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MORROW v. MARINEMAX, INC. (N.J. 8-17-2010)
WILLIAMS, Circuit Judge.
Lervon Campbell pled guilty to being a felon in possession of a firearm and received a fifteen-year mandatory minimum sentence. At the time he was sentenced, Campbell had served approximately nine months of an unrelated state sentence after his supervised release had been revoked due to his arrest on the federal charges. The district court imposed Campbell's federal sentence to run concurrently with the remainder of that state sentence, but did not credit the nine months he had already served, believing that U.S.S.G. § 5G1.3(c) did not give it the authority to do so. Campbell appeals, arguing that the district court erred in concluding that it lacked the authority to impose his federal sentence "fully" concurrently with his state sentence. Because the district court had the discretion to adjust Campbell's sentence to take into account the time he had served on his undischarged state term, we vacate his sentence and remand for resentencing.
I. BACKGROUND
On December 29, 2008, Milwaukee police officers executing a search warrant at Campbell's home discovered powder cocaine, crack cocaine, and marijuana, and saw Campbell attempt to throw a gun out of his bedroom window. At the time, Campbell was on supervised release for prior unrelated Wisconsin state convictions. As a result of the new arrest, the state of Wisconsin revoked his supervised release and ordered Campbell to serve three years in prison on the state offenses.
Campbell pled guilty to being a felon in possession of a firearm in violation of 18 U.S.C. § 922(g)(1) and was sentenced in federal court on August 31, 2009, by which time he had served approximately nine months of his state term. Campbell acknowledged that he qualified as an armed career criminal under 18 U.S.C. § 924(e), subjecting him to a fifteen-year mandatory minimum sentence. Campbell's guidelines range was 188 to 235 months, but the district court concluded that the statutory minimum was appropriate and ordered the fifteen-year sentence to run concurrently with the remainder of his three-year state term.
Campbell asked the court to adjust his federal sentence to take into account the nine months that he had already served, so that his federal term would be run effectively "fully" concurrent to his state sentence. The district court indicated that it was not opposed to doing so, but denied the request after concluding that it lacked the authority to do so. The court reasoned that while U.S.S.G. § 5G1.3(b) would permit a downward adjustment, Campbell's situation fell under § 5Gl.3(c), which did not. Section 5G1.3(b) states that the district court should adjust a federal sentence to account for any period of imprisonment already served on a state term, when the state sentence results from an offense that was relevant conduct to the federal offense of conviction and led to an increase in the defendant's offense level. Section 5G1.3(c), which applies to cases (like Campbell's) in which a defendant was on supervised release at the time of the instant offense and had it revoked, provides that a sentence may be imposed to run "concurrently, partially concurrently, or consecutively to the prior undischarged term of imprisonment to achieve a reasonable punishment for the instant offense." U.S.S.G. § 5G1.3(c). Unlike § 5G1.3(b), however, § 5G1.3(c) does not authorize a downward adjustment. An application note provides that, with the exception of extraordinary cases, "[u]nlike subsection (b), subsection (c) does not authorize an adjustment of the sentence for the instant offense for a period of imprisonment already served on the undischarged term of imprisonment." U.S.S.G. § 5G1.3, cmt. 3(E).
The district court, after receiving supplemental briefing from the parties, concluded that it had no authority to grant an adjustment in a § 5G1.3(c) situation such as Campbell's, and denied the request. Campbell appeals.
II. ANALYSIS
Title 18, section § 3584 of the United States Code gives a district court the discretion to impose a term of imprisonment either concurrently or consecutively to a prior undischarged term, taking into consideration the factors enumerated in 18 U.S.C. § 3553(a). The guideline at issue in this case is U.S.S.G. § 5G1.3, which governs the imposition of a sentence that is subject to another undischarged term of imprisonment.
