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Untied States v. Prevatte

September 14, 1995

UNITED STATES OF AMERICA, PLAINTIFF-APPELLEE,

v.

RUSSELL "RUSTY" PREVATTE AND ROBERT A. SOY, DEFENDANTS-APPELLANTS.



Appeal from the United States District Court for the Northern District of Indiana, Hammond Division. No. 92 CR 42 -- Rudy Lozano, Judge.

Before POSNER, Chief Judge, RIPPLE, Circuit Judge, and NORGLE, District Judge. *fn*

RIPPLE, Circuit Judge.

ARGUED MAY 31, 1995

DECIDED SEPTEMBER 14, 1995

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. sec. 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.

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. sec. 844(i); (2) maliciously damaging or destroying property by means of an explosive in violation of 18 U.S.C. sec. 844(i); and (3) making a firearm, statutorily termed a "destructive device," in violation of 26 U.S.C. secs. 5845(f), 5861(f) and 18 U.S.C. sec. 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. sec. 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. sec. 844(i) refers the court to U.S.S.G. sec. 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. sec. 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 court'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. sec. 2A1.1, provided the most closely analogous guideline. Second, the defendants contended that, under sec. 844(i), life sentences may be imposed only after a jury recommendation, pursuant to 18 U.S.C. sec. 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. sec. 844(i). United States v. Prevatte, 16 F.3d 767, 780 (7th Cir. 1994).

We also noted that, in interpreting the statutory language of sec. 844(i) in conjunction with 18 U.S.C. sec. 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. sec. 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 636 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 ...


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