IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT _______________
m 01-51131 Summary Calendar _______________
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
VERSUS
MICHAEL LEON GORE,
Defendant-Appellant.
_________________________
Appeal from the United States District Court for the Western District of Texas _________________________
July 10, 2002
Before JONES, SMITH, and I. EMILIO M. GARZA, Circuit Judges. Darrian Taylor was the three-year-old son of Sarah Dirck, who was on active military JERRY E. SMITH, Circuit Judge: duty stationed at Fort Hood, Texas. Gore and Dirck were engaged to be married and were Michael Gore appeals his sentence o f life living together at the base in Fort Hood, but imprisonment for second degree murder in vio- Gore was not Taylor’s biological father. In lation of 18 U.S.C. § 1111 (murder on a late April 2001, Dirck left Fort Hood for mil- government reservat ion). Finding no itary training and left Taylor in Gore’s care, reversible error, we affirm. giving Gore a power of attorney, medical in- surance information, access to her bank account, and the keys to her house and car. Ten days later, on returning to Fort Hood errors he raises on appeal, our review is only for a one-day respite from training, Dirck for plain error, FED. R. CRIM. P. 52(b); United noticed bruising around Taylor’s eyes and a States v. Olano, 507 U.S. 725 (1993). The change in his mood. Gore explained that Tay- plain error test has four prongs: (1) error lor had slipped in the shower but did not need (2) that is plain, and (3) affects substantial hospitalization. That night, Dirck returned to rights, (4) where a failure to recognize the er- her training site. Ten days later, Gore turned ror would “seriously affect the fairness, himself in to police regarding the events of the integrity or public reputation of judicial previous twenty days. proceedings.” Id. at 732 (quoting United States v. Young, 470 U.S. 1 (1985)). Gore admitted to disciplining Taylor with a belt or by “popping” him in the chest. Finally, III. Gore reprimanded Taylor for “acting up” by Gore’s primary legal contention is that the hitting him in the chest so hard he defecated on district court failed to abide by the articulation himself. Taylor also experienced problems requirement of 18 U.S.C. § 3553(c), obliging breathing after this blow to the chest and was a district court to “state in open court” the rea- unable to get up off the floor. Gore then put son for the departure from the sentencing Taylor to bed; when he checked on him a few guideline. 18 U.S.C. § 3553(c). Although the hours later, he was unresponsive. His eyes court failed to explain its departure in open were open but unblinking, and he had coughed court, it later offered a written explanation up some red mucus. Gore tried to get a following the recommendation in the PSR. response out of Taylor but was unsuccessful. Gore also noticed Taylor was not breathing, This court has yet to address the but did not take him to the hospital for fear of articulation requirement of § 3553(c)(2) in the getting himself or Dirck in trouble. Finally, plain error context.1 The text of the statute Gore fled and twice tried to commit suicide. (“in open court”) leaves no doubt that although it did issue written reasons, the Gore pleaded guilty of second-degree mur- district court committed error that is plain by der and was informed that the maximum failing orally to explain the reasons for penalty was life in prison. He waived his right departure. Whether this error affected Gore’s to appeal with the exception of an upward substantial rights is a harder question, one we departure from the guideline range. The pre- ultimately resolve against him. sentence report (“PSR”) mentioned the possibility of an upward departure for extreme We draw support for this conclusion from conduct. The district court did depart upward, four sources. First, our own jurisprudence re- imposing a life sentence (a seven-level upward garding a cousin of § 3553(c)(2)’s articulation departure from the guideline range). requirement suggests there is no plain error in Gore’s case. Section 3553(c)’s articulation re- II. quirement also applies to a district court’s de- Ordinarily, our review of a sentence is for cision whether to impose a consecutive or con- abuse of discretion, Koon v. United States, 518 U.S. 81, 100 (1996), but because Gore did not object in the district court to any of the 1 Section 3553(c)(2) applies the articulation requirement to departures from the guidelines.
