United States v. Russell "Rusty" Prevatte and Robert A. Soy

After the district court reconsidered their sentences, see United States v. Prevatte, 16 F.3d 767 (7th Cir.1994), Russell Prevatte and Robert Soy were each resentenced to 636 months of imprisonment for maliciously damaging or destroying property by means of an explosive, in violation of 18 U.S.C. § 844(i). The defendants appeal that sentence. For the following reasons, we affirm in part, reverse in part, and dismiss the appeal in part for lack of appellate jurisdiction.

I

BACKGROUND

A. Facts

We set forth the facts relevant to this litigation in United States v. Prevatte, 16 F.3d 767 (7th Cir.1994). We assume familiarity with that opinion. In summary, Russell Prevatte, with high school friends Douglas Bergner and Jerry Williams, commenced a series of burglaries in 1990. In 1991, a fourth individual, Robert Soy, joined them.

Williams, a probationary police officer with the Hammond Police Department during the fall of 1991, attended the Indiana State Police Academy from September 16 through December 20, 1991. While at the Academy, he displayed an interest in explosives and researched bombs in the academy library, as well as through the academy instructors. Prevatte later read a book Williams had suggested, the Anarchists Cookbook, and the two discussed, when Williams was home from the academy on weekends, how to manufacture pipe bombs and how to use them near gas meters as a diversionary tactic for burglaries.

On December 23, 1991, Prevatte and Soy detonated the first pipe bomb in a residential alley in Whiting, Indiana. This “test” bombing apparently was designed to measure the damage caused by the bomb and to gauge the response time of emergency services so that later burglaries could be synchronized accordingly. The bomb punctured a gas meter some fifty feet away and resulted in the death of Emily Antkowicz, an elderly woman whose backyard abutted the alley and who was about thirteen feet from the bomb at the time of explosion. It is this incident that led to the charge and sentence that is before us in this second appeal. The later criminal activity of these two defendants and their confederates is set forth in detail in our earlier opinion and need not be repeated here. Suffice it to say that a grand jury returned a twenty-one count indictment against Prevatte and Soy. Among other things, the grand jury charged the defendants with: (1) maliciously conspiring to damage or destroy property by means of an explosive in violation of 18 U.S.C. § 844(i); (2) maliciously damaging or destroying property by means of an explosive in violation of 18 U.S.C. § 844(i); and (3) making a firearm, statutorily termed a “destructive device,” in violation of 26 U.S.C. §§ 5845(f), 5861(f) and 18 U.S.C. § 2.

A jury convicted Prevatte and Soy of fourteen of the twenty-one counts of the indictment, including the violation of 18 U.S.C. § 844(i) that involved the death of Emily Antkowicz. At sentencing, the defendants submitted that the district court should apply the guideline for second degree murder as the one most closely analogous to the conviction. The district court disagreed. The court found that the December 23, 1991 test bombing was, within the meaning of the statute, an act of arson because it involved destruction of property. At the imposition of sentence, the court first noted that 18 U.S.C. § 844(i) refers the court to U.S.S.G. § 2K1.4(c). That section in turn directs the court to the “most analogous” guideline offense from Chapter Two, Part A. The court then noted that the murder statute, 18 U.S.C. § 1111, provides that every murder committed in perpetration of or an attempt to perpetrate any arson, burglary or robbery, is murder in the first degree. Because the offense charged was arson, the court held that first degree murder was the most analogous offense. The court therefore determined that the applicable U.S.S.G. assessment was: total offense level 43, criminal history category I. Accordingly, the court sentenced the defendants to life imprisonment.

On their first appeal to this court, Prevatte and Soy submitted that the district court erred in allowing the jury to hear evidence of the uncharged crimes surrounding the bombing dates. Both defendants disputed the district comb’s sentencing determination on two grounds. First, the defendants challenged the district court’s decision that the guideline for first degree murder, U.S.S.G. § 2A1.1, provided the most closely analogous guideline. Second, the defendants contended that, under § 844(i), life sentences may be imposed only after a jury recommendation, pursuant to 18 U.S.C. § 34. We held that the first degree murder guideline was indeed applicable to the charged crimes. We stated:

[W]e believe that the bombing at issue is sufficiently similar to arson to apply the first degree murder guideline on this basis. This conclusion rests on our understanding of the language and history of 18 U.S.C. § 844(i).

