United States v. Xavier, Franklin ( 2002 )

In the
United States Court of Appeals
For the Seventh Circuit
____________
No. 02-1586
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
FRANKLIN XAVIER,
Defendant-Appellant.
____________
Appeal from the United States District Court
for the Southern District of Illinois.
No. 01-CR-30038-DRH—David R. Herndon, Judge.
____________
ARGUED SEPTEMBER 11, 2002—DECIDED NOVEMBER 19, 2002
____________
Before POSNER, EASTERBROOK, and EVANS, Circuit Judges.
EVANS, Circuit Judge. What we have here is trouble on
Con Air. Franklin Xavier was a federal prisoner about to be
transported from the federal penitentiary in Marion, Illi-
nois, to the federal prison in Leavenworth, Kansas, on a
federal prisoner transport plane. The federal officers in
charge of his transfer attempted to search his hair, which
he wore in dreadlocks, a common hairstyle in his home in
St. Croix, United States Virgin Islands. Xavier refused to
allow the search, and although he was in leg shackles, he
managed to kick corrections officer William Pierce. Senior
aviation officer David Lowery immediately forced Xavier to
2 No. 02-1586
the ground and restrained him. The search was completed,
after which Xavier was carried into the plane. He was laid
out across three seats and strapped in using a cargo and
seat belt.1 He continued to be agitated and to shout. The
plane made a stop in Sioux Falls, South Dakota, to dis-
charge some inmates and pick up others, at which time
Xavier was given food and medical attention. During the
subsequent flight from Sioux Falls to Oklahoma City,
Xavier calmed down. But after having done so, he spoke di-
rectly to Officer Lowery, saying that when he left prison he
would kill Lowery and his wife and children. The statement
was not seen as an idle threat because, at that time, Xavier
had only a short period left to serve on his sentence. As a
result of his behavior, he was charged with assault upon a
federal officer, in violation of 18 U.S.C. § 111, and with
knowingly threatening to kill a federal official, in violation
of 18 U.S.C. §§ 115(1)(2) and (b)(4).
Xavier was tried to the court, found guilty of the charges,
and sentenced to terms of 36 months and 60 months. Even
though he understood he could, the judge declined to run
the sentences consecutively so as to accommodate the high-
er guideline range, which he had found applied to Xavier.
It is the guideline calculations from which Xavier ap-
peals. Specifically, he appeals two aspects of his sen-
tence: the denial of his request for a decrease in his offense
1
This plane and its passengers conjure up images of the awful
1997 Nicholas Cage-John Malkovich film, “Con Air,” a movie, ac-
cording to Roger Ebert, that “knows it is absurd, and does little to
deny it.” While we don’t know about Xavier’s fellow travelers, we
hope they were not like some of the cons on Con Air, a motley
collection which included Cyrus the Virus, Diamond Dog, Garland
Greene (a serial killer played by Steve Buscemi, who arrived on
board in a Hannibal Lecter-like traveling suit), and Johnny 23, so
called because of his 23 rape convictions (“It woulda been Johnny
600 if they knew the whole story,” he proudly proclaims).
No. 02-1586 3
level and an upward departure in his criminal history cate-
gory under the United States Sentencing Guidelines.
The first calculation Xavier objects to involves the refusal
to apply U.S.S.G. §2A6.1(b)(4). Section 2A6.1 deals with
threatening or harassing communications and establishes
a base offense level of 12. Subdivision (b)(4) states that “[i]f
(A) . . . subdivisions (1), (2), and (3) do not apply, and (B)
the offense involved a single instance evidencing little or no
deliberation, decrease by 4 levels.” It is this 4-level decrease
to which Xavier contends he is entitled. We review determi-
nations of the sentencing court for clear error and reverse
only when the determination is inconsistent with the
evidence. United States v. Siegler, 272 F.3d 975 (7th Cir.
2001).
In refusing to apply subdivision (b)(4), the sentencing
judge noted that at the time he made the threat to Officer
Lowery, Xavier was “no longer agitated and shouting.” The
judge noted Officer Lowery’s testimony that Xavier “was
laying on the seat strapped to the seat. It was almost eerie,
cool, calm and collected statement of fact that he said that.”
That testimony led the judge to determine that this was a
“very different circumstance than the outburst and the
spontaneous eruption” and to find that in an “eerie, cool,
calm, collected manner, he issues a threat to this federal
officer.” Xavier’s manner was seen as evidence of delibera-
tion, “evidence that he had an opportunity to think about
what he was going to say.” Try as we are urged to, no clear
error can be detected in this determination.
