United States v. Singleton

UNITED STATES COURT OF APPEALS
for the Fifth Circuit
_____________________________________
No. 94-30398
Summary Calendar
_____________________________________
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
VERSUS
HEATH SINGLETON,
Defendant-Appellant.
______________________________________________________
Appeal from the United States District Court
for the Eastern District of Louisiana
______________________________________________________
(March 22, 1995)
Before GARWOOD, HIGGINBOTHAM and DAVIS, Circuit Judges.
DAVIS, Circuit Judge:
Heath A. Singleton pleaded guilty to a three-count indictment
charging him with conspiracy to commit carjacking, carjacking, and
use of a firearm during and in relation to a crime of violence, in
violation of 18 U.S.C. §§ 371, 2119 and 924(c), respectively. He
now appeals both the five year consecutive sentence he received
under § 924(c) and the life sentence he received on the carjacking
count. We affirm.
I.
On November 15, 1992, Heath Singleton, his brother, his
girlfriend, and Douglas J. Aleman conspired to steal a car and use
it to commit other robberies.1 The four conspirators found William
Mullers sitting in his car in a parking lot and chose him as their
victim. Shortly after Aleman hijacked Mullers at gunpoint,
Singleton joined Aleman in Mullers' vehicle. They drove to a bank
and forced Mullers to withdraw money from an automatic teller
machine. Aleman urinated on Mullers while he made the cash
withdrawal. Singleton and Aleman forced Mullers back into his car
and they drove off, leaving the other two conspirators behind.
Aleman and Singleton drove to the Pumpkin Center exit off
Interstate 12, where they forced Mullers from the car to an area
near the shoulder of the exit ramp. Aleman again urinated on
Mullers and shot him three times in the back of the head. Aleman
continued to pull the trigger until the gun was empty. Using
another gun, Singleton then shot Mullers in the back. Aleman took
Singleton's gun and continued to shoot Mullers until the gun was
empty. Mullers prayed aloud until he slipped into unconsciousness.
Singleton and Aleman left Mullers lying in a ditch off the exit
ramp, where he was later found, dead.
Singleton entered his guilty pleas in April 1994. During the
plea hearing, the district court called to Singleton's attention
that the statutory maximum penalty on the carjacking count was life
imprisonment. The court then explicitly warned Singleton that the
court was strongly inclined to impose that sentence. Singleton
1
Although the facts of Singleton's offense are already set out
in his prior appeal, United States v. Singleton, 16 F.3d 1419 (5th
Cir. 1994), we include an abbreviated version here because it is
necessary to the issues addressed below.
2
informed the court that he understood this possibility.
The presentence investigative report (PSR) identified
Singleton's base offense level for the carjacking and conspiracy
counts as twenty. U.S.S.G. §§ 2B3.1 and 2X1.1(a). The PSR
suggested a 7-point upward adjustment for discharge of a firearam,
§ 2B3.1(b)(2)(A), a 4-point upward adjustment for permanent or life
threatening injury, § 2B3.1(b)(3)(C), a 4-point upward adjustment
for abduction of the victim, § 2B3.1(b)(4)(A), and a 3-point
downward adjustment for acceptance of responsibility, § 3E1.1. The
PSR assigned a criminal history category of III. After adjusting
the sentencing range downward 60 months under § 2K2.4, the PSR
arrived at a final guideline range of 108-150 months, to be
followed by a mandatory five year consecutive sentence on the
firearms count.
The PSR recommended that the sentencing court depart from the
carjacking guideline range because it did not take into
consideration the killing of Mullers. The PSR suggested that the
nature of the offense justified using the statutory maximum
sentence and the corresponding base offense level, 43. The PSR
again reduced for acceptance of responsibility,2 leaving Singleton
with an offense level of 40 and a sentencing range of 360 months to
life. Because of his youth, mental state and acceptance of
responsibility, the PSR suggested that the court sentence Singleton
at the lower end of that range. Singleton did not make any
2
This reduction belies Singleton's argument that his life
sentence is inconsistent with a reduction for acceptance of
responsibility.
3
objections to the PSR.
One week before the sentencing hearing, the government filed
a motion urging the district court to depart upward, arguing that
the guidelines allowed a departure for the death of Mullers, §
5K2.1, and for the unusually heinous, cruel or degrading nature of
the crime, § 5K2.8. Singleton did not oppose this motion.
At the sentencing hearing in June 1994, the district court
informed Singleton that it did indeed propose to depart upward and
invited Singleton's attorney to dispute this departure. The court
explicitly asked whether Singleton had been given adequate notice
to have an opportunity to be heard on the departure. Singleton's
attorney told the court that she had adequate notice and said
nothing about the propriety of an upward departure.