The district court was correct in noting that subpart (b) of § 5G1.3 expressly authorizes a downward adjustment of a sentence to take into account a period already served on an undischarged term of imprisonment, while subpart (c) does not. But the district court erred in concluding that this distinction in the guideline limits its exercise of discretion. Although § 5G1.3 expresses the Sentencing Commission's views about how a court's § 3584 sentencing discretion should be exercised, it does not restrict that discretion after United States v. Booker, 543 U.S. 220, 125 S.Ct. 738, 160 L.Ed.2d 621 (2005). Post- Booker, "a debate about how much discretion the Guidelines themselves confer has the air of the scholastic." United States v. Bangsengthong, 550 F.3d 681, 682 (7th Cir. 2008). Section 5G1.3 is an informative, but not binding, articulation of a court's power to impose a sentence concurrently or consecutively under § 3584.
Nor does the § 924(e)(1) mandatory minimum to which Campbell is subject preclude the sentence adjustment he seeks. Section 924(e)(1) says that a defendant must " be imprisoned . . . not less than fifteen years," 18 U.S.C. § 924(e)(1) (emphasis added). We have on two occasions held that this requirement is satisfied so long as a defendant's total period of incarceration, state and federal combined, equals or exceeds the statutory minimum.
First, in United States v. Ross, 219 F.3d 592, 594-95 (7th Cir. 2000), we held that under § 5G1.3(b) a district court could impose a sentence below the § 924(e)(1) mandatory minimum to account for time served on a related undischarged sentence, so long as the defendant's total period of state and federal imprisonment equaled the statutory minimum. There, the defendant broke into an Indiana home and stole a handgun, leading to federal charges relating to possession of a firearm and state charges of residential burglary. Id. at 593. By the time the defendant was sentenced in federal court, he had served 34 months of the sentence for his state burglary conviction. Id. at 594. Ross faced a fifteen-year mandatory minimum sentence as an armed career criminal under § 924(e)(1), and the district court sentenced him to 188 months. Id. Ross asked the court to sentence him to 154 months to take into account the 34 months he had already served on the related state conviction, but the court declined to do so and instructed the Bureau of Prisons to credit him the time instead. Id. On appeal, we vacated the sentence, holding that `die judge could adjust the defendant's federal sentence downward under § 501.3(b), so long as the total time served in state and federal custody was not lower than the federal statutory minimum. Id. at 594-95. We concluded that § 924(e) "does not specify any particular way in which that imprisonment should be achieved," id. at 595, and thus:
The computation of the total term of imprisonment for purposes of § 924(e) may, consistently with Application Note 2 to § 5G1.3, be accomplished by adding up the number of months the defendant has served on the related conviction and the number of months assessed in the federal judgment. The total must equal or exceed the statutory mandatory minimum of 180 months.Id. To hold otherwise, we concluded, would be to "exalt form over substance." Id. at 594. We noted that giving a credit in this manner "is not a departure from the guideline range [which would be prohibited except under 18 U.S.C. § 3553(e) or (f)]; it is simply another way of achieving the required period of imprisonment." Id. at 595.
More recently, in United States v. Cruz, 595 F.3d 744, 746 (7th Cir. 2010), we reaffirmed boss's interpretation of § 924(e). We confirmed Ross's conclusion that a judge applying § 924(e) "could deduct that number of months from the federal sentence as long as the combined length of the state and federal prison sentences was not less than the federal statutory minimum." Id. (contrasting mandatory minimum language in § 924(e) with that in 21 U.S.C. § 841(b)(1)(A)). Other circuits have similarly interpreted § 924(e). See, e.g., United States v. Drake, 49 F.3d 1438, 1440-41 (9th Cir. 1995); United States v. Kiefer, 20 F.3d 874, 876-77 (8th Cir. 1994).
The fact that Ross involved § 5G1.3(b) and not § 5G1.3(c) does not limit boss's applicability to this case. It is § 3584 that gives a sentencing court the discretion to impose a concurrent sentence, taking into consideration the factors set forth in § 3553(a). 18 U.S.C. § 3584(b). Section 5G1.3 is advisory, and thus its distinction between subsections (b)_ and (c) is informative in, but not binding on, the way a district court exercises its § 3584 discretion. And clearly, .Ross's interpretation of § 924(e) does not depend on the applicability of a specific guideline. So, contrary to its conclusion at sentencing, the district court had the discretion to adjust Campbell's sentence to account for the time he had served on his state revocation.
