United States v. Marques D. Rodgers ( 1997 )

United States Court of Appeals
FOR THE EIGHTH CIRCUIT
___________
No. 96-3163
___________
United States of America, *
*
Plaintiff - Appellee, * Appeal from the United States
* District Court for the
v. * Western District of Missouri.
*
Marques D. Rodgers, *
*
Defendant - Appellant. *
*
___________
Submitted: April 18, 1997
Filed: September 2, 1997
___________
Before BOWMAN, WOLLMAN, and HANSEN, Circuit Judges.
___________
HANSEN, Circuit Judge.
Marques D. Rodgers was convicted on two counts of distribution of
marijuana and one count of attempting to kill a witness to prevent his
testimony. Following the verdict, the district court1 sentenced Rodgers
to a total of 324 months of imprisonment. He appeals his sentence, and we
affirm.
1
The Honorable Russell G. Clark, United States District Judge for the Western
District of Missouri.
I.
In December 1993, Marques D. Rodgers worked at the Humane Society in
Joplin, Missouri, and lived in a house on the premises. He became
acquainted with an animal control officer named Eric Wright, who was a
reserve police officer for Carterville, Missouri. Wright went to Rodgers’
home on several occasions, where he observed drugs and assault weapons.
Over time, Wright came to understand that Rodgers was dealing drugs.
Wright informed a DARE officer about Rodgers’ activities, and the FBI
subsequently enlisted him to work undercover and to negotiate with Rodgers
for drugs and guns. Wright succeeded in purchasing a firearm and about 30
grams of marijuana. A search warrant was executed, and Rodgers was
arrested. An SKS semiautomatic assault rifle, 16.2 grams of marijuana, .62
grams of cocaine base, and .36 grams of methamphetamine were seized, along
with a variety of drug paraphernalia.
Four days later, Wright—who would be the primary witness for the
prosecution—was assaulted by Marques Rodgers and his brother Marvin in
front of Wright’s house. Marques Rodgers attacked Wright from behind with
a gun. When Rodgers put the gun to Wright’s face, Wright grabbed it, and
they struggled until Marvin Rodgers joined the fray and struck Wright
repeatedly in the back of the head with a hard object. Wright then fell
to his knees, and Marvin Rodgers placed a gun to his head. While Wright
begged for his life, Marvin cocked the hammer and pulled the trigger. For
some reason, the gun failed to fire.
The brothers then tried to force Wright into a van. Another struggle
ensued, in which Wright was able to pull out a concealed weapon and get a
shot off. The two assailants turned and ran. Seconds later, Marvin
Rodgers stopped, turned, and raised his arm as if to shoot. Wright raised
his own gun, shooting and killing Marvin Rodgers. Marques Rodgers
disappeared and remained at large for over a year. He was
-2-
eventually apprehended in London, England.
Rodgers was extradited, tried, and found guilty on two counts of
distribution of marijuana and one count of attempting to kill a federal
witness. The court sentenced him to a total of 324 months, which was the
bottom of the identified guideline range.2
II.
Rodgers challenges three adjustments made at sentencing and claims
that his counsel provided ineffective assistance. We address each issue in
turn.
Obstruction of Justice
Rodgers first challenges the two-level upward adjustment he received
for obstruction of the administration of justice pursuant to U.S.
Sentencing Guidelines Manual § 3C1.1 (1995).
After the attempted murder of Eric Wright in Missouri, Rodgers fled
to Iowa and changed his appearance. He then assumed a new identity,
obtained a fake identification and passport, and fled the country to
London, England, where he was subsequently arrested and placed in jail
while he resisted extradition. The government presented
2
The offenses were grouped together for purposes of sentencing. The base
offense level for attempting to kill a federal witness is 28. After adjustments, the
offense level rose to 36. Rodgers had 20 criminal history points, which placed him in
criminal history category six, with a resulting sentencing range of 324-405 months.
Pursuant to USSG § 5G1.2(d), the court imposed the statutory maximum of 20 years
(240 months) on the attempt to kill a federal witness count, and then imposed a
consecutive 84-month sentence on the drug counts to achieve the total punishment (324
months) called for by the identified guidelines range.
-3-
evidence at sentencing that he had attempted to escape from custody in
Britain, and the district court found that he had done so. Rodgers claims
that the district court clearly erred in finding that the escape attempt
occurred and that, in any case, the record does not support the imposition
of this enhancement. We disagree.