2 current sentence. See, e.g., United States v. the plain error standard. Id. Londono, 285 F.3d 348, 356 (5th Cir. 2002). We repeatedly have held that the failure to Finally, Gore cannot show plain error be- articulate the reasoning behind this decision in cause the ultimate goal of § 3553 is to permit open court is not plain error.2 By extension, effective appellate review of sentencing.4 The the failure to follow § 3553(c) in justifying a First Circuit has explicitly relied on a district departure does not ipso facto equal plain error. court’s reference to a PSR as an indicator of sufficient specificity to allow appellate review. United States v. Cruz, 981 F.2d 613, 617-18 Second, the Ninth Circuit, in dictum, has (1st Cir. 1992). Here, the actions of the explained that there is no plain error where a district court are such that we can effectively district court fails to articulate, in open court, review the basis of the decision to depart. the reasons for departure. In United States v. Vences, 169 F.3d 611, 613 (9th Cir. 1999), the These authorities teach that the key aim of district court made no effort to explain the de- the articulation requirement is satisfied if an parture in open court but did engage counsel appeals court can review the reason for the de- in a colloquy that implicitly indicated the parture. Gore, accordingly, cannot show plain court’s reasoning. The court of appeals error, because the written statement of reasons concluded that a remand to comply with the points to the PSR, which in turn directs our technical dictates of § 3553 would be a “mean- attention to a U.S.S.G. § 5K2.8 departure ingless formality.” Id. Although there was no based on the extreme cruelty of Gore’s acts. such colloquy in Gore’s case, the written This reference is sufficient to allow meaningful statement of reasons would render remand a appellate review. meaningless formality. IV. Third, the Eighth Circuit has decided that a Gore challenges his sentence as an district court’s adoption of the PSR is unreasonable departure from the guideline sufficient to avoid plain error where that court maximum. Citing his youth (twenty when the has failed to follow the “open court” provision crime was committed), Gore notes that the life of § 3553.3 If the defendant does not object sentence more than doubles (assuming normal and there is evidence to sustain the en- hancement, the error is not reversible under 4 See, e.g., United States v.
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IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT _______________
m 01-51131 Summary Calendar _______________
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
VERSUS
MICHAEL LEON GORE,
Defendant-Appellant.
_________________________
Appeal from the United States District Court for the Western District of Texas _________________________
July 10, 2002
Before JONES, SMITH, and I. EMILIO M. GARZA, Circuit Judges. Darrian Taylor was the three-year-old son of Sarah Dirck, who was on active military JERRY E. SMITH, Circuit Judge: duty stationed at Fort Hood, Texas. Gore and Dirck were engaged to be married and were Michael Gore appeals his sentence o f life living together at the base in Fort Hood, but imprisonment for second degree murder in vio- Gore was not Taylor’s biological father. In lation of 18 U.S.C. § 1111 (murder on a late April 2001, Dirck left Fort Hood for mil- government reservat ion). Finding no itary training and left Taylor in Gore’s care, reversible error, we affirm. giving Gore a power of attorney, medical in- surance information, access to her bank account, and the keys to her house and car. Ten days later, on returning to Fort Hood errors he raises on appeal, our review is only for a one-day respite from training, Dirck for plain error, FED. R. CRIM. P. 52(b); United noticed bruising around Taylor’s eyes and a States v. Olano, 507 U.S. 725 (1993). The change in his mood. Gore explained that Tay- plain error test has four prongs: (1) error lor had slipped in the shower but did not need (2) that is plain, and (3) affects substantial hospitalization. That night, Dirck returned to rights, (4) where a failure to recognize the er- her training site. Ten days later, Gore turned ror would “seriously affect the fairness, himself in to police regarding the events of the integrity or public reputation of judicial previous twenty days. proceedings.” Id. at 732 (quoting United States v. Young, 470 U.S. 1 (1985)). Gore admitted to disciplining Taylor with a belt or by “popping” him in the chest. Finally, III. Gore reprimanded Taylor for “acting up” by Gore’s primary legal contention is that the hitting him in the chest so hard he defecated on district court failed to abide by the articulation himself. Taylor also experienced problems requirement of 18 U.S.C. § 3553(c), obliging breathing after this blow to the chest and was a district court to “state in open court” the rea- unable to get up off the floor. Gore then put son for the departure from the sentencing Taylor to bed; when he checked on him a few guideline. 18 U.S.C. § 3553(c). Although the hours later, he was unresponsive. His eyes court failed to explain its departure in open were open but unblinking, and he had coughed court, it later offered a written explanation up some red mucus. Gore tried to get a following the recommendation in the PSR. response out of Taylor but was unsuccessful. Gore also noticed Taylor was not breathing, This court has yet to address the but did not take him to the hospital for fear of articulation requirement of § 3553(c)(2) in the getting himself or Dirck in trouble. Finally, plain error context.1 The text of the statute Gore fled and twice tried to commit suicide. (“in open court”) leaves no doubt that although it did issue written reasons, the Gore pleaded guilty of second-degree mur- district court committed error that is plain by der and was informed that the maximum failing orally to explain the reasons for penalty was life in prison. He waived his right departure. Whether this error affected Gore’s to appeal with the exception of an upward substantial rights is a harder question, one we departure from the guideline range. The pre- ultimately resolve against him. sentence report (“PSR”) mentioned the possibility of an upward departure for extreme We draw support for this conclusion from conduct. The district court did depart upward, four sources. First, our own jurisprudence re- imposing a life sentence (a seven-level upward garding a cousin of § 3553(c)(2)’s articulation departure from the guideline range). requirement suggests there is no plain error in Gore’s case. Section 3553(c)’s articulation re- II. quirement also applies to a district court’s de- Ordinarily, our review of a sentence is for cision whether to impose a consecutive or con- abuse of discretion, Koon v. United States, 518 U.S. 81, 100 (1996), but because Gore did not object in the district court to any of the 1 Section 3553(c)(2) applies the articulation requirement to departures from the guidelines.
