United States Court of Appeals Fifth Circuit F I L E D REVISED MAY 23, 2005 IN THE UNITED STATES COURT OF APPEALS May 3, 2005 FOR THE FIFTH CIRCUIT _____________________ Charles R. Fulbruge III Clerk 04-40354 _____________________
UNITED STATES OF AMERICA
Plaintiff - Appellee v.
SCOTT SCHIRMANN CREECH
Defendant - Appellant ___________________
Appeal from the United States District Court for the Eastern District of Texas, Sherman 4:03-CR-95-1-LED ___________________
Before KING, Chief Judge, and GARZA and BENAVIDES, Circuit
Judges.
BENAVIDES, Circuit Judge:
Defendant-Appellant Scott Schirmann Creech appeals his
criminal conviction and sentence for four counts of mail fraud in
violation of 18 U.S.C. § 1341, use of a fire to commit a felony
in violation of 18 U.S.C. § 844(h), and conspiracy in violation
of 18 U.S.C. § 371. Because Creech fails to demonstrate
reversible error either as to his conviction or sentence, we
affirm the judgement of the district court.
BACKGROUND
In July of 1998, Creech began operating a night club called
1 Rick’s Place located in Denton, Texas. He leased the premises
from Peggy Harvey, the owner of the building. The contents of the
building were owned by Rick Reid. Because of declining liquor
sales at Rick’s Place between the time Creech began operating the
club and August of 2000, Creech had difficulty paying all his
bills on time. Several of his checks had “bounced” due to
insufficient funds, his liquor license was revoked, and the Texas
Comptroller’s office executed several seizures of cash because of
overdue taxes. By August 16, 2000, Creech owed approximately $
70,000 to various creditors.
In early August, Creech approached a disk jockey or deejay
named Reese Haisler, who had at one time worked for Creech but
had since left Rick’s Place, about the possibility of Haisler
returning to Rick’s Place as a manager. Creech also asked
Haisler to help remodel the club to improve business. Haisler
accepted Creech’s proposal. Creech later asked Haisler to help
him set fire to the bar so that it would look like a fire had
accidentally started during the remodeling. In that way, Creech
could collect insurance money to help him with the remodeling
process. Haisler expressed discomfort with the idea but
proceeded to help Creech remove items from the bar that Creech
did not want burned in the fire.
On Monday, August 14, Creech increased the limits of the
insurance policy he had obtained in June of 2000. He raised the
recovery limit on his business personal property from $50,000 to
2 $150,000. That very day, Creech closed Rick’s Place for
renovations. Haisler and Creech purchased materials and
arranged the club to look like it was being remodeled. That
evening, Creech told Haisler that he would set up the fire to go
off sometime after Creech and Haisler had left the building. He
also said he was going to leave town under the false pretense
that he had “family issues” to attend to.
The next day, Creech called his brother’s long-time friend,
Charles Luff, from Arizona and told him that he had attempted to
burn down the club but was not sure that his attempt was
successful. He asked Charles to check the building, and if it
had not burned down, to set another fire. In exchange, Creech
promised to pay $10,000 of the insurance proceeds to Charles.
Charles discussed the offer with his twin brother, John, and they
agreed to do the job. Creech told the twins that he had left
several halogen lamps near some paint, paint thinner, and
newspaper. He said he had tried to get the halogen lamps to
ignite the newspaper and asked them to re-attempt the same set-
up.
At about 4:00 am on August 16, the Luff twins retrieved a
key to the club that Haisler, according to instructions from
Creech, had left behind the building in which the club was
located. They attempted to ignite a fire using the halogen lamps
in the club, but they were unsuccessful. Consequently, the Luff
twins decided to light the newspaper on fire with cigarette
3 lighters, which proved successful. A few days after the fire,
Creech called his insurance agent and requested that a claim be
filed.
Creech was indicted in a seven-count indictment. Count 1
charged conspiracy to (1) commit arson in violation of 18 U.S.C.