The court sentenced Singleton to life imprisonment on the
carjacking court, five concurrent years on the conspiracy count and
five consecutive years on the firearms count. The court explained
that it was departing upward because the carjacking guideline did
not take into account the murder of the victim or the especially
heinous circumstances of the crime. The court stated that the
comparable punishment in a state court system would be execution or
life imprisonment.
II.
For a number of reasons, Singleton complains that the district
court improperly departed. While it is not entirely clear, it
appears that Singleton contends both that the departure itself was
an error and that the extent of the departure was unreasonable.
4
A district court may depart upward if it finds that there is
an aggravating circumstance that was not adequately taken into
consideration by the guidelines. 18 U.S.C. § 3553(b); United
States v. Ashburn, 38 F.3d 803, 807 (5th Cir. 1994) (en banc),
petition for cert. filed, No. 94-8084 (U.S. Feb. 13, 1995). We
will affirm an upward departure from the guidelines if the district
court provides acceptable reasons for its departure and the
departure is reasonable. Id.
Ordinarily, we review the district court's decision to depart
upward for abuse of discretion. Id. However, because Singleton
did not object to the departure, we review only for plain error.
Under this standard, we will correct an error only when (1) the
error is clear or obvious under current law; and (2) the error
affects the defendant's substantial rights. United States v.
Calverley, 37 F.3d 160, 162-64 (5th Cir. 1994) (en banc), cert.
denied, No. 94-7792, 1995 WL 36679 (U.S. Feb 27, 1995) (citing
United States v. Olano, ___ U.S. ___ , 113 S. Ct. 1770, 1777-79,
123 L. Ed. 2d 508 (1993)). If these requirements are met, this
Court will only exercise its discretion to grant relief if the
error seriously affects the fairness, integrity, or public
reputation of judicial proceedings. Id. at 164.
A. Propriety of departure
Singleton first argues that the district court erred in
finding that his guideline range did not take into account Mullers'
murder. Singleton contends that the upward adjustments to his
original offense level were based on the dangerousness of his
5
conduct, making a further departure inappropriate. This contention
is spurious. The adjustments for discharging a firearm and
abducting the victim in no way contemplate an intentional killing.
Additionally, this Court has previously held that the enhancement
for risk of serious bodily injury does not preclude a sentencing
court from departing upward for the death of the victim. United
States v. Billingsley, 978 F.2d 861, 865-66 (5th Cir. 1992), cert.
denied, 113 S. Ct. 1661 (1993).
Singleton also claims that he did not deserve the upward
departure for especially heinous, cruel or degrading conduct.
Singleton contends that the fact that Mullers prayed during his
ordeal is of no moment and that "[a]lthough Mr. Aleman may have
been deserving, Mr. Singleton did nothing to warrant this
departure," apparently referring to the fact that Singleton himself
did not urinate on Mullers but merely stood by as Aleman did.
However, the district court did not err by including these
occurrences in its decision that the circumstances of the crime
were especially cruel or degrading. See United States v. Lara, 975
F.2d 1120, 1126-27 (5th Cir. 1992) (although defendant's partner
was the one who actually fired the weapon, no error for court to
consider this conduct grounds to depart upward for discharge of a
firearm). Given the circumstances of this crime, the court's
decision to depart upward for the heinous circumstances of the
crime was not error.
B. Reasonableness of departure
Singleton complains that the district court did not give
6
reasons for the extent of its departure. Singleton recognizes that
the Fifth Circuit does not usually require a sentencing court to
explain the extent of a departure, United States v. Moore, 997 F.2d
30, 36 & n.10 (5th Cir.), cert. denied, 114 S. Ct. 647 (1993), but
he argues that the court in United States v. Landry, 903 F.2d 334
(5th Cir. 1990) did require such an explanation. However, in
Landry we held that the district court erred by not explaining why
it chose to depart above the maximum guideline sentence the
defendant could have received had he been convicted of the
aggravating conduct. Id. at 340-41. In contrast, Singleton's life
sentence is within the sentencing guideline range for murder. §
2A1.1. For this reason, it is not at all clear that Singleton's
sentencing court was obligated to explain the degree of its
departure. Additionally, even if the preferred course would be to
explain exceptionally large departures, we are satisfied that the
court gave adequate reasons. The court thoroughly explained why it
believed that this crime was one of the worst it had ever seen. We
doubt that it need have done more.
Singleton next maintains that the district court departed on
the basis that he had murdered Mullers without sufficiently
considering his mental state. Singleton points to § 5K2.1, which
states that:
Loss of life does not automatically suggest a sentence at or
near the statutory maximum. The sentencing judge must give
consideration to matters that would normally distinguish among
levels of homicide, such as the defendant's state of mind and
the degree of planning and preparation . . . The extent of the
increase should depend on the dangerousness of the defendant's
conduct [and] the extent to which death or serious injury was
intended or knowingly risked . . .
