November 3, 1995 UNITED STATES COURT OF APPEALS UNITED STATES COURT OF APPEALS FOR THE FIRST CIRCUIT FOR THE FIRST CIRCUIT
No. 95-1094
UNITED STATES OF AMERICA,
Appellee,
v.
LUIS RAUL RIVERA-GOMEZ,
Defendant, Appellant.
ERRATA SHEET ERRATA SHEET
The opinion of this court issued on October 12, 1995, is corrected as follows:
On page 7, line 20, change "is only admissible" to "may be excluded"
UNITED STATES COURT OF APPEALS UNITED STATES COURT OF APPEALS FOR THE FIRST CIRCUIT FOR THE FIRST CIRCUIT
APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF PUERTO RICO
[Hon. Hector M. Laffitte, U.S. District Judge]
Before
Selya and Stahl, Circuit Judges,
and Gorton,* District Judge.
Carlos A. Vazquez-Alvarez, Assistant Federal Public
Defender, with whom Benicio Sanchez Rivera, Federal Public
Defender, was on brief, for appellant. Jose A. Quiles-Espinosa, Senior Litigation Counsel, with
whom Guillermo Gil, United States Attorney, and Edwin O. Vazquez,
Assistant United States Attorney, were on brief, for the United States.
October 12, 1995
*Of the District of Massachusetts, sitting by designation.
SELYA, Circuit Judge. A jury convicted defendant- SELYA, Circuit Judge.
appellant Luis Raul Rivera-Gomez on three counts of carjacking,
18 U.S.C. 2119, and three counts of aiding and abetting the use
and carriage of firearms during and in relation to a crime of
violence, 18 U.S.C. 2(a), 924(c). In terms of prison time,
the trial judge imposed concurrent 180-month incarcerative
sentences for the first two carjacking counts, a sentence of life
imprisonment for the third carjacking, and concurrent sentences
of five years, to run consecutively to the other sentences, for
the firearms counts. This appeal challenges an evidentiary
ruling, a case management ruling, and the constitutionality of
the life sentence.
I. BACKGROUND I. BACKGROUND
The evidence adduced at trial involved three separate
carjacking incidents. We sketch the facts as the jury
warrantably could have found them, resolving all evidentiary
conflicts in the government's favor and adopting all reasonable
inferences therefrom that support the verdict.
The first carjacking occurred on December 3, 1993. The
victim, Cesar Correa Rivera (Correa), had driven a friend home.
While they were parked outside her abode, a vehicle nudged
Correa's car. Not knowing the vehicle or trusting its occupants,
Correa tried to flee. After a brief chase, the rogue vehicle
blocked Correa's path and two armed men alighted. One of the
men, later identified as Jose Roman Hernandez (Roman), struck
Correa on the head twice with his revolver and ordered him to
relinquish his valuables. Meanwhile, the second man, later
identified as Rivera-Gomez, threatened Correa's companion with a
gun. Appellant eventually ordered the victims to kneel and stare
at the ground. Roman then departed in the carjackers' original
vehicle, leaving appellant to drive Correa's automobile.
Four days later, the same two marauders assaulted an
elderly retired couple, Rufino Garcia Maldonado (Garcia) and his
wife, Clara. The assault occurred when Clara left the couple's
car to open the gate leading into their driveway. One man
threatened her with a weapon and forced her to the ground, while
the second man pointed a gun at Garcia's head, ordered him out of
the car (a red Suzuki), and relieved him of his wallet. The
robber then struck Garcia on the head, and he and his comrade
drove off in the Suzuki.
A short time later, the Garcias' Suzuki, with appellant
at the wheel, pulled alongside a Mazda RX-7 operated by Reynaldo
Luciano Rivera (Luciano). Roman, then a passenger in the Suzuki,
pointed a gun at Luciano and ordered him to freeze. Instead of
submitting to this minatory demand, Luciano stepped on the
accelerator. At the same time, his companion, Dalia Hidalgo
Garcia (Hidalgo), leapt to the ground. The predators fired in
the direction of the escaping car, and, when it stopped, Roman
shot Luciano in the head at point-blank range. Apparently
realizing that they had killed the young man, Roman and Rivera-
Gomez fled the scene without expropriating the Mazda.
