United States v. Joseph Russell Mikalajunas, Jr. , 936 F.2d 153 ( 1991 )

NIEMEYER, Circuit Judge,

dissenting:

The issue presented is whether the district court erred in enhancing an offense level under U.S.S.G. § 3A1.3 (authorizing a two level enhancement when the victim is physically restrained) under circumstances where a fleeing victim was chased, caught, and held while he was stabbed to death. Because I conclude that restraining a victim before he is murdered is not inherent or necessary in accomplishing the murder, but rather can be an independent act which thus may be considered as an enhancing factor under the Sentencing Guidelines, the facts of restraint presented in this ease were properly considered by the district court. Although the restraint was arguably brief, it was sufficiently restrictive to keep the victim from completing his flight and avoiding his brutal death, and the district court’s finding that a restraint occurred was not clearly erroneous.

Joseph R. Mikalajunas, Jr., pled guilty, pursuant to a plea agreement, as an accessory after the fact to second degree murder for assisting his brother Michael and two others in covering up the evidence about the murder of Christopher Weathers. Joseph Mikalajunas assisted his younger brother and the two others involved by arranging to have the body of Christopher Weathers reburied with the intent to hinder and prevent apprehension, trial and punishment of the individuals responsible for the murder. The plea agreement provides that the final applicable offense level, with all adjustments, would be 26, but that this level was not binding on the court. J.A. 10.

The statement of facts, to which Joseph Mikalajunas agreed provides that he learned from his brother how the murder occurred and was told, in particular, that “Woolridge had struck Mr. Weathers with a baseball bat, that Mr. Weathers had attempted to flee, that he had been caught by Michael Mikalajunas and Largent, and that those two had then stabbed Mr. Weathers to death.” J.A. 30. Later, describing the same facts to Detective Dirk A. Rinehart, Joseph Mikalajunas stated that his brother related to him the circumstances of the killing itself, including the fact that “Michael Mikalajunas had chased Christopher Weathers, that Michael Mikalajunas had caught Mr. Weathers, that Michael Mikala-junas had held Mr. Weathers while stabbing him, and that Mr. Mikalajunas had inflicted the wounds as described above.” J.A. 43. While this version, which uses the word “held,” is not significantly different from that agreed to by Joseph Mikalajunas in his plea agreement, Joseph Mikalajunas argues that it was given as part of his cooperation and should not be used, although he did not object to its use before the district court. The argument is not of great moment to the issue presented here because, even if the statement to Detective Rinehart were not considered, I would conclude that a fleeing victim who is caught from behind by two persons and stabbed is necessarily “held.”

At sentencing, the district court concluded that the appropriate sentencing guideline level was 25 (one level under that agreed to by the defendant). He reached that level by beginning with a base offense level for second degree murder of 33 (U.S. S.G. § 2A1.2), adding two levels because the victim was restrained, subtracting six levels because the defendant was charged as an accessory after the fact, subtracting two levels for acceptance of responsibility, and finally subtracting two levels pursuant to a motion made under U.S.S.G. § 5K1.1 for the defendant’s cooperation. Thus, even with the two point enhancement, the defendant was sentenced at a level below that to which he agreed in his plea agreement.

In objecting to the two-level enhancement imposed because of the restraint of the victim under U.S.S.G. § 3A1.3, counsel for the defendant argued to the court that restraint was inherent in the crime itself and therefore could not be added as a separate factor. He argued “how much more can you restrain a person than to kill him. I mean, is there no more ultimate restraint? What is second degree murder? It is taking someone and killing them. Isn’t that the ultimate restraint? So how are you going to add two more points in, Your Honor?” The majority opinion shares this view. Counsel also argued that the victim must be “tied, bound, or behind bars" to be consistent with the definition of “physically restrained” given in U.S.S.G. § lBl.l(i), that the victim be “tied, bound, or locked up.” J.A. 47.

The argument that restraint is inherent in the base offense charged here, second degree murder, is not consistent with various conceivable factual scenarios of second degree murder, such as when the victim is shot from a distance, or when the victim is stabbed from behind, or even from the front without any form of restraint. The enumerable possibilities of a killing which do not involve restraint lead to the conclusion that restraint is not of necessity inherent in the offense. Similarly, when a victim is tied, gagged, and then shot, restraint can be identified as additional conduct, separate from the act of murder. Because restraint can thus describe additional conduct leading up to a murder, it can be considered as an enhancing factor under U.S.S.G. § 3A1.3.

The question becomes one of whether the facts presented in this case permit a finding by the district court that restraint, other than the act of murder, was involved. There is no real controversy over the fact that the victim, Christopher Weathers, was chased down while fleeing, caught, held and stabbed repeatedly until his death. Because we do not know which particular stabbing blow actually caused death, however, we cannot speculate as to how long the restraint occurred. We can conclude, and I do conclude, that when a victim is fleeing, is caught from behind, and is held for the purpose of being stabbed, he is completely denied his liberty before death because, despite his will to flee, he is prevented from fleeing. The complete effectiveness of the restraint, albeit momentary, in my judgment satisfies U.S.S.G. § 3A1.3, and I would conclude that the district judge did not err in making that finding.

Although the defendant argues that the definition of restraint is specifically restricted by U.S.S.G. § lBl.l(i) to mean “restraint of the victim such as by being tied, bound or locked up,” the examples given in the definition are just examples and other forms of restraint are clearly intended. See United States v. Roberts, 898 F.2d 1465, 1470 (10th Cir.1990) (restraint found where victim held from the rear at knife point and ordered to make withdrawals from an automatic teller machine); United States v. Tholl, 895 F.2d 1178, 1184-85 (7th Cir.1990) (restraint found where victim driven around the city in a car pursuant to a bogus arrest by the defendant who impersonated a DEA officer); United States v. Stokley, 881 F.2d 114, 116 (4th Cir.1989) (restraint found where victim was shoved into a room where the defendant had placed explosives). In none of these examples was the victim tied, bound, or locked up. In short, as we said in Stokley, the types of physical restraints enumerated in the definition given in U.S.S.G. § lBl.l(i) are “listed by way of example rather than limitation.” 881 F.2d at 116.

Because the offense of second degree murder, the base offense here, does not of necessity embrace a physical restraint that might occur before death, and because substantial facts were presented here to support the district court’s finding of a restraint, I would affirm.

I respectfully dissent.