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U.S. v. YUSELEW
This opinion will be unpublished and may not be cited except as provided by Minn. Stat. § 480A.08, subd. 3 (2008).
CONNOLLY, Judge
In this negligence case in which appellant tripped and fell in respondent's driveway, appellant challenges the district court's grant of summary judgment in favor of respondent. Appellant argues that genuine issues of material fact exist regarding the known-or-obvious-danger exception to respondent's general duty to use reasonable care to maintain his driveway in a safe condition. Because there are no genuine issues of material fact and the district court correctly applied the law in determining that respondent owed no duty of care to appellant, we affirm.
FACTS
On September 18, 2006, appellant Wayne Aronson, an employee of Granite City Moving Storage (Granite City), went to respondent Stephen McDowall's house in St. Paul to move the belongings of respondent's friend and tenant, Scott Anderson, to a new residence in North Carolina. Appellant is a professional mover whose responsibilities with Granite City included loading and transporting belongings by truck across the continental United States. Appellant was hired by Granite City in March 2001; he had previously worked in the moving industry for different employers. Appellant had broken his left leg in a work-related accident in 2005, which resulted in recurring health problems.
When he arrived at respondent's house, appellant noticed a pothole in the driveway. At his deposition, appellant stated that he moved his truck to create a path clear of the pothole because items could fall if his handcart hit the pothole. Appellant stated that he was "looking for the flattest, safest route." Although appellant was working for Anderson, respondent "noticed him moving the truck" to avoid the pothole. Respondent did not ask appellant why he moved the truck and did not warn him about the pothole.
In his deposition, appellant referred to the surface irregularity as a "divot," which he described as "broken concrete." Respondent referred to it as a "depression" or "dip." Respondent later described it as "depressed concrete" and "an average size pothole" that was at least a few inches deep. We will refer to the irregularity as a pothole.
Appellant and his girlfriend, with whom he subcontracted to help move Anderson's belongings, had to move 40 items from respondent's house to appellant's truck. The last item was a weight bench, and when appellant was carrying it to the truck, he stepped in the pothole and tripped and fell. Appellant's girlfriend ran into the house and told respondent to call 911, which respondent promptly did. An ambulance took appellant to a hospital; he was hospitalized for four days. Appellant suffered a compound fracture of his arm and lacerations to his face, some of which required stitches.
Appellant subsequently sued respondent for negligence, alleging that respondent failed to adequately maintain the safety of his driveway. Respondent moved for summary judgment, arguing that he did not owe a duty to appellant because the pothole was a known or obvious danger. Appellant argued that summary judgment was improper because respondent owed a duty to use reasonable care to maintain and repair the driveway and to warn of the potentially unsafe condition, and that there were genuine issues of material fact concerning whether appellant understood the danger posed by the pothole and whether respondent should have anticipated the injury despite the pothole's visibility.
The district court granted respondent's motion for summary judgment. It concluded that the danger posed by the pothole was known or obvious and that respondent therefore did not owe a duty to appellant. The court found that a "reasonable person, who is alert enough to the hazardous [pothole] to reposition his truck to avoid it, is equally aware that the [pothole] may cause a person to trip and fall, thus posing a dangerous condition." The district court concluded that respondent should not have anticipated the harm despite the known or obvious danger: "Common sense dictates that when a person takes deliberate steps to move around a potentially dangerous situation, he has already seen and acknowledged the risk. There is no reason to expect that he will be harmed in the future as a result, or that a warning should be issued." The district court found no genuine issues of material fact and concluded that respondent was entitled to judgment as a matter of law.
This appeal follows.
DECISION
Summary judgment is appropriate when "the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that either party is entitled to judgment as a matter of law." Minn. R. Civ. P. 56.03. "On appeal from summary judgment, we must determine whether there are any genuine issues of material fact, and whether the lower court erred in its application of the law." Olmanson v. LeSueur County, 693 N.W.2d 876, 879 (Minn. 2005). "We view the evidence in the light most favorable to the party against whom summary judgment was granted." STAR Ctrs., Inc. v. Faegre Benson, L.L.P., 644 N.W.2d 72, 76-77 (Minn. 2002). But to avoid summary judgment, the nonmoving party must present evidence that is "sufficiently probative with respect to an essential element of the nonmoving party's case to permit reasonable persons to draw different conclusions." DLH, Inc. v. Russ, 566 N.W.2d 60, 71 (Minn. 1997).
A plaintiff in a negligence action must prove four elements: "(1) the existence of a duty of care, (2) a breach of that duty, (3) an injury, and (4) the breach of that duty being the proximate cause of the injury." Louis v. Louis, 636 N.W.2d 314, 318 (Minn. 2001). The defendant is entitled to summary judgment when the plaintiff fails to produce sufficient evidence on any of those elements. Id. Analysis of a negligence action brought against a landowner must begin with an inquiry into whether the landowner owed a duty to the entrant. Baber v. Dill, 531 N.W.2d 493, 495 (Minn. 1995). Whether a legal duty exists is a question of law. Louis, 636 N.W.2d at 318.