United States v. Prevatte, 16 F.3d 767, 780 (7th Cir.1994). We also noted that, in interpreting the statutory language of § 844(i) in conjunction with 18 U.S.C. § 34, it is unlawful to impose a life sentence absent jury direction. Because the issue of the life sentence had not been submitted to the jury, we held that the imposition of a life sentence was reversible error. We also noted that the district court had not undertaken any analysis of the mental state of the defendants as mandated in application note 1 to U.S.S.G. § 2A1.1. That application note recognizes that a life sentence may not be appropriate for all convictions of first degree murder and notes that a downward departure “may be warranted.” The extent of the departure, the note continues, “should be based on the defendant’s state of mind (e.g. recklessness or negligence), the degree of risk inherent in the conduct, and the nature of the underlying offense conduct.”

On resentencing, the district court considered the defendants’ state of mind. The court held that the death of Emily Antkowicz was caused by the defendants’ “recklessness and reckless state of mind and behavior.” Tr. II at 2223-24; see Tr. IV at 2203-04. It articulated two substantial factors that led it to that conclusion: (1) The defendants knew they were using explosive materials, and obtained information specifically on pipe bombs; (2) The defendants picked a residential area in which to gauge the police and fire department reaction time to explosions because they were aware that such a location would demand quick reaction time. Tr. II at 2223. The district court stated that it was “departing downward from the sentence called for by the murder statute, but not downward in the classification.” Tr. II at 2225. It sentenced each defendant to 686 months of imprisonment on the count that involved the death of Emily Antkowicz. Concurrent terms of imprisonment were imposed on the remaining counts.

II

DISCUSSION

The defendants submit one challenge to their sentence. Prevatte and Soy contend that the district court erred in resentencing because it did not depart downward in imposing a sentence, as it had stated it would. Restated, the defendants have asked this court to determine whether the district court properly applied guideline § 2A1.1.

1.

We begin our review with a statement of the basic limitations that circumscribe our authority to review sentencing determinations of the district courts. By statutory command, our review of a sentence is limited to eases in which the sentence was (1) “imposed in violation of law,” (2) “imposed as a result of an incorrect application of the sentencing guidelines,” (3) “outside the applicable guideline range,” or (4) “unreasonable.” 18 U.S.C. §§ 3742(e), (f); see United States v. Sablotny, 21 F.3d 747, 749 n. 2 (7th Cir.1994). In those cases, in which we do have jurisdiction, we must evaluate sentences imposed under the Guidelines with “due deference” to the district court’s application of the Guidelines to the facts of the specific ease. 18 U.S.C. § 3742(e);1 see United States v. Randall, 947 F.2d 1314, 1320 (7th Cir.1991). As a result of this statutory scheme, this court lacks jurisdiction to review, at the request of the defendants, a district court’s discretionary refusal to depart downward from the sentencing range determined by the Guidelines or to review the extent of the downward departure. United States v. Blackwell, 49 F.3d 1232, 1241 (7th Cir.1995); United States v. Shaffer, 993 F.2d 625, 628-29 (7th Cir.1993) (“We also lack jurisdiction to review the extent of a downward departure. ... We can entertain neither a claim that the court did not depart enough, nor a claim that no departure was made.”). If a district court denies a downward departure on the mistaken belief that it lacked authority to depart, we treat that misapprehension as an error of law over which we have appellate jurisdiction. United States v. Canoy, 38 F.3d 893, 903 (7th Cir.1994).

We turn now to the case before us. The parties suggest different characterizations of the defendants’ contentions. The defendants cast those contentions in terms of questions of law in order to invoke our appellate jurisdiction. The government urges that the defendants have presented, at bottom, a contention that the district court did not depart downward sufficiently, an issue over which we do not have jurisdiction. We believe that the most accurate estimate of the situation contains elements of both of these competing characterizations.

At the outset, we do not believe that there is a serious question about our authority to determine whether the district court complied with our directions from the first appeal. To the extent that the appellants raise that issue, we can consider it. In our earlier opinion, we directed the district court to impose a sentence other than life and to consider the applicability of application note 1 to U.S.S.G. § 2A1.1. We turn first to the issue of whether the court imposed a life sentence. In United States v. Martin, 63 F.3d 1422 (7th Cir.1995), this court held that “where a legislatively enacted sentencing scheme has expressly deprived a court of the possibility of imposing a life sentence, a sentence for a term of years exceeding the defendant’s approximate life expectancy would ordinarily constitute an abuse of discretion.” 63 F.3d at 1434. At the time of sentencing, the district court did not have the benefit of the guidance contained in Martin. Therefore, in sentencing the defendants to 636 months of incarceration, the court quite understandably did not focus on the standard now set out in Martin. Accordingly, we believe that the court ought to revisit the matter with the guidance of Martin. Determining the life expectancy of the individual defendant is a matter that ought to be addressed by the district court.