Soon thereafter, a homicide detective spotted a red
Suzuki in the vicinity and, having received a report of the
latest incident, circled to pursue it. After a Hollywood-style
chase involving several police vehicles, the Suzuki crashed.
Appellant exited through the driver's door, and Roman exited from
the passenger's side. The authorities quickly apprehended them.
On January 5, 1994, a federal grand jury charged the
two men with three counts of carjacking and three counts of
aiding and abetting each other in the use of firearms during and
in relation to crimes of violence. Count 3 of the indictment
featured an allegation concerning Luciano's death. Though Roman
entered a plea, appellant maintained his innocence. Following a
three-day trial, a jury found appellant guilty on all six counts.
This appeal ensued.
II. DISCUSSION II. DISCUSSION
Appellant advances three assignments of error. First,
he maintains that the district court erred in admitting evidence
of Luciano's death. Second, he argues that the court should have
declared a mistrial when a prosecution witness stated in the
jury's presence that Roman had pleaded guilty. Finally, he
suggests that his life sentence punishes him for an offense with
which he was never charged (Luciano's murder), and, thus,
transgresses the Constitution. We address these reputed errors
sequentially.
A. Admission of Evidence of Victim's Death. A. Admission of Evidence of Victim's Death.
Appellant, who unsuccessfully moved in limine to
forestall the prosecution from showing that Luciano was killed in
the course of the third incident, asseverates that the victim's
death was irrelevant to the question of guilt on the charge of
attempted carjacking, and that no evidence concerning the death
should have been admitted. Our study of this asseveration begins
with the language of the carjacking statute, which provided on
the date of appellant's offense:
Whoever, possessing a firearm . . . takes a motor vehicle that has been transported, shipped, or received in interstate or foreign commerce from the person or presence of another by force and violence or by intimidation, or attempts to do so, shall - (1) be fined under this title or imprisoned not more than 15 years, or both, (2) if serious bodily injury . . . results, be fined under this title or imprisoned not more than 25 years, or both, and (3) if death results, be fined under this title or imprisoned for any number of years up to life, or both.
18 U.S.C. 2119 (Supp. V 1993).
Appellant asserts that the district court mistakenly
thought that the victim's death constituted an element of the
offense, and allowed the evidence on that basis. This was error,
he maintains, because subsection (3), the "death results"
provision, is not an element of the offense, but, rather, is
simply a sentencing enhancement mechanism. Thus, he concludes,
the victim's death had no bearing upon the determination of guilt
for the underlying offense, and should not have been brought to
the jury's attention.
As an inauguratory matter, we disavow appellant's
assertion that the district court held the "death results"
provision to be a separate element of the offense of carjacking.
As we parse the version of the statute under which Rivera-Gomez
was convicted, the crime of carjacking had four elements, viz.,
(1) taking (or attempting to take) from the person or presence of
another, (2) by force, violence, or intimidation, (3) a motor
vehicle previously transported, shipped, or received in
interstate or foreign commerce, (4) while using or carrying a
firearm.1 See United States v. Johnson, 32 F.3d 82, 85 (4th
Cir.), cert. denied, 115 S. Ct. 650 (1994); United States v.
Harris, 25 F.3d 1275, 1279 (5th Cir.) cert. denied, 115 S. Ct.
458 (1994); United States v. Singleton, 16 F.3d 1419, 1422 (5th
Cir. 1994).
The district court appears to have understood this
structure, and the record suggests that the court did not
consider the death of a victim to be a further (independent)
element of the carjacking offense. Judge Laffitte stated at the
pretrial hearing on the motion in limine that the death of the
victim was an offense element "not as such," but only as "part
and parcel" of the "force and violence" element of the carjacking
charge. In the same vein, the judge's jury instructions outlined
1Section 2119 has since been amended. In the 1994 crime bill, Congress substituted the phrase "with the intent to cause death or serious bodily harm" for the language requiring possession of a firearm. See Violent Crime Control and Law
Enforcement Act of 1994, 60003(a)(14), Pub. L. No. 103-322, 108 Stat. 1796, 1970. Thus, the new law leaves the offense with four elements, but changes the focus of the fourth element from weaponry to intention, requiring that the prosecution prove that the defendant perpetrated the crime with the specific intent of causing death or serious bodily harm.
the four essential elements of carjacking described above, saying
nothing about "death results" as an independent element
applicable to count 3.
