court and why permission should be given to withdraw
the guilty plea." App. 200. The court concluded that Harris had
failed to explain his earlier statements and that, accordingly,
his conclusory assertion of innocence was not credible. It
further concluded that the reason Harris wanted to change his
pleas was that he "had a change of heart after reading the
presentence report and contemplating the possible sentence."
App. 200. Citing United States v. Huff, 873 F.2d 709, 712 (3d
Cir. 1989), the court concluded that this reason was inadequate
to justify withdrawal. Finally, the district court noted that,
under Third Circuit jurisprudence, withdrawal may be denied in
circumstances like those before it even if no prejudice to the
government is shown. See United States v. Martinez, 785 F.2d 111(3d Cir. 1986).1
1
. In Martinez, we observed:
In evaluating a motion under Rule 32(d),
we have looked primarily to three factors:
"(1) whether the defendant asserts his
innocence; (2) whether the government would
be prejudiced by withdrawal; and (3) the
strength of the defendant's reasons for
moving to withdraw." [United States v.
Trott, 779 F.2d 912, 915 (3d Cir. 1985).]
* * * *
We can find no fault with the district court's
analysis, and its decision to deny the permission sought was well
within the bounds of its discretion.
IV.
Having concluded that Harris' conviction must stand, we
turn to the more troublesome sentencing issues that he raises.
The first concerns the district court's decision to raise his
criminal history level from category I.
U.S.S.G. § 4A1.3 provides in relevant part:
If reliable information indicates that
the criminal history category does not
adequately reflect the seriousness of the
(..continued)
. . . Martinez urges us to adopt the position
of a minority of the courts of appeals that
absent any showing of prejudice to the
government, withdrawal should be freely
granted. See generally United States v.
Thompson, 680 F.2d 1145, 1150-51 (7th Cir.),
cert. denied, 459 U.S. 1089, 103 S. Ct. 573,
74 L. Ed. 2d 934 (1982). We are constrained,
however, to reject this position as contrary
to the 1983 amendments to Rule 32(d). The
Advisory Committee Notes to the 1983
amendments state that amended Rule 32(d)
embodies the approach of United States v.
Saft, 448 F.2d 1073 (2d Cir. 1977). Under
that approach, "[t]he Government is not
required to show prejudice when a defendant
has shown no sufficient grounds for
permitting withdrawal of a plea." Id. at
1083. Thus, even assuming that the
government has failed to show prejudice, we
must affirm the district court's decision
because Martinez has failed to demonstrate
sufficient grounds for withdrawing his plea.
785 F.2d at 114, 115-16.
defendant's past criminal conduct or the
likelihood that the defendant will commit
other crimes, the court may consider imposing
a sentence departing from the otherwise
applicable guideline range. Such information
may include, but is not limited to,
information concerning: . . . (e) prior
similar adult criminal conduct not resulting
in a criminal conviction.
A departure under this provision is
warranted when the criminal history category
significantly under-represents the
seriousness of the defendant's criminal
history or the likelihood that the defendant
will commit further crimes.
* * * *
In considering a departure under this
provision, the Commission intends that the
court use, as a reference, the guideline
range for a defendant with a higher or lower
criminal history category, as applicable.
For example, if the court concludes that the
defendant's criminal history category of III
significantly under-represents the
seriousness of the defendant's criminal
history, and that the seriousness of the
defendant's criminal history most closely
resembles that of most defendants with
Criminal History Category IV, the court
should look to the guideline range specified
for a defendant with Criminal History
Category IV to guide its departure.
In United States v. Hickman, 991 F.2d 1110 (3d Cir.
1993), this court remanded a case for resentencing because it
found that the district court had not properly completed the
necessary step-by-step procedure that must occur prior to an
increase under U.S.S.G. § 4A1.3. In Hickman, the defendant's
prior record placed him in criminal history category III. The
district court, however, believed that this resulted in a
sentence which did not adequately represent Hickman's long
history of similar conduct. Therefore, it departed upward under
§ 4A1.3 by "doubling the top of the guideline range." Id. at
1113. The district court gave no further explanation for the
specific sentence. The record, however, reflected that the court
was motivated by the fact that Hickman, at 65, was still engaged
in criminal activity even though his history of fraud type
offenses went back to 1953.