Possessors of land owe a general duty to exercise reasonable care for the safety of all entrants upon the premises. Olmanson, 693 N.W.2d at 880. The entrant also has a duty to exercise reasonable care, which may vary based on the circumstances. Id. at 881. The landowner's duty "includes an ongoing duty to inspect and maintain property to ensure entrants on the landowner's land are not exposed to unreasonable risks of harm." Id. If a dangerous condition on the premises is discoverable through reasonable efforts of the landowner, "the landowner must either repair the conditions or provide invited entrants with adequate warnings." Id.
But despite the general rule requiring landowners to inspect, repair, and warn, there is an exception when the dangerous condition is "known or obvious." Id. Thus, the owner does not need to warn the entrant of the known or obvious condition unless he should anticipate the harm even though the danger is known or obvious. Id. The duty to warn only pertains to latent or hidden dangers. Presbrey v. James, 781 N.W.2d 13, 19 (Minn. App. 2010). "The rationale underlying this rule is that, generally, no one needs notice of what he knows or reasonably may be expected to know." Louis, 636 N.W.2d at 319 (quotation omitted).
A danger is obvious if the dangerous condition was in fact observable and "both the condition and the risk are apparent to and would be recognized by a reasonable man in the position of the visitor, exercising ordinary perception, intelligence and judgment." Id. at 321 (quotation omitted). A danger is known if the entrant is (1) aware of the condition itself and (2) appreciates the danger it involves. Id. If the danger is either known or obvious, the landowner does not owe a duty to the entrant unless he "should nevertheless have anticipated the harm despite its known or obvious danger." Id. at 322.
In this case, the pothole was clearly visible. It is undisputed that appellant was in fact aware of the pothole and took steps to avoid it. A reasonable person exercising ordinary judgment would have perceived that he could be injured if he stepped in the pothole and tripped and fell while carrying furniture. Thus, as a matter of law, the danger was obvious.
We find no merit in appellant's contention that respondent should have anticipated his injury despite the obvious danger. Appellant was a professional mover with years of experience, and respondent saw appellant notice the pothole and reposition his truck to avoid it. We recently held in Presbrey that a homeowner owed no duty to warn a deck-repair specialist of the risks involved in repairing a deck in inclement weather, reasoning in part that Presbrey's "experience made him more aware of the risks and potential consequences of working in those conditions" than the homeowner. 781 N.W.2d at 19. Similarly, here appellant was at least as aware of the risks of carrying furniture to the moving truck with a pothole in the driveway as was respondent, and appellant in fact saw the pothole and took steps to avoid it. As our caselaw has repeatedly admonished, "no one needs notice of what he knows." Louis, 636 N.W.2d at 319 (quotation omitted).
Finally, appellant contends that caselaw pertaining to distracting circumstances diverting an entrant's attention is controlling. This argument was never presented to the district court, and we will not consider it for the first time on appeal. See Thiele v. Stich, 425 N.W.2d 580, 582 (Minn. 1988) (holding that appellate courts may not consider issues not litigated in district court and that a party may not shift theories on appeal).
Affirmed.
U.S.S.G. § 4A1.2 cmt. 12 ("Application of Subsection (c)."). The notes explaining why the guidelines were amended state that one reason is to "resolve[] a circuit conflict over the manner in which a non-listed offense is determined to be `similar to' an offense listed at § 4A1.2(c)(1) and (2)." U.S.S.G. § 4A1.2 (notes on the 2007 amendment). It is possible that patronizing a prostitute and prostitution are not similar to one another under the new analysis in the application notes.
The amendment resolves a circuit conflict over the manner in which a court should determine whether a non-listed offense is "similar to" an offense listed at § 4A1.2(c)(1) or (2). Some courts have adopted a "common sense approach," first articulated by the Fifth Circuit in United States v. Hardeman, 933 F.2d 278, 281 (5th Cir. 1991). This common sense approach includes consideration of all relevant factors of similarity such as "punishments imposed for the listed and unlisted offenses, the perceived seriousness of the offense as indicated by the level of punishment, the elements of the offense, the level of culpability involved, and the degree to which the commission of the offense indicates a likelihood of recurring criminal conduct." Id. Other courts have adopted a strict "elements" test, which involves solely a comparison between the elements of the two offenses to determine whether or not the offenses are similar. This amendment, at Application Note 12(A), adopts the Hardeman "common sense approach" as a means of ensuring that courts are guided by a number of relevant factors that may help them determine whether a non-listed offense is similar to a listed one.
U.S.S.G. § 4A1.2 (notes on the 2007 amendment) (citations omitted). The Tenth Circuit has yet to address this amendment, and the amendment indicates that the Sentencing Commission disagreed with the Tenth Circuit's similarity analysis. See United States v. Sullivan, 313 Fed. Appx. 147, 150-51 (10th Cir. 2009) ("As we stated in United States v. Perez de Dios, to be `similar' is to be `nearly corresponding; resembling in many respects; somewhat alike; having a general likeness.'"). The Court need not resolve the effect of the 2007 amendment on current Tenth Circuit jurisprudence, however, because the parties in this case agree that the crimes of patronizing a prostitute and prostitution are similar for the purposes of U.S.S.G. § 4A1.2(c)(1).