§ 844(i), (2) use fire to commit a felony in violation of 18
U.S.C. § 844(h), and (3) commit mail fraud in violation of 18
U.S.C. § 1341. Count 2 charged Creech with arson in violation of
18 U.S.C. §844(I) and aiding and abetting in violation of 18
U.S.C. § 2. Count 3 charged Creech with using fire to commit a
felony (mail fraud) in violation of 18 U.S.C. § 844(h) and aiding
and abetting in violation of 18 U.S.C. § 2. The remaining counts
charged Creech with four counts of mail fraud in violation of 18
U.S.C. § 1341 and aiding and abetting in violation of 18 U.S.C. §
2. The jury convicted on all counts except Count 2 (arson).
DISCUSSION
Creech raises thirteen different arguments in support of
reversal or re-sentencing. We treat each in turn.
I. Constitutionality of 18 U.S.C. § 844(h)
First, Creech raises a Commerce Clause challenge to 18
U.S.C. § 844(h), which provides an additional penalty for anyone
who “uses fire . . . to commit any felony which may be prosecuted
in a court of the United States.” He essentially argues that
because the statute does not require a jurisdictional nexus with
4 interstate commerce to be proved in court, it does not come under
Congress’s authority to regulate interstate commerce. Because
Creech did not raise this challenge below, we review for plain
error. See United States v. Johnson, 520 U.S. 461, 467-68 (1997).
Creech’s argument fails because § 844(h)’s jurisdictional
nexus is derived from the underlying felony, which must be one
that “may be prosecuted in a court of the United States.” By
definition, then, a violation of § 844(h) must necessarily be
based on an underlying crime that is properly within federal
jurisdiction. Cf. United States v. Pappadopoulos, 64 F.3d 522,
528 (9th Cir. 1995) (finding that “Section 844(h) does not
facially exceed Congress’s commerce power because it requires
that the underlying felony itself be one that can be prosecuted
‘in a court of the United States’”). Indeed, we have previously
found a very similar statute, 18 U.S.C. § 924(c)1, “a valid
exercise of Congress’ commerce power, even though no specific
nexus with interstate commerce is required for conviction.”
United States v. Owens, 996 F.2d 59, 61 (5th Cir. 1993).
Here, the underlying crime was mail fraud in violation of 18
U.S.C. § 1431. Creech does not contend that § 1431 is an invalid
exercise of Congress’s Commerce Clause power. Consequently, we
1 Section 924(c) provides for an additional penalty for the use, carrying, or possession of a firearm “during and in relation to any crime of violence or drug trafficking crime . . . for which the person may be prosecuted in a court of the United States. . . .”
5 find that Creech’s indictment and conviction under § 844(h) was
not unconstitutional.
II. Reasonable Doubt Instruction
Next, Creech challenges for the first time on appeal the
district court’s jury instructions regarding reasonable doubt.
We review for plain error. United States v. Daniels, 252 F.3d
411, 414 (5th Cir. 2001).
Creech argues that the district court’s “two-inference”
explanation of reasonable doubt, which instructed jurors to
acquit the defendant if the evidence equally supported two
reasonable theories, one of innocence and one of guilt, was
improper. He contends that the instruction over-represented the
amount of exculpating evidence that might create a reasonable
doubt in jurors’ minds. However, the district court’s
instructions, “taken as a whole, . . .correctly conve[yed] the
concept of reasonable doubt to the jury.” Victor v. Nebraska, 511
U.S. 1, 5 (1994). The district court emphasized, both before and
after giving the challenged instruction, the presumption of
innocence accorded to all criminal defendants and the heavy
burden borne by the government in overcoming that presumption.
The district court specifically advised the jury that “[t]he law
does not require a defendant to prove his innocence or produce
any evidence at all.” We find no plain error in the district
court’s instructions regarding reasonable doubt.
6 III. Pinkerton Instruction
Creech challenges the district court’s jury instructions
regarding the Pinkerton theory of liability in which a defendant
may be found criminally liable for the acts of co-conspirators.
He argues that the instruction did not "clearly and unequivocally
inform the jury that it had to find every element of the
substantive offense under consideration by the jury beyond a
reasonable doubt." We review this claim for plain error because
it was not raised below. See Johnson, 520 U.S. at 467-68.
We find no plain error in the district court’s instructions.
