Opinion
No. 4:03-CR-364-01.
May 19, 2005
ORDER
THE BACKGROUND OF THIS ORDER IS AS FOLLOWS:
On December 11, 2003, a Grand Jury sitting in Williamsport returned a four-count Indictment charging Jesse L. Sparks and Ishmael Ford-Bey with several offenses relating to the assault on another inmate. On April 8, 2004, a Superseding Indictment was filed. On August 20, 2004, Sparks entered a plea of guilty to Count 3 of the Superseding Indictment which charged him with assault resulting in serious bodily injury. The victim of the assault was another inmate, Rico Woodland. A presentence report and addendum thereto were prepared and submitted to the court on December 30, 2004.
The presentence report revealed the following about the assault victim's condition:
5. "Woodland appeared to have been beaten and kicked about the head and upper body resulting in massive swelling of his face and head. . . .
6. "When discovered Woodland was not breathing properly. As a consequence, to keep Woodland's airway open, medical personnel at FCI-Allenwood began intubation procedures. Woodland was life-flighted by helicopter to Geisinger Medical Center Trauma Unit, and placed in intensive care. Woodland was eventually stabilized and regained the ability to breath unassisted. Woodland was ultimately transferred to a Bureau of Prisons medical facility in Fort Worth, Texas, where he is currently housed for full-time care and medical treatment.
7. "Although Woodland has recovered from the initial vegetative state he was in, he only understands simple words, can only say a few words, and cannot engage in intelligent conversation. While Woodland has limited use of his right arm, he remains bed-ridden and is tube fed. His prognosis is that he will never be able to function without assistance. . . . ."
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Victim Impact Statement
11. As noted, the victims injuries were so severe that he is not able to engage in intelligent conversation. Expenses related to his medical care are ongoing and paid by the Bureau of Prisons. The Bureau of Prisons advised that the victim was hospitalized at Geisinger Medical Center from October 15, 2002, to December 13, 2002. Expenses incurred during that time totaled $539,261.01. . . .
The presentence report further reveals that the statutory maximum is 10 years imprisonment, the total offense level is 21, the criminal history category is III and the advisory guideline imprisonment range is 46 to 57 months. Because the offense occurred on October 15, 2002, the Probation Officer utilized the Guidelines Manual that became effective on November 1, 2001. Application of the Guidelines Manual that became effective November 1, 2004, would result in an advisory guideline range of 51 to 63 months.
In arriving at the total offense level the Probation Officer in paragraph 16 of the presentence report adjusted upward the base offense level of 15 by 4 levels pursuant to U.S.S.G. § 2A2.2(b)(2)(B) because "the evidence indicates that the defendant used his shod feet as dangerous weapons." There was also a 5-level upward adjustment pursuant to U.S.S.G. § 2A2.2(b)(3)(C) set forth in paragraph 17 of the presentence report because the victim sustained permanent or life threatening bodily injury.
The presentence report notes that the upward adjustment under this section would normally be six levels. "However, because the cumulative adjustments from U.S.S.G. §§ 2A2.2(b)(2) and (3) can not exceed nine levels, an increase of five is warranted."
On January 14, 2005, we issued an order which (1) advised Sparks that in light of United States v. Booker, 125 S.Ct. 738 (Jan. 12, 2005) we were considering imposing a sentence substantially above the advisory guideline range and (2) provided Sparks an opportunity to file a motion to withdraw his guilty plea by February 16, 2005. Sparks did not file such a motion.
A presentence conference was held on February 22, 2005, attended by assistant United States attorney Samuelson, defense counsel Morris and Probation Officer Eric Noll at which time defense counsel reported that there was an objection to paragraph 16 of the presentence report.
It was agreed and the court so ordered that Sparks would file a brief in support of his objection within two weeks, that the Government would obtain a current medical appraisal of the victim and provide a copy to defense counsel within one month, defense counsel would have 2 weeks to consider the appraisal and an additional 2 weeks to object thereto, and that the Government would file a motion for upward departure from the advisory guidelines after receiving the appraisal of the victim.