The Tenth Circuit in United States v. Sullivan had no reason to address the amended Application Note because the sentencing occurred before the November 1, 2007 effective date of the amendments. See United States v. Sullivan, No. CR 06-0402 JEC-1, Clerk's Minutes, filed October 18, 2007 (Doc. 63) (recounting that the sentencing occurred on October 18, 2007). The Tenth Circuit thus has not had a clear opportunity to address the 2007 amendment.
2. Whether a Time-Served Sentence is a Term of Imprisonment .
For a normally excludable offense to be included in the criminal history, § 4A1.2(c)(1) requires that the "sentence was . . . a term of imprisonment of at least thirty days." U.S.S.G. § 4A1.2(c)(1). The text of section § 4A1.2(c)(1) does not clearly specify what constitutes a term of imprisonment under the rule. The application notes and other rules, however, are informative.
The language of U.S.S.G. § 4A1.2(c)(1), concerning whether the "sentence was a term of imprisonment," is similar to that concerning the general criminal history determination guidelines of § 4A1.1(a) and (b), which employs the term "prior sentence of imprisonment." The Application Note 2 to § 4A1.2 notes: "[T]o qualify as a sentence of imprisonment, the defendant must have actually served a period of imprisonment on such sentence. . . ." U.S.S.G. § 4A1.2 cmt. 2.
The Tenth Circuit takes a relatively strict approach to the determination of a term of imprisonment. In United States v. Cruz-Alcala, 338 F.3d 1194 (10th Cir. 2003), the Tenth Circuit appeared to take the view that, regardless how or when a term of imprisonment is served, the length of sentence imposed by the judge is the "term of imprisonment" under the guidelines:
Section 4A1.2(b)(1) defines "sentence of imprisonment" to mean "the maximum sentence imposed." "Criminal history points given under § 4A1.2(b) are based on the sentence pronounced, not the length of time actually served." United States v. Holbert, 285 F.3d 1257, 1263 (10th Cir. 2002) (citing USSG § 4A1.2, comment. (n. 2)). The Guidelines make no "distinction as to how or when the defendant must serve the sentence, such as receiving time off for good behavior, surrendering voluntarily at some future date or getting credit for time spent awaiting trial." United States v. Staples, 202 F.3d 992, 997 (7th Cir. 2000). The "sentence pronounced" here was 320 days; that is what matters under the Guidelines. See Holbert, 285 F.3d at 1263 (sentence of 90 days in jail, with possibility of two days' credit for each day served, treated as 90-day sentence); United States v. Rodriguez-Lopez, 170 F.3d 1244, 1246 (9th Cir. 1999) (sentence of "time served" (62 days was served between defendant's arrest and sentence) treated as 62-day sentence); United States v. Garin, 103 F.3d 687, 690 (8th Cir. 1996) (sentence of 60 days with credit for 2 days "time served" treated as 60-day sentence); Staples, 202 F.3d at 997-98 (sentence of 250 days with credit for 250 days served on an unrelated offense treated as 250-day sentence); United States v. Atkinson, 15 F.3d 715, 721 (7th Cir. 1994) (sentence of 77 days "time served" treated as 77-day sentence).United States v. Cruz-Alcala, 338 F.3d at 1199-1200. See United States v. Soto-Melchor, 273 Fed. Appx. 754, 757 (10th Cir. 2008) (applying points for a prior misdemeanor under U.S.S.G. § 4A1.2(c)(1) where the trial court imposed a 30-day sentence, of which the defendant served only 10 days). On the other hand, "[t]o constitute a `term of imprisonment of at least thirty days,' the defendant must actually serve some portion of that sentence." United States v. Caldwell, 585 F.3d 1347, 1354 (10th Cir. 2009) (quoting U.S.S.G. § 4A1.2, cmt 2). It thus appears that, at least in the Tenth Circuit, a defendant's "term of imprisonment" is based on the sentence of imprisonment that the trial judge imposes, regardless of how or when the defendant serves the sentence, so long as the defendant serves at least some part of that sentence in prison.
U.S.S.G. § 3C1.1
U.S.S.G. § 3C1.1 states:
If (A) the defendant willfully obstructed or impeded, or attempted to obstruct or impede, the administration of justice with respect to the investigation, prosecution, or sentencing of the instant offense of conviction, and (B) the obstructive conduct related to (i) the defendant's offense of conviction and any relevant conduct; or (ii) a closely related offense, increase the offense level by 2 levels.
The application notes state: "Obstructive conduct that occurred prior to the start of the investigation of the instant offense of conviction may be covered by this guideline if the conduct was purposefully calculated, and likely, to thwart the investigation or prosecution of the offense of conviction." U.S.S.G. § 3C1.1 cmt. 1.