The instructions, which were virtually identical to instructions
provided in the Fifth Circuit Criminal Pattern Jury Instructions,
correctly stated the law of Pinkerton liability. See United
States v. Thomas, 348 F.3d 78, 84-85 (5th Cir. 2003) (rejecting
appellant’s argument that Pinkerton charge should not have been
given and noting that the Pinkerton charge, which followed those
outlined in the Fifth Circuit Pattern Jury Instructions,
“correctly stated the law”).
IV. Unanimity Instruction
Creech next claims that the district court violated the
Sixth Amendment by failing to sua sponte give a specific
unanimity instruction as to Counts 3 through 7 requiring the jury
to convict only upon agreeing on all elements of the offense
under at least one theory of criminal responsibility. Because
7 Creech did not raise this argument below, we review the
instruction for plain error. Johnson, 520 U.S. at 467-68.
The Sixth Amendment requires unanimity as to the elements of
the offense. Richardson v. United States, 526 U.S. 813, 817
(1999). “In the routine case, a general unanimity instruction
will ensure that the jury is unanimous on the factual basis for a
conviction, even where an indictment alleges numerous factual
bases for criminal liability.” United States v. Holley, 942 F.2d
916, 925-26 (5th Cir. 1991). However, such an instruction is
insufficient if “there exists a genuine risk that the jury is
confused or that a conviction may occur as the result of
different jurors concluding that a defendant committed different
acts.” Id. at 926 (citation and quotation marks omitted).
Here, the district court did give a general unanimity
instruction requiring the jurors to be unanimous on each count of
the indictment and Creech fails to point to any evidence of
confusion or disagreement within the jury. See United States v.
Tucker, 345 F.3d 320, 336 (5th Cir. 2003) (finding no plain error
where appellant “does not corroborate his claim of prejudicial
error with a modicum of evidence tending to show that the jury
was confused or possessed any difficulty reaching a unanimous
verdict”). Accordingly, we find no plain error.
V. Sufficiency of Indictment
Creech challenges the sufficiency of Counts 4 through 7 of
8 the indictment for failure to charge Creech with making a
materially false representation, an element of the crime of mail
fraud. See U.S. v. Bieganowski, 313 F.3d 264, 285 (5th Cir.
2002) (“Where the government charges a defendant with mail fraud,
it must prove the materiality of the fraudulent statement as an
element of the offense.”). Because Creech did not raise this
challenge below, we review it for plain error. United States v.
Partida, 385 F.3d 546, 554 (5th Cir. 2004) (applying plain error
review where, at trial, defendant failed to raise argument that
indictment was insufficient in failing to allege all elements of
a crime).
Contrary to Creech’s assertions, the indictment’s omission
of the word “material” in the mail fraud counts does not, by
itself, warrant a finding of error. See id. Rather, “an
allegation of fraud in an indictment will be sufficient so long
as ‘the facts alleged in the indictment warrant an inference that
the false statement is material.’” Id. (quoting United States v.
McGough, 510 F.2d 598, 602 (5th Cir. 1975)).
Here, each count complained of incorporated and specifically
referred to the allegations made in Count 1, which included
allegations that Creech paid someone to burn down Rick’s Place
and that Creech submitted a claim to his insurance company for
losses sustained during the fire. These facts certainly give rise
to the inference that a material false representation was made.
9 See United States v. Richards, 204 F.3d 177, 191-93 (5th Cir.
2000)(finding that wire fraud counts that incorporated
allegations from conspiracy count involving misrepresentations
about the profitability of an investment program sufficiently
warranted inference of materiality of misrepresentation)
overruled on other grounds by United States v. Longoria, 298 F.3d
367, 371 (5th Cir. 2002). We find no plain error in the
indictment.
VI. Sufficiency of the Evidence
Creech next argues that the evidence presented at trial was
insufficient to support his mail fraud convictions. Specifically,
he claims that the government failed to introduce any evidence to
prove that he made a materially false representation, an element
of mail fraud.
In evaluating the sufficiency of the evidence, we review the
record in the light most favorable to the government and
ascertain whether a rational trier of fact could have found the
essential elements of the offense beyond a reasonable doubt.