This court held in Hickman that a district court must
follow the procedure contemplated by § 4A1.3 when choosing to
depart upward from the criminal history category originally
calculated for the defendant.
Under this [§ 4A1.3] regime, the court is
obliged to determine which category (of those
higher than the category originally
calculated for the defendant) best represents
the defendant's prior criminal history. The
court then uses the corresponding sentencing
range to "guide its departure." Moreover,
the court is obliged to proceed sequentially
through these categories. It may not move to
the next higher category until it has found
that a prior category still fails to
adequately reflect the seriousness of the
defendant's past criminal conduct.
Id. at 1114. We then went on to quote the following passage from
a Second Circuit case:
The reason for obliging a judge to
examine the next higher categories in
sequence is that these categories reflect the
Commission's careful assessment of how much
incremental punishment a defendant should
receive in light of the various degrees of a
prior record.
Id. at 1114 (quoting United States v. Coe, 891 F.2d 405, 413 (2d
Cir. 1989)). We ultimately concluded that, although the district
court was justifiably outraged by the defendant's long history of
fraud, the court erred when it "jumped more than three criminal
history categories without explanation and, a fortiori, without
going through the ratcheting procedure prescribed by the
Guidelines." Id.The presentence report in this case found that Harris
had only one criminal history point resulting from a 1992
conviction of robbery, reckless endangerment, and related
offenses. Thus, the report gave him a criminal history category
of I. However, the presentence report also listed Harris'
extensive criminal background as a possible ground for departure.
The report indicated that Harris was currently charged in four
pending state prosecutions in Allegheny County. The first
prosecution involved a murder. The second was for robbery and
assault. The third prosecution consisted of 16 counts of robbery
of various business establishments. The fourth consisted of 12
counts of robbery of other businesses. According to the report,
Harris had confessed his involvement in all of the pending
charges. Harris also admitted that he had been present at a
drug-related murder committed by another.
At sentencing, the district court exercised the
authority conferred upon it by § 4A1.3, with the following
explanation:
According to the probation officer, the
criminal history category is one.
However, the probation officer stated
that he believed the defendant's criminal
behavior constitutes a criminal history
category which is higher. We find that the
appropriate criminal history category in this
case is six.
We find that the application of criminal
history categories two, three, four and five
are too lenient for the conduct in this case.
* * * *
Hence, we find [that] the information
[concerning the defendant's criminal
activity] is reliable and we further find
that it is highly likely that if released,
the defendant will commit other predatory
street crimes.
App. 277, 278. After describing the crimes charged in the
indictments to which Harris had confessed, the court concluded:
Mr. Harris is a predatory street
criminal who has a propensity for violence of
the most egregious type. We find that he is
a danger to the community and will repeat
similar offenses if released.
App. 279-80.
We agree with the government that Hickman does not
"require the district court to go through a ritualistic exercise
in which it mechanically discusses each criminal history category
it rejects en route to the category that it selects." United
States v. Lambert, 984 F.2d 658, 663 (5th Cir. 1993)(en banc).
Hickman and the objective of the § 4A1.3 ratcheting process do
require, however, that the sentencing court's reasons for
rejecting each lesser category be clear from the record as a
whole. While it is clear to us from the record that the district
court justifiably regarded Harris' past record as horrendous and
his prospects for the future abysmal, the requirements of § 4A1.3
are not met by its declaration that "criminal history categories
two, three, four and five are too lenient for the conduct in this
case." App. 277.
First, the district court's conclusion that the lesser
categories were "too lenient" suggests to us that its focus may
have been on whether the result produced by the ratcheting
process was appropriate, that is, on whether the sentencing range
arrived at by using the lesser intervening categories was too
lenient, in the eyes of the district court, for someone with
Harris' past conduct and prospects for the future. This is
precisely the kind of subjective judgment the ratcheting process
was designed to avoid. The proper focus of § 4A1.3 analysis is a
comparison of the frequency and seriousness of the conduct
comprising the defendant's criminal history with the conduct of
others who fall into each category.