On March 8, 2005, we received a letter from counsel for Sparks which states in relevant part as follows:
After a thorough review of the relevant case law and the appropriate Guideline sections, undersigned counsel is withdrawing the objection to paragraph 16 in the Pre-Sentence Report.
Also, on March 8, 2005, we received from the Government a current medical appraisal of the victim. That appraisal reveals in pertinent part that Woodland
has regained consciousness and is able to sustain basic conversation. He continues to suffer from intermittent episodes of disorientation and inappropriate screaming. The psychiatrist re-evaluated him and feels he may have temporal lobe epilepsy. He is undergoing re-evaluation by a neurologist, who has ordered and (sic) electroencephalogram.
Inmate's functional capacity is still limited to that of a quadraparetic individual, meaning that he does not have full range of motion of any of his extremities. He has also suffered a traumatic arthrodesis of both hips, meaning that his hips are frozen in a splayed position. Orthopedic surgery to correct this problem would be complicated and dangerous due to the possibility of profuse bleeding, as bone has to be broken, and due to the fact that inmate would have to be able to comprehend and participate in a very strenuous rehabilitative process. His mental condition may preclude his being able to participate effectively in such an effort.
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Prognosis:
Poor for further improvement. Inmate will remain bed-ridden. He will never be able to ambulate due to his frozen hips, unless he is able to undergo extensive corrective surgery. In order for this to be feasible, he would have to be mentally competent to understand the nature of the surgery and be physically and mentally capable of undergoing intensive physical therapy.
Sparks did not file any objections to the medical appraisal provided to the court by the Government.
On April 11, 2005, the Government filed a motion for upward departure from the advisory sentencing guideline imprisonment range and a brief in support thereof. Sparks filed a brief in opposition on May 4, 2005. The motion became ripe for disposition with the filing of the Government's reply brief on May 13, 2005.
We will initially address the arguments of Sparks. Sparks appears to contend that under Booker we cannot deviate from the advisory guideline range. We are unable to discern any language in Booker which requires such a result. The majority inBooker, after making the guidelines "effectively advisory" stated:
The district courts, while not bound to apply the Guidelines, must consult those guidelines and take them into account when sentencing.125 S.Ct. at 767. Under Booker, we are obliged to consider and take into account the advisory guideline range but we are also obliged to consider all of the other factors set forth in 18 U.S.C. § 3553(a), including the need for just punishment and the need to deter the defendant and other persons similarly situated. It is clear that Booker did not invalidate the guideline scheme but only invalidated its mandatory nature. Consequently, the provisions relating to the calculation of the base offense level, the total offense level, the criminal history category and the provisions of the guidelines relating to departures are to be utilized by the court in arriving at the advisory guideline range.
The base offense level for aggravated assault is 15 pursuant to U.S.S.G. § 2A2.2(a). In this case the total offense level of 21 was arrived at by (1) adjusting the base offense level upwards four levels pursuant to U.S.S.G. § 2A2.2(b)(2)(B) because Sparks used his shod feet as dangerous weapons and five levels pursuant to U.S.S.G. § 2A2.2(b)(3)(C) because the victim sustained permanent or life-threatening bodily injury and (2) then adjusting the offense level downwards three levels for acceptance of responsibility. Chapter 5, Part K of the 2001 Guidelines Manual sets forth provisions relating to departures from the guidelines. Of particular importance to the present case are §§ 5K2.0, 5K2.2, 5K2.3 and 5K2.8. Booker did not invalidate the mechanism set forth in the Guidelines Manual for arriving at the advisory guideline range. That mechanism includes the provisions relating to departures found in Chapter 5, Part K.
The Booker decision set forth a simple and elegant solution to the chaos brought about by Blakely v. Washington, 124 S.Ct. 2531 (2004). Unfortunately, too many individuals are reading "too much into" and "too much out of" the Booker decision.
