United States v. Gore

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
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m 01-51131
Summary Calendar
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UNITED STATES OF AMERICA,
Plaintiff-Appellee,
VERSUS
MICHAEL LEON GORE,
Defendant-Appellant.
_________________________
Appeal from the United States District Court
for the Western District of Texas
_________________________
July 10, 2002
Before JONES, SMITH, and
EMILIO M. GARZA, Circuit Judges.
JERRY E. SMITH, Circuit Judge:
Michael Gore appeals his sentence o f life
imprisonment for second degree murder in vio-
lation of 18 U.S.C. § 1111 (murder on a
government reservat ion). Finding no
reversible error, we affirm.
I.
Darrian Taylor was the three-year-old son
of Sarah Dirck, who was on active military
duty stationed at Fort Hood, Texas. Gore and
Dirck were engaged to be married and were
living together at the base in Fort Hood, but
Gore was not Taylor’s biological father. In
late April 2001, Dirck left Fort Hood for mil-
itary training and left Taylor in Gore’s care,
giving Gore a power of attorney, medical in-
surance information, access to her bank
account, and the keys to her house and car.

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Ten days later, on returning to Fort Hood
for a one-day respite from training, Dirck
noticed bruising around Taylor’s eyes and a
change in his mood. Gore explained that Tay-
lor had slipped in the shower but did not need
hospitalization. That night, Dirck returned to
her training site. Ten days later, Gore turned
himself in to police regarding the events of the
previous twenty days.
Gore admitted to disciplining Taylor with a
belt or by “popping” him in the chest. Finally,
Gore reprimanded Taylor for “acting up” by
hitting him in the chest so hard he defecated on
himself. Taylor also experienced problems
breathing after this blow to the chest and was
unable to get up off the floor. Gore then put
Taylor to bed; when he checked on him a few
hours later, he was unresponsive. His eyes
were open but unblinking, and he had coughed
up some red mucus. Gore tried to get a
response out of Taylor but was unsuccessful.
Gore also noticed Taylor was not breathing,
but did not take him to the hospital for fear of
getting himself or Dirck in trouble. Finally,
Gore fled and twice tried to commit suicide.
Gore pleaded guilty of second-degree mur-
der and was informed that the maximum
penalty was life in prison. He waived his right
to appeal with the exception of an upward
departure from the guideline range. The pre-
sentence report (“PSR”) mentioned the
possibility of an upward departure for extreme
conduct. The district court did depart upward,
imposing a life sentence (a seven-level upward
departure from the guideline range).
II.
Ordinarily, our review of a sentence is for
abuse of discretion, Koon v. United States,
518 U.S. 81, 100 (1996), but because Gore
did not object in the district court to any of the
errors he raises on appeal, our review is only
for plain error, FED. R. CRIM. P. 52(b); United
States v. Olano, 507 U.S. 725 (1993). The
plain error test has four prongs: (1) error
(2) that is plain, and (3) affects substantial
rights, (4) where a failure to recognize the er-
ror would “seriously affect the fairness,
integrity or public reputation of judicial
proceedings.” Id. at 732 (quoting United
States v. Young, 470 U.S. 1 (1985)).
III.
Gore’s primary legal contention is that the
district court failed to abide by the articulation
requirement of 18 U.S.C. § 3553(c), obliging
a district court to “state in open court” the rea-
son for the departure from the sentencing
guideline. 18 U.S.C. § 3553(c). Although the
court failed to explain its departure in open
court, it later offered a written explanation
following the recommendation in the PSR.
This court has yet to address the
articulation requirement of § 3553(c)(2) in the
plain error context.1 The text of the statute
(“in open court”) leaves no doubt that
although it did issue written reasons, the
district court committed error that is plain by
failing orally to explain the reasons for
departure. Whether this error affected Gore’s
substantial rights is a harder question, one we
ultimately resolve against him.
We draw support for this conclusion from
four sources. First, our own jurisprudence re-
garding a cousin of § 3553(c)(2)’s articulation
requirement suggests there is no plain error in
Gore’s case. Section 3553(c)’s articulation re-
quirement also applies to a district court’s de-
cision whether to impose a consecutive or con-
1 Section 3553(c)(2) applies the articulation
requirement to departures from the guidelines.