Even if it were reasonably clear that the district
court's analysis had the appropriate focus, however, we would
still find the cryptic articulation of its reasoning too
conclusory to permit us to perform our review function and
attempt to assure the uniformity of sentencing that Congress
sought to achieve. The insufficiency of the district court's
explanation concerning the appropriateness of criminal history
category VI and the inappropriateness of each lesser category is
well illustrated by a consideration of the contentions of the
parties regarding the appropriate criminal history category,
contentions that were not commented upon by the district court.
Harris contends that he should be assigned a criminal
history category no higher than the category he would have been
assigned if he had been convicted of the charges reported by the
presentence report to be pending against him. According to
Harris, this would be a category III. He argues that if he were
convicted for the crimes in paragraphs 86-89 of the presentence
report, which were the basis for the upward departure, he would
only receive a total of 6 points beyond the single point
resulting from his conviction. The presentence investigator
reported that under an existing plea agreement Harris would
receive a single term of life imprisonment for all these crimes.
Since he was to receive only one sentence for the four pending
cases, according to Harris, these cases should be treated as
yielding only one prior sentence under § 4A1.1(a).2 Thus, he
would receive 3 points under § 4A.1(a), which directs the courts
to add "3 points for each prior sentence of imprisonment
exceeding one year and one month." Harris admits that he would
also receive 3 additional points since all of the crimes involved
violence.3 Harris thus concludes that if he had been sentenced
2
. Section 4A1.2(a)(2) states that "[p]rior sentences imposed in
related cases are to be treated as one sentence for purposes of §
4A1.1(a), (b), and (c)." The commentary to § 4A1.2 states that
prior cases are "related" if they "were consolidated for trial or
sentencing." U.S.S.G. § 4A1.2, comment. (n.3).
3
. Under § 4A1.1(f), the court is directed to add "1 point for
each prior sentence resulting from a conviction of a crime of
violence that did not receive any points under (a), (b) or (c)
above because such sentence was considered related to another
sentence . . . up to a total of 3 points." Thus, since all four
prior cases involved crimes of violence, and since three of those
cases did not receive additional points under § 4A1.1(a), one
for the four cases pending in the Court of Common Pleas, he would
have 6 total criminal history category points, placing him in
category III, rather than category VI.
The government, on the other hand, points out that if
each case charged in paragraphs 86-89 of the presentence report
were resolved separately and Harris were sentenced in each case,
he would receive an additional three points for each case,
amounting to 12 additional points, enough to place him in
category VI. This, the government insists, is the relevant
consideration when the court is attempting to find the criminal
history category that adequately reflects the defendant's prior
criminal conduct and future prospects.
The task before the sentencing court in these
circumstances is to identify the category which encompasses those
defendants whose criminal histories "most closely resemble[]" the
defendant's own. See U.S.S.G. § 4A1.3. Where the defendant has
confessed to the commission of serious crimes for which he has
not been convicted, it would certainly seem to us reasonable for
a sentencing court to consider what the defendant's criminal
history category would be if he had been convicted of those
crimes. Moreover, when the conduct underlying the defendant's
prior offenses is as transactionally unrelated as the conduct
underlying the four prosecutions against Harris, adoption of the
government's approach by the sentencing court would provide a
(..continued)
point for each of those cases would be added. See U.S.S.G. §
4A1.1, comment. (n.6).
sustainable basis for rejecting categories II, III, IV and V and
embracing category VI. It is impossible to determine from this
record, however, whether the district court adopted the
government's approach. As we have noted, it commented on neither
the government's nor Harris' analysis. This is not to say that
§ 4A1.3 limits the court's discretion in a situation of this kind
to a guideline calculation of the points that would have been
received if pending charges were convictions. Indeed, § 4A1.3 is
intended to provide flexibility in those cases where a point-by-
point calculation of the defendant's criminal history category is
not alone sufficient to reflect his culpability and
dangerousness.4 To this end, it confers discretion on the
district court to consider the particular facts relating to a
defendant's past criminal conduct in reaching a judgment on the
seriousness of that conduct and the likelihood of recidivism.
A consideration of the relevant reliable data in this
case could clearly lead a sentencing court to a conclusion that
anything less than category VI would underrepresent the
defendant's past criminal conduct. That is not the problem here.
