United States v. Taylor, Curtis D. ( 2001 )

In the
United States Court of Appeals
For the Seventh Circuit
No. 00-2230
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
CURTIS D. TAYLOR,
Defendant-Appellant.
Appeal from the United States District Court
for the Northern District of Indiana, Hammond Division.
No. 2:99 CR 160--Rudy Lozano, Judge.
Argued October 25, 2001--Decided December 3, 2001
Before BAUER, POSNER, and EVANS, Circuit
Judges.
EVANS, Circuit Judge. Curtis D. Taylor
and his girl friend had the misfortune of
pulling up in an alley behind a drug
house in Gary, Indiana, at the same time
that federal agents on the Gary Response
Investigative Team (GRIT) were conducting
surveillance of the house. Taylor got out
of his automobile and entered a garage.
When the agents tried to stop him as he
came out of the garage, he ran. Captured
and arrested a few minutes later, he was
carrying a Glock 9 millimeter handgun
which, quite naturally, was confiscated.
Taylor was taken to GRIT headquarters
where he was shackled to the floor and
left alone in a room for several minutes.
He escaped by pulling a bolt loose from
the shackles.
A week later, while Taylor was still on
the lam, a shooting occurred on
Washington Street in Gary. Although
Taylor denied it, three people identified
him as the shooter. He was found later
that day hiding under a bed in another
house where officers also found nine zip-
lock bags of crack cocaine.
As a result of all this activity, Taylor
was charged in a four-count indictment.
The first two counts involve the events
of the first day behind the drug house.
In count 1, he was charged as an unlawful
user of a controlled substance in
possession of a firearm in violation of
18 U.S.C. sec. 922(g)(3). In the second
count, he was charged with escape in
violation of 18 U.S.C. sec. 751(a). For
the events a week later, he was charged
in count 3 with another firearms
violation and in count 4 with possession
with intent to distribute crack cocaine.
He pled guilty to the first two counts;
counts 3 and 4 were dismissed. He was
sentenced to 110 months in prison.
Taylor appeals his sentence, focusing on
the manner in which cross-references and
"relevant conduct" provisions of the
sentencing guidelines were applied to
him. In short, the events surrounding the
shooting were used to cross-reference
from the firearms guideline to the
attempted murder guideline, which then
provided the offense level for Taylor’s
sentencing. The district court determined
Taylor’s base offense level by starting
with U.S.S.G. sec.2K2.1(a), the firearms
guideline applicable to this case based
on his plea of guilty to count 1, giving
him an offense level of 20. However,
because the court also found that Taylor
attempted the commission of another
offense--the shooting a week later--the
court cross-referenced from U.S.S.G.
sec.2K2.1 to U.S.S.G. sec.2X1.1, which
covers attempt, solicitation, or
conspiracy. That guideline, in turn,
contains a cross-reference providing that
if an attempt, solicitation, or
conspiracy is expressly covered by
another guideline, the latter guideline
should be applied according to its terms.
U.S.S.G. sec.2X1.1(c). Having found that
Taylor was the shooter a week after he
escaped, the court concluded that the
attempted murder guideline, U.S.S.G.
sec.2A2.1, expressly covered the
situation. Because the judge followed
this trail from the guideline for
firearms violations to the guideline for
attempt and then to the guideline for
attempted murder, Taylor’s offense level
rose to 28. Taylor attacks the court’s
findings of fact regarding his role in
that shooting, and he disputes whether,
in any event, his conduct on the day of
the shooting, even if it were
established, should have been considered
at his sentencing.
In evaluating Taylor’s claim, we review
factual determinations underlying the
application of the guidelines for clear
error. The interpretation of a guidelines
term is a matter of law, subject to our
de novo review. United States v. Gio, 7
F.3d 1279 (7th Cir. 1993).
The problem facing the government in
defending Taylor’s sentence is how to
convince us that a connection exists
between the attempted murder and the
possession of the firearm that was
confiscated from him one week earlier.
The government concedes that the scope of
the relevant conduct guideline does not
allow a finding that the shooting is
directly relevant to count 1--the
possession of a firearm. That possession
ended when the firearm was seized. The
shooting had nothing to do with that
offense. But to be effective in raising
Taylor’s offense level, the shooting must
somehow be linked to the firearm count
because the firearm guideline carries the
larger base offense level, and it is the
guideline with the cross-reference that
ultimately leads to the attempted murder
guideline.
The link, according to the government,
is the escape. It argues that the escape
is relevant conduct to the firearms
charge. The argument transforms the
escape, which we recall is a crime to
which Taylor pled guilty, into "relevant
conduct." The escape is said to be
relevant conduct to the firearms
violation because the escape was an
attempt to avoid detection or
responsibility for the firearms
violation. The next step is
characterizing the shooting one week
later as relevant conduct to the escape.
Finally, to complete the argument, it is
necessary to say that the escape, which
is relevant conduct to the firearms
violation, brings with it the shooting,
which is relevant conduct to the escape.
