United States v. Soy, Robert A. ( 2005 )

In the
United States Court of Appeals
For the Seventh Circuit
____________
No. 03-3438
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
ROBERT A. SOY,
Defendant-Appellant.
No. 04-1218
ROBERT A. SOY,
Petitioner-Appellant,
v.
UNITED STATES OF AMERICA,
Respondent-Appellee.
____________
Appeals from the United States District Court for
the Northern District of Indiana, Hammond Division.
Nos. 92 CR 42 & 00 C 624—Rudy Lozano, Judge.
____________
ARGUED SEPTEMBER 8, 2004—DECIDED JUNE 28, 2005
____________
Before POSNER, RIPPLE and WOOD, Circuit Judges.
RIPPLE, Circuit Judge. Robert A. Soy was convicted on
arson and explosives charges and was sentenced to life im-
2 No. 03-3438 & No. 04-1218
prisonment; after two appeals, Mr. Soy’s sentence was re-
duced to 528 months. A subsequent motion pursuant to 28
U.S.C. § 2255—the basis for the present appeal—resulted in
a Pyrrhic victory for Mr. Soy: The district court granted
Mr. Soy relief with respect to one of his convictions, but
resentenced him to the same term of imprisonment. In this
consolidated appeal, Mr. Soy challenges the district court’s
judgment with respect to substantive relief and to sentenc-
ing. For the reasons set forth in the following opinion,
we affirm the judgment of the district court, but order a
limited remand pursuant to United States v. Paladino, 401
F.3d 471 (7th Cir. 2005).
I
BACKGROUND
A. Facts
We have set forth the facts relevant to this litigation in two
prior opinions, United States v. Prevatte (“Prevatte I”), 16 F.3d
767 (7th Cir. 1994), and United States v. Prevatte (“Prevatte
II”), 66 F.3d 840 (7th Cir. 1995). We assume familiarity with
those opinions and, consequently, recount only those facts
essential to the disposition of Mr. Soy’s present claims.
In 1991, Russell Prevatte, Douglas Bergner, Jerry Williams
and Mr. Soy embarked on a series of burglaries, some
successful and some not. Later in the same year, Mr. Soy
discussed with Williams—who was attending the Indiana
State Police Academy at the time—and also with Prevatte
the possibility of using pipe bombs as diversions for bur-
glaries. If events went as the men planned, a bomb deto-
nated in one area would divert emergency personnel to the
area of the resulting fire; this diversion would prevent
police from responding—or, at the least, responding in a
timely fashion—to a burglary in another area.
No. 03-3438 & No. 04-1218 3
On December 23, 1991, the first pipe bomb was detonated
in the alley behind a single-family dwelling in Hammond,
Indiana. This bomb was designed as a test to determine the
response time of emergency personnel. Fragments from the
bomb killed the resident of the home, Emily Antkowicz, and
also punctured the gas meter attached to her house approxi-
mately fifty feet away. After this first bombing, the group
decided to target gas meters because the possibility of
resulting leaks and collateral damage drew a larger- than-
expected number of people to the area.
On December 30, 1991, the men set off a second pipe
bomb. The bomb was attached to a bank of gas meters at the
rear of Edo’s Lounge in Highland, Indiana, which was open
to patrons at the time. The explosion caused a gas fire that
damaged the lounge. This bomb was designed as a diver-
sion for an attempted, but unsuccessful, burglary at an Aldi
grocery store.
The following day, a bomb exploded near the gas meter
behind Salvino’s Restaurant in Hammond, Indiana. The
explosion caused a fire which damaged the meters as well
as the rear wall of the restaurant. Fragments from the ex-
plosion caused additional damage. The bomb was designed
to frighten away the occupants of the apartment above
the restaurant who might witness the group’s attempt to
burglarize a neighboring liquor store.
A fourth bomb was designed as a diversion for another
unsuccessful burglary, this time of a currency exchange. The
pipe bomb exploded under the gas meters of a multi-family
apartment building in Hammond. Fragments from the
bomb damaged the apartment building.
The final bomb was a diversion for the burglary of an Aldi
grocery store. On January 5, 1992, the bomb exploded under
the gas meters at an apartment building in Hammond. The
4 No. 03-3438 & No. 04-1218
explosion damaged the meter attached to the apartment
building as well as a nearby single-family home.
B. Proceedings Before the District Court and on Direct
Appeal
A grand jury returned a twenty-one count indictment
against Prevatte and Mr. Soy. Relevant to the issues cur-
rently before this court, Count 1 charged Mr. Soy with
engaging in a conspiracy to maliciously damage or destroy
property by means of an explosive in violation of 18 U.S.C.
§ 844(i); the overt acts in furtherance of the conspiracy were
each of the bombings set forth above. Count 2 charged Mr.
Soy with a violation of 18 U.S.C. § 844(i) with respect to the
1
bombing of Emily Antkowicz’s home. Counts 6, 10, 14 and
18 each charged a violation of § 844(i) based on the other
2
bombings. A jury convicted Mr. Soy on all of these counts.
1
Specifically, Count 2 charged:
On or about December 23, 1991, . . . Russell “Rusty” Prevatte,
Robert A. Soy and Jerry Williams defendants herein, did
maliciously damage and destroy, or attempt to damage and
destroy, by means of an explosive, to wit: a pipe bomb, a
building or other real and personal property located at 1425
Stanton, Hammond, Indiana which was used in or affected
interstate commerce, which resulted in the death of Emily
Antkowicz . . . .
R.1 at 7.
2
Count 6 charged Prevatte and Mr. Soy with maliciously dam-
aging and destroying, or attempting to damage and destroy, by
means of an explosive, a building and other real or personal prop-
erty located at Edo’s Lounge, R.1 at 11; Count 10 charged
Bergner, Prevatte and Mr. Soy with maliciously damaging or
destroying, or attempting to damage and destroy, by means of an
(continued...)
No. 03-3438 & No. 04-1218 5
The district court sentenced Mr. Soy to life imprisonment.
Specifically, the district court determined, in accordance
with the United States Sentencing Guidelines (“U.S.S.G.” or
“Guidelines”), that Mr. Soy should be sentenced to life
imprisonment on Count 2. According to the Guidelines,
the sentences on the remainder of the counts were to run
concurrently with the sentence on Count 2 because “the
sentence imposed on the count carrying the highest statu-
tory maximum [wa]s adequate to achieve the total punish-
3
ment.” U.S.S.G. § 5G1.2.
2
(...continued)
explosive, a building and other real and personal property located
at Salvino’s Restaurant, id. at 15; Count 14 charged Bergner,
Prevatte and Mr. Soy with maliciously damaging and destroying,
or attempting to damage and destroy, by means of an explosive,
a building and other real and personal property located at 6150
Harrison Avenue, id. at 19; and Count 18 charged Bergner,
Prevatte and Mr. Soy with maliciously damaging and destroying,
or attempting to damage and destroy, by means of an explosive,
a building and other real and personal property located at 1608
169th Street, id. at 23.
As noted above, each of these acts, as well as the bombing re-
sulting in the death charged in Count 2, were charged as overt
acts “in furtherance of the conspiracy” charged in Count 1; Count 2
corresponded to the fourth overt act; Count 6 corresponded to the
eighth overt act; Count 10 corresponded to the tenth overt act;
Count 14 corresponded to the eleventh overt act; and Count 18
corresponded to the fifteenth overt act. R.1 at 2-4.
3
Guideline § 5G1.2, “Sentencing on Multiple Counts of
Conviction,” provided as follows:
(a) The sentence to be imposed on a count for which the
statute mandates a consecutive sentence shall be determined
and imposed independently.
(continued...)
6 No. 03-3438 & No. 04-1218
Mr. Soy and the other defendants appealed their convic-
tions and sentences. With respect to his sentence, Mr. Soy
argued that the district court erred when it cross-referenced
the first degree murder guideline with respect to Count 2—
the bombing that resulted in the death of Emily Antkowicz.
We rejected this argument and held that “the bombing at
issue [wa]s sufficiently similar to arson to apply the first
3
(...continued)
(b) Except as otherwise required by law (see § 5G1.1(a), (b)),
the sentence imposed on each other count shall be the total
punishment as determined in accordance with Part D of
Chapter Three, and Part C of this Chapter.