The application notes to U.S.S.G. § 3C1.1 further state that the types of conduct that the Sentencing Committee believes warrant the upward adjustment include the following:
(a) threatening, intimidating, or otherwise unlawfully influencing a co-defendant, witness, or juror, directly or indirectly, or attempting to do so . . . (d) destroying or concealing or directing or procuring another person to destroy or conceal evidence that is material to an official investigation or judicial proceeding ( e.g., shredding a document or destroying ledgers upon learning that an official investigation has commenced or is about to commence), or attempting to do so.
U.S.S.G. § 3C1.1, cmt. 4(a) (c). In United States v. Rising Sun, 522 F.3d 989 (9th Cir. 2008), the United States Court of Appeals for the Ninth Circuit applied this provision, and the case is similar to this case. In United States v. Rising Sun, Rising Sun had killed two people in the presence of his brother, Moses. See 522 F.3d at 992. After the murder, Rising Sun was preparing to destroy the clothing he had worn during the murder and threatened Moses with a knife when Moses suggested that he was going to tell someone about the murder. See id. Rising Sun was eventually arrested and indicted, then pled guilty to two counts of second-degree murder. See id. The sentencing judge imposed the 2-point obstruction enhancement pursuant to § 3C1.1, because Rising Sun had threatened Moses to keep him quiet about the murders and had attempted to destroy the blood-stained clothing he was wearing when he committed them. See United States v. Rising Sun, 522 F.3d at 995. The Ninth Circuit reversed, after determining that affirmance would be appropriate if the trial court were applying the 2006 version of the Guidelines. See id. at 996-97. The Ninth Circuit stated:
[T]he new application note 1 in the commentary to § 3C1.1 states that "[o]bstructive conduct that occurred prior to the start of the investigation of the instant offense of conviction may be covered by this guideline if the conduct was purposefully calculated, and likely, to thwart the investigation or prosecution of the offense of conviction." This application note would appear to be an almost letter-perfect description of the conduct that Rising Sun engaged in after committing the murders; nonetheless, it cannot be applied to his case.Id. The Ninth Circuit would apply the enhancement to Rising Sun's conduct, notwithstanding that the obstruction did not actually impede the investigation or prosecution of Rising Sun, and there is nothing to indicate that the Tenth Circuit would hold otherwise.
In the Ninth Circuit, before the 2006 amendment, actions taken before the police initiated an investigation into the defendant's crime could not be considered as the basis for a § 3C1.1 enhancement. Thus, notwithstanding the near-perfect fit between Rising Sun's conduct and the examples listed in the application notes to § 3C1.1, the Ninth Circuit reversed because the conduct in which Rising Sun engaged occurred before the police had begun investigating the murders he committed. Because the trial court was constrained to apply the 2003 version of the Guidelines, it was error to apply the enhancement based on pre-investigation conduct. The Court is not so constrained in this case.
ANALYSIS
Yuselew's offense level is 37 and his criminal history category is II, resulting in a guideline imprisonment range of 235 to 293 months. Yuselew raises two objections, requests a downward departure, and seeks a sentence at the bottom of the advisory guideline range. The United States initially opposed all of Yuselew's requests, but withdrew its challenge to Yuselew's objection to paragraph 43 at the hearing. The Court must thus resolve Yuselew's second objection, his request for a downward departure, and his request for a sentence at the bottom of the advisory guideline range. While the Court overrules his contested objection and denies his request for a downward departure, the Court grants Yuselew's final requests and sentences Yuselew to a term of 210 months — a sentence at the bottom of the guideline range.
I. YUSELEW IS PROPERLY ASSESSED A TWO-OFFENSE-LEVEL INCREASE FOR OBSTRUCTION OF JUSTICE UNDER U.S.S.G. § 3C1.1 .
Yuselew objects to the PSR's imposition of a 2-level enhancement for obstruction of justice. He asserts that, when actions are taken before the commencement of a police investigation, such points should be imposed only when the actions are purposefully calculated and likely to thwart the investigation and prosecution. He argues his actions were neither purposefully calculated nor likely to thwart the investigation and prosecution. The United States disagrees, arguing imposition of the enhancement is proper in this case. The Court agrees with the United States.
Section 3C1.1 of the U.S.S.G. states:
If (A) the defendant willfully obstructed or impeded, or attempted to obstruct or impede, the administration of justice with respect to the investigation, prosecution, or sentencing of the instant offense of conviction, and (B) the obstructive conduct related to (i) the defendant's offense of conviction and any relevant conduct; or (ii) a closely related offense, increase the offense level by 2 levels.
The application notes state: "Obstructive conduct that occurred prior to the start of the investigation of the instant offense of conviction may be covered by this guideline if the conduct was purposefully calculated, and likely, to thwart the investigation or prosecution of the offense of conviction." The application notes to U.S.S.G. § 3C1.1 regarding the types of conduct that the sentencing guideline committee believe warrant the upward adjustment include the following:
(a) threatening [or] intimidating . . . a . . . witness . . ., or attempting to do so . . . (d) destroying or concealing . . . evidence that is material to an official investigation or judicial proceeding (e.g., shredding a document or destroying ledgers upon learning that an official investigation has commenced or is about to commence), or attempting to do so.
