United States v. Williams, DeMarco ( 2001 )

In the
United States Court of Appeals
For the Seventh Circuit
No. 00-3537
United States of America,
Plaintiff-Appellee,
v.
DeMarco Williams,
Defendant-Appellant.
Appeal from the United States District Court
for the Northern District of Illinois, Eastern Division.
No. 98 CR 208-2--Joan B. Gottschall, Judge.
Argued June 12, 2001--Decided July 23, 2001
Before Manion, Diane P. Wood, and Williams,
Circuit Judges.
Diane P. Wood, Circuit Judge. DeMarco
Williams pleaded guilty to kidnapping and
carjacking, in violation of 18 U.S.C.
sec.sec. 1201(a)(1) and 2119. This appeal
relates only to the stiff sentence he
received for those crimes--315 months’
imprisonment, five years’ supervised
release, a fine of $5,000, and a special
assessment of $200. The length of the
sentence was attributable in part to two
adjustments in his offense level that the
district court made under the Sentencing
Guidelines, one for the vulnerability of
the victim, U.S.S.G. sec. 3A1.1(b)(1),
and the other for the severity of her
injuries, U.S.S.G. sec. 2B3.1(b)(3).
Although he failed to make any objection
to these adjustments at sentencing,
Williams (through different counsel) now
argues that each one amounted to plain
error. He also asserts that the district
court failed properly to inform him of
his right to allocution before
sentencing, as required by Fed. R. Crim.
P. 32(c) (3)(C). We find no reversible
error in any of these points and thus
affirm the judgment of the district
court.
I
Williams’s crime was indeed a brutal
one. According to his written confession,
he arranged to meet with a man named Nate
on the south side of Chicago on the
morning of Friday, March 13, 1998; Nate
had promised to help him steal a car. The
two spotted a 1995 Chevy Corsica heading
into an alley garage and decided that
this was their target. They approached
the car and Nate pointed a gun at the
driver, 71-year-old Mary Holmes. Holmes
had just returned from work and was
locking her steering wheel with "The
Club," a popular anti-theft device. Nate
forced her to remove the Club, and then,
not content with simply taking the car,
he and Williams bound up the unfortunate
Holmes with duct tape and put her in the
trunk of the car.
The two then drove the car to rural
Westville, Indiana, some two hours away.
According to Holmes’s videotaped
statement, she managed to remove the duct
tape while she was in the trunk, but when
they stopped the car and pulled her out,
Nate re-taped her and Williams delivered
the ominous message "This is where we
brought you to kill you." With that, the
two men led Holmes to a pool of melting
ice and snow near the side of the road,
where Nate hit her on the head five or
six times with the Club. There they left
her, bleeding in the snow, and drove back
to Chicago. Holmes managed to drag
herself out of the ditch and flag down a
UPS driver, who took her to the UPS
center. The people there summoned an
ambulance for her, which transported her
to a hospital in Michigan City, Indiana.
By the time she reached the hospital and
was treated, Holmes had lost 2.5 pints of
blood. In the end, she needed
approximately 300 stitches to close the
head wounds, as well as a 1/4 inch drain
inserted in her head. Although she did
not suffer a skull fracture, the incident
left her with long-term after-effects
including dizziness, difficulty
concentrating, and frequent, severe
headaches.
Law enforcement authorities caught up
with Williams approximately two weeks
after the Corsica was stolen and Holmes
beaten, when he was stopped by a police
officer in Oak Park, Illinois, for a
routine traffic violation. The officer
quickly learned that the Corsica was
stolen, and not too much later Williams
confessed to both the carjacking and the
kidnapping of Holmes. After some initial
indecision, Williams decided on the
second day of his trial to enter a blind
guilty plea, which the district court
accepted. The presentence report was then
prepared. It detailed the injuries Holmes
had suffered, both at the time and long-
term. It also noted that Dr. Anne
Hollingsworth, who was one of the
physicians who treated her, expressed the
opinion that Holmes "could have" suffered
more serious blood loss and even could
have died of exposure in the ditch. The
PSR proposed upward adjustments based on
Holmes’s status as a vulnerable victim
and the severity of her injuries.
Williams did not object specifically to
those two adjustments. Instead, he filed
a "Position Paper as to Sentencing
Factors" in which he requested a
reduction for acceptance of
responsibility and a downward departure
based on his diminished mental capacity.
The district court denied both those
requests, after which the following
colloquy took place:
[COURT]: Okay. [Defense counsel], are
there any other issues that you wish to
address?
[DEFENSE COUNSEL]: I will for[ ]bear,
Judge.
[COURT]: Okay. Mr. Williams, is there
anything that you would like to say?
DEFENDANT WILLIAMS: No, your Honor.
With that, the court adopted the factual
findings and recommendation of the PSR
and increased Williams’s offense level by
two because of Holmes’s "obvious advanced
age and the fact that she was alone at
the time of the offense," and by another
five levels because she had suffered
"permanent or life-threatening" injuries
within the meaning of sec. 2B3.1 (b)(3).
