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United States v. Cherry

argued: January 25, 1993.

UNITED STATES OF AMERICA
v.
JAMES CLIFTON CHERRY, APPELLANT



Appeal from the United States District Court for the District of New Jersey. D.C. Criminal Action No. 92-38.

Before: Stapleton and Cowen, Circuit Judges, and DuBois, District Judge*fn*

Author: Dubois

Opinion OF THE COURT

DUBOIS, District Judge.

I. INTRODUCTION

This appeal requires us to decide several issues which arise when the United States Sentencing Guidelines (U.S.S.G. or the "guidelines") do not contain a provision expressly applicable to the offense for which a defendant has been convicted and the district court applies a guideline deemed to be most analogous to the offense of conviction. We have jurisdiction pursuant to 18 U.S.C. § 3742(a) and 28 U.S.C. § 1291.

Appellant James Clifton Cherry appeals a sentence imposed upon him under the guidelines after he pled guilty to one count of Unlawful Flight to Avoid Prosecution in violation of 18 U.S.C.

§ 1073. At the sentencing hearing on July 22, 1992, in the absence of an applicable guideline, the district court applied what it considered to be the most analogous guideline -- U.S.S.G. § 2J1.6, Failure to Appear by Defendant. Relying in part on the recommendations set forth in the presentence report prepared by the United States Probation Office ("Probation Office"), the district court's calculations resulted in a total offense level of twenty and a criminal history category of II, for which the guidelines prescribed a range of 37 to 46 months imprisonment. Cherry was sentenced to 42 months in prison, three years of supervised release upon his release from prison, and ordered to pay a special assessment of $50.

Cherry cites four grounds for error in the sentence. Three of his challenges attack the district court's application of the guidelines. First, Cherry claims the district court erred by departing upward, adding two levels to the base offense level, by analogy to U.S.S.G. § 3C1.1, Obstruction of Justice. He contends the Sentencing Commission adequately considered and specifically rejected the application of section 3C1.1 to the Failure to Appear guideline under which Cherry was sentenced.

Second, Cherry claims that the district court erred by departing upward, adding three levels to the base offense level, by analogy to U.S.S.G. § 3A1.2, Official Victim. He argues that section 3A1.2 only applies where the victim of the offense for which the defendant is being sentenced is an individual and contends that the only victims of the offense of unlawful flight are those government agencies responsible for law enforcement, and, therefore, the official victim guideline is inapplicable.

Third, Cherry claims that there can be no upward departure for facilitating or concealing the underlying crime of murder pursuant to U.S.S.G. § 5K2.9, Criminal Purpose, (Policy Statement), and that the district court erred by departing upward under that guideline, adding two levels to the base offense level. It is Cherry's position that his flight did not conceal the commission of the offense from which he sought to avoid prosecution. Furthermore, Cherry contends that in formulating section 2J1.6 the Sentencing Commission adequately considered the severity of the underlying crime by providing a nine level upward adjustment based on that factor. See U.S.S.G. § 2J1.6(b)(2)(A).

Lastly, Cherry claims that the district court failed to resolve or disclaim factual inaccuracies in the presentence report as required by Federal Rule of Criminal Procedure 32. Fed. R. Crim. Proc. 32(c)(3)(D). That alleged error arises out of the submission by Cherry of a twelve page handwritten document at sentencing.

For the reasons which follow, we affirm the district court's two level upward departure for obstruction of Justice and hold that there was no violation of Federal Rule of Criminal Procedure 32. However, we disagree with the district court's rulings that Cherry's unlawful flight involved an official victim and that his unlawful flight facilitated or concealed the underlying offense. Furthermore, we agree with the Government's position, which was not addressed by Cherry, that in calculating Cherry's criminal history category, the district court should have used the version of the guidelines in effect at the time of sentencing, which incorporated the November 1, 1991 amendments (the "1991 guidelines"), as that version of the guidelines was more favorable with respect to calculation of criminal history category than the earlier version applied by the district court which incorporated the November 1, 1989 amendments (the "1989 guidelines").*fn1

Consequently, we will vacate Cherry's sentence and remand the case to the district court for resentencing.

II. BACKGROUND

A. Facts

The facts relevant to the issues on appeal are virtually undisputed. The crime from which Cherry fled occurred on September 30, 1970, when Atlantic City, New Jersey Police Officer John P. Burke was shot and killed while on duty. An investigation into the shooting lead police to conclude that Cherry was a prime suspect; however, attempts to locate Cherry were unsuccessful. Based on evidence gathered during the police investigation,

Cherry was indicted in late 1970 for the murder of Officer Burke.

Some time between October and December of 1970,*fn2 Cherry fled to Cuba to avoid being prosecuted for the murder of Officer Burke. He remained in Cuba for approximately twenty years before returning to the United States on September 26, 1990. Upon his return to the United States, Cherry was arrested and brought to New Jersey to face prosecution for the murder of Officer Burke. On February 11, 1990, Cherry was convicted in New Jersey state court of first-degree murder and on March 20, 1992, he was sentenced to life in prison.

In January 1992, a federal grand jury returned a one count indictment charging Cherry with unlawful flight to Cuba from on or about September 30, 1970, to on or about September 26, 1990, in order to avoid prosecution for the murder of Officer Burke in violation of 18 U.S.C. § 1073.*fn3 On May 5, 1992, Cherry entered a plea of guilty to the unlawful flight charge and was subsequently sentenced to 42 months in prison to be served consecutively to his life sentence for murder.

B. Calculation of Sentence for Unlawful Flight to Avoid Prosecution by the Probation Office

The Probation Office calculated the guideline imprisonment range using the 1989 guidelines, the guidelines in effect at the time of the last act involved in the offense conduct. Because the 1989 guidelines did not contain a provision expressly applicable to a violation of 18 U.S.C. § 1073, the Probation Office, pursuant to U.S.S.G. § 2X5.1, Other Offenses,*fn4 relied on the analogous guideline, U.S.S.G. § 2J1.6, Failure to Appear by Defendant, in computing the base offense level.

Section 2J1.6(a) provides a base offense level of six. Section 2J1.6(b)(1),*fn5 Specific Offense Characteristics, provides for a nine level increase in the base offense level where the underlying offense is punishable by death or imprisonment for a term of fifteen years or more. U.S.S.G. § 2J1.6(b)(1). Because the underlying offense of murder for which Cherry failed to appear is punishable by death or imprisonment for a term of fifteen years or more, the Probation Office concluded that the nine level increase was warranted.

Next, based on its Conclusion that the victim of the offense was a law enforcement officer, the Probation Office increased the offense level by three pursuant to section 3A1.2, Official Victim.*fn6 The adjusted offense level was reduced by two for acceptance of responsibility pursuant to U.S.S.G. § 3E1.1(a) based on Cherry's recognition and affirmative acceptance of responsibility for the unlawful flight charge.

The offense level calculations prepared by the Probation Office resulted in a total offense level of sixteen and, based on three criminal history points for Cherry's conviction on the murder ...


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