Yuselew asserts that only two acts might arguably justify application of this section — that he threatened to kill his girlfriend if she told anyone about the murder and that he buried the murder weapon in his back yard shortly after the murder occurred. He asserts that these actions were not "purposefully calculated and likely to thwart the investigation or prosecution of the offense in question." The Court disagrees.
Imposition of the 2-level enhancement is appropriate in this case. First, because all of Yuselew's acts reflected in the PSR occurred before the police investigation was underway, the conduct is "covered by [§ 3C1.1] if the conduct was purposefully calculated, and likely, to thwart the investigation or prosecution of the offense of conviction." U.S.S.G. § 3C1.1 cmt. 1. Yuselew argues that this request imposes a high burden, both in terms of the mental state that the United States must show and the degree to which the conduct is likely to impede the investigation. The Court concludes, however, that the United States has met its burden in this case.
The Court believes the record shows, by a preponderance of the evidence, that several of Yuselew's acts were purposefully calculated and likely to thwart any investigation into the murder of Quam. Immediately after he killed Quam, Yuselew beat the only witness and threatened to kill her if she told anyone about the murder. When they left the house, Yuselew put a padlock on the house containing the dead body that was still in place when the police eventually came to investigate. Yuselew buried the murder weapon in the back yard and took substantial steps toward burying the body there as well. When he discovered burying the body would be too difficult, Yuselew attempted to obtain a truck for the purpose of getting rid of the body. He also called Calavaza's mother and tried to redirect the blame for the murder onto Calavaza, the witness whom he beat and whose life he threatened.
Many of Yuselew's acts are specifically listed in the application notes to § 3C1.1 as examples of conduct that would justify application of the § 3C1.1 enhancement. He threatened with death the only witness to the crime, which is listed in application note 4(a) ("[T]hreatening [or] intimidating . . . a . . . witness . . . directly or indirectly, or attempting to do so[.]"). And he attempted to hide the murder weapon by burying it in his back yard, and took steps toward concealing the victim's body, which is listed in application note 4(d) ("[D]estroying or concealing . . . evidence that is material to an official investigation or judicial proceeding . . ., or attempting to do so[.]"). Either of these acts appears to be sufficient to warrant imposition of the § 3C1.1 enhancement.
The Court finds unpersuasive Yuselew's argument that none of these actions were pureposefully calculated to thwart the investigation. First of all, the Court does not believe it should equate "purposefully calculated" with premeditation. Premeditation has a time component. Meditating on an action — intending to do something — is not enough; the thinking about the act must precede the act. The Tenth Circuit's pattern jury instructions describe premeditation as follows:
A killing is "premeditated" when it is the result of planning or deliberation. The amount of time needed for premeditation of a killing depends on the person and the circumstances. It must be long enough for the killer, after forming the intent to kill, to be fully conscious of that intent.
Tenth Circuit Pattern Jury Instructions (Criminal) § 2.52 (2006) (FIRST DEGREE MURDER). Premeditation and purposeful calculation both require deliberation, see Black's Law Dictionary at 1300 (9th ed. 2009) (" premeditated, adj. . . . Done with willful deliberation and planning; consciously considered beforehand[.]"); id. at 1356 (" purposeful, adj. Done with a specific purpose in mind; deliberate."), but premeditation requires the planning to come before the act, and the period of time before the act is important. For example, a killing like the one Yuselew committed in this case was probably not premeditated — it was an overreaction to a perceived insult and committed in the heat of the moment. On the other hand, Yuselew's act — striking Quam in the neck with an axe — was purposefully calculated to cause Quam's death. In other words, the word premeditated has a judicial gloss upon it that makes it arguably more exacting than purposeful and calculated. If the Sentencing Committee had wanted the Court to use premeditation as the standard for application of § 3C1.1, with all of its judicial gloss, it could have used that word. It did not. Because applying the Tenth Circuit's standard for premeditation to § 3C1.1 might raise the United States' burden beyond that which the Sentencing Commission contemplated when drafting the guidelines, the Court will not hold that "purposefully calculated" can be equated to premeditation. The Court will apply the phrase that the Sentencing Commission used — purposefully calculated.
This purposeful calculation was evidenced by Yuselew's statement to Quam: "I told you if you touch her again I would kill you." PSR ¶ 20, at 6. He expressed an intent to kill Quam and then acted upon it. There was probably insufficient time for premeditation, but there was time for executing the purposefully calculated act of swinging the ax toward Quam.