The problem is rather that we do not know what it was about the
particular facts of Harris' case that led the district court to
4
. It is for this reason that we reject Harris' argument that
his calculation leading to a criminal history category of III
places a ceiling on the district court's authority to depart
upward. We also note that his calculation may be flawed. If
Harris is awarded an additional point for the conviction of armed
robbery detailed in paragraph 81 of the presentence report, his
total points, even adopting his theory, would appear to be 7,
placing him in category IV.
believe him more culpable and more dangerous than those for whom
categories II, III, IV and V were intended. Accordingly, our
decision in Hickman mandates resentencing.
V.
The district court gave Harris a four point upward
adjustment in calculating the sentence for the robbery charged in
count IV because it viewed the mace Harris was found to have used
on two tellers as a "dangerous weapon" within the meaning of
U.S.S.G. 2B3.1(b)(2)(D).5 A "dangerous weapon" is defined in the
Guidelines as "an instrument capable of inflicting death or
serious bodily injury." U.S.S.G. § 1B1.1, comment. (n.1(d)). In
turn, the Guidelines define a serious bodily injury as an "injury
involving extreme physical pain or the impairment of a function
of a bodily member, organ, or mental faculty; or requiring
medical intervention such as surgery, hospitalization, or
physical rehabilitation." U.S.S.G. § 1B1.1, comment. (n.1(j)).
Because the adjusted offense level for count IV was higher than
the adjusted offense levels for the other four counts, it
determined Harris' combined adjusted offense level. See U.S.S.G.
§ 3D1.4.
The spray that Harris used during this bank robbery was
a product called Phaser Mace which Harris purchased at an Army &
Navy Store. At the hearing, the government, in support of its
position that Phaser Mace spray was a dangerous weapon,
5
. U.S.S.G. § 2B3.1(b)(2)(D) provides: "if a dangerous weapon
was otherwise used [during a robbery], increase by 4 levels."
introduced a promotional "Bulletin" about a "pepper spray." The
bulletin had been issued by Zarc International, Inc., the
manufacturer of CAP-STUN, "an oleoresin capsicum ('OC') product
used safely by law enforcement for more than a decade." App.
230. This document reported the death of a man whom police had
sprayed with a product called First Strike, a "pepper spray"
manufactured by a competitor. The autopsy report was reported to
have concluded the cause of death to be "asphyxia due to
bronchospasm precipitated by pepper spray." Id. The Bulletin
was careful to distinguish First Strike from CAP-STUN, which "has
undergone extensive toxicological testing and has proven to
present no potential danger to the human physiological system."
App. 231. It noted that First Strike's ingredients were a "trade
secret" and thus unknown and that it was "delivered in a liquid
stream." Id. The Bulletin further cautioned that "until the
ongoing investigations [into the death] are completed,
conclusions about First Strike would be premature." App. 230.
The government also tendered the testimony of the
probation officer who had prepared the presentence report. He
expressed the opinion that, if a pepper spray could cause the
death reported in the Bulletin, then the mace used by Harris
"could also cause serious bodily injury." App. 241-42.
The only other relevant evidence before the district
court on this issue was (1) a pamphlet tendered by Harris which
had been published by the makers of Phaser Mace, and (2) the
testimony of an FBI agent who arrived at the scene of the robbery
and spoke with the tellers who had been sprayed. The pamphlet
asserted that Phaser Mace had been used for many years without
serious injury and that its effects lasted no longer than 10 to
15 minutes. As the government stresses, however, it also states:
When an individual(s) receives a blast
from the PHASER, he will experience extreme
discomfort and disorientation. The first is
usually a severe stinging/burning sensation
to any affected part of the body. This is
followed immediately by involuntary closing
of the eyes due to the swelling of blood
vessels causing temporary blindness. The
victim will then experience respiratory
problems and a choking sensation. All of
this will occur within a matter of 1-2
seconds. It is important to keep in mind
that all this is happening to an individual
who is totally unsuspecting. In the vast
majority of occurrences the victim will also
experience disorientation which creates a
feeling of panic to accompany the other
symptoms. These symptoms will last from 10-
15 minutes.
* * * *
A one second burst of PHASER is
sufficient to incapacitate the average
person.
