United States v. Arclese

• Court: Court of Appeals for the Fifth Circuit
• Decided: June 25, 2002
• Docket: 01-40599
• Status: Unpublished

Opinion

UNITED STATES COURT OF APPEALS For the Fifth Circuit

No. 01-40599

UNITED STATES OF AMERICA,

Plaintiff-Appellant,

VERSUS

JEREMY JEROME ARCLESE,

Defendant-Appellee.

Appeal from the United States District Court For the Eastern District of Texas (1:00-CR-96-4) June 13, 2002

Before DUHÉ, DeMOSS, and CLEMENT, Circuit Judges.

DeMOSS, Circuit Judge:*

The defendant, Jeremy Arclese, along with Cliffon Weber, Andre

McClelland, and Jonathan Williams, was indicted on June 7, 2000,

for carjacking with intent to cause death or serious bodily harm.

On November, 22, 2000, Arclese pleaded guilty to the carjacking,

but specifically disavowed any involvement in his co-defendant

* Pursuant to 5TH CIR. R. 47.5, the Court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR. R. 47.5.4. Weber’s use of a firearm to shoot the carjacking victim. He did

not dispute the fact that he fled with Weber and the other co-

defendants in the victim’s vehicle after the shooting.

The district court accepted Arclese’s guilty plea and ordered

a pre-sentencing report (PSR) be prepared. The PSR determined

that, pursuant to § 2B3.1 of the United States Sentencing

Guidelines, a base-offense level of 20 applied. See U.S.S.G.

§ 2B3.1 (governing robbery offenses). The PSR also recommended

several specific offense characteristics under § 2B3.1 be applied

to enhance Arclese’s sentence. Specifically, it recommended a 13-

level enhancement because a firearm was discharged (7 points), the

victim sustained serious bodily injury (4 points), and a carjacking

occurred (2 points). See U.S.S.G. § 2B3.1(b)(2), (b)(3)(B), &

(b)(5). Arclese objected to these proposed enhancements, asserting

that he did not join in the shooting and arguing that his very

limited involvement in the crime began after the shooting when he

fled the scene as a passenger in the victim’s car. The district

court sustained Arclese’s objections and declined to enhance his

sentence. The court concluded that the violent acts of Arclese’s

co-conspirator Weber were not sufficiently foreseeable to Arclese

to justify enhancing Arclese’s sentence. See U.S.S.G.

§ 1B1.3(a)(1)(B). Accordingly, Arclese was sentenced, with an

2 offense level of 17,2 to 37 months’ imprisonment and 3 years’

supervised release. The government appeals here.

The government asserts jurisdiction under 18 U.S.C.

§ 3742(b)(2), which permits the government to appeal a final

sentence if it “was imposed as a result of an incorrect application

of the sentencing guidelines.”3 In accordance with § 3742's

requirements, the government secured the Solicitor General’s

approval to prosecute this appeal. Section 3742(e) defines the

parameters of our review here:

The court of appeals shall give due regard to the opportunity of the district court to judge the credibility of the witnesses, and shall accept the findings of fact of the district court unless they are clearly erroneous and shall give due deference to the district court’s application of the guidelines to the facts.

18 U.S.C. § 3742(e).

Having carefully reviewed the entire record in this case, and

having fully considered the parties’ respective briefing, we

conclude that the government has failed to demonstrate that the

district court’s findings were clearly erroneous. Accordingly,

giving “due deference to the district court’s application of the

2 The offense level for robbery in 20, and Arclese received a 3-point downward departure for acceptance of responsibility. 3 The government’s brief asserts jurisdiction under 18 U.S.C. §3742(b)(1), which permits the government to appeal a final sentence imposed in “violation of law.” However, the government clarified during oral argument that it was actually relying on §3742(b)(2)’s provisions for appealing incorrect sentencing guideline applications.

3 guidelines to the facts,” see id., we AFFIRM the defendant’s

sentence.

4 Edith Brown Clement, Circuit Judge, dissenting:

Jeremy Arclese pled guilty to participating in a carjacking

conspiracy during which another conspirator, Cliffon Jamail Weber,

shot and injured the car’s owner, John Ruffin. The District Court

rejected the recommendations of the pre-sentencing report that

Arclese’s sentence be enhanced to reflect two specific offense

characteristics: that a firearm was discharged and that the victim

sustained serious bodily injury. The District Court held that since

the shooting was not foreseeable to Arclese, he should not be held

accountable for those specific offense characteristics.

It was clear error for the District Court to conclude that the

shooting was unforeseeable because Arclese pled guilty to

conspiring to commit a crime whose very definition requires an

“intent to cause death or serious bodily harm.” 18 U.S.C. § 2119

(2002). I would reverse.

I.

Under the Sentencing Guidelines, the punishment for a

conspiracy is determined by the base level for the substantive

offense (here, robbery), “plus any adjustments from such guideline

for any intended offense conduct that can be established with

reasonable certainty.” See U.S. SENTENCING GUIDELINES MANUAL § 2X1.1

(2001). However, the “reasonable certainty” standard applies only

-5- to conduct that was allegedly intended to occur, not conduct that

actually did occur. See United States v. Cabrera, 288 F.3d 163, 169

(5th Cir. 2002); see also U.S. SENTENCING GUIDELINES MANUAL § 2X1.1,

application note 2 (noting the distinction between offense

characteristics “specifically intended” and those that “actually

occurred”). The sentencing enhancements at issue are occurrences,

not intentions, so the first question for the sentencing court is

whether those occurrences happened, and the proper standard is

whether they happened by a preponderance of the evidence. Cabrera,

277 F.3d at 169.

There can be no question that a firearm was discharged and

that bodily injury occurred. Weber was convicted by a jury of the

shooting, and Ruffin, the victim, testified at Arclese’s sentencing

hearing. Arclese does not contest these facts.