(c) If the sentence imposed on the count carrying the
highest statutory maximum is adequate to achieve the total
punishment, then the sentences on all counts shall run con-
currently, except to the extent otherwise required by law.
(d) If the sentence imposed on the count carrying the high-
est statutory maximum is less than the total punishment, the
sentence imposed on one or more of the other counts shall run
consecutively, but only to the extent necessary to produce a
combined sentence equal to the total punishment. In all other
respects sentences on all counts shall run concurrently,
except to the extent otherwise required by law.
U.S.S.G. § 5G1.2 (1991).
Neither the Guidelines nor the commentary provides an explicit
definition for “total punishment”; however, the commentary to the
current version of the Guidelines explains what is meant by this
term: “The combined length of the sentences (‘total punishment’)
is determined by the court after determining the adjusted
combined offense level and the Criminal History Category.”
U.S.S.G § 5G1.2, application note 1 (2004). Additionally, this court
has explained that “total punishment” corresponds to the sentence
calculated by the district court in accordance with the application
instructions set forth in § 1B1.1 of the Guidelines. See United
States v. De La Torre, 327 F.3d 605, 609 (7th Cir. 2003).
No. 03-3438 & No. 04-1218 7
degree murder guideline on this basis.” Prevatte I, 16 F.3d at
780. We explained:
[Section] 2A1.1. is the most analogous guideline when
death results from a violation of § 844(i) from use of fire.
Furthermore, on the basis of our reading of the legisla-
tive history, we do not believe the fact that death results
from an explosion, and not a fire, alters the outcome. As
we have noted, Congress intended that fire and explo-
sive be equivalents for purposes of § 844(i). . . . Congress
understandably equated the killing of a human being by
burning and the killing of a human being by explosion.
Thus, we conclude that the court correctly applied the
first degree murder guideline.
Id. at 782 (emphasis in original; footnote omitted). Although
this court agreed with the district court’s application of the
first degree murder guideline, we could not uphold the
district court’s imposition of a life sentence. We explained
that 18 U.S.C. § 34 prevents a district court from imposing a
life sentence without a jury recommendation. Consequently,
we remanded for resentencing.
On remand, the district court imposed a sentence of 636
months. Mr. Soy again appealed his sentence. One of the
issues raised on appeal was whether the district court
complied with this court’s mandate in resentencing the
defendants. We held that the district court had done so. We
stated that
[i]n our earlier appeal, we . . . directed the district court
to consider the applicability of application note 1 to
§ 2A1.1 of the Guidelines. . . . [T]hat note provides that,
when the conviction of first degree murder is predicated
on a theory other than premeditated killing,
life imprisonment is not necessarily the appropriate
sentence and that, in such circumstances, a downward
8 No. 03-3438 & No. 04-1218
departure “may be warranted.” Our direction to the
district court, therefore, was to consider whether, on the
facts of this case, a downward departure was war-
ranted. . . . [T]he district court effectively carried out
this court’s order by departing to an extent based upon
the defendants’ “state of mind (recklessness or negli-
gence), the degree of risk inherent in the conduct, and
the nature of the underlying offense conduct.” U.S.S.G.
§ 2A1.1, comment. (n.1).
Prevatte II, 66 F.3d at 844. However, Mr. Soy argued that,
once the district court made the decision to depart, it was
obliged “to impose a sentence that would have been im-
posed for second degree murder.” Id. According to Mr. Soy,
because the district court found that “the placement and
detonation of the bomb amounted to ‘recklessness and
reckless state of mind and behavior,’ ” his conduct could be
equated only with second degree murder. Id. We, again,
rejected this argument:
We do not read application note 1 as cabining the dis-
cretion of the district court to that degree. The applica-
tion note quite explicitly suggests that a departure
below that prescribed for second degree murder or for
the underlying offense is not likely to be appropriate.
This notation is hardly a directive to the district court
that any departure must, as a matter of law, reduce the
sentence to the level of second degree murder. To hold
that a departure must correspond to the base offense
level stipulated in § 2A1.2, Second Degree Murder,
every time the court finds that a defendant’s mental
state was less than “intentionally or knowingly,” cf.
U.S.S.G. § 2A1.1, comment. (n. 1), would negate the
congressional determination that death resulting from
certain felonies, such as arson, should be punished, not
as second degree murder, but as first degree murder. . . .
No. 03-3438 & No. 04-1218 9
Indeed, the district court’s redetermination of the
sentence in this case demonstrates the need for the flex-
ibility that the application note gives to a sentencing
court. The district court commented quite extensively
on the mental state of the defendants at the time of the
crime. . . . This analysis can be read as a determination
by the district court that the defendants engaged in con-
duct that, although not premeditated, involved a high
degree of recklessness and warranted punishment
between the level that would be employed for premedi-
tated murder and the level that would be employed for
a murder committed recklessly but not in the aggra-
vated manner exhibited here. Such a determination is
clearly permissible under the congressional determina-
tion concerning the punishment of murder committed
in the course of arson. The sentence corresponds to an
offense level of 42, which provides that an individual be
sentenced to “360 [months]-life.”
Id. at 844-45. Although the district court fully complied with
this court’s mandate, we remanded so that the district court
could “adjust the sentence to ensure that the life expectancy
of each of the defendants” had been appropriately consid-
ered as required by intervening case law—specifically
United States v. Martin, 63 F.3d 1422 (7th Cir. 1995). Prevatte
II, 66 F.3d at 846.
On remand, the district court imposed a sentence of 528
months’ imprisonment. Specifically, the court ordered
Mr. Soy “committed to the custody of the Bureau of Prisons
to be imprisoned for a term of 528 months on Count 2; and
a term of 60 months on Count 1; and terms of 120 months on
each of Counts 6, 7, 8, 10, 11, 12, 14, 15, 16, 18, 19 and 20, all
to be served concurrently.” Tr.XII at 19-20. Again, the
court’s sentencing order followed the Guidelines’ directive
that lesser sentences be served concurrently “[i]f the sen-
10 No. 03-3438 & No. 04-1218
tence imposed on the count carrying the highest statutory
maximum [wa]s adequate to achieve the total punishment.”
U.S.S.G. § 5G1.2(c) (1995). Mr. Soy did not appeal this
sentence.
C. Section 2255 Proceedings
In 2002, Mr. Soy instituted the present § 2255 action in
which he challenged his § 844(i) convictions on the basis of
the Supreme Court’s decision in Jones v. United States, 529
4
U.S. 848 (2002). The district court granted Mr. Soy’s petition
with respect to Count 2 of the indictment. The district court
noted that Count 2 charged Mr. Soy with destroying or
attempting to destroy “a building or other real and personal
property located at 1425 Stanton.” R.1 at 7 (emphasis
added). The court stated:
At trial, the Government presented evidence that
Petitioner destroyed or attempted to destroy a building,
Emily Antkowicz’s residence, as well as personal
property, the NIPSCO meter, located at 1425 Stanton.
Contrary to the Government’s position, it does not fol-
low that in finding Petitioner guilty of Count 2 the jury
had to consider the damage to the NIPSCO meter as
affecting interstate commerce because at that time
United States v. Stillwell, 900 F.2d 1104, 1110 n.2 (7th Cir.
1990), was controlling law. Stillwell held that the bomb-
ing of a private home supplied by natural gas from
outside the state has a sufficient nexus to interstate
commerce under section 844(i). Thus, the jury did not
even have to consider the damage to the NIPSCO meter
in order to find Petitioner guilty on Count 2.
4
Mr. Soy brought other claims such as ineffective assistance
of counsel on his third resentencing; however, he does not raise
those issues in the present appeal.
No. 03-3438 & No. 04-1218 11
Therefore, the jury could have based its decision to
convict Petitioner based on the damage to either the
residence, the NIPSCO meter, or both. The problem is
that there is nothing in the indictment, jury instructions
or verdict forms to allow this Court to ascertain what
the jury determined was damaged to warrant convicting
Petitioner on Count 2. Any such determination by this
Court would be speculation at best. . . . Because
Petitioner may have been convicted of Count 2 for
bombing the residence at 1425 Stanton, Petitioner may
be convicted for conduct that Congress did not intend
to be covered by section 844(i). Consequently, the ver-
dict finding Petitioner guilty of Count 2 is VACATED.
R.61 (No. 04-1218) at 15-16.
