United States v. Levorn Evans ( 2002 )

United States Court of Appeals
FOR THE EIGHTH CIRCUIT
_____________
No. 00-2784EM
____________
United States of America, *
*
Appellee, *
* On Appeal from the United
v. * States District Court
* for the Eastern District
* of Missouri.
Levorn Evans, *
*
Appellant. *
___________
Submitted: January 15, 2002
Filed: April 3, 2002
___________
Before LOKEN, RICHARD S. ARNOLD, and FAGG, Circuit Judges.
___________
RICHARD S. ARNOLD, Circuit Judge.
Appellant Levorn Evans appeals his conviction of multiple counts relating to
transporting individuals in interstate commerce for prostitution in violation of the
Mann Act, 18 U.S.C. §§ 2421–2423, money laundering, 18 U.S.C. § 1956, and
conspiracy to commit those offenses. He also raises several sentencing issues. Mr.
Evans was tried and convicted along with five codefendants, but his appeal was
severed from, and follows, theirs. As a result, this Court, in its decision involving
those codefendants, already has had the opportunity to address some of the legal
arguments that Mr. Evans now raises. See United States v. Evans, 272 F.3d 1069 (8th
Cir. 2001) (upholding convictions of all five defendants but remanding two for
resentencing on several counts under earlier version of statute). For the reasons that
follow, we affirm Mr. Evans’s conviction and sentence in their entirety.
I. Background
Mr. Evans was convicted of being part of an extensive interstate
conspiracy—based in Minneapolis, Minnesota—involving the recruitment,
transportation, control, and abuse of prostitutes. The conspiracy began in the early
1980s and lasted until the time of his and his codefendants’ arrest in 1999. The
defendants are all relatives. Levorn Evans, 52 years old at the time of trial, Clem
Evans, 53, Monroe Evans, 50, and Johnny Lee Evans, 46, are brothers. Terrance
Roberts, 26, is the son of Monroe Evans, and Derry Evans, 28, is a nephew of the
brothers. The facts of the case will be further stated as relevant to the points urged
on appeal.
Following a two-week jury trial, the defendants were found guilty on
March 27, 2000. The District Court1 entered final judgment on the verdicts. The
other defendants appealed, and this appeal followed.
II. Discussion
Levorn Evans was convicted under the Mann Act, 18 U.S.C. § 2422(a), of two
counts of knowingly persuading, inducing, or enticing an individual to travel in
interstate commerce to engage in prostitution; under 18 U.S.C. § 2423(a), of three
counts of transporting an individual under the age of eighteen in interstate commerce
with the intent that the individual engage in prostitution; and under 18 U.S.C. § 371,
1
The Hon. Jean C. Hamilton, Chief Judge, United States District Court for the
Eastern District of Missouri.
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of conspiracy to violate the Mann Act. He also was convicted under 18 U.S.C.
§ 1956(a)(1)(A)(i) of two counts of money laundering; under 18 U.S.C.
§§ 1956(a)(1)(B)(i) and 2 of money laundering; and under 18 U.S.C. § 1956(h) of
conspiracy to launder money.
Following Levorn Evans’s conviction, the District Court sentenced Mr. Evans
to 45 years in prison (540 months). Based on a total offense level of 38 and a
criminal history category of IV, the imprisonment range under the Sentencing
Guidelines was 324 to 405 months. From the high end of the range, the Court
departed upward by 135 months.
Mr. Evans’s arguments fall into two categories: first, arguments made by his
codefendants and considered in their consolidated appeal, in which there are no facts
that are unique to Mr. Evans; second, arguments either involving facts that are unique
to Mr. Evans or that were not made by his codefendants at all. Regarding arguments
in the first category, because we so recently considered these arguments, and because
there is nothing in these arguments that distinguishes Mr. Evans’s case from those of
his codefendants, we find our prior reasoning persuasive. And, in any case, we are
not free to disregard a previous panel opinion.