Of course, the question of whether the court has this discretion is distinct from the question of how it should be exercised. The time for which Campbell seeks credit is from a prison term for conduct wholly unrelated to that underlying his federal sentence, and the argument can be made that adjusting his term for that time provides him with something of a windfall. Subsections (b) and (c) of § 5G1.3 reflect a sensible policy distinction between treatment of undischarged terms of imprisonment that involve relevant conduct to the instant offense, and those that do not. On remand, should the district court decide to make the adjustment1 Campbell seeks, its reasons for doing so should be articulated in light of the § 3553(a) factors and the policy considerations set forth in § 5G1.3. If the district court disagrees with the methodology set forth in § 5G1.3 — which it necessarily will be doing if it grants the adjustment — an adequate explanation to "allow for meaningful appellate review and to promote the perception of fair sentencing" should be given. Gall v. United States, 552 U.S. 38, 50, 128 S.Ct. 586, 169 L.Ed.2d 445 (2007); see also United States v. Plantan, 102 F.3d 953, 956 (7th Cir. 1996) (court has "significant discretion to impose a sentence which provides for a reasonable incremental punishment given the facts of the case, so long as it states its reasons for doing so.").
III. CONCLUSION
Campbell's sentence is VACATED and the case is REMANDED for resentencing.
The force of Rohde and Millers' is limited, however, by the Court's subsequent holdings. Rohde was decided before the Court in Pope Talbot expressly held that a state may not deprive a plaintiff of a substantive admiralty right. See 346 U.S. at 410. In addition, Rohde is one in a line of cases relying on the so-called "maritime but local" doctrine. See Green v. Vermilion Corp., 144 F.3d 332, 340 (5th Cir. 1998). This doctrine applies primarily to cases in which there is no applicable admiralty rule. 1 Thomas J. Schoenbaum, Admiralty and Maritime Law 165 (4th ed. 2004). Because the Supreme Court has recognized an injured employee's right to bring a general maritime negligence claim against his employer, Chandris, Inc. v. Latsis, 515 U.S. 347, 356 (1995), the application of this doctrine is inapposite.
More recently, the Eleventh Circuit has likewise held that a state's workers' compensation law could bar an injured employee's general maritime negligence claim. However, the Fifth and Ninth Circuits have reached the opposite conclusion. The Third Circuit has not addressed the issue.
In Brockington v. Certified Electric, Inc., 903 F.2d 1523 (11th Cir. 1990), the plaintiff was injured off the coast of Georgia while traveling by boat to an island where he was to perform electrical wiring work. Id. at 1525-26. The court held that the plaintiff was not covered by the Longshore and Harbor Workers' Compensation Act (LHWCA), and that his claim for a general maritime tort was barred by the exclusivity provision of the Georgia Workers' Compensation Act. Id. at 1533 The court noted that federal supremacy in admiralty cases is "adequately served by the availability of a federal forum." Id. at 1529 (quoting Kossick v. United Fruit Co., 365 U.S. 731, 739 (1961)). Thus, "federal courts sitting in admiralty should, according to the dictates of comity, acknowledge and protect state-created rights, even at times to the exclusion of an existing maritime law." Id. at 1530. From this premise, the Court relied on a balancing test to resolve the conflict between the state workers' compensation exclusivity provision and the general maritime tort claim. It weighed "the comparative interests" between the state and maritime law. Id. (citation omitted). The court was thus presented with a land-based worker who had suffered non-fatal injuries in navigable waters, who was covered by a state workers' compensation statute, who asserted a federal common law cause of action, and who exhibited only a slight connection to navigation and commercial activity. See id. at 1530-33. Viewed in this light, the court concluded that the state's interest in applying its workers compensation system outweighed a relatively weak federal interest in allowing a person such as the plaintiff to assert a general maritime tort claim against his employer. Id. at 1532-33. Accordingly, it granted summary judgment for the defendants. Id. at 1533.
cert. denied, 498 U.S. 1026 (1991).