United States v. Reyes, 239 F.3d 722, 735 (5th Cir. 2001). “We
accept all credibility choices that tend to support the jury’s
verdict.” United States v. Anderson, 933 F.2d 1261, 1274 (5th
Cir. 1991).
A review of the record shows that a rational juror could
have found that Creech made a materially false representation.
10 The record shows that Creech devised and executed a scheme to
burn down Rick’s Place and then submitted a claim of loss for the
damaged property. While Creech is correct in noting that the
“notice of loss/claim” document that Creech submitted to the
insurance company was not in evidence, it was nonetheless clear
from the evidence that Creech did submit a claim. Based upon the
testimony of Don Morton, an insurance agent at Best Buy
Insurance, and Alan Renshaw, an insurance adjustor for Penn
America, a rational juror could have found that Creech falsely
claimed a legitimate business loss. We find no reversible error.
VII. Duplicity of Indictment
Creech contends that Counts 3 through 7 of the indictment
were rendered duplicitous by each count’s incorporation of Count
1.
Creech has waived this objection by not raising it below.
Objections to the indictment, such as objections on the basis of
duplicity, must be raised prior to trial. Fed. R. Crim. P.
12(b)(3) & (e) (failure to object to indictment before trial
constitutes waiver of objection); United States v. Baytank
(Houston), Inc., 934 F.2d 599, 608-09 (5th Cir. 1991) (“Even if
Baytank’s duplicity argument had merit, Baytank has waived it by
failing to object below.”).
VIII. Perjury Enhancement under U.S.S.G. § 3C1.1
Next, Creech challenges the district court’s two-level
11 enhancement of his sentence for obstruction of justice under
U.S.S.G. § 3C1.1, arguing that the district court did not make
the required findings before applying the enhancement. We review
the district court’s factual findings in applying the Sentencing
Guidelines for clear error. See United States v. Snell, 152 F.3d
345, 346 (5th Cir. 1998).2
2 Creech’s sentence was imposed under the mandatory sentencing scheme in effect at the time of Creech’s trial and sentencing. During the pendency of this appeal, the Supreme Court issued its opinion in United States v. Booker, 125 S.Ct. 738 (2005), which rendered the U.S. Sentencing Guidelines advisory. However, the opinion did not invalidate the Guidelines in their entirety. Rather, the Supreme Court instructed that district courts must still consider the Guidelines when sentencing defendants. See Booker, 125 S. Ct. at 764-65, 767; United States v. Mares, 2005 WL 503715, at *6-7 (5th Cir. 2005). This requirement indicates that Booker did not alter the standard of review we must employ, as part of our overall review of the sentence, to determine whether the district court properly interpreted and applied the Guidelines. See United States v. Villegas, 2005 WL 627963 (5th Cir. Mar. 17, 2005). Likewise, we continue to apply the same standard of review to claims of erroneous fact-finding with respect to the application of enhancements, i.e., we review for clear error. See United States v. Holmes, 2005 WL 768942, at *16 (5th Cir. Apr. 6, 2005) (reviewing for clear error a district court's fact finding made in relation to a Guidelines enhancement); see also United States v. Cacho-Bonilla, 2005 WL 851713, at *5-7 (1st Cir. Apr. 14, 2005) (reviewing the district court's Guidelines interpretation and application de novo and its fact-findings in relation to Guidelines enhancements for clear error); United States v. Parra, 2005 WL 703936, at *8-9 (7th Cir. Mar. 29, 2005) (noting that although the Guidelines are now advisory, there is a strong interest in ensuring that they are applied properly; applying pre-Booker clear-error standard to the district court's fact-finding made in relation to its denial of a downward adjustment for a lesser role in criminal activity); United States v. Doe, 398 F.3d 1254, 1257 & n.5 (10th Cir. 2005) ("When reviewing a district court's application of the sentencing Guidelines, we review legal questions de novo and we review any factual findings for clear error . . . ."); United States v.