However, the court determined that the same was not true
with respect to Count 1. With respect to that conspiracy
count, the court noted that the jury was required only to
find one overt act in furtherance of the conspiracy in order
to convict Mr. Soy. The fourth overt act alleged that
[o]n or about December 23, 1991 . . . Robert A. Soy,
did maliciously damage and destroy, by means of an ex-
plosive, to wit: a pipe bomb, a building and other real
and personal property located at 1425 Stanton,
Hammond, Indiana which property was used in or af-
fected interstate commerce, which resulted in the death
of Emily Antkowicz.
R.1 at 2 (emphasis added). Although this alleged act was
similar to that alleged in Count 2, the court continued,
there is one crucial difference; Count 2 is phrased in the
disjunctive while the fourth overt act of Count 1 is
phrased in the conjunctive. . . .
Unlike the problem faced in Count 2, there is no
ambiguity presented in the fourth overt act of Count 1.
12 No. 03-3438 & No. 04-1218
It is evident that, if the jury convicted Petitioner on
Count 1 by relying on the fourth overt act, such a find-
ing would necessarily be based on Petitioner damaging
both the residence and NIPSCO meter at 1425 Stanton.
Because the fourth overt act requires the jury to find
Petitioner damaged the NIPSCO meter, any mention of
the residence is not of consequence. . . . Therefore,
Petitioner’s conviction of Count 1 remains.
R.61 (No. 04-1218) at 17-18.
The court then turned to the matter of resentencing.
The court determined that Emily Antkowicz’s death was
relevant conduct to the conspiracy for which Mr. Soy was
convicted in Count 1. However, the district court was con-
fined by the holding of Apprendi v. New Jersey, 530 U.S. 466(2000), not to exceed the statutory maximum for any one of
the still-viable counts. Therefore, the district court ordered
that the sentences on the remaining counts run consecu-
tively, as opposed to concurrently, as directed by U.S.S.G.
5
§ 5G1.2(d), to account for the seriousness of Mr. Soy’s
crimes.
Mr. Soy timely appealed his resentencing. He also sought,
and was granted, a certificate of appealability with respect
to the district court’s denial of § 2255 relief on Count 1— the
conspiracy count. The cases were consolidated for appeal.
5
As in earlier versions of the Guidelines, U.S.S.G. § 5G1.2(d)
(2002) provided:
If the sentence imposed on the count carrying the highest
statutory maximum is less than the total punishment, then
the sentence imposed on one or more of the other counts shall
run consecutively, but only to the extent necessary to produce
a combined sentence equal to the total punishment. In all
other respects, sentences on all counts shall run concurrently,
except to the extent otherwise required by law.
No. 03-3438 & No. 04-1218 13
II
DISCUSSION
A. Failure to Vacate Substantive Counts
1. Interstate Commerce Requirement after Jones
Mr. Soy first maintains that the district court erred in
failing to vacate his conviction on Count 1 on the same
grounds that it vacated Count 2. According to Mr. Soy, this
conviction suffers from the same interstate commerce in-
6
firmity as did his conviction on Count 2. He therefore sub-
mits that, in accordance with the Supreme Court’s decision
in Jones, 529 U.S. 848, his conviction on Count 1 also must be
vacated. We begin our analysis with an overview of Jones.
In Jones the Supreme Court faced the question of whether
an owner-occupied residence was a building “used in inter-
state or foreign commerce or in any activity affecting in-
terstate or foreign commerce,” as that language is used in 18
7
U.S.C. § 844(i). Jones held that the requirement that the
6
As explained in some detail earlier in this opinion, the district
court vacated Count 2 based only on the possibility of a missing
interstate commerce connection; in its view, because of the word-
ing of the indictment, it was possible that the jury could have
convicted Mr. Soy based on the damage to the dwelling at 1425
Stanton, which lacked the necessary interstate commerce nexus.
There is no question, however, that the rest of the elements of
Count 2 were proven, namely that Mr. Soy “maliciously damage[d]
or destroy[ed], or attempt[ed] to damage and destroy, by means of
an explosive, to wit: a pipe bomb, a building or other real and
personal property located at 1425 Stanton . . . which resulted in
the death of Emily Antkowicz.” R.1 at 7.
7
18 U.S.C. § 844(i) states in relevant part:
Whoever maliciously damages or destroys, or attempts to
damage or destroy, by means of fire or an explosive, any
building, vehicle, or other real or personal property used in
(continued...)
14 No. 03-3438 & No. 04-1218
building or property at issue be “used in interstate or
foreign commerce” “is most sensibly read to mean active
employment for commercial purposes, and not merely a
passive, passing, or past connection to commerce.” Jones,
529 U.S. at 855. The Court noted that the proper inquiry
“is into the function of the building itself, and then a de-
termination of whether that function affects interstate com-
merce.” Id. at 854 (internal quotation marks and citations
omitted). Turning to the facts of the case before it, the Court
determined that, with respect to the arson of a private
residence, “[i]t surely is not the common perception that a
private, owner-occupied residence is ‘used’ in the ‘activity’
of receiving natural gas, a mortgage, or an insurance pol-
icy.” Id. at 856. The Court therefore held that § 844 covers
only property currently used in commerce or in an activity
affecting commerce. The home owned and occupied by
petitioner Jones’s cousin was not so used—it was a dwelling
place used for everyday family living. As we read § 844(i),
Congress left cases of this genre to the law enforcement
8
authorities of the States. Id. at 858.
Although Jones excluded single-family dwellings from the
scope of § 844(i), it left undisturbed a prior holding of the
Court that rental property satisfies the “used in” require-
7
(...continued)
interstate or foreign commerce or in any activity affecting
interstate or foreign commerce shall be imprisoned for not
less than 5 years and not more than 20 years, fined under
this title, or both . . . .
8
This holding overruled longstanding Seventh Circuit precedent
that had not required active use in commerce, but only had re-
quired some connection to interstate commerce. The culmination
of this precedent was United States v. Stillwell, 900 F.2d 1104(7th Cir. 1990), in which this court had concluded that, if a private
residence received natural gas from out of state, that was
sufficient to establish the necessary nexus.
No. 03-3438 & No. 04-1218 15
ment of § 844(i). See id. at 856 (citing Russell v. United States,
471 U.S. 858, 862 (1985)). In Jones, the Court explained that
its earlier
decision in Russell does not warrant a less “use”-cen-
tered reading of § 844(i). In that case, which involved
the arson of property rented out by its owner, the Court
referred to the recognized distinction between legisla-
tion limited to activities “in commerce” and legislation
invoking Congress’ full power over activity substan-
tially “affecting . . . commerce.” The Russell opinion went
on to observe, however, that “[b]y its terms,” § 844(i)
applies only to “property that is ‘used’ in an ‘activity’
that affects commerce.” “The rental of real estate,” the
Court then stated, “is unquestionably such an activity.”
Id. (quoting Russell, 471 U.S. at 859-60, 862); see also Martin
v. United States, 333 F.3d 819, 821 (7th Cir. 2003) (observing
that Jones did not disturb Russell’s holding that rental prop-
erty satisfies the interstate commerce requirement of
9
§ 844(i)). Thus, although Jones removed owner-occupied
residences from the scope of § 844(i), it did not disturb the
holding of Russell that rental properties satisfy the interstate
commerce requirement.
9
In Russell v. United States, 471 U.S. 858, 862 (1985), the Court
stated:
By its terms . . . the statute only applies to property that is
“used” in an “activity” that affects commerce. The rental of
real estate is unquestionably such an activity. We need not
rely on the connection between the market for residential
units and “the interstate movement of people,” to recognize
that the local rental of apartment units is merely an element
of a much broader commercial market in rental properties.
The congressional power to regulate the class of activities
that constitutes the rental market for real estate includes the
power to regulate individual activity within that class.
16 No. 03-3438 & No. 04-1218
The per se rule announced in Russell has been applied out-
side the rental property context. In United States v. Joyner,
201 F.3d 61 (2d Cir. 2000), the Second Circuit extended the
rule to bars and restaurants. It explained:
[T]he Court [in Russell] adopted a per se rule that rental
property affects interstate commerce under
Section 844(i).
