UNITED STATES COURT OF APPEALS for the Fifth Circuit

_____________________________________

No. 94-30398 Summary Calendar _____________________________________

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

VERSUS

HEATH SINGLETON,

Defendant-Appellant.

______________________________________________________

Appeal from the United States District Court for the Eastern District of Louisiana ______________________________________________________ (March 22, 1995)

Before GARWOOD, HIGGINBOTHAM and DAVIS, Circuit Judges.

DAVIS, Circuit Judge:

Heath A. Singleton pleaded guilty to a three-count indictment

charging him with conspiracy to commit carjacking, carjacking, and

use of a firearm during and in relation to a crime of violence, in

violation of

, 2119 and 924(c), respectively. He

now appeals both the five year consecutive sentence he received

under § 924(c) and the life sentence he received on the carjacking

count. We affirm.

I.

On November 15, 1992, Heath Singleton, his brother, his

girlfriend, and Douglas J. Aleman conspired to steal a car and use it to commit other robberies.1 The four conspirators found William

Mullers sitting in his car in a parking lot and chose him as their

victim. Shortly after Aleman hijacked Mullers at gunpoint,

Singleton joined Aleman in Mullers' vehicle. They drove to a bank

and forced Mullers to withdraw money from an automatic teller

machine. Aleman urinated on Mullers while he made the cash

withdrawal. Singleton and Aleman forced Mullers back into his car

and they drove off, leaving the other two conspirators behind.

Aleman and Singleton drove to the Pumpkin Center exit off

Interstate 12, where they forced Mullers from the car to an area

near the shoulder of the exit ramp. Aleman again urinated on

Mullers and shot him three times in the back of the head. Aleman

continued to pull the trigger until the gun was empty. Using

another gun, Singleton then shot Mullers in the back. Aleman took

Singleton's gun and continued to shoot Mullers until the gun was

empty. Mullers prayed aloud until he slipped into unconsciousness.

Singleton and Aleman left Mullers lying in a ditch off the exit

ramp, where he was later found, dead.

Singleton entered his guilty pleas in April 1994. During the

plea hearing, the district court called to Singleton's attention

that the statutory maximum penalty on the carjacking count was life

imprisonment. The court then explicitly warned Singleton that the

court was strongly inclined to impose that sentence. Singleton

1 Although the facts of Singleton's offense are already set out in his prior appeal, United States v. Singleton,

(5th Cir. 1994), we include an abbreviated version here because it is necessary to the issues addressed below.

2 informed the court that he understood this possibility.

The presentence investigative report (PSR) identified

Singleton's base offense level for the carjacking and conspiracy

counts as twenty. U.S.S.G. §§ 2B3.1 and 2X1.1(a). The PSR

suggested a 7-point upward adjustment for discharge of a firearam,

§ 2B3.1(b)(2)(A), a 4-point upward adjustment for permanent or life

threatening injury, § 2B3.1(b)(3)(C), a 4-point upward adjustment

for abduction of the victim, § 2B3.1(b)(4)(A), and a 3-point

downward adjustment for acceptance of responsibility, § 3E1.1. The

PSR assigned a criminal history category of III. After adjusting

the sentencing range downward 60 months under § 2K2.4, the PSR

arrived at a final guideline range of 108-150 months, to be

followed by a mandatory five year consecutive sentence on the

firearms count.

The PSR recommended that the sentencing court depart from the

carjacking guideline range because it did not take into

consideration the killing of Mullers. The PSR suggested that the

nature of the offense justified using the statutory maximum

sentence and the corresponding base offense level, 43. The PSR

again reduced for acceptance of responsibility,2 leaving Singleton

with an offense level of 40 and a sentencing range of 360 months to

life. Because of his youth, mental state and acceptance of

responsibility, the PSR suggested that the court sentence Singleton

at the lower end of that range. Singleton did not make any

2 This reduction belies Singleton's argument that his life sentence is inconsistent with a reduction for acceptance of responsibility.

3 objections to the PSR.

One week before the sentencing hearing, the government filed

a motion urging the district court to depart upward, arguing that

the guidelines allowed a departure for the death of Mullers, §

5K2.1, and for the unusually heinous, cruel or degrading nature of

the crime, § 5K2.8. Singleton did not oppose this motion.

At the sentencing hearing in June 1994, the district court

informed Singleton that it did indeed propose to depart upward and

invited Singleton's attorney to dispute this departure. The court

explicitly asked whether Singleton had been given adequate notice

to have an opportunity to be heard on the departure. Singleton's

attorney told the court that she had adequate notice and said

nothing about the propriety of an upward departure.