12 Before applying a sentence enhancement resulting from a
defendant’s trial testimony, “a district court must review the
evidence and make independent findings necessary to establish a
willful impediment to or obstruction of justice, or an attempt to
do the same . . . .” United States v. Dunnigan, 507 U.S. 87, 95
(1993). While it is preferable that the district court “address
each element of the alleged perjury in a separate and clear
finding,” the district court’s findings are sufficient if “the
court makes a finding of an obstruction of, or impediment to,
justice that encompasses all of the factual predicates for a
finding of perjury.” Id.
We find that the district court fulfilled its duty. During
the sentencing hearing, the district judge stated, “The Court
finds that the Defendant did testify falsely with regard to the
conspiracy aspect of the case and, therefore, sustains the
Government’s objection number one.” Although it did not address
each element necessary for a finding of perjury, the court’s
statement, when read in light of the immediately preceding
discussion between the court and both parties regarding the
Hazelwood, 398 F.3d 792, 795, 800-01 (6th Cir. 2005) (maintaining pre-Booker standards for Guidelines interpretation and enhancement fact-findings); United States v. Rodriguez, 398 F.3d 1291, 1296 (11th Cir. 2005) (reviewing enhancement fact findings for clear error); United States v. Hughes, 401 F.3d 540, 556-60 (4th Cir. 2005) (reviewing Guidelines interpretation de novo and fact findings in relation to Guidelines enhancements for clear error).
13 jury’s conviction on the conspiracy count regardless of Creech’s
testimony that he played no role in the conspiracy, encompassed
all the factual predicates for such a finding. See United States
v. Morris, 131 F.3d 1136, 1140 (5th Cir. 1997) (upholding the
district court’s application of an enhancement for perjury under
U.S.S.G. § 3C1.1 where the district court had found that the
defendant “was untruthful at trial with respect to material
matters in this case”).
IX. Validity of Sentencing Enhancements
Creech also argues that his sentence is improper under
Blakely and Booker because the judge relied on facts not found by
a jury beyond a reasonable doubt in calculating his sentence
under the U.S. Sentencing Guidelines. Blakely v. Washington, ---
U.S. ----, 124 S.Ct. 2531 (2004); United States v. Booker, ---
U.S. ----, 125 S.Ct. 738 (2005). Because he did not raise this
issue below, we review for plain error. See United States v.
Mares, --- F.3d ----, 2005 WL 503715 at *7 (5th Cir. March 4,
2005).
Creech’s base offense level for each of Counts 1
(conspiracy) and 4-7 (mail fraud) was calculated at 20. See
U.S.S.G. § 1B1.2(d). The district court applied a two-level
enhancement for obstruction of justice under U.S.S.G. § 3C1.1 and
a two-level enhancement for Creech’s role in the conspiracy under
U.S.S.G. § 3B1.1(c). Under the Guidelines, the resulting offense
14 level of 24, when combined with a Criminal History Category I,
yielded a range of 51 to 63 months in prison. The district court
assessed a sentence of 51 months for each of Counts 1 and 4-7, to
run concurrently. Finally, the judge imposed a 10 year sentence
for Creech’s conviction on Count 3 (using fire to commit a
felony), to run consecutive to the 51 months already assessed as
required by 18 U.S.C. § 844(h). In total, Creech was sentenced to
171 months imprisonment.
We may only correct any error in Creech’s sentence if “there
is (1) error, (2) that is plain, and (3) that affects substantial
rights. If all three conditions are met an appellate court may
then exercise its discretion to notice a forfeited error but only
if (4) the error seriously affects the fairness, integrity, or
public reputation of judicial proceedings.” Id. at *8 (citations
and quotation marks omitted). The first prong of the plain error
test is met here. Creech’s sentence was enhanced based on facts
found by the judge but not by the jury under a mandatory
Guidelines regime in violation of the Sixth Amendment. See id.
The enhancement under U.S.S.G. § 3B1.1(c), for example, required
the judge to find that Creech was “an organizer, leader, manager,
or supervisor” in the criminal activity.
The error is also plain. See Johnson v. United States, 520
U.S. 461, 468(1997) (holding that error is plain for purposes of
plain error review as long as the law regarding the issue is
15 settled at the time of appellate consideration).