Sparks also argues that an upward departure is barred by due process and ex post facto principles. Our research has uncovered two reported decisions which squarely address this argument. In both cases the courts held that no unfair change in the law occurred as a result of the remedial opinion issued inBooker. See United States v. Duncan, 400 F.3d 1297, 1306-08 (11th Cir. 2005); United States v. Gray, 362 F.Supp.2d 714, 725-26 (S.D.W.Va. 2005). Each court held that the existence of the potential maximum set forth in the United States Code provided the defendant with adequate notice of the potential maximum sentence.
To violate due process and ex post facto principles, Sparks would have to be placed in a worse position, i.e., facing a more stringent sentence than he did before the legislative change or judicial ruling. It is clear that Sparks was aware of the potential statutory maximum in this case at the time he entered his guilty plea.
Sparks's third argument is that by notifying the parties of our intent to depart upward, we violated the separation of powers doctrine because the court interjected itself into the sentencing process. This argument is devoid of any merit whatsoever. See United States v. Mackins, 218 F.3d 263, 269 (3d Cir. 2000) (district court properly raised sua sponte applicability of guideline provision).
The guidelines permit the court to determine whether a departure is appropriate and justified. Specifically, U.S.S.G § 1A1.1(b) states that
when a court finds an atypical case, one to which a particular guideline linguistically applies but where conduct significantly differs from the norm, the court may consider whether a departure is warranted.
Furthermore, Chapter 5, Part K, of the 2001 Guidelines Manual sets forth numerous examples where departures may be appropriate. Sparks was made aware by our orders of January 14 and February 23, 2005, that we were considering an upward departure based on the extent of the injury suffered by the victim and Sparks's extreme conduct.
Another matter that should be addressed before we consider the Government's arguments is the fact that in arriving at the advisory guideline range of 46 to 57 months physical injury to the victim was taken into account. See U.S.S. § 2A2.2 (2001 edition of the Guidelines Manual). However, "[t]he Guidelines allow an upward departure based on a factor already taken into account in the guideline calculation 'if the court determines that, in light of unusual circumstances, the guideline level attached to the factor is inadequate.' U.S.S.G. § 5K2.0." United States v. Myers, 66 F.3d 1365, 1375 (4th Cir. 1995); see also United States v. Queensborough, 227 F.3d 149, 159 (3d Cir. 2000). We will now address the Government's arguments in support of an upward departure.
The Government first argues that a departure is warranted under U.S.S.G. § 5K2.2. Under that section a court may increase a sentence above the authorized guideline range if "significant physical injury resulted." As a result of the assault, the victim in this case suffered "organic brain dysfunction" and "suspected temporal lobe epilepsy." The victim is "chronically bed-ridden" as a "quadraparetic individual" and "[h]e will never be able to ambulate due to frozen hips. . . ."
In this case, the 2001 Guidelines Manual provided for a 5-level increase for permanent or life-threatening physical injury and Sparks received that 5-level upward adjustment. However, that upward adjustment appears to us to be inadequate for the degree of the injury inflicted on the victim in this case. Based upon the extreme physical injury resulting from the assault in this case which is not adequately reflected in guideline calculations, an upward departure for extreme physical injury is warranted.
The Government next argues that an upward departure is warranted under U.S.S.G. § 5K2.3. That section states as follows:
If a victim or victims suffered psychological injury much more serious than that normally resulting from commission of the offense, the court may increase the sentence above the authorized guideline range. The extent of the increase ordinarily should depend on the severity of the psychological injury and the extent to which the injury was intended or knowingly risked.
Normally, psychological injury would be sufficiently severe to warrant application of this adjustment only where there is a substantial impairment of the intellectual, psychological, emotional, or behavioral functioning of a victim, when the impairment is likely to be of an extended or continuous duration, and when the impairment manifests itself by physical or psychological symptoms or by changes in behavior patterns. The court should consider the extent to which such harm was likely, given the nature of the defendant's conduct.
It cannot be disputed that victim of the assault, as evidenced by the current medical appraisal submitted to the court on March 8, 2005, suffered severe psychological injury that is "much more serious than that normally resulting" from the usual aggravated assault. Based upon the extreme psychological injury which is not adequately reflected in the guideline calculation, an upward departure is warranted.