2 current sentence. See, e.g., United States v. the plain error standard. Id. Londono, 285 F.3d 348, 356 (5th Cir. 2002). We repeatedly have held that the failure to Finally, Gore cannot show plain error be- articulate the reasoning behind this decision in cause the ultimate goal of § 3553 is to permit open court is not plain error.2 By extension, effective appellate review of sentencing.4 The the failure to follow § 3553(c) in justifying a First Circuit has explicitly relied on a district departure does not ipso facto equal plain error. court’s reference to a PSR as an indicator of sufficient specificity to allow appellate review. United States v. Cruz, 981 F.2d 613, 617-18 Second, the Ninth Circuit, in dictum, has (1st Cir. 1992). Here, the actions of the explained that there is no plain error where a district court are such that we can effectively district court fails to articulate, in open court, review the basis of the decision to depart. the reasons for departure. In United States v. Vences, 169 F.3d 611, 613 (9th Cir. 1999), the These authorities teach that the key aim of district court made no effort to explain the de- the articulation requirement is satisfied if an parture in open court but did engage counsel appeals court can review the reason for the de- in a colloquy that implicitly indicated the parture. Gore, accordingly, cannot show plain court’s reasoning. The court of appeals error, because the written statement of reasons concluded that a remand to comply with the points to the PSR, which in turn directs our technical dictates of § 3553 would be a “mean- attention to a U.S.S.G. § 5K2.8 departure ingless formality.” Id. Although there was no based on the extreme cruelty of Gore’s acts. such colloquy in Gore’s case, the written This reference is sufficient to allow meaningful statement of reasons would render remand a appellate review. meaningless formality. IV. Third, the Eighth Circuit has decided that a Gore challenges his sentence as an district court’s adoption of the PSR is unreasonable departure from the guideline sufficient to avoid plain error where that court maximum. Citing his youth (twenty when the has failed to follow the “open court” provision crime was committed), Gore notes that the life of § 3553.3 If the defendant does not object sentence more than doubles (assuming normal and there is evidence to sustain the en- hancement, the error is not reversible under 4 See, e.g., United States v. DeMartino, 112 F.3d 75, 81 (2d Cir. 1997) (emphasizing the need 2 for an explanation of the departure sufficient to United States v. Gonzalez, 250 F.3d 923, 931 (5th Cir. 2001); United States v. Izaguirre-Loso- permit “meaningful appellate review”); United ya, 219 F.3d 437, 441-42 (5th Cir. 2000), cert. States v. Loy, 191 F.3d 360, 371 (3d Cir. 1999) denied, 531 U.S. 1097 (2001). (stating that the reasons must be such that “appellate review does not ‘flounder in the zone of 3 United States v. Evans, 272 F.3d 1069, 1089 speculation’”) (quoting United States v. Edgin, 92 (8th Cir. 2001), cert. denied, 122 S. Ct. 1638 F.3d 1044, 1049 (10th Cir. 1997)); United States (2002), and cert. denied, ___ S. Ct. ___, 2002 v. Slater, 971 F.2d 626, 633 (10th Cir. 1992) U.S. LEXIS 3503 (May 13, 2002), and cert. de- (same); United States v. McClellan, 164 F.3d 308, nied, ___ S. Ct. ___ , 2002 U.S. LEXIS 3737 310 (6th Cir. 1999) (explaining that reasoning (May 20, 2002). must “permit an informed appellate review”).