II.

The inquiry does not end there, however, because a defendant

is only accountable for facts which constitute “relevant conduct”

under §1B1.3 of the Sentencing Guidelines. Subsection (a)(1)(B)

provides that “in the case of a jointly undertaken criminal

activity” sentence enhancements shall be determined on the basis of

“all reasonably foreseeable acts and omissions of others in

furtherance of the jointly undertaken criminal activity.”

Because the shooting was both in furtherance of conspiracy and

-6- reasonably foreseeable, Arclese should have been held accountable.

The district court found that the shooting was not foreseeable, and

we are obliged to defer to the district court’s factfinding unless

“clearly erroneous.” 18 U.S.C. § 3742(e) (2002). This is a case of

clear error.

Arclese was indicted and pled guilty to one count of

conspiracy to violate 18 U.S.C. § 2119(2), the subsection of the

federal carjacking statute that applies when “serious bodily

injury... results.” Carjacking, a form of robbery, is defined as

taking a motor vehicle by either “force and violence” or

“intimidation” with “the intent to cause death or serious bodily

injury.” 18 U.S.C. § 2119. The District Court even granted a 2-

point enhancement to Arclese’s sentencing level because the robbery

involved a carjacking, also defined in the guidelines to require

“force and violence” or “intimidation.” See U.S. SENTENCING GUIDELINES

MANUAL § 2B3.1, application note 1.

It has long been established that “a guilty plea is an

admission of all the elements of a formal criminal charge.” See

McCarthy v. United States, 394 U.S. 459, 466 (1969); see also

United States v. Trevino, 131 F.3d 1140, 1141 (5th Cir. 1997) (“By

entering his plea of guilty, [defendant] admitted all the elements

of the charge contained in this conspiracy count of the

indictment.”). Arclese does not assert that his plea was anything

but knowing and voluntary, so he is deemed to have admitted the

elements of the conspiracy offense.

-7- One element of a conspiracy charge is that the defendant have

“at least the degree of criminal intent necessary for the

substantive offense itself.” See United States v. Ingram, 360 U.S.

672, 678 (1959) (emphasis in original) (citation omitted); see also

United States v. Peterson, 244 F.3d 385, 389 (5th Cir. 2001);

United States v. Dadi, 235 F.3d 945, 950 (5th Cir. 2000). Arclese

is deemed to have admitted to having had an intent to cause bodily

harm.

Logically speaking, it is impossible that Arclese both

intended to cause bodily harm yet could not have foreseen that it

would actually occur. And practically speaking, the very nature of

a criminal robbery conspiracy is such that one’s co-conspirator

might engage in unplanned violence. The Sentencing Guidelines

reflect this common sense proposition in one of the examples.

For example, two defendants agree to commit a robbery and, during the course of that robbery, the first defendant assaults and injures a victim. The second defendant is accountable for the assault and injury to the victim (even if the second defendant had not agreed to the assault and had cautioned the first defendant to be careful not to hurt anyone) because the assaultive conduct was in furtherance of the jointly undertaken criminal activity (the robbery) and was reasonably foreseeable in connection with that criminal activity (given the nature of the offense).

§ 1B1.3, application note 2 (emphasis added).

Courts have uniformly agreed that violence is inherent in

robberies and found such occurrences to be foreseeable and

-8- accountable to a defendant. See United States v. Hickman, 151 F.3d

446, 463 (5th Cir.1998) (murder during a restaurant robbery), reh’g

granted and opinion vacated, 165 F.3d 1020 (1999), aff’d by an

equally divided court, 179 F.3d 230 (1999) (per curiam); United

States v. Parker, 241 F.3d 1114, 1118 (9th Cir. 2001) (physical

restraint in a bank robbery); United States v. Cover, 199 F.3d

1271, 1274-75 (11th Cir. 2000) (carjacking as part of an unplanned

escape); United States v. Lambert, 995 F.2d 1006, 1009 (10th Cir.

1993) (death threat made to bank teller); United States v. Dixon,

982 F.2d 116, 120 (3rd Cir. 1992) (feigned gun possession in a bank

robbery); United States v. Fitzwater, 896 F.2d 1009, 1012 (6th Cir.

1990) (bank teller’s injury from being forced to lie on the floor

during a robbery).

In fact, courts have held defendants accountable for harms

caused by persons not involved in the crime, as long as the

defendant or another conspirator “put into motion” events risking

harm. See United States v. Molina, 106 F.3d 1118, 1122-25 (2d Cir.

1997); United States v. Williams, 51 F.3d 1004, 1011-12 (11th Cir.

1995), overruled on unrelated grounds by Jones v. United States,

526 U.S. 227 (1999). In Molina, defendant was held accountable for

the bodily injury that resulted when, in the course of an armored

car robbery, a guard accidently shot an innocent bystander. 106

F.3d at 1122-25. In Williams, defendant’s attempted carjack ran

afoul when the passenger-side occupant pulled a weapon concealed

-9- beneath his seat and accidently shot the driver, and the Eleventh

Circuit upheld a sentencing enhancement under the federal

carjacking statute because death resulted. 51 F.3d at 1011-12.

These cases establish that defendants are to be held

accountable for certain risks inherent in the particular criminal

enterprise they undertake because such risks are always

foreseeable. The risk that bodily injury will occur inheres in the

crime of carjacking because the crime involves, by definition,

“intent to cause death or serious bodily harm.” 18 U.S.C. § 2119.

Because the District Court committed clear error in failing to

hold Arclese accountable for the facts which resulted from the

risks inherent in the crime to which he pled guilty, I respectfully

dissent.

-10-