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current sentence. See, e.g., United States v.
Londono, 285 F.3d 348, 356 (5th Cir. 2002).
We repeatedly have held that the failure to
articulate the reasoning behind this decision in
open court is not plain error.2 By extension,
the failure to follow § 3553(c) in justifying a
departure does not ipso facto equal plain error.
Second, the Ninth Circuit, in dictum, has
explained that there is no plain error where a
district court fails to articulate, in open court,
the reasons for departure. In United States v.
Vences, 169 F.3d 611, 613 (9th Cir. 1999), the
district court made no effort to explain the de-
parture in open court but did engage counsel
in a colloquy that implicitly indicated the
court’s reasoning. The court of appeals
concluded that a remand to comply with the
technical dictates of § 3553 would be a “mean-
ingless formality.” Id. Although there was no
such colloquy in Gore’s case, the written
statement of reasons would render remand a
meaningless formality.
Third, the Eighth Circuit has decided that a
district court’s adoption of the PSR is
sufficient to avoid plain error where that court
has failed to follow the “open court” provision
of § 3553.3 If the defendant does not object
and there is evidence to sustain the en-
hancement, the error is not reversible under
the plain error standard. Id.
Finally, Gore cannot show plain error be-
cause the ultimate goal of § 3553 is to permit
effective appellate review of sentencing.4 The
First Circuit has explicitly relied on a district
court’s reference to a PSR as an indicator of
sufficient specificity to allow appellate review.
United States v. Cruz, 981 F.2d 613, 617-18
(1st Cir. 1992). Here, the actions of the
district court are such that we can effectively
review the basis of the decision to depart.
These authorities teach that the key aim of
the articulation requirement is satisfied if an
appeals court can review the reason for the de-
parture. Gore, accordingly, cannot show plain
error, because the written statement of reasons
points to the PSR, which in turn directs our
attention to a U.S.S.G. § 5K2.8 departure
based on the extreme cruelty of Gore’s acts.
This reference is sufficient to allow meaningful
appellate review.
IV.
Gore challenges his sentence as an
unreasonable departure from the guideline
maximum. Citing his youth (twenty when the
crime was committed), Gore notes that the life
sentence more than doubles (assuming normal
2 United States v. Gonzalez, 250 F.3d 923, 931
(5th Cir. 2001); United States v. Izaguirre-Loso-
ya, 219 F.3d 437, 441-42 (5th Cir. 2000), cert.
denied, 531 U.S. 1097 (2001).
3 United States v. Evans, 272 F.3d 1069, 1089
(8th Cir. 2001), cert. denied, 122 S. Ct. 1638
(2002), and cert. denied, ___ S. Ct. ___, 2002
U.S. LEXIS 3503 (May 13, 2002), and cert. de-
nied, ___ S. Ct. ___ , 2002 U.S. LEXIS 3737
(May 20, 2002).
4 See, e.g., United States v. DeMartino, 112
F.3d 75, 81 (2d Cir. 1997) (emphasizing the need
for an explanation of the departure sufficient to
permit “meaningful appellate review”); United
States v. Loy, 191 F.3d 360, 371 (3d Cir. 1999)
(stating that the reasons must be such that
“appellate review does not ‘flounder in the zone of
speculation’”) (quoting United States v. Edgin, 92
F.3d 1044, 1049 (10th Cir. 1997)); United States
v. Slater, 971 F.2d 626, 633 (10th Cir. 1992)
(same); United States v. McClellan, 164 F.3d 308,
310 (6th Cir. 1999) (explaining that reasoning
must “permit an informed appellate review”).