The third prong of plain error review, which requires the
appellant to show that the error affected substantial rights, is
not met here. Creech points to the district judge’s expressions
of sympathy for his situation and his family’s plight3 and the
judge’s explanations of the mandatory nature of the Guidelines4.
However, mere sympathy toward either the defendant or the
defendant’s family is not indicative of a judge’s desire to
sentence differently under a non-mandatory Guidelines regime.
Neither is a sentencing judge’s mere summary of sentencing law as
it existed at the time sufficient, where, as here, the summary
contains no indication that the district court wished to impose a
different sentence. Accordingly, Creech has not met his burden
of “demonstrating that the result would have likely been
different had the judge been sentencing under the Booker advisory
3 Specifically, Creech directs our attention to a portion of the sentencing hearing in which the district court rejected Creech’s motion for a downward departure. In declining to hear any more statements from Creech’s family, the district court stated, “[T]he court is sympathetic, Mr. Creech, to your family’s plight and your situation. It’s a very sad day when someone with your abilities and your gifts has made such a poor judgment as you did in this incident, which I’m sure at the time that you did it you never foresaw that the consequences could be such as they are. . . .” 4 The district court explained to Creech, “You . . . elected to go to trial. The jury found you guilty. The Congress of the United States has passed Sentencing Guidelines, which because of the nature of the crime [of which] you were convicted, imposes certain guideline ranges that this Court cannot depart from except in extraordinary circumstances, and your case does not rise to that level.”
16 regime rather than the pre-Booker mandatory regime,” Mares, 2005
WL 503715, at *9, and we thus find no plain error in Creech’s
sentence.
X. Sentence Stacking Pursuant to 18 U.S.C. § 844(h)
Creech challenges the application of the “stacking”
provision of 18 U.S.C. § 844(h) to his sentence. He contends
that this “stacking” provision is limited to situations in which
the defendant used an explosive, rather than fire, in the
commission of a felony. Thus, he argues that because the count
in which he was charged with violating § 844(h) only alleged the
use of fire, not explosives, his conviction under § 844(h) did
not trigger the application of the stacking provision.
Because Creech did not raise this argument below, his claim
is reviewed for plain error. Johnson, 520 U.S. at 467-68.
The text of § 844(h) prohibits the use of “fire or an explosive
to commit any felony which may be prosecuted in a court of the
United States” and the carrying of an explosive during the
commission of a felony, § 844(h)(1) and (2). The subsection
provides for an additional sentence, beyond the sentence for the
underlying felony, of 10 years imprisonment for a first
conviction under the subsection. Id. The additional 10 years
“imposed under this subsection” shall not “run concurrently with
any other term of imprisonment including that imposed for the
felony in which the explosive was used or carried.”
17 The specific reference to an explosive-related felony does
not render the stacking provision applicable only to offenses
involving explosives. Quite to the contrary, the statute’s
language specifically dictates that the additional term imposed
under the section, which applies equally to explosive- and fire-
related felonies, run consecutively to “any other term of
imprisonment.” Moreover, the statute in no way attempts to limit
the stacking provision to felonies in which explosives are used
but explicitly merely includes such felonies. Cf. United States
v. Grassie, 237 F.3d 1199, 1214-16 (10th Cir. 2001) (holding that
§ 844(h)’s stacking provision applies both to fire- and
explosive-related felonies); United States v. Colvin, 353 F.3d
569, 574 (7th Cir. 2003) (stating, “we agree with the Tenth
Circuit that the structure of the statute suggests that Congress
intended to treat fires and explosives as interchangeable” in
holding that consecutive sentences for violations of § 844(h)
does not violate double jeopardy bar); Sicurella v. United
States, 157 F.3d 177, 178-79 (2nd Cir. 1998) (reaffirming an
earlier holding that “§ 844(h)’s requirement of consecutive
sentencing does apply to fire-related felonies”) . Accordingly,
we find no plain error in the application of § 844(h)’s stacking
provision to Creech’s sentence.
XI. Failure to Charge Pinkerton and
Aiding and Abetting Theories of Liability
18 Next, Creech argues that because the elements necessary to
find him guilty under either an aiding and abetting or Pinkerton
theory of criminal liability were not set forth in the indictment
but nonetheless offered to the jury as theories of criminal
liability, the indictment violates the Fifth Amendment’s right to
“presentment or indictment of a Grand Jury.” Because Creech did
not raise this argument before the district court, the
appropriate standard of review is for plain error. Partida, 385
F.3d at 554.
