United States v. Anthony, 16-11509

UNITED STATES OF AMERICA, Plaintiff-Appellee v. AVNIEL AWAN ANTHONY, Defendant-Appellant

No. 16-11509

UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT

November 15, 2018

Appeal from the United States District Court for the Northern District of Texas

USDC No. 4:16-CR-128-1

ON REMAND FROM THE UNITED STATES SUPREME COURT

Before STEWART, Chief Judge, and DENNIS and WILLETT, Circuit Judges.

PER CURIAM:^*

Defendant-Appellant Avniel Awan Anthony appeals his 72-month, above-guidelines, sentence for making a false statement in a passport application. For the following reasons, we affirm.

I. Facts & Procedural History

Anthony pled guilty to making a false statement in a passport application in violation of 18 U.S.C. § 1542. The presentence report (PSR)calculated an advisory sentencing range of 15 to 21 months, based on an offense level of 10 and a criminal history category of IV. Anthony's offense level was determined by applying a two-level enhancement, under U.S.S.G. § 3C1.1, for obstruction of justice and another two-level enhancement, under U.S.S.G. § 3C1.2, for reckless endangerment during flight from a police officer. These Chapter Three enhancements were predicated on Anthony's actions while in police custody at a Mexican airport awaiting extradition to the United States on the instant charge. There, Anthony was handcuffed and detained in a room at the Cancun airport. Officers left him in the room alone and he removed his handcuffs and climbed through the ceiling tiles into the airport's ventilation system. After forty-five minutes of climbing through the ducts in the ceiling, Anthony fell through the ceiling onto a baggage claim turnstile, where he was re-apprehended.

The PSR recommended an enhancement under § 3C1.1 because Anthony "was already in the custody of law enforcement" and his behavior was "indicative of an attempt to escape law enforcement custody." It also recommended an enhancement under § 3C1.2 because airports "are highly populated areas" and people in the airport "could have been harmed if [Anthony] had fallen through the ceiling onto them." Anthony filed objections to the PSR, but did not object specifically to the Chapter Three enhancements.

At sentencing, the district court sustained Anthony's oral objection to the calculation of his criminal history score on grounds unrelated to this appeal and reduced his criminal history category from IV to III. With a revised criminal history category, his final guidelines range was 10 to 16 months. Subject to those changes, the district court adopted the findings of the PSR. After hearing argument from Anthony and his counsel, the district court determined that a guidelines sentence was inadequate because Anthony "hasa long history of violence," including convictions for attempted murder, sexual assault, and aggravated robbery, some of which received no criminal history points. Taking into account the 18 U.S.C. § 3553(a) factors, the district court sentenced Anthony to 72 months of imprisonment, followed by two years of supervised release. Anthony filed this appeal.

II. Discussion

Anthony makes two primary arguments on appeal. He first contends that the district court committed reversible plain error in calculating his guidelines range by applying separate enhancements for obstruction of justice and reckless endangerment based solely on the same conduct—namely, his attempt to escape police custody by crawling into, and subsequently falling from, the airport ventilation ducts. See U.S.S.G. §§ 3C1.1; 3C1.2. Second, he asserts error because the district court's Statement of Reasons (SOR) orders his sentence to run consecutively to his sentences on unrelated state charges, whereas the court's oral pronouncement of the sentence did not mention consecutive sentences. We address each issue in turn.

Chapter 3 Enhancements

As Anthony concedes, he did not object in the district court to the § 3C1.1 and § 3C1.2 enhancements so appellate review of this issue is for plain error. See United States v. Warren, 720 F.3d 321, 332 (5th Cir. 2013). To prevail on plain error review, Anthony must identify (1) a forfeited error (2) that is clear or obvious, rather than subject to reasonable dispute, and (3) that affects his substantial rights. See Puckett v. United States, 556 U.S. 129, 135 (2009). If he satisfies the first three requirements, this court may, in its discretion, remedy the error if the error "seriously affect[s] the fairness, integrity or public reputation of judicial proceedings." Id. This court has recently acknowledged that "[w]ith regard to the fourth prong of plain-error review, the SupremeCourt reasoned in Rosales-Mireles v. United States that proof that a district court relied on a miscalculated guidelines range 'will in the ordinary case . . . seriously affect the fairness, integrity, or public reputation of judicial proceedings, and thus will warrant relief' under the fourth prong of plain-error review." United States v. Fuentes-Canales, 902 F.3d 468, 476 (5th Cir. 2018) (quoting Rosales-Mireles v. United States, 138 S. Ct. 1897, 1903 (2018)). Nevertheless, "the Court recognized that '[t]here may be instances where countervailing factors satisfy the court of appeals that the fairness, integrity, and public reputation of the proceedings will be preserved absent correction.'" Id.