Russell mandates the adoption of a similar per se rule
regarding bars or restaurants. The rationale is iden-
tical—if “the local rental of an apartment unit is merely
an element of a much broader commercial market in
rental properties,” [Russell, 471 U.S.] at 862, then the
local operation of a restaurant is merely an element of a
much broader commercial market of food and drink
delivery. Here, the building torched included a restau-
rant. Thus, although the government concedes that it
failed to introduce any direct evidence at trial to show
that Dell’s obtained food or beverage from out-of-state
sources or catered to interstate patrons, the jury prop-
erly concluded that Dell’s was part of a broader restau-
rant market connected to interstate commerce.
Id. at 79 (parallel citation omitted). Our own court has cited
Joyner with approval and also has recognized, in dicta, the
application of Russell’s per se rule to other commercial
enterprises:
It remains true after Jones that buildings actively used
for a commercial purpose, including restaurants, United
States v. Joyner, . . . home offices, United States v. Jimenez,
256 F.3d 330 (5th Cir. 2001), church daycare centers,
United States v. Terry, 257 F.3d 366, . . . (4th Cir. 2001),
and temporarily vacant rental properties, United States
v. Williams, 299 F.3d 250 (3d Cir. 2002), all possess the
requisite nexus with interstate commerce under § 844(i).
No. 03-3438 & No. 04-1218 17
And so it is here, notwithstanding Martin’s protesta-
tions that no paying tenants resided in his apartment
building at the time of the fire.
Martin, 333 F.3d at 821. Following Joyner and the dicta in
Martin, we hold that the per se rule set forth in Russell
applies equally to restaurants and bars, and, consequently,
buildings housing these establishments are “used in” inter-
state commerce for purposes of § 844(i).
2. Application of Interstate Commerce Requirement
Mr. Soy maintains that the Government failed to establish
an interstate commerce nexus with respect to all of the
bombings charged as overt acts, and, therefore, the convic-
tion on the conspiracy count (Count 1) must be vacated.
According to Mr. Soy, the only interstate commerce nexus
that the Government proved with respect to any of the
charged overt acts was the receipt of natural gas, which, as
set forth in Jones, is insufficient to satisfy the jurisdictional
10
requirement.
10
Mr. Soy’s interstate commerce argument focuses on the Govern-
ment’s alleged failure to prove an overt act that affects interstate
commerce. He does not argue that the Government was required
to prove specific intent on his part to damage or destroy a building
used in interstate commerce, nor do we believe that such an
argument would be availing. See United States v. Muza, 788 F.2d
1309, 1311-12 (8th Cir. 1986) (rejecting argument that govern-
ment was required to prove that defendant had actual knowledge
that target of § 844(i) conspiracy was used in interstate com-
merce); cf. United States v. Jimenez, 256 F.3d 330, 338 n.9 (5th
Cir. 2001) (“We are not persuaded that a defendant need have any
knowledge of a building’s effect on interstate commerce in order
to be convicted under § 844(i).”); United States v. Gullett, 75 F.3d
(continued...)
18 No. 03-3438 & No. 04-1218
The Government counters that, with the exception of the
fourth overt act (the bombing at the Antkowicz residence),
each of the overt acts involved damage to real property that
was “used in” interstate commerce as defined in Jones and
that those connections satisfy the interstate commerce re-
quirement. We conclude that, as a matter of law, the build-
ings that were the targets of the other pipe bombs were
“used in” interstate commerce for the purposes of § 844(i).
Therefore, Jones does not require us to disturb Mr. Soy’s
conviction on Count 1.
a. bombing at Edo’s Lounge
One of the overt acts charged in furtherance of the con-
spiracy was the bombing of Edo’s Lounge on December 30,
1991. Mr. Soy maintains that
[t]here was no evidence that the building was damaged
in the first instance and even if there were this is not
enough. The government has to show that the building
was used in commerce. Describing the persons as “pa-
trons” does not indicate the manner of their patronage.
One doesn’t know if they were members of a private
club, if alcohol was served at the club, if so, if it was
obtained through . . . interstate commerce channels, if
an alcohol license was obtained by the owner or any of
a number of other things that the Government may have
proven to show an interstate nexus.
Petitioner’s Br. (No. 04-1218) at 24.
10
(...continued)
941, 947-48 (4th Cir. 1996) (holding that Government did not have
to establish that defendant intended to damage rental property;
it was sufficient that the Government showed that “the defendant
acted intentionally or with willful disregard of the likelihood” that
damage to the rental property would result from his actions).
No. 03-3438 & No. 04-1218 19
We believe that Mr. Soy’s evidentiary and legal arguments
are meritless. First, with respect to Mr. Soy’s contention that
the explosion did not damage Edo’s Lounge, the record
reflects that there was damage to the building, specifically
the roof. See Tr.V at 1090. Furthermore, in light of our
determination that the per se rule of Russell extends to
restaurants and bars, we also must reject Mr. Soy’s alterna-
tive claim that the Government failed to meet its burden of
proof that the building housing Edo’s Lounge was used in
interstate commerce.
b. bombing of Salvino’s Restaurant
The same analysis applies with respect to the bombing of
Salvino’s Restaurant—another one of the overt acts alleged
in the conspiracy. Again, the record establishes that there
was damage to the building housing Salvino’s. See Tr.V at
1150. Furthermore, the interstate commerce connection is
met by virtue of the fact that Salvino’s is a restaurant.
c. bombings of the apartment units
The interstate commerce nexus also is met with respect to
the last two bombings—the bombings of two different
apartment complexes. The record establishes that both of
these buildings suffered damage as a result of the explo-
sions. See Tr.V at 1182 (discussing damage to building at
6151 Harrison); id. at 1198-99 (discussing damage to build-
ing at 1608 169th Street). Again, the record clearly reflects
that the buildings at issue were used as multi-family apart-
ment houses that fall squarely within Russell’s per se rule.
Because the record establishes that each of the target
buildings was damaged and each of the target buildings, as
a matter of law, was used in interstate commerce for pur-
20 No. 03-3438 & No. 04-1218
poses of § 844(i), there is no basis on which to disturb
11
Mr. Soy’s conviction on Count 1 of the indictment.
B. Resentencing
In addition to challenging the district court’s decision not
to disturb Count 1, Mr. Soy also challenges the district
court’s reimposition of the 528-month sentence. Mr. Soy
argues first that the district court’s act of resentencing him
on the remaining counts—after vacating Count 2—resulted
in double jeopardy. According to Mr. Soy, because the dis-
11
The Government also argues that each of the overt acts of
the conspiracy charged Mr. Soy not only with damaging real
property, but also with damaging the NIPSCO meters servicing
those properties. These meters, the Government maintains, are
“personal property” used in interstate commerce. Respondent’s Br.
(No. 04-1218) at 15. For instance, with respect to the bombing of
the Antkowicz home, the indictment alleged that the “building
and other . . . personal property” was damaged. R.1 at 2 (emphasis
added). Thus, in order to prove the overt act, it was necessary for
the Government to establish that both the dwelling and “other . . .
personal property” were damaged, only one of which needed to
satisfy the interstate commerce requirement.
There is no question that, after Jones, the dwelling did not
qualify as being “used in” interstate commerce for purposes of
§ 844(i). It is possible that, if the Government established that the
meter was NIPSCO’s personal property and was “used in”
interstate commerce, the requirements of Jones would have been
satisfied. However, the Government has not pointed us to any
place in the record that establishes that the property was owned
by NIPSCO, nor has it provided authority for the proposition that
the meters constituted personal property as opposed to fixtures.
Because we hold that the interstate commerce nexus for the
conspiracy count is satisfied by the other overt acts, it is not
necessary for us to cull the record or the law to determine if the
Government’s assertions are correct.
No. 03-3438 & No. 04-1218 21
trict court previously had ordered all of the counts to run
concurrently with Count 2, and because the longest of those
sentences was ten years, Mr. Soy should be released imme-
diately, having served the sentences on all of the remaining
counts. Mr. Soy also maintains that the district court should
not have cross-referenced the Chapter 2, Part A Guidelines
when determining the appropriate sentence for the conspir-
acy count. Alternatively, Mr. Soy argues that the district
court selected the incorrect Chapter 2, Part A guideline; he
submits that the district court should have cross-referenced
the second degree murder or manslaughter guideline, as
opposed to the first degree murder guideline. Finally,
although Mr. Soy did not present the argument in his brief,
there is a question of whether, and how, the Supreme
Court’s recent decision in United States v. Booker, 125 S. Ct.
