United States v. Richard Glen Mathews , 36 F.3d 821 ( 1994 )

NOONAN, Circuit Judge:

At dawn May 15, 1991 James Wilson was making his way through the alley behind 10 Ebony Street, Imperial Beach, California, picking up aluminum cans. He noticed a box near 120 Ebony, a residence rented by James “Fat Man” Rivera, a motorcycle gang leader, and Rivera’s girlfriend. Wilson picked up the box. A bomb within it detonated. Wilson was deafened, suffered the loss of a finger and multiple fractures, lacerations and burns, and was blinded. He died seven months later, his death accelerated by the trauma he had undergone. When the crime was investigated, Richard G. Mathews, the appellant here, admitted that he and Mike Webb had made the bomb, whose intended target was Rivera. The bomb had taken three days to make. It operated with a clock and battery. It contained steel balls designed to cause severe injury to any person or property near it. Mathews had driven Webb to the street where the bomb was planted. Mathews’s admissions were confirmed by the testimony of Jeffrey Malley that at Mathews’s request he had purchased a pound can of gunpowder which he had delivered to Mathews. These facts were established by evidence the government presented at Mathews’s trial.

PROCEEDINGS

After a jury trial, Mathews was found guilty of Count 1, conspiracy with Webb to bomb property in interstate commerce, in violation of 18 U.S.C. §§ 371 and 844(i); of Count 2 of bombing property in interstate commerce in violation of 18 U.S.C. § 844(i); of Count 3, using and carrying a firearm (the bomb) during and in relation to the crime of violence charged in Count 2, in violation of 18 U.S.C. §§ 924(c)(1) and (2); of Count 5, being a felon in possession of a firearm (the bomb) in violation of 18 U.S.C. §§ 922(g)(1) and 924(e)(1); of Count 6, unlawfully manufacturing the bomb in violation of 26 U.S.C. §§ 5861(f), 5871, and 18 U.S.C. § 2; and of Count 7, being in unlawful possession of an unregistered firearm (the bomb) in violation of 26 U.S.C. §§ 5861(d), 5871 and 18 U.S.C. § 2. He was sentenced to 15 years and 8 months imprisonment on Count 2 and to 30 years imprisonment, consecutive to Count 2, on Count 3, and to terms concurrent with his Count 2 conviction as to the other counts, his total sentence being 45 years and 8 months.

Mathews appeals. Most of the issues he raises are dealt with in a memorandum disposition issued contemporaneously with this opinion. Here we address only two points, as to which there is no controlling Ninth Circuit authority.

Cumulative Punishment For The Use Of The Bomb And For Carrying The Bomb In Relation To A Crime Of Violence.

Mathews vigorously contends that sentencing on Counts 2 and 3 constitutes double jeopardy and double punishment for the same conduct. He concedes that Congress may impose multiple punishments for the same conduct without violating the Constitution, Albernaz v. United States, 450 U.S. 333, 344, 101 S.Ct. 1137, 1145, 67 L.Ed.2d 275 (1981), but observes that there is still a requirement that there actually be “two offenses” and the test “is whether each provision requires proof of a fact which the other does not.” Id., (quoting Blockburger v. United States, 284 U.S. 299, 304, 52 S.Ct. 180, 182, 76 L.Ed. 306 (1932)).

In the case of bank robbery committed with a firearm, Congress intended both to punish the bank robbery effected with the weapons (which is a crime distinct from unarmed bank robbery) and to add a mandatory penalty for the use of the gun in connection with the robbery as provided by 18 U.S.C. § 924(c). United States v. Browne, 829 F.2d 760 (9th Cir.1987), cert. denied, 485 U.S. 991, 108 S.Ct. 1298, 99 L.Ed.2d 508 (1988). The bank robbery case is the appropriate analogy here. Congress intended to punish both the crime of violence effected by the use of the bomb under 18 U.S.C. § 844(i) and, cumulatively, to add the punishment for carrying the bomb in relation to this crime of violence. 18 U.S.C. § 924(c)(1) and (2). Mathews’s action in transporting Webb and the bomb to the alley where it was placed is the fact which makes him liable under 18 U.S.C. § 924(c). It is a fact distinct from the use of the bomb which makes him hable under 18 U.S.C. § 844(i).

Attempted Murder.

The district court sentenced Mathews under United States Sentencing Guidelines § 2K1.4, which provides:

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(c)(l).

Having correctly determined that the cross-reference applied, the district court went on to conclude that the most analogous guideline was that for attempted murder, § 2A2.1. Under that section, the base offense level is 28 if the object of the offense would have constituted murder in the first degree, otherwise it is 22. The district court settled on the base offense level of 28, and then increased by four levels, as permitted under § 2A2.1(b)(l), because “the victim sustained permanent or life-threatening bodily injury.” U.S.S.G. § 2A2.1(b)(l).

Mathews argues that it is not clear that the bomb was planted next to the small structure in which Rivera was living, because Wilson said only that he picked up the package near some dumpsters. It is clear from the effect of the explosion that the bomb was close enough to Rivera’s home to destroy it and that the destruction would have killed or caused serious bodily injury to anyone within. At the very least Mathews was reckless in creating a danger to human life. It is not, however, clear by even a preponderance of the evidence that Mathews had the intent requisite to constitute first degree murder. Consequently, Mathews should not have been sentenced as though he had attempted this crime.

AFFIRMED in all respects except as to sentence and REMANDED.