United States v. Saul Dos Reis

Citations: 369 F.3d 143; 2004 U.S. App. LEXIS 10169; 2004 WL 1146737Docket: 03-1593

Court: Court of Appeals for the Second Circuit; May 24, 2004; Federal Appellate Court

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Saul Dos Reis appeals a sentence from the U.S. District Court for the District of Connecticut, where he pled guilty to two counts of interstate travel to engage in unlawful sexual activity, violating 18 U.S.C. § 2423(b). The district court, applying U.S.S.G. § 5K2.1, upwardly departed and imposed consecutive sentences of 120 and 180 months, totaling 300 months, which is the statutory maximum for both counts. On appeal, Dos Reis argues that the court erred in this upward departure by considering conduct from the second count when sentencing on the first count, and that the departure improperly double counted the victim's age and was unreasonable in extent.

The Court of Appeals reviewed the sentencing for plain error, noting that while Dos Reis's total sentence exceeded the Guidelines' upper limit of 87 months, the district court did not engage in double counting and the departure was deemed reasonable. The court affirmed the sentence in all respects, leaving unresolved the issue of whether 'total punishment' under U.S.S.G. § 5G1.2(d) includes upward departures based on conduct related to a single count.

The background facts reveal that Dos Reis engaged with two underage girls he met online, ultimately resulting in sexual encounters. The first victim was 15 years old, and they had consensual sexual intercourse multiple times. The second victim, Christina, was 13 years and 2 months old. After engaging in sexual acts, Christina died during an encounter, allegedly due to asphyxia that Dos Reis claimed was consensual. Following her death, Dos Reis disposed of her body and personal belongings, and attempted to create an alibi.

Dos Reis faced charges in both state and federal courts related to the deaths and sexual offenses against two victims, Christina and Jane Doe. In state court, he pled guilty to statutory rape and entered an Alford plea for manslaughter, receiving a 30-year sentence. In federal court, he pled guilty to two counts of unlawful sexual activity across state lines, with the offenses separated into two groups in the presentence report based on distinct victims. Each count had an offense level of 28, adjusted to a combined level of 30 before a three-level reduction for acceptance of responsibility, resulting in a level of 27 and a sentencing range of 70-87 months.

The Government sought to deny the acceptance reduction and proposed upward departures based on Dos Reis's criminal history and the death of Christina. Dos Reis sought a reduction for acceptance and opposed the Government's motions. The court granted the reduction, adopting the PSR's recommendations, but also granted the Government's motion for an upward departure due to Christina's death, reasoning that the act of strangling inherently risked death or serious harm. The court likened the offense to felony murder, noting that Christina's young age and Dos Reis's actions, including body disposal and alibi fabrication, warranted a significant departure. Ultimately, the court upwardly adjusted to an offense level of 43, akin to felony murder, but imposed consecutive sentences of 120 and 180 months on Counts I and II, respectively, due to statutory maximum limits.

The court's initial judgment did not specify reasons for an upward departure in sentencing, but following a motion from the Government, it amended the judgment to include three key reasons: (1) the offense level did not adequately reflect the crime's seriousness; (2) the risk to Christina's life warranted a significant increase under U.S.S.G. § 5K2.1; and (3) Dos Reis's behavior was comparable to felony murder. In his appeal, Dos Reis does not dispute the upward departure itself but challenges both the method of calculating his total sentence and the extent of that departure. He claims the district court made errors by (1) improperly imposing a statutory maximum sentence on Count I based on actions related to Count II, and (2) unreasonably double-counting the victim's age in determining the extent of the departure.

The district court had imposed an upward departure on Count I (related to Jane Doe) from a Guidelines range of 70-87 months to reach a sentence close to life imprisonment, resulting in consecutive maximum sentences for both counts. Dos Reis argues, for the first time, that this imposition was erroneous, prompting a review for plain error under Rule 52(b) of the Federal Rules of Criminal Procedure. For relief, he must demonstrate an error that is clear and affects his substantial rights. In cases with multiple counts, the Guidelines dictate the calculation of a single offense level encompassing all counts, from which the final sentence is derived. The relevant section emphasizes that if the highest statutory maximum sentence is insufficient to meet the total punishment, sentences for other counts may run consecutively as necessary. Dos Reis argues that the district court improperly based the statutory maximum for Count I on conduct from Count II, but his interpretation conflates total punishment with the calculation of the upward departure. Instead, the district court correctly followed the Presentence Report's methodology, which appropriately grouped the counts and calculated the combined offense level to arrive at a final level of 27.