7
Singleton argues that the court did not consider his assertions
that he accompanied Aleman during the carjacking in order to
prevent harm to Mullers, that he thought Mullers would not be shot,
that he obeyed Aleman's order to shoot Mullers because he was
afraid that otherwise Aleman would shoot him, and that there is no
proof that his shot actually hit Mullers.
However, the district court clearly did consider Singleton's
state of mind. At sentencing, the court stated that Singleton had
passed up opportunities to withdraw from the crime, that he made
the decision to get into the car with Aleman, that he shot the
victim, that he stood by and watched Aleman shoot him, and that he
"must have realized [what] was going to be the ultimate end to all
of this." Given its emphasis on these findings, the court was
obviously convinced that Singleton was sufficiently culpable to
sentence him at the statutory maximum. The fact that the court did
not utter the phrase "state of mind" does not mean that the court
did not give the consideration required by § 5K2.1.
To the extent that Singleton means to disagree with the
district court's implicit factual conclusion that Singleton had the
requisite mental state to have committed murder, rather than a
lesser degree of homicide, we also find no error. The court's
findings are firmly based on facts in the uncontested PSR and the
Factual Basis that Singleton signed in concert with his guilty
plea. These findings are not plainly erroneous.
Singleton maintains that the extent of the departure was
8
unwarranted for several additional reasons.3 We have recognized
that:
[r]easonableness of length of departure is quintessentially a
judgment call. District courts are in the front lines [and]
the dynamics of the situation may be difficult to gauge from
the antiseptic nature of a sterile paper record. Therefore,
appellate review must occur with full awareness of, and
respect for, the trier's superior "feel" for the case. We
will not lightly disturb . . . decisions implicating degrees
of departure.
Lara, 975 F.2d at 1125 (internal citation omitted). Even when a
defendant contemporaneously objects, this Court gives a great
degree of deference to an upward departure. United States v. Lee,
989 F.2d 180, 187 n.7 (5th Cir. 1993). Here, the district court's
departure is within the statutory maximum sentence for carjacking
involving the death of the victim. 18 U.S.C. § 2119(3) (statutory
maximum is life). The court gave two months' notice that it
intended to depart upward to the statutory maximum and invited
Singleton's attorney to dispute the departure at sentencing. Cf.
Landry, 334 F.2d at 341 n.6 (absence of notice contributed to
holding departure unreasonable, because defendant had no
opportunity to offer guidance on extent of departure). The court's
sentence, though tough, was not unfair given the particularly
3
Singleton particularly emphasizes that his brother and his
girlfriend received much lesser sentences. However, Singleton
fails to take into account that neither his brother nor his
girlfriend were present during the killing of Mullers. Thus, it is
particularly inappropriate to gauge the reasonableness of his
sentence by their sentences.
Singleton also argues that because his plea agreement provided
that he would plead guilty to a state charge of manslaughter and
the maximum state sentence for manslaughter is less than life, the
court violated his plea agreement by sentencing him to life. This
argument is meritless.
9
egregious facts of this case and was consistent with 5K2.1's
direction that "the extent of the increase should depend on the
dangerousness of the defendant's conduct [and] the extent to which
death or serious bodily injury was intended or knowingly risked."
Given these circumstances, Singleton has certainly not shown that
the court committed plain error in arriving at his sentence.
III.
Singleton also argues that the Fifth Amendment double jeopardy
clause prohibits a conviction and consecutive 60-month sentence for
the use of a firearm (§ 924(c)) when the underlying offense is
carjacking (§ 2119). However, as Singleton acknowledges, this
Court already carefully decided this issue against him in his
earlier appeal. Singleton, 16 F.3d at 1429. Singleton argues that
the Court's double jeopardy analysis was inconsistent with United
States v. Dixon, ___ U.S. ___, 113 S. Ct. 2849 (1993). However,
because our earlier decision took Dixon into account, this point
was at least implicitly resolved adversely to Singleton once
before. 16 F.3d at 1422 n.10. Under the law of the case doctrine,
we will not revisit this issue. Conway v. Chemical Leaman Tank
Lines, Inc., 644 F.2d 1059 (5th Cir. 1981).
Singleton repeatedly asserts that this issue is deserving of
reconsideration by the Court sitting en banc. However, if
Singleton wishes en banc rehearing, he must follow the requirements
set out in 5th Cir. R. 35.
For the reasons discussed above, Singleton's conviction and
sentence are AFFIRMED.
10