Saturday, May 3, 2008

Sentencing: Ninth Circuit Denies Sentence Enhancement for Double Murder, U.S.A v. Eugene Rising-Sun, 522 F.3d 989 (9th Cir. 2008)

U.S.A. v. Eugene Raymond Rising-Sun 522 F.3d 989 (9th Cir 2008) In a remote location several miles from a tiny Montana town on the Crow reservation, officers found two dead women lying in a ditch. An autopsy revealed each had been struck in the head by a blunt instrument. The murder investigation focused on the defendant Rising Sun, and the FBI discovered physical evidence linking him to the crime. Investigators interviewed the defendants brother who said they had driven the two woman to the location on the pretense of partying together. Stopping the car during the drive, the two women and the defendant exited. The brother heard defendant accuse one of the women as a narc. He heard a woman scream, followed by a loud thump, and saw the defendant smack her. The defendant dragged her body into a ditch, chased the other woman and repeatedly hit her with an object obtained from the trunk of the vehicle. Defendant pled guilty to two consecutive life sentences supplemented by sentencing enhancements for killing the women who were vulnerable to attack in a remote location. Sentencing also included an enhancement for obstruction of justice based on the testimony of other witnesses who had seen defendant destroy evidence linking him to the crime. The trial court also imposed an additional sentence of Extreme Conduct and Criminal purpose. Defendant appealed the enhancements to his sentence, alleging the trial court erred in sentencing pursuant to federal sentencing guidelines; U.S.S.G. 3A.1 (b) (1). This section enhances a sentence if the defendant knew or should have known that the victim of the offense was . . . one who is unusually vulnerable due to age, physical or mental condition, or who is otherwise particularly susceptible to criminal conduct. The Rising Sun court cited Ninth Circuit precedent in U.S. v. Peters, 962 F.2d 1410 (9th Cir.1992), that the language otherwise particularly susceptible to criminal conduct requires the sentencing court to consider the victims personal traits of age, physical or mental condition in addition to the circumstances surrounding the criminal act; This interpretation requires the court to consider factors including physical traits to establish a victim particularly susceptible to crime. Yet the Peters court upheld the enhanced sentence without any evidence of the personal traits of the victim of mail fraud. In U.S. Castellonos, 81 F.3d 108 (9th Cir.1996), also cited by the Ninth Circuit, the panel in Rising Sun wrote: It is unclear precisely why the [Sentencing] Commission chose to employ the separate concepts of unusually vulnerable and particularly susceptible except to suggest that characteristics of age, physical condition or mental condition may render a victim worthy of the special protection of this section whereas other circumstances might make the victim subject to such protection depending upon the nature of the particular criminal conduct. Citing Peters and Castellanos, both cases involving mail fraud- not murder-the Rising Sun court found no evidence of the victims personal characteristics that warranted enhanced sentencing. The court distinguished another case, U.S. v. Weischedel, 201 F.3d 1250 (9th Cir. 2000) in which the defendants murdered a car salesman who had driven them to a remote location but, according to the Ninth Circuit, the victims job required him to drive a car remotely thereby enabling the putative buyers to kill him. The prosecution offered no evidence of the salesmans personal traits. Commentary: The court in Weischedel wrote nothing about physical characteristics of the victim, only evidence that the victims job required him driving to a remote area. . . . [T] circumstances that made the victim particularly susceptible to the criminal conduct resulted from the requirements of his job. That the two women killed by defendant Rising Sun voluntarily accompanied him to a remote area somehow distinguishes this case from murder of the car salesman on his job suffering the same fate is ludicrous. In Rising Sun, the evidence clearly established the killing occurred in a remote location. The victims were lured by an invitation to party, and during their drive the defendant accused one of the women as a narc. This evidence clearly established premeditation and an intent to kill the women by selecting a location rendering the women vulnerable to attack and unable to escape, seek assistance, or defend themselves. The sentencing judge used that explanation to impose the enhanced sentence. U.S.S.G. 3A (b) (1) permits enhanced sentencing under two conditions; First, the vulnerability of the victim based on age, mental or physical condition. These factors relate directly to the status of the victim, i.e., young, elderly, mentally impaired or physically disabled. The second statutory condition enhancing sentence provides an alternative to vulnerability of a victim and reads, or [a victim] otherwise particularly susceptible to criminal conduct. The use of the conjunction or in the statute clearly distinguishes a vulnerable victim from one particularly susceptible to criminal conduct, and the latter is devoid of any reference to personal traits. Otherwise the statute would use the word and to couple the two categories. Under the Ninth Circuit interpretation the second alternative of susceptibility to criminal conduct is cumulative of the term vulnerable. In fact, the two descriptions of victims are separate sections, one focusing on status, the other on conduct. The correct interpretation of the sentencing guidelines requires the court to consider factors other than physical traits to establish a victim particularly susceptible to criminal conduct. The Peters court upheld the enhanced sentence without any evidence of the personal traits of the victim of mail fraud. Castellanos is an equally inapplicable case of fraud perpetrated against a Spanish speaking community. In Castellanos, the Ninth Circuit panel cited other circuit court opinions, all fraud cases. Not a single case cited by the Ninth Circuit panel supports their decision to merge the two separate sections of sentencing guidelines in Rising Sun. The only relevant case is Weischedel, directly on point in Rising Sun and confirming sentence enhancement.

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