In the end, Williams had a total offense
level of 39 and a criminal history
category of I, for a Guidelines range of
262-327 months. As noted already, the
court decided on a sentence of 315
months.
II
The government argues that we should not
reach either of Williams’s sentencing
points because he waived them at
sentencing. Williams concedes that he
failed to object to the two adjustments,
but urges us to consider this point
merely forfeited and thus subject to
plain error review before this court.
This is a close call. On the one hand, we
have held that a defendant’s words
(either spoken personally or through his
attorney) to the effect that he has "no
objections" to a PSR operate as a full-
fledged waiver of all objections and
foreclose appellate review. See, e.g.,
United States v. Richardson, 238 F.3d
837, 841 (7th Cir. 2001), cert. denied,
No. 00-9604, 2001 WL 460282 (U.S. May 24,
2001); United States v. Staples, 202 F.3d
992, 995 (7th Cir. 2000). On the other
hand, a failure to object normally
constitutes only a forfeiture of the
point. Forfeiture has the serious
consequence of changing the standard of
appellate review to the demanding "plain
error" level, but it does not render the
issue completely unreviewable. See United
States v. Olano, 507 U.S. 725 (1993).
When the judge asked whether there were
other issues defense counsel wanted to
address, the lawyer merely said that he
would "forbear." Conspicuously absent in
this exchange is any mention of the word
"objections." Had the judge asked whether
he had any more objections and this had
been his response, the argument for
waiver would have been stronger. The same
would have been true if the lawyer had
answered the judge’s inquiry with a
statement like "we have no more
objections." An invitation to address
issues, and a statement merely indicating
forbearance, are far more ambiguous.
Waiver should not be found lightly;
itoccurs only if there is an intentional
relinquishment of a known right. We think
it best to construe the record here as
presenting only forfeiture, and we
proceed to a plain error review of the
district court’s decisions.
A. Vulnerable Victim, sec. 3A1.1(b)(1)
Williams argues that the district court
made a legal error in applying this
adjustment, insofar as the judge regarded
the victim’s age alone as sufficient to
justify a finding of vulnerability. He
points to a number of cases from other
circuits that, he argues, stand for the
proposition that membership in the class
of the elderly is never enough by itself
to support this enhancement; instead, the
court must find age "plus" some
additional particular factor about the
individual victim. See, e.g., United
States v. McCall, 174 F.3d 47 (2d Cir.
1998); United States v. Tissnolthtos, 115
F.3d 759 (10th Cir. 1997).
We are not as convinced as Williams that
our sister circuits have adopted such an
inflexible rule, but in the end, we do
not need to parse their decisions to the
last detail. That is because this circuit
has already considered the way in which
age should be used for purposes of the
vulnerable victim enhancement, see United
States v. Billingsley, 115 F.3d 458 (7th
Cir. 1997), and we are satisfied that
Billingsley was sound and should govern
here. Billingsley involved facts
remarkably similar to those now before
us: an elderly victim (there 82 years
old) had his car stolen by the
defendants; he was terrorized during the
act, although was fortunate enough not to
be kidnapped too; and the district court
decided at sentencing that the vulnerable
victim enhancement was proper. On appeal,
the defendant argued that the enhancement
should be found to be unavailable unless
the elderly victim was "unusually"
vulnerable, but this court rejected that
proposition. Citing our earlier decision
in United States v. White, 903 F.2d 457
(7th Cir. 1990), we noted that it is
obvious that the elderly are usually less
capable of resisting physical attack than
the younger. That fact, taken together
with the nature of the crime charged and
the trial court’s opportunity to observe
the victim and assess whether he fit that
pattern, was enough to sustain the
district court’s decision. See 115 F.3d
at 463.
The same rationale applies here. Indeed,
the Billingsley court might have noted
that Application Note 2 to sec. 3A1.1
(b)(1) provides further support for this
approach. The note defines "vulnerable
victim" for purposes of the guidelines as
a person (A) who is a victim of the
offense of conviction and any conduct for
which the defendant is accountable under
sec. 1B1.3 (Relevant Conduct); and (B)
who is unusually vulnerable due to age,
physical or mental condition, or who is
otherwise particularly susceptible to the
criminal conduct.
The note does not say "age" and
"particular susceptibility"; it says
"age" or "particular susceptibility".
This is not to say that the enhancement
provided by sec. 3A1.1(b)(1) is always
required when the victim is elderly.
There still must be some link between the
vulnerability and the characteristic in
question, here age. In the note’s words,
the vulnerability must be "due to" the
age. But, as we found in Billingsley, an
elderly person, alone, will be especially
vulnerable to a crime involving physical
violence. We therefore find no error in
the district court’s decision, plain or
otherwise, though we add that it would be
highly unlikely in any event that we
would find plain error in a district
court’s decision to apply a directly
applicable decision from this court.