In our view, then, the court's admission of the
evidence derived not from a misapprehension that the death
constituted an independent offense element, but, rather, from a
belief that evidence of Luciano's death helped to prove the
essential "force and violence" element. The question that
remains is whether the court blundered in allowing the government
to present the challenged evidence as a means of proving that the
carjackers employed force and violence in carrying out the third
incident. We think not.
It is difficult to conceive of a situation in which the
death of a victim will not be relevant to the use of force and
violence during the commission of an attempted carjacking. See
Fed. R. Evid. 401 (defining "relevant evidence"); United States
v. Rodriguez, 871 F. Supp. 545, 549 (D.P.R. 1994) (approving
admission of evidence of "the victim's death as well as the
manner and means by which it was accomplished" as relevant and
"highly persuasive" of "force and violence" in a carjacking
prosecution). This case is certainly not the exception that
proves the rule. Nevertheless, relevancy does not tell the total
tale. Evidence, though relevant, may be excluded "if its
probative value is substantially outweighed by the danger of
unfair prejudice, confusion of the issues, or misleading the
jury." Fed. R. Evid. 403. We turn, therefore, to the balance of
probative worth and unfair prejudice.
In this instance, appellant insists that, even if
evidence concerning the killing was probative of guilt under the
force and violence element of the offense, it was not actually
necessary to the prosecution's case the government had other
evidence, such as the circumstances of the carjackers' initial
encounter with the victim, that would have made the point and
the likelihood was great that grisly details would stir the baser
passions of the jurors and cloud their minds so that they could
not make an objective appraisal of the evidence before them.
Thus, appellant's thesis runs, the risk of unfair prejudice
inherent in permitting the prosection to introduce evidence of
the homicide substantially outweighed whatever incremental
probative value the evidence may have supplied.
We review a trial court's rulings admitting or
excluding particular evidence for abuse of discretion. See
United States v. Holmquist, 36 F.3d 154, 163 (1st Cir. 1994),
cert. denied, 115 S. Ct. 1797 (1995); Veranda Beach Club Ltd.
Partnership v. Western Surety Co., 936 F.2d 1364, 1373 (1st Cir.
1991); United States v. Nazarro, 889 F.2d 1158, 1168 (1st Cir.
1989). We grant the trial court especially wide latitude when
Rule 403 balancing is the subject of review. "Only rarely and
in extraordinarily compelling circumstances will we, from the
vista of a cold appellate record, reverse a district court's on-
the-spot judgment concerning the relative weighing of probative
value and unfair effect." Freeman v. Package Mach. Co., 865 F.2d
1331, 1340 (1st Cir. 1988). This deference is equally due in
criminal cases. See, e.g., United States v. Rodriguez-Estrada,
877 F.2d 153, 156 (1st Cir. 1989); United States v. Ingraham, 832
F.2d 229, 233-34 (1st Cir. 1987), cert. denied, 486 U.S. 1009
(1988); United States v. Tierney, 760 F.2d 382, 388 (1st Cir.),
cert. denied, 474 U.S. 843 (1985).
Through this modest lens, we see no cognizable defect
in the district court's Rule 403 balancing. Whatever other
evidence was available, evidence of Luciano's death remained
highly probative of culpability for an essential element of a
section 2119 offense. Presumably, like most evidence offered by
the government in a criminal case, this evidence was designed to
prejudice the jury against the defendant in the sense that
exposure to it would render a conviction more likely. But the
introduction of relevant evidence to influence perceptions is the
stuff of our adversary system of justice. The law protects a
defendant against unfair prejudice, not against all prejudice.