738 (2005), affects Mr. Soy’s resentencing. We begin our
analysis with Mr. Soy’s double jeopardy claim.
1. Double Jeopardy
Mr. Soy acknowledges “[t]he authority of a trial court to
re-sentence a Defendant after vacating an entire sentence
even though only a portion thereof has been challenged.”
Petitioner’s Br. (No. 03-3438) at 16. However, Mr. Soy con-
tinues, the general rule applies only when the original sen-
tence constituted a sentencing package. Mr. Soy maintains
that, in the present situation, there was no interrelationship
between the sentence on Count 2 and the sentences on the
remaining counts, and, therefore, the district court was not
at liberty to resentence him on the remaining counts. The
Government counters that Mr. Soy’s sentence on Count 2
was part of his entire sentencing package, and, therefore, the
district court was entitled to reconsider the entire sentence.
We evaluate these arguments below.
22 No. 03-3438 & No. 04-1218
a. sentencing packages
“The theory of double jeopardy is that a person need run
the gantlet only once. The gantlet is the risk of the range
of punishment which the State or Federal Government
imposes for that particular conduct. . . . He risks the max-
imum permissible punishment when first tried. That risk
having been faced once need not be faced again.”
North Carolina v. Pearce, 395 U.S. 711, 727 (1969) (Black, J.,
concurring).
Traditionally, courts have held that the prohibition of
double jeopardy found in the Fifth Amendment, see
12
U.S. Const. amend. V, does not tie the hands of a district
court on resentencing after one count of a multicount con-
viction is vacated because the original sentence is consid-
ered to be a “sentencing package.” We explained in
United States v. Shue, 825 F.2d 1111 (7th Cir. 1987), that
[t]he original sentences imposed on all four counts . . .
were clearly interdependent; they comprised a sentenc-
ing package. When that sentencing package was “un-
bundled” because of a successful appeal of some, but
12
The Fifth Amendment to the United States Constitution
provides:
No person shall be held to answer for a capital, or otherwise
infamous crime, unless on a presentment or indictment of
a Grand Jury, except in cases arising in the land or naval
forces, or in the Militia, when in actual service in time of War
or public danger; nor shall any person be subject for the same
offence to be twice put in jeopardy of life or limb; nor shall be
compelled in any criminal case to be a witness against
himself, nor be deprived of life, liberty, or property, without
due process of law; nor shall private property be taken for
public use, without just compensation.
U.S. Const. amend. V.
No. 03-3438 & No. 04-1218 23
not all, of the counts of the multicount conviction, the
double jeopardy clause does not bar resentencing on the
affirmed count so long as the new sentence conforms to
statutory limits and effectuates the district court’s
original sentencing intent.
Id. at 1115 (citations and footnote omitted). The fact that a
prisoner successfully attacks one or more counts of a mul-
ticount conviction by way of a § 2255 motion, as opposed to
through direct appeal, does not alter the analysis.
United States v. Smith, 103 F.3d 531, 534 (7th Cir. 1997).
The adoption of the Guidelines, however, caused us to
rethink the concept of sentencing packages. We observed
that “[i]n the old days of almost unlimited discretion in
sentencing, a district judge could follow several paths to a
desired result.” Id. Thus, when a conviction was vacated, all
of the considerations that went into the initial sentence had
to be reweighed to determine the appropriate result upon
resentencing. However, “[u]nder the Guidelines, . . . discre-
tion is far more limited, and the paths are more like cat-
walks than boardwalks.” Id. The change in the level of
discretion enjoyed by the district court led us to conclude
that “[u]nder the guidelines, it is possible in some cases
for us to reverse and remand on certain issues and yet not
unbundle the package. In other cases, our actions may likely
undermine the entire sentencing intent of the district judge.
In the latter cases full resentencing is appropriate.” Id.We have had several occasions to discuss the concept of
“unbundling” and “sentencing packages” with respect to re-
sentencings that occurred in the wake of the Supreme
Court’s decision in Bailey v. United States, 516 U.S. 137(1995). Bailey narrowed the circumstances under which
weapons are considered to be “used in” drug trafficking
crimes for purposes of 18 U.S.C. § 924(c). Following Bailey,
24 No. 03-3438 & No. 04-1218
many § 924(c) convictions were vacated, and we were faced
with the question of how the vacated § 924(c) conviction
impacted the sentence that originally had been imposed by
the district court. We explained:
[I]n most cases involving the mandatory consecutive 5-
year § 924(c) sentence, vacating that portion of the
sentence radically changes the sentencing package. If a
mandatory sentence for using or carrying a gun is
imposed, the otherwise available enhancement for pos-
session of a firearm is not invoked. But if the mandatory
sentence is set aside, nothing should prevent the impo-
sition of the enhancement. In that sense, the idea of the
“sentencing package” remains a perfectly viable con-
cept.
Smith, 103 F.3d at 534-35. In other cases, we have character-
ized the district court’s sentencing for a § 924(c) violation as
an “either/or” proposition—a necessary choice between the
mandatory 5-year sentence and the offense enhancement
under § 2D1.1(b)(1). United States v. Binford, 108 F.3d 723,
729 (7th Cir. 1997). Thus, because the imposition of the
§ 924(c) sentence required a district court to forego an
otherwise applicable weapons enhancement under the
Guidelines, the sentence for the § 924(c) conviction could
not be considered independent of the sentences on the other
convictions. Consequently, after vacating a § 924(c) convic-
tion pursuant to Bailey, a district court could reconsider the
defendant’s entire sentence without subjecting the defen-
dant to double jeopardy.
b. application
We believe that the same rationale applies to the present
situation and allows the district court to unbundle the
sentencing package. At Mr. Soy’s last resentencing prior to
No. 03-3438 & No. 04-1218 25
Count 2 being vacated, the district court sentenced Mr. Soy
to 528 months’ imprisonment on Count 2, a term of
60 months on Count 1 and terms of 120 months on the re-
maining counts, with all the sentences to run concurrently.
See Tr.XII at 20. The court explained its sentence accord-
ingly:
This case is on remand for resentencing with an order
that the court should state reasons for the sentence in
more detail and indicate why the sentence is not a life
sentence, and also allow the court to adjust the sentence
to make sure that life expectancy of each defendant is
properly considered.
The court feels that it was affirmed on all other as-
pects of the trial and sentencing, and therefore will not
comment or retrace those steps. . . .
....
The court has selected a sentence today taking into
account the defendant’s life expectancy. The court has
also considered the nature, extent and gravity of the
crime that although not premeditated, involved a very
high degree of recklessness and warranted punishment
between the level that would be employed for a pre-
meditated murder and that would be employed for a
murder committed recklessly, but not in the aggravated
manner exhibited here.
This court finds this defendant’s criminal acts and
behavior which resulted in the death of an innocent by-
stander to be reckless and to merit a severe sentence. In
fashioning a sentence for this defendant, the court is
imposing a sentence significantly, though not neces-
sarily greatly less, than a sentence of life imprisonment.
....
26 No. 03-3438 & No. 04-1218
In this particular case, the sentence is approximately
10 to 15 percent below the life expectancy, which, given
the nature and gravity of the crime, is a fair sentence for
this defendant; and will also provide a deterrent effect
for others considering this type of action in the future.
Tr.XII at 23-26. The statements of the district court make
it clear that the district court believed that a sentence of
528 months was appropriate for the crimes that Mr. Soy
committed and was necessary in light of the disregard for
human life that Mr. Soy displayed during the course of his
criminal activity. The district court’s focus on the conviction
for Count 2 was consonant with the method for calculating
13
the sentence set forth by the then-mandatory Guidelines.
The Guidelines instructed the district court to sentence a
defendant to concurrent sentences on a multiple-count
conviction “[i]f the sentence imposed on the count carrying
the highest statutory maximum is adequate to achieve the
total punishment.” U.S.S.G. § 5G1.2(c) (1995). Thus, after
determining that 528 months was appropriate on Count 2,
the court had no discretion with respect to the treatment of
the remainder of the sentences.
This is similar to the type of scenario described in Smith.
Just as the imposition of consecutive sentences pursuant to
§ 924(c) precluded the district court from applying the fire-
arm enhancement under the Guidelines, a determination
14
that the sentence on Count 2 achieved the total punishment
precluded the district court from running consecutively the
13
The impact of the Supreme Court’s decision in United States v.