App. 234.
On direct, the FBI agent testified:
Q. Did you debrief the two tellers
concerning that bank:
A. Yes.
Q. Did they relate to you whether they were
in need of any medical attention after being
sprayed in the face with the mace by the
defendant in this case?
A. Yes. An ambulance showed up, according
to [the] teller, [sic] they both required
medical attention for their eyes, and one had
problems breathing. She had an asthma
condition, I believe.
App. 257-58.
On cross-examination, the agent provided the following
context for his direct testimony:
Q. Now, you said that paramedics showed up
after the robbery?
A. Yes.
Q. And they were treated by the paramedics,
the two tellers, both tellers?
A. Yes, both of them received medical
attention on the scene.
Q. That consisted of what -- washing out
their eyes?
A. I wasn't present. All I observed was the
emergency medical personnel walk into the
bank and go towards both tellers. At that
point I left the bank.
Q. So you don't know what type of treatment
they were given?
A. No, sir.
Q. Neither teller was placed in the
ambulance and taken to the hospital; is that
correct?
A. Neither of them left the bank to the best
of my knowledge.
* * * *
Q. They were both able to talk to you?
A. Yes.
Q. And you interviewed them within an hour
after their treatment, maybe less?
A. Probably less.
Q. Half hour, maybe even less than that . . .?
A. Half hour.
App. 258-59.
The district court's findings on this issue and the one
addressed in the next section of this opinion were articulated
together at the sentencing hearing:
The probation officer . . . added four
points because the defendant used a dangerous
weapon, that is, spraying mace in the face of
the bank teller and thereby increased his
base offense level by four.
That conclusion is supported by a
preponderance of the evidence. The probation
officer then added two additional points
because the offense involved the spraying of
mace in the face of a bank teller and
increased two levels for bodily injury,
generating an adjusted offense level of 28.
Each of those findings are supported by a
preponderance of the evidence.
We find that use of mace during the
commission of a felony constitutes infliction
of serious bodily injury with a dangerous
weapon. The evidence preponderates the use
of mace is a dangerous weapon and constitutes
infliction of serious bodily injury.
. . . we find that a victim of mace sustains
a significant injury. Indeed, there is
evidence of record, too, that two tellers
required immediate medical attention, and
there is further evidence of record of a
death that was caused in North Carolina
following the application of mace. Such
evidence should not be ignored.
App. 274-75.
The parties agree that the government had the burden of
proving by a preponderance of the evidence that Harris used an
"instrument capable of inflicting death or serious bodily
injury." See United States v. Miele, 989 F.2d 659, 663 (3d Cir.
1993). Moreover, we have insisted that "[i]nformation used as a
basis for sentencing under the Guidelines must have 'sufficient
indicia of reliability to support its probable accuracy.'" Id.(quoting U.S.S.G. § 6A1.3(a)). Indeed, we have counseled that
"this standard should be applied rigorously." Id. at 664.
We hold that the government did not meet its burden and
that the district court erred in adding four points to the
sentencing calculation for count IV based on the current record.
The Zarc Bulletin lacked sufficient indicia of reliability for
the purpose for which it was used by the district court. First,
it was promotional literature emanating from a competitor of the
product which may have caused the reported death in North
Carolina. Second, even this competitor, with its inherent bias,
acknowledged that the limited information about the incident
rendered conclusions about the dangerousness of First Strike
"premature." Third, and most important, the district court
lacked any basis for determining what First Strike is and whether
it bears any significant resemblance to Phaser Mace. The
probation officer's testimony, based as it was on the Bulletin,
similarly lacked reliability.
The most probative evidence available to the district
court of the capabilities of Phaser Mace was its own promotional
literature. That literature reported that it had been used for
many years without serious injury. Although the district court
would have been justified in discounting this claim on the basis
of its source, a discounted claim cannot carry the government's
burden in the absence of any evidence calling it into question.
The remainder of the pamphlet provides no reason to question that
claim. While it describes "temporary blindness," "respiratory
problems," "a choking sensation," "disorientation," and a
"feeling of panic," all of this is accompanied by the assurance
that these effects last only 10 or 15 minutes and leave no
residual incapacity.