The key issue revolves around the sentencing of Dos Reis, where an offense level of 43 suggests life imprisonment, exceeding the statutory maximum for both counts. The district court applied U.S.S.G. 5G1.2(d) to impose consecutive sentences of 120 and 180 months for Counts I and II, respectively, aiming to approximate the punishment indicated by the upward departure. A critical question arises regarding whether this upward departure should be included in calculating 'total punishment.' The definition of 'total punishment' remains ambiguous within the Guidelines, and case law is inconsistent. While some circuits view 'total punishment' as including lawful upward departures, others suggest it reflects the guideline range unless a lawful departure occurs. The guidelines' text implies that upward departures are excluded from 'total punishment' calculations.

The relevant precedent from the Second Circuit, United States v. Hui, suggests that 'total punishment' may encompass some upward departures, but it is distinguishable in this context since the departure in Hui related to both counts, while Dos Reis's upward departure on Count I was based solely on conduct related to Count II, which occurred years later. The court refrains from making a definitive ruling on this issue at this time, noting that any potential error was not 'plain' under appellate standards. Additionally, Dos Reis argued that the district court did not provide reasons for its departure; however, the court complied with 18 U.S.C. 3553(c) by articulating its rationale during the sentencing hearing and including it in the written judgment, negating the need for remand.

Dos Reis challenges the upward departure in his sentencing on two grounds: (1) alleged double-counting of the victim's age, and (2) the reasonableness of consecutive statutory maximum prison terms. The court upheld the departure, finding no double-counting. Dos Reis argued that the district court improperly considered the victim's age under U.S.S.G. 5K2.1 when it had already been factored into his sentencing range under U.S.S.G. 2A3.2. However, the court clarified that while the victim's age was referenced, it was used to illustrate the heightened risk of death or serious harm in this context, not merely as a factor for departure. The court concluded that even if there were double-counting, it would be considered harmless error, as the district court's primary rationale was Dos Reis's awareness of the risk of death, suggesting the same sentence would have been imposed regardless. On the second point regarding reasonableness, the court found that the upward departure from a 70-87 month range to 300 months was justified given the serious nature of the case, rejecting Dos Reis's characterization of the incident as accidental and more akin to manslaughter.

The Court evaluates the extent of an upward departure in sentencing by determining if it deviates unreasonably from the guidelines range, while respecting the district court's application of these guidelines. The Supreme Court advises that appellate courts consider the departure's magnitude relative to its justifications, examining both the sentencing guidelines' factors and the district court's reasoning. Authorization for upward departures is found in sections 2A3.2 and 5K2.1 of the Guidelines, which allow for departures when the offense level underestimates the offense's seriousness or when death results from the criminal act. 

Factors influencing the departure include the dangerousness of the defendant's actions, intent or risk of serious injury, and whether the existing offense level adequately reflects the risk of harm. The district court's decision to impose a 213-month upward departure was based on several factors: the young age of the victim, the defendant's awareness of the risk of death, the act of disposing of the victim's body, the creation of a false alibi, and a comparison to federal felony murder, which carries a higher offense level. The court found the departure to the statutory maximum reasonable due to the defendant's knowledge of the fatal risk involved in his actions. Additionally, the guidelines for the offense did not capture the risk since they typically apply to consensual acts. The court's analogy to federal felony murder as a basis for determining the departure's magnitude is justified, as such murder encompasses acts committed during aggravated sexual abuse.

The Court has consistently upheld significant upward departures from sentencing ranges, with precedent cases illustrating departures that exceed threefold the upper limit. In particular, departures were affirmed in United States v. Fei, where a 33-month range was increased to 120 months, and in Hui, where a range of 27-33 months was raised to 180 months due to the severity of an illegal alien smuggling operation resulting in multiple deaths. The Court defers to the district court's findings, emphasizing that it is unreasonable for Dos Reis to claim ignorance of the risk of serious harm when applying pressure to the victim's neck. Additional factors supporting the severe departure include the disposal of the victim’s body and actions taken to create an alibi. The Court affirms that the district court's decision to impose a significant upward departure was reasonable. The sentence includes consecutive terms of 120 months for Count I and 180 months for Count II, based on different versions of 18 U.S.C. § 2423(b), leading to a total combined federal and state imprisonment of 40 years.