The court sentenced Singleton to life imprisonment on the

carjacking court, five concurrent years on the conspiracy count and

five consecutive years on the firearms count. The court explained

that it was departing upward because the carjacking guideline did

not take into account the murder of the victim or the especially

heinous circumstances of the crime. The court stated that the

comparable punishment in a state court system would be execution or

life imprisonment.

II.

For a number of reasons, Singleton complains that the district

court improperly departed. While it is not entirely clear, it

appears that Singleton contends both that the departure itself was

an error and that the extent of the departure was unreasonable.

4 A district court may depart upward if it finds that there is

an aggravating circumstance that was not adequately taken into

consideration by the guidelines.

(b); United

States v. Ashburn,

(5th Cir. 1994) (en banc),

petition for cert. filed, No. 94-8084 (U.S. Feb. 13, 1995). We

will affirm an upward departure from the guidelines if the district

court provides acceptable reasons for its departure and the

departure is reasonable.

Ordinarily, we review the district court's decision to depart

upward for abuse of discretion.

However, because Singleton

did not object to the departure, we review only for plain error.

Under this standard, we will correct an error only when (1) the

error is clear or obvious under current law; and (2) the error

affects the defendant's substantial rights. United States v.

Calverley,

(5th Cir. 1994) (en banc), cert.

denied, No. 94-7792,

(U.S. Feb 27, 1995) (citing

United States v. Olano, ___ U.S. ___ ,

,

(1993)). If these requirements are met, this

Court will only exercise its discretion to grant relief if the

error seriously affects the fairness, integrity, or public

reputation of judicial proceedings. Id. at 164.

A. Propriety of departure

Singleton first argues that the district court erred in

finding that his guideline range did not take into account Mullers'

murder. Singleton contends that the upward adjustments to his

original offense level were based on the dangerousness of his

5 conduct, making a further departure inappropriate. This contention

is spurious. The adjustments for discharging a firearm and

abducting the victim in no way contemplate an intentional killing.

Additionally, this Court has previously held that the enhancement

for risk of serious bodily injury does not preclude a sentencing

court from departing upward for the death of the victim. United

States v. Billingsley,

(5th Cir. 1992), cert.

denied,

(1993).

Singleton also claims that he did not deserve the upward

departure for especially heinous, cruel or degrading conduct.

Singleton contends that the fact that Mullers prayed during his

ordeal is of no moment and that "[a]lthough Mr. Aleman may have

been deserving, Mr. Singleton did nothing to warrant this

departure," apparently referring to the fact that Singleton himself

did not urinate on Mullers but merely stood by as Aleman did.

However, the district court did not err by including these

occurrences in its decision that the circumstances of the crime

were especially cruel or degrading. See United States v. Lara,

(5th Cir. 1992) (although defendant's partner

was the one who actually fired the weapon, no error for court to

consider this conduct grounds to depart upward for discharge of a

firearm). Given the circumstances of this crime, the court's

decision to depart upward for the heinous circumstances of the

crime was not error.

B. Reasonableness of departure

Singleton complains that the district court did not give

6 reasons for the extent of its departure. Singleton recognizes that

the Fifth Circuit does not usually require a sentencing court to

explain the extent of a departure, United States v. Moore,

, 36 & n.10 (5th Cir.), cert. denied,

(1993), but

he argues that the court in United States v. Landry,

(5th Cir. 1990) did require such an explanation. However, in

Landry we held that the district court erred by not explaining why

it chose to depart above the maximum guideline sentence the

defendant could have received had he been convicted of the

aggravating conduct.

. In contrast, Singleton's life

sentence is within the sentencing guideline range for murder. §

2A1.1. For this reason, it is not at all clear that Singleton's

sentencing court was obligated to explain the degree of its

departure. Additionally, even if the preferred course would be to

explain exceptionally large departures, we are satisfied that the

court gave adequate reasons. The court thoroughly explained why it

believed that this crime was one of the worst it had ever seen. We

doubt that it need have done more.

Singleton next maintains that the district court departed on

the basis that he had murdered Mullers without sufficiently

considering his mental state. Singleton points to § 5K2.1, which

states that:

Loss of life does not automatically suggest a sentence at or near the statutory maximum. The sentencing judge must give consideration to matters that would normally distinguish among levels of homicide, such as the defendant's state of mind and the degree of planning and preparation . . . The extent of the increase should depend on the dangerousness of the defendant's conduct [and] the extent to which death or serious injury was intended or knowingly risked . . .