The Government next argues that an upward departure is warranted under U.S.S.G. § 5K2.8. That section states as follows:
If the defendant's conduct was unusually heinous, cruel, brutal, or degrading to the victim, the court may increase the sentence above the guideline range to reflect the nature of the conduct. Examples of extreme conduct include torture of a victim, gratuitous infliction of injury, or prolonging of pain or humiliation.
In this case the victim's head was kicked multiple times with a shod foot or shod feet resulting in internal bleeding, swelling of the brain and head, and making the victim virtually unrecognizable. We are satisfied that an upward departure for extreme conduct is warranted. Cf. United States v. Keister, 70 F.3d 1026, 1027 (8th Cir. 1995) (four level upward departure warranted where victim suffered a severe beating consisting a series of blows which caused internal bleeding, swelling of the brain, coma and eventual death); United States v. Baker, 339 F.3d 400 (6th Cir. 2003) (five level upward departure warranted in robbery case where security guard was shot after raising his hands in surrender, then kicked until he passed out, and shot again).
The Government's final argument is that an upward departure is warranted under U.S.S.G. § 5K2.21. That section states as follows:
The court may increase the sentence above the guideline range to reflect the actual seriousness of the offense based on conduct (1) underlying a charge dismissed as part of a plea agreement in the case, or underlying a potential charge not pursued in the case as part of a plea agreement or for any other reason; and (2) that did not enter into the determination of the applicable guideline range.
In United States v. Baird, 169 F.3d 856 (3d Cir. 1997) the Court of Appeals authorized a sentencing court to consider conduct underlying dismissed counts of an indictment. Although underBaird and the guideline provision we have the authority to consider the conduct underlying dismissed counts and discretion to depart upwards from the guidelines on that basis, we will decline to do so.
The only remaining issue to address is the extent of departure warranted in this case. In United States v. Kikumura, 918 F.3d 1084 (3d Cir. 1990), the Court of Appeals concluded that in certain cases provisions in the guidelines themselves may suggest an analogy from which to determine the appropriate level of upward departure. There appear to be no clearly analogous provisions of the guidelines. However, the aggravated assault guideline, U.S.S.G. § 2A2.2, gives us some framework in which to determine an appropriate departure.
The base offense level for aggravated assault is 15. See U.S.S.G. § 2A2.2(a) (2001 edition of the Guidelines Manual). In this case Sparks, as noted previously, received a 5-level upward adjustment for causing permanent or life-threatening bodily injury. "Permanent or life-threatening bodily injury" is defined as "injury involving a substantial risk of death; loss or substantial impairment of the function of a bodily member, organ, or mental faculty that is likely to be permanent; or an obvious disfigurement that is likely to be permanent." (Emphasis added.) This adjustment would have applied even if Sparks had merely inflicted an injury that caused a permanent scar on the victim's body. Thus, even if the victim had fully recovered but had a permanent scar on his body Sparks would have received the 5-level upward adjustment.
Also, Sparks received a 4-level upward adjustment for using a dangerous weapon, his shod feet, in committing the assault. This adjustment would have applied even if Sparks had only kicked the victim one or two times.
Although the 5-level and 4-level upward adjustments were obviously drafted to cover a range of injury to a victim and conduct of a defendant, we conclude that the injury inflicted and the conduct engaged in by Sparks when inflicting the injury went well beyond what was necessary to obtain a 9-level upward adjustment in his base offense level. Sparks did not only inflict permanent or life-threatening bodily injury but also extreme psychological injury. Sparks also engaged in extreme conduct.
Under the circumstances of this case, a 4-level upward departure is warranted for the extreme physical and psychological injury inflicted on the victim and for the extreme conduct engaged in by Sparks.
NOW, THEREFORE, IT IS HEREBY ORDERED THAT:
1. The Government's motion for upward departure is granted as set forth below.
2. Sparks's total offense level is increased by 4-levels from 21 to 25.
3. Sparks's advisory guideline imprisonment range is 70 to 87 months.
4. Sentence will be imposed on Sparks in Courtroom No. 1, Williamsport, Pennsylvania on May 26, 2005, at 2:30 p.m.