Booker, 125 S. Ct. 738 (2005), rendering the Guidelines advisory,
is discussed later in this opinion.
14
Indeed, the district court could not have imposed a much
greater sentence without running afoul of our instructions in
United States v. Prevatte, 16 F.3d 767 (7th Cir. 1994), and
United States v. Prevatte, 66 F.3d 840 (7th Cir. 1995).
No. 03-3438 & No. 04-1218 27
sentences on the remaining counts. Thus, the sentences im-
posed on the conspiracy and substantive counts back in 1996
were not independent of one another, but were only given
effect through the lengthier sentence imposed for Count 2;
the 528-month sentence on all of the counts constituted a
sentencing package. Because the sentences were interdepen-
dent, the district court, upon vacating Count 2, was at
liberty to resentence Mr. Soy on the remaining counts with-
out running afoul of the Fifth Amendment’s prohibition of
15
double jeopardy.
15
Mr. Soy also makes a cursory argument that resentencing him
to the same term of imprisonment violated his right to due process
of law. He cites North Carolina v. Pearce, 395 U.S. 711 (1969), in
support of his contention. In Pearce, the Court held that the
imposition of a higher sentence after a successful collateral attack
raises a presumption of vindictiveness and of a due process
violation. This holding of Pearce has been narrowed by Alabama
v. Smith, 490 U.S. 794, 795 (1989). However, even if Pearce
retained its full force, no presumption arises under the circum-
stances presented here. Our court follows the “ ‘aggregate package’
approach when analyzing Pearce claims.” See United States v.
Rivera, 327 F.3d 612, 615 (7th Cir. 2003). “Under this ap-
proach, . . . we compare the total original punishment to the total
punishment after resentencing in determining whether the new
sentence is more severe.” Id. (emphasis in original). In this case,
Mr. Soy’s original punishment and the punishment after resen-
tencing are identical.
In the absence of a presumption, the defendant bears the
burden of coming forward with evidence of actual vindictiveness
on the part of the sentencing court. See id. Mr. Soy has made no
effort to come forward with such evidence, and, consequently, we
conclude that Mr. Soy has failed to show a due process violation
with respect to his last resentencing.
28 No. 03-3438 & No. 04-1218
2. Relevant Conduct
Having determined that the district court did not subject
Mr. Soy to double jeopardy upon resentencing, we turn next
to Mr. Soy’s claim that the district court miscalculated his
sentence. Before we consider Mr. Soy’s argument, we first
review in detail the method by which the district court
arrived at Mr. Soy’s sentence of 528 months’ imprisonment.
a. sentencing calculation
The starting point for the district court’s calculation of Mr.
Soy’s sentence was the guideline for conspiracy, U.S.S.G.
§ 2X1.1. Section 2X1.1(a) references the base offense level
from the guideline for the object offense, here a violation of
§ 844(i).
The guideline for a § 844(i) violation—arson and property
damage by means of an explosive—is § 2K1.4. Section 2K1.4
provides for a base offense level of either 24 or 20. However,
subsection (c) of 2K1.4 contains a cross-reference: “If death
resulted, or the offense was intended to cause death or
serious bodily injury, apply the most analogous guideline
from Chapter Two, Part A (Offenses Against the Person) if
the resulting offense level is greater than that determined
above.” U.S.S.G. § 2K1.4.
At this point in the analysis, the district court faced the
question of whether the death of Emily Antkowicz was a
result of the conspiracy. To make this determination, the
court looked to the relevant conduct guideline, § 1B1.3.
According to § 1B1.3,
[u]nless otherwise specified, . . . cross-references in
Chapter Two . . . shall be determined on the basis of the
following:
(1) (A) all acts and omissions committed, aided, abet-
ted, counseled, commanded, induced, procured,
or willfully caused by the defendant; and
No. 03-3438 & No. 04-1218 29
(B) in the case of a jointly undertaken criminal
activity (a criminal plan, scheme, endeavor, or
enterprise undertaken by the defendant in con-
cert with others, whether or not charged as a
conspiracy), all reasonably foreseeable acts and
omissions of others in furtherance of the jointly
undertaken criminal activity,
that 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; . . . .
U.S.S.G. § 1B1.3(a). The district court determined that
[the] bombing[,] . . . which resulted in Emily
Antkowicz’s death, was performed as a test in prep-
aration for subsequent bombings in furtherance of
the conspiracy. The bombing at issue was tantamount to
arson. Consequently, this Court finds the bombing
which resulted in Emily Antkowicz’s death was per-
formed in furtherance of the conspiracy charged in
Count I of the indictment.
Tr.XIV at 69.
The district court then returned to the instructions pro-
vided in the cross-reference of § 2K1.4(c)—to apply “the
most analogous guideline from Chapter 2, Part A (Offenses
Against the Person).” The court found that
the placing of an active bomb at or near the proximity
of where people live was extremely reckless behavior.
This Court finds Emily Antkowicz’s death was a fore-
seeable consequence of the conspiracy. Consequently,
the 2K1.4C1 [sic] cross-reference should be applied as
relevant conduct.
30 No. 03-3438 & No. 04-1218
As this Court’s application of 2K1.4C1 [sic] has been
affirmed by the Seventh Circuit on a prior appeal of this
case, the Court finds the cross-reference to be appropri-
ate in this instance.
Id. at 69-70. Applying the first degree murder cross-refer-
ence resulted in an offense level of 43, which corresponded
to a life sentence.
However, the district court not only was constrained by
this court’s prior two decisions (in which we vacated the life
sentence and remanded for consideration of life expectancy,
respectively), it also was constrained by the Supreme
Court’s decision in Apprendi v. New Jersey, 530 U.S. 46616
(2000). Thus, the court could not, consistent with Apprendi,
sentence Mr. Soy to anything beyond the five-year statutory
17
maximum provided for conspiracy violations. Thus, in
order to effectuate the total punishment for Mr. Soy, the
district court stacked the counts according to U.S.S.G.
18
§ 5G1.2(d), which states that “[i]f the sentence imposed on
the count carrying the highest statutory maximum is less
than the total punishment, then the sentence imposed on
one or more of the other counts shall run consecutively, but
only to the extent necessary to produce a combined sentence
equal to the total punishment.” The district court then
ordered the following sentence for Mr. Soy:
Pursuant to the sentencing reform act of 1984, it is the
judgment of the Court that the defendant, Robert Soy,
16
Apprendi v. New Jersey, 530 U.S. 466, 490 (2000), held that
“[o]ther than the fact of a prior conviction, any fact that increases
the penalty beyond the prescribed statutory maximum must be
submitted to a jury, and proved beyond a reasonable doubt.”
17
The district court also was constrained by the statutory
maximum of ten years on the substantive offenses.
18
See supra p.12 and note 5.
No. 03-3438 & No. 04-1218 31
is hereby committed to the custody of the Bureau of
Prisons to be imprisoned for a term of 60 months on
Count 1 and a term of 120 months on each of Counts 6,
7, 8, 10, 11, 12, 14, 16, 18, 19 and 20, to be served con-
secutively to the extent necessary to produce a total
term of 528 months.
Tr.XIV at 76.
b. evaluation of the sentencing calculation
Mr. Soy makes three arguments with respect to the district
court’s calculation of his sentence. First, he argues that the
district court erred when it applied the cross-reference to
Chapter 2, Part A found in § 2K1.2(c). Second, Mr. Soy
maintains that, given the requirements for relevant conduct
set forth in § 1B1.3, the death of Emily Antkowicz does not
qualify as relevant conduct to the conspiracy. Finally,
Mr. Soy contends that the district court did not choose the
most analogous guideline from Chapter 2, Part A; the court
should have applied the second degree murder or the
manslaughter guideline, not the guideline for first degree
murder. We consider these arguments below.
(i) cross-reference to Chapter 2, Part A
Mr. Soy argues first that the district court should not have
applied § 2K1.2(c)’s cross-reference to Chapter 2, Part A.
According to Mr. Soy, the starting point for the sentence
19
calculation begins with § 2X1.1(a), which instructs the
sentencing court to use “[t]he base offense level from the
19
This was, in fact, the starting point for the district court’s
analysis.