Interestingly, the court did declare that, had the plaintiff's claim been for wrongful death rather than for personal injury, then the general maritime law would have prevailed, presumably without the need for any balancing test. Brockington, 903 F.2d at 1531. It is difficult to understand the rationale for drawing such a line, allowing general maritime law to control as a matter of course for claims involving mortal injuries but engaging in an interests balancing analysis for claims involving non-mortal ones. In the present matter, involving a plaintiff who suffers from permanent paralysis, the Court finds this line to be particularly blurred, thereby rendering Brockington's reasoning less persuasive.
In Chan v. Society Expeditions, 39 F.3d 1398 (9th Cir. 1994), the plaintiff, a shore-based employee, was a passenger on a cruise ship that his employer had chartered. Id. at 1402. While ferrying between the ship and a shore destination, his raft capsized, causing him injuries. Id. He applied for workers compensation benefits from the state of Washington, and then brought a negligence claim against his employer under the general maritime law. Id. at 1402. The district court dismissed the claim because of the exclusive remedy provision in Washington's workers' compensation law. Id. The Ninth Circuit reversed, holding that the plaintiff had "a federal maritime right to sue [his employer]." Id. at 1403. He had "a general claim in admiralty for negligence, and adjudication of that claim is governed by federal common law." Id. Thus, the Ninth Circuit's
cert. denied, 514 U.S. 1004 (1995).
analysis suggests that a party injured on navigable waters possesses a substantive maritime right to sue for general negligence and that a state workers' compensation law which abridges that right must give way to the maritime law in an admiralty court.
Although Brockington had been decided nearly four years earlier, the Ninth Circuit did not cite the case at all, despite the fact that the two cases presented the identical legal question.
It should be noted that Washington's law expressly exempted from the workers compensation scheme "employers and workers for whom a right or obligation exists under the maritime laws." Id. at 1402-03. The Court concluded that the plaintiff was covered by this provision. Id. at 1403. It is not clear to what extent that circumstance played a role in the Court's holding.
In the Fifth Circuit, a similar approach to the Ninth's prevails. In Green v. Vermillion Corp., 144 F.3d 332 (5th Cir. 1998), the plaintiff worked at a duck hunting camp as a cook and a watchman. He reached the camp by ferry. Id. at 334. He slipped and fell one day while on the ferry, injuring himself. Id. He sued under the LHWCA as well as under the general maritime law for negligence. Id. While he did not seek state workers' compensation benefits, the parties agreed that he fell squarely within the purview of that system, including its exclusive remedy provision. Id. at 335, n. 1. The district court found that the plaintiff was not covered by the LHWCA, and that the workers' compensation system barred the claim for general maritime negligence against the plaintiff's employer. Id. at 333-34. The Fifth Circuit reversed the latter holding, ruling that the workers' compensation system could not bar the general maritime negligence claim. Id. at 341-42. The Court concluded that maintaining uniformity in maritime law was the key factor in the analysis. Id. at 341. Given that an "action for negligence has long been a vestige of general maritime law, subjecting it to the ebbs and flows of state legislation would disrupt the essential features of admiralty law." Id. For this reason, the plaintiff was able to pursue his negligence claim, despite the exclusive remedy provision of Louisiana's state workers' compensation law.
cert. denied, 526 U.S. 1017 (1999).
The Ninth Circuit's discussion of Brockington was a cursory one: "[T]he court in Brockington only unearthed the line of Supreme Court cases giving preclusive effect to state workers' compensation statutes since it failed to cite any of the cases recognizing the superiority of general maritime tort claims over state remedies. [citation omitted]. Since our holding today relies heavily on this more venerable line of Supreme Court precedent which the Eleventh Circuit did not treat, we think the split with our sister circuit which we create today will be short-lived." Id. at 339, n. 3. Twelve years on, that split abides.
Two recent district court decisions have followed the Fifth Circuit approach, allowing the plaintiff to bring his general maritime negligence claim despite an otherwise applicable workers' compensation exclusivity provision; neither relies on an interests balancing test. See Frazier v. Carnival Corp., 492 F. Supp. 2d 571 (E.D. La. 2007) (bound by Fifth Circuit precedent to apply the approach in Green); Moore v. Capitol Finishes, Inc., No. 2:09cv392, 2010 WL 1190822 (E.D. Va. Mar. 9, 2010) (acknowledging that the issue was a novel one in the Fourth Circuit, surveying the Fifth Circuit and Eleventh Circuit approaches, adopting the former).