Phaser Mace is thus clearly reported in its promotional
literature to be incapable of causing death. Although that
literature refers to "extreme discomfort," we do not believe that
this claim, particularly given its self-serving nature, provides
a reliable basis for concluding that Phaser Mace inflicts
"extreme pain" as that term is used in the definition of serious
bodily injury. It necessarily follows that the promotional
pamphlet provides an inadequate basis for concluding that Phaser
Mace is a dangerous weapon. Finally, the very limited testimony
of the FBI agent about the effect of Phaser Mace on the two
tellers is entirely consistent with the claims of the pamphlet
and adds little to the government's case.
VI.
The final issue presented by this appeal is whether the
district court erred when it increased Harris' offense level for
count IV by two under U.S.S.G. § 2B3.1(b)(3)(A) because two
tellers were found to have sustained "bodily injuries" as a
result of being sprayed with mace.
Section 2B3.1(b)(3) establishes a graduated scale for
those cases in which a victim "sustained bodily injury":
If any victim sustained bodily injury,
increase the offense level according to the
seriousness of the injury:
Degree of Bodily Injury Increase in Level
(A) Bodily Injury add 2
(B) Serious Bodily Injury add 4
(C) Permanent or Life-Threatening
Bodily Injury add 6
(D) If the degree of injury is between that
specified in subdivisions (A) and (B), add 3
levels; or
(E) If the degree of injury is between that
specified in subdivisions (B) and (C), add 5
levels.
The Application Notes of U.S.S.G. § 1B1.1 provide the
following definitions for the terms used in this graduated scale:
"Bodily injury" means any significant injury;
e.g., an injury that is painful and obvious,
or is of a type for which medical attention
ordinarily would be sought.
"Serious bodily injury" means injury
involving extreme physical pain or the
impairment of a function of a bodily member,
organ, or mental faculty; or requiring
medical intervention such as surgery,
hospitalization, or physical rehabilitation.
"Permanent or life-threatening bodily injury"
means injury involving a substantial risk of
death; loss or substantial impairment of the
function of a bodily member, organ, or mental
faculty that is likely to be permanent; or an
obvious disfigurement that is likely to be
permanent.
Where a particular situation falls on this analogue
scale is an issue the Commission clearly intended to be resolved
on a case-by-case basis after a fact-specific inquiry into the
circumstances of the particular crime and its impact on the
victims. See United States v. Robinson, 20 F.3d 270, 278-79 (7th
Cir. 1994); United States v. Lancaster, 6 F.3d 208 (4th Cir.
1993). A sentencing court's resolution of this issue is a
finding of fact that will be disturbed on appellate review only
if clearly erroneous. See United States v. Ortiz, 878 F.2d 125,
126 (3d Cir. 1989).
The district court in this case made only one brief
reference to the particular circumstances of this case, citing
the FBI agent's testimony that the tellers "required immediate
medical attention." The court's primary focus, however, was not
on what happened in this case. It found the reported North
Carolina death important and cast its ultimate finding in terms
of the non-case-specific conclusion that "a victim of mace
sustains a significant injury." App. 275.
The difficulty with the district court's approach can
best be illustrated by comparing two cases from other courts of
appeals which present the question of whether a victim of the
defendant's crime had received "bodily injury" from mace.
In United States v. Lancaster, 6 F.3d 208 (4th Cir.
1993), a security guard had been sprayed with mace during a
robbery and had suffered "severe burning in his eyes and cheeks."
Id. at 209. The district court found that no "bodily injury"
occurred. The court of appeals held that this finding was not
clearly erroneous. In the course of doing so it observed:
While the burning in [the security guard's]
eyes and cheeks caused by the mace was
undoubtedly unpleasant, and could not be
described as wholly trivial, it was only
momentary and the mace produced no lasting
harm.
Id. at 210.
The Lancaster court gave the following explanation of
why the district court's finding was consistent with the
Guideline's definition of "bodily injury" as, inter alia, "an
injury that is painful and obvious, or is of a type for which
medical attention ordinarily would be sought." U.S.S.G. § 1B1.1,
comment. (n.1(b)).
Trivial injuries are not noticeably painful
nor are they normally obvious to an observer.