See Rodriguez-Estrada, 877 F.2d at 155-56; Onujiogu v. United
States, 817 F.2d 3, 6 (1st Cir. 1987); see also Veranda Beach,
936 F.2d at 1372 (explaining that "trials were never meant to be
antiseptic affairs; it is only unfair prejudice, not prejudice
per se, against which Rule 403 guards"). Since the evidence at
issue is so tightly linked to guilt as defined by the elements of
the offense, it would be surpassingly difficult to justify a
finding of unfair prejudice stemming from its introduction.
Here, moreover, there are several additional weights on
the scale favoring admissibility. For one thing, because the
perpetrators fled immediately after the shooting, leaving behind
both the Mazda and a dying man in the driver's seat, the
government's case on count 3 depended on its ability to prove
attempted carjacking. Without knowing of Luciano's death, the
jury may have been left to wonder why two supposed carjackers had
turned their backs on an expensive, late-model sports car. For
another thing, Hidalgo, understandably concerned with her own
safety at the time the incident occurred, could give only limited
testimony as to what transpired, and there was a definite risk
that the jury, if uninformed of Luciano's passing, would engage
in speculation as to why the prosecution did not offer his
testimony at trial. See, e.g., United States v. Accetturo, 966
F.2d 631, 637 (11th Cir. 1992) (holding the fact of a witness's
death admissible as "relevant to explain the fact that [the
witness] did not testify" and to prevent the jury from
speculating), cert. denied, 113 S. Ct. 1053 (1993); see also
United States v. Williams, 51 F.3d 1004, 1010 (11th Cir. 1995)
(citing Accetturo in admitting evidence of a victim's death in a
carjacking prosecution), petition for cert. filed (U.S. Aug. 11,
1995) (No. 95-5555).
These considerations, taken in the aggregate,
underscore the invulnerability of the district court's ruling.
The evidence here did more than tend to show guilt on one element
of the offense; it also constituted a crucial chapter in the
government's narrative account of appellant's carjackings,
allowing the jury to put matters into perspective. Trial
evidence is supposed to help the jury reconstruct earlier events
and then apportion guilt or responsibility as the law may
require. Rule 403 exists to facilitate this process, not to
impede it. We think it follows that, although a "controlled
environment for the reception of proof is essential, . . . an
artificially sterile environment is neither necessary nor
desirable." Wagenmann v. Adams, 829 F.2d 196, 217 (1st Cir.
1987); see also United States v. McRae, 593 F.2d 700, 707 (5th
Cir.) ("Unless trials are to be conducted on scenarios, on unreal
facts tailored and sanitized for the occasion, the application of
Rule 403 must be cautious and sparing. Its major function is
limited to excluding matter of scant or cumulative probative
force, dragged in by the heels for the sake of its prejudicial
effect."), cert. denied, 444 U.S. 862 (1979).
When a trial court in a criminal case exercises
discretion at first hand, the court of appeals should go very
slowly in interfering with its judgment calls. The need for
caution is magnified when, as now, a challenged ruling has the
effect of vindicating the government's well-established "right to
present to the jury a picture of the events relied upon . . .
including proof of all elements of the crime for which the
defendant has been brought to trial." United States v. Tavares,
21 F.3d 1, 3-4 (1st Cir. 1994) (en banc) (citation and internal
quotation marks omitted). Here, the disputed evidence is both
picture and proof; though lurid, it is part of what old-fashioned
lawyers might call the res gestae, and it is directly probative
of an element of the offense. Consequently, the court did not
err in admitting it. After all, it is the rare case in which a
court must require that the story of the crime be spoon-fed to
jurors in bits and pieces from which every drop of juice has been
drained.
B. Denial of Mistrial Motion. B. Denial of Mistrial Motion.
During his trial testimony, a prosecution witness,
homicide detective Lama-Canino, blurted out that Roman
(appellant's partner in crime) had entered a guilty plea. Judge
Laffitte immediately struck the statement, instructed the jurors
to disregard it, and warned them not to ponder the codefendant's
fate. However, the court refused to declare a mistrial.
Appellant assigns error.