On the other hand, the Virginia Supreme Court has embraced the Eleventh Circuit's balancing test. Mizenko v. Electric Motor Contracting Co., Inc., 244 Va. 152, 164 (1992). It produced a sharply divided opinion in which a bare majority concluded that the federal interest in allowing the plaintiff, a subcontractor working on a Navy destroyer, to bring a general maritime negligence claim against his private employer outweighed the state's interest in enforcing the exclusive remedy provision of its workers' compensation system. Id. Finally, a Washington Appeals Court, citing Fifth Circuit precedent, and without applying any balancing test, determined that a plaintiff injured on a ferry ride could bring a claim for general maritime negligence despite the applicability of Washington's workers' compensation law. Maziar v. State Dept. of Corrections, 216 P.3d 430, 435 (Wash. Ct. App. 2009).
From this survey, the following is clear. When a conflict exists between state law and the general maritime law, two analyses are possible. A court can look to see whether the plaintiff's cause of action exists under the general maritime law. If the Supreme Court has provided for this cause of action, and the otherwise applicable state law would bar such a claim, then the state law must yield. See Pope Talbot, 346 U.S. at 410. On the other hand, a court can resort to a traditional balancing test, weighing the equities between state and federal interests on a case-by-case basis. See Kossick, 365 U.S. at 739; Brockington, 903 F.2d at 1530-33. This Court concludes that the first approach, as adopted by the Fifth Circuit and other courts, is most faithful to Supreme Court precedent, and must control in the instant matter. "That uniformity is not to be sacrificed to accommodate state law is a fundamental premise of admiralty jurisdiction." Green, 144 F.3d at 341 (citation omitted). When this Court sits in admiralty, it may not allow a state's statute to deny a plaintiff the opportunity to pursue a cause of action expressly provided for in the general maritime law.
Under the Fifth Circuit approach, a court still maintains discretion to apply state law in certain cases. Such discretion is inherent when determining whether admiralty jurisdiction exists. Specifically, in suits involving injuries sustained on the navigable waters of the United States that have little or no connection to traditional maritime activities, a court may rule that state law applies if it finds that the facts do not support admiralty jurisdiction.
Under the old rule for determining admiralty jurisdiction for tort claims, if the events giving rise to the action occurred on navigable waters, such circumstance was sufficient to give rise to admiralty jurisdiction. See, e.g., Rohde, 257 U.S. at 476 ("The general doctrine that admiralty jurisdiction depends . . . in tort matters upon the locality, has been so frequently asserted by this Court that it must now be treated as settled."). The modern analysis, however, is not so simple. In addition to meeting this locality requirement, admiralty jurisdiction for tort claims also requires that the incident have "a potentially disruptive impact on maritime commerce," and that "the general character of the activity giving rise to the incident show[] a substantial relationship to traditional maritime activity." Jerome B. Grubart, Inc. v. Great Lakes Dredge Dock Co., 513 U.S. 527, 534 (1995). This "maritime nexus" test thus involves weighing the federal interest in applying maritime law to the particular claim. See 1 Thomas J. Schoenbaum, Admiralty and Maritime Law 106 (4th ed. 2004).
Seen in this light, then, the Fifth and Eleventh Circuit approaches might not be as discordant as they originally appeared. They might also not yield substantially different results in practice. The Eleventh Circuit's decision in Brockington seemed motivated, at least in part, by the court's desire to apply state law to a case that exhibited little connection to traditional maritime activity. This same motivation can guide the jurisdictional analysis required under the Fifth Circuit approach. See id. at 108 (concluding that the modern test for admiralty jurisdiction operates "as a policy-based filter that allows the courts flexibility in screening out unusual fact situations that are not maritime in nature, but happen to occur in navigable waters."). The difference seems merely to be one of analytical efficiency. Under the Fifth Circuit analysis, a court assesses the strength of federal maritime interests to determine whether admiralty jurisdiction exists. If admiralty is proper, then federal law prevails. If not, then state law will apply. The Eleventh Circuit approach requires the same threshold jurisdictional analysis. But, assuming admiralty jurisdiction exists, a second balancing test, involving largely the same criteria, follows shortly thereafter. The Court sees no reason to engage in this additional, seemingly redundant analysis.