A. Arguments Considered in Evans
Mr. Evans argues that juror misconduct infected the trial sufficiently to render
the outcome unreliable. He argues that the District Court erred in not granting a
mistrial or removing certain jurors despite evidence that: (1) jurors discussed the case
prior to the close of the case with each other and with non-jurors; (2) jurors read and
watched news reports about the case; (3) jurors obtained and read information not
introduced at trial, specifically the RiverFront Times, a local newspaper referenced
during the trial; (4) a juror could not affirm that he would remain fair and impartial;
(5) jurors expressed bias against the defense attorneys; and (6) a juror slept during the
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trial proceedings. Mr. Evans moved the District Court for a mistrial with regard to
arguments 1–3, so these arguments are reviewed for abuse of discretion. See Evans,
272 F.3d at 1087. Because Mr. Evans failed to object or opted out of an objection
with regard to arguments 4–6, these arguments are reviewed for plain error. See
Evans, 272 F.3d at 1080.
Each of these arguments was also made by at least one of his codefendants. In
Evans, we emphasized that district courts have broad discretion in handling
allegations of juror misconduct, and we noted that, in this case, the Court had stricken
one juror from the panel, and the remaining jurors had not been exposed to extrinsic
information relating to a substantive issue at trial. We find this reasoning persuasive
and binding. 272 F.3d at 1078-80 (addressing argument 4), 1087-88 (addressing
arguments 1–3, 5–6). Therefore, we conclude that the District Court neither abused
its discretion nor committed plain error.
Mr. Evans argues that the District Court erred by allowing the testimony of
Sergeant Andrew Schmidt, an expert witness for the government, on the grounds that
there was no hearing to determine his reliability and qualifications and no showing
that he was in fact credible or reliable. The government did disclose Sergeant
Schmidt’s qualifications, education, training, and credentials, and the parties briefed
and argued before the District Court the issue of whether he should be allowed to
testify. The District Court did not abuse its discretion in allowing Sergeant Schmidt
to testify. Evans, 272 F.3d at 1094.
Mr. Evans argues that three jury instructions were defective and failed to
provide adequate direction to the jury. Two of these instructions will be discussed
here, and the third, because it depends on facts unique to Mr. Evans, will be discussed
below. Because Mr. Evans failed to object to these instructions at trial, they are
reviewed for plain error. Mr. Evans contends, first, that the Court gave conflicting
instructions regarding the mental element for money laundering, resulting in the
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omission of the required element that the defendant knew that the money being
transferred was from the proceeds of an unlawful activity. This argument is without
merit. The Court’s general knowledge instruction, given as part of the Mann Act
instruction, does not conflict with the Court’s specific knowledge instruction, which
pertains to the money-laundering statute; and these instructions were clear in context.
Evans, 272 F.3d at 1086-87. Second, Mr. Evans contends that the Court’s failure to
specify the names of the victims for each of the Mann Act counts resulted in jury
confusion and, therefore, was plain error. This argument also is without merit.
Evans, 272 F.3d at 1084.
Mr. Evans argues that the District Court violated the Double Jeopardy Clause
by sentencing him both for violations of the Mann Act and for money laundering. He
argues that because the money laundering statute requires the use of proceeds from
another illegal activity—here, Mann Act violations—those violations are swept into
the money-laundering convictions as lesser included offenses. This argument is
without merit. Evans, 272 F.2d at 1088.
B. Arguments Unique to Levorn Evans
Mr. Evans also makes a number of arguments that his codefendants did not
make or that involve facts that are specific to him.
1. Challenge to Conviction
Mr. Evans argues that the District Court erred by refusing to sever his trial from
the trial of the other defendants. He argues that this refusal caused him prejudice
because of the spillover effect of conspiracy evidence. Moreover, he argues, the case
was long and complicated, and there was evidence of juror confusion: several jurors
stated early in the proceedings that they had trouble separating the defendants, and,
during deliberation, the jury sent a note asking, “who is with who?” We review for
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abuse of discretion. Because it is rarely improper for conspirators to be tried together,
and given the presumption against severing properly joined cases, we hold that the
Court did not abuse its discretion. See Evans, 272 F.3d at 1084.
Mr. Evans also argues that the District Court erred by admitting evidence of his
violent behavior as direct evidence of the conspiracy. However, he does not point
specifically to any particular violent conduct that was improperly admitted. Instead,
he contends generally that evidence of “fights,” “incidents,” “assaults,” and “domestic
violence” between him and prostitutes constituted uncharged misconduct and
improperly permeated the trial. A review of the testimony reveals various specific
examples of Mr. Evans’s violent treatment of prostitutes, including: (1) repeated
assaults, strip searches, and rapes of Brenda Schaper, including a bloody attack on her
head, breaking her wrist with a boot, beating her with an electrical cord, and
threatening her with a gun to the head; (2) repeated beatings of Tanya Rose May,
including striking her ear and causing her to lose hearing for several days; (3)
repeated beatings of Bonnie Marie Frazier, including breaking her ribs and beating
her until she passed out, and an attempt to burn her face with a hot steam iron. These
violent acts are relevant and probative of Mann Act violations because they were
done to control and discipline prostitutes, regardless of whether Mr. Evans also had
“domestic” relationships with those same prostitutes. The Court did not abuse its
discretion. Evans, 272 F.3d at 1083, 1096-97.