The Court believes that, to warrant application of the § 3C1.1 enhancement, the defendant must have deliberately — not accidentally or incidentally or mistakenly — done some act with the specific purpose of thwarting the investigation and prosecution. Using this test, the Court believes that at least two of Yuselew's acts were purposefully calculated. Each of the acts listed above demonstrate Yuselew's desire not to be caught by the police. He threatened the only witness with death if she told the authorities and attempted to bury the evidence. While these two acts occurred close in time to the murder, the Court does not believe that § 3C1.1 requires a defendant to sit down, cool off after his grizzly deed, think and plan his obstruction for a specific amount of time, and then threaten a witness or attempt to bury the murder weapon before it can be said that his actions were purposefully calculated to thwart an investigation. The Court believes a defendant can rather quickly after completing a crime begin to purposefully calculate to cover up his crime and thwart an investigation. Furthermore, Yuselew, likely when he became nervous that he would soon be caught, attempted to lay blame for the murder at the feet of someone who he knew was present at the time it was committed. While this final act occurred later, and is not direct evidence of Yuselew's intent when he made the threat and attempted to bury the ax, it is some evidence of his underlying intent to obstruct justice by covering up his involvement in the crime. In sum, Yuselew's intent — his purposeful calculation — appears to have been present after this murder and contributed to his attempts to avoid being charged with it. The Court finds that Yuselew's actions are sufficient circumstantial evidence of his state of mind to conclude that the actions were purposefully calculated to thwart any investigation into Quam's murder.
The Court also finds that the acts were of a kind that were likely to thwart the investigation and eventual prosecution. While the attempts ultimately failed, they appear to have been successful for a time. See, e.g., United States v. Phillips, 367 F.3d 846 (9th Cir. 2004) (holding application of the enhancement appropriate even though the defendant's efforts to influence a witness failed, because "the Government need only show an attempt to influence a witness to trigger U.S.S.G. § 3C1.1's obstruction of justice enhancement.") (emphasis in original). Calavaza did not initially tell anyone, and the ax was not found until the police were tipped off and investigated Yuselew's house. In sum, not only were the actions likely to thwart, they probably did thwart the investigation by delaying its commencement. Yuselew's actions are therefore fairly characterized as attempts to obstruct or impede the administration of justice.
The Court rejects Mr. Winterbottom's argument during the hearing that the language of application note 1 somehow renders attempts insufficient to justify application of § 3C1.1 if the acts are committed before the investigation commences. See Tr. at 34:14-35:12 (Winterbottom). Both the text of § 3C1.1, describing the enhancement, and application note 4, which lists examples of covered conduct, include attempts to obstruct as conduct that justifies application of the enhancement. See U.S.S.G. § 3C1.1 ("If . . . the defendant willfully obstructed or impeded, orattempted to obstruct or impede. . . .") (emphasis added); id. cmt. 4(a) ("threatening, intimidating, . . . or attempting to do so. . . ."); id. cmt. 4(b) ("committing, suborning, or attempting to suborn perjury. . . ."); id. cmt. 4(c) ("producing or attempting to produce a false, altered, or counterfeit document. . . ."); id. cmt. 4(d) ("destroying or concealing . . . evidence . . . or attempting to do so. . . ."); id. cmt. 4(e) ("escaping or attempting to escape from custody. . . ."). That Yuselew's attempts to obstruct justice failed, therefore, does not bar the Court from applying the § 3C1.1 enhancement. The Court concludes that a 2-level enhancement for obstruction of justice pursuant to U.S.S.G. § 3C1.1 is proper under the facts of this case, and thus overrules Yuselew's second objection. The Court will calculate Yuselew's sentence based upon an offense level of 37.
II. THE COURT OVERRULES AS MOOT YUSELEW'S OBJECTION TO PARAGRAPH 43 OF THE PSR .
Yuselew objects to the fact that the PSR assesses 1 criminal history point in paragraph 43. Yuselew does not believe that the entry in paragraph 43 — that he was "sentenced to forty-four (44) days jail (time served) and court costs" — is entirely correct, although he concedes that the precise sentence is somewhat difficult to reconstruct. The question this objection poses is whether a time served sentence, where the defendant was detained more than thirty days before being sentenced, qualifies as a "term of imprisonment" of at least thirty days, thereby justifying an additional criminal history point pursuant to U.S.S.G. § 4A1.2(c)(1). Based on these arguments, the Court would be inclined to conclude that a time-served sentence is a term of imprisonment under § 4A1.2(c)(1). Because of the ambiguity in the evidence, and because the United States withdrew its opposition to Yuselew's objection, however, the Court will sustain the objection and strike the criminal history point added in paragraph 43.
This analysis is only applicable to the extent that the crime of patronizing a prostitute is "similar to" the crime of prostitution, as that term is used in the context of U.S.S.G. § 4A1.2(c)(1). Both parties agree that patronizing a prostitute is "similar to" the crime of prostitution, and the Court agrees. Moreover, as the Court will explain, the Court also need not perform this analysis because the United States has agreed not to pursue the 2-point enhancement, because the record of Yuselew's patronizing-a-prostitute conviction is ambiguous whether the judge gave a deferred sentence — in which case the term of imprisonment was zero days and § 4A1.2(c)(1) would demand that no criminal history points attach to the conviction — or a time-served sentence. See Tr. at 12:24-14:7 (Court, Burkhead).