Section 3C1.1 provides for a two-level enhancement if "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." Conduct covered under § 3C1.1 includes "escaping or attempting to escape from custody before trial or sentencing." § 3C1.1, cmt. n.4(E). Section 3C1.2 provides for a separate two-level enhancement if "the defendant recklessly created a substantial risk of death or serious bodily injury to another person in the course of fleeing from a law enforcement officer."

"[T]he Guidelines do not prohibit double counting except when the particular Guideline at issue expressly does so." United States v. Luna, 165 F.3d 316, 323 (5th Cir. 1999). To that end, the commentary to § 3C1.2 instructs that an enhancement may not be applied if "another adjustment in Chapter Three, results in an equivalent or greater increase in offense level solely on the basis of the same conduct." § 3C1.2, cmt. n.1. In determining whether multiple enhancements are based solely on the same conduct, this court has followed the lead of other circuits by "focus[ing] on the temporal and spatialdistinctiveness or separateness of the acts" to discern "whether the defendant's conduct involves more than one culpable act." United States v. Gillyard, 261 F.3d 506, 511 (5th Cir. 2001).

Anthony asserts that, in applying enhancements under both § 3C1.1 and § 3C1.2, his entry into and sudden exit from the airport ceiling were erroneously treated as distinct acts. He contends that his entering into, crawling around, and falling from the airport ventilation system comprised a single act of "trying to escape from the room in which he was detained."¹ As a result, Anthony argues, he should have only received one of the 2-level Chapter 3 enhancements which would have yielded a guidelines range of 6 to 12 months rather than a range of 10 to 16 months. We disagree.

The relevant commentary to § 3C1.2 provides that an enhancement may not be applied if the defendant received an equal or greater offense level increase under § 3C1.1 "solely on the basis of the same conduct." § 3C1.2, cmt. n.1. In Gillyard, this court held that the defendant's conduct during his high-speed flight from police supported dual enhancements for reckless endangerment and assaulting a law enforcement officer where, "at different times and in different places" during the chase, the defendant nearly swerved into a group of construction workers and almost collided with a pursuing police car. 261 F.3d at 507-08, 511. In that case we observed that "courts that have addressed the issue of double enhancements for different aspects of a criminal transaction have focused on the temporal and spatial distinctiveness orseparateness of the acts in determining whether the defendant's conduct involves more than one culpable act." Id. at 511.

Similarly, in United States v. Bocanegra-Rodriguez, 336 F. App'x 430, 430-31 (5th Cir. 2009), this court affirmed separate enhancements for reckless endangerment and recklessly creating a risk of serious bodily injury to another during the commission of an alien smuggling offense. Both enhancements were based on the defendant's attempt to flee from police in a van overcrowded with illegal aliens because we determined that "the risk caused by the overcrowding was distinct from the risk posed by [the defendant's] reckless driving during flight." Id. at 431. We further reasoned that "[the defendant's] reckless driving created a risk of danger to people besides the van passengers." Id.

In United States v. Cabral-Castillo, 35 F.3d 182, 188-89 & n.8 (5th Cir. 1994), however, we held that the defendant's act of driving his car at high speed toward a Border Patrol agent did not support enhancements for both reckless endangerment and use of a deadly weapon (i.e., the car) because the enhancements were "clearly" based on the same conduct. There, this court noted that the events that transpired took place "[w]ithin a short time." Id. at 184.

Our reasoning in Gillyard and similar cases suggests that Anthony has failed to show that the district court erred in applying both Chapter 3 enhancements given the "temporal and spatial distinctiveness or separateness of the acts" upon which the enhancements were applied. 261 F.3d at 511. In applying the 2-level enhancement under § 3C1.1 (escape), the PSR provided that "[w]hile alone in the room, [Anthony] removed his handcuffs and fled through the ceiling tiles of the room into the ventilation system of the airport [where he crawled for 45 minutes] in an...