A momentary injury may be immediately
"painful," but it is not "obvious" as we feel
that term is intended in this context because
it disappears quickly.
It is also consistent with Application
Note 1(b)'s elaboration of "significant
injury" as being an injury "of a type for
which medical attention ordinarily will [sic]
be sought." Medical attention is not
ordinarily sought for wholly trivial
injuries. And while people who have
sustained purely momentary injuries may often
choose to be examined by a doctor as a
precautionary measure to ensure that they
have sustained no lasting harm, we do not
understand such precautionary examinations to
be the type of "medical attention" that the
Guidelines contemplate to make an injury
"significant."
Lancaster, 6 F.3d at 210 n.2.
In United States v. Robinson, 20 F.3d 270 (7th Cir.
1994), the court upheld, as not clearly erroneous, the district
court's determination that bank tellers had suffered a "bodily
injury" after being sprayed with mace:
The bank tellers who were sprayed
experienced pain which lasted for hours and
had some residual effect for days. The
district court could properly make the
factual finding that this was painful and
obvious.
The court distinguished Lancaster on the grounds that the injury
suffered by the security guard was only momentary.
These two cases demonstrate the necessity of sentencing
courts making a factually specific inquiry in each case as to
whether the injury was "painful and obvious," was "of a type for
which medical attention ordinarily would be sought," or was more
than insignificant for some other reason. The degree of injury
from mace will differ depending on such factors as the strength
of the particular product used, the distance between the victim
and the dispenser, and the angle of delivery. Accordingly, there
will undoubtedly be crimes involving the use of mace where no
"bodily injury" will occur, just as there will be such crimes
where a victim will experience such injury.
We are thus unable to sustain the district court's
assignment of two points under § 2B3.1(b)(3)(A) based on its
conclusion that "a victim of mace sustains a significant injury."
Nor can we uphold its assignment based on the court's reference
to "immediate medical attention." The FBI agent did not know,
and the record does not otherwise reveal, the character of the
attention given by the paramedics to the tellers, and we agree
with the Lancaster court that not all contact between a victim
and a health care professional will justify a conclusion that
"bodily injury" occurred. The example relating to medical
attention in the definition of "bodily injury" is intended to
provide an objective basis for distinguishing significant from
insignificant injuries. If, as in Lancaster, medical attention
would be sought by an ordinarily prudent person for the purpose
of diagnosis but no treatment ensues, that attention does not
help to establish the significance of the injury. Lancaster,
6 F.3d at 210.
The record also does not disclose anything about the
degree of pain experienced by the tellers. Moreover, while a
trier of fact might conceivably draw an inference from the FBI
agent's testimony that they had injuries obvious to an observer,
this is not a necessary inference and it is not one that the
district court drew.
On remand, the district court should determine the
character and duration of the symptoms experienced by the
tellers, as well as the character of the "medical attention" they
received. Only then will it be in a position to determine
whether Harris' mace inflicted "bodily injury" within the meaning
of § 2B3.1(b)(3)(A).
We add one final note for the guidance of the district
court when it reevaluates the available reliable evidence and
makes its findings. We do not read the Guidelines, as did the
Lancaster court, to require that an injury be painful and obvious
for a substantial period of time in order to qualify as a "bodily
injury." See Lancaster. 6 F.3d at 210 & n.2. Moreover, we think
it likely that cases involving mace will arise in which a finding
of bodily injury will be appropriate despite the absence of
prolonged effects. Our thought can be illustrated by reference
to the promotional literature for Phaser Mace. As we have
suggested, given their source and purpose, a trier of fact should
take the claims in Phaser's promotional literature about its
immediate effects with a "grain of salt." Nevertheless, if the
record in a case established that a maced bank teller had
symptoms accurately described by those claims for a period of
more than a moment or two, we believe a district court would be
justified in concluding that he or she had received a "bodily
injury." A blow the effects of which can be shaken off in a
moment or two may well be an insignificant injury. Blindness,
disorientation, breathing difficulty, and extreme discomfort
sufficient in combination to induce panic for a period of ten to
fifteen minutes are something else entirely and can rationally be
viewed as more than an insignificant injury.
VII.
The judgment of the district court will be reversed and
this matter will be remanded for resentencing only.