As the Tenth Circuit has noted, "[t]he Guidelines make no `distinction as to how or when the defendant must serve the sentence.'" United States v. Cruz-Alcala, 338 F.3d at 1199-1200. The Tenth Circuit has thus stated in fairly clear terms that the "sentence imposed" for the purposes of § 4A1.2 includes time-served sentences — sentences in which the sentence is served before it is announced. Id. The key factor in determining a term of imprisonment is how long the sentence is that the sentencing judge pronounces. See United States v. Soto-Melchor, 273 Fed. Appx. at 757 (holding, in the context of U.S.S.G. § 4A1.2(c)(1), that the term of imprisonment is the period of time that the judge pronounces, not the time actually spent in jail serving the sentence). As long as the judge states a sentence of at least thirty days, and the defendant serves some portion of the term — even if the time actually served is less than thirty days — the "term of imprisonment" is at least thirty days. See United States v. Soto-Melchor, 273 Fed. Appx. 754, 757 (10th Cir. 2008). The Court would thus likely hold that Yuselew's time-served sentence of forty-four days was sufficient to trigger § 4A1.2(c)(1) and add 1 point to his criminal history score.
The cases that Yuselew cites in support of his objection are not to the contrary. In United States v. Hall, 531 F.3d 414 (6th Cir. 2008), the United States Court of Appeals for the Sixth Circuit noted:
Cold reality informs us that a defendant who receives full credit for time served on an entirely separate conviction does not in fact "actually serve" any time for the offense in question. As stated in mathematical terms, plus thirty (days to be served) minus thirty (days credit) equals zero (days actually served).Id. at 419. This statement might appear to run contrary to the Tenth Circuit's view of the "term of imprisonment" under U.S.S.G. § 4A1.2(c)(1). The Sixth Circuit in United States v. Hall, however, was dealing with a situation in which the sentencing court found that the sentence for the underlying offense was completely satisfied by a term of imprisonment previously imposed, and served, for a separate offense. See 531 F.3d at 416-17 ("For both of the misdemeanor convictions at issue, Hall was given full credit for time already served on a different charge[.]"). In this case, on the other hand, the state judge sentenced Yuselew to the forty-four days he had already served for the offense of patronizing a prostitute — the same crime for which he was being sentenced. In one of its concluding paragraphs, the Sixth Circuit states: "Common sense dictates that time served awaiting trial for the offense in question, and not time served for a wholly separate offense, should be considered time `actually served' under the Guidelines because that time is directly linked to the sentence ultimately imposed." United States v. Hall, 531 F.3d at 419-20 (emphasis in original). The opinion thus supports the United States' position, and not Yuselew's.
Yuselew's reliance on the United States Court of Appeals for the Eleventh Circuit's opinion in United States v. Buter, 229 F.3d 1077 (11th Cir. 2000), is also inappropriate. The Eleventh Circuit in United States v. Buter stated that "state court sentences of twenty-seven months, imposed to run concurrently with the previously completed federal sentence" was not "imprisonment" under the guidelines. 229 F.3d at 1078. Those statements were made, however, in the context of two sentences that were to run concurrently with a sentence that the defendant had already completed. Again, unlike this case, the defendant was not given a sentence of time served where the time served was for the offense in question. Instead, the defendant in United States v. Buter had served time in jail only for the prior offenses, and not for the offense for which the United States sought to impose additional criminal history points. These cases are thus inapposite, and actually support imposition of the 1-point enhancement.
In this case, however, it is not entirely clear from the state-court record whether the judge who sentenced Yuselew for the crime of patronizing a prostitute sentenced him to a time-served sentence or a deferred sentence. Mr. Winterbottom tried to draw out and argue this ambiguity in the sentencing hearing. See Tr. at 6:16-7:3 (Winterbottom). If the sentence was deferred, the sentence was not of at least thirty days and § 4A1.2(c)(1) would require the Court ignore the conviction in calculating Yuselew's criminal history score. Based on this ambiguity, the United States agreed to forgo the 2-point enhancement of § 4A1.2(c)(1). See Tr. at 12:24-14:7 (Court, Burkhead). The Court will therefore sustain Yuselew's first objection and strike the criminal history point added in paragraph 43 of the PSR. Yuselew therefore has only one criminal history point, which places him in criminal history category I.
III. THE COURT WILL DENY AS MOOT YUSELEW'S REQUEST FOR A DOWNWARD DEPARTURE UNDER U.S.S.G. § 4A1.3(b)(1) .
Yuselew initially asked the Court to grant him a downward departure to his criminal history category pursuant to U.S.S.G. § 4A1.3(b)(1) because his criminal history category substantially overrepresents his past criminal conduct and the likelihood that he will commit other crimes in the future. The United States opposed this request, asserting that Yuselew's criminal history category accurately represents his criminal history. Now that the United States has declined to pursue the additional criminal history point for Yuselew's prior conviction for patronizing a prostitute, Yuselew's criminal history category is I. Mr. Winterbottom conceded that the Court's sustaining of Yuselew's objection and reducing his criminal history category to I rendered moot his request for a downward departure. See Tr. at 14:9-14 (Court, Winterbottom). The Court thus denies as moot Yuselew's request for a downward departure.
