United States v. Covington, 565 F.3d 1336 (11th Cir. 2009)
The defendant was convicted of conspiracy and using interstate facilities with the intent that a murder for hire occur, and for being a felon in possession of a firearm, to which he plead guilty. He was sentenced to a total of 480 months on three counts with time running concurrently and consecutively. The defendant appealed his conviction and sentences.
The district court did not abuse its discretion in admitting the testimony of defendant’s ex-girlfriend describing how he beat her, the handgun that he threatened her with during the assault, and his jail correspondence with her concerning the assault.
The defendant contended that the above evidence was improper propensity evidence used to portray him as a desperate and violent man who might arrange a murder for hire. However, the court ruled that the ex-girlfriend’s testimony was integral to the story of the crime and proved motive; and that the evidence of domestic abuse, especially in a case of murder for hire, that shows key abusive episodes, has significant probative value and any prejudice flowing from it is not unfair.
The defendant “used” a facility of interstate commerce, within the meaning of the federal murder-for-hire statute, when he answered a telephone and conversed on it; and the defendant’s use of the phone satisfied the federal statute for murder for hire even though the intended hit who called from out of state was an FBI informant.
The defendant claimed that the government presented insufficient evidence to prove the element of “use of interstate facilities” under 18 U.S.C. Section 1958. The court ruled that the defendant’s “use” of the phone system was sufficient (as answering and conversing on a telephone is “active employment”) to satisfy the interstate facilities element of the statute because the informant lived in Virginia, out-of-state, and was solicited repeatedly in Virginia by one of the defendant’s co-conspirators before he even became an informant. An interstate scheme was underway well before the FBI got involved. Also, there were plenty of other interstate facilities used and plenty of activities that crossed state lines.
The District court did not err in applying the Armed Career Criminal Act in sentencing the defendant.
The defendant argued that one of his three previous offenses was constitutionally invalid for lack of effective assistance of counsel and that he was absent from his own plea colloquy. However, the defendant did not deny that he had counsel in the previous battery case and he was present at the plea hearing before his conviction. Further, defendant’s guilty plea in this case, possession of a firearm, listed his three prior felonies for armed possession of cocaine, battery in a detention facility, and robbery, and alleged that he qualified for ACCA. His knowing and informed plea here amounts to an admission that the ACCA correctly applied to his case.
The District court did not err in grouping the convictions for murder for hire and conspiracy for sentencing purposes and considering the weapons possession conviction separately.
The defendant argued that the grouping was improper under Guidelines Section 3D1 and resulted in a base offense level of 37 rather than 36, which converted his range of 324 to 405 months into 360 months to life. The court found that Counts 1 and 2 involved the same victim and were part of a common criminal objective and therefore properly grouped together. Count 3 was a simple felon possession charge and were not part of the same plan or scheme and did not share the same criminal objective.
The defendant’s 40 year sentence was reasonable.
The defendant challenges his sentence as manifestly unjust. The court rejects this contention, reviewing the imposition of a consecutive sentence only for abuse of discretion. The court states that once the Section 3553(a) factors are considered, the only limitation on running sentences consectutively is that the resulting total must be reasonable, and ordinarily a sentence within the advisory guidelines range is reasonable.
Tags: abuse of discretion, Conspiracy, convicted felon, FRE, interstate commerce, motive, murder for hire, probative value, propensity evidence, use of interstate facilitites