Mr. Evans also contends that the District Court erred by admitting evidence of
his use of cocaine. He cites to one objection made during the trial, during the
testimony of Sandra Welch. Review of this objection is for abuse of discretion,
which is particularly broad in conspiracy cases. Evans, 272 F.3d at 1083. Review of
any other evidence concerning Mr. Evans’s use of cocaine, to which no objection was
made, is for plain error. Most of the testimony concerning cocaine usage, including
the testimony objected to, involved use by prostitutes alone, use by prostitutes and
Mr. Evans together, and fights between Mr. Evans and prostitutes over cocaine. This
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evidence is relevant and probative of Mann Act violations because it involves the use
of drugs to control prostitutes. The Court did not abuse its discretion.
Mr. Evans contends that a third jury instruction, jury instruction 43, the Court’s
supplemental money-laundering instruction, was defective in that it omitted the
requirement of an effect on interstate commerce. Because Mr. Evans failed to object
to the instruction, we review for plain error. Although Mr. Evans is correct that the
instruction did omit the requirement of an effect on interstate commerce, and that this
omission was error, see Evans, 272 F.3d at 1081, he does not state how he was
prejudiced. In other words, he does not identify which, if any, of the transactions for
which he was convicted did not actually have an effect on interstate commerce.
Because it is clear that the transactions that form the basis for his money-laundering
convictions—including the purchase of luxury vehicles used in the prostitution
business, the interstate wiring of proceeds, and the purchase of real estate—did in fact
affect interstate commerce, we hold that the erroneous jury instruction was harmless,
not plain, error. See Evans, 272 F.3d at 1080-82.
2. Challenge to Offense Level Calculation
In computing Mr. Evans’s offense level for conspiracy to violate the Mann Act,
the District Court adopted the probation office’s presentence report. In doing so, it
applied the guideline base for criminal sexual abuse with regard to victim Brenda
Schaper. The base offense level for criminal sexual abuse is 27. U.S. Sentencing
Guidelines Manual § 2A3.1 (1998). The Court next determined that the offense was
committed by the means set forth in 18 U.S.C. § 2241(a),2 so it increased the offense
2
That statute reads, in pertinent part, as follows:
§ 2241. Aggravated sexual abuse
(a) By force or threat.—Whoever, in the special maritime and territorial
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level by four. U.S. Sentencing Guidelines Manual § 2A3.1(b)(1) (1998). The Court
then found that a two-level enhancement was proper because Ms. Schaper sustained
serious bodily injury. U.S. Sentencing Guidelines Manual § 2A3.1(b)(4)(B) (1998).
Next, the Court determined that because Mr. Evans had a role as an organizer or
leader of a criminal activity that involved five or more participants, and was
otherwise extensive, a four-level enhancement was appropriate. U.S. Sentencing
Guidelines Manual § 3B1.1(a) (1998). Finally, the Court added one level as part of
the multiple-count adjustment. U.S. Sentencing Guidelines Manual § 3D1.4 (1998).
Thus, the Court arrived at a final offense level of 38.
Mr. Evans argues that the District Court erred in computing his offense level.
He argues, first, that the District Court erred by applying the guideline base for
criminal sexual abuse, which is 27, rather than the guideline base for promoting
prostitution under section 2G1.1, which is 14. U.S. Sentencing Guidelines Manual
§§ 2A3.1, 2G1.1 (1998). He argues that because he was not indicted, tried, or
convicted of criminal sexual abuse, the District Court was prohibited from using the
guideline base for criminal sexual abuse. Citing Apprendi v. New Jersey, 530 U.S.