The trial judge is best situated to make a battlefield
assessment of the impact that a particular piece of improper
information may have on a jury. See United States v. Lau, 828
F.2d 871, 874 (1st Cir. 1987), cert. denied, 485 U.S. 1005
(1988). For this reason, we have long recognized that motions
for mistrial are committed to the presider's discretion, see,
e.g., United States v. De Jongh, 937 F.2d 1, 3 (1st Cir. 1991),
especially when such a motion is predicated on some spontaneous
trial development that can best be gauged in the ebb and flow of
the trial itself, see United States v. Pierro, 32 F.3d 611, 617
(1st Cir. 1994), cert. denied, 115 S. Ct. 919 (1995). Our
reluctance to intervene is often reinforced by an awareness that
in most cases a firm, timely curative instruction will adequately
quell the potential for prejudice. See United States v.
Sepulveda, 15 F.3d 1161, 1184 (1st Cir. 1993), cert. denied, 114
S. Ct. 2714 (1994); United States v. Ferreira, 821 F.2d 1, 5-6
(1st Cir. 1987).
Although every trial is different, and, therefore,
every mistrial motion is sui generis, the assignment of error in
this case is reminiscent of that advanced in United States v.
Bello-Perez, 977 F.2d 664 (1st Cir. 1992). There, the
defendant's paramour twice blurted out that the defendant had
suffered a gunshot wound in an event unrelated to the drug
trafficking conspiracy with which he was charged. See id. at
672. The district judge gave a contemporaneous curative
instruction on each occasion, and refused to declare a mistrial.
We upheld the ruling. See id.
Here, as in Bello-Perez, the trial court's handling of
the witness's rash comment was well within the broad range of its
discretion. The analogy operates on at least three levels.2
First, here, as in Bello-Perez, the offensive information, though
unfit for jury consumption, was not of a kind that might be
2Appellant belatedly attempts to distinguish the two cases on the ground that here, unlike in Bello-Perez, 977 F.2d at 672,
the offending witness a police officer acted in bad faith by deliberately uttering the improper testimony. At the time, however, appellant's counsel expressed his agreement with the judge's assessment that the witness had made a spontaneous, accidental slip of the tongue. That ends the matter. Arguments not raised in the lower court cannot be unfurled for the first time on appeal. See United States v. Slade, 980 F.2d 27, 30 (1st
Cir. 1992).
thought irredeemably to poison the well. The fact that Roman
pleaded guilty had no bearing upon appellant's primary line of
defense mistaken identity and had nothing to do with the
government's attempt to prove that Rivera-Gomez was the man who
accompanied Roman during the carjacking spree.
Second, the strength of the government's overall case
is frequently a cardinal factor in evaluating the denial of a
mistrial motion. Here, as in Bello-Perez, the prosecution's case
was extremely robust. There is a correspondingly small risk,
therefore, that Lama-Canino's wayward remark could have been the
straw that broke the dromedary's back. See United States v.
Scelzo, 810 F.2d 2, 5 (1st Cir. 1987).
Third, permitting the trial to proceed is more
palatable because, as in Bello-Perez, the judge gave an immediate
curative instruction a device that we have regularly endorsed
as a means of dispelling potential prejudice. See United States
v. Chamorro, 687 F.2d 1, 6 (1st Cir.), cert. denied, 459 U.S.
1043 (1982). We not only believe that the language used by the
court fit the occasion, but we also take heed that appellant did
not then or now suggest a more felicitous phrasing. At the
expense of carting coal to Newcastle, we note, too, that the
judge, in a commendable abundance of caution, again admonished
the jurors in his final instructions that appellant alone was on
trial, and that Roman's guilt or innocence was not a matter with
which they should concern themselves. We are confident that
these instructions, in combination, eliminated any prospect of
prejudice that might otherwise have flowed from the gratuitous
aside.