Turning to the present matter, Plaintiff was injured in the course of employment, but he is not covered either by the Jones Act or the LHWCA. "Injured workers who fall under neither category may still recover under an applicable state workers' compensation scheme, or, in admiralty, under general maritime tort principles." Chandris, Inc. v. Latsis, 515 U.S. 347, 356 (1995). Plaintiff's claim is therefore a clearly defined cause of action in the general maritime law.
With regard to Plaintiff Maryann's claim for loss of services and consortium, the Supreme Court has likewise recognized such cause of action to exist under the general maritime law. See American Export Lines, Inc. v. Alvez, 446 U.S. 274, 285 (1980). So the analysis is substantially the same. Her claim will survive summary judgment as well.
The New Jersey Workmen's Compensation Act, if applied, would bar Plaintiff from bringing this claim. Thus, it appears that the state law would "deprive" Plaintiff of a "substantive admiralty right[] as defined . . . by interpretive decisions of [the Supreme] Court." Pope Talbot, 346 U.S. at 410; see also Moore v. Capitol Finishes, Inc., 2010 WL 1190822 at *9) (concluding that to allow a state workers' compensation law to preclude a plaintiff's maritime tort claim would be "the quintessence of deprivation"). Accordingly, Plaintiff's general maritime negligence claim must be preserved, despite the exclusivity provision of the New Jersey Workmen's Compensation Act.
Despite defense counsel's assertions to the contrary, the activities giving rise to the Plaintiff's claim are traditional maritime activities. Plaintiff, a passenger on a vessel, was injured on that vessel while in navigable waters. In adjudicating the negligence claim, issues of the vessel's operation, maintenance, or seaworthiness are likely to arise.
Of course, the fact that Plaintiff has already received workers' compensation benefits should not materially affect the analysis. Should Plaintiff prevail on his federal common law claim, the amount of his received workers' compensation payments will be credited against the final award. See Peter v. Hess Oil Virgin Islands Corp., 903 F.2d 935, 946 (3d Cir. 1990). In addition, assuming that MarineMax relies on one insurer to pay workers' compensation benefits, and another insurer to pay damages in a negligence suit, the Court expresses no opinion about the extent to which one insurer should reimburse the other to satisfy any award Plaintiffs might receive under their federal common law claims.
Defendants, in support of their motion, assert that to let Plaintiff's claim stand would be to render legislation such as the Jones Act and LHWCA "ineffectual and pointless." (Def.'s Response to Pl.'s Br. in Opp. 3.) The Court disagrees. The Supreme Court has acknowledged that a general maritime tort claim is "admittedly less generous than the Jones Act's protections." Chandris, 515 U.S. at 356. In addition, the LHWCA sets a federal minimum for workers' compensation benefits. Were New Jersey workers' compensation benefits paid at a lower rate than those provided for in the LHWCA, a worker covered by the federal act would be entitled to the higher payments, while Plaintiff would have to accept the inferior state compensation schedule. In addition, Plaintiff's claim for negligence is a completely different basis for recovery than the LHWCA's no-fault compensation scheme. See Peter v. Hess Oil Virgin Islands Corp., 903 F.2d 935, 951 (3d Cir. 1990) (citations omitted). So the analyses for declaring a particular person covered by either the Jones Act or the LHWCA remain critical in the realm of recovery for injuries to workers on the navigable waters of the United States. In sum, New Jersey's Workmen's Compensation Act cannot preclude Plaintiff's claim for general maritime negligence.
IV.For the reasons stated above, the Court holds that under the general maritime law, Plaintiff may bring a claim for negligence under the general maritime law against Defendants, and that such claim may not be barred by New Jersey's Workmen's Compensation Act. Defendants' motion will therefore be denied. The Court will issue an appropriate Order.
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