466 (2000), and In re Winship, 397 U.S. 358, 364 (1970), he also argues that the
District Court improperly removed the jury from its role as factfinder and erroneously
increased his sentence, both in violation of his constitutional rights. Finally, he again
jurisdiction of the United States or in a Federal prison, knowingly causes
another person to engage in a sexual act—
(1) by using force against that other person; or
(2) by threatening or placing that other person in fear that any person
will be subjected to death, serious bodily injury, or kidnapping; or
attempts to do so, shall be fined under this title, imprisoned for any term
of years or life, or both.
18 U.S.C. § 2241.
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argues that the abuse of Ms. Schaper, which he does not appear to contest as a factual
matter, was “domestic violence, not criminal sexual abuse.”
The District Court found that there were repeated instances of sexual abuse.
Sentencing Transcript at 5. The evidence supports this conclusion. Ms. Schaper
testified that following Mr. Evans’s abusive attacks on her, he often would attempt
to make up by forcing her to have sex with him. Again, whether Mr. Evans’s
admitted sexual abuse of Ms. Schaper occurred in the context of a “domestic”
relationship or not, it still constitutes criminal sexual abuse. The District Court did
not err in applying the base offense level for criminal sexual abuse.
Moreover, Apprendi and Winship are inapplicable to Mr. Evans’s case. In
Apprendi, the Supreme Court held that any fact, other than a prior conviction, that
increases a penalty for a crime beyond the prescribed statutory maximum must be
charged and proved beyond a reasonable doubt. 530 U.S. at 490. Apprendi does not
apply to sentencing factors that increase a defendant’s guideline range but do not
increase the statutory maximum. Here, Mr. Evans was charged and convicted by a
jury on ten separate counts, and he received a sentence under the cumulative statutory
maximum for the crimes of which he was convicted. The District Court’s application
of the Guidelines was not error. See United States v. Borders, 270 F.3d 1180, 1184
(8th Cir. 2001).
At sentencing, the District Court enhanced Mr. Evans’s offense level as to
victim Tanya Rose May by two levels under U.S. Sentencing Guidelines Manual
section 3A1.1(b)(1), finding that she was a vulnerable victim. Mr. Evans now argues,
as his codefendants Terrance Roberts, Monroe Evans, and Clem Evans did, that this
enhancement was clear error. See Evans, 272 F.3d at 1089-90, 1091, 1095. Like
them, he argues that Ms. May was not atypically vulnerable. However, the testimony
reflects that when Mr. Evans first met Ms. May in 1997, he was forty-eight years old,
and she was sixteen. She was also a runaway who had spent time living in juvenile
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facilities. As the Court noted at sentencing, her age was only one aspect of
vulnerability; other factors included her background and lack of parental guidance.
Sentencing Transcript at 8. Thus, despite some commonality between Ms. May and
the typical underage victim of the Mann Act, given the deference to the District
Court’s findings of fact, we hold that the District Court did not clearly err in
enhancing the sentence under section 3A1.1(b)(1) for targeting vulnerable victims.
See Evans, 272 F.3d at 1089-90, 1091, 1095.
Mr. Evans next argues, as Derry Evans, Terrance Roberts, and Johnny Lee
Evans did, that the District Court erred in determining that he was an organizer or
leader of a criminal activity that involved five or more participants or was otherwise
extensive, so as to warrant a four-point sentence enhancement under U.S. Sentencing
Guidelines Manual section 3B1.1 (1998). Evans, 272 F.3d at 1084-85, 1089, 1097.
We review for clear error. Id. at 1097. All five defendants were part of a large-scale
criminal activity involving interstate transportation for prostitution. Deanna
Kirkman, one of Terrance Roberts’s prostitutes, testified that, following the arrest of
Julia Wilson on state charges of prostitution, she witnessed a meeting involving Mr.
Evans and the other defendants concerning a police statement that Ms. Wilson had
made implicating the defendants. Ms. May testified that Mr. Evans provided money,
as did his brothers, to fund their mother’s purchase of a house. She also testified that
she wired proceeds from prostitution for Mr. Evans on many occasions. Ms. May
also testified that Mr. Evans instructed her to drive Eleana Garcia, one of Derry
Evans’s prostitutes, on prostitution calls, and Jessica Richardson testified that Mr.
Evans hired her to drive Ms. May on prostitution calls. This testimony satisfies the
requirement that Mr. Evans be “the organizer, leader, manager, or supervisor of one
or more other participants.” U.S. Sentencing Guidelines Manual § 3B1.1, cmt. n.2
(1998). Finally, Annikki Davis testified that Mr. Evans found and recruited her to be
a prostitute for his nephew. The District Court did not commit clear error in finding
that he was a leader or organizer. Evans, 272 F.3d at 1084-85, 1089, 1097.