As a fallback position, appellant claims that the
district court's instructions did more harm than good, reminding
the jury of the substance of the improper observation. In some
respects, of course, instructions cautioning jurors to disregard
testimony may often appear to turn evidence into a form of
forbidden fruit. Every parent knows that admonitions to refrain
sometimes only emphasize the attraction. Cf. Tom Jones & Harvey
Schmidt, Never Say No (The Fantastiks, 1960) ("My son was once
afraid to swim; the water made him wince. Until I said he
mustn't swim; he's been swimmin' ever since."). But jurors are
not children, and our system of trial by jury is premised on the
assumption that jurors will scrupulously follow the court's
instructions. See Richardson v. Marsh, 481 U.S. 200, 206 (1987);
Francis v. Franklin, 471 U.S. 307, 324 n.9 (1984); Sepulveda, 15
F.3d at 1185. Here, we have no basis (apart from appellant's
self-interested speculation) to presume that the evils of the
cure exceeded those of the disease, and we therefore decline
appellant's unsupported invitation to surmise that the jury took
the wrong message from the curative instruction.
To recapitulate, given the nature of the taint, the
strength of the government's case, and the promptness of the
district court's instructions, we are unprepared to say that the
court misused its discretion in denying the mistrial motion. See
United States v. Sclamo, 578 F.2d 888, 891 (1st Cir. 1978)
(upholding a denial of mistrial after witness' improper comment,
"in light of the strong case and substantial evidence produced by
the government, and in view of the court's cautionary words to
the jury concerning stricken testimony").
C. Imposition of a Life Sentence. C. Imposition of a Life Sentence.
In his final foray, appellant takes aim at the life
sentence imposed on count 3. Having argued earlier that the
"death results" provision of the statute of conviction, 18 U.S.C.
2119 (3), is not an element of the offense, see supra Part
II(A), appellant now posits that the life sentence he received
punishes him for a crime Luciano's murder with which he was
never charged, and that, therefore, his sentence offends the
Constitution. We discern no constitutional infirmity.
Appellant's argument is not entirely without
foundation. We agree with him that subsection (3) demarcates a
sentence-enhancing factor, and does not establish a separate
offense with an additional element. After all, not every matter
mentioned in the text of a criminal statute comprises an element
of the offense.
To be sure, attempting to distinguish between offense
elements and sentence enhancers can sometimes be a daunting task.
When deciding how a particular statutory allusion should be
construed, an inquiring court must mull the language and
structure of the statute, and, when necessary, its legislative
history. See United States v. Forbes, 16 F.3d 1294, 1298 (1st
Cir. 1994); United States v. Ryan, 9 F.3d 660, 667 (8th Cir.
1993), modified on other grounds, 41 F.3d 361 (8th Cir. 1994) (en
banc), cert. denied, 115 S. Ct. 1793 (1995); United States v.
Rumney, 867 F.2d 714, 717-19 (1st Cir.), cert. denied, 491 U.S.
908 (1989); United States v. Jackson, 824 F.2d 21, 23-24 (D.C.
Cir. 1987).
The structure of section 2119, the unexpurgated text of
which is quoted supra at p. 5,3 strongly indicates that Congress
intended its subsections to be sentence-enhancing factors and not
elements constituting separate species of carjacking offenses.
The initial paragraph of the statute establishes the crime of
carjacking. That paragraph ends with the word "shall," followed
by three subsections. These subsections are not structurally
independent provisions in which the essential elements of
carjacking are redefined and embellished with additional
components. Rather, the structure is integrated, and the
statutory provisions form a seamless whole.
The first subsection limns the base sentence, and the
following two subsections clear the way for enhanced sentences if
either serious bodily injury or death results from the commission
of the carjacking offense. Ripped from their textual moorings,
subsections (2) and (3) would be little more than gibberish; they
are incapable of "stand[ing] alone, independent of the
[underlying] offense." Ryan, 9 F.3d at 667. Consequently, this
statutory structure comprises persuasive evidence that Congress
3The 1994 amendment, discussed supra note 1, does not affect
our analysis of these subsections.
intended the second and third subsections simply to augment the
sentences for certain aggravated carjackings, not to establish
additional offenses with independent elements. Accord United
States v. Oliver, 60 F.3d 547, 552 (9th Cir. 1995); Williams, 51
F.3d at 1009.
Although this reading is the most natural and sensible,
especially given the interdependence of the provisions, we go the
extra mile and venture into the legislative history for
confirmation of Congress's intent. The path is plainly marked,
see Oliver, 60 F.3d at 553, and we can deduce no reason to
retrace its contours. The Eleventh Circuit has collected and
canvassed the relevant historical materials, examined them
perspicaciously, and concluded that the background of section
2119 makes manifest that Congress intended subsection (3) to be a
sentence enhancer, not a separate offense. See id. This
conclusion is unarguable, and we adopt it.