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life expectancy) the maximum guideline
sentence he was eligible for without
departure.5 Our review of the reasonableness
of a sentence departure must take account of
the “amount and extent of the departure in
light of the grounds for departing.” Williams
v. United States, 503 U.S. 193, 203 (1992).
This reasonableness review must be filtered
through two important precedents of this
circuit.
First, we ordinarily do not require a district
court to explain the amount, but only the fact,
of the departure. United States v. Huddleston,
929 F.2d 1030 (5th Cir. 1991). Second, we
must pay due respect to a trial court’s greater
intimacy with the case. Because our
familiarity is limited by having contact only
with the documents, we are “reluctant to tread
with too heavy a step upon the district court’s
discretion.” United States v. Lara, 975 F.2d
1120, 1126 (5th Cir. 1992).
The mere multiplication of Gore’s sentence
does not suggest any error in the departure.
United States v. Roberson, 872 F.2d 597, 606
n.7 (5th Cir. 1989) (approving a multiple of
3.5 and noting multiples of 4, 5, and 3); Lara,
975 F.2d at 1126 (upholding a multiple of 7).
Nor does the justification offered by the
district court fail to support the reasonableness
of the departure under plain error review.
In United States v. Singleton, 49 F.3d 129
(5th Cir. 1995) (opinion on petition for rehear-
ing), we upheld a departure premised on the
cruelty and brutality of a carjacking resulting
in murder where the defendant may not have
fired the fatal shots. Recognizing that the
sentence was “tough,” we declined to find
plain error where the district court based the
departure on the brutality of the act. Id.
at 134.6
The coroner’s report detailed a recurring
and brutal form of abuse that ultimately result-
ed in Taylor’s death. The district court
plausibly could conclude from this information
that this second-degree homicide was
especially heinous and cruel when compared to
other second-degree murders. We find no
plain error.
V.
Gore contends that the district court im-
permissibly double-counted conduct in
calculating the initial guideline range and the
upward departure. Without citation to
authority, Gore notes that the PSR alluded to
conduct that was also counted toward the
initial guideline range in recommending an
upward departure. Nevertheless, the court
referenced only that part of the PSR that
recommended departure based on the extreme
nature of the conduct. This was not plain
error.
5 The maximum Gore was eligible for under the
guidelines was 210 months. Using a life
expectancy of 70, he is now facing a sentence of
nearly 600 months.
6 Singleton involved a departure more severe
than in this caseSSto life from a guideline range of
108-120 months. Id. at 131. See also United
States v. Loud Hawk, 245 F.3d 667 (8th Cir. 2001)
(ten-level upward departure based on extreme con-
duct in connection with second-degree murder);
United States v. Roston, 168 F.3d 377 (9th Cir.
1999) (seven-level departure for extreme conduct
in connection with second-degree murder).

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VI.
Gore challenges the method used to
calculate the new sentence.7 Gore’s argument
boils down to a challenge to the propriety of
allowing the relatives of the vic-
timSSTaylorSSto testify at the sentencing
hearing. Gore relies on 18 U.S.C. § 3553(b),
which reads, in relevant part,
The court shall impose a sentence of the
kind, and within the range, referred to in
subsection (a)(4) unless the court finds
that there exists an aggravating or
mitigating circumstance of a kind, or to
a degree, not adequately taken into
consideration by the Sentencing
Commission in formulating the
guidelines that should result in a
sentence different from that described.
In determining whether a circumstance
was adequately taken into consideration,
the court shall consider only the
sentencing guidelines, policy statements,
and official commentary of the
Sentencing Commission.
18 U.S.C. § 3553(b). Gore reads this passage
to bar consideration of factors not included in
the Guidelines Manual. By extension, Gore
argues that the victim testimony used at his
sentencing hearing contravenes this statutory
command.
7 Our decisions in United States v. Lambert,
984 F.2d 658 (5th Cir. 1993) (en banc), and
United States v. Ashburn, 38 F.3d 803 (5th Cir.
1994) (en banc), do not suggest reversal. These
cases dealt only with the proper method of
upwardly departing on the criminal history axis,
not the offense level axis of the guideline table. Al-
though we express no opinion on this matter, we
note that our cases on upward departure on this
axis do not involve the more detailed methodology
of the criminal history cases. See, e.g., Singleton;
United States v. Hawkins, 87 F.3d 722 (5th Cir.
1996).

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Gore is wrong. The purpose of the above-
quoted passage is to allow a district court to
consider those factors the Sentencing
Commission could not include in its generic
punishment scheme precisely because that
scheme is intended to be generic. This passage
specifically allows the sentencing court to
consider factors that, by their very nature, are
not reducible to the generalities with which the
bulk of the guidelines manual concerns itself.
See United States Sentencing Commission,
Guidelines Manual, § 5K2.0 (Nov. 2000).
Gore’s specific argument also lacks merit.
The type of testimony heard at his sentencing
hearing is explicitly authorized by the rules of
criminal procedure. FED. R. CRIM. P.32-
(c)(3)(E), (f)(1)(B). There was no error, let
alone plain error, in the decision to allow
victim testimony.
VII.
Gore challenges his sentence on the ground
that the upward departure implies that the plea
to second-degree murder did not adequately
reflect the severity of the act and should not
have been approved. Gore’s argument is be-
lied by the statutory maximum for second-
degree murder. 18 U.S.C. § 1111(b). If a life
sentence for a conviction for second-degree
murder implied the plea should not be
approved, the statutory maximum would be
meaningless. The existing maximum reflects a
legislative judgment that some second-degree
murders warrant life imprisonment.
AFFIRMED.

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