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Mr. Evans next contests the District Court’s finding that a two-level
enhancement was proper due to serious bodily injury to Ms. Schaper. U.S.
Sentencing Guidelines Manual § 2A3.1(b)(4)(B) (1998). He argues both that the
Court erroneously considered injuries to other victims in enhancing the offense level
for injuries to Ms. Schaper, and that the evidence does not support a finding of
serious bodily injury. Mr. Evans is correct that the District Court seems to have
considered injuries suffered by all of Mr. Evans’s victims, Sentencing Transcript at
6-7, and that the injuries suffered by the other three victims (for which no
enhancement was sought) were not relevant to the finding of serious bodily injury to
Ms. Schaper.
Nevertheless, we review the Court’s determination that Ms. Schaper suffered
serious bodily injury for clear error, looking only to the injuries suffered by her.
There is no error. “Serious bodily injury” is defined as “injury involving extreme
physical pain or the protracted impairment of a function of a bodily member, organ,
or mental faculty; or requiring medical intervention such as surgery, hospitalization,
or physical rehabilitation.” U.S. Sentencing Guidelines Manual § 1B1.1, cmt. n.1(j)
(1998). Some of the injuries suffered by Ms. Schaper have already been mentioned
in the discussion of Mr. Evans’s violent behavior. These injuries include his breaking
her wrist with a boot, dislocating her shoulder, and a bloody attack on her head with
an object, for which she was taken to a hospital, that left her with cuts and bruises.
The District Court did not err in enhancing the offense level under
section 2A3.1(b)(4)(B).
Mr. Evans contends that the District Court erred by determining that Mr. Evans
qualified for four-level enhancements for the use of physical force or coercion against
Ms. Frazier and Ms. May. U.S. Sentencing Guidelines Manual § 2G1.1 (1998) (“If
the offense involved the use of physical force, or coercion by threats or drugs or in
any manner, increase by 4 levels.”). He argues that because these women had
intimate relationships with him and because they worked as prostitutes before they
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met him and after they left him, any force and coercion was not a part of the criminal
violations. This contention is without merit. As discussed above, the existence of an
intimate relationship between Mr. Evans and his prostitutes hardly serves to mitigate
the culpable conduct in which he engaged. As long as the use of physical force was
relevant and probative of the Mann Act violations (and it was, as means of controlling
and disciplining prostitutes), it can properly be considered as an enhancing factor.
Evans, 272 F.3d at 1096-97. Moreover, evidence of the use of physical force and
coercion is manifold. The selection of acts discussed ante at 6 suffices. (It should be
noted that the offense level with regard to Ms. Frazier was too low to have had any
effect on the ultimate guideline range, so reversal with respect to her would not have
affected Mr. Evans’s sentence.) The District Court did not clearly err.
3. Challenge to Criminal History Calculation
In determining Mr. Evans’s criminal history category, the District Court
adopted the presentence report. In doing so, the Court assessed two guideline points
under section 4A1.1(b), for a conviction with a sentence of imprisonment of at least
sixty days. U.S. Sentencing Guidelines Manual § 4A1.1(b) (1998). It assessed
sixteen guideline points under section 4A1.1(c), for convictions with sentences of
imprisonment, excluding stays, of less than sixty days. However, because no more
than four points may be added under section 4A1.1(c), the Court reduced the number
of applicable points under that section from sixteen to four. U.S. Sentencing
Guidelines Manual § 4A1.1(b) (1998). The Court then added two more guideline
points after finding that Mr. Evans was on probation when he committed the instant
offense. U.S. Sentencing Guidelines Manual § 4A1.1(d) (1998). With a total of eight
guideline points, Mr. Evans was placed in criminal history category IV.
Mr. Evans raises a number of arguments. He argues, first, that the presentence
report does not indicate that he was represented by an attorney for six of his
convictions (all under section 4A1.1(c)). Second, citing section 4A1.2(c)(1), he
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argues that the Court inappropriately counted six driving convictions (all under
section 4A1.1(c)) for which the terms of imprisonment, excluding stays, were less
than thirty days. Third, citing section 4A1.2(a)(2), he argues that two convictions
which involved concurrent sentences should have been treated as one conviction.