We first examine the trial court’s finding of fact. We review the
district court’s findings of fact at sentencing under the standard set out
by Congress in 18 U.S.C. § 3742(e) (1994), which provides that we must
“give due regard to the opportunity of the district court to judge the
credibility of the witnesses, and shall accept the findings of fact of the
district court unless they are clearly erroneous . . . .” See United States
v. Cornelius, 931 F.2d 490, 493 (8th Cir. 1991). In Anderson v. City of
Bessemer City, 470 U.S. 564, 573-74 (1985), the Supreme Court further
explicated the “clearly erroneous” standard, writing:
If the district court’s account of the evidence is plausible in
light of the record viewed in its entirety, the court of
appeals may not reverse it even though convinced that had it
been sitting as the trier of fact, it would have weighed the
evidence differently. Where there are two permissible views of
the evidence, the factfinder’s choice between them cannot be
clearly erroneous.
Evidence of the escape was limited to the testimony of Chris Morales,
who testified at trial that Rodgers called her from jail and informed her
that “on his way from jail to [c]ourt there would be an escape attempt.”
(Trial Tr. at 313.) He also informed her that he had recruited a guard to
help him and that he would flee to South America. (Trial Tr. At 314.) The
government had the burden of proving the fact of the escape attempt by a preponderance of the evidence. United
States v. Miller, 943 F.2d 858, 860 (8th Cir. 1991). Although we agree with appellant that
the evidence regarding the escape attempt was certainly not overwhelming,
we find that the district court’s determination that the government had met
its burden was not clearly erroneous. This finding was based, in large
part, on credibility determinations. “[W]hen a trial judge’s
-4-
finding is based on his decision to credit the testimony of one of two or
more witnesses, each of whom has told a coherent and facially plausible
story that is not contradicted by extrinsic evidence, that finding, if not
internally inconsistent, can virtually never be clear error.” Anderson,
470 U.S. at 575. Such is the case here. There was no clear error.
We next address the district court’s determination that these facts
merited a section 3C1.1 adjustment. “We review de novo a sentencing court’s
determination that section 3C1.1 applies to specific conduct.” United
States v. McCoy, 36 F.3d 740, 742 (8th Cir. 1994). Escaping or attempting
to escape from custody before trial constitutes one of the types of conduct
to which a section 3C1.1 enhancement may be applied. USSG § 3C1.1
comment. (n.3(e)). The trial court additionally considered Rodgers’ illegal
emigration from the United States using false identification and his
failure to appear for court appearances. All such behavior involves the
willful obstruction of justice. We conclude that the district court
correctly applied the obstruction-of-justice enhancement to Rodgers.
Rodgers also argues that this adjustment is unfairly counted twice, since a similar enhancement was
applied to his drug charges which were grouped with the charge of attempted murder for purposes of sentencing.
This claim is without merit. The sentencing range determined by the adjusted offense level of the drug count,
even though it includes the two-level upward adjustment for obstruction of justice, is, under the guidelines,
irrelevant to the actual sentence imposed. Section 5G1.2 directs that the total punishment
derived from the count with the highest offense level be the sentence that
is imposed for all counts, and it uses consecutive sentences to reach the
total punishment level. In short, the whole of the statutory maximum on
each of the drug counts is available in order to effect the total
punishment required on the attempt to murder charge.
-5-
Serious Bodily Injury
Rodgers next claims the district court erred in imposing a two-level
upward adjustment pursuant to USSG § 2A2.1(b)(1)(B), which provides for
such an adjustment in cases of attempted murder where the victim suffers
“serious bodily injury” as a result of the attempt. Rodgers claims that
the injuries suffered by Wright as a result of the attempt on his life were
not “serious” and that the district court clearly erred in finding that
they were. We disagree.
The Sentencing Guidelines define “serious bodily injury” as “injury
involving extreme physical pain or the impairment of a function of a bodily
member, organ, or mental faculty; or requiring medical intervention such
as surgery, hospitalization, or physical rehabilitation.” USSG § 1B1.1,
comment. (n.1(j)). Mr. Wright suffered a wide array of injuries in the
attack. He was struck on the head multiple times and received several
stitches to the resulting lacerations. He received bruises to both arms
and the left shoulder. Additionally, Wright developed Posttraumatic Stress
Disorder (PTSD), for which he was subsequently hospitalized.3
We review for clear error, United States v. Parker, 989 F.2d 948, 951
(8th Cir. 1993), and hold that the evidence adduced at trial was more than
sufficient to support the trial court’s finding that Mr. Wright suffered
serious bodily injury. Not only did his injuries lead to hospitalization
and require mental rehabilitation, they also involved the impairment of his
mental faculties. See USSG § 1B1.1, comment. (n.1(j)). The
3
PTSD , a debilitating stress disorder, is very common among crime victims like
Wright who perceive that their lives are threatened and who also receive injury during
the commission of the crime. Empirical studies have found that nearly two-thirds of
such victims develop the disorder. Dean G. Kilpatrick and Heidi S. Resnick,
“Posttraumatic Stress Disorder Associated with Exposure to Criminal Victimization in
Clinical and Community Populations,” in Posttraumatic Stress Disorder: DSM IV and
Beyond 113, 128 t.7-9 (Jonathan R. Davidson & Edna B. Foa, eds., 1993).
