Appeal from the United States District Court for the Western District of Washington. D.C. No. CR-92-01357-JET. Jack E. Tanner, District Judge, Presiding.
Before: Donald P. Lay,*fn* Stephen S. Trott and Thomas G. Nelson, Circuit Judges. Opinion by Judge Lay.
Michael Ray Williams appeals from the district court's sentence of 108 months rendered after his plea of guilty to manufacturing and storing explosives without a license, 18 U.S.C. § 842(a)(1) and § 842(j), and possession of a firearm by a felon, 18 U.S.C. § 922(g). He originally was sentenced to 120 months in prison to be followed by three years of supervised release. Williams appealed, and on concession of error by the government, this court vacated his sentence and remanded to the district court for resentencing on July 8, 1993. On resentencing the district court adopted the probation department's recommendation and sentenced Williams to 108 months in custody to be followed by three years of supervised release.
On appeal, the defendant argues the court committed several errors in sentencing him. He claims the district court (1) failed to comply with Fed. R. Crim. P. 32(c)(3)(D) because it did not make findings on fact on disputed matters; (2) failed to provide him an evidentiary hearing on resentencing; (3) failed to properly identify facts justifying an upward departure by eleven levels; and (4) increased the upward departure over the earlier sentence thereby violating due process. We vacate the sentence and remand the case for resentencing.
On May 4, 1992, agents of the Bureau of Alcohol, Tobacco and Firearms ("ATF") observed the controlled delivery of chemicals used in the making of fireworks to the defendant's residence in Bremerton, Washington. Thereafter, the agents executed a search warrant and found 240 pounds of completed fireworks and 365 pounds of chemicals used for making fireworks as well as several firearms. Some of the chemicals were still packaged in their original manufacturing wrapping. The agents, according to the presentencing report ("PSR"), contacted police officials on the Suquamish Indian Reservation who reported that Williams was selling fireworks to members of the tribe for resale at their fireworks stands.
After Williams was arrested at his home, the chemicals found there were sorted and inventoried by ATF agents and transported by van to Fort Lewis. On May 6, 1992, in the process of preparing to destroy the chemicals at a demolition site at the fort, Agent John Massengale was fatally injured when the chemicals spontaneously ignited and exploded.
In the original sentencing proceeding, the court followed the government's recommendation and erroneously took into account Agent Massengale's death, cross referencing under section 2K1.3(c)(B) to the second-degree murder guideline and sentencing the defendant to 120 months imprisonment.*fn1
On appeal, the government conceded error and the case was returned to the district court for resentencing. The PSR was resubmitted without amendment. Both the government and the defendant filed sentencing memoranda with the court. The defendant had several objections to the PSR and submitted a number of affidavits challenging the accuracy of the factual statements in the PSR. The probation department gave a new sentence recommendation, calculating the offense level to be eighteen with a presumptive sentencing range of twenty-seven to thirty-three months.*fn2 However, the probation department renewed its original alternative recommendation of 108 months imprisonment. The PSR raised its recommendation for departure on the risk to public health or safety pursuant to Sentencing Guidelines section 5K2.14 from the two levels recommended in the first sentencing to three levels. The department again recommended departing upward by eight levels under Sentencing Guidelines section 5K2.1 because the defendant knowingly risked causing a death.
Before resentencing, the defendant requested an evidentiary hearing to dispute the factual basis for the government's recommended eleven-level upward departure under Sentencing Guidelines sections 5K2.1 and 5K2.14. The district court refused to hold a hearing, but did engage in a colloquy with defense counsel and the prosecutor. Thereafter, the court observed:
I think the reasoning and the Conclusion reached by Mr. Boyle [author of the PSR and Sentencing Recommendation] for the recommendation of 11 points upward departure is well taken, and the court intends at least at this time to adopt the reasoning and Conclusions of the probation officer and make them part of the sentencing herein, which I think calls for a 108 month sentence.
The court then adopted the reasoning and Conclusions of the PSR. In doing so, at least in regard to the primary disputed issues urged on appeal,*fn3 the court said, notwithstanding the defendant's denial, it believed a statement by the defendant's ex-wife who reported their four-year-old son had told her he had seen his father make fireworks in his home. As to the defendant's denial that he caused the death of Agent Massengale, the court rejected his mitigating evidence as "just argument" and told defense counsel that he would take what defense counsel had said as "an offer of proof."
A court's interpretation of the Sentencing Guidelines is reviewed de novo. United States v. Blaize, 959 F.2d 850, 851 (9th Cir.), cert. denied, 119 L. Ed. 2d 576, 112 S. Ct. 2954 (1992). ...