B. Permanent or Life-Threatening
Injury, sec. 2B3.1(b)(3)
This guideline requires a six-level
increase in the offense level where a
victim suffers "permanent or life-
threatening bodily injury." The district
court found that Holmes’s injuries
qualified for the higher level, but
increased Holmes’s offense level only by
five in light of sec. 2B3.1(b)(3)’s
eleven-level cap on combined adjustments
for weapon involvement and severity of
injury (Williams also received a six-
level increase for using a firearm). We
once again find that this is neither
plain error nor any other kind of error.
Once again, we find the definitions in
the guidelines to be helpful. The general
application principles found in sec.
1B1.1 include, in Application Note 1(h)
to that section, a definition of
"permanent or life-threatening bodily
injury":
"Permanent or life-threatening bodily
injury" means injury involving a
substantial risk of death; loss
orsubstantial 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. In the case of a
kidnapping, for example,maltreatment to a
life-threatening degree (e.g., by denial
of food or medical care) would constitute
life-threatening bodily injury.
Williams argues only that the evidence
shows that Holmes’s injuries fell short
of this standard because the
doctorsmerely said that her injuries
"could have" been life-threatening. But
we do not find this a fair reading of the
medical evidence as a whole, and
certainly not a reading that the district
court was compelled to accept.
The evidence showed that Holmes was
beaten over the head with the Club, which
is a metal rod, so severely that she
needed 300 stitches to repair the wounds.
She bled so profusely that she lost 2.5
pints of blood, more than 25% of total
blood volume for an average woman. See,
e.g., American Red Cross website,
http://www.bloodct.org/plasma.htm ("About
7 percent of a person’s weight is blood.
An average size man has about 12 pints of
blood. An average size woman has about 9
pints."). She was left alone in an icy
ditch, tied up with duct tape, to fend
for herself while she was in this injured
state. We find it impossible to say that,
in the words of the Application Note, she
was not facing a "substantial risk of
death." The slightest coincidences could
have led to a far unhappier result: had
she not managed to get herself out of the
ditch, the UPS driver may not have seen
her; had he driven by an hour later, it
might have been too late to save her. We
do not know, but the Note does not speak
in certainties; it speaks of risk, and
Holmes undoubtedly faced life-threatening
risk.
Other evidence indicated that the
beating Holmes endured permanently
impaired her mental faculties. In
addition, we note that the Application
Note identifies "maltreatment to a life-
threatening degree" as one example of
life-threatening bodily injury. If denial
of food or medical care qualify, it is
hard to see how more aggressive
maltreatment such as being beaten over
the head repeatedly with a metal object
would not. The Ninth Circuit has upheld
the use of this enhancement on similar
facts, see United States v. Hinton, 31
F.3d 817, 826 (9th Cir. 1994). See also
United States v. Morgan, 238 F.3d 1180,
1183-84, 1187-88 (9th Cir. 2001)
(remanding for consideration whether
circumstances of carjacking amounted to
life-threatening maltreatment). We find
no plain error in the court’s decision to
apply this adjustment to Williams’s
sentence.
III
Last, we consider briefly Williams’s
argument that the district court did not
adequately comply with Fed. R. Crim. P.
32(c)(3)(C), which requires a sentencing
court to "address the defendant
personally and determine whether the
defendant wishes to make a statement and
to present any information in mitigation
of the sentence." As the brief excerpt
from the transcript we reproduced above
shows, the court merely said "Mr.
Williams, is there anything that you
would like to say?" Williams personally
replied "No, your Honor." This was
flawed, according to Williams, because
the court did not specifically highlight
"mitigation of punishment" as a topic
Williams might wish to address.
Rule 32(c)(3)(C) does not purport to set
out a script that the district courts
must follow when advising defendants of
their right to allocution. See United
States v. Stuver, 845 F.2d 73, 75 (4th
Cir. 1988). Instead, the substance of
what occurred is what counts, and we see
no problem with the substance here.
First, it is clear that the court
addressed Williams himself, not his
lawyer or any other representative. That
satisfies the first clause of the rule,
which calls for the court to "address the
defendant personally." In the context of
this part of the proceedings, it was
clear that the court was inviting
Williams to speak about anything he
wanted to that pertained to sentencing.
There was thus no risk of a
misunderstanding, such as the risk that
caused the court in United States v.
Echegollen-Barrueta, 195 F.3d 786, 789
(5th Cir. 1999), to require resentencing.
In Echegollen-Barrueta, the court’s
comment came immediately after a hearing
on the defendant’s escape attempt, and
the defendant may have thought that an
invitation to speak was limited to the
issue of escape. Nothing here created any
such ambiguities. Although it never hurts
to follow the language of the rule more
closely, and can even help to avert argu
ments like this one on appeal, we
conclude that no specific formula of
words is required to satisfy Rule 32. The
record as a whole here shows that the
court satisfied its obligation and that
Williams’s right to allocution was not
denied.
We therefore Affirm the judgment of the
district court.