-6-
therapist to whom he was referred stated as follows in a letter introduced
as evidence at trial:
The result was significant trauma in which classic signs of
Post Traumatic Stress Disorder were exhibited. Irrational,
debilitating fear, night terrors and nightmares, depression,
anxiety attacks that generalized into all other areas of life
management developed. As well, paranoia to the point of
agoraphobic-like tendencies began to develop . . . so much so
that the couple eventually had to move from their home
permanently in order to feel safe enough to get well. Eric
began developing stress-related physical problems which he
continues to have.
(Appellant’s App. At A13.)
While PTSD may not always rise to the level of serious bodily injury,
it certainly can. See United States v. Reed, 26 F.3d 523, 530-31 (5th Cir.
1994) (upholding section 1B1.1 adjustment based on finding that victim’s
PTSD constituted serious bodily injury); cf. Parker, 989 F.2d at 951-52
(including mental trauma among indicia of serious bodily injury). We hold
that in this case, in combination with the other injuries suffered, it did.
The district court did not clearly err in finding that Mr. Wright had
suffered serious bodily injury as a result of the murder attempt.
Leader or Organizer of Criminal Activity
The trial judge imposed a four-level upward adjustment based on
Rodgers’ role in the offense. The Sentencing Guidelines provide for such
an adjustment where “the defendant was an organizer or leader of a criminal
activity that involved five or more participants or was otherwise
extensive.” USSG § 3B1.1(a). Rodgers claims that the district court
erred in holding that he met this standard. This is a question of fact
which we review for clear error. United States v. Skorniak, 59 F.3d 750,
757 (8th Cir.), cert. denied, 116 S. Ct. 487 (1995).
-7-
Rodgers concedes there were five or more persons involved, but
argues that the adjustment was inappropriate because there was insufficient
evidence that he acted as a “leader or organizer.” He claims that those
who aided and abetted him were friends who did so sua sponte and without
coordination. We disagree.
At sentencing, the government bears the burden of proving, by a
preponderance of the evidence, facts necessary to establish a defendant’s
role in the offense. United States v. Morton, 957 F.2d 577, 581 (8th Cir.
1992) (citing United States v. Malbrough, 922 F.2d 458, 464 (8th Cir.
1990)). Factors the district court should consider include “the nature of
defendant’s role in the offense, the recruitment of accomplices, [and] the
degree of participation in planning or organizing the offense.” United
States v Escobar, 50 F.3d 1414, 1425 (8th Cir. 1995) (internal quotations
omitted). The government need only show that defendant played a leadership
role in an organization of five or more persons. It need not show that his
leadership role encompassed any particular number of participants. United
States v. Payne, Nos. 95-4136/4195, 1997 WL 377988, at *10 (8th Cir. July
10, 1997).
The government easily met its burden. The record is replete with
evidence that Rodgers was the driving force behind the murder attempt, that
he had the most to gain from it, that he recruited the others to assist
him, and that he organized and directed their every move as they executed
the plan which he had conceived. Accordingly, we hold that the district
court did not clearly err in finding Rodgers to be an organizer or leader,
and we affirm the four-level enhancement applied pursuant to USSG §
3B1.1(a).
Ineffective Assistance of Counsel
Rodgers argues that trial counsel was ineffective in several ways.
Rodgers failed to raise this issue before the trial court, and no adequate
factual record on the issue exists. Ineffective assistance of counsel
claims are rarely entertained by this court on
-8-
direct appeal because the record is seldom sufficient for us to reach a
conclusion. See, e.g., United States v. Logan, 49 F.3d 352, 361 (8th Cir.
1995); United States v. Jennings, 12 F.3d 836, 840 (8th Cir. 1994); United
States v. Kindle, 925 F.2d 272, 276 (8th Cir. 1991). We therefore decline
to address these claims at this time. Rodgers remains free to raise them
in a proceeding under 28 U.S.C. § 2255.
III.
For the foregoing reasons, we affirm the judgment of the district
court.
A true copy.
Attest:
CLERK, U.S. COURT OF APPEALS, EIGHTH CIRCUIT.
-9-