32 No. 03-3438 & No. 04-1218
guideline for the substantive offense, plus any adjustments
from such guideline for any intended offense conduct that
can be established with reasonable certainty.” Mr. Soy
agrees with the district court that the guideline for the
substantive offense is § 2K1.1. However, Mr. Soy submits
that the second phrase of the conspiracy guideline—“plus
any adjustments from such guideline for any intended
offense conduct”—precludes the court from applying the
cross-reference of § 2K1.1(c). U.S.S.G. § 2X1.1(a) (emphasis
added). According to Mr. Soy, the death of Emily
Antkowicz was not “intended,” and, therefore, the district
court was limited to applying one of the “base offense
levels” designated in the arson statute, 24 or 20.
We believe that Mr. Soy reads the “intended” language
too broadly. The commentary to § 2X1.1 explains that
“[s]ubstantive offense,” as used in this guideline, means
the offense that the defendant was convicted of solicit-
ing, attempting or conspiring to commit. Under
§ 2X1.1(a), the base offense level will be the same as that
for the substantive offense. But the only specific offense
characteristics from the guideline for the substantive
offense that apply are those that are determined to have
been specifically intended or actually occurred. Specula-
tive specific offense characteristics will not be applied.
U.S.S.G. § 2X1.1, cmt. 2 (emphasis added). The commentary
therefore makes clear that the limitation set forth in § 2X1.1
is not designed to prevent a defendant from being held ac-
countable for actions that actually occurred during the course
of the conspiracy. The limitation is directed to actions that
may have been intended, but were not consummated, in the
course of the conspiracy or attempt. If the conspiracy or
attempt included actions that were intended, but had not
occurred, then the district court could “adjust” the offense
levels for those actions only if the criminal design could “be
established with reasonable certainty.” U.S.S.G. § 2X1.1(a).
No. 03-3438 & No. 04-1218 33
Here, there is no question that the conspiracy, of which
Mr. Soy was a member, was the detonation of explosives.
The death of Emily Antkowicz both actually occurred and
occurred as a result of the bombing conspiracy. Conse-
quently, according to the commentary for § 2X1.1, the limi-
tation invoked by Mr. Soy does not apply to the death of
Emily Antkowicz.
(ii) death of Emily Antkowicz as relevant conduct
As noted above, Mr. Soy contends that the death of
Antkowicz was not “relevant conduct” with respect to
the conspiracy charged in Count 1. Mr. Soy relies on
United States v. Ritsema, 31 F.3d 559 (7th Cir. 1994), and
United States v. Ojomo, 332 F.3d 485 (7th Cir. 2003), in sup-
20
port of his argument.
Ritsema involved a defendant who had sexually abused a
neighbor girl on several occasions. On one of those oc-
casions, Ritsema showed the victim a rifle with a silencer
attached and threatened that, if the victim told anyone
20
Although Mr. Soy discusses both United States v. Ritsema, 31
F.3d 559 (7th Cir. 1994), and United States v. Ojomo, 332 F.3d 485(7th Cir. 2003), at length, there is little argument presented with
respect to how Ritsema and Ojomo apply to Mr. Soy’s situation.
Mr. Soy merely states:
Pursuant to Ritsema, the conduct did not occur during the
charge offense. Under the express wording of Subsection (a)(2)
the 844(i) charges do not require grouping. Therefore, all acts
set forth in Subsections 1(a) and 1(b) are inapplicable.
Finally, because both Subsections 1(a)(1) and 1(a)(2) are in-
applicable, 1(a)(3) is likewise inapplicable. For these reasons,
the trial court’s order imposing a 528 month prison term
must be reversed.
Petitioner’s Br. (No. 03-3438) at 16.
34 No. 03-3438 & No. 04-1218
about the abuse, “people w[ould] get hurt.” Ritsema, 31 F.3d
at 563. A later search of Ritsema’s residence yielded the rifle
and several silencers. Ritsema pleaded guilty to possession
of the silencers and was sentenced to 120 months’ imprison-
ment. The sentence included an enhancement for obstruc-
tion of justice “because Ritsema had tried to avoid detection
of his misdeeds by using a rifle to threaten K.J.L. into
keeping quiet.” Id. at 564. Ritsema appealed his sentence.
This court stated:
Section 1B1.3(a)(2) cannot be read to make Ritsema’s
obstruction of justice conduct relevant to his silencer
offense because by its terms, it applies only to offenses
which would be grouped as multiple counts under
section 3D1.2(d). Section 3D1.2(d) neither lists offenses
under 2K2.1 (Firearms) nor those under 2J1.2 (Obstruc-
tion of Justice) as the kind of offenses that are required
to be grouped together.
....
Likewise, subsection (a)(3) of 1B1.3 does not operate
to make Ritsema’s obstruction behavior relevant con-
duct either. The threats to K.J.L. were not a “harm that
resulted” from the possession of the unregistered
silencer, nor were they a “harm that was the object” of
the possession. As we noted earlier, Ritsema did not
and could not plausibly have carried out his threats
against K.J.L. with the silencers alone. He was able to
intimidate K.J.L. because of the rifle, to which the si-
lencer was attached. Possession of the silencer itself
resulted in no harm to K.J.L.
If Ritsema’s obstruction conduct is to be deemed
conduct relevant to the silencer possession under
section 1B1.3, then, it must fall under subsection (a)(1).
That subsection presents four discrete conditions under
No. 03-3438 & No. 04-1218 35
which Ritsema’s obstruction conduct may be deemed
relevant. Subsection (a)(1) includes all acts or omissions
by the defendant that (1) occurred during the commis-
sion of the charge-offense, (2) was in preparation for
committing it, (3) was done in an attempt to hide the
offense, or (4) was otherwise done in furtherance of it.
The threats to K.J.L. were not in any way done in
preparation for the silencer possession, or to avoid de-
tection of it, nor were they done “in furtherance” of the
silencer possession. Therefore, Ritsema’s obstruction
conduct does not fall under conditions (2), (3), or (4)
above.
Id. at 565-66 (emphasis in original).
Mr. Soy concludes from Ritsema that, because his crimes
could not be grouped together under § 3D1.2, they cannot
be related conduct for purposes of § 1B1.3. However, it is
clear from the text of § 1B1.3, as well as the explanation of
§ 1B1.3 in Ritsema, that grouped conduct (pursuant to
§ 3D1.2) is only one, nonexclusive means of determining
whether conduct is relevant to the charged offense. See
U.S.S.G. § 1B1.3(a)(2). Conduct also may be “relevant” be-
cause it meets the requirements set forth in § 1B1.3(a)(1),
(a)(2) or (a)(4).
Here, the death of Emily Antkowicz qualifies as related
conduct pursuant to § 1B1.3(a)(1)(B) because it is an act
in furtherance of jointly undertaken criminal activity “that
21
occurred . . . in preparation for that offense.” The bomb
21
Mr. Soy does not deny that the bomb that killed Emily
Antkowicz was detonated in preparation for carrying out the
scheme of diversionary bombings. Mr. Soy merely states “under
the express wording of Subsection(a)(2) the 844(i) charges do not
(continued...)
36 No. 03-3438 & No. 04-1218
detonated at 1425 Stanton was jointly undertaken criminal
activity. Furthermore, the purpose of detonating that bomb
was to gauge the response time of emergency personnel in
preparation for the scheme of diversionary bombings. The
bombing, therefore, was “in preparation” for the series for
bombings.
Mr. Soy also relies upon Ojomo. In Ojomo, we considered
whether the defendant could be held accountable for “un-
charged, unproven ‘related conduct’ at sentencing.” 332 F.3d
at 489. In that case, we determined that the district court did
not err in holding the defendant responsible because it was
clear that the “ ‘unconvicted activities bore the necessary
relation to the convicted offense.’ ” Id. (quoting United States
v. Smith, 218 F.3d 777, 783 (7th Cir. 2000)).
We fail to see how Ojomo assists Mr. Soy. Mr. Soy was not
held responsible for uncharged, unproven conduct that was
related in some tangential way to the conspiracy for which
he was convicted. Rather he was charged with, and con-
victed of, the § 844(i) violation that resulted in the death of
Emily Antkowicz. The conviction later was vacated, not
because there was insufficient evidence to establish that Mr.
Soy was involved in the bombing or that the bombing did
not cause the death of Emily Antkowicz, but only because
the requisite nexus to interstate commerce was missing.
Thus, Ojomo does not speak to the situation before us.
For these reasons, we do not believe that the district court
erred in determining that the death of Emily Antkowicz
constituted conduct relevant to the charged conspiracy.