Creech acknowledges that our precedent permits district
courts to give juries instructions regarding criminal liability
for aiding and abetting and under Pinkerton even though those
theories were not set forth in the indictment. See, e.g.,
Montoya v. Scott, 65 F.3d 405, 415 (5th Cir. 1995). However, he
maintains that the U.S. Supreme Court’s decisions in Apprendi v.
New Jersey, 530 U.S. 466 (2000), Ring v. Arizona, 536 U.S. 584
(2002), and Blakely v.Wasington, 124 S. Ct. 2531 (2004), call
into question that long-standing practice. Nevertheless, we see
nothing in those cases addressing the Fifth Amendment argument
raised by Creech in this case. Indeed, courts have continued to
approve Pinkerton and aiding and abetting instructions even
without such a theory charged in the indictment. See, e.g.,
United States v. Hayes, 391 F.3d 958, 963 (8th Cir. 2004) (“[T]he
District Court was warranted in giving this [Pinkerton]
19 instruction, even though co-conspirator liability was not charged
in the indictment.”); United States v. Lopez, 271 F.3d 472, 480
(3rd Cir. 2001) (“[W]e have little difficulty following our
sister circuit courts of appeals in determining that a conspiracy
need not be charged in order for Pinkerton's doctrine to
apply.”).
XII. Double Jeopardy
Finally, Creech argues that his sentences for (1) the use
fire during the commission of mail fraud in violation of 18
U.S.C. § 844(h) and (2) mail fraud in violation of 18 U.S.C. §
1341 are two separate punishments for the same offense and
therefore violative of double jeopardy jurisprudence.
Creech acknowledges that the U.S. Supreme Court’s opinion in
Missouri v. Hunter, 459 U.S. 359 (1983), demands that this issue
be resolved against him. We must leave to the U.S. Supreme Court
the “prerogative of overruling its own decisions.” Rodriguez de
Quijas v. Shearson/American Exp., Inc., 490 U.S. 477, 484 (1989).
CONCLUSION
For the foregoing reasons, we AFFIRM Creech’s conviction and
20 EMILIO M. GARZA, Circuit Judge, concurring in part and dissenting
in part:
I concur in the judgment and the excellent opinion of Judge
Benavides except for footnote 2. Although, I agree with footnote
2 that Booker did not invalidate the Guidelines in their entirety
and that district courts must still “consider” the Guidelines
when sentencing defendants, I cannot agree that this “indicates
that Booker did not alter the standard of review we must employ
when reviewing a court’s interpretation and application of the
Guidelines.” For this proposition the majority cites dicta from
United States v. Villegas, No. 03-21220, 2005 WL 627963 (5th Cir.
Mar. 17, 2005) (a plain error case that did not apply proffered
standard of review). See also Cacho-Bonilla, 2005 WL 851713, at
*6 (citing pre-Booker case law and stating, without discussion,
that it reviews questions of law under the Guidelines de novo);
Doe, 398 F.3d at 1257 (same); Hazelwood, 398 F.3d at 801 (same); and Hughes, 401
F.3d at 557 (same).5 I believe footnote 2 and Villegas’s dicta contravene the clear language in
5 These cases, like the majority, seem to find it more comfortable to return to the default position of appellate review; namely, de novo review for legal issues and clearly erroneous review for factual issues. See, e.g., Hazelwood, 398 F.3d at 801 (“district courts are required by statute to consult [the Guidelines], and since a district court’s misinterpretation of the Guidelines effectively means that it has not properly consulted the Guidelines, we hold that it was error for the district court to apply the threat of death enhancement in this case”) (emphasis in original). Clearly, this position makes perfect sense in a mandatory scheme. It is, however, contrary to an advisory one. The majority, like the court in Hazelwood, equates “misinterpretation of the guidelines” with “not properly consulted the guidelines,” a total misreading of Booker.