Xavier seems to contend that our decision in United
States v. Horton, 98 F.3d 313 (7th Cir. 1996) compels us to
find error. We disagree. Horton was convicted of making a
bomb threat against a federal building. The threat came
one day after the bombing of the Murrah Federal Building
in Oklahoma City. In declining to grant the 4-point reduc-
tion in U.S.S.G. § 2A6.1(b)(2), the judge thought that Hor-
ton was taking advantage of the heightened fear which
4 No. 02-1586
followed the Oklahoma City attack. We viewed this as a
“global” justification for the denial of the reduction and
remanded the case for “a more thorough analysis.” We see
no global justifications in Xavier’s case. Here, the judge tied
his determination to a close look at what had happened,
particularly the circumstances under which Xavier made
the threat and its timing. These were not copious findings,
but given the lack of complexity in the events, anyone
would be hard-pressed to say very much about them. So
long as the salient facts were examined, no more is neces-
sary.
Xavier also contends that it was error to depart upward
in the criminal history category, under U.S.S.G. §4A1.3(e).
We review an upward departure under §4A1.3 under a
three-part test. First, we determine whether the sentencing
court stated adequate grounds to support the departure.
This determination is reviewed de novo. Next, we review for
clear error whether the facts cited to support the departure,
in fact, exist. Finally, we review deferentially whether the
degree of departure is linked to the structure of the guide-
lines. United States v. Cross, 289 F.3d 476 (7th Cir. 2002);
United States v. Peterson, 256 F.3d 612 (7th Cir. 2001).
The sentencing judge based his departure on a factor
specifically recognized in the guidelines: “prior similar adult
criminal conduct not resulting in a criminal conviction” as
set out in §4A1.3. That section says the court may depart
upward
If reliable information indicates that the criminal
history category does not adequately reflect the ser-
iousness of the defendant’s past criminal conduct or the
likelihood that the defendant will commit other
crimes. . . .
Section 4A1.3(e) says that the information on which the
court may rely includes “prior similar adult criminal con-
duct not resulting in a criminal conviction.”
No. 02-1586 5
In addition to finding it “extraordinary” that Xavier tried
to deny the convictions which were in the record from the
Bureau of Prisons, the judge was concerned with other
threats Xavier had made. On one occasion Xavier said, “I
would like to kill all U.S. Marshals that come down to the
islands.” He said, “All U.S. Marshals need to be killed.” He
sprayed bleach on another inmate in the jail. He threw
feces on other inmates; flooded his cell; refused orders of
the jailers. And in what might have been the crowning
blow, he wrote an outrageous letter to a probation officer.
The judge found that Criminal History Category III did not
reflect Xavier’s criminal history and did not reflect the
likelihood that he would commit other similar crimes. The
judge, in fact, thought Xavier deserved to be in the highest
category based on the likelihood that he would commit
other crimes like the crimes of conviction. And unfortu-
nately for Xavier, the judge had first-hand experience with
Xavier’s tendency to act out. During the sentencing hearing
itself when the prosecutor was saying that Officer Lowery
took Xavier to the ground during the incident, Xavier
interrupted by saying, “It wasn’t no fucking Officer Lowery
who body-slammed me.” Other obscenities followed, in what
could only be seen as a demonstration of Xavier’s propensity
to angry outbursts. It is not too large a leap to think that
those outbursts might escalate in the future to threats. The
judge stated the grounds for departure and the facts on
which the departure was based.
While we might question the degree of departure, we also
note that we review that issue deferentially. Furthermore,
even had the departure been to category V rather than VI,
Xavier could have received the sentence he was given.
Xavier’s offense level was 18, and in criminal history cate-
gory VI his sentencing range was 57 to 71 months. As we
said earlier, the statutory maximums on his counts of con-
viction were 36 months and 60 months. Even though he
understood that he could, the judge did not run the sen-
6 No. 02-1586
tences consecutively so as to sentence Xavier on the higher
end of the guidelines. Rather, the sentence imposed was 60
months, which was within the range for Criminal History
Category V as well.
The judge articulated his own frustration with Xavier and
the temptation to impose a higher sentence, but he re-
frained:
And there is that part of me that wants to put this guy
in jail, give him life, just like he invited me to do; give
him 300 years, like he invited me to do. But, I can’t do
that. I have to look at this dispassionately. I have to
look at this in a way that is more rational. I can’t
reduce myself to the kind of histrionics that Mr. Xavier
wants to display from time to time. And I really think,
all in all, that a five-year sentence in this case is an
appropriate sentence, given everything that I’ve consid-
ered. And while I understand I have the discretion, as
[the prosecutor] indicated, to make these sentences
consecutive, and there is that part of me that would
like to do that, I just think that an appropriate sen-
tence would be five years.
We see no error in Xavier’s sentencing proceeding.
AFFIRMED.
A true Copy:
Teste:
________________________________
Clerk of the United States Court of
Appeals for the Seventh Circuit
USCA-02-C-0072—11-19-02