This sleight of hand brings into play the
cross-references in the firearms
guideline which we have cited. Even with
the link provided by the escape, the
argument requires going from the firearms
charge to the escape to the attempted
murder and then leaping back over the
escape to connect the attempted murder to
the firearms charge. This is asking too
much.
As we pointed out in United States v.
Ritsema, 31 F.3d 559 (7th Cir. 1994), the
relevant conduct guideline plays a very
important role in the guideline
sentencing scheme. It is the means by
which real-offense principles are
inserted into what is otherwise a
charged-offense system. The goal in
including relevant conduct in sentencing
considerations is to allow the sentence
to reflect the seriousness of an offense
rather than being limited by the specific
charge set out in the indictment. For
that reason, in calculating a proper
sentence, the guidelines permit the court
to consider certain conduct with which
the defendant has not been charged. One
way uncharged conduct is considered is
through cross-references among the
guidelines. The general principle which
controls whether a cross-reference is ap
propriate is the relevant conduct
guideline in U.S.S.G. sec.1B1.3. As
pertinent to this case, relevant conduct
includes acts caused by the defendant
which "occurred during the commission of
the offense of conviction, in preparation
for that offense, or in the course of
attempting to avoid detection or
responsibility for that offense." This
provision is pivotal to Taylor’s
sentencing. But there are limits to how
far the provisions can be pushed.
One of the premises underlying the
government’s position is that "under the
plain language of sec.1B1.3 [the relevant
conduct guideline], Taylor was liable for
every act he committed during the course
of his escape." This premise is faulty.
"Relevant" must have meaning under
U.S.S.G. sec.1B1.3, even when the charge
is escape. It is true that escape under
sec. 751(a) is a continuing offense.
United States v. Bailey, 444 U.S. 394
(1980). However, we cannot conclude that
every crime committed during the time a
person is on escape status automatically
becomes relevant conduct in regard to a
crime committed before the escape. The
relevant conduct guideline is "not
without limits." United States v.
Crockett, 82 F.3d 722, 729 (7th Cir.
1996). We cautioned in Ritsema that "the
relevant conduct provision, interpreted
in an overly broad manner, has the
potential of being a coarse instrument
capable of causing years of serious
incidental criminality to ride in at
sentencing on the coattails of a
relatively minor conviction." At 567.
Ritsema, in fact, involved a sentencing
even more convoluted than Taylor’s.
Ritsema had been charged with possession
of semi-automatic pistols and the
possession of silencers. In a move which
caused a good deal of trouble, the
government entered into a plea agreement
with Ritsema in which he pled guilty to
possession of a silencer, and the count
alleging possession of the firearms was
dropped. The facts of the case as found
by the court showed that Ritsema had
taken a mentally retarded 14-year-old
girl into a closet and threatened her
with a silencer-equipped weapon, saying
that if she revealed his repeated sexual
assaults on her, he would harm a lot of
people. At sentencing, the court began
with the guideline for unlawful
possession of a firearm (a silencer is a
firearm for sentencing purposes). Then
the court looked to the cross-reference
that covers the use or possession of the
firearm in the commission of another
offense, thus arriving at the attempt,
solicitation, or conspiracy guideline.
From there, the court cross-referenced to
the guideline covering the use of a
firearm in the obstruction of justice;
next to the guideline dealing with
accessories after the fact, and finally
to the offense underlying the particular
obstruction of justice--criminal sexual
abuse by means of the display of a
dangerous weapon. Not surprisingly, we
rejected this reasoning and the claim
that criminal sexual abuse was somehow
relevant conduct to the possession of a
silencer when there was no evidence that,
unlike the firearm itself, the silencer
was in any way used to facilitate the
sexual abuse. That was true even though
the defendant committed the sexual abuse
contemporaneously with his possession of
the silencer.
In our case, the shooting was not
related to the escape. It would have been
related if, for instance, Taylor shot at
an officer who was trying to catch him.
Nor was the shooting part of an attempt
to escape detection: Taylor was not
trying to silence someone who was
planning to inform authorities of his
whereabouts. As far as we can tell,
Taylor shot at a man who had in some way
injured his girl friend. The shooting was
not related to any attempt to avoid
detection for the escape. In fact, as
Taylor points out, if anything, by the
shooting Taylor called attention to
himself, and he was, in fact, quickly
apprehended after he pulled the trigger.
Another problem with the sentence
calculation is that even were we to find
that the shooting was relevant conduct to
the escape, it would be far too long a
stretch to connect it to the firearms
charge. As we have said, in Taylor’s case
the offense carrying the higher offense
level is the firearms charge. It is the
guideline for this offense which includes
the cross-reference which leads to the
attempted murder guideline. Even if the
government could establish that the
shooting was relevant conduct to the
escape, nothing would be gained because
the guideline for escape does not include
a cross-reference which would allow
sentencing on the basis of attempted
murder. Naturally, then, it is the
firearms charge which the government
wants to connect to the shooting. But the
hard fact is that the government can’t
get there from here. There is no
principled way to bridge the gap between
the firearms charge and the shooting.
Accordingly, the sentence of Curtis D.
Taylor is VACATED and the case is REMANDED
for resentencing.