21 Booker.
Nothing in Booker suggests a de novo review. Rather, Booker instructs courts of appeals
to “review sentencing decisions for unreasonableness.” Booker, 125 S. Ct. at 767 (emphasis
added). Significantly, Booker severed and excised § 3742(e), “the provision . . . [requiring] de
novo review of departures from the applicable Guidelines range.” Id. at 763. Thus, I believe we
review sentencing decisions for unreasonableness regardless of whether the district court applies
the Guidelines and, in cases where the district court does apply the Guidelines, regardless of
whether it does so correctly.
Villegas and thus the majority draw support for continued de novo/clearly erroneous
review in part from 18 U.S.C. § 3742(f)(1). This reliance is misplaced. Section 3742(f)(1),
while not expressly excised, must now be read in light of the excised § 3742(e), the provision that
sets forth standards of review on appeal, including de novo review of departures from the
applicable Guideline range. Having excised § 3742(e), we no longer review sentences for
“violation of law” and “incorrect application,”18 U.S.C. § 3742(e)(1), (2), but rather for
unreasonableness. Booker, 125 S. Ct. at 767. As Justice Scalia correctly wrote, “[i]t is
incomprehensible how or why [§ 3742(f)(1)] can be combined with an obligation upon the
appellate court to conduct its own independent evaluation of the ‘reasonableness’ of a sentence.”
Booker, 125 S. Ct. at 791, n.6 (Scalia, J., dissenting). In his majority opinion, Justice Breyer
responds to Justice Scalia’s mystification by acknowledging that “some provisions [of the
Guidelines] will apply differently from the way Congress had originally expected.” Id. at 767.
The continuing validity of § 3742(f)(1) is in serious doubt. I cannot agree, therefore, that §
3742(f)(1) lends force to a de novo standard of review.
22 By replacing Booker’s unreasonableness standard of review with a de novo review, the
court is essentially reimposing 18 U.S.C. § 3553(b)(1), the severed provision that made the
Guidelines mandatory. Booker recognizes that de novo review is used in conjunction with
mandatory systems. Booker states, “[i]n 2003, Congress modified the pre-existing text, adding a
de novo standard of review for departures and inserting cross-references to § 3553(b)(1). In light
of today’s holding, the reasons for these revisions))to make Guidelines sentencing even more
mandatory than it had been))have ceased to be relevant.” Booker, 125 S. Ct. at 765 (citation
omitted). Following Booker’s admonition, de novo review is inconsistent with an advisory
system.
Here, the district court properly interpreted and applied the Guidelines, resulting in a
reasonable sentence. United States v. Mares, No. 03-21035, 2005 WL 503715, at *7 (5th Cir.
Mar. 4, 2005) (“Given the deference due the sentencing judge’s discretion under the
Booker/Fanfan regime, it will be rare for a reviewing court to say . . . a sentence [in which the
district court properly applied the Guidelines] is ‘unreasonable.’”). This statement from Mares is
significant, for it explicitly recognizes the proper standard of review. Footnote 2 and the dicta in
Villegas, however, suggest that the improper application makes the sentence unreasonable per se.
I agree that to ascertain whether the Guidelines have been applied properly, a preliminary step in
our review, requires de novo review of legal issues and clearly erroneous review of factual issues.
However, any determination that either or both determinations are error does not end the inquiry
as it did pre-Booker. The court must take the additional step to determine whether the sentence
decision is unreasonable in light of the factors listed in § 3553(a). Booker, 125 S. Ct. at 766
(“Section 3553(a) remains in effect, and sets forth numerous factors that guide sentencing. Those
23 factors in turn will guide appellate courts, as they have in the past, in determining whether a
sentence is unreasonable.”). In reviewing for reasonableness, we must remember that “the most
important point is that an unreasonable application of federal law is different from an
incorrect application of federal law.” Williams v. Taylor, 529 U.S. 362, 410 (2000) (discussing
unreasonable applications under AEDPA) (emphasis in original). Here, the district court’s
sentence was a correct application of the advisory Guidelines, and I agree that we should hold
Creech’s sentence reasonable. Thus, I concur in the judgment and in most of the opinion except
for this most important, but erroneous, footnote.