United States v. Richard Glen Mathews

36 F.3d 821 UNITED STATES of America, Plaintiff-Appellee, v. Richard Glen MATHEWS, Defendant-Appellant. No. 93-50359. United States Court of Appeals, Ninth Circuit. Argued and Submitted April 5, 1994. Decided Sept. 13, 1994. Michael Dowd, Milberg, Weiss, Bershad, Specthrie & Lerach, San Diego, CA, for defendant-appellant. Larry Burns, Asst. U.S. Atty., San Diego, CA, for plaintiff-appellee. Appeal from the United States District Court for the Southern District of California. Before: HUG, WIGGINS and NOONAN, Circuit Judges. NOONAN, Circuit Judge: 1 At dawn May 15, 1991 James Wilson was making his way through the alley behind 10 Ebony Street, Imperial Beach, California, picking up aluminum cans. He noticed a box near 120 Ebony, a residence rented by James "Fat Man" Rivera, a motorcycle gang leader, and Rivera's girlfriend. Wilson picked up the box. A bomb within it detonated. Wilson was deafened, suffered the loss of a finger and multiple fractures, lacerations and burns, and was blinded. He died seven months later, his death accelerated by the trauma he had undergone. When the crime was investigated, Richard G. Mathews, the appellant here, admitted that he and Mike Webb had…

At dawn May 15, 1991 James Wilson was making his way through the alley behind 10 Ebony Street, Imperial Beach, California, picking up aluminum cans. He noticed a box near 120 Ebony, a residence rented by James “Fat Man” Rivera, a motorcycle gang leader, and Rivera’s girlfriend. Wilson picked up the box. A bomb within it detonated. Wilson was deafened, suffered the loss of a finger and multiple fractures, lacerations and burns, and was blinded. He died seven months later, his death accelerated by the trauma he had undergone. When the crime was investigated, Richard G. Mathews, the appellant here, admitted that he and Mike Webb had made the bomb, whose intended target was Rivera. The bomb had taken three days to make. It operated with a clock and battery. It contained steel balls designed to cause severe injury to any person or property near it. Mathews had driven Webb to the street where the bomb was planted. Mathews’s admissions were confirmed by the testimony of Jeffrey Malley that at Mathews’s request he had purchased a pound can of gunpowder which he had delivered to Mathews. These facts were established by evidence the government presented at Mathews’s…

concurring in part and dissenting in part:

I concur in the opinion to the extent that it affirms Mathews’s conviction, but I respectfully dissent from the majority’s holding that Mathews was incorrectly sentenced. The majority rejects the district court’s conclusions of fact where the evidence requires us, under the proper standard of review, to affirm.

While the district court finds facts for sentencing purposes by a preponderance of the evidence, United States v. Restrepo, 946 F.2d 654 (9th Cir.1991) (en banc), cert. denied, — U.S. -, 112 S.Ct. 1564 , 118 L.Ed.2d 211 (1992), this court reviews the district court’s factual findings for clear error. United States v. Notrangelo, 909 F.2d 363, 364 (9th Cir.1990); United States v. Carvajal, 905 F.2d 1292, 1295 (9th Cir.1990); United States v. Christman, 894 F.2d 339, 342 (9th Cir.1990).

In this case the question is whether Mathews had the intent required for first degree murder, so as to be liable to sentencing under the guideline for attempted murder, U.S.S.G. § 2A2.1(a)(l). Application note 2 to that guideline refers one to the following definition of first degree murder.

18 U.S.C. § 1111 (a). The specific intent required for…