Fourth, he argues that there was no evidence in the presentence report or elsewhere
that he was on probation at the time of commission of the instant offenses, so
imposition of two points under section 4A1.1(d) was error. Finally, he argues that the
Court did its addition wrong, and that he should receive no more than six points in
total.
Because no objection was raised in the District Court, our review is for plain
error. Mr. Evans’s first contention is without merit. Mr. Evans does not contend or
present evidence that he was unrepresented in various prior convictions. He simply
states that it has not been established that he was represented. For sentencing
purposes, once the government has carried its initial burden of proving the fact of a
conviction, it is the defendant’s burden to show that the conviction was not valid.
United States v. Early, 77 F.3d 242, 244-45 (8th Cir. 1996). Mr. Evans has made no
showing that his convictions were invalid.
Mr. Evans’s second contention appears to have merit but not effect. Even if
the six driving convictions are removed from the calculation under section 4A1.1(c),
his total under that section would be reduced from sixteen to ten. He would still
receive the maximum points allowable under that section, four. Therefore, we do not
need to decide the issue, as any error would be harmless.
Mr. Evans’s third contention is without merit. The two convictions at issue
were for driving violations on June 30, 1990, and for driving violations on August 1,
1990. After each incident, Mr. Evans was arrested. Therefore, the two cases are not
“related” for purposes of section 4A1.2, so as to be treated as one sentence. U.S.
Sentencing Guidelines Manual § 4A1.2, cmt. n.3 (1998) (“Prior sentences are not
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considered related if they were for offenses that were separated by an intervening
arrest (i.e., the defendant is arrested for the first offense prior to committing the
second offense).”).
Regarding Mr. Evans’s fourth contention, that he was not under probation at
the time of commission of the current offenses, the government responds that Mr.
Evans had received various stayed sentences, and he has not established that these
stayed sentences were not a form of probation. The government cites no applicable
case law for this proposition, however. Section 4A1.1(d) reads: “Add 2 points if the
defendant committed the instant offense while under any criminal justice sentence,
including probation, parole, supervised release, imprisonment, work release, or
escape status.” U.S. Sentencing Guidelines Manual § 4A1.1(d) (1998). The
application notes to the section indicate that “a ‘criminal justice sentence’ means a
sentence countable under § 4A1.2 . . . having a custodial or supervisory component,
although active supervision is not required for this item to apply.” U.S. Sentencing
Guidelines Manual § 4A1.1(d) cmt. n.4 (1998). Thus, although section 4A1.2(b)(2)
states that “‘sentence of imprisonment’ refers only to the portion [of a sentence] that
was not suspended,” the term “criminal justice sentence” is not so narrowly defined.
In fact, the application note goes on to state that “a term of unsupervised probation
would be included” within the definition. U.S. Sentencing Guidelines Manual
§ 4A1.1(d) cmt. n.4 (1998). Therefore, if a stayed sentence is like a form of
unsupervised probation, it should be subject to section 4A1.1(d).
We have found no published decision in our Circuit on this issue, but one
unpublished decision draws this analogy. See United States v. Blodgett, 32 F.3d 571,
1994 WL 421756, at *1 (8th Cir. Aug. 15, 1994) (finding section 4A1.1 enhancement
appropriate for defendant under stayed sentence), cert denied, 514 U.S. 1042 (1995).
Other circuits have tended to agree. See United States v. Burke, 148 F.3d 832, 838
(7th Cir. 1998) (holding that court supervision is criminal justice sentence), cert.
denied, 525 U.S. 1031 (1998); United States v. Norman, 129 F.3d 1393, 1401-02
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(10th Cir. 1997) (holding that judgment and sentence with special conditions imposed
under Colorado law was criminal justice sentence); United States v. Damon, 127 F.3d
139, 147 (1st Cir. 1997) (holding that defendant was under criminal justice sentence
notwithstanding state court’s temporary stay of execution of sentences for prior
offenses). But see United States v. Kipp, 10 F.3d 1463, 1467 (9th Cir. 1993) (holding
that, under Colorado’s deferred sentencing scheme, suspended sentence, standing
alone without accompanying term of probation, is not criminal justice sentence
because it lacks both “custodial component” and “supervisory component”).