In our earlier appeal, we also directed the district court to consider the applicability of application note 1 to § 2A1.1 of the Guidelines. As we have mentioned earlier, that note provides that, when the conviction of first degree murder is predicated on a theory other than premeditated killing, life imprisonment is not necessarily the appropriate sentence and that, in such circumstances, a downward departure “may be warranted.” Our direction to the district court, therefore, was to consider whether, on the facts of this case, a downward departure was warranted. The district court complied with our mandate when it considered the possibility of a lower sentence. In sum, the district court effectively carried out this court’s order by departing to an extent based upon the defendants’ “state of mind (recklessness or negligence), the degree of risk inherent in the conduct, and the nature of the underlying offense conduct.” U.S.S.G. § 2A1.1, comment. (n. 1).

Having determined that the district court complied with our mandate, we now examine the remaining contentions. As we have noted earlier, we normally have no jurisdiction to review, at the request of the defendant, the decision of the district court as to whether it ought to depart downward and, if so, the extent of that departure. Shaffer, 993 F.2d at 628-29. A charitable reading of the appellants’ submission suggests, however, that one issue of law may be present that is subject to our review. The appellants appear to contend that, although the district court had the discretion to depart or not to depart from the guideline range for murder in the first degree, it was obliged, once it made the decision to depart, to impose a sentence that would have been imposed for second degree murder. The appellants point out that the district court found that the placement and detonation of the bomb amounted to “recklessness and reckless state of mind and behavior.” Their conduct should have been punished, they therefore argue, as second degree murder.

We do not read application note 1 as cabin-ing the discretion of the district court to that degree. The application note quite explicitly suggests that a departure below that prescribed for second degree murder or for the underlying offense is not likely to be appropriate. This notation is hardly a directive to the district court that any departure must, as a matter of law, reduce the sentence to the level of second degree murder. To hold that a departure must correspond to the base offense level stipulated in § 2A1.2, Second Degree Murder, every time the court finds that a defendant’s mental state was less than “intentionally or knowingly,” cf. U.S.S.G. § 2A1.1, comment, (n. 1), would negate the congressional determination that death resulting from certain felonies, such as arson, should be punished, not as second degree murder, but as first degree murder. If the Congress had intended that only murders that were premeditated and involved explosions be treated as first degree, there would be no reason to begin the sentencing analysis with § 2A1.1, First Degree Murder, as mandated by 18 U.S.C. § 1111. Indeed, the district court’s redetermination of the sentence in this case demonstrates the need for the flexibility that the application note gives to a sentencing court. The district court commented quite extensively on the mental state of the defendants at the time of the crime. We set forth the pertinent parts in the margin.2 This analysis can be read as a determination by the district court that the defendants engaged in conduct that, although not premeditated, involved a high degree of recklessness and warranted punishment between the level that would be employed for premeditated murder and the level that would be employed for a murder committed recklessly but not in the aggravated manner exhibited here. Such a determination is clearly permissible under the congressional determination concerning the punishment of murder committed in the course of arson. The sentence corresponds to an offense level of 42, which provides that an individual be sentenced to “360 [months] — life.”

The remainder of the appellants’ argument is appropriately characterized as a contention that the district court did not depart downward to a sufficient degree. As we have already made clear, we do not have jurisdiction to review this determination of the district court. See United States v. Dean, 908 F.2d 215, 217 (7th Cir.1990), cert. denied, 501 U.S. 1206, 111 S.Ct. 2801, 115 L.Ed.2d 974 (1991).

2.

The district court, having observed the defendants and having heard the evidence in the case, clearly is in a better position to evaluate comprehensively the appropriateness of the sentence. That court considered all of the relevant factors, and acted within its discretion. We have no authority to substitute our view of the record. As the case comes to us on a cold record, the sentence imposed of 53 years for a twenty-six (Mr. Prevatte) and twenty-four (Mr. Soy) year-old seems to be a stiff one, but the district court’s opportunity to assess the culpability of the defendants and the need for their incarceration was superior to the one afforded us. We assume that, if the statutory conditions are met, the Director of the Bureau of Prisons will fulfill his responsibilities in the future.3

Conclusion

For the aforementioned reasons, we affirm in part, reverse in part, and dismiss the appeal in part for lack of appellate jurisdietion. On remand the district court may adjust the sentence to ensure that the life expectancy of each of the defendants is appropriately considered.

AFFIRMED in part, Reversed in part and Dismissed in part