IV. A SENTENCE AT THE BOTTOM END OF THE GUIDELINE RANGE IS APPROPRIATE .
Yuselew's final request is that the Court impose a sentence at the bottom of the advisory guideline range. The United States requests a sentence at the top of the advisory guideline range. After sustaining Yuselew's objection to paragraph 43 and overruling his objection to the imposition of a 2-level enhancement pursuant to U.S.S.G. § 3C1.1, Yuselew's offense level is 37 and his criminal history category is I. An offense level of 37 and a criminal history category of I yield a guideline imprisonment range of 210 to 262 months.
The Court has carefully considered the guidelines in this case, and, in arriving at its sentence, has taken account not only of the guidelines, but of other sentencing goals. Specifically, the Court has considered the guideline sentencing range established for the applicable category of offense committed by the applicable category of defendant, and the Court believes that the punishment set forth in the guidelines is appropriate for this sort of offense. The major issue in this case is the kind of sentence and the range established by the guidelines and where within that range the Court should sentence Yuselew. After carefully considering the record, the arguments of counsel, the briefing of counsel, as well as the presentations at the hearing by the Quam family, the Court has concluded that a sentence at the bottom end of the guideline range is appropriate in this case.
Yuselew's use of an ax was brutal. The Court cannot, however, say that it was worse in terms of pain or mental anguish to the victim than an unanticipated gunshot. Quam was not victimized more severely than if he had been shot without warning; it is only those left behind that appreciate the chilling effect of a murder committed with an ax. Punishment is undoubtedly warranted. The Court does not believe, however, that the circumstances of the offense or Yuselew's characteristics argue for a sentence outside of the guideline range or for a sentence at the high end of the guideline range.
The facts are largely undisputed regarding what happened in the room on the morning of Quam's murder. Yuselew, in his drunken condition, believed Quam insulted him, and he reacted without thought, in a very violent and tragic way. It was a reaction, however, to what he perceived to be an insult. This pattern is one that the Court sees repeatedly: people being drunk with friends and family, someone insults someone else, and there are violent, tragic consequences. This one played out with an ax, but the Court has seen similar scenarios played out with lead pipes, weed-whackers, sticks, rocks, and other things. In the end, they are all second-degree murders. They are all serious. They are all violent and thus fall within the same pattern.
This crime is not significantly, if at all, more heinous or degrading than other second-degree murders that the Court has had before it for trial or sentencing. It is a second-degree murder, so it is heinous and degrading, but not exceedingly so. It appears that Quam, whether he died instantly or very quickly, did not have much forewarning, and did not have time to feel much fear. He likely felt little or no pain before death. The ordeal through which the victim was put does not counsel for an excessively high sentence.
A sentence of 210 months reflects the seriousness of this offense. It is a very serious offense, but 210 months is also a very serious sentence, particularly given Yuselew's age. He will be a fairly old man by the time he gets out of prison. The 210-month sentence promotes respect for the law. This sentence is not, by any means, a slap on the wrist; it is a considerably long sentence. The Court also thinks that the sentence provides a just punishment. This crime occurred in the heat of the moment; Yuselew perceived an insult while drinking a substantial amount of alcohol, and quickly retrieved his ax and killed Quam. This sentence is lengthy for someone who went out of control, although the Court is confident that the incarceration is well-earned.
The Court believes a 210-month sentence will provide adequate deterrence. Yuselew did not exhibit this character trait earlier in his 49 years of life, and the sentence is likely to provide specific deterrence to him. When he is released, he will be at an age when recidivism is substantially reduced. The Court also believes that the sentence provides general deterrence to the community, such that others will be sufficiently deterred from engaging in similar conduct. The Court believes that a sentence of 210 months will adequately protect the public. When Yuselew is released, based on the punishment he is receiving and the age he will be, it is unlikely that he will commit any future serious crimes.
While the Court's task, as a district judge, is not to come up with a reasonable sentence — rather, it is to come up with a sentence that balances the factors embodied in 18 U.S.C. § 3553(a), see United States v. Martinez-Barragan, 545 F.3d 894, 904-05 (10th Cir. 2008) — the Court believes this sentence is a reasonable one. The Court also thinks the sentence properly reflects the factors embodied in 18 U.S.C. § 3553(a). And, in the end, a 210-month sentence is sufficient without being greater than is necessary to comply with the purposes of punishment set forth in the Sentencing Reform Act. The Court thus sentences Yuselew to a term of 210 months in the custody of the Bureau of Prisons.
IT IS ORDERED that Defendant Floyd Yuselew's first objection in the Motion for Departure, Objections to Presentence Report and Sentencing Memorandum is sustained, his second objection is overruled, and his request for downward departure is denied as moot. Yuselew's request for variance is granted. The Court sentences Yuselew to a term of 210 months in the custody of the Bureau of Prisons.
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