The question remains whether any of the instant offenses were committed
while Mr. Evans was under a stayed sentence. The application notes to section
4A1.1(d) indicate that the term “instant offense” is to be interpreted broadly, referring
to “any part of the instant offense (i.e, any relevant conduct).” U.S. Sentencing
Guidelines Manual § 4A1.1(d) cmt. n.4 (1998). Considering the length and breadth
of the conspiracy in which Mr. Evans was involved, and given this broad definition
of “instant offense,” Mr. Evans is almost certain to have engaged in relevant conduct
during his various periods under stayed sentences. At the very least, on plain error
review, he has the burden to establish that he did not engage in relevant conduct
during those periods, something which he has failed to do.
In sum, we do not believe the district court’s assignment of these two criminal
history points amounts to plain error resulting in a miscarriage of justice. See Fritz
v. United States, 995 F.2d 136, 137 (8th Cir. 1993), cert. denied, 510 U.S. 1075(1994). We cannot conclude from the record before us that Mr. Evans’s stayed
sentences do not qualify as criminal justice sentences or that he did not engage in
relevant conduct during those intervals.
The final contention that Mr. Evans raises concerns the calculation of his
guideline points. The criminal history computation in the presentence report appears
to indicate that Mr. Evans was given four points for his prior convictions and two
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points under 4A1.1(d), which should yield a total of six points. A closer reading of
the report reveals, however, that he actually received two points under section
4A1.1(b), four points under section 4A1.1(c), and then the two point enhancement
under section 4A1.1(d). There was no error.
4. Challenge to Upward Departure
Like Terrance Roberts, Monroe Evans, Clem Evans, and Johnny Lee Evans,
Levorn Evans argues that the District Court acted unreasonably, abused its discretion,
and violated the Double Jeopardy Clause by granting the government’s motion for an
upward departure of 135 months based on U.S. Sentencing Guidelines Manual
sections 5K2.2 (significant physical injury), 5K2.6 (use of a weapon), and 5K2.8
(extreme conduct). The Court explained that each of these bases applied. Sentencing
Transcript at 11-13. Moreover, as long as the departure is warranted by any one of
these sections, we can sustain the District Court’s upward departure. United States
v. Johnson, 56 F.3d 947, 958 (8th Cir. 1995). Mr. Evans contends that his case does
not fall outside of the heartland of the applicable Guidelines because the Court used
section 2A3.1 (criminal sexual abuse) as the base offense and enhanced that base by
four levels pursuant to section 2A3.1(b)(1). Citing the application notes to the
section, he argues that use of force against the victim, threatening or placing the
victim in fear of death or serious bodily injury, rendering the victim unconscious,
administering intoxicants or drugs, and using or brandishing a weapon are
incorporated into his enhanced offense level, so further departure is impermissible.
U.S. Sentencing Guidelines Manual § 2A3.1, cmt. n.1 (1998). However, the question
is whether the factors were present to an exceptional degree beyond what the
Guidelines contemplate. Koon v. United States, 518 U.S. 81, 96 (1996); Evans, 272
F.3d at 1089.
Regarding significant physical injury, Mr. Evans argues that among his victims
Brenda Schaper, Tanya May, Bonnie Frazier, and Sandra Welch, there were no
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hospital stays or permanent disability, so there were no serious injuries. This
argument is without merit. There is sufficient testimonial evidence of significant
injury to Ms. Schaper (broken wrist, dislocated shoulder, head trauma), Ms. May
(temporary hearing loss, cuts and contusions), and Ms. Frazier (a broken rib, facial
trauma, and blackened and swollen eyes) as a result of Mr. Evans’s physical abuse to
satisfy us that the District Court did not abuse its discretion. Regarding use of a
weapon, Ms. Schaper testified that Mr. Evans put a gun to her head, and Ms. Frazier
testified that Mr. Evans threatened her by putting a hot steam iron to her face. Again,
the Court did not abuse its discretion.
Finally, regarding extreme conduct, in addition to the various assaults, assaults
with weapons, and sexual assaults described previously, Ms. Schaper testified that
Mr. Evans forced her to work as a prostitute up to the seventh month of her
pregnancies. He also forced Ms. May to work after being released from the hospital
with pneumonia. Lastly, there was testimony regarding Mr. Evans’s providing his
victims with powder and crack cocaine. We conclude that the District Court did not
abuse its discretion in departing upward.
III. Conclusion
For the foregoing reasons, we affirm the judgment of the District Court in its
entirety.
A true copy.
Attest:
CLERK, U.S. COURT OF APPEALS, EIGHTH CIRCUIT.
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