7 Singleton argues that the court did not consider his assertions

that he accompanied Aleman during the carjacking in order to

prevent harm to Mullers, that he thought Mullers would not be shot,

that he obeyed Aleman's order to shoot Mullers because he was

afraid that otherwise Aleman would shoot him, and that there is no

proof that his shot actually hit Mullers.

However, the district court clearly did consider Singleton's

state of mind. At sentencing, the court stated that Singleton had

passed up opportunities to withdraw from the crime, that he made

the decision to get into the car with Aleman, that he shot the

victim, that he stood by and watched Aleman shoot him, and that he

"must have realized [what] was going to be the ultimate end to all

of this." Given its emphasis on these findings, the court was

obviously convinced that Singleton was sufficiently culpable to

sentence him at the statutory maximum. The fact that the court did

not utter the phrase "state of mind" does not mean that the court

did not give the consideration required by § 5K2.1.

To the extent that Singleton means to disagree with the

district court's implicit factual conclusion that Singleton had the

requisite mental state to have committed murder, rather than a

lesser degree of homicide, we also find no error. The court's

findings are firmly based on facts in the uncontested PSR and the

Factual Basis that Singleton signed in concert with his guilty

plea. These findings are not plainly erroneous.

Singleton maintains that the extent of the departure was

8 unwarranted for several additional reasons.3 We have recognized

that:

[r]easonableness of length of departure is quintessentially a judgment call. District courts are in the front lines [and] the dynamics of the situation may be difficult to gauge from the antiseptic nature of a sterile paper record. Therefore, appellate review must occur with full awareness of, and respect for, the trier's superior "feel" for the case. We will not lightly disturb . . . decisions implicating degrees of departure.

Lara,

(internal citation omitted). Even when a

defendant contemporaneously objects, this Court gives a great

degree of deference to an upward departure. United States v. Lee,

, 187 n.7 (5th Cir. 1993). Here, the district court's

departure is within the statutory maximum sentence for carjacking

involving the death of the victim.

(3) (statutory

maximum is life). The court gave two months' notice that it

intended to depart upward to the statutory maximum and invited

Singleton's attorney to dispute the departure at sentencing. Cf.

Landry, 334 F.2d at 341 n.6 (absence of notice contributed to

holding departure unreasonable, because defendant had no

opportunity to offer guidance on extent of departure). The court's

sentence, though tough, was not unfair given the particularly

3 Singleton particularly emphasizes that his brother and his girlfriend received much lesser sentences. However, Singleton fails to take into account that neither his brother nor his girlfriend were present during the killing of Mullers. Thus, it is particularly inappropriate to gauge the reasonableness of his sentence by their sentences.

Singleton also argues that because his plea agreement provided that he would plead guilty to a state charge of manslaughter and the maximum state sentence for manslaughter is less than life, the court violated his plea agreement by sentencing him to life. This argument is meritless.

9 egregious facts of this case and was consistent with 5K2.1's

direction that "the extent of the increase should depend on the

dangerousness of the defendant's conduct [and] the extent to which

death or serious bodily injury was intended or knowingly risked."

Given these circumstances, Singleton has certainly not shown that

the court committed plain error in arriving at his sentence.

III.

Singleton also argues that the Fifth Amendment double jeopardy

clause prohibits a conviction and consecutive 60-month sentence for

the use of a firearm (§ 924(c)) when the underlying offense is

carjacking (§ 2119). However, as Singleton acknowledges, this

Court already carefully decided this issue against him in his

earlier appeal. Singleton,

. Singleton argues that

the Court's double jeopardy analysis was inconsistent with United

States v. Dixon, ___ U.S. ___,

(1993). However,

because our earlier decision took Dixon into account, this point

was at least implicitly resolved adversely to Singleton once

before.

n.10. Under the law of the case doctrine,

we will not revisit this issue. Conway v. Chemical Leaman Tank

Lines, Inc.,

(5th Cir. 1981).

Singleton repeatedly asserts that this issue is deserving of

reconsideration by the Court sitting en banc. However, if

Singleton wishes en banc rehearing, he must follow the requirements

set out in 5th Cir. R. 35.

For the reasons discussed above, Singleton's conviction and

sentence are AFFIRMED.

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