3 life expectancy) the maximum guideline fired the fatal shots. Recognizing that the sentence he was eligible for without sentence was “tough,” we declined to find departure.5 Our review of the reasonableness plain error where the district court based the of a sentence departure must take account of departure on the brutality of the act. Id. the “amount and extent of the departure in at 134.6 light of the grounds for departing.” Williams v. United States, 503 U.S. 193, 203 (1992). The coroner’s report detailed a recurring This reasonableness review must be filtered and brutal form of abuse that ultimately result- through two important precedents of this ed in Taylor’s death. The district court circuit. plausibly could conclude from this information that this second-degree homicide was First, we ordinarily do not require a district especially heinous and cruel when compared to court to explain the amount, but only the fact, other second-degree murders. We find no of the departure. United States v. Huddleston, plain error. 929 F.2d 1030 (5th Cir. 1991). Second, we must pay due respect to a trial court’s greater V. intimacy with the case. Because our Gore contends that the district court im- familiarity is limited by having contact only permissibly double-counted conduct in with the documents, we are “reluctant to tread calculating the initial guideline range and the with too heavy a step upon the district court’s upward departure. Without citation to discretion.” United States v. Lara, 975 F.2d authority, Gore notes that the PSR alluded to 1120, 1126 (5th Cir. 1992). conduct that was also counted toward the initial guideline range in recommending an The mere multiplication of Gore’s sentence upward departure. Nevertheless, the court does not suggest any error in the departure. referenced only that part of the PSR that United States v. Roberson, 872 F.2d 597, 606 recommended departure based on the extreme n.7 (5th Cir. 1989) (approving a multiple of nature of the conduct. This was not plain 3.5 and noting multiples of 4, 5, and 3); Lara, error. 975 F.2d at 1126 (upholding a multiple of 7). Nor does the justification offered by the district court fail to support the reasonableness of the departure under plain error review.
In United States v. Singleton, 49 F.3d 129 (5th Cir. 1995) (opinion on petition for rehear- ing), we upheld a departure premised on the 6 Singleton involved a departure more severe cruelty and brutality of a carjacking resulting than in this caseSSto life from a guideline range of in murder where the defendant may not have 108-120 months. Id. at 131. See also United States v. Loud Hawk, 245 F.3d 667 (8th Cir. 2001) (ten-level upward departure based on extreme con- 5 The maximum Gore was eligible for under the duct in connection with second-degree murder); guidelines was 210 months. Using a life United States v. Roston, 168 F.3d 377 (9th Cir. expectancy of 70, he is now facing a sentence of 1999) (seven-level departure for extreme conduct nearly 600 months. in connection with second-degree murder).
4 VI. calculate the new sentence.7 Gore’s argument Gore challenges the method used to boils down to a challenge to the propriety of allowing the relatives of the vic- timSSTaylorSSto testify at the sentencing hearing. Gore relies on 18 U.S.C. § 3553(b), which reads, in relevant part,
The court shall impose a sentence of the kind, and within the range, referred to in subsection (a)(4) unless the court finds that there exists an aggravating or mitigating circumstance of a kind, or to a degree, not adequately taken into consideration by the Sentencing Commission in formulating the guidelines that should result in a sentence different from that described. In determining whether a circumstance was adequately taken into consideration, the court shall consider only the sentencing guidelines, policy statements, and official commentary of the Sentencing Commission.
18 U.S.C. § 3553(b). Gore reads this passage to bar consideration of factors not included in the Guidelines Manual. By extension, Gore argues that the victim testimony used at his sentencing hearing contravenes this statutory command.
7 Our decisions in United States v. Lambert, 984 F.2d 658 (5th Cir. 1993) (en banc), and United States v. Ashburn, 38 F.3d 803 (5th Cir. 1994) (en banc), do not suggest reversal. These cases dealt only with the proper method of upwardly departing on the criminal history axis, not the offense level axis of the guideline table. Al- though we express no opinion on this matter, we note that our cases on upward departure on this axis do not involve the more detailed methodology of the criminal history cases. See, e.g., Singleton; United States v. Hawkins, 87 F.3d 722 (5th Cir. 1996).
5 Gore is wrong. The purpose of the above- quoted passage is to allow a district court to consider those factors the Sentencing Commission could not include in its generic punishment scheme precisely because that scheme is intended to be generic. This passage specifically allows the sentencing court to consider factors that, by their very nature, are not reducible to the generalities with which the bulk of the guidelines manual concerns itself. See United States Sentencing Commission, Guidelines Manual, § 5K2.0 (Nov. 2000).
Gore’s specific argument also lacks merit. The type of testimony heard at his sentencing hearing is explicitly authorized by the rules of criminal procedure. FED. R. CRIM. P.32- (c)(3)(E), (f)(1)(B). There was no error, let alone plain error, in the decision to allow victim testimony.
VII. Gore challenges his sentence on the ground that the upward departure implies that the plea to second-degree murder did not adequately reflect the severity of the act and should not have been approved. Gore’s argument is be- lied by the statutory maximum for second- degree murder. 18 U.S.C. § 1111(b). If a life sentence for a conviction for second-degree murder implied the plea should not be approved, the statutory maximum would be meaningless. The existing maximum reflects a legislative judgment that some second-degree murders warrant life imprisonment.
AFFIRMED.