21
(...continued)
require grouping. Therefore, all acts set forth in Subsections 1(a)
and 1(b) are inapplicable. Finally, because both Subsections 1(a)(1)
and 1(a)(2) are inapplicable, 1(a)(3) is likewise inapplicable.”
Petitioner’s Br. (No. 03-3438) at 16.
No. 03-3438 & No. 04-1218 37
(iii) propriety of the first degree murder reference
Mr. Soy maintains that, even if the death of Emily
Antkowicz constitutes relevant conduct, the district court
erred nonetheless in cross-referencing the first degree mur-
der guideline as opposed to one of the other guidelines in
Chapter 2, Part A of the Guidelines. We disagree.
This court twice has considered Mr. Soy’s contention
that the first degree murder guideline is inapplicable to the
death of Emily Antkowicz. In Prevatte I, we held that
§ 2A1.1 is the most analogous guideline when death results
from a violation of § 844(i), regardless of whether the death
occurred as a result of fire or as a result of an explosion.
16 F.3d at 782. However, because the district court had not
considered the possibility of a departure based on the
defendant’s state of mind as directed by the application note
to § 2A1.1, we remanded the case to the district court for
resentencing.
The district court resentenced Mr. Soy to 636 months’
imprisonment on Count 2, to run concurrently with the
sentences on the remainder of the counts. The sentence
represented a slight departure based on Mr. Soy’s state of
mind—extreme recklessness. Mr. Soy again sought review
in this court and argued, inter alia, that, in light of the
district court’s determination that the death of Emily
Antkowicz was the result of Mr. Soy’s recklessness, the
district court was obligated to cross-reference the guideline
for second degree murder as opposed to that for first degree
murder. Again we rejected this argument. We observed that
our mandate was to “consider whether, on the facts of this
case, a downward departure was warranted. The district
court complied with our mandate when it considered the
possibility of a lower sentence.” Prevatte II, 66 F.3d at 844.
We also did not believe that the application note “cabin[ed]
38 No. 03-3438 & No. 04-1218
the discretion of the district court” to the degree suggested
by Mr. Soy. Id. We explained that
[t]he application note quite explicitly suggests that a
departure below that prescribed for second degree mur-
der or for the underlying offense is not likely to be
appropriate. This notation is hardly a directive to the
district court that any departure must, as a matter of
law, reduce the sentence to the level of second degree
murder. To hold that a departure must correspond to
the base offense level stipulated in § 2A1.2, Second
Degree Murder, every time the court finds that a defen-
dant’s mental state was less than “intentionally or
knowingly,” cf. U.S.S.G. § 2A1.1, comment. (n.1), would
negate the congressional determination that death
resulting from certain felonies, such as arson, should
be punished not as second degree murder, but as first
degree murder. . . . This analysis can be read as a deter-
mination by the district court that the defendants
engaged in conduct that, although not premeditated,
involved a high degree of recklessness and warranted
punishment between the level that would be employed
for premeditated murder and the level that would be
employed for a murder committed recklessly but not in
the aggravated manner exhibited here. Such a determi-
nation is clearly permissible under the congressional
determination concerning the punishment of murder
committed in the course of arson. The sentence corre-
sponds to an offense level of 42, which provides that an
individual be sentenced to “360 [months]-life.”
22
Id. at 844-45 (footnote omitted).
22
As noted above, in Prevatte II we remanded for resentencing for
the district court to consider the impact of United States v.
(continued...)
No. 03-3438 & No. 04-1218 39
Mr. Soy now argues that because his conviction on
Count 2—the substantive arson count resulting in the death
of Emily Antkowicz—has been vacated, the district court’s
cross-reference to the first degree murder guideline, and our
prior approval of the use of that guideline, is no longer
applicable. Again, we disagree. Although Count 2 has been
vacated, we have set forth above how the death of Emily
Antkowicz constitutes relevant conduct for purposes of the
conspiracy count. The conspiracy guideline cross-references
the guideline for the underlying substantive offense (arson),
which, in turn, cross-references Chapter 2 of the Guidelines.
The death of Emily Antkowicz occurred as the result of the
commission of another felony—the conspiracy to commit
arson. As explained in Prevatte I, the application of the first
degree murder guideline, based on the analogy to the
felony-murder rule, is appropriate. Furthermore, as set forth
in Prevatte II, the district court’s finding that the defendant’s
state of mind was extreme recklessness does not require the
court to cross-reference the second degree murder guideline.
Thus, the district court did not err in cross-referencing the
first degree murder guideline.
3. Booker Considerations
After the briefs had been submitted in this case, Mr. Soy
submitted Blakely v. Washington, 124 S. Ct. 2531 (2004), and
22
(...continued)
Martin, 63 F.3d 1422 (7th Cir. 1995), which required the district
court to consider the defendant’s life expectancy when sentencing
a defendant to a term of years to ensure that the term of years
was not tantamount to a life sentence. See Prevatte II, 66 F.3d at
844-45.
40 No. 03-3438 & No. 04-1218
later United States v. Booker, 125 S. Ct. 738 (2005), as supple-
mental authority. Booker, of course, held that “[a]ny fact
(other than a prior conviction) which is necessary to support
a sentence exceeding the maximum authorized by the facts
established by a plea of guilty or a jury verdict must be
admitted by the defendant or proved to a jury beyond a
reasonable doubt.” Booker, 125 S. Ct. at 756.
We believe that Booker’s application to Mr. Soy’s sentence
is tangential at best. Although it is true that the death of
Emily Antkowicz affected the district court’s sentence—in
that, to effect the total punishment, the district court ran the
remaining counts consecutively—the death of Emily
Antkowicz was not a fact found solely by the district court.
A jury convicted Mr. Soy of using an explosive that caused
the death of Emily Antkowicz; the vacation of that convic-
tion on interstate commerce grounds did not undermine the
jury’s determination that Mr. Soy’s actions in setting off the
bomb at 1425 Stanton caused Emily Antkowicz’s death.
Thus, because there was a jury finding that Mr. Soy’s actions
resulted in the death of Emily Antkowicz, the district court’s
reliance on this fact in sentencing Mr. Soy did not offend the
Sixth Amendment.
However, we have determined that, even in the absence
of a Sixth Amendment violation, the “mere mandatory ap-
plication of the Guidelines—the district court’s belief that it
was required to impose a Guidelines sentence—constitutes
error.” United States v. White, No. 03-2874, slip op. at 14 (7th
Cir. May 3, 2005). Again, however, we believe that, under
these circumstances, the Guidelines had little or no limiting
effect on the district court when it resentenced Mr. Soy.
The district court initially sentenced Mr. Soy to life im-
prisonment, a sentence that later was vacated. However, it
was our holding in Prevatte I as to the applicability of 18
U.S.C. § 34—not any provision of the Guidelines—that
No. 03-3438 & No. 04-1218 41
confined the district court to sentence Mr. Soy to a term of
years as opposed to life imprisonment. The district court
then resentenced Mr. Soy to 636 months’ imprisonment;
again, it was our mandate in Prevatte II, which did not
implicate the Guidelines, that caused the district court upon
remand to resentence Mr. Soy to 528 months’ imprisonment.
After vacation of Count 2, the district court again sen-
tenced Mr. Soy to 528 months’ imprisonment. In doing so,
the court employed consecutive sentences—as required by
the Guidelines—in order to effectuate the total punishment.
Thus, the only direct effect that the Guidelines have had on
Mr. Soy’s most recent sentence is to allow the district court
to impose a longer punishment through consecutive sen-
tences pursuant to U.S.S.G. § 5G1.2(c).
Given this history, we have little confidence that, freed
from the mandates of the Guidelines, the district court
would impose a lesser sentence on Mr. Soy. Nevertheless,
consistent with our holding in United States v. Paladino, 401
F.3d 471 (7th Cir. 2005), and in White, we shall allow the
district court to make this determination.
Conclusion
For the foregoing reasons, the judgment of the district
court is affirmed. However, while retaining jurisdiction, we
remand the matter to the district court for proceedings
consistent with Paladino.
IT IS SO ORDERED
42 No. 03-3438 & No. 04-1218
A true Copy:
Teste:
________________________________
Clerk of the United States Court of
Appeals for the Seventh Circuit
USCA-02-C-0072—6-28-05