Having concluded that 18 U.S.C. 2119(3) is a
sentence-enhancing factor, we next consider the constitutionality
vel non of appellant's life sentence on count 3. Viewed as a
sentence-enhancing factor, subsection (3) represents a
congressional judgment that the punishment for committing the
crime of carjacking should be harsher if the offense, as actually
perpetrated, includes conduct that produces the demise of a
victim. In this sense, the architecture of the carjacking
statute bears a family resemblance to the design of the federal
sentencing guidelines, which make generous use of "sentencing
enhancement regimes evincing the judgment that a particular
offense should receive a more serious sentence within the
authorized range if it was either accompanied by or preceded by
additional criminal activity." Witte v. United States, 115 S.
Ct. 2199, 2208 (1995). For example, under U.S.S.G. 1B1.3,
"this court has repeatedly upheld the inclusion as relevant
conduct of acts either not charged or charged but dropped," and
authorized resort to that conduct as a sentence-enhancing datum.
United States v. Garcia, 954 F.2d 12, 15 (1st Cir. 1992)
(collecting cases). By like token, a defendant convicted of drug
trafficking will find his sentence enhanced if it turns out that
he possessed a dangerous weapon during the commission of the
crime, see U.S.S.G. 2D1.1(b)(1), or if a victim died under
circumstances that would constitute murder, see id. 2D1.1(d).
The Supreme Court has made it pellucid that such
sentencing enhancement schemes do not constitute punishments for
separate offenses: "the fact that the sentencing process has
become more transparent under the guidelines . . . does not mean
that the defendant is now being `punished' for uncharged conduct
as though it were a distinct criminal `offense.'" Witte, 115 S.
Ct. at 2207; see also id. at 2206-07 (explaining that the
consideration given to particular aspects of character and
conduct at sentencing "does not result in `punishment' for any
offense other than the one of which the defendant was
convicted"). So it is here. Appellant is not being punished for
the uncharged crime of murder, but, rather, he is being punished
more severely for the crime of carjacking because his conduct
during the commission of the crime led to the loss of a victim's
life.
Of course, the burgeoning use of sentence enhancers by
Congress and the Sentencing Commission as part of the catechism
of punishment poses an obvious danger that, in extreme
circumstances, the lagniappe might begin to overwhelm the main
course. In all probability, there are constitutional limits on
the way sentencing factors can be deployed in the punishment of a
substantive offense. See id. at 2208; McMillan v. Pennsylvania,
477 U.S. 79, 88 (1986). But that proposition is only of academic
interest where, as here, the sentence enhancement scheme "neither
alters the maximum penalty for the crime committed nor creates a
separate offense calling for a separate penalty." McMillan, 477
U.S. at 87-88.
In this case, under appellant's own reading of the law,
Congress has, in essence, established a statutory maximum
sentence of life imprisonment for carjacking, and authorized
courts to levy such a sentence when a defendant's conduct results
in the victim's death. This paradigm is no different in its
legal effect than if Congress had set a statutory range of up to
life in prison, and the sentencing guidelines, through a web of
enhancement factors, had authorized a sentence of life only on a
finding by the sentencing court that the crime resulted in
death.4 In fine, section 2119 establishes only one offense and
sets a range of punishment for that offense, varying according to
conduct. So viewed, the sentencing scheme crosses no
constitutional boundaries.
III. CONCLUSION III. CONCLUSION
We need go no further. From aught that appears,
appellant was fairly tried, justly convicted, and lawfully
sentenced.
Affirmed. Affirmed.
4One might argue that because a judge has no discretion to impose a life sentence unless death results, 2119(c)(3) amounts
to a "rule" establishing a separate, uncharged offense. This argument would fail. "Regardless of whether particular conduct is taken into account by rule or as an act of discretion, the defendant is still being punished only for the offense of conviction." Witte, 115 S. Ct. at 2207.